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Lessig Blog Archives: Tim Wu Guest Entries
Well I had planned to write a few thoughts about Yochai’s book, but I haven’t finished it yet! Perhaps later, with Larry’s good grace.
It has been a great pleasure being here this week — the commentators on this site are really sharp and thoughtful, and it is just a nice platform for writing.
Enjoy Who Controls the Internet, if you’ve got a copy, and I look forward to any comments any of you may have.
Jane Jacobs, the great theorist of all things urban, died recently. It had been my dream to go find her in Toronto but that will never happen. She’s obviously influential to urban planners, but I’ve found her writing tremendously helpful for thinking also about network design.
If you aren’t familiar with her work, Jacobs was an enemy of bad central planning. She believed in cities that grew up in a willy-nilly, unpredictable way, allowing new buildings to gradually replace old, or be converted to new purposes. She believed the causes of urban blight were dullness, and hated housing projects, mega-blocks and other doomed efforts to make people live just so.
What Jacobs favored is letting neighborhoods be. She thought city planners ought create small roads and small blocks that worked on a human scale, and then stand back let the inhabitants decide how best to use their neighborhoods. Here thinking wasn’t quite economics or sociology, liberal or conservative, but rather a powerful attack on our constant tendancy to overestimate our own abilities to plan how people should live their lives.
The comparisons to network design should be obvious. Network designers, like say the writers of ATM, who have too specific an idea of what they want their users to do create abominable networks that imprison their users and become obsolute quickly. The more general purpose and useful the network, the more it does for society and individuals, and the better it evolves from one use to another.
Consider the comparison: a SoHo building can begin life as a factory, become an artist’s loft, then a boutique, then a condo, and so on. Some of the networks and even applications have led constantly evolving lives. The internet supported usenet, gopher, veronica, the web, ICQ, IM and so on, in a steady kind of evolution that was unpredictable in advance. The WWW itself has shuffled through static sites, through “home pages” of the Geocities era, through the rise of the search engine, through the blog, and through 2.0-style sites. Someone, maybe Danah Boyd, should write “The Death and Life of Great American Applications.”
Jacobs understood that the point of urban planning was not planning for a moment, but trying to cultivate healthy, evolving cities that make people happy to live in. Much of the same can be said about information architectures - the best planned networks don’t overplan, but somehow manage to create a kind of life of their own.
You can learn this in The Death and Life of Great American Cities, or any of Jacobs’ other books.
Xiong Chengyu, a personal advisor to Chinese President Hu Jintao on internet policy, came to New York briefly and on Tuesday we met at Columbia law school.
It was a casual meeting and we chatted for quite a while. Anyone affiliated with the Chinese government is usually quite formal, so I wore a suit for the occasion, and worried about my lack of a welcoming committee. But Xiong was of the new breed, and preempting me, he wore jeans with a jacket, like a 60-year old internet hipster. In conversation it turned out he was something of an internet utopian himself. He spoke of a network of great transformative power for China’s economy, culture, and society. A network that would take China out of its present cage, its underdeveloped version of itself. That would create applications to match and compete with U.S. versions, and even interestingly, a content industry that can best Hollywood.
But then why so many controls, I asked him? He said, “to provide room,” and to “make development possible.” I didn’t quite understand what he meant by that. He urged me to pay less attention to the present, to the controls of today, and to think about China’s future. I asked, but then what’s the long term goal — something like Singapore, more like Europe, or the United States? He said, no, probably something in the middle, something Chinese, but in the end better.
After a while, something struck me. Like many of the dreamers in our book he was so deeply convinced of the internet’s potential to liberate China from its lack of development that he was willing to overlook details nearer the present. He was buoyed by the same kind of optimism in internet progress that you see in the West, just directed to a different goal: bringing China back where it should be. That, for him, made hard questions easy. I admired his spirit but it also made me a little nervous.
On his way out he wanted to buy some of the “new” books on law or media or the internet at the bookstore that can be harder to find in China. I took him there and he bought my book (shameless, yes). He also bought Lessig’s 3 books, and Paul Starr’s “the Creation of the Media.” Neither Glenn Reynold’s nor Yochai Benkler’s new books were in the bookstore (Labyrinth Books, near Columbia).
I wondered if I should warn him that our China chapter is quite critical, but I didn’t, and off he went.
James Love has an interesting article on the treaty on broadcasting and webcasting rights now under discussion at the WIPO, and completely ignored by nearly everyone.
Broadcasters have long wanted yet another form of intellectual property to, yes, provide more incentives to invest in the broadcasting of content. Love suggests that a collection of web firms, like yahoo, are lobbying for a web equivalent — a webcasting right as well.
In the meantime, I’d like a property right that gives me more inventives to wake up in the morning and floss my teeth.
Over the next ten years or so, as others have said, a big platform war may not be as between Windows & Linux, but between computers and (deluxe) cell phones.
For Bellheads, the cell phone is in many ways a dream platform. It puts many of the sacred principles of closed infrastructures into place, including:
1. Limits on equipment attachments; (customers use approved cell phones);
2. Vertically integrated content & applications; (ringtones, etc.)
3. Pay-per-use, value added services (like “411 and more!”)
4. General freedom to bill;
5. Limited customizability or programability.So the cell phone platform, if the Bells are right about innovation, should be just killer. As a revenue source, that’s true. Yet other than SMS, I guess, I just don’t see alot of apps other than voice.
The question is, would it make sense for a provider to experiment with an open cell platform? To make it easy for third party developers to offer applications to cell-users, without making some kind of deal?
Do principles like Network Neutrality make any sense for wireless? Or are conditions sufficiently different?
So I’ve been in a debate with Christopher Yoo over at legal affairs on the topic of Network Neutrality —
Here’s a Snippet:
A lot of the difference in Chris and my own views stems from how we think the process of innovation occurs. Chris, rather like the later Schumpeter, believes that large firms — in this case, network operators, drive telecommunications innovation. As the later Schumpeter put it, the “large-scale establishment” is “the most powerful engine of [economic] progress and in particular of the long-run expansion of total output.”Chris thinks incumbents like AT&T will rarely or perhaps never threaten innovation. Instead he views them as the driving force of the technologies of tomorrow.
I am skeptical. I think these view of incumbent behavior has been discredited, and that in general incumbents, particularly in a monopoly position, have a strong incentive to block market entry and innovative technologies that threat their existing business model.
…
The dot xxx debate has been back in the news recently, and what I find unendingly puzzling is the sides taken.
From first principles, you’d except groups who want it to be harder to get pornography on the internet to want a .xxx domain — followed by a law (like this one, or stronger) ordering ISPs to block porn sites that don’t move to the porn zone. That would make it relatively easier to avoid randomly running into porn on the internet.
Yet as everyone knows the positions are reversed. The United States has signaled strong opposition, as have other governments. Groups in opposition rely on arguments that defy logic - like the argument that dot-xxx would mean more porn on the internet (if there is anything slowing the market for porn, its not the unavailability of a domain name). But U.S. groups, for reasons I cannot fathom, urge that dot-xxx would “mean perhaps twice as many Internet porn sites and twice the danger to children.”
