Complexity
Frequent visitors to this blog know that I got all excited about a complexity class run at MIT by the New England Complex Systems Institute over the winter break.
I just spent spring break (spring break II — a special year) in Washington, D.C., trying to understand a host of issues all at once. Likely outcomes of the Grokster case, the telcom re-do debate, patent policy, the application of campaign finance laws to the internet, spyware, and on and on. Everything was interesting, everything seemed connected, and the people I talked to were wonderful.
But if you really believed in and understood complexity, you'd have to think that it doesn't help to follow any of these quotidian internet policy issues. News events don't make it possible (usually) to predict which way the world is going to go. (This can be a very relaxing thought if you get a lot of email.)
It may be that the best we can do is to look for areas of rigidity and, when we find them, to do our best to shake things up. Or to work on creating systems that have lives of their own, because they keep referring back to themselves. I've been struggling to understand Essays on Life Itself, and sometimes I think I have a faint glimmer of understanding about what life is.
At any rate, it was a fine week.
We Can't Say What It Is, but We Know We Want It
The new FCC chairman, Kevin Martin, is calling for VoIP services to include 911 service. What's a VoIP service? Who's a VoIP provider? Do online gaming applications count? Do voice-enabled instant messaging clients count? What about voice-enabled customer service applications for online commerce sites?
And, to the extent we're worried about deceptive advertising by services (tricking people into THINKING they've got 911 service that hooks into an actual police station — this connection to police is, by the way, is a hard thing to do) isn't the FTC in charge of that kind of thing?
There are so many swamps out there. This one seems enormous. Even if we can surmount the definitional and jurisdictional high hurdles, if Verizon has trouble providing 911 service to its wireless customers, how are small guys going to accomplish this (without going out of business). Is the point to run them out of business?
So many questions, so many acronyms, so many lobbyists.
Legislating social policies for IP-enabled services
Today the House Energy and Commerce Committee (Subcommittee on Telecommunications and the Internet) held the third of three hearings about rules for IP-enabled services.
The hearing started an hour later than scheduled, which gave the crowd a heck of a long time to chat. We chatted. Exchanged cards. Prognosticated. The room grew warmer.
And then, when a few congressmen trickled in, an enormous panel of people got up and said We want Congress to create a huge variety of rules, right now, for all IP-enabled services. (IP-enabled services are everything you can think of that uses the internet protocol — web servers, applications, newspaper web sites, the DNS, you name it.)
The Alliance for Public Technology representative asked for “accessibility solutions” for “IP-enabled technologies.” Two mayors asked for control over public rights of way and local power over video services of all kinds. A representative of a state Public Utilities Commission asked for rules that would “help the telecom sector recover” and would provide “certainty for investment” (always a request of incumbents). Another state representative said that the internet was no different from an interstate highway, that new technologies are traps for the unwary, and that states need to be able to set speed limits and other rules. Someone from the National Governors Association said that phones had become very complicated, and now involved things like the world wide web.
An underlying theme had to do with cable franchise rules — apparently phone companies are looking for federalized rules that will allow them to provide video without being subject to franchising limitations.
At one point there were more than ten representatives there, all busily checking their blackberries. Gradually the congressmen present melted away, until only one was left. He looked around, and suspended the hearing, hoping that more people would be around later to ask questions. The crowd swung into chat mode again.
It's clear that there's already a draft bill out there that deals with these many desires. I have no idea how this will all work out, but I have to say I'm worried — there seems to be no push whatsoever in the other direction. No one is saying Do Less. And all the chatters have clients who want more.
On Intelligence
“On Intelligence” is the title of a book by Jeff Hawkins. Go right over to Amazon and get this book.
Hawkins demystifies intelligence. He takes apart the neocortex (schematically, at any rate), and shows us that making pattern analogies is what we do when we think at higher levels. Any theory of intelligence that could be applied to machines has to take into account the extensive feedback provided by the operation of the many levels of the neocortex and the particular physical architecture of the brain. Plus time.
We store sequences, associate them, and test our experiences constantly against these ideals. When patterns change, we notice. It's all practice. When we're steeped in a subject or a world, we can do more and more of this at lower levels, without having to run things all the way up the cortical flagpole.
So, for example, if you're talking to a first-rate First Amendment lawyer, he's made so many associations across so many years that he can instantly see patterns in facts that you wouldn't see. He can draw analogies with the greatest of ease. That's his intelligence — his pattern manipulation — working.
