Asymmetrical Information

All you have to say is that terrorists will be allowed to hack into our computers, and this law will be gone before you can say "Ashcroft"

Here Here! As an IP lawyer I agree with you on all fronts. Artists are entitled to get paid for their music (just as authors are entitled to get paid for their literary work) BUT that doesn't mean that "fair use" shouldn't be allowed and it certainly doesn't mean that big corporate brother can dictate what kinds of software I can and can not have on my computer so they can more easily make a buck.

This is not a legislative issue, or at least it should not be. If a corporation wants help getting money from it's customers...more power to them, they can hire some goodfellas from jersey to go and collect it the old fashioned way.

I think you do Prof. Lessig a grave disservice by grotesquely mischaracterizing his position as "information wants to be free". I have never seen any indication that he is an anti-intellectual property absolutist, or that he thinks that file sharing is "just dandy". Can you explain why you think so?

He has been warning for years about just the kinds of laws you are complaining about. He's published two books and multiple articles about intellectual property in cyberspace.

IMHO, you owe him an apology.

Jim

Now this is a sentence!

Yes, that's right, the recording industry, with less sense of proportion than my manic-depressive college roommate on a handful of crystal meth, and total disregard for the fact that the citizens of this country, while not fortunate enough to be recording executives, are nonetheless real live human beings who should not be expected, in any rational universe, to open their computers to hackers, stalkers and spies in order to make sure that Vivendi collects its revenues, is trying to make their whim into law.

There is an analogy to be made between "info wants to be free" and "the selfish gene". In both cases we attribute intention and volition to inanimate things. What we mean in both cases is that, practically speaking, reality works in ways that look as if the thing acts with intention.

I don't generally take "information wants to be free" as a normalitive statement. Rather it is a statement about (a) marginal cost, and (b) how humans react in large numbers: they do "share" information. Regardless of whether they "should" share it.

No matter what bill a legislature passes, we can be pretty certain they are not going to ban Windows by accident. Nor will they ban linux; at most they might get Red Hat to build in certain flaws. But the source is free, and if Red Hat distributed known hole-ware, patches would appear within minutes (literally), allowing you to fix your Red Hat. (Information wants to be free.) So the hardware and software will be exist to run a NAT and/or firewall. Further, just as hackers current write so-called "root-kits" to allow them to control a compromised computer but hide the evidence, it would be easy enough to write a similar sort of hack to sit on your NAT box and fake a known piece of spy-ware into thinking that everything is kosher, even as you slurp down the latest Eminem song. And this "anti-spyware-root-kit" would, of course, be free. It's information; it wants to be.

They might possibly ban hardware firewall-in-a-boxes without backdoors. This would, agreed, be a huge loss (and completely unethical, and economically dangerous, as you argue aptly).

Excellent post! It's really scary how much influence the RIAA and the MPAA have. You're correct that those of us that understand the technology, and the dangers of actions like this, simply don't take action.

I do have to respectfully disagree with you about Lessig though. I haven't heard him say that file sharing, in the manner that infringes copyright, is acceptable. I'm fairly new to his arguments, however, so I may be missing something.

Again, excellent post. This is quickly becoming one of my favorite blogs.

"Being the honest citizen that I am, I actually pay Time Warner $5 a month for our extra IP address."
ATT (now Comcast) encourages the use of NAT routers and posts instructions on how to set them up. There is no dishonesty in using a NAT router to connect to a broadband network since the bandwidth is constrained at the broadband connection point. However many users are connected are sharing that (fixed) bandwidth. Of course, if you hook up your neighbor, allowing him to avoid paying for his own connection, that goes over the line, as does leaving an open wireless router so that anyone in the street can get on your system, but in any case, you are not using more of the resource that you are paying for when you hook up several PCs through a NAT router.
That said, these are horrible bills that must be defeated, and I wouldn't mind one bit if their authors were defeated too.

Speakeasy DSL also gleefully supports the use of NAT-aware routers to share your DSL connection in your home. No problem. They also support the sharing of your 802.11b connection with anyone you want. They also explicitly support the Macintosh. These are all among the reasons they're my DSL provider.

Next I wish to add that I agree with those who feel that Megan has misunderstood Lessig. Lessig's position is considerably more centrist and nuanced than Megan appears to be giving him credit for, although, to be fair, Megan may very well be aware of this and is merely compressing to keep the post to a reasonable length, as the issues are quite complex.

