DISQUS

Luis:

I basically agree with you about ettiquette, but what's the best way for collage video artists to give credit? They may use hundreds or thousands of snippets in a short work.

Not that I have much sympathy for Ms. Thomas, whose defense was so bad I suspect an RIAA plant. I'm more interested in changing the law to support the likes of the Slingbox developers.

Hey, I like Rawls.

Come on. Nothing Tim said in his post is remotely worthy of the offense you take. And I've seen nothing in any of his writing, anywhere, that warrants associating him with some anonymous slandering jerk.

The DMCA anti-circumvention provision is seen by many technologists (including me) as a particularly onerous piece of regulation that doesn't achieve what it ostensibly aims to do AND reduces both market opportunities and peer-production opportunities (the "freedom to tinker" that your colleague Noel Le loves to ridicule, but which many of us care passionately about).

Now that your senior partners Ross and DeLong have shed their think-tank costumes and moved on to being obvious lobbyists for content-industry interests, you're the most high-profile DMCA backer left in the libertarian think-tank world. You've gotta expect some heat to be headed your way. Don't change the subject by trying to broaden or narrow it. It's about that confounded anti-circumvention provision. It IS a regulation, dang it. It is a bad regulation that diminishes freedom.

>> By and large, it ought to be possible to get copyright filtering for entire works to work at least as well as spam filtering

In spam filtering you have an adversarial relationship between the sender on one side and the recipient+carrier on the other side.

With copyright filtering the sender and receiver are both on the same side, with the carrier being a (probably somewhat unenthusiastic) adversary trying to thwart the transmission. The real adversary is a rightsholder who really doesn't have a direct role in the transmission use case.

In the above post, the last sentence of the third paragraph should read:

In my opinion, there will never be a broadly successful wholly open-source consumer computing platform, mobile or otherwise, as long as the DMCA anti-circumvention provision is in place.

Well, I thank Solveig for pointing out an excellent speech by Gigi Sohn, which I would otherwise not have been aware of.

I especially like the reminder at the outset that the Supreme Court regards fair use as an essential safety valve that keeps copyright law in compliance with the First Amendment. This point needs to be hammered home again and again when content industry apologists dismiss fair use as a relic whose scope can be diminished as "transaction costs" are supposedly reduced.

The jury is still out on whether the "enforcement mechanism" provided by the DMCA really works to reduce unauthorized copying. Actually, in the case of music, the jury verdict is in, and it's a resounding NO. In the meantime, the curbs on technological innovation are real, and harsh. In my opinion, there will never be a wholly open-source consumer computing platform, mobile or otherwise, as long as the DMCA anti-circumvention provision is in place.

As for whether there should be penalties for overstating the rights of fair use, I think there already is one. It's called being found guilty of infringement. For better or worse (worse, mostly), those corporations who try to overstate the *limits* on fair use don't face any comparable penalty - a little negative publicity maybe, a few dollars wasted on lawyers, but nothing worse than that.

Despite finding little to agree with in Solveig's critique, I do commend her for arguing in a more reasonable manner than her PFF predecessors DeLong and Ross.

>> And at a systemic level, consumers and content producers and equipment makers and so on *all* have an interest in figuring out how to enforce copyright in a digital environment.

I don't think that's quite true. We all have an interest in content creators getting paid, so they continue to create. I'm afraid, however, that COPYright, understood as control over the right to make copies, is becoming an increasingly untenable mechanism for ensuring that creators get paid, given the inexorable technological advances embodied by the Internet and digital storage.

Insistence on COPYright enforcement (which means DRM and file-sharing lawsuits, more or less) isn't likely to remind everyone of our common interests. More likely, it will line up the content industry against both consumers and technologists. And in the long run (even the not-so-long run) that's a fight the content industry is going to lose.

>> In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.

Indeed it's not, and I expect that if an iPhone hacker can afford the court fight against Apple/AT&T; lawyers, the DMCA will be held not to forbid their activities. As law professor (and DMCA supporter) Jane Ginsburg stated in a very recent interview, the DMCA was intended for DVDs and video games, not to lock down cell service.

Of course, the logical next step for Apple/AT&T; or others who want to use the DMCA to buttress their bundling arrangements would be to tie the locking down of cell service to the protection of some sort of copyrighted content served through the iPhone. Just use the same encryption key that protects "premium videos" served up over AT&Ts; network for locking down the cell service, and the courts and Ms. Ginsburg will have to agree the DMCA applies.

If the death of exclusivity is basically inevitable (and I am inclined to agree with this) then does it make much difference whether we praise or mourn it? We just need to work with it.

