Gary Becker on patent terms and scope

by on July 29, 2013 · 0 comments

Nobel laureate Gary Becker and I are on the same page. He says patent terms should be short:

Major reforms to reduce these unproductive opportunities would include lowering typical patent length and the scope of innovations that are eligible for patents. The current patent length of 20 years (longer for drug companies) from the date of filing for a patent can be cut in half without greatly discouraging innovation. One obvious advantage of cutting patent length in half is that the economic cost from the temporary monopoly power given to patent holders would be made much more temporary. In addition, a shorter patent length gives patent holders less of an effective head start in developing follow on patents that can greatly extend the effective length of an original patent.

More importantly, he says we should carve out particularly troublesome areas, like software, from the patent system:

In narrowing the type of innovations that are patentable, one can start by eliminating the patenting of software. Disputes over software patents are among the most common, expensive, and counterproductive. Their exclusion from the patent system would discourage some software innovations, but the saving from litigation costs over disputed patent rights would more than compensate the economy for that cost. Moreover, some software innovations would be encouraged because the inability to patent software will eliminate uncertainty over whether someone else with a similar patent will sue and do battle in the courts.

[…]

In addition to eliminating patents on software, no patents should be allowed on DNA, such as identification of genes that appear to cause particular diseases. Instead, they should be treated as other scientific discoveries, and be in the public domain. The Supreme Court recently considered a dispute over whether the genes that cause BRCA1 and BRCA2 deviations and greatly raises the risk of breast cancer is patentable. Their ruling banned patenting of human DNA, and this is an important step in the right direction.

Other categories of innovations should also be excluded from the patent system. Essentially, patents should be considered a last resort, not a first resort, to be used only when market-based methods of encouraging innovations are likely to be insufficient, and when litigation costs will be manageable. With such a “minimalist” patent system, patent intermediaries would have a legitimate and possibly important role to play in helping innovators get and protect their patent rights.

It’s good to see a consensus for major reform developing among economists. I hope that legal scholars and policymakers will start to listen.

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video: Mediaite’s “Privacy, Security and The Digital Age” Event

by on July 24, 2013 · 1 comment

It was my pleasure last night to take part in an hour-long conversation on “Privacy, Security, and the Digital Age,” which was co-sponsored by Mediaite and the Koch Institute. The discussion focused on a wide range of issues related to government surveillance powers, Big Data, and the future of privacy. It opened with dueling remarks from former U.S. Ambassador to the U.N. John Bolton and Ben Wizner of the ACLU. You can view their respective remarks here.

I then sat on a panel that included Atlantic Media CTO Tom Cochrane and Michael R. Nelson, who is affiliated with with Bloomberg Government and Georgetown University. The entire session was expertly moderated by Andrew Kirell of Mediaite. He did an amazing job facilitating the discussion. Anyway, the videos for my panel are below, split into two parts.  My comments focused heavily on the importance of separating the government uses of data from private sector uses and explaining the need to create a high and tight firewall between State and Industry when it comes to information sharing. I also argued that we will never get a handle on government-related privacy concerns until we get control of the scope of government power. I used the example of the drug war and our government’s constantly-expanding militaristic activities both abroad and here at home. So long as government is expanding without any rational, constitutional constraint, we are going to have serious surveillance and privacy problems. (See this essay, “It’s About Power, not Privacy,” by my colleague Eli Dourado for more on that theme.)

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Jane Bambauer on whether data is speech

by on July 23, 2013 · 4 comments

Jane Yakowitz Bambauer, associate professor of law at the University of Arizona, discusses her forthcoming paper in the Stanford Law Review titled Is Data Speech? How do we define “data” and can it be protected in the same way as free speech? She examines current privacy laws and regulations as they pertain to data creation and collection, including whether collecting data should be protected under the First Amendment.

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Why Progress Cannot Be Planned, or Even Forecast

by on July 23, 2013 · 0 comments

crystal ballFew modern intellectuals gave more serious thought to forecasting the future than Herman Kahn. He wrote several books and essays imagining what the future might look like. But he was also a profoundly humble man who understood the limits of forecasting the future. On that point, I am reminded of my favorite Herman Kahn quote:

History is likely to write scenarios that most observers would find implausible not only prospectively but sometimes, even in retrospect. Many sequences of events seem plausible now only because they have actually occurred; a man who knew no history might not believe any. Future events may not be drawn from the restricted list of those we have learned are possible; we should expect to go on being surprised.[1]

I have always loved that phrase, “a man who knew no history might not believe any.” Indeed, sometimes the truth (how history actually unfolds) really is stranger than fiction (or the hypothetical forecasts that came before it.)

