D. Lowery on copyright infringement: How to alienate potential allies through intellectual dishonesty, illustrated by example

Young people's cavalier attitude towards copyright infringement is maddening, but this essay by D. Lowery comprehensively misunderstands what the Free Culture movement stands for. The guy repeatedly slams Free Culture but apparently has read neither Lessig's book Free Culture which gives the movement its name, nor the Creative Commons website, even though he links to a PDF of CC's tax filing.  This intellectually irresponsible ignorance makes me disinclined to be sympathetic to him.

Furthermore Lowery seems to have no conception whatsoever of:

• The purpose of copyright law: viz., to ensure the production of the creative and useful arts. Note that there seems to be just a bit of culture being produced on the Internet these days, so the burden of proof is on those who want to lock the Internet down.
• The costs and unintended consequences of reorganizing society in the ways that he prefers — so that service providers must implement comprehensive preemptive review of what is posted, or so that it would be dramatically easier for people to issue takedown notices on content published on the Internet. For example, Lowery's blog is hosted on Wordpress.com; comprehensively applied human review as a mandatory requirement for hosting service providers would have made Wordpress impossible in its current form; and dramatically easier takedown would make it trivial for a random troll to censor Lowery's blog post in a fit of pique.

...among other things.

Note that I buy or rent all my music and movies.  Almost nobody else I know does this consistently.  I did not illegally download the second season of Game of Thrones; I am waiting for it to come out on disc.  Mostly, the people I know seem to view me as sort of a sucker, but I do this because I view copyright infringement on entertainment media as beneath my dignity, like shoplifting.*  If my reaction to Lowery is to get extremely pissed off at his cavalier disregard for the truth, perhaps he should consider changing tactics.

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*Of course, purely as a matter of utilitarian ethics, there is a huge difference between copyright infringement and shoplifting physical goods, but never mind that; this is just how it makes me feel, in this particular case.

In which Kevin Drum walks in wearing clown shoes, a clown nose, and a floppy wig, and is taken seriously

So Kevin Drum wrote something ridiculous about copy protection, and Tim Lee and others (see the comment thread) have tried to write thoughtful responses. But this is superfluous. Drum's original post is ignorant, arrogant, and insulting. Drum lazily handwaves away the multi-decades-long failed boondoggle of technological copyright enforcement, and the combined opinions of practically all subject matter experts who are not directly employed by the publishing oligopolies. He does not attempt to refute the evidence; in fact he does not even engage with it. Along the way he manages to sneak in some snide insults for the people who made general-purpose computers (like the one he is typing on) the incredible instruments of human creativity that they are today. What makes anyone think that a mere presentation of further evidence and argument are going to sway him?

Scientifically, the proposition that technological copyright enforcement can dramatically reduce infringement without severe and costly restrictions on liberty is in the same ballpark as climate change denial and cures for homosexuality. I could explain the implications of the Church-Turing thesis very patiently, in very small words, but frankly it strikes me as rather like reading aloud to a student who's not only too lazy to read the book, but too lazy to crack open the Cliffs Notes.

And I would add that this whole business looks very different when (as is the case for many in Silicon Valley) people in your extended social network have had startups or products crushed by errant IP law. Furthermore consider that countless engineer-years have been wasted dreaming up and implementing fruitless schemes like DVD CSS; however they were financially compensated, those are real and concrete wasted human lives. (Counting that production as economic output is rather like a broken windows fallacy in which the window never gets fixed, but the guy who broke the window gets paid.) The publishing oligopolies demand the satisfaction of their fantasies, and engineers pay the price in sweat and tears. Against all this, consider the extremely weak empirical evidence for large-scale harms from digital copyright infringement.

Drum strikes me as the moral equivalent of a priest reassuring his lord that the farmers ought to be all-too-happy to be taxed a few more bushels of grain to burn to the sky gods. Of course it costs him nothing to utter those words, so he can afford to be unbelievably cavalier. But this type of behavior should not command our respect.

The state of Kindle backups and data portability, February 2010

I recently plugged my Kindle into my workstation's USB port for the first time. In ordinary operation, there's no need whatsoever to do this, but I wanted to try backing up my ebooks. Also, since writing this I wanted to confirm my suspicion that the current Amazon DRM scheme is more akin to Apple's FairPlay "speed bump" than a serious playback control technology.

In short, it is.

The Kindle connects as an ordinary USB mass storage device with a simple folder structure, containing four root-level directories:

• Audible: audio ebooks? (empty in my case)
• documents: ebooks
• music (empty in my case)
• system: Not exactly what it sounds like — it doesn't actually contain the operating system, only auxiliary data files used by system software. I suppose it's sensible enough not to let some clueless user bork their OS by accidentally dragging this file to the trash. (I suspect that there's a backdoor code that will mount the OS/firmware as well; at least, that's how I'd design this device if I were a developer and wanted to debug it.)

For each ebook, the documents folder contains at least one .azw, .azw1, or .tpz file, and usually a .mbp or .tan file that stores some auxiliary data. Your "clippings" file (containing excerpts that you highlight or note) is stored as a plain .txt file (yay).

Free samples and free public domain ebooks from Amazon are not DRM-restricted. Purchased books, of course, are.

Incidentally, no technology in the Kindle device prevents copying. As noted, the Kindle mounts as an ordinary USB mass storage device, and it is inherent in the filesystem abstraction that you can do simple things like copy the entire contents of the documents folder onto your hard drive. You can do it once or a thousand times, and no technology even tries to stop you. This is an inherent function of the type of device that Amazon has made.

What the files' DRM prevents, in theory, is "playing back" the files' content on some other device after it has been copied. But of course, it doesn't really do that in practice. Without going into details, there are downloadable programs on the Internet, widely available in source and executable forms, which can extract the contents of a restricted AZW file.*

So, in short, it's trivial for you to back up your ebook library. If you're a programmer, it's also pretty easy to write a script that will harvest your entire ebook library, shuck off the obnoxious DRM enclosure, and transcode the contents into some other format. Nontechnical users, unfortunately, don't have easy access to the DRM removal/transcoding step, although this may change as the transcoding software matures and distribution channels route around the legal jurisdictions where this software is banned.

