DISQUS

A little contribution from someone who won't be able to make it: What if "free" is just part of the life cycle of highly commoditized products?

Think of how many great free products started out commercial: Open Office, Firefox, PostgreSQL, Blender, free Unix implementations like OpenSolaris or Berkeley or NEXTSTEP, Lotus (Symphony, etc., though "great" probably doesn't apply here), and on and on. "Free" is a fantastic "going out of business" model too! I say that approvingly -- there is no reason why lots of software can't have a shorter commercial life span, and live on largely free of business constraints, while helping maintain price pressure on newer products and forcing continued innovation from incumbents.

Free is a natural end-state for a lot of digital technology. What will happen when advertising also becomes free? (A co-op of advertisers that extract no rent from themselves and guarantees the best prices on everything? An open standard for price comparison that makes online shopping as commoditized as web hosting?) Maybe you should be asking how can we use the currently plausible business models before they actually, really become free, and stop being businesses.

I think the quote is partly wrong. In the medieval period it was possible for a king to disguise himself as a commoner and move around unnoticed in his own city -- nothing about a person's identity followed them beyond a tiny circle of intimates. And if you doubt they frequently had actual privacy you should read El Libro de buen amor!

You could equally say that the 19th century origins of contemporary "privacy" were a reaction to the loss of the hard kind that existed prior to last names, state bureaucracies, passports, birth certificates, etc. There are two idealizations happening here -- one of a mythic pre-privacy past, and then the "invention" of privacy -- a concept that appears as early as traditional Jewish law (Bava Batra, Chapter 2, Mishnah 4, to the effect that you can't put windows where you would be looking into other people's homes.)

Think back to when you were in college how ridiculous it was when people would talk about the "invention" of capitalism in 1880 via some Marxian logical contortion -- as if people hadn't been buying and selling since Mammoths roamed free. It is very rare for animals to invent new behavior, humans included. People resent nosiness and intrusions into their business, there is a very heavy burden on anyone trying to prove that there was once a time when they didn't.

In other shocking instances of hypocrisy, the Right to Life Foundation lobbied against the provision of public funds for abortions, and the National Organization for the Reform of Marijuana Laws requested an end to funds for enforcing marijuana prohibition.

A "free market" in, say, taxi medallions would have to start with the abolition of taxi medallions -- the underlying "property" being the creation of some forlorn government agency. The argument that a healthy market, whether for taxis or innovation, begins in a bureaucrat's office may be right, but it is not libertarian. As long as the vendors assert patent rights over software (which is a direct attack on the freedom to do math) it is fair to oppose your government buying their products on your behalf, with your money.

"The only people we hate more than the Romans are the Judean People's Front....

And the People's Front of Judea, splitters!

What? We're the People's Front of Judea!

Oh, I thought we were the Popular Front."

http://www.youtube.com/watch?v=gb_qHP7VaZE

That is all reasonable, but keep in mind the breadth of the definition of "service provider." For example, Disqus would be the perfect platform to generate feeds that link to torrents -- a shady celeb blog that has a "Vids" section in which subscribable feeds were generated by users and voted on according to quality. Should Disqus's backbone provider be forced to cut it off if they repeatedly fail to identify their users? And how does a 4-person team deal with being "reasonable" in respect to millions of comments per employee? That word "reasonable" seems to always involve attorneys, not in short supply at TLF but to the extent that operating any web service, or having an open wifi point, requires professional advice, that in itself could really change a lot of what makes the web what it is.

An IP address contains no personally identifying material -- the identifying happens mostly because of the billing relationship between the typical ISP and its customer. If there is no authentication -- ie you use a free open connection at a cafe or library without providing verifiable ID, then there is nothing that attaches you to any communication, except for the easily spoofable hardware address of your wireless network adapter. A certain frequent defect of the DMCA is that when it was written, certain things were expensive and it was unthinkingly assumed that a billing relationship would provide the general background authentication. (They were thinking more about broadcast.com customers like MLB than tina1988 on YouTube, because free unlimited bandwidth to distribute your material was not part of the equation.) Likewise it probably never crossed anyone's mind that within ten years you would be able to drive from Pier 1 to Stanford and never be more than a few blocks from a free internet connection. All of those schools and cafes, or any website for that matter, are "providers" under the law.

