By Chris Castle
Music Technology Policy
“It’s really important that we protect the rights of really good looking people in this society,”
This rather stunning bit of Googley sarcasm from the frequently-Googley litigator Mr. Bridges sums up the geek view of the world. The Rich and Smart should win over The Beautiful and Famous. (That he said it on a panel with one deemed to be of the 50 Most Beautiful Men on Capitol Hill and who is seemingly doing everything in his power to be famous–Mr. Khanna–does have a certain irony.)
But whatever the sarcasm and whatever the irony, Mr. Bridges apparently places himself in the conga line of those who believe that the Internet is “special”. And nowhere is this “we’re special, screw off” more apparent than in the wandering Internet Society Issues Paper on Intellectual Property on the Internet. Perhaps what the Internet Society really needs to sell their ideas is for Chris Crocker to reprise his viral “Leave Brittney Alone” video with “Leave Google Alone.” Because what their principles really boil down to is “Trust Us, We’re Special”.
Not the best timing–there’s this problem with the National Security Agency, maybe they heard about it?
“The right to swing my fist ends where the other man’s nose begins.”
This quotation (attributed to the revered American jurist and legal theorist, Justice Oliver Wendell Holmes) seems to be a bedrock principle in the law, not just in America, but even on Mount Horeb. The idea that what is mine is mine what is thine is thine not only is a fundamental principle of many ancient and modern legal systems, but even is a fundamental principles of a market economy.
The Internet Society has adopted a principle of “permissionless innovation”–meaning that “innovation” (whatever that means) should not have to seek “permission”. Let’s put it in more grammatically correct terms. I know this may come as an affront to technologists, but I think their use of “innovation” really means “innovators”, unless you want to give human properties to machines and ideas–or the hive mind of the Internet itself. I’m not quite prepared to go that far.
So what the Google lobbyist Vint Cerf, the Internet Society and others who push this line of “permissionless innovation” more accurately mean is that “innovators” (such as Google) should not have to seek permission. Why? No reason is ever really given other than there is some inherently superior value to innovation that insulates “innovators” from the mundane need to seek permission of mere non-innovators. Or as Mr. Bridges might say, what is important is that we protect the rights of the really innovative in this country.
But I think that when you humanize the hive mind into its daughters and sons walking the Earth who chafe under the burden of asking permission, you begin to get the idea of just how infantile this all really is.
And of course, the permission that the Internet Society really doesn’t want to ask for is anything relating to digital transmissions of works of authorship.
The most relevant passage in what might be called the Internet Society’s Rules for Radical Innovators is this:
Innovation without permission:All intellectual property laws and policies should bear in mind the Modern Paradigm for Standards Development, shaped by adherence to the following principles: cooperation; adherence to principles including due process, consensus, transparency, balance and openness; collective empowerment; availability; and, voluntary adoption.
If the end result of the new economic policy of “permissionless innovation” is a privileged class of “innovators” not being required to seek permission from the less innovative, everything in the Internet Society’s list of glittering generalities is just window dressing (if not downright tautological). Not surprisingly, the collectivist “Modern Paradigm for Standards Development” sounds like it originated as part of a Five Year Plan in a command economy for the decree of the Internet, rather than as a standard setting white paper written by the “Institute of Electrical and Electronics Engineers (IEEE), the Internet Engineering Task Force (IETF), the Internet Architecture Board (IAB), the Internet Society and the World Wide Web Consortium (W3C).”
And the reason they can make it stick is because for all their hand wringing about “cooperation”, they didn’t include one artist in their group and for all their whining about “voluntary adoption” the very words “innovation without permission” tells you that there’s nothing “voluntary” about it at all.
The Internet Society Doesn’t Want Competition
It is important to recognize what lies beneath these “principles” is an unstated principle–that “innovators” are special and they shouldn’t have to compete or even negotiate when it comes to the use of intellectual property online.