Anyway, as I wrote in my earlier post, I'm hoping that the content production cartels will eventually realize that DRM serves Amazon's interests, not theirs, and abandon even the "speed bump" DRM currently in place. In the meantime, I've found that the value of having a dozen unread books in my bag at any given time, and being able to buy and read a book instantly at midnight on a Sunday, is sufficiently huge that I'm willing to make the compromise.**

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*Even if this weren't true, people determined to infringe copyright for monetary or other gain will do so. DRM does not prevent the widespread, willful, uncompensated distribution of copyrighted content. The only thing that DRM does is prevent legitimate paying customers from getting the value from their books that they have been promised by electronic booksellers' use of the phrase "buy this book".

**A compromise, incidentally, that I was never willing to make with iTunes DRM. I suppose that the value I get in my life from reading greatly exceeds the value I get from music.

Electronic goods markets: end-to-end wins?

Hypothesis: As industries of cultural production adapt to digital distribution, content publishers in each industry will follow, with minor variations, the four-phase pattern set by the music industry:

1. Denial: Publishers pretend that digital distribution does not exist, attempting to salvage business models based on distribution of physical media. In some cases, publishers use the legal system to try to make this fantasy a reality. Regardless of the legal outcomes, this proves unsustainable in the long run. During this phase, publishers may make halfhearted forays into digital publishing, which invariably fail because they are deeply and deliberately user-hostile.
2. Faustian Bargain: A technology company designs a system which disguises computers' fundamentally general nature with a fig leaf of DRM. The disguise allows this company to strike a deal with major content publishing cartels to distribute content. Because a technology company has taken control of the technology, the system finally works in a way that doesn't make customers want to tear their hair out. The DRM system fails to prevent widespread copyright infringement, but it provides a hook for the technology company to build a vertically integrated stack which is somewhat inconvenient for customers to exit.
3. Clash of the Titans: Publishers realize that they are in a weakening bargaining position with respect to the technology company, which has acquired considerable monopsony power due to its control of the platform. Publishers butt heads with the technology company over prices and other contractual terms. This, too, proves unsustainable.
4. End-to-End Wins: Publishers realize that architectures which embed control in the distribution mechanism put more power in the hands of middlemen than endpoints. Conversely, end-to-end architectures, wherein the endpoints negotiate the transaction and any number of interchangeable mechanisms carry data between them on a best-effort basis, place power in the hands of endpoints rather than middlemen. Publishers furthermore realize that publishers and customers are the endpoints; that in the long run both are best served when the customer can purchase a bundle of data which is not bound (even weakly) to the sales channel, the software stack, or the physical device, all of which are intermediaries between the content and the customer. Publishers finally offer their content in a portable format via multiple sales channels.

This is just a hypothesis. I'm not sure I believe it. However, as evidence that expecting the final stage is not laughably utopian, I offer Sony and Warner's deals with eMusic and the introduction of MP3s on iTunes as evidence that stage 4 is already happening for music.

Detailed application of the above model to current hoopla in the e-book market left as an exercise to the reader. However, I will note that one reason I bought a Kindle is that I thought book publishers were so ornery, retrograde, and technophobic that they'd never progress to stage 4 unless they had an obnoxious would-be monopsonist (viz., Amazon) to frighten them through stage 3.

(A counterpoint to the above argument would be to observe that certain goods, like streaming video and computer games, appear to be evolving in the direction of fairly strong architectures of control. Neither Netflix streaming nor Steam give you much freedom w.r.t. your "purchase". It's unclear whether this means their respective markets haven't progressed far enough yet, or there's something fundamentally different about these media.)

Software patents have tangible costs for innovation, and for you

I have a friend who's been working extremely hard on a small software startup for the past few years. He and his partner developed a genuinely innovative, original technology which solves a useful problem for end-users and probably has significant commercial value. The technology has been integrated into a website that is awesomely functional and and even fun to use. (I'd point you there, except that I'm going to discuss legal matters shortly and I think it's better not to identify the parties by name.)

His startup recently got sued for patent infringement by a company that independently developed a product that performs a vaguely similar function. This other company's product is much less sophisticated, and their user-facing site is an ugly, user-hostile pile of crap. The term "search arbitrage" would be a kind word to apply to this other company's product. And there is absolutely no sense in which my friend's work builds on any of this other company's technology.

Now, my friend and his partner have consulted multiple IP lawyers and they've said, "Yep, the law is probably on your side." They have also said, "You're still screwed." The trial would take forever, the legal fees would be ruinous, and in the meantime nobody will invest in a company which has a litigation cloud hanging over it.

So, this sucks for my friend and his partner. More importantly, this sucks for you, because, having seen the product, I am 100% convinced that you, or someone you know, would love to have this technology acquired and integrated into a major site that you use.

This sort of story is not at all uncommon in the software industry. I've been meaning to tell it for a couple of weeks now, because it made me think of this post by Tim Lee about "libertarian political philosopher" Richard Epstein's bold claim in an amicus brief* that:

The credible threat of a published patent’s right to exclude acts like a beacon in the dark, drawing to itself all those interested in the patented subject matter. This beacon effect motivates those diverse actors to interact with one another and with the patentee, starting conversations among the relevant parties.

In response, Tim writes:

There’s nothing beacon-like about software patents. Software companies do not use patents as a mechanism for finding technologies or business partners. Patents tend to be written in unintelligible legalese, they’re not well indexed, and they issue years after they’re filed. They’re completely irrelevant to the day-to-day process of product development in the software industry. I’ve never met a software developer who regards the patent database as a useful source of information about software inventions, nor can I think of an example of a software company (Intellectual Ventures doesn’t count) that uses patents as a central part of its product-development strategy.

