Cato'$ Late$t
"This is either intellectual incompetence or intellectual dishonesty." So wrote Howard Rheingold about Adam Thierer's latest missive from Cato. I wouldn't call it "incompetence," given the custom of his community (DC). Nor, given the standards of his community, is it quite dishonesty. You are where you sleep, and Cato sleeps in the land of lobbyists.
Adam calls the "Dean-Copps-Lessig vision of cyberspace" "collectivist" -- one that treats the internet as "one giant collective resource." He selects (to criticize) the following from Dean's "Principles for an Internet Policy":
No one owns the Internet. It is ours as citizens of this country and as inhabitants of this planet. ... The Internet's value comes from its openness, and . . . the Internet's openness should be promoted [since] this openness is essential to the Internet's value as a marketplace of innovation and a public square for ideas . . . [and] a democracy of voices.
If you know nothing about technology, I guess I can see how you might be confused by this language. People who know nothing about technology think "the Internet" is a set of computers, or even worse, "a computer," and so for them, it obviously sounds communistic to say that no one owns those, or that, "computer."
But "the Internet" does not refer to a bunch of machines. It refers to the the set of protocols that enable a bunch of machines to link together in ways that no one -- including its inventors -- imagined. Technically, which in other cities means "accurately," that set of protocols is not "owned." Instead, the protocols of TCP/IP, which include the protocols for the World Wide Web, are in the public domain. I take it Cato believes that's a bad thing: That it would be better if those protocols were proprietary. That we would have had a better network had it been a proprietary set of protocols owned perhaps by the telecom industry. That industry, of course, has never believed that the value of any network "comes from its openness." And indeed, that industry has never opened itself up to competition and uncontrolled innovation -- until regulators forced them to, in the context of telephones at least.
Dean's "principles" are said to be guided by a three part "agenda":
(1) Infrastructure: They want telecom, cable, and broadband high-speed networks subject to collective rule via a heavy dose of open access regulation, structural separation or even outright public ownership. And they want the Internet to be treated as a collective asset subject to "democratic rule" through a variety of "nondiscrimination" mandates and other regulatory controls. (2) Spectrum: They want most of the electromagnetic wireless spectrum to be treated as one big commons with very limited exclusive property rights. (3) Intellectual property: They want to water down IP rights and greatly expand fair use rights and the public domain.
Let's take each in turn:
(1) Infrastructure: I don't speak for Dean's campaign. I respect it and admire it, built as it was upon the openness of the internet (which is why other folks from Washington hate it so), but I don't think it has yet formed a complete internet policy. It statements were, as they described, just "principles."
And they are correct. No one serious wants to subject the Internet "to collective rule" -- except the Bush Administration (see their army of Patriot Acts). The most anyone has argued is that to the extent the original neutrality of the network is compromised, the government has a role to balance that compromise. As the history of technology since Adam Smith demonstrates, neutral platforms create explosive innovation. And the neutrality built by the end-to-end character of the Internet's protocols was a crucial part of the Internet's growth.
Apparently Cato thinks the end-to-end neutrality of the original internet was a weakness. Governments do too: It's harder to regulate internet behavior when intelligence is at the ends; so too is it harder to protect legacy business models when intelligence is at the ends. But while I understand (and even predicted) why governments and legacy businesses will therefore fight the end-to-end character of the Internet, I don't get why a libertarian would. A libertarianism guided by principle -- rather than contributors -- would embrace the values of the end-to-end network. Cato does not.
(2) Spectrum: "They want most of the electromagnetic wireless spectrum to be treated as one big commons with very limited exclusive property rights": I do support opening more spectrum to nonexclusive use. I don't argue that it all should be non-exclusive: In the Future of Ideas, for example, I describe a competition between a "property" regime, and a "commons" regime, with government policy guided by which works best.
But as Yochai Benkler has rightly argued, this is a case where the rhetoric of "commons" is too easily confused with something else. The debate gets too easily spun into a "market vs. communism" debate. It is not that debate. Most charitably understood, the only (real) disagreement between these two sides of the debate is whether we need two markets, or one.
The "commons" side believes that one market -- a market in devices -- is enough: that if businesses could compete to provide better and better devices to utilize spectrum, then that market would take care of itself. We would get astonishing growth in the penetration of these devices, and extraordinary utilization of the spectrum. (See, e.g., wi-fi).