>> Presumably, people don’t usually purchase an entire CD just to get one song.

You're showing your youth, Tim. Until pretty recently, it was pretty common for people to buy a CD for one song. Among people over 30 at the Wal-Mart, it may still happen quite a bit. But it does seem to be a dying practice. That's got to be hurting the record industry quite a bit. But it's orthogonal to the piracy issue, unless the IPI wants to claim that the bundling practices and resulting fat profits of the CD age are the recorded music industry's prerogative across any and all distribution channels and eras.

>> And how would Net Neutrality legislation have changed all that? Oh, that's right, not at all, because Nat Neutrality has nothing to do with how a company edits its own webcasts.

I'm not so sure it's as apples-and-oranges as Julian implies. AT&T; doesn't own the Webcast content - their primary role is as a relay point for someone else's signal (in this case Mr. Vedder's).

That said, I'm pretty sympathetic to Jim's disdain for regulatory solutions. Better to loosen the "IP" rules surrounding such events and encourage more independent webcasters to compete for audience.

On the other hand, as funny as Jim's umbrella/sun analogy is, I don't really think the utter predictability of Mr. Vedder's opinion is all that relevant to any debate about censorship. There's no minimum-entropy requirement for free speech, is there?

>> You're right that the spectrum market is awfully illiquid. This is a product of command and control regulation, under which - you're right - it takes decades to move spectrum to higher and better uses.

I'll buy that in general, but with spectrum SOME regulation is almost certainly necessary until we get some (perhaps impossible) technical breakthrough allowing anyone to transmit at will on any spectrum without interfering with oher transmissions. So the very nature of the "good" drives us out of a free-market Garden of Eden right at the outset.

>> I'm with Tim Lee, believing that open networks are better than closed, but I'd be very reluctant to adopt open as a mandatory requirement of anyone using the spectrum. If open doesn't work, as you've pointed out with regards to ownership, it could take decades to release the spectrum from the failed rules and find something better.

Perhaps true, although if open REALLY doesn't work then the new provider will either go bankrupt or desperately try to unload the spectrum, and I suspect it would take a few years at most for the regulators (FCC, Congress or possibly the courts) to adopt new rules. The problem with the incumbent scenario is the closed model could work well enough as far as preserving acceptable profit margins, but would be sub-optimal for the public as choice and competition are reduced.

>> Competition is a tricky thing to promote. Just disfavoring incumbents doesn't necessarily promote competition, and I don't think having the government choose a business model is a very good alternative.

Disfavoring incumbents is likely to promote competition only if there is an entrant (or better yet, multiple entrants) with business models likely to work. The open network model has been proven to work on the Internet. Also, the government can't choose business models; they can only adopt regulations favoring certain models over others. There will be time before the auction, and if other players (including the incumbents) want to bid against Google within the regulatory framework promoting open networks, more power to them.

>> No, the better thing would be for Google to put its money where its mouth is - and it's got the money. Buy the spectrum unfettered and create an open network on it. Nothing's stopping them from doing that.

Fiduciary responsibility to shareholders? Also, much as I like Google, regulated openness would provide a guarantee during the fledgling years of the wireless Internet that the network provider would not up and change the rules.

>> Google's returns will be lower if it pays full price, but the reason we have businesses is not to return money to shareholders but to deliver goods and services to the public. This is why I think it's unseemly for consumer groups to work with a company that is seeking to extract higher returns on investment through government regulation. That kind of thing is part of what causes the rich to get richer while the poor - well, they don't get poorer - they just rich more slowly.

But there's nothing unseemly about non-profit groups working with companies to reduce taxes and remove regulations, because that's an inherent good? I think the word "misguided" might be better than "unseemly." We're talking about policy disagreement here - why bring hints of corruption into the argument?

>> The point is getting the spectrum used well. Having the FCC and an Internet behemoth get together and choose a business model is not the process that will figure out the best use of the spectrum.

Other folks certainly will have input. But Google has come up with an innovative and probably workable plan that appears to serve the primary statutory goal of fostering more competition. I realize I'm arguing against libertarian first principles here by not favoring the argument that absolutely minimizes regulation, but in this case I sincerely think the first principles are hihly likely to lead to a subobimal outcome.

Sorry, I've gotta disagree here. I guess this is one of those (not too common) cases where I think the default libertarian position (or what appears to be the default libertarian position based on posts I see here) is just plain wrong. Spectrum of the quality available at this auction is not likely to be available again for a long time - likely decades. This gives incumbents a very strong incentive to keep the spectrum out of the hands of new entrants. And the FCC has a statutory mandate to increase competition in the telecom marketplace, which means that they SHOULD embrace rules that are stacked against the incumbents.