Completely true, except that Tim does not go nearly far enough. At any software company with competent legal counsel, developers are instructed in the strongest possible terms never, ever to look at a patent, because the tiniest amount of documented influence could be used as ammunition in a lawsuit. The only time a sane software developer reads a patent is when your company's lawyers specifically ask you to help them prove you're not infringing on one. If you ever get wind that there's a patent even vaguely related to your work, you stick your fingers in your ears and run in the other direction. In short, software patents facilitate "conversation" about as well as poison gas bombs do.

One thing that I find extremely frustrating about many legal scholars' and economists' approach to patents is that they make two false assumptions. The first assumption is that transaction costs are acceptable, or can be made so with some modest reforms. The second assumption is that patent litigation is reasonably "precise"; i.e., if you don't infringe on something then you'll be able to build useful technology and bring it to market relatively unhindered. As my friend's story shows, both of these assumptions are laughably false. I mean, just black-is-white, up-is-down, slavery-is-freedom, we-have-always-been-at-war-with-Eastasia false.

The end result is that our patent system encourages "land grab" behavior which could practically serve as the dictionary definition of rent-seeking. The closest analogy is to a conquistador planting a flag on a random outcropping of rock at the tip of some peninsula, and then saying "I claim all this land for Spain", and then the entire Western hemisphere allegedly becomes the property of the Spanish crown. This is a theory of property that's light-years away from any Lockean notion of mixing your labor with the land or any Smithian notion of promoting economic efficiency. And yet it's the state of the law for software patents. Your business plan can literally be to build a half-assed implementation of some straightforward idea (or, in the case of Intellectual Ventures, don't build it at all), file a patent, and subsequently sue the pants off anybody who comes anywhere near the turf you've claimed. And if they do come near your turf, regardless of how much of their own sweat and blood they put into their independent invention, the legal system's going go off under them like a land mine.

It is hard to think of a more effective mechanism for discouraging innovation in software. I mean, I suppose you could plant a plastic explosive rigged to a random number generator under the seats of every software developer, and that would be slightly worse.

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* To be fair, the amicus brief is not completely Epstein's work; it is the sworn work of one Dr. Ananda Chakrabarty and coauthored with lawyer F. Scott Kieff. I don't really know how these things work, but I assume that Epstein agrees with the argument laid out even if he's not the lone progenitor of it.

When do people prefer unauthorized copies? (a few hypotheses)

T. Cowen points out that the people downloaded more unauthorized copies* of Resident Evil: Extinction than any other movie, making "most illicitly copied" a dubious proxy for actual popularity.

Here are several hypotheses on what media people are likely to copy without authorization (I'm sure that others have suggested these same hypotheses before):

Guilty pleasures

If you would feel ashamed to admit paying for something, you're more likely to download a free copy of it. Also, most legitimately purchased media have a visible footprint in either the physical or virtual world: anyone who looks can see the DVD box on your shelf or the movie download in your iTunes collection. But for unauthorized copies, the only footprint is a movie file tucked away in some corner of your hard drive. Normally, the signaling aspect of a media purchase is a feature, but for guilty pleasures, it's the opposite.

Low-quality media

Media companies sell basically all media of a certain type for a similar price (e.g., about $17 for a new film on DVD). Possibly this is due to fundamental fixed costs of production (a DVD costs $X to digitally master and $Y per unit to manufacture, transport, and warehouse); possibly it's because of social processes (the studio exec managing film X projected $Y margin per unit at retail, and cannot release it at a lower margin without losing status within the company). Regardless, when a product is of exceptionally low quality, more people will see the dollar price as unwarranted, and they will be more willing to spend time seeking out unauthorized copies (see the next point).

Youth culture

Young people have more time than money, and a large appetite for media (more time to watch movies when you don't have a full-time job, children, or other responsibilities). Obtaining an unauthorized copy of something requires a trade of time for money.

Low-availability media

If a media product is difficult to obtain via authorized channels --- for example, if a product is not available for sale in your country, but is available overseas --- then you are more likely to seek out an unauthorized copy.

Improperly bundled products

If a media product is an aggregation of many separable parts, some of which are much more desirable than the others, then people are more likely to seek out an unauthorized copy of the parts they like.

I've never seen Resident Evil: Extinction, but I'm pretty sure that it falls squarely at the intersection of the first three of the above categories. Anecdotally, I think that many people know someone who would never pay for a Britney Spears album but has some kind of lame excuse for having a few tracks on their iPod.

The above hypotheses have several corollaries.

First, if unauthorized copying truly reduces returns to creators so much that it discourages creative output, then overpriced crap aimed at adolescents and young adults will be the first to go.

Second, media companies can reduce the amount of unauthorized copying by a variety of straightforward means, including:

• Reduce the price of crappy products. (Duh.)
• Offer very low-cost versions of media that require a time investment. For example, offer a low-cost subscription service where you must play a game for a certain amount of time (think World of Moviecraft) in order to obtain a download of a media product. Consumers who value time over money will still buy the DVD. Consumers who value money over time will play the game.
• Sell "brown sleeve" versions of guilty pleasures. Sell junky movies and music in a disposable cardboard sleeve instead of a DVD keep case or CD jewel case with album art. Or even sell them in deceptive packaging: reverse the cover insert for your Resident Evil DVD, and it can look like some depressing and obscure Swedish existentialist art film that nobody will ever want to pull off the shelf.

* I refuse to use the term "pirated", as it trivializes actual piracy (the sailing-ships kind), and blurs the important distinctions between different forms of intellectual property infringement.

.sft: A proposal for software patent reform

As follows:

1. Software companies that wish to protect their intellectual property register with a new ICANN gTLD, .sft.
2. A .sft receives "IP points" every time it produces a "significant" software innovation. For example, every time a .sft publishes a peer-reviewed paper in a major computer science conference, that .sft gets 100 IP points.
3. Any .sft may "sue" another .sft at any time, for any reason, for any quantity of money.
4. Lawsuits are settled by best-of-7 tournaments of StarCraft. A .sft's designated StarCraft player ("IP lawyer") starts each match with a bonus quantity of minerals, Vespene gas, and peons determined by a time-weighted function of the .sft's IP points. The victor wins a fraction of their client's requested damages determined by the ratio of their buildings razed, units constructed, etc. vs. their opponents'.
5. IP lawyers may play Protoss, Terran, Zerg, or random race, at their discretion.