The "market" side believes that a market in devices is not enough: that in addition to a market in devices, we also need a market in spectrum -- so that owners of the spectrum get the right to exclude others who would use the spectrum without their consent. If only we could propertize the spectrum, this side believes, we would get even more growth than with the spectrum commons. (See, e.g., 3G).
To resolve this debate finally, we need to know lots more about the technology for utilizing spectrum. I don't think anyone can say for sure which is better, but I know my biases are in favor of less regulation, not more. Establishing property rights in the air is regulation. I won't assume it is good just because it is "regulation"; nor do I think it is bad just because it is called "property." The test is always the substance, not the label, at least in places other than DC.
Cato apparently believes it is a loss if the FCC doesn't get the chance to establish and regulate a "market" in spectrum; they like the idea of more middlemen, and hence more overhead, for innovators and technologists to negotiate over before they bring their products to market. Or at least, Cato's supporters (like Murdoch) like that picture best -- because with such a powerful and successful lobby throughout Washington, they'll be in a good position to "guide" this market best.
But test your own views: Think about the market for newspapers. In principle, we could imagine creating a property right called "the right to publish a newspaper" which the government would auction off in a particular market. Then people who wanted to publish a newspaper would not only have to compete in the market of newspapers, but also in the market for the right to publish a newspaper. I can understand the theory that says that such a "market" might improve efficiency. But I don't believe that theory is correct. I think one market -- the market in newspapers -- is quite enough. Nothing would be gained by adding another on top.
Isn't that different, you ask? Wouldn't a "property right" to publish a newspaper violate the First Amendment. Indeed it would -- and so too does much of spectrum regulation, as Benkler and I argued (subscription required) half a decade ago.
(3) Intellectual property: Remember precisely what Adam says: "Intellectual property: They want to water down IP rights and greatly expand fair use rights and the public domain."
First, there is absolutely no basis whatsoever for attributing these views to Howard Dean. Neither Dean, nor any Democrat, has dared question the IP extremism that reigns in DC. Nor have I read anything that Michael Copps has said to suggest he would follow such a "radical" course. So of the "triumvirate," I guess this one is for me.
Of course I'm all for more balance in "intellectual property." Washington lobbyists have totally perverted our tradition -- so much so that they can't even recognize the silliness in their arguments. (Fritz Attaway of the MPAA recently argued, for example, that a two hundred year term of copyright would still be a "limited term." Right. And the "Patriot Act" is an expression of patriotism.)
I certainly believe that we need to limit copyright terms, restore formalities, draw clearer and stronger lines to protect "fair use," and permit once again copyrighted work to pass into the public domain.
I believe all that -- and I thought Cato did too! For remember, they filed a brief against the Sonny Bono Act. They used to argue in favor of limits to "intellectual property." They used to believe that "intellectual property" should only extend as far as it made economic sense for it to extend.
But alas, that was before. Now Cato is just regurgitating the silliest arguments from the South. Now they too are on the IP maximalist bandwagon. Apparently, those who believe in the public domain didn't contribute enough to the Cato fund.
There's something weird about libertarians who move to Washington. It's like Ayn Rand moving back to the Soviet Union. But as this latest from Cato demonstrates, there's also something Washington-corrupt. John Edwards has nicely and rightly called for a ban on lobbyist contributions to campaigns. Why stop there?
For more on this, see Joho's nice entry.
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Comments (17)
Ugh. Keep their gubby little corporate hands off the Internet! In the last few years I've seen the Net slowly turn from an all-volunteer effort to inform and entertain -- for free -- into an increasingly pay-as-you go corporate profit center.
Let's hear it for the commons! When the Net becomes solely the domain of the corporate giants and for the purpose of selling me products, I will say goodbye to the Net forever. Well, actually I'll look for its replacement, no doubt some new all-volunteer effort to inform and entertaint -- for free.
Don't refer to them as Libertarians.
Think tanks are best described by their funding sources, in this case Scaife, Olin, Coors, and the rest of the right wing Republithugs that gave us Ken Starr.
They are a right wing think tank, period.
This is downright funny: "a more sophisticated master plan for cyberspace concocted by a group of academics and public officials ..."
The Master Plan! Can I be a minion?
"And now comes Howard Dean's campaign tech platform, which promises to put this plan into action if he takes over as commander-in-chief this time next year."
How does it feel to have *Howard Dean* backing THE MASTER PLAN?
