October 2005

Three Cheers for Sen. Norm Coleman! He recently introduced a Sense of the Senate resolution “to protect the U.S.’s historic role in overseeing the operations of the Internet from an effort to transfer control over the unprecedented communications and informational medium to the U.N.”

In his statement, Sen. Coleman argued that:

“There is no rational justification for politicizing Internet governance within a U.N. framework. Nor is there a rational basis for the anti-U.S. resentment driving the proposal. Privatization, not politicization, is the Internet governance regime that must be fostered and protected. At the World Summit next month, the Internet is likely to face a grave threat. If we fail to respond appropriately, we risk the freedom and enterprise fostered by this informational marvel, and end up sacrificing access to information, privacy, and protection of intellectual property we have all depended on. This is not a risk I am prepared to take, which is why I initiated action to respond on a Senate level to this danger.”

YOU GO NORM! I love it.

Faithful readers of this blog will know that this issue really gets me worked up. Here’s my recent Wall Street Journal editorial on the issue that I penned with my old friend Wayne Crews of CEI. And two years ago, Wayne and I also co-edited a massive collection of essays on Internet governance / jurisdication issues entitled “Who Rules the Net.” Our point in the book and that recent editorial was simple: We stand at a crucial moment in the history of the Internet and unless we stand firm in opposition to those who seek to impose an international regulatory regime on this vibrant, borderless technology of freedom, the Internet as we know it today will die.

Let’s hope that other members of Congress and the Administration will join Sen. Coleman in this important effort to protect the Internet from the global regulatory / bureaucratic nightmare that looms overhead today.

Search Engine Legality

by on October 20, 2005 · 2 comments

The complaint in the case of McGraw-Hill v. Google is available on FindLaw. The most interesting paragraph, in my opinion, is this one:

Google purports to justify its systematic copying of entire books on the ground that it is a necessary step to making them available for searching through www.google.com, where excerpts from the books retrieved through the search will be presented to the user. Google analogizes the Google Library Project’s scanning of entire books to its reproduction of the content of websites for search purposes. This comparison fails. On the Internet, website owners have allowed their sites to be searchable via a Google (or other) search engine by not adopting one or more technological measures. That is not true of printed books found in library shelves. Moreover, books in libraries can be researched in a variety of ways without unauthorized copying. There is, therefore, no “need,” as Google would have it, to scan copyrighted books.

This is very confused. Let’s start with the business about “technological measures.” I assume that they’re talking about robots.txt, a file that webmasters use to tell search engines which content they are allowed to index. It’s worth noting that robots.txt is an opt-out convention. If a site doesn’t have a robots.txt file, search engines will index it.

So it seems like Google’s approach is entirely consistent with the web-search precedent. Just as robots.txt provides web site publishers with a mechanism for notifying search engines which pages not to index, Google is providing book publishers with a mechanism for indicating which books are not to be indexed. Publishers who fail to provide Google with a list, like webmasters who fail to put up a robots.txt file, can be said to have “allowed” their content to be indexed.

This paragraph also shows an ignorance of search engine history. Websites, like books, can be “researched in various ways without unauthorized copying.” Indeed, that’s where the search engine industry started. The first major Internet search engine, Yahoo!, was a keyword-based search engine analogous to a card catalog. Sites were added to the directory manually by a human being who would read the web site and write a summary for the directory.

Then in 1995, along came AltaVista, which offered the first full-text search of the web. The results were so obviously superior that Yahoo! licensed the technology in 1996. Soon every search engine had full-text functionality. So web sites, too, can be “researched in a variety of ways unauthorized copying.”

So the reason that all search engines today make copies of websites isn’t that it’s impossible to index them without doing so. Rather, it’s that full-text searches are vastly superior to the alternatives, and full-text searching is impossible without making a full-text copy.

If there had been an Association of Web Site Publishers in 1995, they could have made precisely the same argument about AltaVista. Had they prevailed, it’s hard to predict how things would have evolved, but it seems unlikely they would have gone as well. Search engines would have spent a great deal of time contacting and negotiating with web-site owners for permission to include them in their indexes. Some web sites might have signed exclusive deals with a particular search engine, or demanded that search engines pay a fee to include them in their searches. The most comprehensive search engines might have required users to subscribe, as LexisNexis and Factiva do.

