Over at Techdirt, Carlo nails Dennis Kucinich’s proposal to bring back the so-called fairness doctrine:
One of the earliest lessons a lot of kids learn (though don’t necessarily accept) is that life isn’t fair, if for no other reason than what they think is fair is often wildly different than what their parents do. Now, once-failed and now long-shot presidential candidiate Dennis Kucinich says he’ll be heading up a new House subcommittee on issues around the FCC, that he might try to bring back the Fairness Doctrine. The Fairness Doctrine was an FCC rule, in force until 1987, that said broadcasters had a responsibility to discuss controversial issues of public importance, and to do so in a balanced manner that addressed differing points of view. While the goal of the doctrine might sound nice, the rule itself is a little troublesome, not least of which because it could be interpreted as violating the First Amendment (though the current FCC isn’t likely to care about that), but also because it holds broadcasters to a wholly subjective ideal. Who decides what’s fair? After all, one popular news network famously uses the tagline “fair and balanced”, when plenty of people feel it’s neither. The Fairness Doctrine also makes less and less sense in an age where the number of media outlets is proliferating. There’s no limit to the number of places that can provide news or opinion, and professionals and the public have more tools than ever at their disposal to tell their own stories and express their own viewpoints. To require certain media to provide an arbitrary level of “balance” makes less sense than encouraging people with disagreeing viewpoints to develop their own media outlets, whether it’s a blog, newsletter or even a cable TV channel. Kucinich says that “the media has become the servant of a very narrow corporate agenda”–but reinstituting the Fairness Doctrine would simply replace that corporate agenda with that of a political appointee, and that’s really not very fair.
It’s truly mind-boggling that someone could look at today’s media landscape, which is by almost any measure more diverse, vibrant, and competitive than at any point in the history of the world, and conclude that we need to turn back the clock to the 1970s, when a government bureaucrat sat in judgment of the “fairness” of each television outlet’s news and commentary.
It’s particularly irritating to see it come from the political left because if there’s one that the Bush administration has taught us about journalistic objectivity, it’s that a White House that’s willing to twist the truth can use the concept of “fairness” to browbeat journalists into putting its obfuscations on an equal footing with more credible observers. This just isn’t the sort of problem that a bureaucracy like the FCC can solve. It can only be solved by journalists who are willing to call a spade a spade, and opposition politicians who are willing to highlight their opponents’ dishonesty. Putting the FCC in charge of determining what’s “fair” is not only an affront to the First Amendment, but it’s not likely to work either.
I’m excited to report that the good folks at Ars Technica, probably the best source of in-depth technology news and analysis on the web, has asked me to contribute to their site. Ars will be familiar to regular TLF readers because we link to them all the time. If you aren’t already a regular reader, you should be. And not just because you’ll occasionally find my writing there.
My first contribution focuses on Alan Cox’s application for a patent on digital rights management technology:
It’s unlikely that Cox’s patent is part of a grand plan to rid the software industry of digital rights management technology. Rather, the patent application is probably part of Red Hat’s patent self-defense strategy. Microsoft has darkly hinted that Linux and other free software infringes on Microsoft’s patents. Red Hat is responding with defensive stockpiling, applying for about two dozen patents in the last two years. Most likely, it’s working to build a patent portfolio extensive enough that it will be able to retaliate should it become the target of patent litigation.
The fact that even Red Hat, a company publicly opposed to software patents and unlikely to assert them against anyone, feels the need to apply for dozens of patents suggests that there are serious problems with the American patent system. The resources Red Hat spends hiring lawyers to obtain patents it will most likely never use could be more productively spent hiring programmers and customer support personnel to do useful work.
Mike Masnick offers another example related to last week’s discussion of whether patents are needed to protect software innovations:
Microsoft has long viewed Google as a serious competitor, and apparently Bill Gates and the folks in Redmond have been pulling out all the stops to compete with Google. In many cases, they’ve created products that seem as good, if not better, than Google’s versions. Yet, despite all of that, they’re losing traffic while Google gains it. Once again, it’s not just about the technology, but the perceived view people have of Google as compared to Microsoft. Microsoft just hasn’t been able to convince that many people that its search and mapping solutions are as good or better than Google’s. Despite the claim that there are “no switching costs” for users to go elsewhere, that’s not quite true. The perception that Google is better (and the feeling that it’s “good enough”) means that there’s no reason for people to look elsewhere, and a Microsoft offering would need to be not just better, but significantly better to attract attention. Alternatively, they can work on increasing their brand value as well, in the space of online services. In other words, there are plenty of things that go into being able to innovate and build a successful product–and simply copying someone else’s technology is often a small part of that (and usually not a particularly good strategy). Patent protection only protects that aspect of copying (business model patents are another issue completely), but if they’re supposed to encourage innovation, and the technology is only a small part of innovation, then the incentives are mis-aligned. The market can reward innovation without needing government monopolies and protectionist policies. The trick is to continually innovate, not just in the technology, but in the quality, the service and the brand as well.