What would happen if something like your and/or Tom Snydor's proposal went through? In order not to be exposed to the preposterous penalties under the law, and because of the complexity of the problem, every cafe and library would sign on with one or another proxy+authentication service, which because of network effects would converge on one or two winners per market. Big telcos would probably offer it as an add-on -- you would use an ID and a credit card to establish identity once and probably not pay anything. The authenticators would be falling over themselves to enable easy sign-on via student IDs. A big lawsuit against a college would then end with a settlement requiring all its students to use a de-anonymizer that filters for file-sharing. Then a harassment lawsuit will be successful against a blog, and exemptions would be added for blogs who attempt to prevent anonymous abuse, and then a restaurant review defamation suit will do the same for Yelp, and before long anonymity will be gone forever. Because the only purpose of the de-anonymizers will be to interface with law enforcement, and because they will be cheap and have no margins, most of their "customer service" will be directed at the police and courts, or perhaps the 1st Brigade Combat Team of the 3rd Infantry Division. Then there will be a "hot pursuit" case of some child rapist or Islamist monster, and the urgent necessity of cutting down the 24-hr court-deanonymizer-cop circuit will be used to make all records immediately available.

This is what Tim means by "illiberal", and it is the major civil liberty question of at least this quarter century, and frankly more important than preventing kids sharing copies of "Oops I did it again." Extreme copyright enforcement really does butt up against privacy, it is a hard problem.

Yes, quite the disincentive -- damages 150,000 times the value of the infringed work for something you didn't do but may have passively enabled. Exposure to 1.5 million dollar judgments if someone downloads an album is not technically he same as banning, only because a ban would never come with such obscene and unconstitutional penalties for its transgression.

Call it a "Ban Plus", if you like, and be prepared to show your papers when you go to a cafe or library. If that sounds like a joke (not an uncommon problem when dealing with IP maximalist "ideas") read this.

What is the "infantile fallacy"? (And are the two domain experts I cited who make their living distributing copyrighted works also in the same state of ignorance? Where are your sources for the claim that anonymous internet use can be tied to specific users, or that an unknown and unknowable individual can be prosecuted for violating laws?) At the risk of infringing copyright anonymously via an unauthenticated free wifi provider (thanks Feeva Free WiFI in Union Square, SF), you wrote two days ago:

"A federal judge has reportedly held that Boston University (BU) is such an incompetent internet-access provider that it cannot disclose the identities of allegedly infringing users of its network."

Anonymous network access really is not compatible with strict enforcement of copyright, as you correctly note. Your solution is to ban anonymity, which is another way of saying that there must be a record of exactly when and where each and every person goes online that can be made available to the law to connect infractions with individuals. This is not some weird hypothetical -- try using an internet cafe in Italy without a passport. What is especially galling about your position is that it won't even work for its supposedly limited purpose -- you can fit a lot of music and video on an 8 gig flash pen drive passed around a dorm. The battle to get college kids to pay for recorded music was lost a long time ago, and yet we are still heroically sacrificing core 1st Amendment principles and turning the law itself into a ludicrous King Canute. $1.5 million/per album fines are both a punch line and the current law. Meanwhile (h/t Orwell), it is considered extreminst to advocate shorter copyright terms, non-draconian fines for copyright violations, and tolerance for a somewhat leaky copyright system that discourages infringement but respects traditional privacy of personal communications. That is not "anarchy", it is just a slightly different set of priorities, one that happens to be shared by almost everyone who is familiar with the details of what it would require to extend the analog copyright system into the digital world.

Tom,

Lawyers are trained to view complex questions and come up with balanced approaches to them -- ie "balancing" privacy with police prerogatives and subpoenas. The technical world is rather the opposite; no matter how complex, an encryption algorithm, for example, either is or is not secure, and as soon as it isn't it really isn't. In a legal class it makes for good discussion to say, on the one hand, IP addresses should be private, except when they are used to commit a crime. In direct technical terms what this amounts to is a full surveillance state that is then ruled by court procedure: the law requires someone keep records of all mail or other communications, and then provide them to the authorities when told to. While under law there could be a protection of privacy, in technical terms there is absolutely no privacy, except that which the state decides to concede, the information it declines to look at but which is permanently stored on its orders and available for its inspection. It may seem to you that some people are just unwilling to split the difference and be reasonable, but it really is the case that where lawyers see gray others see black and white, with good technical reasons. There is no way to enforce copyright, for example, and allow anonymous speech online, as you seem to be picking up on. That is not because we are unwilling to be fair, it is a characteristic of information. There is a good discussion of that problem here. You can read Jaron Lanier's fascinating take on the same basic scientific fact here.

