December 9, 2022

Archives for August 2004

Online Principles

Susan Crawford recently proposed a list of “online principles” to guide development of the online world. Seth Finkelstein comments, “Been there, done that, doesn’t work”; but John Palfrey counters that Susan’s effort is worthwhile.

Surely it’s worthwhile for almost any group to spend at least a tiny fraction of its time talking about its overall goals and principles, especially where (as here) that discussion doesn’t crowd out the pragmatic problem-solving the group needs to thrive.

But Seth is right that past attempts to define online principles have often gone off the rails. One reason is that they have lost their connection to the Net and have devolved into general attempts to redesign society as a whole. And while society as a whole could surely be improved, its structure reflects a subtle set of compromises resulting from centuries of struggle, which are unlikely to be forgotten because of the Internet’s arrival.

The starting point, then, for devising online principles must be to ask how the online world differs from the traditional offline world. Internet exceptionalism is not the answer, because the Net doesn’t change everything. We need to focus instead on specific things it does change, and devise principles for dealing with them.

UPDATE (3:10 PM): Don’t miss Hal’s insightful comment.

State AGs Warn P2P Vendors

Yesterday, the National Association of [state] Attorneys General sent a letter to P2P United, a trade association of peer-to-peer vendors, chiding the P2P industry for fostering porn, spyware, and copyright infringement. Though the letter does make a few good points, overall it’s an embarrassment to the attorneys general.

For starters, the letter contains some real howlers. Here’s the worst:

Furthermore, P2P file sharing technology can allow its users to access the files of other users, even when the computer is “off” if the computer itself is connected to the Internet via broadband.

Here’s another:

Market forces and technological limitations of the Internet (e.g. the need to pay for web space and bandwidth) have combined to make peer-to-peer software a more attractive alternative to the Internet as a means of disseminating pornography.

Some of the other arguments in the letter betray a similarly naive view of technology. For example, the letter urges P2P vendors to use image-based filtering to block pornographic content; but image-based filtering is known to be ridiculously ineffective at distinguishing porn from non-porn content.

I could go on at length, but I won’t. You can read Ernest Miller’s point-by-point response to the letter if you like.

Despite its many errors, the letter does make two good points. The first is that some P2P software automatically, by default, shares files from users’ hard drives. This is a dangerous practice, since it leads unsuspecting users to share files that might contain private information. The second good point is that some P2P vendors have bundled spyware into their products, thereby tricking their users into accepting surveillance of their activities. If the P2P companies really have their customers’ best interests at heart, they will stop these two practices.

As for the attorneys general, they obviously have a few things to learn about technology.

Lawprofs Predict Future of Copyright Law

Tim Wu, guest-blogging over at Larry Lessig’s site, reports:

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 considered civil law?)
2. Focused on control of the design of hardware & software (in the model of the Broadcast Flag) to prevent infringement ex ante;
3. A regime dedicated to preserving the retail market and revenue streams for 4 discs: (CDs, DVDs, Software CDs, and Video-Game CDs), having given up on nearly everything else;
4. Made in WIPO or the FCC as often as the U.S. Congress;
5. Gone (not a good bet).

This list is interesting in several ways. (1) There’s no mention of alternative compensation systems. I would have expected them to rank, at least, above the no-copyright outcome. (2) The first option, copyright as a criminal regime, seems implausible, given the limited prosecutorial resources available. How much of our public law-enforcement resources will we really be willing to spend to defend copyright? Will this become another drug war? (3) The presence of the second item, copyright as regulation of technology design, is disconcerting. As I have written at length before, such a policy would be a major drag on innovation, while failing to prevent infringement. The lawprofs are not endorsing this outcome but are merely predicting it; but the fact that they find it likely is troubling. (4) The fourth item, copyright law being made in the bodies like the FCC and WIPO rather than in Congress, may already be happening. And it’s bad news. Lately, pro-innovation forces have had reasonable success in influencing Congress, and less success with other bodies.

UPDATE (August 6): Tim Wu writes, in a comment below, that the lawprofs did in fact discuss alternative compensation systems.

Kerry and Copyright

Tim Wu, guest-blogging on Larry Lessig’s site, asks hypothetically whether President Kerry would veto the Induce Act. Tim, quoting some vague pro-technology language from Kerry’s website, suggests that Kerry might veto the Act.

This is wishful thinking. The fact is that the record of Kerry, and the Democrats in general, on the copyright/innovation issue is not good at all. Consider, for instance, the 2002 Senate hearing on the Hollings CBDTPA, in which Intel’s Les Vadasz faced a phalanx of entertainment-industry witnesses. According to Declan McCullagh’s Wired News story, the committee’s Democrats, including Kerry, spoke in favor of the dangerous CBDTPA bill, while Republicans were more skeptical. (I attended the hearing, and my memory is consistent with Declan’s story.)

Many people here in the copyright/innovation blogosphere are enthusiastic Democrats. It’s only natural to project your good policy ideas onto the politicians you support, and skilled politicians helpfully provide boilerplate policy language to help supporters do this.

If you’re on the pro-innovation side of the copyright wars, though, most of your natural allies on these issues are Republicans. Your arguments – against regulation, and in favor of market solutions rather than government picking winners – will resonate better on the political right than on the left. And so far, Republicans (with the exception of Orrin Hatch) have been better on these issues than Democrats. True, neither party has been good on this issue; but the Republicans have not been nearly as bad, and they seem more amenable to persuasion.

So if you’re pro-innovation, and you want to go beyond complaining to actually change things in Washington, then my advice is to take a conservative to lunch, and explain why they should support your side of the copyright battles.

As to John Kerry, by all means encourage him to change his mind and make a clear statement of principle on this issue. But don’t hold your breath waiting for that to happen.