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Re: The RIAA – Satellite Radio Royalty Spat: What is the “Fair” Price of Music?

Adam Thierer — Fri, 07 Oct 2005 09:45:36 -0000

Thanks Derek. I am certainly aware of both your points and agree with the thrust of your arguments.

On the first point, I chose not to deal with the time- and space-shifting issue in this particular blog since it is really a very different issue from the pricing issue. In this piece, I just wanted to discuss the downsides of government-enforced price controls for music. Toward that end, I would support the abolition of all language in the current copyright code governing compulsory licensing of ANYTHING. I say let them all haggle at the bargaining table instead of crawling to Washington for solutions.

Second, on that time- and space-shifting issue, I think this fight will get uglier too and eventually be litigated. It is my hope that the courts provide a generous fair use exception to such activities such that most time- and space-shifting uses are allowed with the notable exception of activities that qualify as mass commercial infringement. (For example, I think there is a major difference between someone who stores some of their favorite songs on a satellite radio device versus a persons who then takes all thousands of stored songs and ships them around to the entire planet without any regard for the copyright owners. I know many others think consumers should have the "right" to do that, but I think that's a clear violation of copyright law and that person should be held liable. On the other hand, when Average Joe Consumer is just time- and space-shifting content on his own devices, I think that should qualify for a absolute protection from liability. I know the RIAA doesn't agree with me on that one, but I think that's a very sensible position consistent with previous fair use exceptions.)

We'll see how this issue plays out and I'll likely be blogging more on it in the near future.

Thanks again for your response! - - AT

Re: Competition Works: An Analysis of Competing Cable-Telco “Triple-Play” Packages

Adam Thierer — Thu, 01 Jun 2006 09:53:07 -0000

Lewis... Thanks for your question. Dicounted bundles continue to be used by many operators to encourage customers to sign up for the entire triple play. Increasingly, however, it appears that carriers are experimenting with alternative approaches and allowing consumers to just get one or two components of the package at a flat, standard rate.

Check out what Time Warner Cable is doing in the New York / New Jersey area in terms of mix-and-match bundles:

http://www.timewarnercable....

While they contiune to offer discounted triple play packages, they also offer a nice matrix of "double play" options to suit your needs. I think more broadband operators will go this route because they know that many customers will not need digital phone service since many people are going wireless and cutting the cord entirely. Alternatively, a lot of people just want digital cable and phone, but not broadband. Or the opposite.

Who knows what the future holds. It's important that we keep in mind that, in a sense, this industry ("triple play broadband" that is) is still quite young and that new business models are developing. And now carriers are looking to offer "quadruple play" bundles that integrate cell phone service for a slight discount. With rising competition and the threat of wireless broadband lurking, I think operators will be forced to offer more mix-and-match plans at a fairly standardized rate.

Re: Reflections on “Beyond Censorship” Summit

Adam Thierer — Thu, 08 Jun 2006 16:41:34 -0000

Thanks John. No, that's not the event I'm co-hosting, although I am aware of it. The one I'm hosting with ICRA is a much smaller affair with about 40 or so key organizations and corporations represented. We're just getting together for a half-day next Wednesday to discuss these matters and get a progress report regarding what various media players are doing to address child protection issues.

Re: Remarks at Conference on Social Networking & Child Protection

Adam Thierer — Fri, 23 Jun 2006 13:48:29 -0000

Sean... The reaction to my challenge from the two state AGs was somewhat predictable: They agreed with me that the problem begins with getting tougher on real bad guys, but then, without missing a beat, they both immediately shifted blame back to the websites and said that social networking sites could "do more" to address the problem.

