One more thing that Jack Valenti was wrong about

Hello, everyone! Sorry for the recent period of silence – I was in a cabin with no cell phone service and terrible Internet connection, so I decided to take a break from the web. It was nice; I got some good reading done (No Place to Hide by Glenn Greenwald, which I recommend to everyone). Anyways, I have returned today to discuss one of my favorite topics: wrong statements by Jack Valenti. But today, the wrongness is more subtle, so I’m giving it a more thorough discussion.

Jack was worried about the rising cost of making movies. In this article from 1998, he said: “Costs remain a great shaggy beast prowling the movie forest, a fiscal Godzilla slouching toward our future”. And in this article from 2004, he compared costs to a “tapeworm nibbling and chewing at the fiscal molecules of our business”. He was right to be worried; films these days seem to be really expensive! Just look at Wikipedia’s list of most expensive films. Even if we adjust for inflation, only 6 of the 50 most expensive films of all time were produced before the year 2000.

Why is the new stuff so costly? Given that technology is constantly improving, it should be getting cheaper to make movies, since the improved tech makes it faster and easier. Why do costs so rapidly outpace inflation? To me, this suggests inefficiency. And it’s an inefficiency that isn’t necessary.

Look again at the lists of most expensive movies. What I notice is that these costly films are all American. Seriously, all of them – correct me if I’m wrong, but I didn’t see a single non-American film on either of the all-time lists. But America is not the only country making movies; in fact, America doesn’t even make the most movies. India and Nigeria make more than America does. They seem to have plenty of movies to go around, but they don’t spend nearly as much on each individual movie as American companies do.

What is their secret to achieving greater efficiency? I believe that it is lack of copyright. Those countries lack the will and the power to enforce copyright the way America does. Economist’s article on Nigeria notes that it takes just 2 weeks for unofficial copies of a film – sold for profit, no less – to saturate the market. And India’s film industry has no qualms about copying other people’s films. They can’t enforce it, and they don’t want to, and the numbers suggest that they don’t need to.

This baffles the American copyright maximalists. Techdirt sums up their confusion nicely in this article, in which Mike Masnick notes that the U.S. Chamber of Commerce is calling for India to strengthen its copyrights to save their film industry. They say that India needs to “seize on this opportunity” to protect their “fledgling industry”, even though they already have the largest film industry in the world (which also happens to be one of the country’s largest employers). Given that Bollywood has come this far without “deference for protecting and enforcing creative rights”, why should they start now?

Alas, the maximalists do not understand this. They continue to call for greater control, even as that control stifles themselves. They seek to rule everything, and choke to death on their own red tape. Jack couldn’t see a solution to the “fiscal Godzilla” driving costs upward because he was unwilling to even consider the best solution: giving up control. His own drive to control his “property” was the very tapeworm eating his business.

I do not know how long American films can continue getting more expensive. They can’t go up forever, though I expect things will get worse before they get better. But I know that things could get a lot better, starting today, if they’d stop doing things the Valenti way and loosen up. And that is why I say once again that Jack Valenti was wrong, not for what he said this time, but for what he didn’t say. He could not see that the “great shaggy beast” preying on his beloved industry was, in fact, himself.

Against Divided Ownership

There are some libertarians who think that some sort of “intellectual property” is possible; they argue that the practice of privatizing information could survive the free market. Murray Rothbard, may he rest in peace, was one of those libertarians, and he makes an argument for a kind of copyright via contract in chapter 10.7 of Man, Economy, and State:

It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copy­right is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.” Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s crea­tion by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the de­fendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.

We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word “copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property out­right to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the con­tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is there­fore a logical device of property right on the free market.