What the episode largely teaches is a lesson in how the obessions of large and powerful states will shape the Net of the future. The opposition to dot-xxx is fairly hysterical — it is of the mindset that thinks it is better to pretend pornography doesn’t exist, for to admit it exists is to condone it. That’s a puzzling way of thinking to much of the world, but very familiar to Americans and some Europeans. Hence the opposition to dot-xxx.
Since the 1990s I’ve thought alone with others that porn on the internet could be better zoned. But if to zone it is to condone it, so much for that vision.
Why do Studios Pay for Newspaper Movie Rights?
A relatively little-known fact outside of copyright practice is that movie studios regularly purchase the film and television rights to newspaper stories. Yes, newspaper stories, which by their nature, report on facts or ideas, two things the copyright law does not protect. So what are studios buying?
In 1997, the New York Times reported on the story of Tim “Ripper” Owens, who rose from being a lifelong Judas Priest fan to becoming the actual lead singer of Judas Priest. As Times writer Andrew Revkin wrote:
Mr. Owens has risen from devotee to icon, from metal-head to metal-god. He is about to be transformed from a hard-working singer in a cover band and a suit-wearing traveling salesman of office supplies into Ripper Owens, the new lead vocalist for the band he once worshiped. It is as if a sandlot baseball player not only got a chance to play in the majors but got to be Cal Ripken Jr.Great writing and a great story. Good enough to inspire the 2001 film Rock Star, starring Mark Wahlberg and Jennifer Aniston, for which, I am told, Warner Bros. paid the New York Times for the movie rights.
But wait — what movie rights? According to basic copyright law, and as interpreted by the Supreme Court, the facts of Ripper Owen’s life are free to be used by anyone. There is, according to the law, almost nothing to purchase. Reading the story out loud during the film would be a copyright violation, but under U.S. law, little else would borrow the expression as opposed to the facts.
So the existence of these licenses are, from principle if not practice, something of a mystery. I’ve heard a few explanations, though perhaps a reader has a better explanation than what I’ve heard.
One answer is that the rights aren’t expensive — the New York Times typically asks for several thousand dollars. In return, perhaps the reporter will help with the movie. So why not just buy the rights? Yet that’s still money. Why would anyone pay several thousand dollars something that doesn’t exist? Its like buying property in never-never land.
The supplementary answer is that studios are preventing even a remote risk of a lawsuit brought by the New York Times. This answer, if it’s true, is interesting, because it suggests that even if the law clearly says these rights don’t exist, people will still pay for them as if they do — its as if there’s no use even having the idea exception in copyright. It also suggests that the studios may be getting incredibly conservative legal advice, and wasting money thereby.
A final answer might be that the purchase is just an industry signal. It is no secret that preventing excessive competition is helpful to the film industry, like any industry. Two versions of Rock Star might make everyone’s life difficult (though maybe good for consumers). So by pretending that the rights actually mean something, the market can be divided between what would otherwise be competitors.
That’s a rather skeptical view. As things turned out, Judas Priest also, eventually, wanted more creative control over the movie — though of course they had no relevant rights to the story. Warner Brothers eventually took out all references to Judas Priest, and the resulting film though I haven’t seen it, was panned by critics. The usually generous Hollywood Reporter wrote “This is a completely generic movie that hits all the expected notes in a pat, formulaic way.” Oh well.
(Thanks to Jennifer 8. Lee for passing on the Judas Priest “Rock Star” example).
Back on March 30 I presented Who Controls the Internet at Ed Felten’s Infotech lecture series at Princeton. The crowd was extremely sharp; the discussion was great, and I had the chance to meet Brian Kernighan, from whose book I learned C programming. I must say there is something uncanny about the enthusiasm for political theory and policy found in computer science departments today. Seems like everyone is a policy-geek — what ever happened to just being a geek? Maybe that’s what engineering department are for.
Anyhow, during the talk, someone asked an interesting question — what’s the difference between our book and Larry’s Code and Other Laws of Cyberspace?
It’s a perceptive question. From the outside the books look very different — ours is about international relations and nations, Larry’s is about code as a kind of law. But on the inside beat similar hearts, reflecting how much Jack and I learned from Larry, his scholarship and his book. How could it be otherwise?
Larry’s enduring contribution in Code is the concept of dueling regulatory modalities. This is the idea that a society at any time is being governed by multiple, and different types of rules from different sources. Larry didn’t just mean federal and state law. He meant something deeper: entirely different types of regulation, or as he puts it, that we are regulated by law, social norms, market forces, and what he called architecture or code.
Perhaps this idea was somewhere latent in the sociology and economic literature. But once presented by Larry it became an idea that once you get you cannot forget. (Similar to Larry’s translation theories of constitutional interpretation, which have a way of sticking in your mind and refusing to leave). So when you’re driving — what regulates you? The speeding laws, sure. But also norms that say, for example, no skipping the line to get on the highway. And while it sounds odd, tolls on the road regulate your behavior, making one road more expensive and another cheaper. But most profound of all was the idea that the architecture of the world regulates too, just like law. A speed bump is an alternative to a speeding law, and maybe more effective too. Conversely, you don’t need a speeding law for bicycles because by their nature they only go so fast.
Our book takes on a slightly different problem of competing sources of order. The question was, how would the world come to regulate the borderless or extra-territorial conduct found on the internet? In the 1990s there were three competing answers: (1) self-regulation or “private ordering,” (2) use of international law, or (3) national laws. While (3) was certainly not a fashionable answer at the time, our book is the story of how the use of (3) outgrew the rest, at least from the 1990s through now, and what might be said about that. (And maybe the most surprising thing has been the lack of use of international law tools to handle the extraterritorial problems created by the internet, with the exception of the Cybercrime treaty).
But at the heart of our theory you can find our debt to Larry. For in our studies of the techniques used by nation-states, the same theme emerges — the use of intermediary, or what legal scholars sometimes call “gatekeeper” controls. But if you really think about it, when acting through intermediaries the government is using a technique Larry described in his book — using law to shape the code. If the law were to tell carmakers that no car could go over 65 mph, that’s a form of intermediary control, but also what Larry was getting at.
Prompted by Code, we also talk about an almost too-theoretical question — you might call it the question of “what comes first.”
In short, is law, and its basic provisioning of public goods (like physical security) necessary to successful systems of norms, a free market and so on? This position, which is more or less Hobbesian, is one we approach in the book. I don’t think the argument is bulletproof — good cases can be made, perhaps, that norms are where societies start, leading to laws, leading to functioning markets — and so on. But having Larry’s ideas helped us think this through.
I don’t want to go on too much in this vein, and there isn’t enough space to detail all the ways our book has learned from Code. But suffice to say it and much of the other writing in this area all begin with that volume.
When I was in my teens my brother David and I ran what was then called a pirate bulletin board. We had at the time three computers, an Apple IIgs, a IBM 286, and a Mac we borrowed from school, and we had very different feelings about each.
David & I were loyal to the Apple II platform. That the IIgs was, and it pains me to say this, a flawed and doomed product, made us only more loyal. The IBM was a much better machine, yet cold and generic in a way that meant we never grew attached to it. So we let the IBM ran the BBS, and kept the Apples for ourselves. We named our BBS “Fifth Business,” after the novel, and David and I were the sysops.
