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Election 2008: What Might Go Wrong

November 3, 2008 by

Tomorrow, as everyone knows, is Election Day in the U.S. With all the controversy over electronic voting, and the anticipated high turnout, what can we expect to see? What problems might be looming? Here are my predictions.

Long lines to vote: Polling places will be strained by the number of voters. In some places the wait will be long – especially where voting requires the use of machines. Many voters will be willing and able to wait, but some will have to leave without casting votes. Polls will be kept open late, and results will be reported later than expected, because of long lines.

Registration problems: Quite a few voters will arrive at the polling place to find that they are not on the voter rolls, because of official error, or problems with voter registration databases, or simply because the voter went to the wrong polling place. New voters will be especially likely to have such problems. Voters who think they should be on the rolls in a polling place can file provisional ballots there. Afterward, officials must judge whether each provisional voter was in fact eligible, a time-consuming process which, given the relative flood of provisional ballots, will strain official resources.

Voting machine problems: Electronic voting machines will fail somewhere. This is virtually inevitable, given the sheer number of machines and polling places, the variety of voting machines, and the often poor reliability and security engineering of the machines. If we’re lucky, the problems can be addressed using a paper trail or other records. If not, we’ll have a mess on our hands.

How serious the mess might be depends on how close the election is. If the margin of victory is large, as some polls suggest it may be, then it will be easy to write off problems as “minor” and move on to the next stage in our collective political life. If the election is close, we could see a big fight. The worse case is an ultra-close election like in 2000, with long lines, provisional ballots, or voting machine failures putting the outcome in doubt.

Regardless of what happens on Election Day, the next day — Wednesday, November 5 — will be a good time to get started on improving the next election. We have made some progress since 2004 and 2006. If we keep working, our future elections can be better and safer than this one.

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Federal Circuit Reins in Business Method Patents

October 31, 2008 by

This has been a big year for patent law in the technology industry. A few weeks ago I wrote about the Supreme Court’s Quanta v. LG decision. Now the United States Court of Appeals for the Federal Circuit, which has jurisdiction over all patent appeals, has handed down a landmark ruling in the case of In Re Bilski. The case dealt with the validity of patents on business methods, and a number of public interest organizations had filed amicus briefs. I offer my take on the decision in a story for Ars Technica. In a nutshell, the Federal Circuit rejected the patent application at issue in the case and signaled a newfound skepticism of “business method” patents.

The decision is surprising because the Federal Circuit has until recently been strongly in favor of expanding patent rights. During the 1990s, it handed down its Alappat and State Street decisions, which gave a green light to patents on software and business methods, two categories of innovation that had traditionally been regarded as ineligible for patent protection. Even as the evidence mounted earlier this decade that these patents were hindering, rather than promoting, technological innovation, the Federal Circuit showed no sign of backing down.

Now, however, the Federal Circuit’s attitude seems to have changed. The biggest factor, I suspect, is that after a quarter century of ignoring patent law, the Supreme Court has handed down a series of unanimous decisions overturning Federal Circuit precedents and harshly criticizing the court’s permissive patent jurisprudence. That, combined with the avalanche of bad press, seems to have convinced the Federal Circuit that the standards for patenting needed to be tightened up.

However, as Ben Klemens writes, Bilski is the start of an argument about the patentability of abtract inventions, not its end. The Federal Circuit formally abandoned the extremely permissive standard it established in State Street, reverting to the Supreme Court’s rule that an invention must be tied to a specific machine or a transformation of matter. But it deferred until future decisions the precise details of how closely an idea has to be tied to a specific machine in order to be eligible for patentability. We know, for example, that a software algorithm (which is ultimately just a string of 1s and 0s) cannot be patented. But what if I take that string of 1s and 0s and write it onto a hard drive, which certainly is a machine. Does this idea-machine hybrid become a patentable invention? As Ben points out, we don’t know because the Federal Circuit explicitly deferred this question to future cases.

Still, there are a lot of hopeful signs here for those of us who would like to see an end to patents on software and business methods. The decision looks in some detail at the Supreme Court’s trio of software patent cases from the late 1970s and early 1980s, and seems conscious of the disconnect between those decisions and the Federal Circuit’s more recent precedents. Software and business method patents have developed a lot of institutional inertia over the last 15 years, so we’re unlikely to see a return to the rule that software and business methods are never patentable. But it’s safe to say that it’s going to start getting a lot harder to obtain patents on software and business methods.