These Very Serious Men of Science would not try to say that permissionless innovation would include say, co-location facilities, content delivery networks or fiber. Not servers or routers. Not smartphones or tablets. They don’t want to collectivize the hardware. Now why might that be?
And don’t let that word “collectivize” slip by you–that’s exactly what they want to do. Because like good bureaucrats, the Very Serious Men of Science want these rules to become the law. And how would they do that?
Take Google for example–a big backer of the Internet Society’s principles because it profits them to do so. According to Edward Wyatt, Google “is now the eighth-biggest spender on lobbying in the capital, ahead of not only Microsoft but also mainstays like Lockheed Martin.” Depending on who you believe, Google has one lobbyist for every two members of Congress–and if you ask me they have five academics and two consultants for every lobbyist. Given recent shenanigans in Washington regarding privacy, it also appears that Google owns the Federal Trade Commission, the National Security Agency and who knows what else. And it looks like they weren’t schmucks and hired Susan Molinari to get it for them wholesale.
There’s some permissionless innovation for you.
Permissionless Innovation Diminishes the Value of Private Property Rights
Professor Armen Alchien defines private property rights as a bundle of rights, a view widely held among economists:
A property right is the exclusive authority to determine how a resource is used…One [attribute of private property] is the exclusive right to the services of the resource. Thus, for example, the owner of an apartment with complete property rights to the apartment has the right to determine whether to rent it out and, if so, which tenant to rent to; to live in it himself; or to use it in any other peaceful way. That is the right to determine the use. If the owner rents out the apartment, he also has the right to all the rental income from the property. That is the right to the services of the resources (the rent).
Finally, a private property right includes the right to delegate, rent, or sell any portion of the rights by exchange or gift at whatever price the owner determines (provided someone is willing to pay that price). If I am not allowed [or not required] to buy some rights from you and you therefore are not allowed to sell rights to me, private property rights are reduced. Thus, the three basic elements of private property are (1) exclusivity of rights to choose the use of a resource, (2) exclusivity of rights to the services of a resource, and (3) rights to exchange the resource at mutually agreeable terms….
Private property rights do not conflict with human rights. They are human rights. Private property rights are the rights of humans to use specified goods and to exchange them. Any restraint on private property rights shifts the balance of power from impersonal attributes toward personal attributes and toward behavior that political authorities approve. That is a fundamental reason for preference of a system of strong private property rights: private property rights protect individual liberty.
The Googlebertarian view of intellectual property as anything but protectable private property rights (digital only, of course) is a bizarre indulgence that seems to benefit only one actor–Big Tech, and at that Big Tech when the companies involved want to commoditize “content” online.
This “permissionless innovation” says that if the “innovator” wants to use your property to profit himself, then he need not ask your permission to do so. If he need not ask your permission, why would he have to pay you for the use of your property? And even if he did have to pay you, would not the price he paid be reduced because he had taken away important private property rights before he tried to sell your property back to you?
This is going to be particularly interesting when 3D printers begin to bring the Ford Motor Company into collision with permissionless innovation. Can’t wait.
Whose Nose is It?
Nowhere is there a better example of “permissionless innovation” than in the current NSA scandals–and the intellectual property involved is your privacy rights. The highly innovative National Security Agency and Google, et al, demonstrated once and for all just how valuable your intellectual property is. In this case, it was the right to your name and likeness, attributes about yourself, photographs, GPS data and who knows what else.
What this all boils down to is that “innovators” want to be treated as special children by Big Mommy and have their toys protected by the government. To paraphrase Mr. Bridges, it’s really important that we protect the rights of really rich “innovators” in this country–not to mention protecting one of the greatest income transfers of all time. They should be free to drive around and sniff your WiFi while they take pictures of your house for their no-bid government spy agency contracts. Yes, the special kids need Big Mommy to protect their toys yet again.
And Big Mommy has done a great job of protecting their toys so far.
If you can tell me where Google stops and the government begins, you will get the prize.