Fifth Business was relatively successful. At its pinnacle, we had a fancy 2400 baud modem, about 35 calls a day, and about 40 megabytes of files and games available for our users. It was, in a sense, our dream, yet of course over time, we got bored of it. We barely played the games people uploaded — the only game we really liked was Ultima. It was actually more exciting to be a user, struggling to get ahead, than a sysop, with total power. And so one day, though I don’t quite remember when, we just turned it off, and that was the end of my career as a pirate.
David & I were lawbreakers, and part of this book is part of an effort to understand law-breaking and its effects on legal systems. (My brother, incidentally, is a programmer, and now makes his living creating the kind of software we used to make available for download for his firm, pseudo interactive, publishers of Full Auto. I should ask him how he feels about that.)
So of course the filesharing wars from the 2000s are the unavoidable focus of that discussion. What we describe in the book is what we call the “forest fire” model of legal change. That is the idea that mass waves of lawbreaking are sometimes how the law changes – in the sense that forest fires, while they look scary, can actually keep a forest healthy. Of course if the whole forest burns down that’s not quite so great, but refusing to accept what lawbreaking is saying can eventually lead to even worse results.
The forest fire is just an analogy and may not be such a good one. But it is certainly clear that Napster begat Kazaa, and that Kazaa in turn begat both iTunes and Skype, which have made enormous contributions. Not everyone likes iTunes or Skype for various reasons. But the ability to download songs for a dollar and make calls for nothing. must be counted for something.
None of this, I suggest, would have happened without the challenge to law that came from the Napster in his dormitory. And so what we need to have is a more nuanced idea of what lawbreaking is telling us, what messages its sending. That’s actually the topic for my next book, and I’ll leave it there.
From the window.
My first experience using a chatroom was in 1988. Some group in Toronto, Canada, set up something called the “Free Access Network,” or FAN. It wasn’t really the internet: it was all dialup, with perhaps 100 phone lines or so. And it was, true to the name, free.
FAN was amazing, and still maybe the most addictive thing I’ve experienced in a life with a decent amount of experimentation. After school we’d run home, Lisa, Karen myself, Quaid and others (Onil was always skeptical), 15 year-olds all, and “war-dial” FAN desperately trying to get an open line. I developed a Pavlovian response to the sound of the modem’s carrier - a kind of deep excitment that comes back just by thinking about it.
As an aside, I remember Cory Doctorow, the writer and Boing-Boing editor, well-known to readers here, was also on FAN. Cory and I went to primary school together, and even once colloborated on a short film, but since high school we’d drifted apart. My last memory of Cory on FAN, at the last time I would see him in a decade, was the day Robert Heinlein died, May 8, 1988. Cory, of course, wanted people to quit talking about nonsense and recognize the importance of what had happened.
But back to FAN — what drew us in? There was, of course, flirting, which to a 15-year old has a power not dulled by the drudgery of dating. But, to me, really it was something else — this sense of vastness of opportunity. The feeling, oddly enough, that you can get in the Grand Canyon, or walking around parts of New York City, when you think, who knows what you might find or become. Something about those simple lines of text made the imagination run free, like all the dust at Black Rock City, and I’m still not sure why.
That was how it was — when the internet promised deliverance from the hassles of identity. And when the internet mostly was stuff that took you away from the “real world,” or what sometimes was called “meatspace.”
Where’s that vision, nearly 20 years later? Certainly, some of it is still there, and its maybe better, especially in places like Second Life. Today’s online worlds, have way more users than FAN ever did and get alot deeper. But what’s different is there’s alot, maybe most of the internet usage that’s not really personally transforming or an escape, unless you consider writing responses to eVITE personally fulfilling. Sometimes I feel a little sad about that, sad that email doesn’t have the same thrill it did in 1993 — when “you have mail” felt like getting messages from a burning bush.
What happened over the long run is interesting. The principles of the network’s design, in short, trumped the power of the applications, as compelling as they were. That may seem a subtle point, but one with enormous meaning for how the Net is governed.
Alot of the early apps were indentity-twisting and escapist. That, among things, led to a strong sense that self-governance could handle most problems (as it does on Second Life). That’s even what seemed to be what the Supreme Court had in mind in ACLU v. Reno, or when it called the internet as a “unique medium—known to its users as ‘cyberspace’—located in no particular geographical location but available to anyone.”
But the infrastructure, the basic protocol design, itself never believed in or promoted self-enforcement or independence from law. Instead, it just pushed difference and tolerated diversity. That meant, in time, more replication of realspace activity — banks, ebay, amazon, orbitz. Apps not designed to get away from the real world, but instead trying to improve it. That meant more demand and need for laws to control the effects of what the network had given birth to. That led to what we see in the book: more government involvement, sometimes out of necessity, and for better or for worse.
In short, the framers of the Net maybe might have, but didn’t actually create a Net that would rule itself. They created something that could be anything and many things. And that’s what it has become.
One theme in the book is that an evolving balkanization of the internet is often driven by consumer preference. A good example is the suprising decline in the use of the English language on the Web.
From Ch. 3
The Economist confidently stated in in 1996 that “English may now be impregnable established as the world standard language: an intrinsic part of the global communications revolution.” A New York Times article written the same year, titled “World Wide Web: Three English Words,” asserted that “if you want to take full advantage of the Internet there is only one real way to do it: learn English.”That turned out not to be true. English was dominant at first. But it faded fast. By the end of 2002, less than half of the web pages were still in English, and the flights from English just continued — babelization, if not balkanization.
Today, David Sifry and Ethan Zuckerman write on “the surprising possibility that Japanese may have unseated English as the dominant language of the blogosphere.” According to Sifry’s fascinating survey, ”
Something that may come as a surprise (at least to the English-speaking world) is that English isn’t the biggest language of the blogosphere. In fact, English isn’t even the primary language of one third of all posts that Technorati tracks anymore.If you look at the survey, you’ll notice other oddities too. French accounts for but 2% of technocrati blogging, for example, despite being one of the world’s most widespread languages.
So much for those ten years I spent in French lessons (yet fortunate that I’ve had 3 months of Japanese, kamon).
The New York Times building has a special long hallway where it keeps pictures of reporters who have won pulitzer prizes. Its fun looking at how hair-styles have changed over the years. But most interesting of all is the picture from 1931, the picture of Walter Duranty, to which the Times has physically attached a large disclaimer.
My tour guide, Jenny 8. Lee, told me the story. In the 1930s Walter Duranty was one of America’s most famed reporters. As the New York Times’ Moscow correspondent, he filed vivid stories explaining the growth and meaning of Stalinism to the American people — its differences from Marxism, and the meaning of things like collectivism and the Five Year Plan.
There was just one problem. Relying on official sources, and subject to extensive censorship, Duranty’s stories soft-pedaled — or missed — the brutality of the Stalinist program. Duranty’s dispatches, available online, say things like
Stalin is giving the Russian people—the Russian masses, not Westernized landlords, industrialists bankers and intellectuals, but Russia’s 150,000,000 peasants and workers—what they really want namely, joint effort, communal effort… Stalin does not think of himself as a dictator or an autocrat, but as the guardian of the sacred flame, or ‘party line’ as the Bolsheviki term it, which for want of a better name must be labeled Stalinism.Decades later the New York Times repudiated Duranty’s work. That’s the reason for the disclaimer attached to his picture, which explains that “Times correspondents and others have since largely discredited his coverage.”
