Matt Yglesias

Richard Posner Proposes Link Ban

Richard Posner’s sense of pragmatism seems to have entirely escaped him as he offered up this bizarre suggestion last week about how to maintain the financial viability of newsgathering:

Imagine if the New York Times migrated entirely to the World Wide Web. Could it support, out of advertising and subscriber revenues, as large a news-gathering apparatus as it does today? This seems unlikely, because it is much easier to create a web site and free ride on other sites than to create a print newspaper and free ride on other print newspapers, in part because of the lag in print publication; what is staler than last week’s news. Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

This just seems to totally misunderstand the relationship between the linked and the linker. In my years of blogging, I have never once heard the author of an article or the editor of a publication complain to me about having linked to an article. By contrast, on a daily basis authors and editors ask me to link to their articles. This is because having published the article on the World Wide Web, the authors and editors in question want people to read the articles. If they didn’t want to get links, they wouldn’t put the article online. If they put the article online, they want to get links. And certainly if any publication were to request that I stop linking to or otherwise mentioning their content, I would be happy to grant that request without any legal coercion.

Paraphrase is a somewhat different manner, but attempting to ban it would be wildly impractical. The Posner proposal would make it illegal for me to debate the merits of Posner’s argument without first securing Posner’s specific approval. Online dialogue about political topics would grind to a halt. It would become impossible to review movies, recommend TV shows, praise songs, etc.

A My Little Pony Version of the Khmer Rouge

I definitely approve of mocking people who publish ignorant screeds against the internet, and all the more so when my name comes up in the course of doing so. Here’s Ross Douthat in The New York Times:

“One could write a Talmud,” Helprin notes at one point, “in reaction to the oceans of material supplied by commentators who either deliberately or otherwise (probably otherwise) cannot grasp the meaning of a simple sentence.” True — but this does not mean that one should. In particular, one should never, ever write a book that includes, in its footnotes, “Posting No. 12” from thelede.blogs.nytimes.com, or “Posting 3:41” from missnemesis.blogspot.com — or comments by “Peep,” “Constantine” and “Anon,” from Matthew Yglesias’s blog. Helprin acknowledges the peculiarity of arguing with anonymous commenters rather than training his fire on more intellectually serious targets. “Why talk to the monkey when the organ grinder is in the room?” he wonders, quoting Churchill; the answer, he explains, is that in this case only the monkeys really matter. “The philosophical basis of the war on copyright is crackpot and stillborn,” and “apart from unavoidable forays, it is best to stay out of such thickets.” Instead, the battle should be waged “wherever the gnats in their millions crudely make real the musings of the Mad Hatters.”

As the tone of that last line suggests, alas, it’s hard to write a polemic premised on the assumption that your opponents are monkeys without sounding like a particularly high-vocabulary monkey yourself. Helprin variously describes his foes as “wacked-out muppets,” “crapulous professors,” “regular users of hallucinogenic drugs,” “a My Little Pony version of the Khmer Rouge,” “a million geeks in airless basements,” “mouth-breathing morons in backwards baseball caps and pants that fall down” and so forth. The overall effect is like listening to an erudite gentleman employing $20 words while he screams at a bunch of punk kids to get off his front lawn.

These kind of arguments really do tend to be self-refuting in my opinion. The underlying conceit behind a lot of this sort of complaining seems to be that the traditional crop of professional writers—full-time journalists and, in Helprin’s case, novelists—are the only well-informed people on the planet. In reality, a great deal of what you see on blogs is writing by people who aren’t or weren’t professional writers but who—unlike most journalists—have actual subject matter expertise. You can get a take on events in Iran from Gary Sick and Juan Cole and Daniel Drezner and Steven Walt. You can read dozens and dozens of blogs by lawyers and economists. It’s Helprin rather than, say, Larry Lessig and Tyler Cowen and Tim Lee who doesn’t know how to seriously evaluate the issues relating to intellectual property law.

That said, “a My Little Pony version of the Khmer Rouge” is a great turn of phrase.

