Tech Throwdown

Lawrence Lessig is on the right side of this little spat with Cato's Adam Thierer—and arguably the more libertarian side to boot. So it's a shame he resorts to a particularly vulgar version of the argumentum ad funderam in the course of making his points. This part makes no sense: As Lessig himself notes, Cato folk have been on the other side of copyright questions before, and I'm pretty sure opposing the Iraq war was a bigger net risk to funding than supporting spectrum commons would be. Attacking people's motives is the desperate tactic of those who don't have the arguments on their side; here it serves as a toxic sprig of parsley on an otherwise well-crafted meal.

Comments

[digamma]

I can't pick a dog in this fight until someone explains to me what regulations Lessig favors when he says "to the extent the original neutrality of the network is compromised, the government has a role to balance that compromise." Lessig's commenters don't make me very sympathetic to his side.

[Warren]

Spectrum commons: The more libertarian position. The Hell??

Paging Mr. Walker. Please weigh in and explain what Julian is thinking (or smoking).

[Randall Loffelmacher]

The best line in all of this was:

"There's something weird about libertarians who move to Washington. It's like Ayn Rand moving back to the Soviet Union."

I guess if this libertarian agenda will ever be enacted, we'll have to take it to Washington. But something about the statement above makes me pessimistic about the very possibility of seeing a libertarian government in this lifetime.

[Randall Loffelmacher]

I can tell you what he was saying when he said "spectrum commons" is the more "libertarian". IP law was established to promote innovation and reward inventors with exclusive rights to the fruits of their labors for some specified amount of time. Thus, the intent of IP law is to encourage invention.

If there is no moral purpose to a law then the law should not be enacted because doing so would be impinge on my liberty. The opposite of liberty.

The spectrum commons encourages invention, which is in line with the intent of IP law. The Internet is not a piece of hardware nor is it a proprietary protocol. Marketizing it and turning it over to IP regulation would only stifle innovation and deny people freedom of invention/speech.

To sum it up: the first thing that will happen when you outlaw the open internet is that outlaws will re-open a new kind of internet.

[Julian Sanchez]

As for what I was thinking: look, imagine someone proposed a "market solution" to free speech, wherein people bought "offense" vouchers from the government, allowing for an efficient allocation of the right to say things that piss off their neighbors. Superior to command-and-control censorship, perhaps, but obviously not as libertarian as leaving speech "unregulated" -- which is to say, having a framework that establishes people are free to speak within the network of laws that protect the property-base people use for expression. Similarly, to the extent that technology enables use of spectrum to be nonrival, it's obviously less widely liberating and less decentralizing if the government opts for the owned-bands model rather than the commons model. (Though obviously, like Lessig, I'm talking about experimenting with commons in segments of spectrum, not converting it all wholesale).

And I'm smoking Kamel Red Lights.

[Warren]

Randall,
Thanks, but that doesn't quite jibe in my mind. I consider myself very libertarian. I also have in recent years become more opposed to intellectual property (I think we should do away with copyright altogether). I won't go into why I once favored IP and no longer do here.

BUT that doesn't have anything to do with spectrum allocation. On that issue I am squarely for what Lessig calls the "market" side of the fence. There is nothing 'intellectual' about owning a piece of electromagnetic bandwidth. Furthermore I find his defense of "spectrum commons" to be utter hogwash. For example, he compares spectrum utilization with "the right to publish" with no mention of the patently obvious and relevant fact that unlike newspapers, your broadcast inhibits mine. I find the rest of his argument equally capricious. Most of all I am COMPLETELY ASTONISHED to find a member of the Reason staff coming down on the side of Marx and Engles.

[Warren]

Julian,
Ummmm... Ohhh Kayyyy
I follow you (I think) but speaking as an electrical engineer, I don't think "technology (that) enables use of spectrum to be nonrival" is possible.

[Jason Ligon]

Is it just me, or did Lessig completely dodge the open access question? Do I have to let you on my hundred billion dollar set of wires or not?

Also, why, oh why, would one suppose that the government is capable of imposing neutrality? Public choice anyone?

[Russ D]

"There is nothing ?intellectual? about owning a piece of electromagnetic bandwidth."

Warren, you'll have to explain to me why spectrum isn't IP. Is it "real" or is it the by-product of an invention? I'm not trying to argue the postulates of physics, I'm suggesting that without IP, spectrum for all intents and purposes does not exist. What keeps spectrum from being infinite besides our own intellectual limitations? I'm not trying to get metaphysical here, but the only valid argument that spectrum is "real" is the one that states "if you use it I can't" which I don't know enough to believe is necessarily true.

