Blog: IP

It may be pure fantasy, but with the unfortunate passing of Democratic Rep. Tom Lantos, a Democrat from mostly San Mateo County (northern Silicon Valley), some folks are suggesting the perfect next Congressman would be Professor Larry Lessig. There's a Draft Lessig Web site and a Facebook group that's up to 1,558 members. Nancy Scola has a good article on TechPresident about why this is not entirely (though almost) farfetched.

The open access movement argues that academic research, especially taxpayer-funded research, should be online and free for everyone to read. Today, many papers go into journals that charge high prices and jealously guard copyrights on this research (despite its being paid for by the public), keeping the information inaccessible to anyone without access to a well-funded university library. The movement is a close sibling to the rest of the copyright reform movement.

Led by Computer Science Professor Stuart Shieber (who happened to be my academic advisor in college, though that didn't mean much), Harvard's FAS is considering a proposal to publish all articles online, unless the author opts out of the system. This is a great step and it's great to see another example of Harvard leading in doing the right thing, opening the door for other universities to follow.

The world of copyright has sunk to a new low: a photographer/blogger excited when people use his pictures without permission, so he can hit them with big fat lawsuits for thousands or tens of thousands of dollars. Ka-ching!

Dan Heller calls this a "windfall" for photographers and offers tips on how to maximize the chance that the infringement counts as "willful", triggering the highest possible damages of $150,000 per image. Public Knowledge calls Heller a "copyright troll", analogous to the "patent trolls" who buy up patents not to build innovative products but to sue everyone in sight.

When a legal system gets out of whack, like the penalties for infringement that lead to a $220,000 judgment for sharing 24 songs, additional consequences are inevitable. Despite the dubious deterrent effect of raising punishments past a certain point, Congress keeps increasing penalties at the behest of the music industry. But copyright law doesn't just apply to music, and citizens are getting caught in the crossfire in many other ways. Maybe we need a different approach.

The December 30th FoxTrot comic hits on the very idea IPac ran with two years ago: sending iPods to Senators. Back in February 2006, Senator Ted Stevens mentioned the iPod he'd gotten for Christmas in a hearing, and to educate Senators on the many legitimate uses of digital technology, IPac launched the Your Senator Needs an iPod campaign.

It was a stunt as much as anything, but it generated awareness of the digital divide between citizens and elected officials who barely understand the technology they are legislating. The humorous nature of the campaign was the very quality played up by Sunday's FoxTrot, in which Jason sends iPods to members of the U.S. Senate this Christmas for exactly the same reason IPac did.

A small excerpt of the comic (click to read the whole thing with punchline):

Earlier this month, Barack Obama released his plan for technology policy at a speech at Google. Larry Lessig immediately endorsed it, and Public Knowledge had lots of praise. Lessig, PK founder Gigi Sohn, and many Silicon Valley executives have been advising Obama, and their positive influence is clear on the plan.

Read more...

Utah law professor John Tehranian released a new paper about copyright starring a hypothetical law professor named John who goes about his everyday life, doing everyday activities—except in imaginary John's world, every copyright holder asserts the right to, and wins, statutory damages every time John infringes copyright. The total bill: $12.45 million.

Read more...

Walt Mossberg of the Wall Street Journal calls out the telephone companies for stifling innovation and limiting consumer choice. The telcos claim that their market is competitive, that they are empowering rather than restricting their customers, but unlike Congress, Mossberg isn't fooled. (Mossberg doesn't receive tens of thousands of dollars in campaign contributions from the telcos.)

A shortsighted and often just plain stupid federal government has allowed itself to be bullied and fooled by a handful of big wireless phone operators for decades now. And the result has been a mobile phone system that ... severely limits consumer choice, stifles innovation, crushes entrepreneurship, and has made the U.S. the laughingstock of the mobile-technology world.

That's why I refer to the big cellphone carriers as the "Soviet ministries." Like the old bureaucracies of communism, they sit athwart the market, breaking the link between the producers of goods and services and the people who use them.

Great framing by Mossberg, and great that someone of his stature is laying out the facts.

Advocates of a completely unregulated broadband ISP market argue that left to its own devices, ISPs will offer the array of products to consumers that best fit consumers' needs at the optimal price points.