Hawkins reminds us that intelligence (like the ability to play an instrument) isn't magical. It takes practice.
at p. 168: “Experts and geniuses have brains that see structure of structure and patterns of patterns beyond what others do. You can become expert by practice, but there certainly is a genetic component to talent and genius too.”
Hawkins suggests that machines could certainly be built that would allow for feedback, sequence storing, and time — they might end up with very different “senses” than we humans have, but they'd be intelligent. The book is a challenge to entrepreneurs and techies to build those machines.
In the meantime, I'm thinking of developing a better mental filing system. If only office supplies for that were easily obtainable.
What's "distribution"?
Under the Copyright Act, copyright owners have the exclusive right to ”distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 USC Sec. 106(3). This exclusive “distribution right” has traditionally been interpreted to cover the right to convey a possessory interest in a tangible copy of the work — to hand someone a copy of your work.
The first sale doctrine in sec. 109 provides an important limitation on this very physical distribution right — once you've handed out a copy of your work to someone else, your distribution control over that copy is exhausted. As the legislative history of Sec. 103 said, “The copyright owner's rights under section 106(3) [the distribution right] cease with respect to a particular copy or phonorecord once he has parted with ownership of it.” So 106(3) is clearly all about affirmative, intentional distribution of “copies” and “phonorecords” in which works are embodied.
S. 167, the Family Entertainment Copyright Act, passed the Senate in February and the House last week. Among other things, it amends the criminal provisions of the Copyright Act, stating:
Any person who willfully infringes a copyright shall be punished as provided under section 2319 of Title 18, if the infringement was committed … by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
Notice how “distribution” is being defined as “making available on a computer network accessible to members of the public.” As Fred von Lohmann recently noticed, that's a big change from the traditional exclusive ”distribution right” set forth in 17 USC 106(3), which involves handing an existing copy to someone else. (Indeed, it's hard to see how this new, broad understanding of the “distribution right” — “making available” — could possibly be limited by the first sale doctrine.)
The report language for S. 167 says that
Section 103 creates a criminal penalty for the willful distribution of works being prepared for commercial distribution. The Committee has been made aware of numerous examples of efforts to camcord new movies during their opening days of release followed immediately by either mass duplication and distribution of DVD copies or Internet distribution of the same movie. Although the harm to the distribution of physical or Internet copies of works when legal copies are available has long been established, the Committee notes the larger harm caused by those who distribute copies of works even before they are legally available to the consumer…. Section 103 will ensure that there is a specific penalty for such illegal pre-release activity.
Notice that the word “distribution” is used over and over again. The report creates the impression that it is well-accepted that “distribution” (and, thus, the exclusive distribution right that goes by the same name) includes “making available on a computer network.”
Now, it is true that distribution of a copy or phonorecord can happen electronically. 17 USC 506(a)(2) says this already. But that's not the same thing as “making available” on a computer network.
It seems our Congressional representatives may have agreed without a great deal of discussion to language (”making available”) that will be cited in support of an expanded exclusive “distribution right” — infringement of which is criminal. Because “transmission” of an electronic copy is already covered by the distribution right, this may not be a big deal — it's a small step from “transmission” to “uploading.” And there's an argument that uploading is a material contribution to unlawful reproductions of electronic works by others (another infringing activity).
But this expanded distribution right does give another lever to content owners in negotiations with ISPs. If an ISP is able to see that some of its subscribers are operating servers or “making available” electronic material to others on a largescale basis, then it may be deemed to know that uploading is happening and (presumptively) infringement of this newly expanded exclusive “distribution” right is occuring. Content owners can put pressure on the ISP to (1)enforce terms of service that require subscriber compliance with applicable law; (2) require personal information of the subscriber to be made quickly available; and (3) kick off subscribers who are engaging in this activity. Most troubling of all, ISPs who see uploading by subscribers may be deemed to be contributory or vicarious infringers themselves.
The content industry would like to put ISPs in this uncomfortable position, and the language of S. 167 will be helpful. It's not clear what can be done about this — except to continually remind ourselves that the distribution right in 106(3) has not been expressly amended. Loose language about distribution in section 506 of Title 17 (the section amended by the Family Entertainment Copyright Act) doesn't change what section 106 of that same title means.
End of the week
There's a new (or, perhaps, revived?) journal at Harvard called Unbound. It calls itself a journal of the legal left. I've read several of the articles in the initial issue, and it seems to be searching for new ideas and critical theories. And there are some reflections by law students about what it's like to be changed by law school.
