November 12, 2002  ·  Lessig

Doug Isenberg, whose GigiLaw.com and its companion Guide are a great resource, sent along some more examples of awful wireless marketing.

From Doug:

(1) T-Mobile now offers Wi-Fi service at various locations including Starbucks coffeehouses. The service plans include one called “unlimited,” which apparently it ain’t. Here’s how the plan is described by T-Mobile on the company’s page for “unlimited” service in my hometown of Atlanta: “Get unlimited access within all T-Mobile locations in the Atlanta area for $29.99 per month. Monthly subscription plan includes unlimited monthly minutes within the Atlanta local plan area and 500 monthly MBs of data transfer.”

(2) Sprint PCS now offers an “unlimited” subscription to its new wireless data service, known as “PCS Vision.” However, according to the Sprint PCS Terms and Conditions, here’s what “unlimited” really means: “Unlimited PCS Vision. Sprint may deny or terminate service without notice where use is in connection with server devices or host computer applications, other systems that drive continuous heavy traffic or data sessions, or as substitutes for private lines or frame relay connections.” While some of this seems reasonable, what, exactly, is “continuous heavy traffic or data sessions”?

November 11, 2002  ·  Lessig

The lack of broadband access at hotels drives me nuts. It was bad enough when you had to carry a screw driver and alligator clips. But it’s been years since cheap and effective broadband technologies should have been deployed in major hotels. So it was a pleasant surprise when I received spam about this offer from W Hotels — offering “free” Broadband Internet Access plus telephone calls — for stupid people, apparently.

It was a pleasant surprise because I had hoped it would signal a trend. Just like TV, and electricity are “free” at hotels, so too should internet access — at least at hotels that are trying to attract business clients. And more importantly, the access should be as simple as plugging a shaver or hairdryer into an outlet. If the market really worked, then there’d be wi-fi access throughout hotels, with no registration or payment needed.

Instead hotels are installing idiot firewalled systems that break end-to-end compatibility — and for $10 to $20 a day. (I had to check out of a Westin in DC when its server refused to allow me to connect to my smtp server. After convincing the “tech people” the problem was their server and not my settings, I was informed that they set their systems up like that to avoid spammers “abusing” their system. I hadn’t realized there was a problem of spammers checking into Westin hotels and sending spam.)

So I followed the link in the email from the W Hotels to see what the future may hold. I ran a search on rooms at the W in San Francisco to get some rates. And guess what: The rates for the “WIRED” [SIC] rooms are about $100 higher than the exact same rooms’ “Internet Only rates.”

So: if you use the internet to get WIRED rooms with the W, you’ll pay $100 more a night than if you use the internet to get “Internet Only” rates. Only with “Internet Only” rates, you don’t get the internet. To get the internet with internet only rate rooms, you have to pay $9.95. Go figure. At least you’ll be saving about 90 bucks.

Hey hotels, here’s an idea: Just offer simple, unfirewalled, wireless broadband access on 1/2 your floors; charge $10 more per room, and see what the market demands. And stop picking on stupid people.

November 8, 2002  ·  Lessig

At a Tokyo conference on Intellectual Property Rights of Software and Open Source (hey, I didn’t pick the title), Msft General Counsel Brad Smith makes a strong and repeated defense of “neutrality” in the “software ecosystem.” I’m the other half of the presentation, but you can skip my part (especially because my hair is weird and I mumbled alot).

November 8, 2002  ·  Lessig

Aaron‘s got a reformulation of my escrow-the-code argument which is cleaner, tighter, and more persuasive. We’ve asked to have him re-present my argument in Eldred, but apparently one must be over 15 to argue in the Supreme Court. (Oops, today’s his birthday. We’ll have to ask again…)

November 7, 2002  ·  Lessig

Ted’s latest (and his patience with me is wearing, so perhaps sadly, his last), makes a passionate argument against my source code escrow idea, based on the nature of software and the creativity that builds it. I realize I must have somewhere inspired this debate about “nature.” I renounce it. No more talk about nature, or the philosophy of creativity. My argument is simple (maybe simplistic, maybe naive) pragmatism.

Ted had asked me why software should be treated differently from other “copyright property.” My simple response was that giving software 95 years of protection was to give the public nothing of value in return. Ted seems to agree with that: Some modification of the existing system is in order. That is all that motivates my argument. But Ted still doesn’t find that argument persuasive.

Yet his response reminds me of my years studying philosophy. He argues that there is a “means of production” that goes into every creative work. For the Godfather, for example, it “was the mind of Mario Puzo.” For software, it is the source code. And obviously, as the government should not demand Mario Puzo make his mind public in exchange for the copyright(s) supporting the Godfather, so too should the government not demand of the software author that he make his mind (the source code) public in exchange for a copyright on code.

That’s a useful point for making a distinction, but it is not an argument against escrowed code. Obviously, every creative activity includes lots of stuff that went into the creation that is not properly thought to be part of the product. Dave pointed to this point earlier: In writing a novel, there’s tons of creativity that is opaque in the final product. We don’t know, and can’t see, what the author had for breakfast, what arguments she had with her spouse, who he flirted with before writing chapter 10, what threat the publisher made that made her end at chapter 15. All this is hidden in the final product, and hence all creativity is, in this sense, “opaque.”