He elaborates on this theory in The Ethics of Liberty:

There is, however, an exception to the right to use and disseminate the knowledge within one’s head: namely, if it was procured from someone else as a conditional rather than absolute ownership. Thus, suppose that Brown allows Green into his home and shows him an invention of Brown’s hitherto kept secret, but only on the condition that Green keeps this information private. In that case, Brown has granted to Green not absolute ownership of the knowledge of his invention, but conditional ownership, with Brown retaining the ownership power to disseminate the knowledge of the invention. If Green discloses the invention anyway, he is violating the residual property right of Brown to disseminate knowledge of the invention, and is therefore to that extent a thief.

Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.

A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.

Alright, did you follow with that? Because I’m actually having trouble with it.

Rothbard’s hypothetical “copyright” is actually a pretty good description of trade secret and non-disclosure agreements. But modeling such contracts as exchanges of property doesn’t make sense to me. I think it’s more natural to think of them as exchanges of services. An exchange of services can be as simple as “you scratch my back, I scratch yours”. In the case of an NDA, the exchange is: “I tell you this information, you don’t tell anyone else this information”. This is all well and good, but it has some complications. For instance, how long must the receiver keep the information secret? In the case of the backscratchers, there’s very little need to discuss long-term obligations, because you both get your backs scratched right then and there, but when you agree to not do something, how long do you have to not do it?

Rothbard assumes that this sort of contract will be binding “in perpetuity”, but that’s not a safe assumption! Why would a free market decide that you can be bound to eternal silence in exchange for receiving a particular piece of information? I can see why people would want to enforce this contract on others, but I can also see that people wouldn’t want themselves to be bound by such contracts. I think that a true free market would at least try to find a compromise between these extremes. I also think that a true free market wouldn’t automatically assume the inviolability of any contract, let alone contractual copyright. For a good explanation why, I recommend reading The Myth of the Rule of Law by John Hasnas. In that essay, Hasnas explains why there should be a free market in the law itself, and showing that a “one-size-fits-all” approach like we have now is the last thing that a free market in law would produce. As for what a market in law would produce, here’s an excerpt:

Although I have no crystal ball, I suspect that a free market in law would resemble the ancient system a great deal more than the modern one. Recent experiments with negotiated dispute-settlement have demonstrated that mediation 1) produces a higher level of participant satisfaction with regard to both process and result, 2) resolves cases more quickly and at significantly lower cost, and 3) results in a higher rate of voluntary compliance with the final decree than was the case with traditional litigation. This is perhaps unsurprising, given that mediation’s lack of a winner-take-all format encourages the parties to seek common ground rather than attempt to vanquish the opponent and that, since both parties must agree to any solution, there is a reduced likelihood that either will wish to reopen the dispute. Given human beings’ manifest desire to retain control over their lives, I suspect that, if given a choice, few would willingly place their fate in the hands of third-party decisionmakers. Thus, I believe that a free market in law would produce a system that is essentially compositional in nature.

In other words, any contract between seller and buyer would be subject to negotiation and mediation. I doubt that a contract of perpetual silence would survive under such circumstances. (Also, I must point out that Rothbard argued that blackmail should be legal. If that’s the case, then when you tell someone a secret but insist that they can’t share it, don’t they have a right to “blackmail” you into compensating them for keeping the secret? But I digress)

Perhaps Rothbard sensed this problem with contractual copyright, because he tries to explain that what’s really at stake are property rights, not just contractual obligations. He insists that you can sell something in part, as in the example with Brown’s mousetrap. Brown sold Green the right to use the mousetrap, but not the right to copy it (and certainly not the right to sell copies!). J. Neil Schulman elaborates on this in his Logorights essay, saying that rights come in “bundles”, and that you can separate and sell them.

