I just had a very respectful, reasoned, and, most importantly, informative conversation with Derek Khanna and CTIA on Twitter. It helps clarify a lot about the debate over cellphone unlocking, and I thought I’d share it with you after the jump.
The fact is that carriers today offer a [wide range of unlocked devices](http://blog.ctia.org/2013/03/04/unlocked-devices-2/) for sale, so you never have to worry about unlocking or breaking the law. In fact, almost all of the phones Verizon sells are always unlocked. And as far as I can tell, almost all carriers will unlock your phone, once you end your contract, if you just ask. This is all truly great for consumers.
So I don’t understand why carriers should be opposed to an unlocking DMCA exemption. (To be clear, I’m not aware of individual carriers taking positions on the matter, but their trade association did [file](http://www.copyright.gov/1201/2012/comments/Bruce_G._Joseph.pdf) in the most recent proceeding against the exemption.) It would be better if their customers didn’t have to ask for permission before unlocking a phone that happens to be locked—especially since carriers are willing to give that permission. And if unlocking is no big deal as long as you live up to your contractual obligations, I don’t understand why there should be limits on who can do the unlocking. Here is the exchange: Continue reading →
Conservatives and libertarians believe strongly in property rights and contracts. We also believe that businesses should compete on a level playing field without government tipping the scales for anyone. So, it should be clear that the principled position for conservatives and libertarians is to oppose the DMCA anti-circumvention provisions that arguably prohibit cell phone unlocking.
Indeed it’s no surprise that it is conservatives and libertarians—former RSC staffer Derek Khanna and Rep. Jason Chaffetz (R–Utah)—who are leading the charge to reform the laws.
In it’s response to the petition on cell phone unlocking, the White House got it right when it said: “[I]f you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.”
Let’s parse that.
Continue reading →
Joe Karaganis, vice president at The American Assembly at Columbia University, discusses the relationship between digital convergence and cultural production in the realm of online piracy.
Karaganis’s work at American Assembly arose from a frustration with the one-sided way in which industry research was framing the discourse around global copyright policy. He shares the results of Copy Culture in the US & Germany, a recent survey he helped conduct that distinguishes between attitudes towards piracy in the two countries. It found that nearly half of adults in the U.S. and Germany participate in a broad, informal “copy culture,” characterized by the copying, sharing, and downloading of music, movies, TV shows, and other digital media. And while citizens support laws against piracy, they don’t support outsized penalties.
Karaganis also discuses the new “six-strike” Copyright Alert System in the U.S., of which he is skeptical. He also talks about the politics of copyright reform and notes that there is a window of opportunity for the Republican Party to take up the issue before demography gives the advantage to the much younger Democratic Party.
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In a recent article in National Review, Joe Karaganis of American Assembly notes that copyright law is increasingly out of step with social norms. His polling suggests that it’s only a matter of time before a majority supports a broad copyright reform agenda.
As I’ve noted before, copyright has for too long been a bipartisan issue, but it will soon become a partisan one. The question is, which party will take up the winning copyright reform issue?
Karaganis:
How would an Internet politics emerge in the Democratic party? The answer is probably simple: It is impossible in the short term because of the power of Hollywood and inevitable in the long term because of the power of time. Most of the young are already Democrats.
How would an Internet politics emerge in the Republican party? Given the decades of rhetorical entrenchment around property rights and law enforcement, it would probably require the recasting of intellectual-property rights as government monopoly, of SOPA-style bills as crony capitalism, and of Internet enforcement as part of a digital-surveillance state.
Such views in favor of recasting IP rights already have a home on the right, and are supported by congressmen such as Darrell Issa and Jason Chaffetz. Tactical considerations alone could produce Republican-led majorities on these issues, galvanized by the prospect of wounding the Democrats’ Hollywood money base or splitting Silicon Valley libertarians.
Seems to me like the case is strong for a Republican-led movement, but time is of the essence. Will the G.O.P. squander this opportunity?
Want to hear the latest thinking on copyright reform? Come to the 2013 Public Knowledge Policy Forum tomorrow, February 26, at 1 pm, at the US Capitol Visitor Center, where I will discuss and debate the issue with these fellow copyright wonks:
- Erik Martin, General Manager, Reddit
- Pamela Samuelson, professor of law at Berkeley Law, University of California; Faculty Director, Berkeley Center for Law & Technology
- Michael McGeary, Co-Founder, Engine Advocacy
Gigi B. Sohn, President & CEO, Public Knowledge, will moderate.
To catch the full roster, which includes some great panels, come at 10. Registration–and lunch!–is free. Details here.
Can’t make it? Here’s my presentation: PK_(C)_Reform.
After several delays, it looks like the “six-strikes” Copyright Alert System is launching today. Over at Reason.com I write that instead of dismissing it out of hand, those of us skeptical of the current copyright regime should give it a chance:
>While the Copyright Alert System is far from perfect, it succeeds in treating illegal file-sharing as an infraction more akin to speeding, and less like grand larceny the way courts and prosecutors do. And the private system has its own set of checks and balances absent from public enforcement: ISPs have a strong incentive to ensure that their customers are not harassed by false positives or overzealous enforcement. (Indeed, the agreement limits the number of notices copyright holders may send in a month.) This is why the temptation to codify such a “six-strike” system in law the way France and other countries have should be resisted.