See the joke I have about this sort of power.
well, it’s not intellectual dishonesty, because rheingold clearly doesn’t understand these issues well enough to be dishonest about them.
calling it intellectual incompetence isn’t quite right either, because he does make some valid points.
it is more an intellectual misunderstanding coloured by a very large dose of anti-dean bias.
(1) Infrastructure: They want telecom, cable, and broadband high-speed networks subject to collective rule via a heavy dose of open access regulation, structural separation or even outright public ownership. And they want the Internet to be treated as a collective asset subject to "democratic rule" through a variety of "nondiscrimination" mandates and other regulatory controls.
first, let’s use your definition that “the internet” is TCP/IP (a narrow-minded perspective, but adequate for our discussion.) rheingold has a point here. in order for TCP/IP to exist there has to be structural support for it in the OSI stacks. this does not mean that ALL of the infrastructure must be bound to TCP/IP, but at least a portion thereof has to support it.
(2) Spectrum: They want most of the electromagnetic wireless spectrum to be treated as one big commons with very limited exclusive property rights.
we don’t know anyone who advocates this. even benkler doesn’t say that MOST of the spectrum should be one big commons. benkler, and professor lessig, and even we three blind mice, believe there are good arguments for opening up larger portions of the spectrum for unlicensed use. the mice are concerned that the necessary regulation of this spectrum may be more far more pervasive than benkler expects, but this depends to a large extent on the technical standards which as selected and how they are used.
(3) Intellectual property: They want to water down IP rights and greatly expand fair use rights and the public domain.
rheingold has a valid point here, but he misrepresents it. there are plenty of people in the "commons crowd" arguing for greater fair use which is unarguably a watering down of IP rights, but opposing an extended copyright term is not necessarily arguing for watering down IP: it is arguing against the expansion of these rights. it’s hyperbole to present it as a watering down.
as for the attack against professor lessig, rheingold is betraying his libertarian roots. creative commons is pure libertarianism, simple and plain. it is not a watering down of IP rights because it is the owner of the IP who chooses a different regime for his rights. it is not imposed, it is an individual choice – fully consistent with the basic tenet of libertarian theology.
as a final remark, it is somewhat fair for rheingold to throw the stone of hyperbole because his glass house is a built from plenty of it and there is plenty of it out there to attack.
Lessig has gone so far as to suggest that the very "Future of Ideas" may be at stake if steps are not taken to preserve "openness" on the Internet.
we read this book and “code,” and we thought the title “future of ideas” as a title was pure hyperbole (perhaps imposed by your publisher. we mice have also lost arguments with our publisher over book titles, so this is easily forgiven. by the way, both books were very well written and thought provoking, and we look forward to future volumes.)
when rheingold winges that the commons crowd gets that balance entirely wrong. he is engaging in the same sort of hyperbole which the “commons crowd” engages in themselves. the use of the vague term “commons” is frankly a little too close to the “workers owning the means of production” to be useful in this heated political debate. it is better, and more accurate, to speak of technical specifications.
benkler writes beautifully, and argues forcefully, but his lack of engineering ability greatly diminishes his arguments. his political bias is also an influence, but it is somewhat subtle.
professor lessig, with all due respect, you also suffer from a lack of engineering ability. in both “code” and in “future of ideas” you step all over the toes of your technical partner when you dance. your political bias is very strong and it unfortunately it does colour some of your arguments. nevertheless, your writing is beautiful and it is sometimes difficult to avoid its seduction.
in this piece, rheingold reveals both a severe engineering shortcoming and a poisonous political bias which is and strangely, but clearly, inconsistent with his libertarian credentials. his virulent right wing bias ruins the few decent points he has to make.
sadly, this topic requires a mastery of a large volume of technical and legal material which very few people, if any, have sufficiently grasped. benkler and lessig have perhaps come the closest, but their technical shortcomings leave a lot to be desired.
we mice understand the technical issues but struggle mightily with the legal concepts. our libertarian political bias colours, but hopefully does not infect, our views too much! but of course it does.
nate, your remark about corporations keeping their"grubby little hands off the internet" is the wrong attitude, co-existence and mutual respect is the way forward. this cannot be a winner-take-all battle or both sides will loose.
As a child of the Fifties who grew up with clear political parties, I'm in shock. No one appears completely consistent at all.
But this has got to be the most confusing; no one would accuse George Gilder of being a liberal, but most of the spectrum arguments are entirely consonant with his Telecosm arguments. Likewise, whether they first originated there or not, he has articulated the same arguments on open protocols, the Internet's structure and inherent uncontrollability, and many other such things.
