June 2006

Related to my recent post about reverse engineering and innovation, a friend points me to another dispute over one company reverse-engineering another company’s product without permission:

In a statement, Green Hills confirmed that Express Logic has demanded arbitration of its ThreadX reseller agreement with Green Hills, and has accused Green Hills of illegally copying the ThreadX API…

The statement argues that “it is well established that copyright does not protect a software product’s method of operation, which includes its API. It is legal to copy the publicly available API of a product to implement a competing product with the same or similar API.”

Green Hills makes tools for the development of embedded software, such as the computer chip that monitors the fuel injection in your car. Green Hills had licensed some software from Express Logic, but then subsequently decided to build their own version of the software instead. The API is the application programmers interface–it defines the interface between Green Hills’s operating system and the programs its customers will build on top of it. (this is analogous to a developer creating a Windows application: he uses APIs published by Mirosoft to make sure his software will work correctly)

This case is complicated by the fact that Green Hills was previously a licensee of Express Logic’s products, so there might be some contract terms that are relevant. But at least on the copyright aspects of the case, Green Hills seems to be on firm ground. Courts have repeatedly held that a software copyright doesn’t include the right to control who may interoperate with that software. Assuming Green Hills can demonstrate they didn’t use any of Express Logic’s actual code in developing its product, they should lose the copyright case.

And it seems to me that that’s a good thing. Green Hills has customers who rely on the API when they’re building their own software. If Green Hills were forced to change its API, that would, in turn, force Green Hills’s customers to re-write all of their software. That would be extremely disruptive, and in practice, the more likely outcome would be that Green Hills would simply be forced to continue working with Express Logic indefinitely. If Express Logic wasn’t doing a very good job of keeping its software up to date, there’s little Green Hills could do about it.

As with the examples I gave in my previous post, reverse engineering acts a valuable safety valve for cases when a company’s proprietary technologies cease to serve customers’ needs. It’s quite common in the computer industry, and I think it expanding copyright law via the DMCA to restrict such reverse engineering was a mistake. And I think it would be an even bigger mistake to extend copyright law further to allow platform creators to lock out competitors.

Play it Again, Dan

by on June 21, 2006

Ars reports on a new ad by the Consumer Electronics Association opposing technology mandates on satellite radio. It’s titled “We’ve heard this song before!” and features the following humorous quotes:

“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue–or rather by vice–of the multiplication of the various music-reproducing machines…” -John Philip Sousa on the Player Piano (1906)

“The public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials.” -Record Label Executive on FM Radio (1925)

“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.” -MPAA on the VCR (1982)

“When the manufacturers hand the public a license to record at home…not only will the songwriter tie a noose around his neck, not only will there be no more records to tape [but] the innocent public will be made an accessory to the destruction of four industries.” -ASCAP on the Cassette Tape (1982)

You wouldn’t know it from all the focus on neutrality regulation, but core of the telecom legislation now moving through Congress would liberalize cable franchising–stripping local authorities of much of their ability to block the entry of new video competitors. There has been quite a bit of evidence already that such a move would substantially reduce rates for consumers. But, it’s widely believed, this would come at the cost of lost income to local governments, who receive revenue from cable franchise fees. Only last week, Mayor Ken Fellman of Arvada, Colorado, testified to the Senate on behalf of several local government associations that legislation would threaten local revenues. Nationwide, most local officials remain skeptical of cable competition. (Mayor Curt Pringle of Anaheim, Ca. remains a notable exception. His talk at Heritage on the topic can be seen here.)

But there’s a new study out that tells a different story In a report for Criterion Economics released last month, Bob Crandall and Bob Litan, both of the Brookings Institution, calculate that the take for local governments from cable franchise fees would actually increase more than $400 million due to competition. The reason: although cable rates, Crandall and Litan predict, would drop 13.5 percent, subscribership would increase from by between 29.7 and 39.1 percent.

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Ed Felten is back from vacation and has a great new post on the XBox Linux project:

Microsoft had two reasons for locking down the hardware. It wanted to stop people from running Xbox games that had been illegally copied. And it wanted to stop people from running other (noninfringing) software such as Linux. The latter goal is the more interesting one. Microsoft did this because it wanted to sell the Xbox hardware at a loss, and make up the difference by charging a premium for games. To do this, it needed to stop unauthorized software–otherwise people might buy the Xbox, install another operating system on it, and never buy an Xbox game.