Yet for millions of people who live in Comcast's service area, there is only one choice for fast Internet - Comcast. And Comcast gives customers two choices: residential cable Internet for around $60/month, or business Internet for $1500/month. But residential cable has a secret bandwidth limit, and as Consumer Affairs reports, if customers exceed the limit, Comcast cuts them off. Want to pay more for twice the download capacity, like you can on with cell phone minutes? Too bad, no.

Nevertheless, the U.S. Department of Justice believes that everything is peachy keen in Internet land. Art Brodsky of Public Knowledge debunks the DOJ, comparing the range of broadband Internet choices in the U.S. (for most people, that's just one, and for lucky people, two) with the huge array in the UK. The Consumerist arranges it into a nice side by side comparison chart.

Why can't we have a real market with real competition, instead of ideologues like those at the DOJ using "free market" rhetoric to actually stifle the development of an actual free market? Sounds like the people at the DOJ didn't get past the first chapter in their economics textbooks, to the part where it explains how barriers to entry are one of the primary impediments to a healthy market.

We've all sat in a hot, stuffy room, uncomfortable, and know the amazing feeling of a brief gust of wind blowing fresh air into the room, cutting through the muggy feel just briefly before subsiding, leaving us craving more. Last night's Democratic debate felt that way. CNN opened a window - brief, limited, controlled - but they opened it, and the refreshing feel of the outside air tasted so delicious.

I had the opportunity to attend last night's South Carolina Democratic debate in person. The room looked and felt like any other produced, managed television event. The candidates started out rehearsed, giving their prepared sound bites in response to each question. But the questions were real, as were the questioners, and as the debate went on, the candidates changed. Not radically, but they began to respond more directly to the questions. They started talking to the questioners. They resisted when Anderson Cooper tried to force them to discuss trivialities like whether they have chartered campaign planes instead of the real issues of global warming. While of the campaign videos followed tired old campaign commercial patterns, a few were funny and felt genuine.

Television still dominates politics and candidates still speak in a way that will play on TV. Last night was one debate, but cable news continues to fill tens of thousands of hours with content controlled by a small group of journalists. Still, last night, we could see a glimmer of a better way where candidates speak to citizens. Briefly, a gust of fresh air was swirling through that large auditorium. The Internet is blowing this fresh air through the rooms of our politics, our economy, and our culture. Anyone can blog, or sell their own t-shirts, or release their own music.

To some, however, this open economy is scary and dangerous. How can we know which books are good without Barnes and Noble to select them? How can we avoid buying shoddy jewelry or fake silver without the controls retailers have in place? And what will happen to a civilized centrist political consensus when just anyone gets to speak their opinions? To some, the gust of air is chilly and brings in the salty smell of the sea and a whiff of garbage. Maybe conditioned air is best. Maybe we should leave it to the professional HVAC technicians to manage our air.

In the early days of the Internet, you could sign up for access through a service like AOL, Prodigy, or CompuServe, which resembled shopping malls. Each piece of content was carefully selected by editors. Or, you could get direct Internet access, which had enormously more content to read, communities to join, and products to buy, but it also carried spam and other dangers, fooling people into buying worthless penny stocks or giving their bank account numbers to Nigerian scammers. More content and community, because nobody had to ask AOL for permission to be on the Internet. Spam, because even the spammers didn't have to ask permission.

Most of our communications networks work more like AOL than the Internet. Television and cable professionals decide what you see on TV. The cable companies decide what channels to offer. Radio managers choose shows for their stations. And Verizon, Sprint, AT&T and T-Mobile determine which phones to offer and in many cases what applications you are allowed to install on those phones. They want to keep the air clean (according to their standards). You can choose between AT&T and Sprint, between NBC and CBS, and they do compete vigorously, but within a professionally selected range of offerings. Nothing unpredictable, but little participation from citizens and limited innovation from entrepreneurs.

Without the openness of the Internet, we wouldn't be experiencing the tremendous growth of citizen involvement in politics. Without it, we couldn't learn about nearly any subject instantly from Wikipedia – even if the information hasn’t been vetted by gatekeeping Britannica editors. Without it, we couldn't buy all the many hard-to-find products on eBay from around the world – even if they don’t come with corporate guarantees of quality. Without it, millions of people wouldn't be finding love on dating sites – though they occasionally meet sketchy people as well. The market chose the freewheeling Internet model over AOL's controlled "walled garden". Internet access boomed while the managed online services went out of business. Clearly, citizens are willing to be unpredictable and take advantage of open systems. And I believe citizens are able and willing to be their own gatekeepers, which has worked on sites like Craigslist and Digg.

