Helmholz Will Have His Revenge on Seattle
So, Gus has some things to say about my previous post on Sony. Check out Professor Picker's paper for yourself here (Acrobat required). I haven't read it myself, though I plan to shortly.
Now, to deal with Gus and his mad ramblings. I'll summarize my argument briefly, mention his strongest points, and analyze them.
My point was quite simple. People often talk about technological solutions to IP infringement as if they make law obsolete. What they don't recognize is that technological solutions exist to protect most property, and we still find the law useful. This is, in part, because protection technology begets infringing technology, and the resulting arms race is costly with no net benefit to society. The law can circumvent that wasteful struggle with a credible threat to bring down the hammer on thieves. Meanwhile, however, the law is fairly relaxed about pirating technology (it only has to have substantial non-infringing use to be legal). My argument, following Picker, was that this doesn't make sense and shouldn't be justified by technological triumphalism.
Gus argues that the Sony standard (a product is legal so long as it has substantial non-infringing use) is used all the time, not just for IP. I don't know if this is true, but if it is, I don't think that's a good thing. The problem with that standard is that it doesn't weigh the costs of allowing certain products that, while sometimes used legitimately, are often used for criminal purposes. A nuanced approach would ask about the relative benefits and costs of the product. Iron pipes can be used to hit people, but it would be very expensive to make pipe that couldn't be used for this purpose. Furthermore, the benefit of plumbing far outweighs the cost of pipe violence. Guns are a closer call, and with new technology maybe gun makers should have to equip their guns with locks so that only the owners can use them. The point is, we don't ignore the costs that guns impose on society; we balance them against the benefits that they provide, and we bear in mind the cost of making "safe" guns that can't be used illegally. We should do the same thing with digital equipment.
Gus says: "I challenge anyone to demonstrate that there is a better way to accomplish the legal ends enabled by P2P networks than that currently in place." I don't know - probably Picker has some ideas - but anyway if that's true, then P2P networks should pass a more stringent test than Sony.
Gus then argues (I think) that there are large positive externalities to the technological arms race. This is like forests - if all the trees could commit to growing ten feet shorter, they would all save that much energy and would get the same amount of sunlight. Luckily, they can't make that deal, or we wouldn't have as much lumber. Technological advance might be the lumber that results from otherwise wasteful battles over copyright protection. Gus says this is indeterminate, so without empirical determination we don't really know which way the argument goes. I'm not so sure - I think positive externalities are rare enough that the burden of proof is on those who claim their existence. Otherwise speculative benefits are matched against demonstrable costs, and the results are skewed.
Gus then asks: "The question is therefore become: do we arbitrarily destroy one side in this battle, because we know that they can not co-exist, but do not know which is better; or is there a better solution?"
At this point I think Gus is getting a little, well... agnostic about right and wrong. Welcome to the club! Seriously, though, the "sides" are those who have created something of value and want to enjoy its benefits and, on the other hand, those who want to enjoy valuable things without paying for them. I don't think it's that hard for law to pick sides in this case... the fact that Gus does is a sign of how far the technological elite have strayed from the basic precepts of fairness and efficiency. I think this is a common problem among techies; they have disdain for the government because of its ham-handed and ignorant approach to technology, and they aren't sensitive to the advantages of traditional law. I'm not arguing for blind application of outmoded law - I'm just pointing out the aspects of law that aren't outmoded and asking why we should ignore them. The techies are asking us to just trust them. I know a few techies, and I'm not buying it.
Now, to deal with Gus and his mad ramblings. I'll summarize my argument briefly, mention his strongest points, and analyze them.
My point was quite simple. People often talk about technological solutions to IP infringement as if they make law obsolete. What they don't recognize is that technological solutions exist to protect most property, and we still find the law useful. This is, in part, because protection technology begets infringing technology, and the resulting arms race is costly with no net benefit to society. The law can circumvent that wasteful struggle with a credible threat to bring down the hammer on thieves. Meanwhile, however, the law is fairly relaxed about pirating technology (it only has to have substantial non-infringing use to be legal). My argument, following Picker, was that this doesn't make sense and shouldn't be justified by technological triumphalism.
Gus argues that the Sony standard (a product is legal so long as it has substantial non-infringing use) is used all the time, not just for IP. I don't know if this is true, but if it is, I don't think that's a good thing. The problem with that standard is that it doesn't weigh the costs of allowing certain products that, while sometimes used legitimately, are often used for criminal purposes. A nuanced approach would ask about the relative benefits and costs of the product. Iron pipes can be used to hit people, but it would be very expensive to make pipe that couldn't be used for this purpose. Furthermore, the benefit of plumbing far outweighs the cost of pipe violence. Guns are a closer call, and with new technology maybe gun makers should have to equip their guns with locks so that only the owners can use them. The point is, we don't ignore the costs that guns impose on society; we balance them against the benefits that they provide, and we bear in mind the cost of making "safe" guns that can't be used illegally. We should do the same thing with digital equipment.
Gus says: "I challenge anyone to demonstrate that there is a better way to accomplish the legal ends enabled by P2P networks than that currently in place." I don't know - probably Picker has some ideas - but anyway if that's true, then P2P networks should pass a more stringent test than Sony.
Gus then argues (I think) that there are large positive externalities to the technological arms race. This is like forests - if all the trees could commit to growing ten feet shorter, they would all save that much energy and would get the same amount of sunlight. Luckily, they can't make that deal, or we wouldn't have as much lumber. Technological advance might be the lumber that results from otherwise wasteful battles over copyright protection. Gus says this is indeterminate, so without empirical determination we don't really know which way the argument goes. I'm not so sure - I think positive externalities are rare enough that the burden of proof is on those who claim their existence. Otherwise speculative benefits are matched against demonstrable costs, and the results are skewed.
Gus then asks: "The question is therefore become: do we arbitrarily destroy one side in this battle, because we know that they can not co-exist, but do not know which is better; or is there a better solution?"
At this point I think Gus is getting a little, well... agnostic about right and wrong. Welcome to the club! Seriously, though, the "sides" are those who have created something of value and want to enjoy its benefits and, on the other hand, those who want to enjoy valuable things without paying for them. I don't think it's that hard for law to pick sides in this case... the fact that Gus does is a sign of how far the technological elite have strayed from the basic precepts of fairness and efficiency. I think this is a common problem among techies; they have disdain for the government because of its ham-handed and ignorant approach to technology, and they aren't sensitive to the advantages of traditional law. I'm not arguing for blind application of outmoded law - I'm just pointing out the aspects of law that aren't outmoded and asking why we should ignore them. The techies are asking us to just trust them. I know a few techies, and I'm not buying it.
posted by James | 11:18 PM
1 Comments:
Yeah, the reference is somewhat obscure. Seattle = high tech. Helmholz = traditional property law. Reference = "Frances Farmer Will Have Her Revenge on Seattle," a Nirvana song.
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