Stimulus Stupidity

by on February 10, 2009 · 9 comments

Sorry, this has nothing to do with tech policy, but I just had to comment on Eugene Robinson’s latest column in the Washington Post singing the praises of an unbounded stimulus plan. For those of you not familiar with Robinson’s work, you’re really missing a treat. Eugene Robinson and his colleague Harold Meyerson compete on a weekly basis in the Post for the title of “World’s Most Rhetorically Outrageous (and Economically Illiterate) Newspaper Columnist.”  It’s a heated race. These guys really know no shame. [Note my earlier essay about Meyerson’s effort to equate media reinvention efforts with terrorism!]

Anyway, in his latest column, Robinson firmly establishes himself as the new leader in this ongoing race with the following gem:

The House of Representatives loaded up the bill like a Christmas tree as powerful Democrats found room for their pet projects. This was a good thing, not an outrage. Hundreds of millions of dollars for contraceptives? To the extent that those condoms or birth-control pills are made in the United States and sold in U.S. drugstores, that spending would be stimulative in more ways than one.

Oh, wow. Just wow. Taxpayer funding for birth control as a stimulus to drugstores and domestic pill makers. By that same reasoning, “stimulating” the sale of sex toys would benefit adult bookstores and the domestic dildo industry.

Hey, why not. The more spending the better, right? Who cares if we’re bankrupting our children.

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Shame on Mozilla

by on February 10, 2009 · 11 comments

Over at Ars, Ryan Paul has an appropriately sharp-tongued response to the Mozilla Foundation’s troubling move to become a cheerleader for the European Commission’s ongoing antitrust efforts against Microsoft. Apparently Mozilla will assist the EC’s investigation “by offering expertise about the browser market.”

Paul focuses on what’s wrong with this in both a micro and macro sense. He rightly points out that the potential remedies here do not bode well for the future of this sector, since regulatory tinkering with high-tech product standards is bound to end badly and create a terrible precedent for future interventions. “It’s hard to find a rational argument in favor of mandatory standards enforcement,”  Paul says. “It would be punitive and unhelpful to the advancement of the web.” Moreover, Paul notes that things have never looked better on the browser front:

Claims that Microsoft’s monopoly status has eliminated competition in the browser market sound hollow in the face of the profoundly vibrant browser market that exists today. The record-setting launch of Firefox 3 added up to over 8 million downloads in the first 24 hours alone. Firefox’s global market share continues to climb every month and the browser has grabbed almost 30 percent of the European market.

And let’s not forget about those two little companies called Google and Apple who have competing products in the field! They’re making serious inroads in the browser wars. Moreover, Microsoft is struggling to hold on to whatever “dominance” they have left in their core market: OS. As Paul concludes:

To the observant tech enthusiast, all signs seem to indicate that Microsoft’s monopoly is on its way out. The Redmond giant is in no danger of annihilation, but it’s definitely not positioned to dictate terms to the rest of the industry anymore.

But what is perhaps most shocking about Mozilla’s call for intervention is the way that Mozilla Foundation chairperson Mitchell Baker minimizes the importance of not just Firefox, but the entire open source movement, when justifying EC intervention in this marketplace.

Continue reading →

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A Sopranos Mashup

by on February 9, 2009 · 8 comments

that’s very NSFW. But is it fair use?

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TPW 41: Book Corner Featuring John Palfrey, author of Born Digital

by on February 9, 2009 · 21 comments

John Palfrey, co-author of Born DigitalOn this episode of “Tech Policy Weekly,” we’re launching a new format called “Tech Book Corner” that will feature occasional conversations with the authors of important new books about technology policy and the other issues that we debate frequently at the Tech Liberation Front blog.

On this debut episode of Book Corner, we are joined by John Palfrey, a professor of law at Harvard University and the co-director of the Berkman Center for Internet & Society at Harvard. Along with his Berkman Center colleague Urs Gasser, Prof. Palfrey has recently co-authored Born Digital: Understanding the First Generation of Digital Natives, which was published last summer by Basic Books and which you can find out more information about at www.borndigitalbook.com. [Incidentally, I reviewed Born Digital here last October and I also named it one of the most important technology policy books of 2008.]