>In the long run, the new system is likely to be ineffective at stopping piracy. Determined pirates will be able to detect and evade monitoring, spoof their IP addresses, or simply switch to other methods of file-sharing not covered by the agreement, like streaming or using locker sites or Usenet. In the short run, however, copyright alerts will attempt to nudge public norms that have increasingly moved toward widespread acceptance of file-sharing. Evidence suggests, though, that it’s probably too late for that too.
>Rather than dismiss the new system out of hand, those of us seeking a saner copyright regime should welcome this experiment while keeping a close eye on it. If nothing else, it’s preferable to have content owners make constructive use of their private rights rather than rely on the power of the state.
In the current issue of the Weekly Standard, Sonny Bunch has a very nice review of our book, Copyright Unbalanced: From Incentive to Excess:
Into the fray jumps this collection of essays, arguing that copyright is hopelessly broken. The libertarian right has grown increasingly skeptical of the institution, arguing that media corporations have perverted the Constitution’s Copyright Clause into a tool used not to “promote the Progress of Science and useful Arts” but to swell their coffers. Many libertarians see the endless extension of copyright terms, the retroactive granting of such extensions, and the increasing number of instruments that can be copyrighted as crony capitalism.
There is certainly a case to be made for copyright reform. Whereas the Copyright Act originally provided that copyrightable items—limited to books, maps, and charts—could be protected for one 14-year term, and extended for another 14-year term (if the author wished), we now have, in essence, unending, unlimited copyright: the life of the author, plus 70 years. Gone is the requirement that copyright holders actively pursue their copyright or its extensions. The effect is rather to grant copyright protection to everything created, in perpetuity. The public domain is no more.
Bunch does have one critique, however:
Were copyright protections simply a question of economic utility—a quest to discover which economic regime inspires content creators to make the most stuff—Copyright Unbalanced would be on more solid footing. But there is a moral dimension that must be accounted for. Libertarian opponents of copyright are not necessarily wrong to dodge the question; it has been a tricky one in American legal discourse. But the moral dimension of copyright has been a part of the general conversation since the days of the Founders—and before.
Guilty as charged. We did indeed dodge the moral question in the book, but that’s because we felt that there is so much patently bad policy in the current system—before even getting to the moral questions—that conservatives and libertarians should be able to agree needs reform. I believe one can take a pretty strict Randian or Lockean approach to copyright and still find lots of cronyist malfeasance in copyright.
That said, we won’t be dodging the moral question for long. Mercatus will later this year publish another book, Intellectual Privilege by Tom W. Bell, which in part refutes some of Adam Mossoff’s claims about the significance of Locke’s and Adam’s writings. While I don’t agree with everything Tom says in his forthcoming book, I think it will be an important contribution to conservative and libertarian thinking on what should be the proper bounds of a copyright system.
New York University law professor James Grimmelmann eulogizes Aaron Swartz, the open information and internet activist who recently committed suicide in the face of a computer trespass prosecution.
Grimmelmann describes Swartz’s journey from “wunderkind prodigy who came out of nowhere when he was 14” to “classic activist-organizer,” paying special attention to the ideas that motivated his work. According to Grimmelmann, Swartz was primarily interested in power being held by the wrong people and how to overcome it through community organizing. Swartz was dedicated to his personal theory of change and believed that people who know how to use computers have a duty to undermine the closed-access system from within.
It was this ardent belief that led Swartz to surreptitiously download academic articles from JSTOR. Grimmelmann closely analyzes the case, providing a balanced view of both the prosecution’s and Swartz’s view of the issue. Grimmelmann additionally suggests possible policy reforms brought to light by Schwartz’s case.
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Gabriella Coleman, the Wolfe Chair in Scientific and Technological Literacy in the Art History and Communication Studies Department at McGill University, discusses her new book, “Coding Freedom: The Ethics and Aesthetics of Hacking,” which has been released under a Creative Commons license.
Coleman, whose background is in anthropology, shares the results of her cultural survey of free and open source software (F/OSS) developers, the majority of whom, she found, shared similar backgrounds and world views. Among these similarities were an early introduction to technology and a passion for civil liberties, specifically free speech.
Coleman explains the ethics behind hackers’ devotion to F/OSS, the social codes that guide its production, and the political struggles through which hackers question the scope and direction of copyright and patent law. She also discusses the tension between the overtly political free software movement and the “politically agnostic” open source movement, as well as what the future of the hacker movement may look like.
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Last week, Jim Harper was kind enough to host a book forum at the Cato Institute for Copyright Unbalanced: From Incentive to Excess. Video of the event is now available online.
I presented the case for why conservatives and libertarians should be skeptical of our current copyright system, and Tom Bell, a contributor to the book, made the case for reform. Mitch Glazier of the RIAA, a former Republican senior staffer on the House Judiciary Committee, served as respondent and engaged us in some lively debate.
I hope you will check out the video and that it might compel you to pick up a copy of the book, which also includes excellent essays from Reihan Salam, Patrick Ruffini, David Post, Tim Lee, Christina Mulligan, and Eli Dourado.
Also, this Thursday at 3 p.m. on the Hill, TechFreedom will host a panel discussion on free market thinking on copyright featuring yours truly, Geoff Manne, Larry Downes, Ryan Radia, and Adam Mossoff.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.