Tuesday Apr 17, 2007

The Kingdom of Content

Thomas Hazlett, professor of law and economics at George Mason university, writes about how "content" has become "king": 

In 1983, US cable operators paid an average of just $2 annually per subscriber in license fees – and over $238 in 2005. In aggregate, total payments to cable programmers from cable operators went from just $60m in 1983 to $16bn in 2005.

The advent of cable brought forth many legal questions: 

Where it all comes out is difficult to tell. In the early days of cable television, US law was a puzzle. Should cable systems be allowed to abscond with over-the-air signals of broadcast TV stations, re-transmitting them to subscribers? Or should cable operators – then called “Community Antenna Television” (CATV) systems – give broadcast TV stations a slice of the subscription fee pie?

This question went to the US Supreme Court in 1968 and again in 1974, an era when cable TV delivered only broadcast TV signals (ESPN, CNN, Discovery, A&E and the rest were to come years later). Both times the court held that cable operators retransmitting local signals owed nothing. In extending broadcast signals they improved reception for households, like a large antenna.

Now, we have a battle between the super copy-and-distribute machine and the "copyright-protected" content. As many have argued, in the case of the Internet, the increasingly more strict protections granted through copyrights can put stringent constraints on  cultural creativity.

Friday Feb 23, 2007

How Overregulation Breeds Corruption

Overregulation can breed corruption because it can categorize vast groups of otherwise normal people as criminal.

Here is how professor of law Lawrence Lessig has argued this case in his Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity:

Overregulation stifles creativity. It smothers innovation. It gives dinosaurs a veto over the future. It wastes the extraordinary opportunity for a democratic creativity that digital technology enables.

In addition to these important harms, there is one more that was important to our forebears,but seems forgotten today. Overregulation corrupts citizens and weakens the rule of law.

... We regulate automobiles to the point where the vast majority of Americans violate the law every day. We run such a complex tax system that a majority of cash businesses regularly cheat. We pride ourselves on our “free society,” but an endless array of ordinary behavior is regulated within our society. And as a result, a huge proportion of Americans regularly violate at least some law.

This state of affairs is not without consequence. It is a particularly salient issue for teachers like me, whose job it is to teach law students about the importance of “ethics.” As my colleague Charlie Nesson told a class at Stanford, each year law schools admit thousands of students who have illegally downloaded music, illegally consumed alcohol and sometimes drugs, illegally worked without paying taxes, illegally driven cars. These are kids for whom behaving illegally is increasingly the norm. And then we, as law professors, are supposed to teach them how to behave ethically—how to say no to bribes, or keep client funds separate, or honor a demand to disclose a document that will mean that your case is over. Generations of Americans—more significantly in some parts of America than in others, but still, everywhere in America today—can’t live their lives both normally and legally, since “normally” entails a certain degree of illegality.

The response to this general illegality is either to enforce the law more severely or to change the law. We, as a society,have to learn how to make that choice more rationally. Whether a law makes sense depends, in part, at least, upon whether the costs of the law, both intended and collateral, outweigh the benefits. If the costs, intended and collateral, do outweigh the benefits, then the law ought to be changed.

Alternatively, if the costs of the existing system are much greater than the costs of an alternative, then we have a good reason to consider the alternative.

... The rule of law depends upon people obeying the law. The more often, and more repeatedly, we as citizens experience violating the law, the less we respect the law. Obviously, in most cases, the important issue is the law, not respect for the law. I don’t care whether the rapist respects the law or not; I want to catch and incarcerate the rapist. But I do care whether my students respect the law. And I do care if the rules of law sow increasing disrespect because of the extreme of regulation they impose. Twenty million Americans have come of age since the Internet introduced this different idea of “sharing.” We need to be able to call these twenty million Americans “citizens,” not “felons.”

Thursday Jan 04, 2007

The Barbarians, Beautiful Basra and Natural Law

The beautiful city of Basra has a sad history involving, among other less glorious moments, multiple British occupations over the last 100 years or so.

So, in that context, I wonder why some news reports from Basra take so long to get to me and why it has become taboo to report and aggressively investigate this video on the BBC. Why have such crimes related to occupation been overlooked or forgiven simply because they may have occured some months prior to the start or conclusion of investigations, and what sort of people actually manned the video cameras which capture them? (You have to watch the whole video to understand the meaning of these questions. Wikipedia does have a short mention of the incident in its entry on Basra and also here. Or perhaps, we need to turn to the Swedish media for an investigation.)

Note that we purportedly live in the 21st century and not "1984" when talk of human rights comes from the same institutions and corners where the greatest violations seem to be tolerated and propagated.