But "doing more" inevitably involved age-verifying teens, which despite being impossible, they said social networking sites should at least try to do more of. And then they made all sorts of misguided analogies about how we make people show ID before buying beer or tobacco so that youngsters can't get it. I countered that (a) what made that possible was a state-issued driver's license that most teens under the age of 16 don't have; and (b) the analogy was inappropriate because there is a world of difference between allowing kids to buy beer versus allowing them on a social networking website where the vast majority of their activities are socially beneficial and not harmful to them or others. They didn't care. They just kept on advocating age-verification for ALL teens even though they had no idea how to do so and the entire panel before us had said again and again that age verification for teens was impossible. I finally got so frustrated that I said something to the effect that "we should stop treating kids like criminals and start paying more attention to finding the real criminals and put them in jail." That just got them even more angry with me.

Re: PlayStation 3, Console Wars & the Costs of Complexity

Adam Thierer — Thu, 07 Sep 2006 19:23:17 -0000

Tim... You may be correct about the Merrill Lynch figures. Take a look at the many comments to that Engadget column I cited above [ http://www.engadget.com/200... ].

You will see that several of those commenting on the report find errors with not only the underlying cost figures, but the actual calculations made in the report! So, it certainly could be the case that the ML report is over-estimating the costs Sony faces.

Then again, all that processing power, hard drive capacity and high-def capabilities must add up at some point. I'm no expert on the cost of computing processing and storage, but I would think that the ML figures are probably not that far off the mark. Of course, the figures will fall over time.

Incidentally, however, there are rumors floating around out there in the video game world that some of the most popular PS3 games could break the $60 mark, perhaps even go over $70 bucks per title. But I really wonder if fans are that dedicated to certain titles that they would spend that much. Again, if that's how Sony hopes to recoup its upfront fixed costs, this represents a huge gamble for the company. (It's the old razor & razor blades issue again, right?. How much will people be willing to spend on blades for a razor that is sold below cost? Same thing is going on here except I'm no longer certain this strategy will work for video games.)

Re: Internet Data Storage Is The Wrong Way To Combat Child Sexual Exploitation

Adam Thierer — Thu, 21 Sep 2006 10:26:59 -0000

You've got it exactly right, Hance. But the heat is really on right now from law enforcement, state AGs and Congress. In response to this pressure, some ISPs and broadband providers are already looking at "voluntarily" modifying their data retention policies to collect more customer information. Comcast, for example, announced in June that it would extend the length of time they will retain data to 180 days. I expect others will follow if government continues to turn of the heat. In other words, if enough companies are pressured to cave, government could get what it wants without ever passing legislation.

Incidentally, for those interested in hearing more about this issue, the Congressional Internet Caucus will be hosting a debate on October 5 up on Capitol Hill entitled "Warehousing Consumers' Online Travels to Catch Child Predators and Terrorists." The event link is not up yet, but more info can be found here:
http://www.netcaucus.org/bo... (and they usually post the video of the event a day or two after it takes place).

Re: A La Carte: Voluntary vs. Mandatory

Adam Thierer — Tue, 14 Aug 2007 09:21:43 -0000

Tom... My primary concern about a la carte regulation is not that anyone would have to pay a little more for any one channel, but whether (a) that channel would continue to be exist AT ALL under this regulatory regime, and (b) whether the OVERALL cost of programming would go up in the long run.

ESPN, of course, has a bright future regardless of what the regulatory regime looks like because people love sports and pay anything for it. But the same may not be true for niche-oriented programming that serves diverse communities.

Again, the only way many of those channels remain economically viable and get carried on cable and satellite systems today is because they are bundled alongside many other options. If our government forces the abrogation of those contracts and business arrangements in the name of "cleaning up cable" or "lowering bills," the results could be disasterous in terms of the diversity we see on pay TV today.

The reason that the proverbial "500-channel universe" is now a reality is because--whether by accident or intention design--we have stumbled onto a marketplace model of content delivery that promotes and maximizes programming diversity. We should consider that fact carefully before allowing our government to come in and take a regulatory sledgehammer to such a successful business model.