This insight has profound ramifications for public policy and efforts to “plan progress,” something that typically ends badly. Continue reading →

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video: Education Beats Silver-Bullet Solutions for Privacy & Online Safety

by on July 21, 2013 · 0 comments

Last month, it was my great pleasure to serve as a “provocateur” at the IAPP’s (Int’l Assoc. of Privacy Professionals) annual “Navigate” conference. The event brought together a diverse audience and set of speakers from across the globe to discuss how to deal with the various privacy concerns associated with current and emerging technologies.

My remarks focused on a theme I have developed here for years: There are no simple, silver-bullet solutions to complex problems such as online safety, security, and privacy. Instead, only a “layered” approach incorporating many different solutions–education, media literacy, digital citizenship, evolving society norms, self-regulation, and targeted enforcement of existing legal standards–can really help us solve these problems. Even then, new challenges will present themselves as technology continues to evolve and evade traditional controls, solutions, or norms. It’s a never-ending game, and that’s why education must be our first-order solution. It better prepares us for an uncertain future. (I explained this approach in far more detail in this law review article.)

Anyway, if you’re interested in an 11-minute video of me saying all that, here ya go. Also, down below I have listed several of the recent essays, papers, and law review articles I have done on this issue.


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PPI: Net neutrality problems “simply do not exist”

by on July 19, 2013 · 3 comments

The Progressive Policy Institute has released a new and remarkable broadband report. In it, PPI explicitly distances itself from the Crawford/Wu wing of the left-of-center telecommunications conversation. A money quote from the introduction:

What should the progressive agenda be? Are our choices either to embrace this aggressive regulatory agenda or to accede to conservative laissez-faire? This essay argues that there is a third, and far more promising, option for such a progressive broadband policy agenda. It balances respect for the private investment that has built the nation’s broadband infrastructure with the need to realize the Internet’s full promise as a form of social infrastructure and a tool for individual empowerment. It turns away from problems we may reasonably fear but that simply do not exist—most importantly, the idea that the provision of broadband services is dominated by an anti-competitive “duopoly” that stifles the broad dissemination of content.

On “cage match” competition in the telecom sector:

So perhaps the greatest paradox inherent in “cage match” competition is that, while advocates champion more intrusive regulation, the signal providers are in the fight of their business lives. The benefits of their innovation and investment are being appropriated by the devices and services that use the signal; their stock values and capitalizations are listless compared to the companies that make devices and applications; they have made commitments in the tens of billions to build infrastructure that cannot be reversed. And they are trapped in a vicious circle: they innovate to improve signal quality and availability, these innovations make possible new devices, applications, and services that capture consumer allegiance, these other aspects of the broadband experience appropriate value and make signal more commodity-like in the eyes of consumers, which forces the providers to further improve their product, perpetuating the cycle. They are the economy’s front line for investing in and innovating for our broadband infrastructure, and perhaps they benefit from that investment and innovation the least.

From the section entitled “Neutrality,” “Unbundling,” and other progressive policy failures:

The weight of the evidence, therefore, suggests the activist agenda leads progressives to a dead end. It addresses a problem that doesn’t exist—the absence of competition in broadband—and compromises another and more important objective—investment in broadband leading to ubiquitous broadband access. In reality, access providers have made massive investments in high-fixed cost broadband wired and wireless capacity that they can only justify by competing for market share and that are continually improving. The case that they are suppressing or might suppress content—either editorially or competitively—is virtually nonexistent.

This analysis is spot on. While I don’t agree with every policy proposal in the report (though I do agree with some, such as liberating spectrum from the broadcasters and DoD), PPI deserves a lot of credit for its excellent study of the state of telecommunications competition.

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Aaron’s Law: What’s Next for CFAA Reform?

by on July 18, 2013 · 0 comments

The suicide of Aaron Swartz earlier this year has sparked a national debate about reforming the Computer Fraud and Abuse Act (CFAA). Most notably, in June, Reps. Zoe Lofgren and Jim Sensenbrenner joined Sen. Ron Wyden to introduce Aaron’s Law, which aims to rein in the excesses of the federal computer fraud law and ensure it targets real criminals, rather than researchers or tinkerers.

Would this bipartisan reform go far enough — or too far? Would Aaron’s Law preserve the government’s ability to prosecute harmful hacking? What can activists do to promote CFAA reform in Congress?

These are some of the questions that will be explored in a panel discussion hosted by TechFreedom and the Electronic Frontier Foundation at CNET’s San Francisco Headquarters on July 22. RSVP here. Continue reading →

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Why the Lawsuit Challenging NSA Surveillance is Crucial to Internet Freedom

by on July 16, 2013 · 3 comments

In June, The Guardian ran a groundbreaking story that divulged a top secret court order forcing Verizon to hand over to the National Security Agency (NSA) all of its subscribers’ telephony metadata—including the phone numbers of both parties to any call involving a person in the United States and the time and duration of each call—on a daily basis. Although media outlets have published several articles in recent years disclosing various aspects the NSA’s domestic surveillance, the leaked court order obtained by The Guardian revealed hard evidence that NSA snooping goes far beyond suspected terrorists and foreign intelligence agents—instead, the agency routinely and indiscriminately targets private information about all Americans who use a major U.S. phone company.