The merits of this reform are obvious. Much like patent law, StarCraft is governed by a system of arcane rules that are mostly irrelevant to the actual process of writing innovative software. Much like patent law, StarCraft's rules can only be mastered by a caste of professionals whose expertise is honed over years of practice. Unlike the legal system, however, StarCraft is swift, decisive, objective, and exquisitely balanced for fairness. Any minor loss in the quality of judgment on the margin would be overwhelmed by the reduced transaction costs of the system as a whole.

I can already hear the objections of the closed-minded, and I will respond to them in turn.

• Q: You're introducing perverse incentives. Companies with better StarCraft players will beat companies who write better software!
  A: Paying for quality StarCraft players would simply be a cost of doing business, no different from hiring secretaries or accountants or paying your electric bill. Even though the market value of Starcraft skills would temporarily skyrocket, StarCraft does not have a government-sanctioned professional guild that artificially limits the labor supply, so in the long run the cost would still be lower than for ordinary lawyers. Anyway, if some company hires bad StarCraft players, the management's incompetent and the company deserves to lose in the marketplace, regardless of how innovative their software developers are.
• Q: What's to stop the emergence of "IP trolls" who never innovate, but hire a lot of expert StarCraft players to sue everyone?
  A: First, only companies with substantial independent revenue streams would be able to compensate StarCraft players well enough to attract really good ones. Second, beyond a certain point, the bonus resources granted by accumulated IP points would produce an overwhelming advantage for companies that produce innovation.
• Q: Wouldn't this give an unstoppable advantage to software firms in South Korea, which has an impressive national lead in competitive StarCraft talent?
  A: So what? The international distribution of firms holding technology-related patents in the past two decades has not been even remotely equal. Established United States firms like IBM and Microsoft hold vast patent portfolios, dwarfing those of firms in developing nations, and WIPO has been aggressively working to bring developing nations under First World IP regimes. Yet the software industry remains steadfastly innovative around the globe. Over time, other nations would earn IP points and develop local StarCraft talent, evening the score. In any case, freezing the rules over an unequal or even larcenous initial distribution is the very essence of property: if a Native American robber breaks into your home and takes your television, will you refrain from pressing charges when he's arrested?
• Q: Your proposal permits any .sft to sue any other .sft, without any basis for infringement. That's absurd!
  A: Under the present system, lawsuits claiming intellectual property infringement can drag on for years and cost millions of dollars even if the plaintiff never specifies exactly what was infringed upon. By permitting any .sft to challenge any other .sft, we remove the fig leaf of "cause of action", which (let's face it) is mostly just embarrassing. Also, as noted above, .sft lawsuits would be swift and decisive, so the transaction costs would be low even for frivolous lawsuits. That said, I am not completely opposed to a ladder system, to save highly skilled lawyers from being constantly challenged by lowbies.
• Q: IP points would give an unstoppable advantage to entrenched encumbents with deep IP portfolios. What's to stop them from suing everyone?
  A: Under the present patent system, IBM, Microsoft, or any number of other entrenched players with deep patent portfolios could hypothetically destroy the entire software industry in a convulsive paroxysm of lawsuits. Yet they choose not to, because suing everyone in the industry would result in "mutually assured destruction": everyone would countersue everyone else and everyone would lose. I see no reason that .sft lawsuits would be any different.
• Q: What's to stop incumbents from suing little startups that have lower-tier StarCraft players and few IP points?
  A: Startups today usually have small to nonexistent patent portfolios, but big companies don't find it worth their time to sue them because they also have very few assets worth confiscating. As a startup grows more successful and its pockets get deeper, it should be able to afford to hire StarCraft talent and accumulate IP points, just as companies today accumulate patents and other IP as they grow bigger.
• Q: The software industry's incredibly innovative to date, and your reform would bring it under a radically new legal regime. How can you be sure it won't stifle innovation?
  A: How can you be sure it will stifle innovation? There's ZERO evidence that it would. Imagine if we'd listened to such naysayers back when software patents were proposed. Don't you think the burden of proof is on the opponents of regulation, rather than on the proponents?
• Q: StarCraft 2 is coming out soon. How does that affect your proposal?
  A: StarCraft 2 is currently an unknown quantity, whereas Starcraft is a classic that has withstood the test of time. That said, we should keep an open mind about the gameplay innovations, and if they prove to be successful I am not opposed to adopting the sequel someday. For one thing, the improved graphical sophistication would make lawsuits more entertaining for bystanders to watch.
• Q: Halo would be more exciting than Starcraft.
  A: Fuck off, frat boy.

"Advance review copy: Not for resale" --- my ass

Rosina Lippi points to an irate discussion at a romance novel fansite called "Smart Bitches, Trashy Books": a couple of authors are mad that reviewers are reselling the free "advance review copies" that authors send them.

My reaction: get real, control freaks. Authors have no legal standing whatsoever for preventing reviewers from reselling advance review copies --- as authors and publishers know perfectly well, otherwise they'd be tracking down these reviewers and suing them. An advance review copy is a gift, i.e. a transfer of property, not a license for use. If providers of review copies were serious about controlling redistribution, they would do what people do when they really want to control how something is used, and make the reviewers sign a contract before mailing them copies. And no, a notice inside the book saying "NOT FOR RESALE" does not qualify as a contract, for any number of reasons that a lawyer could explain to you in great detail.

OK, so authors have no legal standing for preventing resale of advance review copies. What about the reviewer's ethical obligations?