A group of clever engineers, calling themselves the Xbox Linux Project, set out to discover how Microsoft had tried to lock down the Xbox hardware, and how they could overcome Microsoft’s lockdown and install Linux. We would expect them to succeed–in computer security, physical control of a device almost always can be leveraged to control the device’s behavior–and indeed they did.

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More NSA Spying in Missouri

by on June 21, 2006

Today seems to be the day for Missouri NSA stories! Salon is reporting that an AT&T network operations center in Bridgetown, MO, (a St. Louis suburb) has had a secret room since 2002 being used by a government agency:

In interviews with Salon, the former AT&T workers said that only government officials or AT&T employees with top-secret security clearance are admitted to the room, located inside AT&T’s facility in Bridgeton. The room’s tight security includes a biometric “mantrap” or highly sophisticated double door, secured with retinal and fingerprint scanners. The former workers say company supervisors told them that employees working inside the room were “monitoring network traffic” and that the room was being used by “a government agency.”

The details provided by the two former workers about the Bridgeton room bear the distinctive earmarks of an operation run by the National Security Agency, according to two intelligence experts with extensive knowledge of the NSA and its operations. In addition to the room’s high-tech security, those intelligence experts told Salon, the exhaustive vetting process AT&T workers were put through before being granted top-secret security clearance points to the NSA, an agency known as much for its intense secrecy as its technological sophistication.

Fortunately, the NSA says it ” takes its legal responsibilities seriously and operates within the law,” so there’s probably nothing to worry about.

That’s probably the only time you’ll ever see that headline on TLF, but my hometown paper has a front page article describing how Missouri telecom regulators have subpoenaed AT&T for details on any information they might have shared with the NSA:

The subpoenas, along with a growing number of legal challenges here and elsewhere, set the stage for confrontations between civil liberties and national security – and between state and federal governments.

The challenges accuse the government of abusing anti-terrorism laws, and AT&T of allowing government agencies to monitor millions of phone calls and e-mails without legal authority.

For its part, AT&T says it is in a tough spot – the company says it is bound by national security laws not to reveal what it might have done.

Confrontation of some sort seems all but certain. The regulators served their subpoenas Monday after receiving a letter last week from AT&T that says the company cannot and will not answer any questions.

Frankly, I hope AT&T’s spot gets a lot tougher before this is all over. Maybe next time they’ll take the high road like Qwest and tell the NSA to come back when they have a warrant.

In my my recent post on the DMCA, I cited the creation of a Linux DVD player as an example of innovation. Randy Picker responds:

No, certainly the DVD example isn’t evidence of stifling innovation. The DVD example is a choice, nothing more than that. I have little doubt that the DVD format creators could have made it possible to have DVDs played in a Linux environment.

They chose not to do so. We can decide whether that choice should be respected, but we shouldn’t say that it is innovative when someone unilaterally decides not to respect that choice and tries to figure out a way around that choice. That is like saying that it is innovative to drive 70 in a 55 mph zone. Anyone can do it; the trick isn’t in doing it; it is in deciding whether we want to respect the limit in the first place.

Strictly speaking, he’s right. Reverse engineering the CSS encryption scheme, by itself, isn’t an especially innovative activity. However, what I think Prof. Picker is missing is how important such reverse engineering can be as a pre-condition for subsequent innovation. To illustrate the point, I’d like to offer three examples of companies or open source projects that have forcibly opened a company’s closed architecture, and trace how these have enabled subsequent innovation:

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A Craigslist Blacklist?

by on June 20, 2006 · 6 comments

Jim Lippard reports on another alleged case of an ISP engaging in network discrimination. Apparently, for the last few months Craigslist has been loading unbearably slowly for certain Cox cable customers. Pro-regulatory types jumped on it as evidence that new regulations were needed. The story ricocheted quickly around the blogosphere, and even ended up on the pages of the Wall Street Journal.