In other words, if the FCC didn't exist, would we have discovered/invented something way better than radio decades ago? Are we stifling creativity and invention by protecting spectrum?

[Julian Sanchez]

Warren-
For the tech rundown, check out David Reed:
http://www.reed.com/OpenSpectrum/

Jason-
Err, yeah, not so hot on that aspect of Lessig's position either. Didn't meant to imply I agree with everything Lessig's ever said on these issues.

[Jason Ligon]

I'm confused by spectrum commons. Why isn't usable bandwidth like usable farm land?

If two people can use it without stepping on each other's toes (i.e. it is non rivalrous), then there is no scarcity and property rights serve no purpose. Is that the world we live in?

[Warren]

Russ,
"the only valid argument that spectrum is "real" is the one that states "if you use it I can't" which I don't know enough to believe is necessarily true."

I agree, and while it isn't as simple as "if you take the car, I can't", I believe I do know enough to state that it's still true. Imagine driving cross-country listening to the radio, and another station starts to interfere with the one you're listening to. It's exactly like that. Both stations are using the same spectrum, and both can operate, BUT not in the same market. They can't both broadcast on the same frequency in the same city. There are many complicating factors to the situation such as bandwidth, power, modulation etc. But it's a fundamental truth that your use impedes mine.

No, the spectrum is not infinite? sort of. It's true that there is no theoretical "maximum frequency" (or maybe there is at some quantum limit) but if when wavelengths get short enough they become heat and shorter than that they become light (and shorter yet is X-Rays). Therefore, for practical purposes, the spectrum is in fact limited to radio frequencies (roughly Kilo-hertz to Giga-hertz).

By the way, I too would do away with the FCC. Government should not do nearly all of what it does. If the FCC were reformed so that its sole mission would be to uphold spectrum property rites, I think I could get behind that. However, we don't have special departments to for policing trespass, mineral rites, etc. so I'm sure we could do without the FCC and still hold title to bandwidth.

[Julian Sanchez]

Warren:
That's exactly the thing. The "fundamental truth" may not be true at all anymore. Check out Reed.

[Warren]

Julian,
I've dug into Reed.com (and also some of the other links you posted) and here is my response:
He's full of shit.
Sorry, couldn't resist being flippant. Actually he is well versed and all his analysis is true and relevant, but ultimately doesn't support his conclusion. It just like someone explaining how there perpetual motion machine works. And a little like getting into an argument with a flat earther.

But I won't put up a fuss if we set aside a few mega-hertz for open access. I predict it will soon become overloaded but I may be wrong. If it works great, then we can talk about expanding it (but if it can support an infinite number of users, why would we have to?). At any rate since you're "talking about experimenting with commons in segments of spectrum, not converting it all wholesale" I can live with it.

I know Jesse has researched this, I'd be interested in his comments.

[Warren]

Akk.. two typos in one sentance. Please note

It's just like someone explaining how their...

[Loftus]

By Cato trying to become establishment in DC and seeking out funds that support establishment libertarianism, by default they tend to support more conservative positions that please conservative benefactors -- though not always. When Cato was based in SF we got Rothbard and Chomsky -- now that they've been in DC we get old Reagan admin. hacks and Rupert Murdoch -- makes sense to me.

This isn't necessarily bad, the more the merrier -- there are tons of libertarian groups out there coming at issues from all angles -- and almost all of them need your money and support a lot more than Cato does.

[Russ D]

I hadn't read any of the links Julian has posted in these comments before I posted, but I did get around to reading half of the newamerica one; it makes a very persuasive argument on Lessig's side.

But Warren does make one point I can conceive being valid, that of eventual overload. I think spam email would be an apt analogy.

But... spam email is occurring on ONE conduit, so maybe it isn't apt enough. The newamerica paper uses roads as its analogy, some roads fill up to capacity, others go relatively unsued; some roads are public, some private.

[Warren]

From "Overcoming Agoraphobia":

"In the case of automobiles, we have chosen to allow anyone to buy and use the equipment subject to certain "rules of the road" that allow equipment users to coordinate their use and avoid interference."

The roads analogy is dead on point. Privatizing roads isn't a major libertarian talking point. Those outside generally find it a nonstarter, and those inside have bigger fish to fry. None the less, I believe libertarian principals philosophically mandate it IMHO.