Well, I don’t agree with Schulman, and I don’t agree with Rothbard, either. The fact of the matter is that “rights” are not individual things that can be separated from each other. In fact, rights are kind of nebulous, but if we’re going to understand them and implement them, we have to understand that they are rooted in possession. Rothbard and Schulman both acknowledge this, yet they both still think that rights can be split up, even when possession is not split. This just doesn’t work. For a good explanation why, let me quote from Anthony de Jasay’s piece, Your Dog Owns Your House:

In the broad scheme of things, all this is part of the universal system of exchanges. Some of these exchanges may be involuntary. Such is the case where redistribution, a coercive act, is taking place. We then lose the trace, the precise measure and the assured reciprocity of contributions to wealth and income, but this circumstance can hardly serve to justify the very redistribution that has caused it. However, where exchanges are voluntary, tracing and measuring become, in a strong sense, otiose and irrelevant. For in a voluntary exchange, once each side has delivered and received the agreed contribution, the parties are quits. Seeking to credit and debit them for putative outstanding claims is double counting.

Most modern theories of how society ought to work rest on some idea of agreement. Almost invariably, however, the agreement is fictitious, hypothetical, one that would be concluded if all men had equal “bargaining power,” or saw things through the same “veil” of ignorance or uncertainty about their future. Or felt the same need for a central authority. The social contract, in its many versions, is perhaps the best known of these alleged agreements. All are designed to suit the normative views of their inventors and to justify the kind of social arrangements they should like to see adopted. Yet the only agreement that is not hypothetical, alleged, invented is the system of voluntary exchanges where all parties give visible, objective proof by their actions that they have found the unique common ground that everybody accepts, albeit grumblingly, but without anyone being forced to give up something he had within his reach and would have preferred. The set of voluntary exchanges, in one word, is the only one that does not impose an immorality in pursuit of a moral objective.

de Jasay is arguing against redistribution, showing how a logical application of it leads to Fido having a property right on your territory, but the same argument works just as well against Rothbard’s proposal of divided ownership. Voluntary exchanges should be brief and well-defined, and property should remain in the control of whoever actually possesses it.

This is the kind of property rights that make sense to us as humans, and the kind of rights that are possible to enforce while still preserving liberty. If I may quote from Neil Gaiman’s argument with his agent:

Her point of view: The Kindle reading you the book-you-just-bought infringes the copyright (or at least, the rights) to the audiobook. We’ve sold audiobook rights and print book rights as separate things. We must stop this.

My point of view: When you buy a book, you’re also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one’s going to confuse it with an audiobook. And that any authors’ societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what’s good about them with it.

In other words, when you own something, you get to own it. You control all of it. If somebody wants to sell me a book but not let me copy it, they can negotiate a mutually advantageous contract with me. If they don’t feel like doing that, then they can either sell me the book outright or just forget about the sale.

We’ve wandered far from this principle, to the point that media companies routinely treat their own customers as enemies. This is inexcusable, especially to libertarians like me. It’s time to drop this nonsense, and stop pretending that we can divide up ownership.

Addendum: Valenti, continuing to be wrong

First off: in my previous post, I thank Timothy Wu, Eric Brander, and Wikiquote for helping find quotes, but my thank-you note makes it sound like these people helped me personally. They did not; they provided the quotes from Valenti to the whole world, not just me. I alone am solely responsible for the quotes I picked out, but I still thank the previously mentioned folks for making the quotes easier to find.

Now, then. There were a few Valenti quotes that I wanted to include in my last post, but I felt like I couldn’t find a good place for them. So, they’re going here. Without further ado, more incorrect statements from Jack Valenti, starting with his thoughts on a fan edit of a film:

It’s like drawing a mustache on the Mona Lisa.
– from this New York Post article, 8 June 2001

Just so we’re clear here, Valenti was complaining about The Phantom Edit, a fan-made remix of The Phantom Menace that received praise from Star Wars fans, compliments from professional critics, and condoning from Lucas and Lucasfilm. And Valenti compared it to puerile vandalism. Then again, maybe he’s paying it a compliment; some people consider drawing a mustache on the Mona Lisa to be fine art

I found the most convincing part to be the working stiffs, the guys who have a modest home and kids who go to public schools. They make $75,000 to $100,000 a year. That’s not much to live on. I don’t have to tell you that.
– from this Entertainment Weekly Article, 18 April 2003