Finally, while rampant file sharing of copyrighted works does indeed constitute violation of copyright law, the poster who drew an analogy to Richard Dawkins' "The Selfish Gene" is getting very close to the mark. The point that those of us directly involved in the technical side of the issues are attempting to make--albeit poorly--is that, ultimately, you can't control the leaking of bits. This isn't a matter of public policy, modern software development, computer science, or even information theory: it's a matter of physics. Even black holes, originally thought to let nothing escape, were demonstrated by Stephen Hawking to leak x-rays, because for them to leak absolutely nothing would violate the Heisenberg Uncertainty Principle. Ditto absolute zero: originally believed to be the temperature at which all molecular activity ceases, but that can't be true for the same reason.

Where there's physical activity, there's a medium for the transfer of bits. Where there's a medium for the transfer of bits, bit transfer will occur when there are sufficiently compelling reasons for those bits to be transferred. In the specific context of consumer media, such leaks are guaranteed as a practical matter simply by virtue of the fact that the interface between a media player and the consumer is analog: photons strike the optic nerve; columns of air pound the eardrum. Given any collection of bits designed to cause emission of photons and vibration of air in some context, it's categorically impossible to prevent the emission of those photons or vibration of air in a different context. The only question is how expensive the new context will be relative to the demand.

Finally, re: intellectual property, even Jefferson knew the concept was flawed when he founded the U.S. Patent Office. I won't bother posting the now-famous quote of his regarding the fact that copying an idea doesn't deprive the originator of the idea and that this irrevocably puts ideas in a different order of things than, e.g. manufacturing. Bits are the same way: the marginal cost of copying bits is so close to zero as to not be calculable.

Put the above two paragraphs together, and it becomes apparent that any business whose revenue derives from controlling the distribution of bits, or anything that can adequately be represented as bits, is doomed in the long run. In the near term, that sounds like the RIAA and MPAA and their members. Longer term, if we do in fact perfect quantum transformation/teleportation technology, it extends into what we currently think of as "the material world" as well. But one thing at a time.

The media world HAS TO come to terms with having entered a post-scarcity economy. It matters not one whit whether they are comfortable with the idea or not. If Frege, Curry, and Pierce didn't put the handwriting on the wall, then Turing certainly got close, Eckart and Mauchly added the "Q.E.D." and Moore put the last nail in the coffin.

The only question left is: who's next?

I second Leonard, there is no way to ban firewalls now. It's just software, and free software at that.

Jane, you said "...most rent-seeking behavior is one group trying to advantage itself at the expense of another group..." At what point does "rent-seeking" reach a level where it is a problem in its own right?

California might be an example--companies selling energy raise prices, "rents" to a level that threatens the existance of small businesses. If you can't pay for the A/C, you can't stay in business during SoCal summers.

Yet companies have a responsibility to maximize profits. How do these balance out? Or is this the wrong place to pose the question?

One relatively painless way to help in this area is to join organizations like eff (http://eff.org). Sadly, they have no shortage of issues to deal with regarding electronic freedom.

I'll third the comment on routers, NAT, and "paying" for an extra IP address. Now, if you need static IP addresses so you can do VPN or remote access from work, that is one thing -- and it's actually a technical requirement for multiple IP addresses. But if you're just working on the client side, no wonder they treated you like a space alien for wanting to be "honest".

A regulatory tradition you can fall back on is the concept of the boundary between the network and your home in phone and cable networks. After phone deregulation, the phone companies could not charge a "per phone" fee (other than rentals that continued) -- well, provided that you kept the total REN (ring equivalence number, power supplied by the network to operate your phones) below a regulated threshold. Similarly, cable companies cannot charge you per TV unless you need a converter for each TV, which would be rented. While the FCC does not directlty regulate ISPs, the continual threat serves to keep such traditions intact and deter the states from meddling in the technical aspects.

You know, Jane, you're already getting paid as much as a totally file-shared musician for your writing. And it's really the same market - quick consumption of interesting product.

E-books are easily available (I've got a copy of Bridget Jones' Diary in the original British version that I downloaded just to see some of the differences from my wife's American copy), and are much smaller than music files - but nobody wants to read long works at a computer. Books cost 2 cents a page, roughly, for paperback fiction. Even if you're a very fast reader, that's about $2 an hour for your entertainment - entertainment that's available anywhere there's light.