Adam,

In the case of the paedophile you would conduct an investigation: find when it happened, look at local cc or ATM footage of people going in to panera with a laptop bag, interview staff, leave a number to call if the guy shows up again, conduct a serious investigation. Ie, do what you do when a serious crime is committed. Those kinds of measures do not make sense for file sharing. This is because people recognize child abuse as criminal, but not sharing music. There is a strange emergence of what might be called "libertarian royalism" on the (ever smaller) pro-IP side, whereby all decrees from DC have a deep moral significance even when they are drafted in flamboyantly corrupt circumstances and ignored by everyone. Our law should (and does, where it works) emerge from social norms, rather than try to impose new ones. If the age of consent was raised to 30, that would not retroactively make you a paedophile throughout college.

I also get undesired geolocation effects occasionally. You can set your homepage to google.com/webhp, which seems to make your settings follow you from country to country.

Well given that Arrington is a distinguished and experienced lawyer from Stanford (at Berkeley we used to say that the worst thing about rival Stanford was that we didn't get in) he probably is as aware of the legal niceties as anyone who has ever read this blog. The idea that one can be "correct" or "incorrect" "as a legal matter" is so ridiculous that you have to spend years in law school to be brainwashed into it, as if the advocates for Heller would have been more or less correct depending on how Kennedy woke up the morning he broke the tie. In this case, an elderly and ignorant judge issued a ruling in which he claimed, to take one howler, that a youtube id is anonymous and pseudonymous. Mine isn't. Not to say Arrington isn't pompous and annoying, but the pomposity of judges (hint: never invite a judge to speak anywhere, they will drone interminably and be surprised no one laughs, they are used to pathetically sycophantic lawyers), is an order of magnitude greater than the most obnoxious tech blogger. It would have been much better, to take one off the cuff solution, for the judge to require hashed ip addresses and user id's -- but then what are the odds that that would occur to someone totally innocent of computers? It isn't, but should be, permissible for judges to issue rulings to the effect of: I really know nothing about this subject, we will need input from someone else, and to stop pretending that knowledge of the law is an adequate substitute for knowledge of the actual thing I am supposed to be ruling on.

I like the phrase "The rapture of the nerds." The bumper sticker could be something like "In case of singularity, the driver of this car will be in his laptop."

Jethro:

Interesting interval between comments. "Hint:... Broadcast.com." Couldn't have put it better myself! Broadcast is exactly the antiquated frame of mind of the DMCA model (high cost of distribution, lots of resources covering few events, which in the case of Cuban's entry in the musical chairs game were big ticket sports and political events.) Do this thought experiment: what if individual LimeWire users were issued takedown notices and nothing further if they complied? Might as well not have copyright! So two systems are in place, one for users and one for service providers -- and it was assumed that these two worlds would remain separate. That broadcast.com would go on with the sporting events, and aol.com would occasionally have to take down a piece of fan fiction. What turned out to happen is that YouTube bridged the two spheres and uses its DMCA exemptions to effectively launder the copyrights of the content. Cuban was making this point in the comments I noted.

Matt:

Of course everybody knew that video could move on line -- but the ludicrous money, and all expectations, were on the idea that it would be something like... broadcast.com. It was not foreseen or contemplated by the law that the costs would drop to sub-zero levels, certainly not by people like Mark Cuban or the people who wrote the DMCA. The operative words were "give away sufficient bandwidth."

I think the emphasis on networked p2p is misplaced, a tremendous amount of file sharing involves someone plugging in a usb cable. It will be wonderfully ironic when the next-gen storage medium, the Blu-ray disc, instead of being used to store one 50g HDTV-ready file, is used to store 75 iPhone-ready ones. The collections boggle the mind -- all Oscar winners since 1931 on one disk, all rat pack, brat pack, and Soderbergh-pack movies in the sleeve of your text book. At that point people arguing for progress and freedom will insist on the need for blu-ray sniffing dogs in high schools, natch.

It was inconceivable when the DMCA was passed that anyone would give away sufficient bandwidth to broadcast video. If Ms Rose recalls user-generated content coming up original discussions of the DMCA they are probably more interesting as specimens for the study of hindsight bias than copyright law. There was, as Mark Cuban has pointed out in arguments about the insufficiency of the DMCA, no idea that things like YouTube would come to exist, because at the time any online media distribution required fairly sophisticated commercial backing.

ef,

9/10ths of the stupidity and aggravation in the world can be laid at the feet of non-profits -- churches, English Departments, madrassas, PETA, The Progress and Freedom Foundation. I don't think your analysis holds, and it is not clear that Google's contribution to the "larger social good" is less than Scientology's.