Many of the former gatekeepers are opening up to the idea of opening up, even if begrudgingly. Newspapers are blogging to remain relevant as subscriptions decline. Candidates are competing for supporters on Facebook and MySpace. And CNN is letting citizens write the debate questions. Meanwhile, others are fighting the trend. Many pundits and commentators attack bloggers. Books about the Internet "killing our culture" get widespread attention and praising reviews in the New York Times. The RIAA, according to Rolling Stone, is facing obsolescence because it refused to try to work with the Internet constructively.

So far, the telephone and cable companies are choosing to hold on to old, closed business models. An upcoming auction of new wireless spectrum could follow "open access" principles to create a new wireless network more like the Internet, but Verizon and AT&T so far oppose this. We should give consumers this choice between the current networks and an open one. Net Neutrality is about preserving the ability to choose an open network as new fiber-optic networks replace today's DSL and dial-up modems.

The fresh air of creative citizen participation is starting to blow into Presidential politics through the window CNN opened. And this week, we have an opportunity to open the window in telecommunications as well. Senator Dick Durbin is conducting a series of discussions on OpenLeft.com to make policy by talking to citizens.

The question we ask ourselves when choosing a President is what kind of America we want. The question we must ask ourselves and Senator Durbin is the same - what kind of network do we want? Should we leave it to the professionals to decide what applications we use and what content we see? Or do we want the Internet to keep being open, so anyone can blog or sell products or create the next Amazon or Facebook without permission? Do we want to expand that openness to mobile technology? Or do we want to return to the tight control of the AOL era, or Presidential questions being written by a small panel of Washington elites? I hope Senator Durbin will open the windows. It's awfully stuffy in here.

Originally posted at IPac.

Freakonomics co-author Stephen Dubner poses a thought-provoking question on the Freakonomics Blog: If public libraries didn't exist, could you start one today?

The law protects public libraries, and their right to lend books to people. But the publishing industry doesn't like that it can't control what happens to books after they are bought. Dubner analyzes the pros and cons of libraries from the point of view of the publishing industry: on the one hand, many people can read a book but the author and publisher only sell one copy. On the other hand, libraries foster literacy, expose people to new authors, make reading accessible to the poor, etc.

Dubner writes, "Perhaps they'd come up with a licensing agreement: the book costs $20 to own, with an additional $2 per year for every year beyond Year 1 it's in circulation. I'm sure there would be a lot of other potential arrangements. And I am just as sure that, like a lot of systems that evolve over time, the library system is one that, if it were being built from scratch today, would have a very different set of dynamics and economics."

Or, perhaps libraries wouldn't exist at all. We know from experience that content industries often don't act in their own long-term best interest. The RIAA shot itself in the foot with its unwillingness to find a profitable way to allow filesharing; authors and book publishers are suing Google for making it easy for people to find their books, even though the users can't read more than a few lines of copyrighted books without permission. So let's assume public libraries are good (and I believe they are) - unfortunately, we couldn't count on the publishing industry to make it possible for them to exist.

The publishers might insist on too much revenue, in an attempt to protect their margins on existing books, even at the cost of the public good and their own long-term success. This is similar to the way the recording industry is trying to kill Internet radio with royalty fees so high almost no stations could continue operating, or the way Verizon squelches wireless innovation because they won't allow applications on their phones unless they make significant profit.

The movie industry would have stopped the VCR if it could have, afraid that home video would cut into theater profits. It did, but they ultimately more than offset the loss with video rentals and sales. We have every reason to think that publishers would do the same to libraries if the first libraries were forming today.

IP laws give one participant in a market - the content rightsholder - complete monopoly power over that market. Sometimes that's the only way to make a market work so creators get compensation. But often, it just means that the market fails entirely. If we don't give the monopoly holders everything they want, sometimes that's best for them in the long run. Or maybe it's just good enough for them, while the public greatly benefits.