Google and Orphaned Works

Nominally, copyrights in the United States are for a limited duration. But the corporations that own valuable, decades-old copyrights—think Mickey Mouse and Batman—don’t want to see those copyrights expire. So they’ve gotten good at lobbying congress to retroactively lengthen copyright terms in order to ensure that Mickey and Bruce Wayne will continue to be valuable commodities forever.

This is bad on its own terms, but it also has some really perverse consequences. After all, most decades-old works aren’t valuable. And most aren’t owned by large ongoing business enterprises. But even though this vast back catalog consists of works with little monetary value, they could still each individually be of interest to some people and collectively they’re of enormous use. But right now, if you stumble across something old and forgotten, it’s often not clear how you would even go about getting the rights to it. Oftentimes a person may not even know that he or she is the heir to an obscure copyright owned by a great-uncle or some such.

At any rate, Google is touting the recent settlement agreement around Google Book Search as a solution to this problem. On the one hand, via Google’s arrangements with libraries, copies of copyrighted-but-out-of-print books will be available on Google Book Search. And on the other hand “the settlement creates an independent, not-for-profit Book Rights Registry” to help make it easier for rights-holders to make their claims and would-be users to find rights-holders. What’s more, “As authors and rightsholders claim their books under the settlement, information about what books have been claimed and who claimed them will be made publicly available, allowing others to take advantage of this information.”

This does sound like a real step forward to me. Still, it’s a pretty goofy kludge to solve a problem that really doesn’t need to exist. There’s no public interest rationale for retroactive copyright extensions. They just suit the interests of a relatively small number of copyright-owning firms, and they create a huge set of problems.

AP Wants Information to Be Caged

It’s really hard for me to understand how the AP’s new initiative is supposed to work. Their concern, they say, is that “a significant amount of AP news and news from AP members is used without permission or fair compensation.” This appears under a banner about “Protecting AP’s Intellectual Property.” But neither AP nor anyone else has intellectual property in news. Factual information isn’t subject to copyright.

Ellen Barry and The New York Times have some intellectual property in the specifics of her April 11 article “Protests Wane in Moldova as Vote Recount Is Announced” but the fact that protests are waning in Moldova as vote recount is announced is just out and about. Obviously, this has always posed something of a problem for the news business. Neither Barry nor the NYT can capture the full value of the reporting about Moldova. But this is genuinely intrinsic to the whole process. The point of having a reporter write about what’s happening in Moldova is for people to learn about what’s happening in Moldova. Those people, once they know, are free to pass that information on, verbally or in writing. The mitigating factor here is that producers of news content are also able to take advantage of this dynamic. Barry writes, for example, that “The authorities, as well as local and Russian news media, have cast the protests as an attempt to violently overthrow the government.”

Thus news has been taken from Moldovan and Russian circles and recycled to NYT readers without anyone paying a fee. How could this be stopped? Why would you want it to?

NOM Remix

Gay marriage threatens to put us on a terrifying slippery slope:

Intellectual property policy angle here.

Protocol Fail

When Gordon Brown came to Washington, he brought a thoughtful gift with him—a pen holder made from the timbers of the HMS Resolute to match the White House’s famous desk. Barack Obama, by contrast, got Brown a set of DVDs. And as if that gaffe wasn’t bad enough now we learn:

Alas, when the PM settled down to begin watching them the other night, he found there was a problem.

The films only worked in DVD players made in North America and the words “wrong region” came up on his screen. Although he mournfully had to put the popcorn away, he is unlikely to jeopardise the special relationship – or “special partnership”, as we are now supposed to call it – by registering a complaint.

In order to permit price discrimination between different markets, you see, DVDs and DVD players are region-restricted. Normally, a North American disk won’t play in a European player and vice versa. They do, however, make some “universal” DVD players that can play disks from all regions. Maybe the embassy in London can get one for the PM.

One assumes this won’t actually shatter the foundations of the US-British relationship, but still it’s a pretty sorry showing.