Moreover, speaking strictly from a the persepctive of a limited government-oriented libertarian, BY WHAT RIGHT DOES THE GOVERNMENT MANDATE ANY OF THIS? For God's sake, we're talking about television here! We don't have any inalienable right to cable or satellite TV on terms dictated by federal bureaucrats. And that's especially the case when those bureaucrats are seeking to regulate to "clean up" (i.e., CENSOR) pay TV.

Re: Wi-Fi Piggybacking / Squatting Reconsidered

Adam Thierer — Wed, 05 Sep 2007 10:33:09 -0000

Mike... You correctly note that "There are very, very few cases where people are setting up neighborhood collectives and ditching their own providers." That's true, and I'm not sure there ever will be formal collective approaches for some of the reasons you mention. However, we won’t know for a few years until next-gen wireless networking technologies are more widely distributed in homes. Mass wi-fi sharing is simply not feasible with today’s 802 B & G standard equipment and their limit signal range.

Regardless, the point of my essay was that (a) if the technology is up to speed (or range) and (b) enough people decide to share instead of buy, then I do think there is a harm worth considering. Now, it could be the case that this is just a new type of “marketing challenges for the providers” that they will respond to using new business models and pricing plans, which is why I spent time talking about metered billing above. I really do think that's the sensible solution. (To be clear, what I think would be most efficient is what economists call a "Ramsey two-part tariff" that would involve a flat fee for service up to a certain level and then a per-unit / metered fee over a certain level:
http://en.wikipedia.org/wik...

Regardless, I still feel there may be cases of unauthorized use that, on occasion, require a legal remedy. Let me ask you how you feel about a classic example of harmful network sharing that already has been litigated.

In the field of cable television, many consumers use splitters to redirect cable lines all around their house. No problem there, of course, because it's personal use and you paid for the line into the home. But there have been cases involving homeowners splitting their cable and then sharing it with many homes in the vicinity or with an entire apartment complex, for example. The rise of digital signals and digital set-top boxes has alleviated this problem to some extent. In the old analog days, however, it was more difficult to combat such signal theft and that sometimes meant that the cable provider had to take legal action against the person splitting and sharing the signal with others since it was a clear violation of contract / terms of service.

Would it be your position that there was no harm in that case or, if there was, that the industry just needed to "find a better business model"? Stated differently, is there EVER a time when you feel that a service provider should be able to enforce the terms of service / contract against someone? Because it strikes me that this closely parallels the situation that may develop in the world of wireless networking in coming years. The vast majority of cases will not need to be litigated, but some might.

Re: Computing “in the Cloud”? Not.

Adam Thierer — Mon, 10 Mar 2008 09:46:45 -0000

Jim... In one sense, I agree that "Better security... will come from owning and physically controlling your storage and computing." There's little doubt that files stored locally are, generally speaking, going to be more secure than files stored remotely.

That being said, there's much to be said for the convenience associated with cloud computing and storage. For example, I use Mozy.com's wonderful online backup service to store many of my documents, spreadsheets and slide show presentations. (You get 2 GB free and then pay a monthly fee for storage over that amount). It backs up my files every night at a set time no matter where I am in the world (so long as I have a Net connection, that is). Importantly, however, I only store non-sensitive files on Mozy. I keep personal / financial information partitioned on my hard drive and back those files up locally at my house on an external drive once a week. But because I am constantly updating my non-sensitive Word and Excel documents while I'm on the road, Mozy offers me the piece-of-mind that I won't lose a day's worth of work because of a system crash. (I had that nightmare occur last year, and it really sucked.)

So, at least with regards to storage, I think there is a happy middle ground between pure cloud and pure proprietary storage.

For those looking to store more online, increased use of encryption would certainly be advisable.