Even if one disagrees, you can look forward to the same rush-hour delays in commons spectrum. Just imagine trying to have a phone conversation where you had to wait 30 seconds or more for every reply.

[Jesse Walker]

I don't see anything wrong with setting aside some spectrum as a commons, as Lessig, Julian, and (reluctantly) Warren suggest. For that matter, if you can use smart radios to receive signals sent across spectrum that's already been privately allocated, yet those signals don't interfere with the transmissions on those frequencies, I don't see why that should be prohibited either. The important thing is to have legal protections against (significant) interference, not to have your regulators prejudging the technologies before they can be deployed.

[kevrob]

The "theoretical" example given of property rights in licenses to publish newspapers isn't so theoretical. If one currently "owns" a broadcasting license and was not grandfathered in before the FCC made rules against it, you will not be permitted to purchase or launch a newspaper, unless you are granted awaiverfrom said rules. I trust H&R traders remember how, when Murdoch was accumulating stations for FOX TV, his attempt to both own and operate a broadcast outlet in Boston and own the Boston Herald was thwarted by the failure to maintain a waiver from the FCC. Murdoch was opposed by The Boston Globe and Teddy Kennedy.

See:
http://www.museum.tv/archives/etv/M/htmlM/murdochrupe/murdochrupe.htm

"...Murdoch was the specific target of a 1988 effort by Senator Edward Kennedy--at the time, a frequent target of Murdoch's Boston Herald newspaper--to revoke another FCC waiver, one that waived cross-ownership restrictions that would have prevented Murdoch from owning both newspapers and television stations in New York and Boston. The end result of Kennedy's efforts was that Murdoch eventually sold the New York Post (he later would receive a new waiver that allowed him to reacquire the struggling paper in 1993), and put Boston's WFXT-TV into an independent trust."

There are circumstances that make entrepreneurs say "Mother, may I?" before publishing a newspaper, Amendment 1 be damned.

Oh, and the govt. stole the spectrum from its discoverers in the first place.

Kevin

[Highway]

Impulsive, not-well-considered point follows:

Warren, we already do have situations like 'traffic jams' on the currently allocated systems. Whenever a 'disaster' happens, phone lines get all jammed up. Cell phones are overloaded. It's an issue of overuse of the existing pathway. In the case of roadways, it's hard to build more capacity because of existing development and the cost of new pavement. In broadcast spectrum, it's not that hard.

The real problem is the non-interference part. Yeah, right now things on the same frequency interfere, but is that contributed to by the allocated spectrum policies in place? If everyone knows their frequencies are going to be exclusive, there is no benefit to making sure your signal doesn't interfere with other broadcasts. But if it's known that there is a likelihood of interference, perhaps systems can be designed that will be non-rival. Just because we don't have it now doesn't mean it can't happen.

[jdog]

The technical term ?spectra? (or spectrum) refers, in this context, to a range of electro-magnetic frequencies and has absolutely nothing to do with communication protocols or content.
FCC regulations on the design and use FHSS (Frequency Hopping Spread-Spectrum) radios which are commonplace now have nothing to do with IP.
The regs stiputate limits on latency, effective radiated power, and bandwidth comsumption, but not protocols. This is the technology behind 802.11a,b,&g and ISM band.

By sticking to the physics and resisting any conflagation between physics and protocols, the FCC is actually handling this matter fairly well.

jdog

[Randall Loffelmacher]

Just two more of my cents here.

It seems that the whole notion of a finite spectrum across which we can broadcast is flawed. Especially since the invention of spread-spectrum technologies. This allows a broadcast signal to be split across many bandwidth and then reconstitued at the endpoint.

So if you want to argue in favor of marketizing the broadcast spectrum, please take into consideration the fact that broadcast technology is still moving forward, and that it is probably not really a scarce commodity.

[M. Simon]

It is all about Shannon and signal to noise.

Evenwith spread spectrum the sharing of a band causes an increase in noise with a corresponding increase of the BER in case of data.

BTW there are quite a few places in the spectrum where unlicensed use is allowed. The AM and FM bands fer instance. Short antennas and under 100 mW.

If you want to do non-broadcast experiments in multi-user occupied bands there is amateur radio.

In time there may come a day when the FCC is redundant. We are not there yet. Esp. on the technical side they are pretty good.

Spectrum in a way is a tangible intangible. What makes laymen confused is that it partakes of elements of both. So are radio waves particles or waves. Tangible or intangible. Well kind of both. According to our current understanding of physics.