Keeping politicians' hands off the Net & everything else related to technology
I’m thrilled that Julian Sanchez will be joining Ars full-time, where he’ll be their Washington editor. It’s a real coup for Ars and will beef up their already-superb tech policy coverage.
You can check out his freelance output over the last year here. And really, if you’re a TLF reader, there’s no excuse for you not to be subscribed to Ars already.
Over at Ars Technica, I cover an important decision from the Federal Circuit. For the first time, a federal appeals court has held that distributing copies of a free software product in violation of its license term is copyright infringement, and not merely a breach of conract.
I think Mike is a little bit off base here in comparing the decision to the recent “promo CD” case:
Creative Commons seems to basically do the same thing that stamping “not for resale” does on CDs: it creates a separate license on top of copyright, and then tries to use copyright’s defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren’t enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.
In the Universal case, the court found that the “not for resale” language wasn’t enforceable because there was no “exchange” that resulted in the “license” (also known as “consideration” — which is usually required for US contracts to be binding): “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” The same is true of Jacobsen’s software, as well. The software is given, never to be returned, and the license doesn’t require the end user to provide Jacobsen with any benefit in return.
I address this point in the final paragraph of my story:
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I was pleased to see Braden’s excellent new paper on the use of self-serving lobbying tactics to limit competition and promote particular business models at the expense of others. As Braden and his co-author point out, some of the most important competition in the software industry has become less about products than about business models. Some software companies sell the software directly, while others give software away as a means of selling hardware, services, or advertising. And in many cases, public policy debates in the software industry are thinly-veiled attempts to give some business models unfair advantages over others.
Braden produced a chart that gives some helpful examples of policies that tilt the economic playing field toward one business model at the expense of the others:
As you can see, software patents promote proprietary software business models at the expense of business models based on giving software away for free (and, it should be said, at the expense of people who want to give software away for free on a non-commercial basis). Similarly, the DMCA promotes proprietary software business models. They neglected to put it on the chart, but the flip-side is obviously true: the DMCA harms free software, commercial and otherwise, by making unauthorized interoperability with DRMed software a crime.
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I’m always interested in stories about the unintended consequences of government regulation, but this story from Valleywag (Via a comment from Richard Bennett) doesn’t make a lot of sense:
The prospect of pay-by-the-bit bandwidth had immediate consequences for BitTorrent’s two main businesses: an online-media store delivered via file sharing, and a content-delivery network which competed with the likes of Akamai and Limelight Networks.
For users who would have to pay bandwidth fees to their ISPs on top of paying the usual charges, BitTorrent’s Torrent Entertainment Network store would soon look uncompetitive with the likes of Apple’s iTunes Store and Microsoft’s Xbox Marketplace — which prompted Best Buy to back out of talks to acquire TEN for $15 million.
As for BitTorrent’s content-delivery network, it was premised on the notion that BitTorrent would negotiate with ISPs to get privileged delivery for their file-sharing packets, while Comcast blocked others. With the FCC forcing Comcast to treat all file-sharing traffic equally, the promise of that business evaporated.
The obvious problem with this is that Apple, Microsoft, Akamai, et al haven’t negotiated privileged bandwidth agreements with ISPs either. If users have to pay their ISPs extra to download a 10 gig HD movie from BitTorrent, they’re going to have to do the same to download HD movies from iTunes or the XBox store. BitTorrent’s big advantage is that they face dramatically lower bandwidth costs on the other side of the pipe, because their users share files with each other rather than everyone getting bandwidth from the server. If bandwidth caps and metering doom BitTorrent, then they doom iTunes and the XBox store too. Somehow, I don’t think we’re about to see the end of video download services.
This is fascinating. A co-blogger on my other blog did a very short post about the Russia-Georgia conflict. Within a few hours, we got 11 comments, not obviously spam, from different IP addresses, all of them pro-Russian. And, it should be noted, my other blog gets even less traffic than this one does, so it’s extremely unlikely that I just happen to have dozens of Russian readers who have never commented before.
I’m really curious why this happened. I can think of three explanations:
I think any of these three options has interesting implications. Perhaps we’ll find out which it is by the response (or absence thereof) to this post.
I’m reading about the first-ever felony conviction for spamming. While I almost always agree with the ACLU on free speech issues, I found the Virginia ACLU’s amicus brief in the acse totally unpersuasive.