Re: Kentucky Bill Targets Online Anonymity

Adam Thierer — Mon, 10 Mar 2008 13:53:36 -0000

Great post, Ryan. I wasn't aware of that Kentucky bill, so thanks for pointing it out. I am trying to do a better job of keeping tabs of rising threats to online anonymity, especially on the social networking front. So perhaps we can keep working together to highlight these threats here while also making a concerted effort to discuss the many benefits of online anonymity. Politicians only tend to look at the downsides. To be sure, as Solove's book illustrates, there are some. But the benefits of anonymous speech far outweigh the cost. We need to do a better job of making that case to head off dangerous mandates like the Kentucky bill.

Re: Kentucky Bill Targets Online Anonymity

Adam Thierer — Mon, 10 Mar 2008 18:18:05 -0000

Update: Eugene Volokh has a good discussion about the legality of the Kentucky measure over on his excellent blog, The Volokh Conspiracy. He notes that it is:

Pretty clearly unconstitutional, see McIntyre v. Ohio Elec. Comm'n (1995) and the cases on which it relies. Plus of course any such state law would likely violate the dormant Commerce Clause, because it would end up affecting speech throughout the whole nation (given that even national ISPs would have to implement such policies for all their users, because national ISPs "do[] business" in Kentucky).

Also, make sure to check out the comments over at Slashdot about all this. Some are quite entertaining.

Re: Kentucky Bill Targets Online Anonymity

Adam Thierer — Mon, 10 Mar 2008 20:25:46 -0000

Sorry to keep adding comments, but I found another good piece on the subject here by my friend Leslie Harris of CDT. She argues:

It would be easy to dismiss this bill as simply the uninformed effort of a not very Internet savvy legislator, but to do so misses the point. Anonymity on the Internet is under attack. Whether it was the provocative comment by Donald Kerr, the Principal Deputy Director of National Intelligence who famously declared last fall that “Protecting anonymity isn’t a fight that can be won,” or the zeal with which the nation’s state attorneys general have pursued age verification for social networking sites, the view that anonymous speech is dangerous speech has plainly taken hold.

There are of course times even on the Internet where establishment of identity maybe important, but we seem to have forgotten the value of anonymous speech to our constitutional democracy. As the Supreme Court has made clear, “Anonymity is a shield from the tyranny of the majority.” McIntyre v. Ohio Elections Commission (1995). Anonymity is what protects people from expressing an unpopular political view in a community where the majority holds vastly different political views and allows people to safely provide information about government misconduct. And for those living in repressive societies, anonymous speech is an enabler of human rights and political reform. If it was good enough for Publius, it should be good enough for the Internet.

Amen.

Re: Tweet!

Adam Thierer — Mon, 17 Mar 2008 14:46:27 -0000

Wow, that is crazy. If you refuse to provide your password(s) is there any other way to use it?

Re: review of Zittrain’s “Future of the Internet”

Adam Thierer — Mon, 24 Mar 2008 08:55:25 -0000

Johnathan has responded on his blog here. He says:

I don’t mind sterile technologies in principle — I like the idea of taking the rough-hewn innovations that spring from the Internet and packaging them into cleaner, more reliable forms. I love my TiVo. (Indeed, that used to be the first sentence of the book. Then I went with the iPhone.) I even appreciate that sterile technologies can come about without having to emulate the products of generative ones — not every toaster comes from nerds experimenting with heating elements.

My worry, though, is that we’ll lose a sense of equilibrium between the generative and sterile spheres, and that the emergence of contingently generative technologies — platforms that are open to third party innovation at first, but then close off selectively — will squeeze out fully generative technologies, to the detriment of innovation and enhancement of exquisite regulatory control. This is in part because the amateur nerds that drive innovation here rarely read the fine print; teenagers will code for the Facebook, iPhone and Google platforms without thinking about the ways in which their advances can be eliminated or proprietized.

Again, I guess I just don't see how all of us would "lose a sense of equilibrium between the generative and sterile spheres," or that "platforms that are open to third party innovation at first" will "close off selectively" and "squeeze out fully generative technologies." Perhaps some will; but I just don't see the entire future of the Internet unfolding in that fashion. The momentum is too great in the direction of open, interactive, generative platforms and devices. Head over to "Go2Web2.0.net" and tell me how all that progress is going to be reversed. I just don't see it happening.