Here, Jack is talking about those anti-piracy PSAs that keep showing up before the film finally plays, telling us how copying is stealing and how if we don’t pay for movies, all the working class of Hollywood will go out of business. To put the numbers in perspective, the global average yearly income in 2010 (made by averaging the GNI per capita) is about $11,000 per year, according to this World Bank report. Here in the USA, our GNI per capita is currently about $53,000 per year, according to the latest data. For further reference, the official poverty line in the USA is $23,550 and under for a family of four. And here’s Jack, trying to stir our sympathies for people who earn a hundred grand a year in show business. Won’t somebody think of the poor little rich people?

Of course, before he retired, Jack’s salary was $1.35 million per year, so maybe he has a different perspective on money than the rest of us.

What needs to happen is we all sit down together in good-faith negotiations and come to some conclusions on how we can construct a broadcast flag (for keeping digital TV content off the Internet), on how we plug the analog hole (allowing people to record digital content off older televisions and other devices), and how we deal with the persistent and devilish problem of peer-to-peer.

There are more than nine and a half million broadband subscribers now. Once those large pipes and high-speed access subscribers begin to increase, we can be terrorized by what’s going on.
– from this interview with John Borland, 4 April 2002 (archived on 3 June 2002)

In that interview, Valenti is speaking in favor of the proposed CBDTPA, which would have mandated the inclusion of so-called “trusted computing” hardware in all digital devices (called the “Fritz chip” after the bill’s sponsor, Ernest “Fritz” Hollings). As usual, Jack had no idea how technology actually works (and neither did Hollings). “Trusted computing” leads to some terrible consequences. Richard Stallman, who does know how technology works, calls it “treacherous computing”, describing it as a “plan to take away our freedom” that would create a “paradise for corruption”. And here’s Jack, saying that we need to have “good-faith negotiations” to figure out how to implement this. But it gets better; not only is the plan evil, it’s also stupid. Here’s Edward Felten’s take on the Fritz chip:

This was the digital traffic cop that would sit inside digital media devices and prevent them from doing bad stuff. But it’s worth noting that the law would have, the bill would have included the Fritz chip in every digital media device that was built in the United States. And there are a great many diverse digital media devices. Here are some examples. Big Mouth Billy Bass is a digital media device, because he plays music that’s recorded in digital form. Also the electronic whoopie cushion, as advertised on the Howard Stern show, plays recorded digital content which happens to be copyrighted. Think about that. Any my personal favorite the Kung Fu Fighting Hamster. I actually have him here to give you a performance. That’s copyrighted audio. Not to mention other devices like digital hearing aids, which would have to vet the sounds that came into a listener’s ear to make sure they weren’t copyrighted, and digital sewing machines which would have to vet the patterns of stitchery that were to be put onto cloth to make sure they weren’t copyrighted. Because in fact, embroidery patterns are copyrightable, and Senator Hollings brought to Capitol Hill to testify a person who makes their living by creating embroidery patterns.

So that was problem number one, the Fritz chip would have be built into nearly everything, including devices where it clearly wasn’t needed. The bigger problem was problem number two, how was this thing going to work? What technology could you design which would actually prevent bad things from happening? Well here’s what the Hollings bill said about this: It said that the, whatever the Fritz chip, whatever the design of the Fritz chip was, it should be reliable, renewable, resistant to attack, readily implemented, modular, applicable in multiple technology platforms, extensible, upgradable, and not cost prohibitive. Which is all well and good as a goal, but again the question, how is this thing going to work? And the truth is that nobody who knew much of anything about technology had any idea of how you could possibly do such a thing. And it was, in testimony I submitted to the Senate I likened the standardization of the Fritz chip to the creation of a standard system for teleportation. And it just wouldn’t do for the Senate to pass a bill that said we will make a standard for teleportation and we’ll do it within eighteen months. After that we’ll teleport all over the place.