The ACLU argues that the First Amendment protects a right to anonymous speech, which I wholeheartedly agree with. However, I don’t think that right can be stretched so far as to strike down the Virginia anti-spam statute at issue in this case. This statute prohibited the falsification of email headers while sending more than 10,000 pieces of unsolicited bulk email. So this means that under the statute, someone may (a) send out an unlimited number of emails using a real email address, (b) send out 9999 emails per day (99,999 per month, 999,999 per year) while falsifying email headers, or (c) send out an unlimited number of emails with falsified addresses to people who have previously consented to receive them. I find it extremely difficult to imagine a circumstance in which these restrictions would impinge on legitimate exercises of free speech. The activities prohibited by this statute simply don’t include the kinds of situations that motivate the constitutional protection of anonymous speech—defending a point of view or releasing sensitive information without fear of reprisal or public embarrassment. Whistleblowers might want to send falsified emails to a few dozen journalists, legislators, or business leaders, but I’m having trouble thinking of a plausible situation in which a whistle-blower had a genuine need to reach more than 10,000 people.
I find analogies to older technologies—and to 18th-century pamphleteers in particualr—unpersuasive in this case because this case just isn’t like anything that existed in the pre-Internet age. In 1975, there just wasn’t any way to transmit tens of thousands of messages for a fraction of a penny per message. The costliness of information transmission—any available communications technology cost at least a few pennies per message—meant that the law never had to grapple with the possibility that sending messages could become a significant enough nuisance to require regulation. Now we do live in that world, and I think it’s a mistake to put too much weight on misleading analogies to older communications technologies with vastly different properties.
A final reason anti-spam legislation doesn’t bother me from a First Amendment perspective is that I don’t see any slippery slope here. Not only is the activity being targeted unambiguously bad, but there are very few grey areas, and the grey areas are pretty bad themselves. The Virginia statute applies two very clear bright lines—spam must be unsolicited and it must consist of more than 10,000 pieces in a 24-hour period—that make it trivially easy for anyone interested in following the law to do so. Moreover, thanks to the growth of spam filters, there is an enormous gulf between bad spammers and legitimate emails users. Legitimate users who did vaguely spam-like things (say, a non-profit organization that sent out a fundraising appeal to people who hadn’t consented to receive it) would get most of their spam blocked by ISPs’ spam filters and would get contacted by email administrators very promptly to be told to knock it off. It’s hard to imagine such an organization breaking Virginia’s law (sending out 10,000 copies and forging email headers), and even if it did it’s hard to imagine a prosecutor going after them. Which means that only spammers are engaging in spammer-like behavior. It’s pretty easy to write a statute that criminalizes most spammers and few if any legitimate email users. To use the Supreme Court’s lingo, Virginia’s spam law strikes me as “narrowly tailored” to blocking an undisputed evil and is no more restrictive than is necessary to accomplish that objective. If there’s any speech restriction that should pass First Amendment scrutiny, this is it.
Update: None of this is to say that some anti-spam laws can’t be too broad. CAN-SPAM, for example, appears to criminalize the sending of “multiple” deceptive emails or the creation of more than five separate email accounts for sending commercial emails. I can certainly think of grey areas for those kinds of prohibitions, and would have serious doubts about their constitutionality.
Ryan does a great job of laying out the issues with the MPAA’s SOC waiver request. He makes two key points—that the FCC shouldn’t be telling cable companies what to do with their networks, and copyright law shouldn’t give the MPAA veto power over the design of technological devices. Ryan spends most of his time arguing the first point, but I think the second point is the really important one.
The thing to understand about DRM is that it’s less a encryption technology than (as Ed Felten puts it) a hook on which to hang lawsuits. Every DRM standard of any significance has been broken within months of its release. Without the DMCA on the books, many consumer electronics manufacturers would simply ignore DRM, reverse-engineering the relevant standards and producing devices that accept DRMed content and convert it to open formats. Knowing that this would happen, Hollywood would long since have given up trying to produce the kind of end-to-end DRM that’s at issue in these proceedings.
Which means that the existence of the cable industry’s Selectable Output Control powers is almost entirely a consequence of bad government policy. In a free market, I’d be able to go down to my local Best Buy and purchase $50 box that would take an HDCP input and output the content in a variety of non-encrypted formats. Such a box is unavailable only because Congress—at the behest of the MPAA—made producing it a felony. That, not anything the FCC has done, is the fundamental issue in this controversy.
Now, it makes me uncomfortable to have the FCC dictate how the cable industry runs its network. But I think the fundamental point that needs to be emphasized is that regulation begets regulation. That is, given that the DMCA has screwed up the consumer electronics industry, it’s not surprising that a lot of people want the FCC to step in to minimize the damage. The solution is to repeal the DMCA and let the free market work. But until that happens, I’m not going to get too outraged at Public Knowledge for asking the FCC to prevent the MPAA from abusing its government-granted veto power over the design of consumer electronics devices. I don’t agree with their solution, but I think their heart is in the right place.