Re: Open Platforms vs. Central Planning

Adam Thierer — Mon, 24 Mar 2008 16:25:24 -0000

Thanks Tim, and you are correct to identify the similarities between Zittrain's thesis and Lessig’s work in "Code" and other books and papers. When you read Jonathan's book, you will find that he builds on Lessig's work in many sections. In many ways, it reads like a sequel to Code, or at least an extension of some of the themes from it.

On that note, I strongly encourage you to pursue your idea of revisiting Lessig’s specific predictions in Code and analyzing his thesis anew now that the book is almost a decade old. He's bound to win a lot of praise again for the book when it turns 10, so it is important that the other side of the story be told. I suspect I will find even more in the book to fault when I give it another look, as I plan to do soon. But you have already identified the general problem with the book: the sky did not fall and, indeed, things have gotten better in most ways over the past decade.

I have probably been overly harsh on Lessig in my review of his work through the years, so I encourage you to take an objective look at the body of his work and see what conclusions you draw.

Re: Open Platforms vs. Central Planning

Adam Thierer — Mon, 24 Mar 2008 17:20:30 -0000

I like it! You should consider a Cato event around the issue; let a few people present papers about Code from multiple perspectives and then invite Lessig to respond. If you guys pursue that idea, I'd have a few names to throw your way. One absolute must-have: David Post of Temple. I made David an adjunct scholar when I was at Cato and he wrote a great response to Code long ago entitled "What Larry Doesn't Get." Would be great to get him to update that piece. David's a brilliant guy and an entertaining speaker.

Re: The Newspaper Tailspin

Adam Thierer — Wed, 26 Mar 2008 12:10:27 -0000

This is true, but it is also important to note the newspaper websites are among the most highly visited online today. Great reporting will always have an audience, it's just that those institutions producing news need to stop printing it on dead trees and keep converting it to digitized bits. If they do so promptly, many of them--but certainly not all--will survive and prosper.

Re: Did You Read this in The Paper Today?: Biggest Drop Ever for Newspaper Revenue in 2007

Adam Thierer — Tue, 01 Apr 2008 09:15:15 -0000

Mr. Foundry's definition of a "free press" is really nothing of the sort. It is freedom brought to you in the form of chains. He simply refuses to allow markets to order themselves naturally and instead prefers that bureaucrats order them for us.

Meanwhile, as Ryan rightly notes above, the unchained world of online media marches forward, eating up everything in its path. Again, as I have stated countless times before, I have absolutely no problem with that. That is the marketplace I want for ALL media operators; one without the tyranny of Big Government holding back any one marketplace participant.

Will newspapers fail in that unconstrained market? Perhaps, or perhaps they will just evolve into some other sort of entity (and mostly do so online, of course). Problem is, we will never know so long as those archaic chains of analog era regulation remains draped around their collective necks. To be in favor of the retention of those chains is to say you don't mind seeing one participant in a race hobbled with asymmetrical burdens that others in the race do not face. That strikes me as radically unfair.

Compounding that unfairness is the suggestion that, "There's no reason why we can't have great newspapers, run as not-for-profits." Oh, I see. So long as newspaper commits to having a business model along the lines of NPR, PBS or the BBC, everything will be just fine. Well, maybe not. Those business models depend on philanthropy and government subsidy. Surely that is not the model that is best for ALL media. Only a rabid neo-Marxist would suggest such a thing. (And why should taxpayers foot the bill?)

SOME non-profit models might work, but for-profit models should be given the chance to work also. If we tie markets in knots with completely arbitrary operational rules and restrictions, we will never know what truly works best. I favor the freedom to experiment and find out. Others, like Mr. Foundry, favor the centralized directives of unelected bureaucrats to divine for us what media markets should look like. It's the difference between true freedom and faux freedom.