University of Washington professor David Levy has been working on “Information, Silence, and Sanctuary.” He's worried about the future of contemplative scholarship in the digital age.
Participatory Culture will release in June an open source Bittorrent-based player for internet TV that will allow users to subscribe to channels, will allow organizations to provide new sources of channels to their fans with no bandwidth costs, and will generally make large media organizations' plans for IPTV difficult.
So — more information, more law journals, and more sanctuaries. A good week.
May 2 panel
On Monday, May 2, at the beautiful NYC Bar Assn building (42 W. 44th) at 6pm, I'm moderating a panel discussion about P2P policy.
The panelists will be:
Sarah Deutsch, Associate General Counsel, Verizon
Adam Eisgrau, General Counsel, P2P United
Sonia Katyal, Fordham Law School
Steve Marks, General Counsel, RIAA
Don Verrilli, Jenner & Block, who argued the Grokster case in front of the Supreme Court.
The format will be two-minute “elevator speeches” from each panelist, and then a debate (who has patience for canned presentations?). Send me suggestions for questions you'd like to have asked. And if you're in New York, please come. It's free.
The Art of the Violin
There is no DVD called “The Art of the Viola.” (Insert viola jokes here.) But there is one called “The Art of the Violin,” and watching it is heartbreaking. This is not news (the DVD came out five years ago), and there is nothing to link to here — this is about sound and memory.
There's footage of Elman, Kreisler, Ysaye, Thibaud, Milstein, Heifetz, Stern, and Menuhin, as well as others. And there are stories of prodigies who died too young and whose names are unfamiliar to us. Itzhak Perlman and Hilary Hahn comment on the clips, Perlman evoking over and over again with narrowed eyes and thumb-pressed-against-finger fine gestures what the sound of these players meant to him. Hahn is (still is — and she's a blogger) completely American and straightforward.
Both Perlman and Hahn talk about sound and character — a lot. Everything is varied and intentional for these players. Heifetz made other violinists want to give up, with his composed demeanor, impeccable left hand, and fast-sweeping bow. Menuhin was the most natural player anyone had ever seen, and there are wonderful clips of him as a pre-teenager in San Francisco. Kreisler stands on the deck of an ocean liner, legendary and craggy. Milstein fiddled and experimented, never stopping, like a watchmaker, looking for the perfect fingering that would make everything clear.
The key thing, the thing to remember, is that each of these guys sounded entirely just like himself. You could tell who was playing without hearing the name. Like paintstrokes or tricks of words, each one of these violinists had a musical personality that was instantly identifiable to the people who listened.
I remember seeing Menuhin give a master class on the Bach Chaconne. As he was playing, he stopped and bowed. He said, “I bow because this moment is the center of this great work.” And then he slowly took up his violin again and played, sounding only like himself.
India and Hollywood
From India, this message:
Even in a developed country, where the monopoly profits of the domestic IP rights holders are recycled through the economy and so benefit the public in varying degrees, there is continuing debate on the equity and fairness of such protection, with some even questioning its claimed social benefits. Given the total absence of any mandatory cross-border resource transfers or welfare payments, and the absence of any significant domestic recycling of the monopoly profits of foreign IP rights holders, the case for strong IP protection in developing countries is without any economic basis. Harmonization of IP laws across countries with asymmetric distribution of IP assets is, clearly, intended to serve the interest of rent seekers in developed countries rather than that of the public in developing countries.
And this:
The message of the Development Agenda is clear: no longer are developing countries prepared to accept this approach, or continuation of the status quo.
In other news, the European equivalent of the MPAA is suggesting that ISPs agree to immediately forward subscriber personal information (with no right to object) where infringement is suspected; filter/block download sites; and prohibit their subscribers from operating servers.
All of this is happening at WIPO. The MPAA wants mandatory vigilanteeism, and is pushing for ISPs to serve as judge and jury and prosecutor. Meanwhile, India is fed up with overreaching assertions of content protection. Brazil, now a center of open source enthusiasm, has had enough.
On the developing countries front, WIPO has agreed to hold more (and more open) meetings. It's going to be a long slog on the ISP liability front. We need an India to speak its mind on ISP liability. If only the US had the vision to take the lead.
Map of blogs
Someone recently told me that techies could not care less about blogs. Blogs do seem awfully early in development — primitive.
But while we're still swiming in the primordial soup, Jeff Jarvis points us to some great lists of blogs.