Born Digital cover

In our discussion, Prof. Palfrey explains who exactly counts as a “digital native” and tells us why he decided to write a book about them. He discusses why he believes that there has been some overreaction by older generations to fears about this Digital Generation and he argues that we need “to separate what we need to worry about from what’s not so scary” and “what we ought to resist from what we ought to embrace.” He then outlines how we should think about these issues and concerns going forward, and he stresses the importance of “balancing caution with encouragement” as we do so. Finally, he then applies that framework to three specific issues: privacy, child safety, and copyright.

It’s an interesting conversation and you can begin listening to it immediately by downloading the MP3 file here or by just clicking the play button below!

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Patents and Property Rights

by on February 9, 2009 · 8 comments

I should probably say a bit more about the substance of Ben’s property rights post, which wasn’t primarily a critique of people with tacky property rights websites. Ben focuses on the conceptually sound idea that property rights are really bundles of rights to dispose of particular things in particular ways. He emphasizes the diversity of these rights:

Text and designs are obviously different from household objects, but we all knew that. In fact, automobiles are also different from household objects. So is land, and the houses built on that land, which differ from each other. Your kidney is also significantly different. Oh, and commodities such as corn, which differ from corn futures. Correspondingly, the rights associated with all of these things are different.

He lists a variety of different rights we can have in some but not all of these things: transfer, sale, use, modification, exclusion, etc. What I think doesn’t get enough emphasis, however, is the “things” part. That is, an automobile, a kidney, and a bushel of corn are all discrete, well-defined things with respect to which which one can have rights. Everyone understands what it means to say that I have the exclusive right to use, transfer, or sell my car. By their nature, cars have only one person driving them at any given time, and so there’s an obvious need for some way of deciding who gets to drive which cars.

Now, compare that to someone who “owns” a “method for managing the consumption risk costs of a commodity.” Ben’s right that we’ve got a bundle of sticks here just as we do with the car. Had Bilski’s patent been upheld, he could have kept the patent for himself or licensed, given, or sold it to others. The problem is that it’s totally unclear what the “thing” is to which the sticks in this bundle relate. Reasonable people can parse the language of the patent and come to radically different conclusions about the scope of the patent right, all of them plausible. A patent is not the ownership of a pre-existing thing that needs an owner. Rather, the things over which the patent system gives people ownership are the creations of patent law. And in many cases, it makes little sense to talk about them as “things” at all.

Unfortunately, the patent bar has developed terminology that papers over these difficulties. We talk of owning a “technology” or an “invention” in the same way we talk about owning a car or a bushel of corn. But in reality, a “technology” is not a discrete thing in anything like the same sense that a car or a bushel of corn is. If I build a website that allows my customers to purchase things with one click, I may technically be infringing Amanzon.com’s patent, but it strikes me as an abuse of language to say that I’m “stealing Amazon’s technology.” What many patents claim is not a specific “technology” or “invention” so much as a broad category of machines or processes that may be only loosely related to one another.

When we describe “inventions” or “technologies” as things that can be owned as property, that carries the implication that inadvertently writing software that’s similar to another company’s software is in the same moral category as stealing a car. I think that’s self-evidently absurd, and that adopting such morally loaded terminology impedes clear thinking. It’s important to remember that the “technologies” and “inventions” patents protect are more often loose categories of related machines or processes rather than sharply-defined entities. The language of property rights obscures, rather than illuminates, this point, and I think we’d all be better off if people stopped employing it.

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Nordstrom is Using a U.S. PTO Error to Throw a Small Competitor Under the Bus – and What You Can Do About It

by on February 9, 2009 · 10 comments

I’ve gotten an unusually strong reaction to a TechKnowledge piece that went out today describing how the Nordstrom retail chain is capitalizing on a Patent and Trademark Office error to throw a small business under the bus.

Beckons is an organic yoga and lifestyle clothing business that Nordstrom is trying to force off of a trademark – or out of business. It’s owned by two businesswomen in Colorado who have done everything right to get a trademark, but now may have tens of thousands of dollars in legal bills to defend it. The short article is called U.S. Patent and Trademark Office: FAIL.

I wrote about it because I think it’s an outrage. People have written to me since I published it asking what they can do.

Well, there are a couple of things. The original error is with the PTO, so you can send a copy of the story or a link to your Member of Congress. The U.S. Patent and Trademark Office is within the jurisdiciation of the House and Senate Judiciary Committees.

But it’s Nordstrom that has really taken advantage of things. And you don’t have to beg for a politician’s help to bring companies to heel. Here’s a four-step plan for helping Beckons beat Goliath. Do one or all of the items listed below.