How Gilder's arguments got associated with the Democrats, and Microsoft with the Republicans, is just one of the most curious attributes of a yellow-dog partisan political mindset.
On the other hand, it does offer an opportunity for people to abandon the partisanship in the search for real truth and justice. I hope that enough people catch on...
While I congratulate the mice on another erudite post, I cannot help but pick a few nits. :)
when rheingold winges that the commons crowd gets that balance entirely wrong. he is engaging in the same sort of hyperbole which the “commons crowd” engages in themselves. the use of the vague term “commons” is frankly a little too close to the “workers owning the means of production” to be useful in this heated political debate. it is better, and more accurate, to speak of technical specifications.
-- Technical specs are good for solving technical problems. I believe that the concepts embodied in the general term "intellectual property" involve philosophical, sociological, and legal specs more than technical specs. Until we work out the underlying socio-legal issues, we're bereft of the means to work out technical specs. I think that this is the impasse at which we currently find ourselves.
professor lessig, with all due respect, you also suffer from a lack of engineering ability. in both “code” and in “future of ideas” you step all over the toes of your technical partner when you dance.
That's an interesting assertion; would the mice be willing to provide quotes (or simply page numbers) supporting it? I have a lot of respect for Professor Lessig, but I don't believe he's infallible.
No nit to pick here:
we mice understand the technical issues but struggle mightily with the legal concepts.
I struggle alongside the mice in that endeavor.
What fascinates me is how this medium allows us to struggle together; your toe might poke me in the eye as you scramble to stand on my shoulders, but the reverse is equally likely.
--Jason
I resigned from Declan's ramblings when he attacked Boucher, nonetheless someone always manages to post Cato articles on news groups. I thought of sending the Adam Thierer article to you, Professor, but I think I was too shocked to reply when I saw the references to socialism, neo-Marxism and collectivism. I couldn't even step into the thought process of such a thing. I am distrubed that Wayne Crews has co-written another article about Infrastructure Collectivism.
I am quite familiar with the goings-on at the FCC. This whole thing makes sense when you consider Copp's (and Adelstein's) sharp dissents regarding Murdoch. Hold onto your hats, we're in for an orgy of further consolidation, as Comcast swallows AT&T, and smaller fry struggle in the cable pool.
I don't see any resonance whatsoever regarding Copps' own thoughts on intellectual property rights. That doesn't seem to be in the mandate of the FCC. WTF??
Bizarro-world Declan McCullagh would have a news.com story out already headlined "Cato Institute Wants to Make It Easier for Governments to Control Net" but perhaps we should be a bit more careful.
Cato's policy seems clear: The Internet is working fine, it does need more government regulation to "protect" it.
I can't find anything that indicates Cato does not like end-to-end, open standards, or any of the other strengths of the Internet -- they just don't believe regulation is necessary to ensure them.
Did I miss the place where they implied otherwise?
Dear mice,
When you say "rheingold", do you not mean "Thierer"?
On a different note, I've never understood the reasoning that causes libertarians to think that restrictions on personal freedom, when called "property" (or something similar), not only become OK but something to be championed. I can see why a principled libertarian might conclude that "what's mine is mine and what's yours is yours" is the best way to protect personal freedom, but it seems awfully bizarre to attack something like "increasing fair use", since I can't think of any reason such increases could hurt the freedom of authors.
To get away from the First Amendment, try this hypothetical: The Federal Weapons Commission was established to propertize the bullet-spectrum. They're holding an auction to sell off the right to control certain bullet sizes. The winner gets to say how, where, and when bullets of that size may be used. (All other sizes, of course, are prohibited.) Oh, isn't that funny -- the gun control activists are buying up lots of the bullet sizes.
But hey! It's property rights, not gun control, so it's good. I'm sure glad those crazy Marxists didn't convince us to adopt their "bullet commons" approach where you could sell guns that used whatever size bullet you wanted. It's obvious that the auction system is much better for freedom.
So now wouldn't it be more accurate to call the libertarians "propertarians"? ;-)
When you say “rheingold”, do you not mean “Thierer”?
adamsj, you are correct. it is our stupid lack of attention to detail! thank you kindly for your correction.
professor lessig, with all due respect, you also suffer from a lack of engineering ability. in both “code” and in “future of ideas” you step all over the toes of your technical partner when you dance.