It was only a matter of time before the NSA’s surveillance program—which is purportedly authorized by Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861)—faced a challenge in federal court. The Electronic Privacy Information Center fired the first salvo on July 8, when the group filed a petition urging the U.S. Supreme Court to issue a writ of mandamus nullifying the court orders authorizing the NSA to coerce customer data from phone companies. But as Tim Lee of The Washington Post pointed out in a recent essay, the nation’s highest Court has never before reviewed a decision of the Foreign Intelligence Surveillance Act (FISA) court, which is responsible for issuing the top secret court order authorizing the NSA’s surveillance program.130606-NSA-headquarters-tight-730a-590x400

Today, another crucial lawsuit challenging the NSA’s domestic surveillance program was brought by a diverse coalition of nineteen public interest groups, religious organizations, and other associations. The coalition, represented by the Electronic Frontier Foundation, includes TechFreedom, Human Rights Watch, Greenpeace, the Bill of Rights Defense Committee, among many other groups. The lawsuit, brought in the U.S. district court in northern California, argues that the NSA’s program—aptly described as the “Assocational Tracking Program” in the complaint—violates the First, Fourth, and Fifth Amendments to the Constitution, along with the Foreign Intelligence Surveillance Act.

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The GAC officially objects to .amazon

by on July 16, 2013 · 613 comments

ICANN is meeting in Durban, South Africa this week, and this morning, its Governmental Advisory Committee, which goes by the delightfully onomatopoetic acronym GAC, announced its official objection to the .amazon top-level domain name, which was set to go to Amazon, the online purveyor of books and everything else. Domain Incite reports:

The objection came at the behest of Brazil and other Latin American countries that claim rights to Amazon as a geographic term, and follows failed attempts by Amazon to reach agreement.

Brazil was able to achieve consensus in the GAC because the United States, which refused to agree to the objection three months ago in Beijing, had decided to keep mum this time around.

The objection will be forwarded to the ICANN board in the GAC’s Durban communique later in the week, after which the board will have a presumption that the .amazon application should be rejected.

The board could overrule the GAC, but it seems unlikely.

This is a loss for anything resembling rule of law on the Internet. There are rules for applying for new generic TLDs, and the rules specifically say which geographic terms are protected. Basically, anything on this list, known as ISO 3166-1 is verboten. But “Amazon” is not on that list, nor is “Patagonia;” .patagonia was recently withdrawn. Amazon and Patagonia followed the rules and won their respective gTLDs fair and square.

The US’s decision to appease other countries by remaining silent is a mistake. The idea of diplomacy is to get countries to like you so that you can get what you want on policy, not to give up what is right on policy so that other countries will like you. I agree with Milton Mueller, whose bottom line is:

What is at stake here is far more important than the interests of Amazon, Inc. and Patagonia, Inc. What’s really at stake is whether the Internet is free of pointless constraints and petty political objections; whether governments can abuse the ICANN process to create rights and powers for themselves without any international legislative process subject to democratic and judicial checks and balances; whether the alternative governance model that ICANN was supposed to represent is real; whether domain name policy is made through an open, bottom-up consensus or top-down by states; whether the use of words or names on the Internet is subject to arbitrary objections from politicians globalizing their local prejudices.

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Book Review: Ronald Deibert’s “Black Code: Inside the Battle for Cyberspace”

by on July 16, 2013 · 2 comments

Black Code coverRonald J. Deibert is the director of The Citizen Lab at the University of Toronto’s Munk School of Global Affairs and the author of an important new book, Black Code: Inside the Battle for Cyberspace, an in-depth look at the growing insecurity of the Internet. Specifically, Deibert’s book is a meticulous examination of the “malicious threats that are growing from the inside out” and which “threaten to destroy the fragile ecosystem we have come to take for granted.” (p. 14) It is also a remarkably timely book in light of the recent revelations about NSA surveillance and how it is being facilitated with the assistance of various tech and telecom giants.

The clear and colloquial tone that Deibert employs in the text helps make arcane Internet security issues interesting and accessible. Indeed, some chapters of the book almost feel like they were pulled from the pages of techno-thriller, complete with villainous characters, unexpected plot twists, and shocking conclusions. “Cyber crime has become one of the world’s largest growth businesses,” Deibert notes (p. 144) and his chapters focus on many prominent recent examples, including cyber-crime syndicates like Koobface, government cyber-spying schemes like GhostNet, state-sanctioned sabotage like Stuxnet, and the vexing issue of zero-day exploit sales.

Deibert is uniquely qualified to narrate this tale not just because he is a gifted story-teller but also because he has had a front row seat in the unfolding play that we might refer to as “How Cyberspace Grew Less Secure.” Continue reading →

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