Quite so. It needs to be stressed that the goal of patent law is to provide sufficient incentive to “promote the progress of science and the useful arts,” not to maximize the profits of innovators. Clearly, Google has been able to turn a tidy profit (to put it mildly) from its search engine without any significant recourse to patent law. Even after five years, one of the wealthiest companies on the planet has apparently not been able to produce a search engine that consumers perceive as being equivalent to Google’s offering. This suggests, I think, that a software innovator retains significant market advantages even after competitors have succeeded in cloning the major features of its product. And that, in turn, casts serious doubt on the notion that innovative products like the iPhone or Google wouldn’t exist but for the patent system.
I’ve got a new article up at The American about the Blu-Ray/HD-DVD fight:
The two camps, each desperate to avoid Betamax’s fate, held dueling press conferences. The more bullish of the two was the Blu-Ray camp, which declared its “victory as the premiere high definition DVD format of choice,” touting broad support from both Hollywood and the consumer electronics industry. But backers of HD-DVD were unbowed, announcing plans for hundreds of new titles in the next year.
Predicting the winner of this battle has become a popular pastime among technology pundits. But there’s a real risk that the combination of consumer confusion and the rapid improvement of Internet-based distribution technologies will doom both formats to niche status.
This article doesn’t have too much of a policy angle to it. When I started on the article, I had planned to discuss the various irritations created by digital rights management restrictions, but I concluded that although those are likely to annoy consumers, they probably won’t be the deciding factor in the success or failure of the formats. The HDCP format gives the movie publisher the right to decide which restrictions on playback will apply to each movie. In theory, a studio can disallow playback entirely on devices that don’t meet HDCP standards. But given that there are thousands of HDTVs out there that were sold before the HDCP standard was finalized, my guess is that they’ll never turn that “feature” on. Hollywood may shoot itself in the foot from time to time, but I doubt they’re so suicidal as to cripple one of their most lucrative revenue streams.
I’ve noted before that there’s been a trend recently of left-of-center academics citing great libertarian thinkers in their writings about copyright and patent law, peer production, industrial organization, and related topics. Tim Wu and Yochai Benkler cite Hayek and Coase, respectively, in their writings. The latest example is Cass Sunstein’s (relatively) new book, Infotopia: How Many Minds Produce Knowledge. I haven’t read it yet, Patti Waldmeir of the Financial Times says:
Sunstein, one of the biggest of America’s internet big thinkers, has written an intriguing new book in which he argues that Hayek’s insights about the genius of markets are equally true of the internet. Sunstein argues, for example, that sharing scientific information online would cure some of the worst problems of the US patent system and foster innovation much more efficiently than costly patent litigation. Sunstein recognizes all the potential flaws of such collaborative projects. Groupthink can be dangerous. But, says Sunstein, the wisdom of the many is a great thing, and sharing knowledge online can lead to remarkable advances for companies, for governments and for the rest of us
Now, obviously, many libertarians (and perhaps Hayek himself) would take exception to some of the details of Sunstein’s argument. But I still think it’s a positive development that the problems Hayek and Coase focused on–how do we organize our economy and society to optimize the dispersion and use of knowledge–are increasingly recognized as central to high-tech policy debates.
Are there other examples of non-libertarian academics citing applying the insights of Hayek, Coase, or other libertarian thinkers to tech policy issues?
Via Techdirt, BusinessWeek reports that Hollywood (aside from Disney) is holding steadfast in its determination to make movie download services unappealing to consumers. This is just baffling:
What does Hollywood want from Steve Jobs? For starters, more protection for their films. “His user rules just scare the heck out of us,” one studio executive told me. Indeed, under Apple’s video iPod digital-rights-management scheme, folks can share their flicks with as many as three other iPod users.
That’s good for the guys who get free flicks, but it’s bad for Hollywood, which goes bat crazy over the notion of pirated freebies on the Internet. To them, losing a customer courtesy of the video iPod is just as bad. Add into the equation the new Apple TV, which would allow folks to put that movie on their TVs, and Hollywood sees more and more of its DVD bucks headed out the door.