True enough. But I approach this from a pragmatic perspective, not a philosopher’s perspective. I pick out source code as the sort of thing that the world would benefit from having revealed because, as Seth Schoen reminded me and as the GPL defines it, source code is “the preferred form of a work for making modifications to it.” So if a copyright system wanted to encourage others to build on earlier code, providing the source code is at least one very good way to enable that creativity.

Of course, it is not the only way to enable others to build on earlier code. Providing clear APIs, etc., would enable a bunch of building. Just not as much. And reverse engineering object code would enable a bunch of building. Just not as cheaply. My point is just that we should design the system to support the “preferred form … for making modifications.”

Unless there’s a great reason not to, and this is what I’ve not seen yet. I find Ted’s claim that “I do not want to live in a society which compels me to register the contents of my brain with the federal government” colorful, but not persuasive. Poets know their poetry by heart. Does anyone think that poets are being forced to “resister the contents of [their] brain[s]” with the government when the copyright law requires a deposit of their work? This is source code, Ted. No doubt it is the product of lots of sweat and blood. But let’s not get carried away.

Siva Vaidhyanathan wrote me that my distinction may make sense today, but how long will it survive. As convergence means that all content is increasingly software, will the source code for that have to be deposited as well?

The answer to that depends, of course, on whether the source code for that too is “the preferred form of a work for making modifications to it.” Maybe, and if so, then yes. But let’s see first.

(Nick Coghlan also wrote to me that it is a mistake to call the “source code” the product; the source code, he nicely points out, is the “design – we just happen to have tools for automatically turning the design into a usable product.” Nicely put.)

Ted’s map of the different ways in which one might depend upon the right to copy is an excellent and helpful clarification of this debate. In light of that, I take it the crux of any real disagreement between Ted and me is precisely this question about modification. There is a long history of depositing copyrighted works with the government as a condition, or requirement, of copyright. Authors of books had to do it; movie studios (for a time) too with movies. These deposits were in part to enable the works to be copied once the copyright expired. The only thing my proposal adds to this tradition is the ability not just to copy, but to modify and build on the earlier work. That ability is enabled more easily with the source code than without it.

So why not enable it if we can? After an author earns the return promised by the copyright system, why not make the creative work available in the form others could most easily build upon? What reason (beyond mind-control rhetoric) is there for providing only handicapped access to the creative work?

(Compare: The Second Circuit Court of Appeals in the Corley case said that the fair use right didn’t include the right to access content in the technically more convenient manner. Thus, there was no violation of fair use if the only way to cut a snippet from a DVD was to film the snippet from the display on your TV. That position is consistent with Ted’s: the law need not give you the best, or easiest, means of modifying a copyrighted work. But in both cases, I don’t understand why. Why not push towards the easiest method for building on the work of others, once the copyright itself has been respected?)

November 7, 2002  ·  Lessig

ESR has a wonderful analysis of the latest Halloween document from (some mole in) Msft. Eric rightly emphasizes substantial good news. Yet though this may be just my nature, I think there is more here to be worried about than the good news suggests. Bottom line: Regardless of our OSS/FSF loyalties, we need to work hard to de-FUDify GPL.

My worry about this comes from two recent experiences—one reading the extraordinarily misguided missive from New Democrat Adam Smith, calling on the government to stop funding research producing GPLd code; the other watching a Japanese audience react to an argument ably made by Msft’s General Counsel, Brad Smith, about GPL.

Congressman Smith’s argument, as I have argued elsewhere, is radical and wrong. But it is amazing (given how radical and wrong it is) that it still survived his staffs’ check. Corporate Smith’s argument is familiar and also wrong, but it has the appeal of centrism that corporate types and government’s like.

Our strategy here should be Msft’s: We need to “embrace and extend” Msft’s message. As Brad Smith persuasively argued, the world needs a broad “ecosystem” of software. True enough, and we should agree, because the more the world agrees that a healthy “ecosystem” is needed, the harder it will be to argue that one species in that healthy ecosystem (GPL) needs to be extinguished. GPLd code may not make sense for all projects, but we need to push the idea that that market has shown that it makes plenty of sense for many projects, including many commercial projects. The choice within this ecosystem is not between commercial and noncommercial. The real choice is between business models that benefit Msft, and those that do not.

And more importantly in the short term, we need to get the Democrats to address Congressman Smith’s mistake. He went too far. They need to correct him. In their correction, the Democrats have a chance to say something useful and principled about the importance of choice in the software market. It is one good thing about being out of power: You can afford to speak the truth.

There is obviously a well-funded campaign underway to make the world believe GPL is not safe or effective. Whether you call the operating system Torvalds helped build GNU/Linux or just Linux, it is critical that we support those fighting to defend the GPL. Eric’s optimism reflects the good news about the spread of Open Source and Free Software. But this feels a bit about like the crowing around DR-DOS. The war here has just begun. The course we must “stay” must include the defense of a core part of the Free and Open Source software ecosystem: GPL.