Oh well. I'm pretty happy with the quality of downloadable music that's legit, so it's almost all that I have on my computer. The only thing I make a habit of downloading is the tracks to CD's that I've damaged or that I bought on tape back in the old days.

Jane, I have a small criticism. From my perspective you need to fill your essays with more substanse and less rant (I'm not saying no rant since obviously that's what makes for a compelling essay). I think you mentioned in an earlier comment a critique of certain economists who use generalizations because they were too lazy to look things up -- lets make sure you don't fall into this camp too.

For instance there are many more specific issues that could have been discussed in your essay. Here are two examples: 1. the laws that support RIAA and others abilities to violate our privacy and 2. RIAA's current strategy.

1. I'm surprised you didn't mention the DMCA (Digital Millennium Copyright Act of 1998). The courts have allowed the DMCA to be expanded far beyond its original intent. The DMCA allows the copyright holder to petition an ISP to open up their logs to determine if content has been used without license. However, the Act was written before file sharing. Unfortunately, the courts don't see the significance of file sharing and has allowed copywright holders (and their proxies such as RIAA) to greatly expand the powers of the Act. The result is that UUNet says that in 2001, they got about twenty 512C (requests) notifications a month, and that number is now coming in at the rate of over five hundred a month. Many of these requests are frivolent and extreme violations of privacy. One kid was snapped up in a RIAA investigation for sharing a book report on Harry Potter. Imagine what RIAA would do without firewalls.

2. As many of you know, RIAA canned its version of Darth Vader (Hillary Rosen) about two months ago (when all of this was really in the limelight due to the Verizon case). Her strategy, to take file sharers head on was seen as to combatative and risked losing RIAA the upper hand. In her place is a new president with a new strategy: to crack open file sharing by asserting that file sharers are not simply illegally sharing music files, but also pedaphiles and porn peddlers (and potentially even terrorists).

From my perspective, some file sharing can be used to illegally share files and if users are doing so without upholding the terms of their content license, they're breaking the law. Plain and simple. However, I believe that Lessig has it wrong -- it isn't information that wants to be free, it's distribution that wants to be free.

And therein lies the driver behind RIAA and the recording industry against file sharing: file sharing bypasses the retail outlets and traditional distribution channels (some of which have been historically mob controlled).

All we can do as citizens is to oppose industry groups whenever they want to infringe on our rights -- regardless of how compelling their argument is. Just because they allege that their rights have been infringed doesn't mean I have to give up my rights.

I think was a wonderful post and the comments as well. I do think you are closer to Lessig's real position than you say based on what I've read of his work. The key to everything is clearly going to be finding a balance. I firmly believe the luddites of the recording industry are destroying themselves and pray no govt bailout of thier stupidy can occur. As Stephen Daedlus said and Paul Snively said in a different way above, "the ineluctable modality of the audible is time and the ineluctable modality of the visible is space"

Couple things. I always thought the "information wants to be free" was a Stallmanism. Digging around for attribution, I found this nice little essay. I don't recall it being a mantra espoused by Lessig, though.

I don't quite see how the proposed legislation increases the recording industry's ability to spy on us -- for the majority of cases, especially not WRT firewalls. I have a home firewall which in no way obscures the origin or destination of any IP packet. An anonymizing proxy would have this effect, in some cases. But even a firewall which also does NAT wouldn't necessarily be a violation, as the firewall itself could be considered the "end point" for purposes of discovering who is sending packets. My home firewall would not be, even in the broadest interpretation of the (Colorado version) bill, in violation, but it will definitely keep out all but the most determined "hackers, stalkers, and spies".

I agree with Jed on this. I think the law as proposed is pretty foolish- it's vague to the point of not actually meaning much, but I don't think it can be read as forbidding firewalling.

Firewalling and address translation are really two separate things. They're easily conflated, though, as they are often done at the same level, and the code involved is often intertwined- awkward turn of phrase, but hard to come up with anything better, given the variety of linkage methods in existence. Of course, there are security considerations involved in running the firewall software on the machine that is meant to be protected, but I'm not sure that they're all that germane to the home user.