I don’t know if this is the exec misunderstanding Apple’s DRM scheme, the reporter misunderstanding the exec, or me misunderstanding the whole passage, but that doesn’t make any sense to me. It’s true that you can have your iTunes content on more than one iPod, but each iPod can only be linked to one copy of iTunes. So yes, you can have the same movie on three iPods. But it can’t be any three iPods–it has to be three iPods that have all of your content–and only your content–on them. Which means that, at most, this will allow family members to share movie downloads.
Now, the goofy thing about this is that even with the ability to watch movies on three iPods, Apple’s DRM scheme is still way more restrictive than what you can do with a traditional DVD. I can play a DVD on any DVD player in the world, and I can potentially share it with dozens of different people. If their goal is to make sure no one gets to watch a movie without paying Hollywood for the privilege, DVD-sharing is a much bigger threat than anything people can do with their iPods.
So I don’t understand who’s supposed to be “getting free flicks” or how Hollywood would be “losing a customer” by signing up with iTunes. Can anyone explain what the problem is supposed to be?
Mike Masnick has some good comments on the iPhone. Most interestingly, he points out that many of the technologies have been demonstrated before. Here is a really cool video demonstrating multi-touch interfaces from last February. The only thing it’s missing is Steve’s legendary Reality Distortion Field.
Mark Blafkin sets the record straight on the Mac-vs-Windows story I told in my “iPatents” post:
Sure, the Mac OS was light years ahead of Windows 1.0, and it took Microsoft until Windows 3.1 or even Windows 95 to get to near feature parity. Did that translate into the immense marketshare and “big profits” for Apple Mr. Lee’s theory would predict? Funny enough, no it didn’t.
In fact, it took Apple nearly 7 years to sell its first 5 million Macs. On the other hand, Microsoft sold 10 million copies of Windows 3.0, “a usable, less expensive alternative to the Macintosh platform,” in less than 2 years!
Blafkin seems to regard this as evidence that the Mac (and its successor machines) weren’t profitable for Apple, but it proves nothing of the sort. Apple did, in fact, make a ton of money on Macs in the late 1980s and early 1990s, with prices of high-end models pushing ten grand and fat margins.
Blafkin continues…
Continue reading →
Good news from the Senate:
At first [Hollywood] approached the FCC, and the FCC complied by dutifully trotting out some new broadcast flag regulations. Unfortunately for the content industry, the FCC doesn’t generally have the right to tell manufacturers how to build their products. The rules were thrown out by an appeals court in 2005.
Undaunted, the industry tried again in Congress. Last year, when a rewrite to the 1996 Telecommunications Act was being considered, broadcast flag legislation was in fact attached to the bill and even made it through committee before bogging down.
Sununu’s bill will attempt to rein in the FCC and prevent it from reviving the broadcast flag without Congressional authorization to do so. “The FCC seems to be under the belief that it should occasionally impose technology mandates,” Sununu said in a statement. “These misguided requirements distort the marketplace by forcing industry to adopt agency-blessed solutions rather than allow innovative and competitive approaches to develop. We have seen this happen with the proposed video flag, and interest groups are pushing for an audio flag mandate as well. Whether well-intentioned or not, the FCC has no business interfering in private industry to satisfy select special interests or to impose its own views.”
Whatever your views on DRM more generally, it’s awfully hard to make a libertarian argument for giving the FCC authority to dictate how consumer electronics companies will design their products.
Over at the ACT blog, Mark Blafkin pinpoints what makes the iPhone really great: 200 patents!
The Apple iPhone is the result of tens of millions of dollars in research and development by some of the smartest minds in computing. The investment necessary to develop a radically new interface like Multi-touch requires that Apple have a way to protect that investment. If Nokia, Sony, and Motorola could all simply copy it in their new phones, why would Apple even bother? Besides, I’m sure Apple has had enough of playing R&D Lab for the rest of the industry.
That’s why Mr. Jobs declared, “Boy, have we patented it!” There are a lot of bad software patents out there, but devices like the iPhone make us all realize why we can’t throw the baby out with the bathwater. There are some things so cool, so innovative, they deserve patent protection.
I have yet to see a list of the patents Apple requested, and Blafkin doesn’t provide such a list, so it’s hard to judge how much of them are baby and how much are bathwater. But Blafkin’s supposedly rhetorical questions aren’t actually that hard to answer. Why would Apple bother to develop something like Multitouch without the benefit of patent protection? Quite obviously, it’s because if the product is as good as Uncle Steve’s presentation made it look, Apple is going to make a ton of money on it. And they would be able to make a ton of money even if they hadn’t applied for a single patent.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.