My reaction: What ethical obligations? The review copy showed up one day in the reviewer's mailbox. The reviewer didn't ask for it, and certainly didn't promise to engage in any particular behavior with respect to it. If the reviewer doesn't feel like keeping it, then she has exactly the same ethical obligation towards the book as she does towards a supermarket circular or a credit card offer or any other piece of unsolicited junk mail that appears in her mailbox. It so happens that, unlike most junk mail, some advance review copies have economic value, and can be disposed of by selling on eBay, rather than by tossing into the shredder or writing "RETURN TO SENDER" on the package and dropping it in the mailbox. More power to the reviewer.

Advance review copies are gifts. The recipient of a gift has no particular obligations w.r.t. the giver. That is the nature of a gift. And, in fact, authors want advance review copies to be gifts. They are quite happy to take advantage of the properties of gift-giving, such as the fact that gift-giving does not require prior consent or up-front costs for the reviewer. An author who requires reviewers to pay for copies or to sign contracts isn't going to get very many reviews, so authors choose the regime of gift-giving rather than the regime of market exchange or contractual negotiation. The authors complaining at SB/TB, having chosen gift-giving because of certain advantages it affords, are now upset because other consequences of gift-giving are biting them in the ass. Tough cookies, bitches. There are good reasons that unsolicited gifts don't come with ethical obligations attached.

Now, I wouldn't be posting about this at all, except that it strikes me that there's a common thread running between the notion that authors have a right to control redistribution of advance review copies, and the notion that record companies have a right to tell you what devices you're allowed to play your music on, and the notion that the guardians of Nabokov's estate have the right to prevent the publication of Lo's Diary. In all these cases, somebody holds an intellectual property right in a piece of information, and somehow believes that this entitles him/her to essentially unlimited control over what happens to any embodiment of that information. There's a deeply vainglorious sense of entitlement here that just makes me angry.

Every act of creativity draws from a rich oceanic well of human culture and achievement, built up over thousands of years, that the creator never asked permission to use. Most of the people who shaped and transmitted that culture are dead and anonymous and were never compensated for their role in building that culture: retelling the folk tales that populate our cultural subconscious, or inventing the vivid turns of phrase that give our language its flavor, or keeping the memory of certain arts and crafts alive by practicing them. For most of these people, creativity was an inevitable corollary of being alive, not a professional activity for which they needed to be compensated. And you come along, draw up a bucket from this well, and use that to invent one more story, write one more song, draw one more picture, and all of a sudden you think that you have a moral right to impinge arbitrarily on the property rights of everyone else in the world, now and forever? Step off, son. Redistribution of legally acquired copies, fair use, and production of substantially transformative derivative works are all perfectly justified activities. Your feelings may be hurt, or you may make less money than you would if your rights were unlimited, or you may be aesthetically offended, but none of these give you moral standing to stop other people's exercise of their rights.

Flavors of intellectual property, and the Kansas NAS/NSTA affair

PZ Meyers points to Jennifer Granick's WIRED News editorial on the NAS and NSTA's decision to deny Kansas permission to incorporate NAS/NSTA science teaching standards into the state curriculum. It seems the NAS/NSTA doesn't want Kansas to use their materials to help implement the state's ridiculous curricular choices on biology and evolution.

A number of people have expressed mixed feelings about this. PZ ultimately comes down on the side of the NAS/NSTA. Donna Wentworth at Copyfight takes the opposite position. My reaction's straightforward: the NAS/NSTA's motives are good, but their actions are wrong, and copyright's not the appropriate legal mechanism for their purposes. Therefore, I believe the NAS/NSTA should let the goofballs in Kansas Board of Ed. use their materials. Furthermore, I believe the law should allow Kansas to do so, regardless of what the NAS and NSTA choose. While I'm wishing, I believe that Kansas should toss those clowns off its Board of Ed. Well, reality disappoints me in manifold ways, but that's nothing new.

Let's consider why some people might consideer the NAS/NSTA justified here. PZ suggests that NAS/NSTA are trying to prevent adulteration and misrepresentation of their work:

What the Kansas school board has done is to take a legitimate set of science standards, and patched in odd little bits of anti-science nonsense here and there, and called that their science curriculum. NAS and NSTA are merely saying, "Hold it! You don't get to trade off our name as scientific institutions and label that monstrosity 'Science'!"

However, it's not clear to me that the Kansas State Board of Ed. is actually representing their curriculum as consistent with NAS/NSTA's views. In fact, they're probably not --- as Granick writes:

NAS and NSTA do not have to endorse the Kansas Board of Education's decision to teach intelligent design. The theory isn't supported by science, and Kansas should not be able to imply that teaching it comports with NAS or NSTA standards. United States trademark law would certainly prohibit Kansas from claiming NAS or NSTA approval for its alternative curriculum.

If Kansas were to claim or imply that the NAS and NSTA endorse the Kansas science curriculum's shoddy science --- or even sow confusion about whether they do --- then NAS and NSTA would be within their legal rights to stop this trademark infringement.

In other words, to the extent that the NAS/NSTA have a legitimate legal interest here, it's in protecting the integrity of their names. This class of problems is covered by trademark law. Markets, whether in goods or information, work best when actors have "perfect information", which includes knowing the truthful past history of actors. Trademark law protects markets from the confusion that would result if one could muddy the waters around a name.

But NAS/NSTA aren't invoking trademark law. They're invoking copyright, which is a completely different kind of intellectual property. The purpose of copyright law is to provide an incentive to produce novel works, by allowing a creator to capture some of the work's economic value.

Copyright accomplishes this value-capture by granting the creator a limited, transferable monopoly on copies and derivative works. This seems like a fine mechanism for capturing economic value for the creator. But under current law, copyright's limited monopoly includes a veto power on whether derivative works can be created at all.