That’s an interesting assertion; would the mice be willing to provide quotes (or simply page numbers) supporting it? I have a lot of respect for Professor Lessig, but I don’t believe he’s infallible.
we as well have a lot of respect for professor lessig, and many of the other people who post here. it is not a matter of one or two specific quotes, but rather the entire theme of innovation. here is an example:
“For the property obsessed, or those who believe that progress comes only from strong and powerful property right, pause on this point and read it again: The most important space for innovation in our time was built upon a platform that was free.” (p. 56, 57, the future of ideas)
this is exactly the sort of hyperbole which provides thierer (now we have it right, thanks adamsj) platform for his remarks.
we have previously pointed out that cellular communications (specifically GSM) was developed more or less concomitantly with TCP/IP. from its roll out in the early 1990’s GSM (a closed, proprietary, patent encumbered system built on an open standard) enjoyed faster growth than TCP/IP and even today it touches more lives and is used by more people than TCP/IP.
when professor lessig speaks of innovation (which is the theme of future of ideas,) he has one eye closed. innovation cannot be seen from the narrow interests of open source programmers and web designers, but one must consider that innovation is a continuum which stretches vertically, as well as horizontally. while there has been relatively very little innovation within the horizontal framework of GSM, there has been vast innovation on orthogonal planes. the stable (some would say stagnant) platform which is GSM has allowed phones to be reduced from bricks to credit cards. this closed, proprietary technology provided the platform for the development of a practical homodyne receiver – the holy grail of radio design – many GSM users hold this in their hands and have no idea of the astonishing technological achievement inside their phone.
such orthogonal innovations have provided the platform for further innovation. GSM has allowed people the world over to innovate how they live their daily lives. it has provided business new ways of doing business. reliable wireless communications has saved countless lives.
looking at the parallel world of TCP/IP what is really the difference between mozilla, IE and netscape? hair fine differences, and to the non-technical end user very little difference at all. vivisimo is a slight improvement over google, which was a slight improvement over yahoo, which was a slight improvement over altavista, etc. what professor lessig promotes as “the most important space for innovation” has been in many ways a platform for the crude copying of already existing ideas. the culture of free which pervades the internet has resulted in a distinct lack of commercial utility. that after more than 10 years, pornography is the most profitable on-line business and P2P piracy one of the most widely used applications speaks volumes for the lack of useful innovation which this space has provided.
this is not to say that TCP/IP has not provided a space for innovation, nor do we want to equate commercial success with innovation! it is only an example. please do not flame us for not extolling the many virtues which TCP/IP and the WWW have provided (this blog being one of those non-commercial valuable innovations to public discourse). our goal here is simply to point out some of the technical shortcomings of “the future of ideas.” when discussing the future, what constitutes an “idea” deserves a far wider scope than it is given.
thierer could have jumped all over this as support for poisonous political rhetoric, but he doesn’t get it either. if he knew enough to be accused of intellectually dishonesty, he would not have to be dishonest to make his point.
there are no grounds either to accuse the good professor of intellectual dishonesty because his writings make it clear (at least to us three blind mice) that our learned professor of law simply does not see these technical distinctions. relying on members of the open source community to provide the technical perspective for “the future of ideas” is to rely on a biased source.
we are all influenced by the company we keep and their (and our own) political biases. it is easier and more pleasant to spend time with people who agree with us, but this does not challenge our minds, it does not advance the debate, it tends to reinforce our insular views.
this forum is a rare space where different views can be expressed and challenged and tested. we mice are grateful for the opportunity to spend time with intelligent, well-read people who posthere and with whom we often find ourselves in disagreement.
and we beg professor lessig’s forbearance for these critical, but hopefully not unfair, comments.
We hope. =)
Your statement saying that protocols for the World
Wide Web are in the public domain does not fit
with the reality. Although the U.S. Copyright
Law said that copyright cannot extend to
procedures, process, and so on, entities strongly
assert ownership in some or all of the new protocols.
The easiest example is W3C's claim of ownership in
many documentations on its website. Nowhere in
W3C's website (as far as I can find) says that
the protocol itself is in the public domain.
According to its FAQ on intellectual rights,
I can't copy a protocol and revise it.
The next example is Unicode, Inc.'s very strong
claim of ownership in Unicode system.
The bottom line is that not all authors of the
protocols think that these protocols are in the
public domain.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Seems to me this would be much more compelling if you argued against "Adam" rather than "Cato," especially since their are a diversity of views on this issue at the Cato Institute. Of course, Adam has no direct donors, so I guess that would undercut this piece's sad attack on motives rather than ideas.
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