Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certaincompanies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.
Based on my reading of the complaint, Tim Wu’s speculation on Viacom’s strategy seems about right:
Viacom seem to be preparing to argue that, since Youtube plays such a role in hosting the videos, and doing things like screening porn, the videos are not, in fact “user-directed content,” the hosting of which is protected by 17 U.S.C. 512(c).
The main challenge for that argument is the text of 512(c), which protects “user-directed content” or “the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”
So after a long hiatus I’ve finally gotten back to reading The Wealth of Networks, and am nearing completion. I continue to find Benkler’s treatment of “spectrum commons” frustrating. Here’s how he describes the issue on page 403:
As chapter 3 explains, by the time that legislatures in the United States and around the world had begun to accede to the wisdom of the economists’ [arguments for spectrum property rights], it had been rendered obsolete by technology. In particular, it had been rendered obsolete by the fact that the declining cost of computation and the increasing sophistication of communications protocols among end-user devices in a network made possible new, sharing-based solutions to the problem of how to allow users to communicate without wires. Instead of having a regulation-determined exclusive right to transmit, which may or may not be subject, to market reallocation, it is possible to have a market in smart radio equi9pment owned by individuals. These devices have the technical ability to share capacity and cooperate in the creation of wireless carriage capacity. These radios can, for example, cooperate by relaying each other’s messages or temporarily “lending” their antennae to help neighbors to help them decipher messages of senders, without anyone having exclusive use of the spectrum.
This rather surprised me, since I didn’t remember chapter 3 explaining any such thing. Looking back, I found a brief discussion of the economics of spectrum commons that (as I’ll explain below the fold) falls far short of justifying the stark claim that the need for spectrum commons “had been rendered obsolete” by technological developments by the late 1990s.
Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.
I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.
The inspector general’s report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI’s actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general’s report suggests that large telecom companies have been all too willing to share sensitive data with the agency — in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.
Ars has a typically exhaustive review of Windows Vista. The short version: Microsoft has now achieved technological parity with Mac OS X, circa 2001, by implementing features (vector-based graphics, high-level object-oriented APIs, separating UI design from code) that were first introduced by NEXTSTEP in 1989. Interestingly, even if NeXT had patented these technologies, it probably wouldn’t have mattered much because the relevant patents would be on the verge of expiring by now.
The classical liberal joins the libertarian in a full-throated condemnation of state power used to create or perpetuate economic monopolies and private cartels in what would otherwise be competitive industries. The touchstone of the analysis that follows, therefore, is this: state power that may be used to limit monopoly power should never be converted into a force that creates or perpetuates monopoly power.
My last post probably came across as snarky, but I’m quite serious. Several DMCA defenders (although perhaps not Epstein himself) have argued that the DMCA’s lock-in effects are an argument in favor of the DMCA, a position that seems to me to stand in stark contrast to the sensible position that Epstein articulates here: that state monopolies should always be regarded with great skepticism. If it’s economically beneficial to prohibit people from building iTunes-compatible music players, would it also be economically beneficial to ban the sale of after-market auto parts? If not, what’s the difference?
I suspect the answer, in at least Epstein’s case, is that he doesn’t understand that prohibiting circumvention of DRM is equivalent to giving the DRM vendor a monopoly on compatible devices. Indeed, he seems to believe that it’s possible to “make it illegal for anyone to take actions that disable encryption devices” while allowing “for reverse engineering key elements of programs solely to insure ‘interoperability’ of some independent program.” As I’ve argued before, that’s not how DRM works: Prohibiting circumvention amounts to granting a monopoly over compatible devices.
To be fair, the error originated not with Epstein but with the drafters of the DMCA, who also seemed to believe (or at least hoped the world would believe) you could draw a meaningful distinction between circumvention and interoperability. Still, special interest groups often advance legislation that purports to do one thing but actually does something entirely different. Indeed, this kind of rent-seeking is one of the central themes of Epstein’s own work in other areas of the law. So it’s frustrating that he so blithely accepts the the copyright lobby’s fatuous justifications in this case.
Richard Epstein in How Progressives Re-wrote the Constitution, page 15:
[The classical liberal legal regime protects] the freedom to engage in market competition—to make offers to business with others. The private voluntary contracts that may result are postiive-sum games for the parties to them, and whatever harm ordinary contracts of sale and hire wreak on competitors (and it is a real harm, no doubt) is more than offset by the gains to the parties and to consumers. We are all systematically better off, therefore, in a regime in which all can enter and exit markets at will than in a social situation in which one person, armed with the monopoly power of government, can license or proscribe the actions of others.
I wonder how he would apply this analysis to the market for iTunes-compatible music players.
My friend Constantino Diaz-Duran has a great op-ed in the New York Post about the Egyptian blogger free speech case:
Egyptian authorities see blogging as so dangerous that they’ve kept Soliman in solitary confinement since his arrest in November. The former law student, whose dream was to open a human-rights law firm, has been been sentenced to four years in prison for the “crimes” of criticizing President Hosni Mubarak and insulting Islam.
The case sets a dangerous precedent in a country that has, until recently, been a beacon of hope for reform in the Middle East. Amnesty International, Human Rights Watch and the Hands Across the Mideast Alliance have condemned the sentence. Reporters Without Borders has even inducted Egypt into its Hall of Shame, naming it one of 2006’s “Internet Enemies.”
The U.S. State Department has expressed concern about Soliman’s conviction and the denial of his initial appeal. In Congress, Reps. Trent Franks (R-Ariz.) and Barney Frank (D-Mass.) have joined forces to plead with the Egyptian ambassador on behalf of Soliman. But they remain the sole voices championing the release of this young freedom fighter.
Considering that our government sends Egypt nearly $2 billion in foreign aid each year, the response has been timid.
Doug Lay wants to know what I think of Doug Lichtman’s op-ed on the Viacom/YouTube suit, which he says “comes close to defining a new category of thoughtcrime.” I don’t think I agree with that characterization, but I do have a couple of bones to pick with Lichtman’s argument.
The first is that Lichtman entirely brushes aside what I consider Google’s strongest argument:
Lawyers on both sides will cite the Digital Millennium Copyright Act and argue about the extent to which its provisions provide a “safe harbor” for YouTube’s service. They will parse copyright case law and debate such legal doctrines as “contributory infringement” and the defense of “fair use.” Before the forest becomes lost in those trees, however, it’s important to make three basic points.
He then goes on to talk about how copyright ought to work, and why YouTube ought to be liable for infringement. But deciding those sorts of policy questions is the job of Congress, not the courts. It’s fine (indeed, beneficial) for the courts to fill in the gaps in statutes where Congress has been unclear or unspecific. But when a statute is clear, the job of the courts is to apply it as written, not to second-guess Congress’s policy judgments.
I usually agree with Larry Lessig about copyright issues, but I found his op-ed on Grokster and Viacom to be rather off. I’ve been meaning to do a post about that, but Randy Picker has made the point better than I could:
[The Sony] case addresses two issues, whether home users engaged in fair use when they time-shifted free over-the-air broadcast television—the Court concluded that they did—and whether Sony could be held secondarily liable for copying done with the VCR. Just reading statutes, we might have thought the answer to that question was easy. As the majority opinion noted, the Patent Act expressly addressed secondary liability, setting forth in 35 USC 271(b) liability for one who “actively induces infringement of a patent” and in 35 USC 271(c) liability for contributory infringement. Congress obviously knew how to create secondary liability in intellectual property cases when it wanted to, and therefore chose not to do so in copyright when it failed to include comparable language to that of the 1952 patent act in the 1976 copyright statute. Case closed.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.