You seem to be in a kind of denial of the fact that George Bush is president, that the big question in Washington at the moment is how much stolen money to pour down the gullet of agribusiness, and that the government you are demanding should enforce fairness and diversity is the most prolific jailer since chroot. (Forgive me.) It isn't that I don't think, for example, that a free market in agricultural products would be free from "failure", or that there are no megalomaniacal CEO's, I just doubt that they would be worse than what we have.

@Seth,

Congratulations for demolishing the ridiculous ogre of the Rand-reading commenter. Clearly belongs in the "major" section of any online collection of personal insights.

ef,

The ACLU is also a corporation.

An interesting example of money ruining everything: Google's prime materials are the naive, uncompensated links of the entire web, and they spend a lot of resources filtering out the paid spam. Anil Dash has an interesting post about how links became worth money here.

Also, Richard, Tim didn't say that "webmasters" wrote Apache, he correctly said that it was "commercial web developers". Webmasters wrote things like phpMyAdmin, Drupal, Wordpress, phpBB, and you can tell by the number of 'php's in that list that these were not hardcore computer scientists.

When I saw this I went to apple.com to see how much it would be possible to spend on a high end computer these days -- a Mac Pro with 2 x 3.2 Ghz 8 core processor (16 cores total), 32 gigs of ram, a $3000 Nvidia card, and fully maxed out other options from the customization page gives this quote:

"Subtotal Please note that your subtotal does not include sales tax or rebates. $26,673.00"

I enjoy clicking on the Google ads in patent related posts, among the success stories listed by one advertiser is the Bubble Boat and the Cigar 2 Go. I am not sure if the phrase 'reductio ad absurdum' triggered these particular results, or if they happen whenever patents are discussed.

Of course, the point of the patent system is that ideas are cheap, and when things get too cheap, you have to prop them up with government price supports, as good libertarians will tell you.

This is correct, but it is an illustration of why "IP" is a bad umbrella term, and the reason has to do with the level of abstraction at which a right is granted. For example, for IP skeptics, copyright discussions are almost purely utilitarian, and focus on transaction costs, social history, and legal practicalities. Copyright is granted at what we could call level-0 abstraction, where only specific words and images are covered, along with derivatives that depend precisely on the existence of some previous expressed form. Google any 7 word string in this comment and you probably not find any matches, since all written expression is mathematically unique. Patents are different, they range from the somewhat controversial, as in chemical compounds that are discreet and specific, to the most abstract ideas or notions that are protected by business and software patents. In the latter cases a "right" can't exist without certain categories of thought being declared property in some government office -- the kind of rights scheme that would obtain if story concepts were copyrightable. In those cases there is an obvious libertarian argument for the government staying out of it on philosophical grounds, while the opposing side tends to focus on the utilitarian necessity of incentivizing certain kinds of investment.

Also, Solveig, you may find this phrase useful the next time you are looking for a pithy post ending.

Richard,

Or what if software vendors start making antitrust claims against the megacorporations giving away open source products at below cost? (Or anti-dumping!) BTW, is your networking company distributing Brainslayer's GPL'd code? I know that has happened in the past, and I can just imagine the conversations with lawyers and marketers.

I have always thought that the antitrust thing is likelier to work than the tax thing, because the solution to the tax collection problem is so diffuse whereas the antitrust claims could be made directly against IBM and Intel.

The ideology such as it is is hatred and fear of Microsoft, and a recognition that proprietary standards in industries with network effects can lead to really lopsided outcomes and a lot of pain for the losers, which includes every SV giant that has been around for more than 10 years. Steve Jobs is a kind of Napoleon of the area, a human embodiment of a certain mindset that has an entente with the rest of the valley on the idea of owning anything too fundamental but leverages all its other market advantages to the maximum.

I also have a quibble with the idea that the GPL is particularly threatening to companies who would rather not disclose (maybe v3 is, I think that Apple bought CUPS to stop a license change and distributes curl but not wget with its GNU utils); the other edge of the sword is that GPL offers companies much more control if they own the copyright. SUN was trying to push Postgres (and couldn't get much leverage) before it bought MySQL and also GPL'd a lot of Java because the license is not actually symmetrical the way a BSD or MIT is (ie, a copyright holder can distribute private closed modifications but a user can't.) I think when companies actually need to collaborate they tend to use Apache-like agreements (Hadoop, Apache, Android), and they use GPL for competitive advantage, not that there is anything wrong with that.

RB, there have been times when a cut would have caused me to bleed green and yellow, yes, especially growing up in the Canseco McGuire Henderson Eckersley era. The Beane era, and dollar Wednesdays, are like the proverbial proof that there is a God who loves us and wants us to be happy.