  1. Send this page to all your friends. That’s probably the most important thing, because the more people doing the other things on this list, the better.
  2. Write a letter to Nordstrom, telling them that you disapprove of their abuse of the trademark process, and that you won’t be shopping there until they mend their ways. Here’s the address for the president of the company. Blake W. Nordstrom, President Nordstrom, Inc. 1700 Seventh Avenue, Suite 300 Seattle, WA 98101
  3. Print this page, copy it, and hand it out at Nordstrom. Or slip copies into the purses they sell – especially any with the “Beckon” label!
  4. If you do yoga, or know anybody who does, shop at Beckons! (Be sure to send this along to friends who do yoga.)

So those are just a few ideas for getting Nordstrom to correct its abuse of the trademark process against this small business. Please feel free to put additional ideas or report on your successes in the comments. (Got a sample letter to Nordstrom, for example?)

A well-functioning marketplace requires assertive consumers – so assert yourself!

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Property Rights, Patents, and American Flag Clip Art

by on February 9, 2009 · 14 comments

Ben Klemens, whose work I’ve praised in this space in the past, has a new essay up that I found a little bit aggravating. It’s on the perennial question of whether it makes sense to describe patents and copyrights as property. I’ve been a critic of the term “intellectual property” for a few years. Ben’s on the other side.

What I disliked most about Ben’s piece was the condescending tone he takes toward property rights activists (like me). Klemens has little patience for property rights activists whose websites have “lots of clip art of flags and eagles,” and who are under the delusion that the holders of property rights have some kind of moral claim against government interference with those rights. Klemens also critiques neoclassical scholars who “will try to trip you up into thinking that society is built around natural, objective property rights rather than social construction.” Klemens concludes by arguing that “Sure, IP law is artificial, but physical property law is equally artificial; we’re just so used to it that we’ve forgotten.”

Now look, on some level this is indisputably correct. God doesn’t strike trespassers down with lightning; property rights are defined and enforced by fallible human beings. The problem is that Klemens argument proves too much. The same reasoning can undermine any moral or legal rights. On some level a woman’s right not to be raped is a “social construction,” but I don’t think that in any way diminishes the strong moral claim that each and every woman has not to be raped, regardless of what the rest of us regard as “socially optimal.”

Continue reading →

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“Redress” = Due Process

by on February 9, 2009 · 15 comments

In discussions about data-intensive government programs like watchlists, people often talk about the importance of “redress” – giving the public some way to correct information or dispute adverse decisions arising from these programs.

“Redress” is a misnomer that diminishes the importance of the subject at hand. Constitutional Due Process is what’s at stake. So says the Ninth Circuit in the case of Humphries v. County of Los Angeles.

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Google’s Latitude and Privacy Concerns

by on February 7, 2009 · 31 comments

Google LatitudeGoogle’s latest major launch is “Latitude,” a geo-location service that lets users find friends on a digital map and then network with them. These services are often referred to as “LBS,” which stands for “location-based services.” I wrote about LBS here before in my essay on “The Next Great Technopanic: Wireless Geo-Location / Social Mapping.” As I pointed out in that piece, LBS raise privacy concerns with some people because, by their nature, these technologies involve the tracking of users.

But I’ve argued that those concerns are generally over-blown, especially because you have to download and opt-in to these services. In other words, you know what you’re getting into. Moreover, companies who offer these services, like Loopt and now Google, go out of their way to offer privacy safeguards. Indeed, even some privacy activists agree.

For example, Michael Zimmer of the School of Information Studies at the University of Wisconsin-Milwaukee, is someone who pays close attention to privacy issues and is often critical of Google and other companies for supposedly not paying enough attention to privacy concerns. In the case of Latitude, however, he argues that “Google Actually Got it (Mostly) Right.”  Here’s his snapshot of “what Google’s done to help give users control of their information flows in Latitude”: Continue reading →

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Eric Goldman’s “2008 Cyberlaw Year-in-Review”

by on February 7, 2009 · 2 comments

Eric Goldman is the man.  His “Technology & Marketing Law Blog” is must-reading for cyberlaw geeks; packed with indispensable updates and insights about breaking development in the world of Internet law.

Anyway, he’s just published his “2008 Cyberlaw Year-in-Review,” which provides a comprehensive overview of the major developments and cases from the past year. This is the sort of compendium that I used to have to spend big bucks to get from DC law firms.  And Eric just gives it away as a public resource.  God bless him.

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