Why discuss Duranty? I do so to get at one of the issues that my co-author Jack and I disagree about — namely, whether Google, Yahoo, and other companies should be doing business in China and other censorial countries. Jack, and many others, including the companies themselves, say that the results will be better for everyone: for the companies, for the Chinese people, and for the U.S. and Chinese economies.
I understand the position, and I generally agree with policies of engagement, not isolation. I think if I were in Google’s position, I’d be tempted too — particularly since the .com product is so lousy in China, and Google hates to deliver a second-rate product.
But my reasons for disagreement have less to do with consequence, and more to do with ethics — particularly the ethics of a media company. It seems to me its one thing to supply cars or wheat to a regime that may not live up to the highest standards. But what I think we’ve learned over the years is there’s something about media, and its constant tendency toward corruption that warrants more.
It is the risk captured in the Walter Duranty story, of becoming, without anyone really noticing, an organ of state power and a stooge to Stalinism. Today, what Duranty and search engines in China have this in common is this: They must lie to do their job. We’re not going to give you what would actually be the most popular result. And while some lying can be justified and is normal in the business world, over the long run it seems to me too corrupting for a company whose business is providing information.
One usual answer is that Chinese search engines will gladly take Google’s place. I understand the point but I don’t know what it justifies. If I work at Enron, there may be others willing to shred documents, but does that justify me doing so? Pravda also wrote stories like Duranty’s. But the difference was that people thought the NY Times was news, not propaganda. Similarly, people thought the purpose of search engines was to find out what’s really out there.
Internet content and search companies do not see themselves as media in the ethical sense of that word. They think of themselves as mere instruments, and thereby free from many of the duties that might attach to more traditional companies. I’m not sure that’s right.
Perhaps one day I will be proven wrong, and Google’s entrance into the chinese market will mark a turning point. Perhaps the companies will provide a wedge whereby U.S. government pressure reaches inside China more effectively. But I suspect over the next decade, or maybe decades from now, more will come out that makes colloboration seem as wrong now as it was in the 1930s.
Today I’m scheduled to meet with Dr. Xiong Chengyu, who is one of the personal advisors to Chinese President Hu Jintao for internet & media issues. He is in town to meet with the National Committee on United States-China Relations, among other things.
Here’s what I’m curious to hear about: What Dr. Xiong thinks China’s internet policy is; or what function, exactly the internet does or should play in Chinese society.
In the West, the typical role of a communications infrastructure is spoken of, at an ideal, something that leads to more self-expression, happier people, and more involvement in the nation’s governance. Failing that, it ought at least entertain people and make the country richer.
Observers, myself and our book included, make guesses as to what China’s government sees as the function of the internet in Chinese society. Not all have been, exactly, flattering.
But I am very curious to hear what is said directly, and I’ll let you know what I learn.
Is ICANN a Hobbit? On “unregulation.”
Jack at I were at the Markle Foundation in New York today to speak about the book, and as is so often the case, ICANN and domain name governance came up.
Carol Cosgrove-Sacks, until recently the United Nations’ Director of Trade, asked whether an Internet that increasingly reflects the will of individual nations, as our book suggests, won’t inevitably need a more globally responsive domain name system. In other words, she asked whether, in the long run, ICANN just cannot survive.
Esther Dyson, who happened to be at the event, gave a most interesting response. “Domain name governance” she said (and I paraphrase) “is like the One Ring. You can’t trust anyone with its power.”
While she didn’t say this, ICANN under this logic is basically like a hobbit — an organization too weak to be a threat to anyone.
“ICANN has two things going for it” said Dyson, “it lacks power, and it lacks legitimacy. If ICANN tried to do anything controversial, the U.S., Europe, Japan, and the world internet community would resist and put a stop to it.”
So is that a good enough answer? Is a decent result enough, or does the process matter?
The question is central to our book. In writing Chapter 3 of our book we interviewed, among others, Ira Magaziner — who shed very helpful light on the whole process that lead to ICANN. (Readers may be particularly interested in his discussion of the famous 1998 “show down” with the late Jon Postel.)
The view taken by Magaziner and others in the Administration parallel Dyson’s hobbit thesis. The idea was something like this: the U.S. government needs to step in to prevent regulation of the Internet. Call it “unregulation,” or regulation to stop regulation.
That seems like a paradox, yet for Americans, how you feel about “unregulation” is a key to future debates over the internet and internet policy (it is crucial to the network neutrality issue, as I’ll discuss later this week). In short, given the enormity of government power, our book says that sometimes people will want and need government to keep the internet free from, yes, government, and governments.
More on this as we go on.
Back to Blog - Who Controls the Internet?
Most happy to be here. Mostly, but not entirely, I’ll talk this week about Who Controls the Internet. If you’ve already read the book, I’d love to hear any comments or feedback. The book can be purchased here or at most online or physical bookstores.
Let me introduce the book first. The book is mostly a history of the last ten years of nation-states & the internet. It is an effort to tell the story of the struggle of governments to control the net, and to understand the role played by geography, culture, and physical force in shaping what the network is becoming.
The book chronicles a rise in the use of state power to try to control network conduct. That’s bookended by the Elred v. Reno case on one side, and ends with Yahoo & Google’ capitulation to Chinese demands over the last few years. Along the way, it chronicles slow changes in the architecture of the network driven by local culture and government obsessions, with chapters on Copyright, ICANN, eBay, China, Int’l Law and others.
We have worked hard to make this a story accessible to many readers. Of course many of the readers of this blog are experts in one or another of the topics in the book. But even then, what we’ve tried to do is putting the last 10 years together, and put them in some perspective.
This is the end of my stewardship of the Lessig Blog. It has been a pleasure to meet many of you and I thank you for reading the web-log in Larry’s absence.
For the rest of the year you can find me either on the 7th floor of Columbia Law School, where I am a visiting professor, or back in Charlottesville/Washington DC. My email address can easily be found using a google search, which is probably why I get so much junk mail. I also have a lousy web site which stores much of my written work and other information.
Our next guest is Richard Posner. Mr. Posner works for the federal government, and enjoys writing, oral argument, and demolishing fields of study. He is fond of animals of most stripes and once owned a horse named “King.” Mr. Posner’s favorite film is the critically-maligned comedy Eight Heads in a Duffel Bag. He lives in Chicago.
Please join me in welcoming our guest to what promises to be a very interesting week.
Doug Lichtman is an information law scholar at University of Chicago and one of the best of our generation (I recommend in particular his information platforms piece). He and I agree on many things, but disagree on some too. And when you boil things down, the differences come down to something simple: our views on timing.