And the fundamental reason why nobody knew how to build a Fritz chip is because of this dilemma: Any Fritz chip you built, had to either to allow universal computers or ban them. If you allow universal computers then you allow consumers to do absolutely everything you’re afraid they’ll do. And then what’s the point? Or if you ban them then you’re throwing out the baby with the bathwater. And we no longer have universal computers, we no longer have a universal Internet and the entire computer revolution goes out the window. Much too high a price to pay to protect ourselves against copyright infringement.
– from this talk at Princeton University, 12 October 2004

The Fritz chip: designed to take away freedom, inherently impossible to implement, and endorsed by Jack Valenti. After all, we have to do something about all those devilish college kids terrorizing the MPAA with their P2P software. And when John Borland asked Jack for a response to those who felt that “the Hollings bill would take away some of their rights”, Jack’s response was: “What rights are we talking about? I’m not trying to be glib.” Let me give a non-glib answer: the right to control our own computers and the right to securely communicate. You can’t stop P2P without killing either of those.

But Valenti doesn’t much care about the right to control your own computer:

I do not believe that you have the right to override an encryption. Because if you have the right to do it, everybody can do it. For whatever benign reason you have, somebody else has got one even more benign. But once you let one person deal in a digital copy — and I don’t have to tell you; you know far better than I that, unlike in analog, the ten thousandth copy is as pure as the original — it is a big problem. So once you let the barriers down for your perfectly sensible reason, you gotta let it down for everybody…
Let me put it in my simple terms. If you take something that doesn’t belong to you, that’s wrong. Number two, if you design your own machine, you can’t fuss at people, because you’re one of just a few. How many Linux users are there?
– from this interview with Keith Winstein

Keith Winstein is arguing for the right of Linux users to build and use computers that can get past access control measures without having to obtain a “license”. But Jack insists that Keith and his fellow Linux users (like me) do not have such a right. Why? Because if they did have such a right, then they could easily decrypt their DVDs and record broadcasts, and they’d have lovely, shareable digital files, which are “a big problem” for Mr. Valenti because they’re too easy to share. And after all, to share those files would be “to take something that belongs to somebody else”, so we just have to prevent everyone from overriding encryption, don’t you see?

And then there’s the right to securely communicate:

My second recommendation is to resist those who are clamoring for a copyright exemption for on-line service providers. On-line service providers and others have a key role to play in freeing cyberspace of the taint of copyright lawlessness. Accountability for copyright violations committed by users is as essential for advancing this indispensable goal.

Who is responsible if a valuable copyrighted work is downloaded from a provider, and then copied on a digital video machine from which thousands of copies can be made, the last copy as pure and pristine as the first? And if no one can be held responsible, then who and what is to prevent the flood that will surely follow? This is a loophole larger than a parade of eight-wheelers through which a dam-busting avalanche of violations can rupture the purpose of your bill every day.

Although there has been much said about the dire consequences of applying existing standards of copyright liability to on-line service providers, in truth, there is as yet no evidence of any disfunction [sic] in the statute that requires fixing. No court has found an on-line service provider to be guilty of infringement except where the provider participated in infringing activity or was actually aware of infringing activity carried out by a user of the on-line service. Despite what you have heard, there is no imminent threat of debilitating damages against “innocent” on-line service providers.
– from testimony to the House of Representatives, 7 February 1996 (archived on 26 February 2005)

Well, I’m all for freeing cyberspace from the “taint” of “lawlessness”. Let me quote a successful European politician:

One of the primary demands of the Pirate Party has been that the same laws that apply offline should also apply online. I think it’s an entirely reasonable thing to demand; the Internet is not a special case, but part of reality. The problems appear when an obsolete but powerful industry realizes that this just and equal application of laws means they can’t enforce a distribution monopoly any longer.

The politician was Rick Falkvinge, describing here why we should insist on having the same legal protections online as offline, including privacy, postal secret, and due process. Rick goes on to describe how media companies have pressured on-line service providers to help them wiretap and censor online communication, and points out that we wouldn’t let this kind of thing happen to postal communications, so why are we putting up with it happening online?