There are apparently people who believe that it’s some kind of technological Faux pas to type a website’s URL into the search bar. As Joe Weisenthal points out, this is completely nonsense. There are a number of good reasons to use the search bar even if you have a pretty good idea of a site’s URL.
Beyond the specific reasons Joe gives, there’s a more fundamental issue of cognitive economy. URLs have to be exact, and so remembering them takes a non-trivial amount of cognitive effort. If I want to remember the Institute for Humane Studies website, I have to remember that it’s theIHS, and that it’s a .org rather than a .com or a .net. But if I type “IHS” into Google, the Institute for Humane Studies is the third search term. If I type something a little more descriptive, like humane studies, it comes up as the first result. Search terms don’t have to be exact, and so they tend to be much easier to remember: type something in the general vicinity of what you’re looking for, and Google will find it for you.
The point isn’t that I couldn’t remember theihs.org. Rather, it’s that remembering the URLs of all the websites you visit is a waste of cognitive energy in exactly the same way that it would be a waste to remember IP addresses rather than domain names. Technically speaking, the IP address lookup would be faster, but the difference is so trivial that it’s swamped by the fact that the human brain isn’t as good at remembering 32-bit numbers as it is at remembering well-chosen domain names. By the same token, even if the search bar isn’t the “right” place to put URLs, it will, in practice and on average, be the quickest way for actual human beings to get to the sites they’re looking for.
This is an example of a general attitudinal problem that’s distressingly common among geeks. Geeks have an tendency to over-value lower-level layers of the technology stacks based on the misguided belief that higher-level technologies are unnecessarily wasteful. Many geeks’ preference for text over graphics, command lines over GUIs, text editors over word processors, and so forth seems to too often be motivated by this kind of false economy. (To be clear I’m not claiming that there aren’t good reasons for preferring command lines, text editors, etc, just that this particular reason is bogus.) What they miss is that human time and attention is almost always more scarce than the trivial amount of computing power they’re conserving by using the less complex technology. The 2 seconds it takes me to remember a website’s URL is worth a lot more than the tenth of a second that it takes Google to respond to a search query.
I too am sad to see William Patry hanging up his spurs. I can sympathize with a lot of he says. I too consider myself a copyright centrist and a defender of copyright’s traditions and so find it frustrating to be forced by recent trends to be constantly on the “anti-copyright” side of every argument. However, I don’t share Patry’s depression regarding recent trends in the copyright world. Because while the legislative developments over the last 30 years have been an unbroken string of disasters, most other aspects of the copyright system have actually gone pretty well.
One ray of light is the courts, which continue to get more right than they get wrong. The courts have, for example tended to uphold the first sale doctrine and fair use against concerted challenges from the copyright industries. Had Congress not passed the 1976 Copyright Act, the NET Act in 1997, and the DMCA and CTEA in 1998, my sense is that we’d actually have a pretty balanced copyright system. This suggests to me that restoring copyright sanity wouldn’t actually be that hard, if Congress were ever inclined to do so. To a large extent, it would simply have to repeal the bad legislation enacted during the 1990s.
I can think of two reasons my outlook might be more optimistic than Patry’s. One is that I’m younger than he is. I graduated from high school in 1998, which was almost certainly the low point when it comes to copyright policy on the Hill. While advocates of balanced copyright haven’t passed any major legislative victories since then, they have blocked most of the bad ideas that have come down the pike. We killed Fritz Hollings godawful SSSCA, the broadcast flag, “analog hole” legislation, and so forth. Given the lopsided advantages of the copyright maximalist in terms of funding and lobbying muscle, holding our own isn’t bad.
I think another reason I might be less inclined to get depressed than Patry is that I’m not a copyright lawyer. One of the most important trends of the last couple of decades is a steady divergence between the letter of copyright law and peoples’ actual practice. At the same time copyright law has gotten more draconian, it has also grown less powerful. More and more people are simply ignoring copyright law and doing as they please. A few of them get caught and face draconian penalties, but the vast majority ignore the law without any real consequences.
I imagine this is depressing for a copyright lawyer to see an ever-growing chasm between the letter of the law and peoples’ actual behavior. The copyright lobby’s extremism is steadily making copyright law less relevant and pushing more and more people to simply ignore it. That’s depressing for someone who loves copyright law, but I’m not sure it’s so terrible for the rest of us. I would, of course, prefer to have a reasonable set of copyright laws that most people would respect and obey. But I’m not sure it’s such a terrible thing when people react to unreasonable laws by ignoring them. Eventually, Congress will notice that there’s little correspondence between what people are doing and what the law says they ought to be doing, and they’ll change the laws accordingly. I’d prefer that happen sooner rather than later, but I have little doubt that it will happen, and I’m not going to lose sleep over it in the interim.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