Doug believes that property rights are tantamount to government promises. If, say, government promises to grant patents that last 20 years, it needs to stand by those promises to maintain the credibility of the system, and the incentives to invest in it. So even if someone comes along who might make better use of the patented technology, that’s too bad. To use an old phrase, these are rights that are vested.Myself, I am inclined toward anoter position: that the question of who “comes to the nuisance” shouldn’t always matter. Imagine someone wanted to open a restaurant next to your house, and that the restaurant is loud and odiferous. On the one hand, we might say that since the restaurant is ruining the value of your property, you ought be allowed to stop it or ask for damages. That seems to make some sense. But we can reverse the question and ask whether are letting you, the homeowner, ruin the business and social value of the restaurant, just because you got there “first.” For yes there is some value to honoring the promises inherent in property rights, but not a value that always transcends looking for the highest use of a given asset.
The translation of this position into copyright and telecom law is simple. In general, copyright owners were already “there,” and the electronics industry and the Internet came, and began ruining an otherwise peaceful existence. Tivo, for example, comes along and wrecks the value of DVDs sales, something the owners of copyright had counted on. Or, more obviously, uncontrolled P2P filesharing wrecks the value of existing copyrights.
In Doug’s view, the government, to preserve incentives, must stand up for the rights it promised, to whomever it promised first. In my view, that promise is always conditional — and if more valuable uses come later, they should sometimes win out (for Constitutional law buffs, think Charles River Bridge). It may be that values stressed in Doug’s position are more compelling for patents (which are after all, much shorter) and mine for copyright. But in general, how you feel about this question can help explain much of how you feel about law and technological change.
(Thanks also to Washington attorney Matthew Schurers, who also formulates the question this way).
Are certain members of the federal judiciary actually highly intelligent robots?
Technologists are divided in some ways, but united by a common faith. Stated simply, we worship innovation. Openist, deregulationist, libertarian, or cyber-anarchist all take innovation as deliverance. Our battles are mostly internecine warfare, fights about how best to achieve that common goal.
But how often do we ask ourselves: Why? What is the “end” importance of innovation? Is it more than just liking new stuff? How, if at all, does innovation connect with, say, human happiness?
There are certainly some answers to this last question. Joseph Schumpeter, patron saint to the church, gives among the most important. His idea is that constant innovation, and not price competition is what drives growth under capitalism. While thinking capitalism doomed, he nonetheless recognized as its virtue the “process of industrial mutation … that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one.” So if we believe that economic growth is what makes societies happy, promoting innovation can be this way linked to human ends.
Another view runs like this: we are happier if we have reason to believe that the future will be better than the past. Stated simply, ongoing innovation makes us feel that way. When you read about a possible cure for cancer or that cell phone numbers are now portable, you think, one maybe day we’ll be free of disease, premature death, and cell phone extortion. And that feels nice.
Whether people really are happier now than in Ancient Rome or the Han Dynasty is somewhat irrelevant to this belief. We just want to feel like there is some ideal future out there, which we are slowly drifting toward, even if it is not necessarily attainable in this life.
A third, maybe the most obvious answer, is that the stuff invented, like hair-dryers or the electric toothbrush, makes our lives easier and simpler, and hence happier. That’s convincing, particularly in the field of toiletries, and particularly if you’ve spent any time in the developing world.
But what is still missing — what none of these answers do is ask how valuable innovation is compared with other priorities. At its worst, innovationists can beccome obssessed with change for change’s sake, and addicted to the thrill of the new. Which would be fine, except for these days technology policy and public policy have merged. And Wired magazine is hardly Cicerco. A teenage fascination with new stuff isn’t necessarily so great when the happiness of the many are at issue.
Consider a question that professor Brett Fischman asks his class about the internet, the central monument for innovationists: “What actually makes the Internet valuable to society?”
This question stopped me for awhile. Measured in social value, surely some of the oldest applications, like email, relatively untouched by innovation, produce most of the network’s present social value. Sure, I think VoIP over powerlines would be pretty cool (thanks Adam Thierer). But compared to finding old friends, staying in touch, and everything else that email does, there is no serious comparison. Logic like this suggests that faith in innovation is a faith out of touch with human ends. Perhaps making what is obviously useful – like email – reach more people is more important than constantly reinventing, redestroying, or finally writing the perfect debugger.
I do think the criticisms can be rebutted. Email, after all, was an invention, and required the right environment for it to come about. Innovationists don’t always think about nothing else. But those who share a faith in the importance of innovation should be sure that what we fight hardest for is not just the abstract beauty of new technologies, but ideals that actually have some connection to human ends.
So will MGM v. Grokster fasttrack the Induce Act, as many (here Seth F.) think?
Hard to say, but there are some reasons, both from theory and history, to think that it won’t. First, the Grokster decision, by creating a Circuit split, actually creates legal uncertainty that may slow down settlement. Both sides now have a chance to win outright in the Supreme Court. This probably matters more to the electronics industry— with a chance to get everything they want through the Supreme Court, the attraction of settlement decreases.
Second, the story of Sony itself was similar in some ways. During the litigation, both sides had proposed legislation that would have settled Sony with one a various royalty schemes. After Sony came down from the Supreme Court, Sony stopped wanting to negotiate, and the MPAA reevaluated its stance and decided to take a softer line. Now history may not necessarily repeat itself, and Sony the company is a much more reputable player than KaZaA, but that’s the closest parallel.
Third, and finally, particularly if the Court grants cert., Congress may be reluctant to act in the midst of ongoing litigation. Congress likes reversing decisions, as opposed to deciding them itself — that has too much of a “bill of attainder” feeling.
In other words, much in my opinion turns on whether cert. is granted. See previous post.
So the question on Grokster-watchers’ minds: Cert? (For non-lawyers: will the Supreme Court hear this case?)
My guess is yes, for 7 reasons, ranging from the more to less legal:1. These is a stated legal conflict on the Sony standard as between the 7th and 9th Circuits;
2. The 7th and 9th Circuits disagree (albeit in partially in dicta) on the relevance of willful blindness to secondary liability;
3. The Court has these matters in hand: it has granted cert. in many similar cases historically (Sony, 1980s, White-Smith (the Piano Roll case) 1909, Teleprompter and Fortnightly (Cable / Broadcast, 1960s & 1970s);
4. The Court has a vague sense that some far-out stuff is going on in the field of “Computer Law” that maybe it should check out;
5. Law clerks use P2P technology to plan basketball games;
6. JJs. Stevens and Breyer deeply dig this stuff;
And most importantly,7. The Court loves to be the center of attention, and this would make it so.
Grokster has won MGM v. Grokster. (By Grokster I mean “Streamcast & Grokster,” hereinafter)
Analysis
The Ninth Circuit has decided that, on the facts developed, Grokster-style P2P technology is an easy case under Sony. For those unfamiliar with Sony, that decision held VCR manufacturers are not liable for copyright infringement practiced by owners of VCRs. The Court ruling recognized, in other words, that the P2P filesharing technology in programs like KaZaA falls into the same category as typewriters, photocopiers, VCRs, and pencils. All are tools that whose usage is not supervised by the manufacturer, that can be used for both legitimate and illegitimate purposes. All are tools that do not attract copyright liability for the manufacturer.
The opinion turns on facts rather than law. Two crucial factual findings accepted by the Court are basically the case. First, the court concludes that P2P is “capable of substantial non-infringing use”:“A careful examination of the record indicates that there is no genuine issue of material fact as to noninfringing use. Indeed, the Software Distributors submitted numerous declarations by persons who permit their work to be distributed via the software, or use the software to distribute public domain works. [Example of popular band Wilco, who became successful via the P2P music distribution] … In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial non-infringing uses and, therefore, that the Sony-Betamax doctrine applied.”