And as for there being “no imminent threat of debilitating damages”, we have good evidence that there is such a threat. Innocent people are getting hurt, and more will get hurt if people keep favoring copyright over other rights. Jack Valenti should have known this and cared about this, but he chose not to.

But I shouldn’t be surprised that he’d do something like that. After all, he was the kind of guy who said things like this:

I think lobbying is really an honest profession. Lobbying means trying to persuade Congress to accept your point of view. Sometimes you can give them a lot of facts they didn’t have before.
– from an interview with Derek Slater

An honest profession, you say? Oh, Jack. No wonder you get everything so wrong.

Jack Valenti is wrong about everything

(I’d like to thank Timothy Wu, Eric Brander, and everyone at Wikiquote for helping me pick out quotes for this article)

I have previously said some mean things about Jack Valenti, late head of the MPAA. I am not here to unsay these things, because Jack deserves to have some harsh words thrown at him. After all, he’s the guy who famously compared the VCR to a serial rapist and killer:

We are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright…

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
– from these hearings discussing home recording of copyrighted works, given before the House of Representatives, 1982

“Mr. Chairman, if we don’t prevent people from recording shows from off the air, they will rape our profit margins and murder our business model!”

But where there’s smoke, there’s fire, and someone capable of saying something that wrong in front of Congress has almost certainly said all kinds of other wrong things. So let’s have a look at the other wrong things that Jack Valenti has said.

There is no fair use to take something that doesn’t belong to you. That’s not fair use…Now, fair use is not in the law.
– from this interview with Peter Rojas
What is fair use? Fair use is not a law. There’s nothing in law.
– from this interview with Derek Slater

Let me just remind everyone that fair use is defined in law and it’s considered very important by many people. Jack himself displays some knowledge of the reality of fair use later on in both interviews, but it’s clear that he doesn’t like it. Now, it so happens that I don’t like “fair use” much, either. My problem with fair use is that it’s too weak. In the words of Larry Lessig, “fair use in America simply means the right to hire a lawyer to defend your right to create”. That’s not enough for me. But for Jack, it’s just too much that fair use exists at all, and if he had his way, he’d do away with it.

Copyright term extension has a simple but compelling enticement: it is very much in America’s economic interests.
– from this testimony before the 104th Congress

Michele Boldrin and David K. Levine disagree, and they’ve made a thorough case here. They’re not the only ones; Rufus Pollock has made a case that optimal copyright terms ought to reduce over time, and that the current optimum is probably 15 years (I still think the optimal term is zero, but I’m an edge case). But in the face of a long tradition counting such members as Thomas Macaulay and Thomas Jefferson and now bolstered by respectable academics and economists, Valenti dismisses them all and declares that his view – the opposing view – is “simple but compelling”. You’d like to think so, wouldn’t you, Jack?

Whatever work is not owned is a work that no one protects and preserve. The quality of the print is soon degraded. There is no one who will invest the funds for enhancement because there is no longer an incentive to rehabilitate and preserve something that anyone can offer for sale. A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. How does the consumer benefit from the steady decline of a film’s quality?
– from the same testimony before the 104th Congress

Evidently, Jack never heard of Project Gutenberg, or the Internet Archive, or any number of people who happily take upon themselves the task of preserving and sharing knowledge and culture, especially when that culture is in the so-called “public domain”. He talks about information as though it were a physical thing that could wear out, ignoring the fact that information is naturally renewable, and that culture grows in value the more it is shared. A public domain work is “owned” by everyone, meaning that everyone has the opportunity to protect, preserve, rehabilitate, and enhance it. If you want a really good study of how the “public domain” helps make works available when copyright fails, look no further than the analysis of Paul Heald, who wrote a couple of papers showing how old books and music just tend to disappear until their copyright expires, at which point they come surging back to life (Christopher Sprigman provides a good summary). In short, Jack is wrong, and we have the data to prove it.