Open Source Textbooks

A reader asks:

I know you are doing a lot of request threads so I wondered if you could possibly do one about the outrageous price of textbooks. I thought of this issue yesterday when I listened to a segment on weekend All Things Considered where they assembled a group of high school juniors and seniors. Many of them were obviously worried about how they were going to pay for school and the price of text books seemed to be a real concern since many scholarships cover only tuition rather than cost of living (text books, room and board, etc.).

High prices for textbooks seems endemic to the textbook concept, since it’s hard to see how you could ever establish a market with vigorous price-based competition for these things. Fortunately, I think there’s a pretty promising alternative in the form of open source textbooks. The idea would be to create textbooks that could be distributed at something close to marginal cost of production and distribution of the books—possibly including free or super-cheap online or ebook versions.

Of course in principle all sorts of media could be distributed that way. Fiction books, commercial non-fiction, music, movies, etc. But textbooks seems like an unusually promising case. Not just because textbooks have an unusually large extra monopoly cost, but because they’re not really a consumer product. Textbooks are overwhelmingly either being purchased by government agencies or non-profits, or else the purchasers are being ordered to buy them by government agencies or non-profits. Under the circumstances, what would make the most sense would be for state departments of education, universities, and interested private foundations to simply pay to commission initial work on open source textbooks and/or encourage staff to participate in improving them.

There are a lot of logistical hurdles and coordination problems involved in getting something like this off the ground in a big way, but the benefits would be large. Indeed, more generally it would serve the public interest to have better and more widespread open source stuff in general—including in the most famous case of software—and looking for ways at the margin to use public funds to support open source activities rather than closed source ones would be very good policy.

Deadweight Loss

You hear a lot of bogus statistics thrown around about economic losses due to piracy, but you hear very little about the economic cost associated with pricing digital media so far above the marginal cost of production.

For example, I was in Target last week and saw this box set of The OC DVDs on sale for $116.99:

Now for my part, I was never a huge OC devoté but I watched most of the first season and some of the second season before losing interest. And I have some money, I like pop culture, and I like impulse buys, etc. If this box set were orders of magnitude cheaper—say $10.00 instead of $116.99—I might have bought it. Now presumably the people running these businesses know what they’re doing, and overall profits really would be lower. But still, owning all those episodes would have given me $10.00 of utility and it would be possible, though not legal, for me to acquire them at no cost whatsoever to their owner. And it seems that The OC lost over five million viewers between its popular first season and its unpopular forth season. Maybe all five million of us would be moderately interested in the box set worth of DVDs were it cheap. That’s maybe $50 million—maybe more—in deadweight losses related to just one show.

Now obviously that’s a lousy estimate. Don’t take it seriously. Maybe some clever economist somewhere will come up with a reasonable way of calculating it. I’m just illustrating the point that the costs are real. And that for this reason, the optimal amount of copying is not zero. It’s just common sense that there are lots of people for whom owning the complete run of a TV show would be worth more than $0 but more than the $100+ prices these things carry in stores. It’s a good thing, from a social point of view, that some of those people are able to acquire “pirated” copies of the things they want to watch.

Tom Perrelli and Intellectual Property

Thomas Perelli is going to be the next Associate Attorney General of the United States. So let’s note three things about that:

• I don’t really know what the AAG’s job is.
• I don’t know anything about Perrelli’s stint as a Deputy Assistant Attorney General.
• It’s very difficult to infer a lawyer’s beliefs based on work he did representing clients other than the general observation that there’s a reason lawyers in general are held in low regard by the public.

But I was interested in the fact that in his private sector capacity at Jenner & Block, Perrelli is co-chair of the Entertainment and New Media Practice. Initially, I hoped that meant he was maybe doing interesting work representing device manufacturers whose capacity to innovate is being stifled by unduly restrictive DMCA provisions. Or maybe he represented some cutting-edge artists whose work is being blocked by big content owners. But no:

Mr. Perrelli regularly represents the recording industry in cutting-edge intellectual property, technology, and anti-piracy litigation. He has represented the recording industry in a host of cases arising under the Digital Millennium Copyright Act (DMCA), as well as in copyright infringement and digital piracy litigation. He has also represented the record industry and recording artists in a series of copyright royalty proceedings before the Copyright Royalty Board.

