Category Archives: bad law

They say I’m a pessimist about the future of freedom on the net, and they’ve got two books of mine to prove it. But the report that the RIAA has now filed suit against four students for sharing content over a university network is a moment of hope. If we work hard to report the details and reality of this suit, then the extremism of the RIAA’s tactics will finally get through.

Let this extremism finally force recognition of the best response to this problem for now: a compulsory license with a large carve out for non-commercial “sharing.” Napster proposed as much in 1998. Had Congress listened, then we would have had just as much sharing over these last 5 years, but artists would have 5 years of income, and fewer of our children would now be felons. Instead, Congress did nothing (except pass the Sonny Bono Act and the DMCA), and 5 years later, artists are no better off, our kids are now “terrorists” (such is the rhetoric of the other side), and the cartel of the RIAA is only stronger.

What politicians need to remember is that Congress has always adjusted the rules by which creators get paid as a response to new technology. That’s just what they should be doing today. Never before has the law been used to force new technology into old way of doing business. Every time before this, it was the law that adjusted to assure artists got paid given the new technology.

There are any number of proposals floating about just now for a compulsory license for content [Ed Felten has a nice post on this; my favorites are William Fisher’s from Harvard, and Neil Netanel’s from Texas] — a way to free content while assuring that artists get paid. All of them would also have the salutary effect of leaving our courts to deal with real criminals (can anyone spell Enron anymore?), and leaving the internet to do what it does best (making content broadly and efficiently available).

It’s time for Congress to turn its attention to constructive ways to assure that artists get paid without destroying the extraordinary freedom of the internet. This has been Congress’s role in the past. It needs to get beyond the distortions of a bunch of lobbyists if its to play its proper role in the future. Continue reading →

Thanks to Sean McGrath for sending me this wonderful story about the first copyright wars. The story is told in Ingenious Ireland by Mary Mulvihill, about the 3000 men who died in the “Battle of the Book at Cooldrumman” after copyists refused to return the copies after a court ruled against them. Perspective perhaps, but precedent too? Continue reading →

I had dinner last night with an extraordinary group of computer scientists. As always in such contexts, the discussion moved quickly to patents. I’ve been a skeptic about software and business method patents for a long time (while a supporter of, e.g., drug patents), but what always strikes me in these contexts is how violently opposed people in the industry are to software and business method patents while the legal system remains oblivious.

I had thought there was some hope in the new administration. An article by LA Times reporter David Streitfeld quoted the new Patent Commissioner, James Rogan, saying smart and skeptical things about the patent system. I wrote a piece for the FT based in part on that interview, only to have his office call me to tell me that I had gotten it wrong. The “crisis” that Commissioner Rogan sees is not the “crappy patents” (their words) issued by the patent office; the crisis, I was told, is that the office is not issuing patents fast enough.

But the more frustrating response to my article was the follow-up by Professor Epstein. He called my “indictment” “harsh.” As he says, “to my knowledge” there is “no fundamental signs of breakdown.” He points to “OS X by Apple” as evidence that “strong intellectual property rights [have not] Balkani[z]ed the intellectual universe.” “One looks,” Epstein writes, “for fundamental flaws in the underlying institutions only when the progress starts to grind to a halt.”

My initial (and uncharitable) response to reading this was that Professor Epstein was not looking very far. But after dinner last night, I recognized that there is a fundamental gap in understanding. Most lawyers and policy makers do not understand what technologists believe; most technologists don’t understand that (at least some) lawyers believe that what technologists believe about the system should matter.

So here’s an idea. I’d like to construct a page of views of technologists who have experience with the system. The aim will not be to evaluate the system as a whole, but instead to collect credible testimony about the burdens the system imposes. Policy makers should be evaluating whether the benefits outweigh the burdens. My aim is not to do that weighing. My aim is simply to collect stories and evidence about the burdens.

If you have experience and a view, then email me and describe both. I will collect them and verify the source, and then make the results available here. The aim is not to conduct a poll; this will not be a representative sample of anything. But it would help immensely to have a place where people could go to read what technologists say to me all the time.

Update: Karl-Friedrich Lenz has sent a link to a great list of patents. This is important and useful, but I’m eager to hear stories of how the system affects ordinary software development. Continue reading →

The Supreme Court has rejected our challenge to the Sonny Bono Law. Continue reading →

Jabber has written a powerful piece about the threat that AOL’s patent covering IM technology creates for innovation in the IM market. Even if AOL does not enforce the patent, as Jabber argues, the threat that it may makes is much less likely that innovators will invest time to develop IM technology. AOL’s sword will be enough to keep innovation away, Jabber says.

These issues are complex, but this case does lots to highlight just what wrong about the software patent business. Does anyone really believe that there was inadequate incentives to be inventing in this area? Was there really a need for a government monopoly to help spur innovation? And even if there is, does a 20 year monopoly over something as fundamental as IM make sense to anyone?

Vardi and his son were brilliant inventors. They deserve all the credit in the world. And it is exactly the wrong (since self-defeating) response to now attack AOL: They are a business; the managers are hired to make money; they will make money however they can given the rules as they are.

The appropriate response is to attack the system. It is four years since a court held that software and business methods were patentable. What exactly have we done since then to get legislators to fix this mess? Continue reading →

Here’s a company to watch: eAccess, Japan. They are a profitable aDSL company here in Japan, building the fastest growing aDSL network in the world. They now offer 12 mbs (yes, I mean 12 mps) for $26/m, service within 7 days. And to celebrate their amazing success, on 12/12, they go public.

Talk to the extraordinary president of eAccess, Sachio Semmoto, and he’ll tell you the key to eAccess’s success: That Japan learned from the United States that access to copper had to be “open.” Open access meant new competition; competition has driven prices down, speed up.

It’s an amazing thing, competition. Apparently it doesn’t work in America, though. Now that the Japanese have profited from the American lesson on regulation, the Americans are retreating. The FCC is moving as quickly as it can to undo open access requirements. Continue reading →

So there’s this amazing site (for opera fans at least) called MetManiac, which before the lawyers found it, collected lists of Met opera performances from the beginning of the Met. Non-commercial, pure hobby, an extraordinary historical resource, this was the passion of a fan. If you follow the link, though, you’ll see the Met lawyers have demanded the site be shut down. (Shhh, but if you follow Brewster’s link, you can see what the page was. Don’t tell the lawyers, however, as they’ll shut that down too.)

Can anyone explain what sense it makes that this fan site, which collects historical facts about an important part of our culture, can be banned? I know the lawyers say “the law makes us do it” — that trademark law, etc., requires that they police the way other people use their name. But what possible sense does such a law make. And at a time when opera around the world is struggling for resources to build an audience, what possible sense does it make to begin to attack your fans? Continue reading →

ESR has a wonderful analysis of the latest Halloween document from (some mole in) Msft. Eric rightly emphasizes substantial good news. Yet though this may be just my nature, I think there is more here to be worried about than the good news suggests. Bottom line: Regardless of our OSS/FSF loyalties, we need to work hard to de-FUDify GPL…. Continue reading →

This letter by Adam Smith on behalf of the “New Democrat Network” asking Cybersecurity Czar Richard Clarke to avoid GPLd software deserves a response. Here’s a short one by me. And if you agree, then you should respond here…. Continue reading →