But you’ve already got a DVD. It lasts forever. It never wears out. In the digital world, we don’t need back-ups, because a digital copy never wears out. It is timeless.
– from the interview with Derek Slater

Here, Jack is failing to understand the utility of digital information. No copy lasts forever, and digital copies are no exception (bit rot: if you’ve been waiting to copy that floppy, it might already be too late). What makes digital special is how easy it is to make copies. A digital file is like an amoeba; by itself it might die easily, but it can reproduce at a fantastic rate, and even if they all start dying, you can make new ones as long as you have one left. Libraries have clued in to this and have organized the LOCKSS Program: Lots Of Copies Keep Stuff Safe. Back-ups are what give digital copies their timeless quality. Would you condemn the digital world to die just to prevent copies, Mr. Valenti?

I have said, technology is what causes the problem, and technology will be the salvation of the problem. I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, we’ll be able to do this, because I have great faith in the technological genius that’s out there…
It may be possible to so infect a movie with some kind of circuitry that allows people to copy to their heart’s content, but the copied result would come out with decayed fidelity with respect to sound and color. Another would be to have some kind of design in a movie that would say, ‘copy never,’ ‘copy once.’
– from the interview with Peter Rojas

Ah, DRM. Good folks like Mike Masnick have worked very hard to explain why DRM is bad from a business point of view. But since Valenti is talking about technology, let’s take a more technical point of view. There’s one big technical problem with DRM: it’s impossible. If you’ve ever wondered how hackers keep beating DRM systems so quickly, here’s Cory Doctorow to explain:

In DRM, the attacker is *also the recipient*. It’s not Alice and Bob and Carol, it’s just Alice and Bob. Alice sells Bob a DVD. She sells Bob a DVD player. The DVD has a movie on it — say, Pirates of the Caribbean — and it’s enciphered with an algorithm called CSS — Content Scrambling System. The DVD player has a CSS un-scrambler.

Now, let’s take stock of what’s a secret here: the cipher is well-known. The ciphertext is most assuredly in enemy hands, arrr. So what? As long as the key is secret from the attacker, we’re golden.

But there’s the rub. Alice wants Bob to buy Pirates of the Caribbean from her. Bob will only buy Pirates of the Caribbean if he can descramble the CSS-encrypted VOB — video object — on his DVD player. Otherwise, the disc is only useful to Bob as a drinks-coaster. So Alice has to provide Bob — the attacker — with the key, the cipher and the ciphertext.

Hilarity ensues.
– from this talk

The talk gives some more background on crypto theory, so do read the original if you’ve still got questions. But the important info is all there: in order to be able to watch the movie, the customer has to able to unravel those “1,000 algorithms” on the DVD, and if they can unravel those algorithms to watch the DVD, they can unravel them to copy and share it as much as they please. And then there’s things like the analog hole, and network effects (if just one person cracks the DRM, they can share their liberated info with the whole world). In short, Valenti’s hope of technical “salvation” is a pipe dream.

Now, back to Valenti:

If Congress lets cable systems retransmit local broadcast stations it will not only be magnifying and sanctifying a terrible injustice, but it will have created a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted materials. We do not like it because we think it would be wrong and unfair.
– from testimony given before Congress in 1972, quoted by Edward Felten

Let me get this straight: if you broadcast something on the open airwaves for everyone to see, and someone receives it and copies it and retransmits it, that’s a “terrible injustice”?

No. No way. A terrible injustice is when you can’t feed your family because you used up your life savings paying off the local protection racket. If you’re going to take your signals and broadcast them for all the world, you don’t get to complain when someone else records them and uses them. This is the same crap that he tried to pull on the VCR, but the difference is that when he tried this argument on cable, people bought it, and cable was forced to pay retransmission fees (Timothy Wu provides historical background and analysis in this paper).