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DMCA Week: Predictions Are Hard, Especially about the Future

October 30, 2008 by

My previous post on DVD jukeboxes has prompted an interesting discussion among our commenters. There seems to be a lively difference of opinion about how useful a DVD jukebox would be, what it would look like, and who would use it. Personally, I had envisioned a high-end video device that DVD collectors would buy to help them organize their libraries. But some commenters pointed out something I hadn’t thought of: a DVD jukebox—either a set-top device or a portable one—would be a godsend to parents with small children. Children not only like to watch the same video repeatedly, but they’re also far more likely to damage a DVD. Having a sealed, rugged hard drive on which to store a few dozen of junior’s favorite movies seems like it would be extremely convenient.

Of course, I don’t really know. Maybe parents already have devices that fill this need. Maybe the devices would be too expensive or too fragile. But that’s why we have markets: so people can try things to see what works.

It’s worth remembering that new technologies almost always wind up having a “killer app” that their creators didn’t expect. The creators of the Internet didn’t have email in mind, but it was the dominant Internet application by the mid-70s. Visicalc, the first spreadsheet, wasn’t on Steve Wozniak’s radar when he built the Apple II. And Apple didn’t invent podcasting, although they were smart enough to jump on the bandwagon relatively quickly once other people did.

None of these applications could have been developed if the technologies on which they relied hadn’t already been created. But if you’d tried to explain what the Internet, the microcomputer, or the MP3 player was good for before you could create the first one, you wouldn’t have been able to make a very convincing argument. I think the same is true of the kind of products we’d see if DVD ripping were legal. I’m pretty confident that we’d have some useful new technologies, but I can’t say exactly what they’d be.

This is one of the reasons I think DMCA supporters are wrong to point to the DMCA’s triennial review process as mitigating the DMCA’s negative effect on technological progress. The triennial process requires entrepreneurs to explain in advance how a given act of circumvention will benefit society. If we’d held the inventors of the Internet, the personal computer, or the MP3 player to that standard, we might not have any of those technologies.

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Wikipedia as a Public Good

October 30, 2008 by

My post about Wikipedia and public goods prompted an interesting response from Judd Antin at Berkeley’s School of Information. He makes a number of sharp points, but let me focus on this response to the idea that free-riders don’t hurt Wikipedia:

This completely depends on what your goal is. On the one hand, sure, once you reach critical mass, the marginal cost of providing the good is zero (or near-zero), so who cares how many free-riders there are. On the other hand, there are lots of benefits to adding to the group of contributors. Wikipedia isn’t perfect – not even close. It’s wrong on a lot of topics. It’s poorly written in many places. It’s skewed heavily towards CS and popular culture, and away from things like history and literature. There’s a lot to be gained for Wikipedia by converting free-riders to contributors. And let’s not foget about the many, many systems that never get to critical mass.

Notice the background assumption in this passage that the numbers of free-riders and contributors are inversely correlated. That is, it assumes that each free-rider is in some sense detracting from the overall effort by failing to contribute. And it suggests that a better-designed institution might be able to convert more of those free-riders into contributors and thereby increase the total value of the public good that’s being provided.

The problem with this, I think, is that it gets the sign of the correlation between free-riders and contributors backwards. That is, on the Internet, the potential audience is so enormous that the most effective way to get more contributors is to increase the total number of users. For Wikipedia, there isn’t so much a “free-riding problem” as there is a “free-riding opportunity”: the more free-riders there are, the easier it will be to recruit new contributors down the road.

Antin also seems to be under the impression that I’m suggesting that we need to “rethink 100 years of theory” about public goods, which is certainly not the case. Standard arguments about public good problems work perfectly well for in cases like national defense and clean air, and I’m certainly not suggesting that we need to re-think those cases. My claim is simply that the standard model (and especially the focus on free riding) just isn’t a helpful way to think about online content creation, a public goods problem with dramatically different characteristics from clean air or national defense.

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DMCA Week: A second orphan works problem?

October 29, 2008 by

The orphan works problem in copyright is real and serious. Several congressional hearings and a Copyright Office inquiry that drew hundreds of thoughtful comments—not to mention countless articles and blog posts—attest to that fact. This attention is heartening, and while orphan works legislation seems to have died this year, I’m optimistic that the next Congress will address the issue. As is often the case in Washington, however, such a victory might only mark the beginning of the next battle. The way I see it, the DMCA might create a second orphan works problem.