But, as Jed points out, it's hard to see address translation as necessarily obscuring the point of origin, if all the machines involved are owned or controlled by the same entity. And reading the law otherwise would, think bring it under the commerce clause at the very least, as there simply aren't enough public IP addresses (with IPv5) to go around.

I see nothing dishonest about having more than one machine behind a router on a home network connected to the internet by a residential broadband connection, unless it violates the ISPs terms of service- and most cable and DSL companies have been wise enough to steer clear of actually forbidding that. I use a little linux box as a router and firewall, and I'd be pretty unhappy if I couldn't do that- probably unhappy enough to move up to commercial level of service.

So it's a dumb law, but I wouldn't worry too much about it. I can't see how it could possibly be enforced.

zak822 said: "At what point does "rent-seeking" reach a level where it is a problem in its own right?"

It seems to me that rent seeking is by definition a problem in its own right. If the rent were without significant value there would be no point in seeking it. And since the term "rent seeking" implies that the right sought is for property that would not be legitimately rentable by the intended beneficiary without some special dispensation it seems to me that rent seeking behaviors circumvent the basic fabric of our property laws. In addition they are very inefficient- the cost of pursuing a rent seeking policy may be a significant amount of the total rent thus acquired, and these costs are often not entirely, or even mainly, borne by the rent seekers. If you could accurately measure the costs of rent seeking, not counting the rents actually paid, I think you would find that they account for a pretty significant part of the GNP.

But I think we're well beyond the point of being able to actually do anything about it. How hard are you willing to fight to get the $1.00 going to a corn farmer removed from your tax burden? Not nearly as hard as the corn farmer who is receiving many $1.00 rents. And the prevailing political climate is one that sees regulation as an unlimited good- I don't think that you can reduce the level of rent seeking behavior without decreasing the level of regulatory activity that we undertake.

A few sites:

http://cyberlaw.stanford.edu/lessig/blog/

http://www.freedom-to-tinker.com/

http://volokh.blogspot.com/

http://www.corante.com/copyfight/

http://www.spywareguide.com/

Of course, if you hook up your neighbor, allowing him to avoid paying for his own connection, that goes over the line, as does leaving an open wireless router so that anyone in the street can get on your system…

Perhaps strangely, I wouldn't even consider this to be theft of service, and I don't think your ISP would, either. You're paying for the ability to shift a certain amount of data per month. I don't see a problem with choosing instead to shift some of your neighbor's data, or the data of random people on the street—or, say, the data of customers sitting in your coffee shop.

To wit, it's now possible to get wireless Internet access from just about any fairly well-trafficked outdoor area in San Francisco. This is thanks to an altruistic set of SF business owners who've decided to stick public wireless access points on their roofs, thus sharing their connection with anyone with a laptop and a Pringles can.

IMHO it matters nought that my evil machinations to mask the communications endpoint via a NAT enabled device and firewall combo will prevent the mighty DMCA powers from casting a hairy eyeball over my collection of circa 2000 perfectly legitimate and unshared music tracks (all ripped from the purchased CD sat on my shelf - not that the RIAA would know that from the PC media), in the hope that they can find something and thereby recover thruppence ha'penny...

Why? Mostly because the all the endpoints are physically within warrant tossing distance of each other so it doesn't matter one hoot in real terms - it's not as if I'm pretending to be Ui Poh Xi in Beijing. Also because I am in the UK so not directly affected - but I fear that wouldn't stop me wondering if I could expect to eat immigration floor tiles at JFK or Dullus with a cop's knee in my back on any subsequent vacation to the US just because my traffic tickled the nose of one of their sniffers and they could not trace the connection to source.

Of course if they do not feel able to accept my word as an Englishman that I do not possess any illegal media or other content then that's their problem. Because I choose to undertake basic security against the growing number of malicious script kiddies out there (a real "hacker" would have little difficulty bypassing the security) it does not give a greedy industrial complex or circuitously election-campaign funded lackeys the right to manipulate the legal system of the US (which I seem to recall was supposed to enshrine the rights of the individual above and superior to any other entity, but I’ve not checked recently) or any other country to gain free and easy access to my computers on a whim.