But Lippard tells us the rest of the story:

In fact, we know now that it’s a combination of a bug in a firewall driver produced by Authentium software and unusual (but not incorrect) behavior by the Craigslist webserver setting the initial TCP window size to 0. The facts of the problem came out (at least between Craigslist, Cox, and Authentium) at the time the problem was first reported, was fixed in a beta release within weeks, and has only affected Cox customers who use Authentium’s security suite…

This issue was a user software application issue that had no more to do with network neutrality than a browser incompatibility issue, a webserver disk failure, or a fiber cut. Each of these things can prevent a user from reaching some specific content, but none is imposed by the network provider or remedied by act of Congress or the FCC. Those who continue to treat it otherwise even after knowing the details are demonstrating questionable judgment and integrity.

It’s funny how all the examples of purporting to demonstrate the need for more regulation fall apart upon closer inspection.

Randy Picker has an interesting post on potential RIAA legal action against YouTube for posting videos containing copyrighted music:

The 1909 Copyright Act assigned a number of rights to copyright holders. These included the right to print and make copies of the work; to perform the work publicly if the work was a drama; and, for musical compositions, to perform the work “publicly for profit.”

Be clear on what this means. Same piece of paper–sheet music–but different rights depending on use. I could buy sheet music and take it home and sing to my heart’s content, but I could not take it to my restaurant and do so without violating copyright if that counted as a public performance of the music for profit. Was it? Yes, indeed, said the Supreme Court in 1917, in Herbert v. Shanley Co., in a unanimous opinion authored by Justice Holmes. Eight years later, a federal appellate court reached the same conclusion for the new mass medium of that day, radio broadcasting.

These are not laws of nature. We could have a rule that said that anyone buying sheet music can use it in any fashion possible, at home or in a restaurant, on the radio or streamed from YouTube. Our original copyright law–enacted in 1790–didn’t say anything about music at all. This is a choice, a choice that some uses are different from others and that copyright holders can appropriately charge different prices for different uses.

The question, I think, is whether the entity “publicly performing” the song is YouTube or the person who uploaded the content. I don’t know the caselaw, but it seems plausible to argue that YouTube is simply a common carrier like my ISP. And it seems like if a kid makes a video of herself singing her favorite Britney Spears song, that wouldn’t be public performance “for profit.”

In any event, Picker’s broader point is right: there’s no law of nature concerning what the precise rules ought to be. If the courts don’t come up with a reasonable solution, Congress can and should step in to clarify the rules.

If Congress does step in, I hope they’ll do so in a way that makes gems like 10 Things I Hate About Commandments possible. Collecting ASCAP royalties every time somebody watches the video probably isn’t economically feasible. And as Picker points out, it’s a great video.

FCC Chairman Martin’s push to impose “multicast” must-carry rules on cable providers looked like a done deal only a few days ago. Martin had made the the new mandate a priority, and with two new Republican members of the commission sworn in, its looked like Martin would certainly be able to get a majority to support him. He had even scheduled a vote for Wednesday, usually a sure sign that the votes were in the bag.

As it turned out, however, the bag was empty. The reason: Robert McDowell, who joined the commission only three weeks ago, said “no.” According to National Journal, sources said that McDowell “sees much benefit from the cable industry voluntarily agreeing to carry broadcasters’ multicasts and prefers a private sector solution.” Moreover, he was said to be unsure of the legality of the proposed regulation. Since the two Democrats apparently also opposed the move, that left Martin without a majority.

Hooray for the new guy. Forcing cable companies to carry multiple TV signals from each broadcaster over their systems is a bad idea. First, consumers would be worse off, since these channels would displace other channels consumers presumably prefer. (Note that cable firms actually pay broadcasters for the right to carry channels that are popular. By definition, we are talking about the unpopular ones here).

Moreover, the rules would violate the constitution. By actual count, multi-cast must-carry likely violates two amendments–the fifth amendment (taking of property) and the first (free speech). Do the math. That’s 20 percent of the bill of rights. Pretty good for one regulation. They might as well add in something about quartering troops and go for a trifecta.

Commissioner McDowell, you were right to block this. Welcome to the FCC, by the way. Glad to have you aboard.