The good news is that since the recording industry has decided to adopt an overwhelmingly litigation-based approach to coping with technological change, rather than trying to be innovative in terms of their products or business practices, they probably put a lot of effort in making sure they’re hiring very good lawyers.

The Cuteness Stimulus

Obama transition team acts to counter national cuteness deficit by posting photos of Sasha and Malia getting ready for their first day at school”

Aww …

Since we’re c (4) educatin’ with this post, why not throw in a policy angle? I got that from the Obama-Biden Transition Project’s Flickr’ page where I noticed that the photos are all held under an “all rights reserved” copyright. Given that the Transition is seeking to serve the public interest, it seems to me that it would be nice to release these photos under a Creative Commons license of some sort. In practice, it almost certainly doesn’t make a difference since the Transition presumably wants these images to be disseminated widely and isn’t going to be denying anyone permission or writing any cease-and-desist letters. But that’s all the more reason to go Creative Commons and serve as a model for other institutions out there.

Music Industry Finds New Ways to Shoot Self in Foot

I like a band called Metric that, while quite popular in Canada, isn’t so well-known in the United States. And since they’re a pretty “political” band, I think they’re a group a lot of readers of this blog might be interested in. Thus, I’m going to embed on the blog this music video of their song “Succexxy” that was released back in 2004 and that I think does a great job of capturing the insane spirit of the Summer of the War back in 2002:

By embedding the video, I’m exposing the band to a wider audience. Maybe some of you will like the song and the video. And maybe some of those people will buy a Metric album. Win-win!

But it seems that’s not how Warner Music Group sees things:

Warner Music said it would pull hundreds of thousands of videos from the site following the collapse of talks with the Google-owned company about renegotiating a content-sharing deal. “We simply cannot accept terms that fail to appropriately and fairly compensate recording artists, songwriters, labels and publishers for the value they provide,” the group said. Warner Music added that it was “working actively” to find a resolution with YouTube.

As Ta-Nehisi Coates says:

A music video is nothing more than a really expensive ad. It’s amazing that these guys want YouTube to pay them for the right to show their videos. They should be trying to leverage the viewers into buyers. These guys are straight out 1963. They deserve whatever’s coming to them in this economy.

Of course Metric’s not a Warner group, so I’m still free to help them promote their work without paying them a fee for my trouble.

RIAA’s New Tune

The RIAA has a new strategy for combating the behavior that they insist on absurdly analogizing to having armed gunmen show up on board your ship and threaten to murder you unless you hand over cargo to them. Instead of suing music fans, they’ve worked out some kind of deal whereby Internet Service Providers are supposed to act as their enforcers:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

It’s not at all clear to me why ISPs would agree to do this, but apparently they are. In a market where consumers had a wide array of ISP choices, I assume this would just cause people to migrate to an ISP that declined to take this sort of deal on. But at the moment, there are still few enough that it’s plausible both Comcast and Verizon will agree to the deal and then folks like me will have no choice. Meanwhile, as noted by TechDirt one thing missing here is any sign of due process:

But the biggest problem is the fact that this allows private organizations to judge users without any significant defense on their part. The stories of falsely accused file sharers are widespread at this point. IP address-based evidence is notoriously unreliable. Yet, the RIAA will be basing its notifications on such evidence. Sure, plenty of the IP addresses dug up by the RIAA are probably accurate, but we live in an innocent-until-proven-guilty world, and this does away with that completely.