Occupation and aggression begets resistance, ultimately by all means. No matter in which part of globe and what part of history you look, people will resist occupation when occupiers overstay and stretch their welcome to its natural limit. To borrow a phrase from the author of Leviathan (a certain Mr. Thomas Hobbs), the premise that overstay leads to resistance is surely a "natural law," if there ever was a "natural law." If this "natural law" applies to guests in the West, how much more true should one expect it to be in the guest-welcoming East with occupation even when occupiers are originally invited and welcomed--and truer yet when uninvited and unwelcome?

Basra's distinguished history includes other sad moments such as the Battle of Camel some 1400 years ago. However, despite war and occupation, like for all ancient  and honorable cities, there has been millenium when Basra has lived in peace and prosperity -- exactly what she deserves and wants again if left to her own account.

Monday Dec 18, 2006

Securing Property Rights

In cultured societies1, the state secures personal property against wanton takeover. Such protection encourages personal investment in productive social activity.

In a sense, private property becomes, and indeed is, sacred.

Nowhere is this more clear than the severe, albeit varying punishment vetted against thieves in various cultures and societies throughout history.

For example, consider the law in the U.S. that called for the execution of a man who stole the horse of another. Presumably, stealing a horse could be tantamount to stealing another's livelihood if not his or her life. As another example, if some score of  conditions hold, a thief of a personal property might lose a limb--starting with a piece of a finger--according to the sharia law. One of those score of hard-to-meet conditions that must exist for this particular law to apply involves a lack of a survival need to steal. So, the punishment may apply to a Wall Street magnet who has provenly and intentionally stolen from an old lady's pension or some orphans' trust, wrecking their lives as a consequence, but will not apply to a hungry beggar who takes an apple. 

Furthermore, and beyond the proofs in stipulated punishments, we have the proof in taboos against taking what belongs to others. These taboos run deep. For example, consider the emphasis, in both Jewish and Islamic law, regarding payment of debt as a religious obligation. Most reasonable people experience the relevant acculturation and live by these taboos and commendations.

Without the protection of private property, no one can be expected to give of his own or contribute anything for she or he will receive nothing of worth in return. There would be no incentive to contribute anything of worth without the protection of private property and rights in what is of worth. The history of the artificial beliefs in the sanctity of communal property extending to all things worth owning makes it quite clear that when incentives of private ownership disappear, people stop contributing willingly.

However, all protection of private and personal "property" has come at a price. States levy taxes on assets presumably to compensate themselves for cost of securing the conditions for ownership of such assets. The owners pay taxes and return something to the society that harbored their ownership rights. There are similar limits in other cases.

While IP and copyrights have been treated by some as private property, the protections granted to them had a different purpose. It was not an eternal protection but simply a safeguard for a limited time in order to grant the creative forces some security so that they may achieve and earn a return on the novelty they had created. Indefinite or long-term protection would create other problems such as slow propagation of novel ideas and innovations, not to mention the cost of enforcing such "rights." However, there were limits imposed on the duration of such protection in order to return the ideas to the mix of the community that had helped foster them. 

Lawrence Lessig has written enough about this topic, and today, in The Wall Street Journal, we read how sums are invested for the very protection of copyrights. ("Copyright Tool Will Scan Web for Violations," WSJ, December 18, 2006, Page B1.)

When a society pays more for securing what only needs limited protection, it increases its cumulative transaction costs at a time when better, lower-cost, alternatives exist for safeguarding what needs protecting. (This forumla also holds with aggressive wars as a means to provide "security" or with dubious prisons and gulags as a means to provide "justice." These techniques remind us of the analogy of a hammer used to kill a fly. Indeed, they are far worse.)

To the extent creative commons get a chance to grow beyond a certain threshold, we are in a position to see a more free culture. Cultural production means creating new cultural products against and upon what history has handed to us. To the extent that history can be frozen in a particular era by some few owners of its cultural products, we stand to suffer because we lose our flexibility as a cultured community to respond to the changes that go on around us.

Notes

1. The phrase "cultured societies" reads like an oxymoron. No society can exist in the long run without a culture to sustain it. Perhaps, I should have said in "Sustainable societies". Then again, we aree dealing with a bit of a tautology here. Without culture a society cannot be sustained, and no society is sustainable without culture.

Friday Dec 01, 2006

Fake vs. True Sharing

Lawrence Lessig writes about fake vs. true sharing.

The fact that Lessig has to use an adjective to qualify sharing may be another proof of how little words have come to mean in common usage. You cannot be said to be sharing your bread unless the party you're sharing it with can also eat from the part that has been shared. Otherwise, you're only sharing the right to watch the bread, not any rights to eat from it. 

Much of the videos posted on YouTube are posted with an intention to share them completely. Users should be able to copy and mix such video quite freely. As Lessig has noted, disputes regarding this model continue.

A sharing that doesn't grant any independent use rights can hardly be called sharing.
 

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