On a nit-picky note, I don't see anything whatsoever unseemly about public interest organizations siding with Google here. To me, this means these organizations recognize that the public interest can sometimes be best served by powerful private-sector players.

Spectrum is a limited resource, and the upcoming 700 mhz auction is likely to be the most significant block of spectrum to become available for decades. I agree with Google that open-access rules ought to be applied to that spectrum. Systems built using open architectures (think Internet or PC) may be more anarchic than closed systems (think Apple and cell phone networks) but they are also more dynamic, more decentralized, more disposed to disruptive innovation. These are intrinsically good things, and should be fostered by the FCC (as a majority of commissioners apparently agree). Incumbents who insist on closed architectures can compete using the spectrum they've already got.

Thanks, Tom.

Boy, I hear a lot of bad things about Rogers. I wonder if they are a monopoly provider for the majority of their users or not?

I'll have to start keeping a closer eye on this stuff. If it gets bad enough, I may have to re-evaluate my general opposition to legislated net neutrality rules.

>> Unfortunately, most ISPs that are implementing traffic shaping are closing the encryption loophole by simply throttling all encrypted traffic at their most restrictive rate.

Fascinating. Do you have a link to evidence on this?

Well, I see James DeLong has kept himself busy. At least now he doesn't have to pretend he represents anything other than the naked desires of Big Content.

It's pretty clear that Big Content wants to push their program of reclaiming control over content beyond what the legal system will support, partly by cutting side deals with cooperative network providers (c.f. AT&T;). In general, I tend to side with free-market solutions over government regulations, but here we have an incumbent cartel looking to cut deals with incumbent monopolists. This should be looked at with a very skeptical eye by those who believe the Internet's end-to-end architecture inherently promotes freedom and choice. And yes, I'm afraid network neutrality regulations may be needed.

MikeT:

Sure, we can all decide for ourselves what we *think* is constitutional. But are the nation's courts and government agents bound by our opinions? No. Are they bound by the Supreme Court's? Yes.

I think "angry dude" is the same guy who comments frequently on the patentlyo blog under the name "small inventor" among other pseudonyms. He's quite amusing - believes passionately that the Supreme Court's unanimous decision in Ebay vs. MercExchange was unconstitutional despite the fact that it's the Supreme Court who decide what's constitutional and what isn't.

I'm a little more ambivalent about software patents than Tim is. If asked to vote on them now, I would oppose them, but that's partly because I think the overall patent system is so FUBARed. The Supreme Court's surprisingly enlightened recent 9-0 decisions in Ebay vs. MercExchange and KSR vs. Teleflex offer real potential to correct the worst problems with the overall patent system. However, there are still a LOT of lower-court judges and bureaucrats who, damaged by the misguided metaphor of "intellectual property", still have a bias toward patent applicants, patent holders and patent plaintiffs.

Segregation didn't just up and disappear after Brown vs. Board of Education, and the patent system isn't going to just up and fix itself after the Supreme Court's two excellent decisions.

Hollaar has bona fide credentials as a technologist. But the stuff I've read by him on the subject of IP is pretty unimpressive. Certainly his recent paper for IPI that attacked Tim's paper and the EFF's work on the DMCA was (a) "anecdotal" at best; unsubstantiated is more like it; and (b) an admission that most of Hollaar's fellow technologists do not align with his pro-content-industry views. So I rather suspect Hollaar, in his views on IP, is an outlier among technologists; somewhat like our sometime commenter Richard Bennett.

I have no idea whether, given the oportunity, a majority of computer scientists and engineers would vote to eliminate software patents. But it would be nice if we had more of a say in the matter. The lawyers (and VCs, and others) have sure made a mess of the system.

Noel:

How many of those professors are professors of computer science or engineering?

Noel:

The world is bigger than your obsession with Tim. You will be a more effective advocate for content ownders or whatever it is you're advocating for if you get over this obsession and focus on how you can protect your constituency's interests. Content owners could care less whether Noel thinks Tim has an inflated reputation (no disrespect intended, Tim!). They care about knowing what works to protect their interests. Picker's proposal won't work, no matter what direction Tim's career takes.

In the case of uploading to file sharing networks, it only takes one copy to make the item available for downloading around the world. So in this case, yes, there are no numbers besides zero and one. This is what I mean by "binomial". Whether or not you call this a "revolution" is up to you, but it has happened. To claim otherwise is willful blindness.

Noel, you can run around spouting 2=2=7 all you want. It's a free country. I just hope no content holders seriously think you're going to be able to save their bacon taking that approach.