And as ever, the misguided quest to eliminate non-commercial file duplication can only work by attempting to prevent utterly non-infringing behavior. I legally purchased Jens Lekman’s When I Said I Wanted to Be Your Dog some time ago. I had a copy on one of my laptops, and from there transferred copies to my iPhone and the external hard drive I use for backup. I wanted to listen to “Tram Number 7 to Heaven” earlier this week while working on a different computer. Under the circumstances, the easiest way of getting the song to my computer was to download a copy via a peer-to-peer file sharing service. This was, as far as I’m concerned, completely non-infringing — I’m a legitimate owner of the album — but it could have gotten someone ratted out to his ISP under the RIAA’s new plan.

Stuff like this around the margins aside, you can’t help but blame the RIAA. The rise of digital media and the internet has made the specific business record labels are in basically obsolete, but they have a lot of political capital and are using it to try to stay in business.

What I’ve never seen is a serious effort on the part of policymakers to articulate what policy problem it is they’ve been trying to address with internet-era revisions to intellectual property law. The Wall Street Journal’s writeup of the latest RIAA moves is accompanied by a familiar chart of falling album sales. But boosting album sales is not a legitimate public policy objective. Nor is boosting record company profits. Nor, even tough musicians themselves are a much more sympathetic claimant than record company shareholders, is boosting musician incomes. The purpose of intellectual property law is to protect the interests of consumers. I’ve never seen anybody attempt to argue that people aren’t forming new bands or recording new songs anymore. Nor have I seen anybody attempt to argue that it’s more difficult today to find new music to listen to than it was ten or twenty years ago. In fact, the reverse is the case. The very trends toward digitization and file-copying have made music much more widely available than it was in the past. There have been better times to be a record company executive, but there’s been no better time to be a consumer of music in the United States. Under the circumstances, it’s not at all clear what the policy logic is behind the belief that there’s an infringement “problem” that needs to be solved through stepped-up enforcement. The mere fact that infringement occurs is not a reason to believe there’s a problem since as long as the legal price of a song is far above the marginal cost of producing a copy, the socially optimal level of infringement is going to be well above the zero-infringement threshold the RIAA is aiming at.

And that’s even without considering the costs of enforcement and compliance.

So while it’s good to see the RIAA backing off lawsuit-mania, there continues to be no real evidence of a public interest in clamping down on noncommercial file sharing.

McCain Versus Foo Fighters

Matt Corley notes that the Foo Fighters are complaining about John McCain’s use of their song “My Hero” at his campaign events:

“The saddest thing about this is that ‘My Hero’ was written as a celebration of the common man and his extraordinary potential,” the band said in a statement. “To have it appropriated without our knowledge and used in a manner that perverts the original sentiment of the lyric just tarnishes the song.”

In all honesty, I don’t really think artists should have veto power over who plays their songs at rallies. But McCain’s no copyright reformer, so he’s not all that well-positioned to make a point about the desirability of letting people appropriate these works as they see fit.

The Bogus Piracy Math

It’s hard to write good blog posts about really excellent articles because you wind up not having a lot to say about them. So let me just quote Julian Sanchez’s lede:

If you pay any attention to the endless debates over intellectual property policy in the United States, you’ll hear two numbers invoked over and over again, like the stuttering chorus of some Philip Glass opera: 750,000 and $200 to $250 billion. The first is the number of U.S. jobs supposedly lost to intellectual property theft; the second is the annual dollar cost of IP infringement to the U.S. economy. These statistics are brandished like a talisman each time Congress is asked to step up enforcement to protect the ever-beleaguered U.S. content industry. And both, as far as an extended investigation by Ars Technica has been able to determine, are utterly bogus.

The story of where these numbers come from, and how bogus numbers are able to circulate endlessly is pretty fascinating. Check it out. And hopefully some day Big Content and its allies won’t be able to get away with recycling these talking points any more.

Meta “Take on Me”

Via Jason Kottke, the classic video for A-Ha’s “Take On me” (the video’s a classic, the song merely okay) with the lyrics changed to reflect a literal narration of the events depicted in the video:

Very cool. It’s too bad that under current copyright law there’s a good argument that it’s illegal to make or distribute this video. A more sensible system would recognize that there’s real value in letting people play with this kind of idea.