In my opinion, this is completely wrong. Copyright should never grant the author control over whether a derivative work is made, only on how the value from those works gets distributed. First, I don't believe creators have any moral right to prohibit derivative works, regardless of those works' nature. Second, in the US, intellectual property law's purpose is not to protect creators' moral rights, but to "promote the progress of the useful arts". Therefore, I believe derivative works should always be permitted, even where the uses involved far exceed traditional "fair uses", so long as the following conditions are satisfied:

1. The creator of the derivative work does not create confusion as to the authorship and provenance of the work and its elements.
2. The creator of the original work receives fair compensation for the dilution of that work's economic value, if any significant dilution occurs.

Obviously, in this case, the NAS and NSTA couldn't care less about economic value. Their invocation of copyright is in no way about preserving the incentive for them to continue producing teaching standards. It is about preventing the creation of a derivative work. And in the general case, preventing derivative work creation does not "promote the progress of the useful arts" (except indirectly and by accident, which isn't a principled basis for designing law).

Of course, I'm hardly a fan of so-called Intelligent Design, and none of the above exonerates, in any way, the Kansas School Board of Ed., which richly deserves all the contempt that has been heaped upon them.

Authors Guild demonstrates technological illiteracy

The Authors Guild is suing Google for attempting to innova--- er, for copyright infringement. If you've been reading this blog for a while, you already know my opinion on the subject. I hereby call for all Authors Guild members either to denounce the actions of their organization, or to stop using all web search engines, or confess to being complete hypocrites. Those are the only options.

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UPDATE 22 Sept.: As usual, Lawrence Lessig says it better than I could.

M. Schwimmer's post-Grokster law exam question

Best blog post today (via Copyfight): Martin Schwimmer's Trademark Blog has a law school exam question:

Client is computer and software vendor. It wishes to introduce its new computer featuring a CD-RW drive and MP3 management software with the advertising slogan: "Rip, Mix, Burn Your Own Custom Music CDs."

Client is a consumer electronics manufacturer. It invents a video recording device. It wishes to say in its advertising that its product allows the user to 'build a library' of his or her favorite shows.

Clients ask you if the advertising actively induces infringement.

IMO the very fact that these are hard questions reveals that the Supremes' ruling on Grokster wasn't nearly as favorable towards innovation as some people (e.g., Kevin Drum, simultaneously wrong and supercilious as usual) have been implying.

Related: SCOTUSblog sub-page for Grokster; previous post/link roundup on Grokster.

SCOTUS kills Grokster

BoingBoing has the most complete link rundown so far. My initial reaction was: "OK, now I know for certain that the Supreme Court is a bunch of hacks whose judgment gets warped by proximity to monied interests." However, the full picture, as Copyfight points out, may be more nuanced than that. I'll reserve judgment till I see how the legal community reacts.

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UPDATE(S) (28 June): More links...

• Ed Felten has some very believable predictions for the future, and notes on the Supreme Court's odd ideas about acceptable business models for software companies.
• Nathan Newman sees a parallel between this case and the Ten Commandments case.
• USACM (the policy arm of the nation's premier computer science professional organization) has a press release on its blog. They seem relatively pleased, since the ruling appears to leave technologists per se in the clear.
• Eric Goldman's big link roundup
• Copyfight has many, many posts, all interesting:
  • "Thou Shalt Not 'Ster"
  • Wall Street's reaction to Grokster
  • Whither Movies?
  • What's Inducement?
  • Grokster Q&A with Gigi Sohn
  • more, more...
• Fred von Lohmann: "Supreme Court Sows Uncertainty"
• Ernest Miller on: RIAA/MPAA press conference, plus yet another link roundup, plus notes on the possible future of open source and Sony.
• BoingBoing: Grokster press conference audio
• William Patry claims: "The Court Punts"
• Cory Doctorow's severely disappointed.

Peter Givler: Stupidity about copyright on a massive scale

So, Google wants to make every book in the world searchable, by digitizing them; and some publishers are mad:

At issue is whether Google Print for Libraries, the company's plan to digitize the collections of some of the country's major university libraries, infringes the copyrights of the authors of many books in those collections. . . .

In a letter to Google dated Friday, the details of which were first reported by BusinessWeek on Monday, Peter Givler, executive director of the press association, said that Google Print for Libraries "appears to involve systematic infringement of copyright on a massive scale."

I have one question for Peter Givler: How, exactly, do you think Google makes the web searchable?

Here's a hint: Google does not, contrary to what Givler may believe, have an infinite army of monkeys who click around in their web browsers looking for your phrase when you hit "Google Search". That would be pretty cool, but alas, infinite monkey armies are in short supply, and also monkeys can't read. Instead, Google has a copy of the entire web on its servers, indexed for fast retrieval based on content and link structure. Actually, Google keeps many, many copies of the entire web on its servers, just as every web search engine has done since hoary old Altavista. And almost all of this material is technically under copyright --- so does Peter Givler believe that Google's web index constitutes "systematic infringement of copyright on a massive scale"? If so, is he willing to urge all members of the Association of American University Presses to boycott all Web search engines, since, after all, it would be immoral and hypocritical for them to patronize a service that so flagrantly disrespects copyright?

I mean, if you use arithmetic similar to that employed by the RIAA/MPAA in similar circumstances, the aggregate value of all the infringing copies of the web on web search engines must be staggering --- hundreds of billions of dollars at least, per copy. In fact, if you added up the value of all the "infringing" copies made by web search providers, then it would probably exceed the total monetary value of everything ever produced by every member of the AAUP by several orders of magnitude.

But, of course, the RIAA/MPAA's arithmetic is nonsense, and so is Peter Givler's allegation. Sorry, but building a digital, searchable, full-text index of every book is no more illegal than building a web search engine; or, for that matter, building a library card catalog.

Word of the Month: Catospheric!

For several years, aerospace consultant Joanne McNeil has had a harmless and rather quiet blog; I don't remember how or when it got onto my roll, but there it is. One of the minor features of her blog is a list of links to people who are, or once were, associated with the Cato Institute; this link list was humbly titled the "Catosphere".