The second factual matter is whether Grokster “contributed” to infringement by its users. The Court found that Grokster does not provide the “site and facilities” for infringement:
“[Grokster et al.] are not access providers, and they do not provide file storage and index maintenance. Rather, it is the users of the software who … create the network and provide the access.” This, of course, is the major factual distinction from the Napster case, as Napster did provide an index and servers that were the “site and facilities” for infringement.
With these two factual findings in place, victory under Sony follows directly. The design of KaZaA with Napster in mind, and the successful development of these facts by Grokster’s lawyers at the EFF (Fred von Lohmann among them), is why Grokster won.
The court writes with a self-consciousness of the effects of copyright for innovation policy. It, in other words, writes in Silicon Valley language rather than Hollywood. The word “piracy” is not in the opinion, nor is “stealing.” Instead, words that could have been penned by Schumpeter: “the introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through established distribution mechanisms.” Does it matter in the long run if the recording industry is hurt? Not really, suggests the court: “history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karoke machine, or an MP3 player.”
The opinion is not without its weaknesses, particularly with a view to Supreme Court review. The most obvious weakness relates to the “blind eye” or “willful blindness” issue. On one account, Grokster escaped liability because it deliberately created a P2P network over which it had no control over specific file transfers. If it is trivially easy to create a network that makes it easy to stop copyright infringement, cannot Grokster be accused of trying to make an “end run” around the law, or making itself “willfully blind” to the infringements it is contributing to? This is the more important of two crucial differences with the Aimster decision penned by Judge Posner. Posner said in dicta that “One who, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings is held to have [knowledge sufficient for copyright infringement.” Arguably – constructing a system that deliberately left Grokster uninformed and incapable of stopping infringement – is what Grokster did here.
It’s a weakness because the Ninth’s circuit treatment of this issue is cursory: “There is no separate ‘blind eye’ theory or element of vicarious liability…” If this case makes it to the Supreme Court, I would expect everything to turn on this issue. Grokster, of course, can argue that making itself “willfully blind” is actually a better P2P design, and not just a ruse to get around copyright infringement.
But let’s return to the end result. The sale and design of P2P filesharing technology has just been legalized in California. Whether legalizations spreads depends on Supreme Court cert. policy (more on this latter), and that place called Congress and its Act called Induce.
Though raised by scientists, I sometimes find Ouija boards hard to explain. The early advertisements claimed the following:
OUIJA A WONDERFUL TALKING BOARD Interesting and mysterious; surpasses in its results second sight, mind reading, clairvoyance. Proven at patent office before patent was allowed. Price $1.50.
The ad is deceiving. William Fuld’s 1895 patent, admits that it is either through “involutary muscular motions” or “some other agency” that the board answers questions.
So here’s how this week’s topics connect. In response to the Balkanization point, people in commentary have been writing on the need for a better way to overcome language barriers. As Jeff Licquia put it: “One word: Esperanto.”
Believe it or not, the P2P VoIP program Skype happens to offer Esperanto as a language choice.
Skype lets you search for other Esperanto speakers. Do so and you will find listed none other than the great Chris Libertelli, senior legal advisor to Michael Powell.
Result: You can use P2P VoIP to speak to the FCC in esperanto about its approach to digital audio. Isn’t technology wonderful?
Chris Libertelli
Speaking of balkanization and translations, this is what appears to be a double translation of Lessig blog. From English to Japanese and back again, as in:
“If it will not be able to bear to like him, John Perry Barlow is the man who does not separate only in tedious existence.”
“Thierer, The Next Telecom Act - What does Cato want?”
“After [ a cyber-ethics champion ] paddle.”
As my colleague Glen Robinson wrote in the 1990s, the transformation of the FCC from the 1960s-to 1990s was “one of the stunning achievements of modern public policy,” accompanied by “the transformation of a staid and stagnant industry into the most dynamic and rapidly growing industry in the modern economy.” As he argues, it “did not come about through technology alone; it came about by rethinking notions about natural monopoly, economies of scale and scope—concepts near and dear to the ancient regime.”
Where are we today?
The new FCC is still alive: there is much the FCC is trying to do that is visionary and great. But in recent years there’s been serious slippage, enough to call a trend. Today, its as if there are two commissions, in a battle for dominance in Southwest DC.
The first is the “Antitrust-FCC,” and it is as Glen describes. It is deregulatory, generally pro-innovation and willing to act for consumer welfare. Its inspiration is modern antitrust law, and its projects are as follows:
- Spectrum reform. Quiet, but happening in lots of small ways.
- Number portability & do not call. The arguments against these were laughable. The natural followup is the right to buy cell phones that will work on any network.
- The “Network Freedom” agenda, and the threats to cable and DSL to keep the net neutral.
- Broadband policy and intermodal parity — the effort, many times wrecked — to put cable and DSL on an equal playing field.
- Not killing VoIP (so far).
- Encouraging powerline and ultra-wideband.If only that were it. The other is the “Regulator’s FCC,” a flashback to the bad old days of the FCC in the 1950s and 1960s. This one is a pushy, “big government” regulator whose intrusions are numerous, and whose overreaching of statutory mandates are standard practice. It listens too much to the FBI, the RIAA, the MPAA, and the White House. And its projects are these:
- Pseudo-copyright regulation of the electronics industry, including Broadcast Flag, Plug and Play, Digital Audio;
- Overzealous idecency enforcement;
- The IP-enhanced services proceedings (does anyone really understand what the point of these are?).So as I list them here, the good projects outnumber the bad. But the real question is this: which projects get priority, and which are left to lapse?
The fear is that the lessons of the FCC’s own Vietnam — the 1960s — are being lost. And I think it is the duty of people who follow the FCC— particularly the academics who have helped push the FCC toward an antitrust model — to realise this is going on, and not ignore all of this as election-year posturing. It is time to remind the FCC what it says it believes in.
Digital Audio & the Copyright Gap
Witness the Copyright Gap in its full majesty. In the UK, Digital Radio has been live at the BBC for about three years now. As the BBC says, “Digital Audio Broadcasting gives you far greater station choice, better reception & clarity of sound with no re-tuning.”
Yet meanwhile, in the country that invented both the radio station and the transistor, digital radio is stuck. Among other problems, the FCC is contending with the RIAA’s arguments that, absent proper controls, digital radio would be “the perfect storm” for the music industry. Digital radio, the RIAA believes, must be prevented from causing the “enormous damage wrought by peer-to-peer piracy.” On Monday, the RIAA filed a new letter reiterating that the “threat” from digital radio is “real and imminent.”
In addition, anyone who wants to run a digital radio-station through the network as opposed to broadcast is at an immediate disdvantage over those who stay analog or terrestial. A 1995 Act mandates that digital broadcasters pay an additional license fee (for sound recording copyrights) above and beyond the usual fees due ASCAP or BMI. That puts network radio, the technology of the future, at a cost disadvantage. And who gets those extra fees? You guessed it — the RIAA.