As you may know, an orphan work is a work under copyright the owner of which cannot be found. For example, say you come across a self-published political manifesto from 1967 in a Berkley archive or garage sale. You’d like to excerpt extensively from it in a book you’re writing about the Summer of Love. You try every possible avenue to locate the pamphlet’s author to get persmission, but you fail. That manifesto is an orphan work: it’s under copyright, but you can’t find the copyright’s owner.

The problem with orphan works is that if you nevertheless use the work without getting permission from the owner, you expose yourself to an infringement lawsuit if the owner later appears. Because statutory damages can run as high as $150,000 per infringing use, most orphan works go unused. This is a loss not only to the potential user, but also to society at large because it will be deprived of the promotion of science that would have resulted from a derivative work. Perhaps worse, an orphan work might be lost altogether because making an archival copy—say from fragile film to a more stable digital format—can be considered an infringement.

I have previously proposed a solution to the orphan works problem that would create an orphan works affirmative defense to infringement similar to fair use. Under this scheme, if you could show that you took every reasonable step to find a copyright owner and came up empty, you would not be liable for infringement. The Copyright Office made a similar recommendation, but instead of serving as a defense, showing a reasonable search for the copyright holder would merely limit the possible penalties for infringement. A bill based on that recommendation passed the Senate in September but never got a vote in the House before it adjourned earlier this month.

So what does this all have to do with the DMCA? My concern is this: Even if a strong orphan works bill were to pass Congress so that one would no longer have to worry about liability for copyright infringement, the work might still be unusable if in order to gain access to it one had to circumvent a technological measure in violation of the DMCA.

This is not a far-fetched idea. The Internet Archive has already successfully argued for a DMCA exemption for “Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive.” It needed this exemption to legally preserve legacy software stored on fragile floppy discs. Without that exemption, it would violate the DMCA even if it did not violate copyright.

You can see this problem presenting itself again. For example, the Prelinger Archive serves to collect and preserve ephemeral films of historical significance. According to its web site, “Included are films produced by and for many hundreds of important US corporations, nonprofit organizations, trade associations, community and interest groups, and educational institutions.” Today its collection is composed largely of videotapes and films, but there will come a time when one-of-a-kind movies will be on CSS-protected DVDs. Similarly, Amazon recently introduced its Digital Text Platform, which allows users to self-publish books that can be purchased and read on the Kindle. This means that there will soon be many books that will exist only as DRM-protected e-books. Therefore, even if we address the orphan works problem so that a user must no longer fear a surprise infringement suit from a previously impossible-to-find copyright holder, the user might still fear a DMCA suit.

The triennial exemption process provided in the DMCA will likely not provide sufficient relief because the Copyright Office is limited to exempting particular “class[es] of copyrighted works.” Just as it has refused to exempt “fair use works” because that is not a “sufficient” or “cognizable” class, the Copyright Office probably won’t recognize orphan works as a class that can be exempt. The sort of classes it will recognize will be very narrow, such as the one in the “obsolete video game or software” exemption. Not only is this exemption for one particular type of work, but it only applies to circumventions made for archival purposes.

Additionally, as Tim Lee points out to me, another way the DMCA might exacerbate the orphan works problem is by preventing the conversion of works into open and widely supported formats—the digital equivalent of what Prelinger is trying to do with film. Most of the proprietary DRMed formats we see around us today are likely to drop out of commercial use within the next couple of decades. As a result, people will gradually forget how to read those formats at all. By 2108, even if the DMCA has been reformed, no one may have any clue how to decrypt a PlaysForSure-encrypted audio file from 2002. Digital libraries in the near future need to be able to say “Boy, this format isn’t commercially supported any more, we’re going to convert it to MP3/MPEG/PDF so our patrons can continue enjoying it.” If they’re not allowed to do that, DMCA reform in the distant future may not matter.

I’m afraid I don’t have a ready solution short of abolishing or limiting the DMCA. One approach might be to include a limit to DMCA liability in the proposed orphan works legislation. However, I wouldn’t want to endanger that legislation’s political viability to address what is still a speculative problem. It won’t be long, however, before we find out if DMCA protections cause a second orphan works problem, metastasizing the harm visited on culture and society by that regrettable law.

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