Today my RSS reader delivered to me news that some clueless consultant sent her a nastygram because her use of "Catosphere" allegedly infringes on the service mark of some other service with the same name. Being more clueful than said consultant, and hating obnoxious intellectual property land grabs as much as I do, I did a bit of homework and responded. McNeil's usage appears to predate this consultant's use of the word "Catosphere" by at least six months.

In the words of Jay-Z, "I ain't passed the bar, but I know a little bit/Enough that you won't illegally search my shit", and one funny thing about U.S. service mark law is that the legal theory is based on protecting the market from confusion. Therefore, the strength of one's case w.r.t. protecting a right in a service mark is based, in part, on whether the target market understands the mark to refer to your product and not your competitor's. Now, "Catosphere" is a sufficiently rare string that, in all probability, summer 2004 would have turned up J. McNeil's blog as the top hit on search engines. So McNeil has at least one defense, on the grounds that prior to this consultant's appropriation of her mark, "Catosphere" arguably referred to the think tank and/or McNeil's link list, not the consultant's service, and it is the consultant who's sowing confusion and not McNeil. Indeed, even after significant self-promotion by this consultant, Google's rank for "Catosphere" still places McNeil in the top 20.

But we're not done yet. We can weaken the consultant's case even further by reinforcing the rightful and original usage of the word "Catosphere". The first step, of course, is to link to McNeil's blog using the word Catosphere as the link text.

The second step is to use "Catosphere" and variants thereof in a sentence; for example:

• "The Catosphere holds some brilliant people in its orbit, but a lot of the outlying satellites are complete duds like creationism apologist Steve Milloy.
• "That article's naïve faith in markets was positively Catospheric! Doesn't the author realize that a market is just a peculiar distributed genetic algorithm, and one that only offers bounded approximations of optimality in highly restricted circumstances?"
• "Ohhhh, snap! That's Catospheric!"

Third, we can sign up for, and use, del.ico.us to categorize a whole mess of links under catosphere.

Fourth, along the same lines, we can categorize all Cato or Cato-related links on our blogs under "Catosphere", using Technorati tags; for example:

---

UPDATE 28 July 2005: We interrupt this old post to bring you the following announcement: my original understanding of Technorati tags was totally incorrect. I should have read the spec more carefully. This post has been updated to reflect my new understanding.

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[Catosphere]

The following code generates the above link:

<a href="http://technorati.com/tag/catosphere" rel="tag">Catosphere</a>

The rel="tag" part indicates that this link is a tag, and the href="http://technorati.com/tag/catosphere" part indicates that we're using the Technorati tag namespace with the tag name "catosphere".

Here's a few more random, non-tagged links (I'd do more, but I don't want to trip Google's spam detection):

[ Catosphere Catosphere Catosphere Catosphere ]

Lastly, we should point out that the proprietor of Catosphere.com is guilty of employing a link farmer, i.e. "search engine optimization" service, as this screen cap demonstrates. Normal web pages simply do not generate links like that. Well, Google hates automated link farming with a passion --- they view it as a form of spam, which it is --- so if anybody at Google is out there reading...

(As far as this post goes, I plead innocent of link farming, as I am creating a collection of links that add informative value to the Internet's link graph, as opposed to just promoting an individual entity.)

Expect to see a relatively large number of Cato-related posts in the next month.

Moral of Today's Story: unless you've got mountains of money to burn on lawyers, playing the whuffie economy will serve you better than cracking the whip of IP law.

NYT and WaPo drop ball on Grokster

The Grokster case makes for infuriating/exciting times in the land of intellectual property. Both NYTimes and WaPo have come down on the wrong side of the case, and in both cases the editorial was so poorly reasoned that I have difficulty understanding what's going on.

The NYTimes and WaPo editorials both amount to the same argument: that Grokster is different from previous "infringement-enabling" technologies like the printing press, the photocopier, and the VCR because Grokster is designed to facilitate "theft". This statement is plainly false: Grokster is a content-neutral technology, just like the Web, just like the VCR, just like the photocopier and the printing press. Grokster carries whatever bits its users put on the network. The only evidence that Grokster was designed to facilitate "theft" is that some substantial fraction of existing traffic does, in fact, consist of copyright infringement. But look at the history of the VCR, the photocopier, and the printing press, and you can see that infringement was always a major (if not predominant) use early in the technology's history. But gradually, some combination of laws and social norms brought the usage back into balance again. The Grokster case is about preemptively banning certain technologies before they are even brought into market, before that balance can be found.

I literally cannot understand --- I cannot understand, it does not compute --- how any disinterested and thoughtful person could honestly make the arguments that NYTimes and WaPo are making.

So, if reason's not the driving force here, I can only conclude that social-network-based groupthink plays a role. The editors of the NYTimes and WaPo move in social circles where they work with, play golf with, have dinner with, etc., people in influential positions in the big media conglomerates. Bill Keller, and other top editors at major newspapers, do not socialize with Richard Stallman or Lawrence Lessig; they socialize with people who write, promote, or distribute books, magazines, movies, television shows, and music. And so by social osmosis, they absorb the mindset and values of these people, and not the mindset of people who actually, you know, understand the technology and the law.

It's a sad and cynical conclusion to draw, and I would love to be proven wrong, but it's the only one I can draw when these editorials contain such ridiculous tripe.

Time to root for Microsoft

Court awards $520+ million victory over Microsoft to Eolas; the latter claims it owns a patent on the idea of a web browser plug-in. Riiight. Here's the patent, filed October 17, 1994; excerpts from the abstract:

A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects. The user may select the program object from the screen. Once selected the program object executes on the user's (client) computer or may execute on a remote server or additional remote computers in a distributed processing arrangement. After launching the program object, the user is able to interact with the object as the invention provides for ongoing interprocess communication between the application object (program) and the browser program. ...

Oh, give me a break. Here's what this jargon-laden hot air basically says:

"You've got a web browser, right? Now you can load program extensions into it."