Re: Last Mile Problem SOLVED!

Adam Thierer — Tue, 01 Apr 2008 15:22:40 -0000

Probably has a better chance of working than most the muni wi-fi projects underway right now.

Re: Micropayments reconsidered

Adam Thierer — Mon, 07 Apr 2008 22:50:09 -0000

No, there are very, very few items that would be less than 99 cents after S&H. But even with S&H, many items don't break 2 or 3 bucks. For example, do a search for "stickers" on eBay and you will find about 60,000+ items, many of which will be just 99 cents with S&H ranging from 39 cents to a couple of bucks. But isn't that still a "micro-payment"? Is there a technical definition of the term that limits it to less than a buck? (I'm just asking; I really don't know).

Re: Micropayments reconsidered

Adam Thierer — Tue, 08 Apr 2008 09:15:13 -0000

Tim... I agree with your last statement about there being some floor below which micropayments will likely fail, or at least not be widely utilized. Nonetheless, I think I am fairly close to that floor when I spent $1.39 for a sticker on eBay like I did this week. That being said, I only engage in micro-transactions of that sort on an *occasional* basis, and therein lies the key difference. If I was asked to go through the Pay Pay micropayment process *every* time I wanted to consume a single news article, that's where the transaction costs would grow large and annoying. At that point, simple, flat-rate pricing (or ad-supported models) become preferable.

Of course, I haven't thought through the "one-click" micro-payment models that I have heard some people suggest in the past. We have something close to that at work on Amazon today. If we had a comparable "BUY NOW" button at the top of our browser that we could easily click any time we wanted to immediately and effortlessly purchase anything on the open webpage, that might be interesting. However, it would obviously open the door to a whole host of security and privacy issues. God only knows what my kids might buy if such a button was embedded in my browser. (My daughter once accidentally hit "But it Now" when I was looking at a fancy car on eBay that I couldn't afford. Luckily, it takes more than a few clicks to make the actual transaction happen!)

Re: Micropayments reconsidered

Adam Thierer — Thu, 10 Apr 2008 09:26:41 -0000

Jim... that's a good point about cell phone transactions, and another model like that is XBOX Live Marketplace, where I routinely make transactions for a couple of bucks a pop. I just buy a bucket of "Microsoft Points" ever month or so and then buy individual TV shows, music videos or extra game content. For example, I just downloaded a few new cars for my "Forza Motorsports" racing game last night. I don't even know how much it cost. I just clicked on it and bought it right away. Seems to me that is another good example of how micropayments can work.

Re: Can TLF embed videos?

Adam Thierer — Thu, 10 Apr 2008 23:31:46 -0000

Actually, while we are talking about goofy drink combos, I highly recommend Stoli Vanilla vodka and Pepsi. Tastes just like a cream soda. I am not kidding. Try it. [This is why I went to college, folks.]

Re: another problem for the Zittrain thesis — old people!

Adam Thierer — Sat, 12 Apr 2008 11:55:29 -0000

Seth... If I have over-simplified Zittrain's thesis above, I apologize. But this piece was meant as an extension of the lengthy original book review I posted last month. I don't believe I over-simplified anything in that 4,000-word essay, but I will leave it to you to explain how I have and than I would be happy to respond.

Re: Lessig and Corruption

Adam Thierer — Mon, 14 Apr 2008 15:30:14 -0000

Tim... Agreed on all counts, and what's worse is that Lessig is proposing full-blown taxpayer financing of political campaigns on the theory that "Publicly- financed campaigns will stop the cycle of campaign finance reform loopholes and ensure that big money stays out of Congress forever." Not only will it not do so for the reasons you point out, but it will then burden us with a massively unjust electoral system that forces people to support people and causes they find offensive and idiotic.

See prong #4 of the "Change Congress" plan here:
http://change-congress.org/...