So next time you’re wondering why radio isn’t any better: its not the technology that’s the problem.
Economists who study government (public choice theorists) have since the 1970s been interested in the “Loser’s Paradox.” Can it help explain the content of our copyright and telecommunications laws?
Economists have noted that a surprising amount of government support goes to ailing sectors instead of expanding sectors. Classically, agriculture, textiles, clothing, footwear, steel and shipbuilding are the examples of industries on perpetual life support. Each has been in decline for decades, yet get more help from Government than any other. Conversely, expanding industries, like the high-tech industry, rarely if ever receive government assistance. In short, economists conclude, Government picks losers.
There are several explanation for why this is. One, associated with economist Anne Kruger, is that governments have an “identity bias” — they care more about people who lose jobs than people who fail to get jobs. Another, from economists Richard E. Baldwin and Frédéric Robert-Nicoud holds that losers don’t fear market entry and so lobby harder. As a consequence, “it is not that government policy picks losers, it is that losers pick government policy.”
That’s the theory. Can the Loser’s paradox help explain the content of the copyright and telecommunications laws? I’ve long thought so. A crucial thing to understand that its not entertainment or communications that are in decline. People are probably willing to spend as much as they ever were to be entertained. Rather, it is specific technlogies or channels of distribution that are threatened— most clearly, the model of the shiny disk. These declining industries that ceaselessly demand, and get, government protection.
So seeing things this way you can appreciate that there’s not much a conceptual difference between something like the Induce Act on the one hand, and the farm subsidies for corn corners on the other. Each case features an industry that desparately wants to slow the arrival of more competitive rivals. And each are in truth, slowly dying industries whose ongoing decay poisions our economy.
“A lot of people would like to think of whales as philosopher-poets swimming around the oceans thinking deep thoughts, and that is not true,” said Dr. Roger Payne. “But for some reason, people are deeply, deeply impressed by these animals. It may be their size, and grace has something to do with it. But there really is an air of mystery about them.”
The Balkanization of the Internet
So how often do you actually visit sites in other countries? How about in other languages?
If you’re like many users, the answer may “not that often” (apologies to the foreign readers of Lessig Blog). Its a small sign of the Balkanization of the Internet, a process that is happening faster than anyone is noticing. What we once called a global internet is becoming, for many practical purposes, a collection of nation-state networks, still linked by the internet protocol, but for many purposes, separate. Some of the evidence:
- In China, beyond censorship, the amount of actual data flowing in and out as compared to within the country is diminishing. A fairly recent study found 72% of information used to be domestic. And China’s non-IP “169” intranet — think the AOL walled garden turned into a jungle — is getting nearly as large as the actual Chinese internet. And why not — unlike AOL, its 80% cheaper, and has most of the Chinese content.
- Every-improving geolocation software have made big sites like Google national. As Esther Dyson writes of Google, “Google has now significantly upgraded its geographic targeting. When an advertiser buys an AdWord, it can specify geography, not just by city or region as it can now, but by a radius around a specific address or by specific geographic boundaries.” With that kind of precision, Google can easily cater to distinct national interests.
- Australia is considering a country-wide government filter, designed, for now, to keep out hard-core porn.
- Europe’s privacy laws, and cases like this one, make hosting separate web services for Europe a consideration.
- Amercian IP enforcement, as everyone reading this blog knows, makes shielding content from the U.S. markets make sense. Ditto for Australian libel laws.
- Bandwidth differences are hindering inter-connectivity. Countries like S. Korea are largely broadband, while others are mixed, and still others are primarily narrowband. Its tough for narrowband users to access sites in countries that assume broadband.
That this is happening doesn’t answer whether its a good or bad thing. So good, bad, reversable, inevitable? All this happens also to be the subject of my current book, so I’d love to hear it.
UPDATE: From the Comments
“There is significant irony in term used here - balkanization. … In short, internet is maybe the only thing that has not been balkanized in the Balkans.”
-Veljko Kukulj
“The Balkanization of the internet is one of the great things about it…. A healthy internet is not one where netizens click uninterestedly to sites of all the nations, it’s one where netizens participate.” - Branko Collin
“Right now I’d love to be able to visit the BBCs five live channels of Olympic coverage … but the ip^2 walls are preventing us. That’s an interesting story of balkanization in itself.” - James Howison
“[From China] In fact, the ongoing People’s War against Pornography did not rely that much on technology but on email addresses and phone numbers where concerned citizens could complain.” - Fons Tuinstra
If it is true, first, that widespread piracy at some point diminishes the incentives for industry to invest in new works;
And if it is true, second, that piracy is limited to a demographic, say, 15-25 year-olds (perhaps because people older than that are lazy or value their time more);
Won’t the eventual response of industry be to simply begin investing in films like “On Golden Pond,” and music like “Air Supply, Greatest Hits part 6?”
In other words, doesn’t piracy carry its own punishment? (And conversely, doesn’t paying brings its own rewards?) That’s how the rest of the market works — products follow willingness to pay. And if this is right, what are the arguments for government supplementing the punishment?
Take the pledge here.
Ongoing August chatter: what should the Telecom Act of 2006 look like? Below are 6 items and some of the papers making the rounds.
Six Principles
1. Codification of the right to use the the applications and network attachments of one’s choice (otherwise known as Network Neutrality or Network Freedom).
2. Total and final destruction of the vertical regulatory classifications (Title II for common carriers, Title III for wireless, Title IV for cable), replacement with a simple horizontal model.
3. Full and clear preemption of most state and local regulation — ideally, with limited exceptions.
4. Directed spectrum reform — of virtually any kind.
5. Any VoIP rules that don’t kill VoIP.
6. Abandonment of ‘96 Act “Unbundled Network Element” approach to telephony competition — the litigation costs just aren’t worth it.
I’ve left out alot here, but these are what I see as steps forward. Many other issues are battles over the division of existing rents — particularly the battles over voice.
If you want to catch up, some of the papers floating around are:
Richard Witt, A Horizontal Leap Forward
- One of the papers advocating horizontal instead of vertical regulation.Wu, The Broadband Debate, a User’s Guide
- A preview of the positions in broadband.Thierer, The Next Telecom Act
- Testimony on what CATO wants.Yoo, The Economics of Net Neutrality
- Another view on broadband.Werbach, A Spectrum Primer
- On spectrum deregulation.
An interesting question raised by comments: What do self-proclaimed libertarians say about intellectual property laws nowadays, and have things changed since the 1990s?
Whether you like him or he drives you nuts, John Perry Barlow is incapable of being boring. From his interview with Reason, on reality TV, intellectual propetry, and his decision to leave the Republican party:“If all ideas have to be bought, then you have an intellectually regressive system that will assure you have a highly knowledgeable elite and an ignorant mass.”
“I think he’s [Kerry] been in the U.S. Senate long enough to have his backbone dissolved. … But I think Kerry will be somewhat better than Bush, if for no other reason than he is not on the same side in the culture war. Kerry’s a Deadhead. He inhaled.”
“I personally think intellectual property is an oxymoron. Physical objects have a completely different natural economy than intellectual goods. It’s a tricky thing to try to own something that remains in your possession even after you give it to many others.”