But the notion of extensible software is practically as old as programming. Whenever you develop any kind of application or platform, the obvious next step is to make it extensible. See: Emacs Lisp, Photoshop plugins, CGI, and more research papers than I can list, all of which predate Eolas's patent.

The only novel aspect of this system is the fact that it downloads content over a wide-area network. However, a patent does not have to be novel, useful, or non-obvious; it has to be novel, useful, and non-obvious. And if you're familiar with both the web and extensible software, the idea of combining them is completely obvious. The invention of the web would not justify a patent on "Method and Apparatus for Tying Your Shoelaces in a Web Browser", or (despite one local company's claims) "Method and Apparatus for Pushing a Button in a Web Browser". Nor does it justify a patent on "Method and Apparatus for Loading Program Extensions in a Web Browser", which is what this patent amounts to.

Notice, furthermore, that the patent's assignee is the Regents of the University of California. According to recent articles in the California Aggie and Forbes, Michael D. Doyle, CEO of Eolas (and first inventor on the patent filing), was a professor at UC San Francisco when he developed the technology. No doubt the other two authors were co-workers or students at UCSF. So, let's see if I've got this right:

1. Taxpayers paid for Doyle et al. to develop a tweak on web browser technology, a tweak so trivially obvious that it was independently developed by several other groups around the same time.
2. Doyle et al. succeed in patenting this "invention", and spin off a company based on this taxpayer-funded development.
3. Years later, Doyle et al. sue Microsoft and make vague threats w.r.t. other companies developing browsers.
4. Court awards Doyle et al. $520+ million; if paid, the award will be shared with the University of California, but a healthy chunk will go to the "inventors", while the public pays the real price: chilling effects on browser development everywhere.

Yet another boneheaded outcome of our present patent law system.

Eolas claims it will "probably" not go after Free Software projects. But this abstention is not a matter of principle --- it's just because projects like Mozilla and KDE don't have Microsoft's deep pockets. Furthermore, there's nothing to stop them from going after for-profit companies (like Red Hat or SuSE) who distribute Free Software browsers with their products. A defeat for Microsoft, in this case, means a defeat for Free Software. Fortunately, Microsoft plans to appeal. I'm rooting for them all the way.

Oh, man, I would not want to be SCO right now...

...just take a look at what IBM's formidable legal resources have brought to bear. (Via Tales of the Racoon Fink) Actually, SCO's behavior throughout the SCO-Linux debacle has made me wonder, more than once, whether SCO's executives intended all along to commit some "savage, spectacular suicide"*. At least this way, they'll be installed in computing history's halls of infamy, rather than fading into quiet obsolescence, which would otherwise have been their fate.

* Bonus points if you can figure out the reference, without using Google.

Statites!

Whilst reading about Dyson spheres on Wikipedia, I came across this article on Statites; it's a cool idea, but this paragraph jumped out at me:

The concept of the statite was invented by Robert L. Forward. No statites have been deployed to date, as solar sail technology is still in its infancy. See Forward's US Patent 5,183,225 "Statite: Spacecraft That Utilizes Light Pressure and Method of Use." filed 9 Jan 1989 issued 2 Feb 1993.

Let's see, if this patent was issued in 1993, that means it will run out in 2010. Filing a patent costs considerable time, money, and effort; you don't file a patent just for the hell of it, unless you're rich. SO this dude evidently thinks that he'll be able to reap profits from his patent on statites before 2010. Erm, right.

Petra Moser: Patents do not increase innovation

J. B. DeLong notes this interesting abstract of a recent working paper by Petra Moser, a professor at MIT's Sloan School of Management ("not exactly a bastion of anti-capitalist sentiment"*):

This paper introduces a new internationally comparable data set that permits an empirical investigation of the effects of patent law on innovation. The data have been constructed from the catalogues of two 19th century world fairs: the Crystal Palace Exhibition in London, 1851, and the Centennial Exhibition in Philadelphia, 1876. They include innovations that were not patented, as well as those that were, and innovations from countries both with and without patent laws. I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries.

Unfortunately, Petra Moser doesn't even appear to have a web page, much less a freely available electronic copy of the working paper; I suppose this is typical of economists and other non-computer-science academics, as I complain in DeLong's comments.

Incidentally (warning, blog post veering off onto radical tangent), how in blazes do people in these other fields get any work done? Luckily, I can get Moser's paper through my university's unlimited subscription, but it's still a pain to set up the proxy when I'm browsing from home; and what about the unwashed masses who don't have access to the resources of a large, well-funded university? Any single paper's reasonably cheap, but when you're doing a literature search you might want to read a few dozen papers and skim many more, from several different journals. The gated-access publishing model makes it basically impossible for an interested layperson to keep up with cutting-edge research in these fields, except through watered-down (and frequently distorted) accounts in the popular scientific press. One might object that cutting-edge research is too deeply technical for a lay reader to understand anyway, but I disagree --- in computer science, at least, a reasonably intelligent and well-educated programmer with an undergrad degree can get the basic gist of all but the hairiest papers. Some grotty technical details might remain out of reach, but there's still some value in reading the paper straight from the horse's mouth rather than secondhand --- the citations alone can make a huge difference in understanding the authors' contribution. I imagine that the same would be true in other disciplines.

And this does not even take into account the incredible value of a site like CiteSeer, which is only possible because most papers are freely available on the web, where they can be easily indexed and cross-referenced regardless of source publication.

On the other hand, a few academics in other fields, like philosopher Nick Bostrom and law professor Yochai Benkler, do seem to "get it": they have home pages, with full papers. Maybe there's hope after all, in the coming generation of academics?

* To quote Lowell Bergman, played by Al Pacino, in The Insider; those with sharp memories may recall that he's speaking of Wall Street Journal.

But how will yogi pay the rent?

Lessig again demonstrates that he is a wild-eyed, Communist radical nut case by linking to the Open Source Yoga Unity site. Without robust intellectual property protections, nobody will have any incentive to develop yogic techniques, and society will suffer from a tragic yoga shortage. Duh!