Regarding the VCR, I like this statement from Murray Rothbard:

If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it.
– from this call for papers

I apply that same logic to cables, and say that if a cable company owns a set of cables and a good TV antenna, they can record and retransmit whatever they like, and the TV and movie people can just sit on their hands and deal with it. But Valenti was never content to do that. He knew how to get our government to give him his way, and he served the MPAA well, much to the detriment of the rest of us.

Now, if I may undercut myself a little, I don’t actually disagree with everything that Jack Valenti said. He also said a lot of things against censorship. He advocated the rating system we’re all familiar with as a way to communicate to people what was in a film, so they could make their own decisions. I like that, and I’m glad he did that. He routinely said that he wanted parents to be in charge of what their kids saw, and I thank him for saying so, and for working to make it so.

But to end this on a high (low) note, let me quote Jack saying one more wrong thing:

I sleep each night a little better, a little more confidently, because Lyndon Johnson is my president. For I know he lives and thinks and works to make sure that for all America and indeed, the growing body of the free world, the morning shall always come.
– from an address to the Advertising Federation of America, 28 June 1965

Oh, don’t make me laugh.

The Inevitable State

It has recently occured to me that as a group, we libertarians are a bunch of peaceniks. We may talk tough about self-defense and bearing arms and forming militias and so on, but really, we don’t want to engage in fights at all, let alone start them. We’ve got better things to do, like discuss philosophy or tinker with 3-D printers or smoke cannabis. As the pseudonymous dL puts it in this post, “Live and Let Live” is a big part of what it means to value liberty. We like life, and we hate war. Oh, how we hate war. As Randolph Bourne put it in The State, “War is the health of the state”, and oh, how we hate the state. One of our more popular sites is, and they mean business. We libertarians just hate war.

Now, you may be thinking to yourself, “So what? Everyone hates war. You think you’re special for hating it or something? Do you think that non-libertarians like war?” And not so long ago, I’d have said something about how I think you actually hate war just as much as we do, but you just haven’t figured out how to get rid of it. But that was then, and this is now, and in between then and now, I changed my mind. Now, I don’t think you hate war as much as you think you do. I also don’t think I hate it as much as I think I do. And this poses a big problem for all of us.
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Attributing Barney

The following is an image that I’ve seen on several sites, and it’s one that I feel deserves proper credit, because it’s marvelous:

Barney says,
Lorem Ipsum #13, by Gene Cochrane

You can see for yourself why I and so many others are fond of it. But it took some looking to find the original; most of the people who posted it didn’t say who made it, let alone provide links to the source. I was lucky to find one site that attached the tag “babybeebooks” to it, and even then, it took me some time to find this comic within the site (there are many comics on Babybeebooks, by several artists, and this comic was located in the “Music” section… it’s a wonder I ever found it). So, I am posting it here, clearly labeled and linked, so that the world may know who is responsible for creating this thing of beauty.

Remember, kids: sourcing is caring!

Escape the Iron Prison

There is a pattern to our thoughts that we do not see, a set of rules that we follow without knowing. It governs what we can or cannot understand, which means that it affects everything we do. The pattern is useful to us in the measure that it approximates reality; a pattern of thought is like a map, and a map is good if it helps us navigate the territory. But if the pattern does not approximate reality, then it does not serve us. It might, however, serve other people; if someone can edit your map without you knowing, then they can hide things from you and lead you astray at their will and pleasure. As a consequence, some people are actively trying to confuse us for their own benefit. This is one of the reasons why it’s hard to understand so many things, and why it’s important to see things as they really are.

You’ve probably already noticed that my favorite topic on this blog is “intellectual property” and its subdivisions, such as patent, copyright, database rights, and so on. I choose to focus on this topic because I believe that it is very important, since the legal rules of IP govern the development and use of technology (which we all use, and we’re using more and more of it) and communication (which we all do, and we’re doing more and more of it). I also focus on IP because I believe that the ways of thinking that define and uphold IP are very, very wrong.

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