By comparison, through the virtue of closed curtains and locked exterior doors and windows the police do not have free and easy access to see that I am not sucking on a well stoked crack pipe or not getting overly familiar with a Thompson’s gazelle in the bathroom. That obviously does not give them the right to kick in the door to be see if they can catch me in the act of something illicit without prior evidence; nor to demand I leave the door open for a spot-check and therefore open to any thief that happens to be passing by to pop off with the TV under their arm (although as it weighs in at over 120 pounds it would be an interesting sight!). Nor would the police expect such draconian powers. Corporations and parties that represent their interests certainly should not be handed the equivalent on a silver platter through twisting the laws to their advantage.

I'm actually wondering how long it will take before a manufacturer of otherwise legitimate equipment affected by these amendments gets an injunction stuffed down their gullet by a competitor seeking to tie them in legal knots long enough to get a commercial advantage.

Just my tuppence worth :-)

[N]

Kat: I am pretty sure my terms of service agreement with ATT (now ComCast) states that I cannot provide service to anyone not a member of my immediate household, unless I am willing to pay the (much higher) business rate. They are given the franchise to provide this on a per house basis. DSL may not be so restrictive. The "service" mostly consists of the bandwidth provided to the modem, which is essentially throttled at that point, so sharing with all and sundry doesn't increase the use of that service from the provider's viewpoint, it just takes bandwidth away from me (which is loudly brought to my attention if I try to download a file while my son is playing Halo in the next room). Leaving a wireless network open to strangers might leave you (the "official" IP address holder) open to some difficulties if the stranger is into some of the more exotic and less legal information to be found on the internet. I know I would not want to be called in to explain how some kiddie porn files were distributed from "my" IP address. That this happens is not disputable, of course. A friend recently told me that when he got his wireless card running in his laptop, there were three networks besides his own that were available for connection, undoubtably belonging to neighbors who had not secured their systems.
Even though we know that a law is stupid and bad and ignores technological reality, prosecutors and judges (and juries) do not necessarily know this, and may not care. Innocent people are jailed quite often, and with this law, you wouldn't even have the satisfaction of being innocent (you do have a router, after all), just right.

I read Lessig's last book, "The Future of Ideas", and I remember he referenced the early 80s when movie companies were worried that consumers would rent a video once, then more than one person would watch it - possibly more than once. I think this same bad thinking is going on in the music industry now. They need to embrace file sharing and use it to their advantage. If they price their product correctly, misuse won't be such an issue.

I think the popularity of file sharing programs just goes to show that music has been overpriced for some time. My guess is that people still buy CDs they love, but now they download music that they wouldn't be willing to pay for in that expensive CD format. For instance, I occasionally listen to country radio stations, but don't like it enough to shell out the money for a CD. If mp3s weren't around, I just wouldn't have these songs. But since they are, I download some of them.

Before electronics, before electricity, before the hand-cranked gramaphone, the only way a musician could make money from his art was to perform. Same for actors. Painters and sculptors could sell the work, but any subsequent money made from the work (showing in a museum or reselling) was out of their hands. Before the printing press, writers couldn't really overcome the cost of hand-copying to make money from writing books.
Technology provided the means for these artists to make money from intellectual property. Technology created artificial controls that reduce supply/increase demand. But technology is now providing the means for consumers to bypass these artificial controls, and the producers are screaming bloody murder.
What constitutional or inalienable right is there to continue making money in ways you are accustomed to? None. Roll with the changes, change with the times, find new ways to make money.
If every Styx album came with autographed photos, I might be willing to repurchase every CD at a premium price. I certainly won't spend even $5 to buy a new CD when I know I can eventually find it somewhere online. And that's the way it should be.
I would love to be a writer. I fully recognize that the view I'm advocating may make it impossible for me to achieve that dream. So what? I can always work at another job and write on the side. If I'm a true artist, truly committed to the production of what I want to communicate, then monetary gain is of secondary importance, at best.
And we are seeing the new writing market emerge through the combination of Blogs and Paypal. The old institutions will crumble. And that's just how I think it should be, even if it is to my personal detriment, dream-career-wise.

Well, this takes the cake . So much for the "Information Age" . Game Over, Goodnight, History .
:(

-A

If every Styx album came with autographed photos, I might be willing to repurchase every CD at a premium price.

Nathan, I'm sorry not even if they coated the CD's in gold and gave them away would I be willing to buy a Styx album. :)

I would take one. Can you imagine what a GOLD PLATED cd would do in the microwave?