“Trying to own intellectual products and creating an economy of scarcity around them as we do with physical objects is very harmful to the development of culture and the ability to speak freely, and a very important principle not talked about much, which is the right to know.”
“There are libertarian wings in both the Democratic and Republican parties, and in the past I found it most effective to be inside the Republican Party acting as a libertarian. But I’ve switched.”
“I’m an optimist. In order to be libertarian, you have to be an optimist. You have to have a benign view of human nature, to believe that human beings left to their own devices are basically good. But I’m not so sure about human institutions.”
Introducing Congressman Rick Boucher
I’m pleased to remind everyone that Congressman Rick Boucher will be running the Lessig Blog this week. Rep. Boucher is a hero to many for his opposition to the DMCA and authorship of the Digital Media Consumer Rights Act. And yes this is a Virginia conspiracy.
I will return next week, and special guest Judge Richard Posner will close out the month, starting August 23. Goodbye till then, and thanks for all the comments and feedback.
As Mark Frauenfelder and others have documented, the Guthrie family and probably Woody himself think the JibJab parody just fine. In the words of Grandaughter Cathy Guthrie (pictured here), “this parody was made for you and me.”But here’s the thing: much of the JibJab Brouhaha was actually caused by a lack of author’s rights….
I’m not speaking heresay: the point is that who controls the rights can matter as much, if not more, than what the rights are. Here, its publisher “The Richmond Organization” (TRO) and not the family, who controls the rights to “This Land.” And Richmond’s reaction was the opposite of Cathy’s: “The damage to the song is huge,” said Kathryn Ostien, director of copyright licensing, because “this puts a completely different spin on the song.” (Why “different spin” = “huge damage” I’m not sure).
Yes, authors and creators can suffer fits of pique that can hurt the markets for secondary works. But their reasons for asserting copyright can be the subject of reasonable disagreement (example, colorized films). All that’s a peppercorn compared to the historic abuses of copyrights controlled by publishers and disseminators.
The present tension between consumers and copyright is predated by a centuries-old war between publishers and authors. Those who read this site ought think carefully about how often the public and authors are actually on the same side.
Substantial Non-Infringing Use
P2PCongress’ plan to provide access to easy P2P distributed archives of Congressional hearings is both useful and a killer example of non-infringing use. Others?
Here’s another alternative to the Induce Act, and there are others out there.
The FCC wants out of copyright
The Broadcast Flag regime is, I think, something of an embarassment for the FCC. Many of the commissioners came to the FCC to deregulate telecommunications law, not to regulate the electronics industry. Yet they find themselves in mission creep mode, issuing command-and-control rules for the design of consumer products, surely prompting some to wonder what exactly they’re fighting for.
Evidence that the FCC’s heart isn’t really in this stuff comes from its approval this week of thirteen distribution technologies, without much fuss. It supports the sense that the Commission wants out.
Of greatest symbolic importance: Approval of Tivo’s TivoGuard system. That’s the technology behind the TivoToGo system, designed to let Tivo users swap shows they’ve recorded, within certain limits. The MPAA and NFL opposed it for the usual reasons - marginal threats to existing revenue streams. Classic rent-protection behavior, and supposedly what the new FCC exists to fight.
Others have said this before, but the FCC plays at copyright at its peril. As many know, the late 1960s was the last time the FCC played copyright cop, and it was perhaps the most embarassing episode in the history of the Commisison. Acting mainly on the advice of the Broadcast industry, the FCC did what it could to sabotage cable TV, in favor of the great technical wonder of UHF. The motto from the FCC’s own Vietnam should have been “never again.” Today, the FCC’s back in the pseudo-copyright game, and it should be looking for a graceful exit strategy.
Here’s the question: What would the Induce Act look like if it balanced the interests of copyright owners and technological innovators? Here’s what: the Inducing Innovation Act.
Comments welcomed, and thanks to all those who helped work on this.
Short Commentary
The goal of this Act is to clarify the scope of secondary and vicarious liability under copyright. Today, pernicious consequences have attended the vague scope of liability under copyright. In some cases, parties as distantly connected to content as credit card companies have been brought into court on copyright infringement charges. Other companies who handle or pass-on copyright content are forced to adopt costly measures for fears of vicarious liability. Companies that design legitimate new electronics or services have very unclear ideas of when they can expect to face liability for the potential acts of their customers.
This Act remedies these problems by making it clear that, as in federal criminal law, only accomplices to copyright infringement are liable for the acts of the principal. Accomplices are defined as those who intentionally aid or command specific acts of copyright infringement. The Act also makes clear that merely knowledge that a product could be used for infringement is not sufficient to create liability. This approach is consistent with the scope of accomplice liability in other areas of the law, and puts industries regulated by copyright on an equal footing with others. The Act further reaffirms the safe harbour for “substantially non-infringining products: from the Sony Betamax case, a case hailed for its role in great pace of information technology growth over the last two decades.
The point of the Act is make it as clear as possible to innovators what they can do to steer clear of copyright liability. It strikes a balance: persons and companies may not serve as intentional accomplices to infringement, but are otherwise free to design legitimate, neutral devices and services without undue liability concerns.
Every so often someone defends, with a straight-face, that which we think undeniably wrong. They say, for example, that the holocaust never happened, or perhaps that slaves actually liked slavery, or that some degree of torture is fine as government policy. Orwell called this ability “Blackwhite,” or “a willingness to say black is white when party discipline demands this.” In its advanced form it leads to “the ability to believe that black is white, and more, to know black is white, and forget that one has ever believed the contrary.”
Michelle Malkin, a journalist, has released a book that is does just this: it defends the eviction and incarceration of more than 70,000 American citizens during World War II. Her book “In Defense of Internment,” takes the position that the Government was right to round up the Japanese then, and Arab-Americans now. The mainstream position that the internment was wrong (expressed in Ronald Reagan’s apology), Malkin attributes to a “conspiracy.”
It is true that, on rare occasion, something everything takes for granted is wrong, like, say, the Bohr model of the Atom. But more often, moral sense is restored by rebuttal —- we remember that black is, in fact, black, and regain our senses. This time sense is restored by this week’s must-read Volokh Conspiracy which features two historians who destroy the book in every aspect. Malkin, it turns out, is more Ahmad Chalabi than Albert Einstein.
As historian Greg Robinson concludes, “Malkin’s book is not a useful work of history, but a polemic that relies for its attraction on sensationalism and overstatement.” Or in the words of Eric Muller, “A person certainly can ‘provoke debate’ (uninformed debate, at least) by going about things in this way. But a person can’t “correct the record” in this way, or report history in a way that anyone ought to believe. It’s just not possible, and it’s not credible.”
But there is more than historical accuracy or the career of a silly journalist at stake. The role of the Constitution in wartime is defined by a consensus that Korematsu was wrongly decided. Thankfully, that consensus is unlikely endangered by this soon-to-be-forgotten leaflet. If you want to be radical, you have to actually be good.
So today copyright scholar Joe Liu at Boston College asked a room full of law professors an interesting question. What did we think copyright would look like in 8 years? Here were some of the main categories of predictions (some contradict):
1. Primarily a criminal regime (remember when copyright was consid