You know, I often get that reaction when I mention Styx. I'm starting to get the impression I shouldn't let my fandom be quite so noticeable...
But you get the idea.
'nother analogy/example*:
One of the reasons the postal service is bleeding out their ears is the advent of email. I pay most of my bills through email, not to mention keeping in contact with friends/family.
The postal service is taking it in the Economy of Scale. One postman costs just as much, whether he's carrying 1 piece of mail or 10000. And the number keeps dropping down.
Should the government pass a law against email just so that the postal service could stop losing money when technology has made a service obselete? Heavens, no.
Nor should laws be passed to save the music industry from obselesence.

*no numbers were actually crunched to form this opinion. Logic/reason was the basis of the thought process, so quit nit-picking and take it at face value.

On the other hand, the USPS has GOT to be making it up on all the eBay shipments...

I live in pennsylvania, the law was passed in November of 2000.

It's a joke!

They would have to arrest almost the entire state and since use is the crime the majority of criminals would be our children. There are not enough jails to enforce this law. I know most of the politicians, law enforcement and judicial systems are sitting behind firewalls and typing emails that violate this law every day. A law that isn't enforceable isn't a law.

Leonard and Matt Moore, you miss the point. Banning firewalls won't magically make the devices cease to exist--but it will allow some crusading prosecutor to haul you up on charges. Feel like volunteering to be a test case? Just think of it as your cybercivic duty.... :-)

And Joe, just because it's not enforceable en mass doesn't mean the guy I referred to above might not choose to single you out. Even if you end up prevailing, how costly will it be? That's why this is bad law.

Finally, Jane--regarding the matter of you paying for all the IP addresses you're taking, yes of course we should all be honest and not abuse things. But good grief, if your ISP is too dumb to know how to set people up so they can't get more addresses than they are entitle do, then they almost deserve to get cheated. (Note, I did say almost.) I mean, what would you say to a shopkeeper who complained about repeated theft when you found out they never locked their doors overnight? Sure, we'll prosecute the crooks if we find them, but meanwhile lock your damn doors! :-)

Yeah? What's wrong with protesting people? If we're such strong Americans, individuals, and minds, where's the action. We're too busy talking about it and not getting up to do something in the eyes of those who are taking this from us. We've been through worse crud than this PEOPLE! So lets just protest all together at once and get this over with. Well, it may be way out there and that is pretty hard to do, but haven't you all seen the propaganda that people secretly send with the shared files on Morpheus and Kazaa? Anyone get a picture with the words "STOP THE WAR" on it? I did and I see efforts that can be projected into the very material that THEY are trying to take away from us. Do you all see what I'm saying? Start a new propaganda! Well just think about AT LEAST. And then.... just maybe. Email me and LETS TALK FELLOW AMERICANS WE FOUGHT, LET'S FIGHT AGAIN

Yeah? What's wrong with protesting people? If we're such strong Americans, individuals, and minds, where's the action. We're too busy talking about it and not getting up to do something in the eyes of those who are taking this from us. We've been through worse crud than this PEOPLE! So lets just protest all together at once and get this over with. Well, it may be way out there and that is pretty hard to do, but haven't you all seen the propaganda that people secretly send with the shared files on Morpheus and Kazaa? Anyone get a picture with the words "STOP THE WAR" on it? I did and I see efforts that can be projected into the very material that THEY are trying to take away from us. Do you all see what I'm saying? Start a new propaganda! Well just think about it AT LEAST. And then.... just maybe. Email me and LETS TALK FELLOW AMERICANS WE FOUGHT, LET'S FIGHT AGAIN

Yeah? What's wrong with protesting people? If we're such strong Americans, individuals, and minds, where's the action. We're too busy talking about it and not getting up to do something in the eyes of those who are taking this from us. We've been through worse crud than this PEOPLE! So lets just protest all together at once and get this over with. Well, it may be way out there and that is pretty hard to do, but haven't you all seen the propaganda that people secretly send with the shared files on Morpheus and Kazaa? Anyone get a picture with the words "STOP THE WAR" on it? I did and I see efforts that can be projected into the very material that THEY are trying to take away from us. Do you all see what I'm saying? Start a new propaganda! Well just think about it AT LEAST. And then.... just maybe. Email me and LETS TALK FELLOW AMERICANS WE FOUGHT, LET'S FIGHT AGAIN

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