Or maybe enlightened webmasters would have realized that search engines were a win-win proposition and permitted them to index their sites. Maybe they would have developed a standard way to indicate permission to index, and things would have evolved about the same way. But regardless, the analogy the publishers are trying to draw is bogus. Full-text searches–of books or web sites–require the creation of copies. If Google Print is copyright infringement, then so is Google itself. I hope it’s obvious to everyone that declaring Google illegal would be a bad idea.

Felten on Mossberg on DRM

by on October 20, 2005 · 2 comments

Walt Mossberg has a great column criticizing digital rights management technology. He gets the fundamental point that DRM harms consumers by needlessly restricting how, when, and where they can consume content they have legally purchased:

I believe that consumers should have broad leeway to use legally purchased music and video for personal, noncommercial purposes in any way they want–as long as they don’t engage in mass distribution. They should be able to copy it to as many personal digital devices as they own, convert it to any format those devices require, and play it in whatever locations, at whatever times, they choose.

And he suggests boycotting DRM’ed products, such as copy-protected CDs, that overly restrict consumer choice.

However, he makes a fundamental error:

Instead of using DRM to stop some individual from copying a song to give to her brother, the industry should be focusing on ways to use DRM to stop the serious pirates–people who upload massive quantities of music and videos to so-called file-sharing sites, or factories in China that churn out millions of pirate CDs and DVDs.

Princeton CS professor Ed Felten’s reaction is right on the money:

This is a nice vision, but it’s not really possible. It’s abundantly clear by now that no DRM system can stop serious pirates. A DRM system that stops serious pirates, and simultaneously gives broad leeway to ordinary users, is even harder to imagine. It’s not going to happen.

No one has ever invented an un-crackable DRM system. When a new DRM system is released, it invariably takes just a few weeks for someone to release a cracking tool.

That’s not a coincidence. Bits are inherently copyable. Building an un-copyable bit isn’t just a difficult engineering challenge. On a general-purpose computer, it’s impossible. If a computer can read a piece of data, it can make a copy of it. The best you can do is to obfuscate the content so that figuring out how to make the copy is difficult and time-consuming. But that kind of obfuscation won’t stop a professional pirate or a hobbyist cracker with a lot of time on his hands.

Incidentally, it’s worth noting that probably the world’s most famous DRM cracker, Jon Lech Johansen has moved from his native Norway to San Diego to work for Michael Robertson, the the founder of the ill-fated MP3.com and (later) Lindows/Linspire. Johansen produced software to crack the copy-protection on DVDs at the age of 16, and more recently he’s cracked the copy-protection on Apple’s iTunes Music Store. It’s not clear what he’ll be doing, but it’s a safe bet that Hollywood and the recording industry won’t like it.

CAGW on Real ID

by on October 18, 2005

Citizens Against Government Waste has issued a report on the Real ID Act.

This is a welcome look at Real ID. It’s known by civil libertarians as a dramatic step forward for our national ID system, but CAGW points out that it will also be a huge expense, costing the average driver around $90.

Would you pay $90 to be even more subject to government surveillance?

Kudos to CAGW for recognizing the privacy issues while it exposes the huge costs involved in the Real ID Act.

Last minute addition to the schedule for tomorrow’s event at Heritage on digital television: Ken Ferree, former FCC media bureau chief, and–until last week–COO of the Corporation for Public Broadcasting. Ferree led the Commission’s DTV efforts during the Powell era, and is known for his outspoken views (of broadcasters: “They’d rather eat their children than give up their spectrum.”)

Ferree joins Tom Hazlett of George Mason University, Peter PItsch of Intel, former Ass’t Attorney General Chuck Cooper and New American Foundation senior fellow Jim Snider in what promises to be quite an interesting discussion. Stop by if you can, or watch it on the Internet. Details here.

New paper just out today from Heritage on the DTV transition, looking ahead to next week’s Senate vote on setting a “hard date” for the end of analog….

Since the days of Ed Sullivan and Milton Berle, television has been broadcast using the same technology and largely over the same frequencies. That is about to change. Later this month, Congress will vote on setting a firm date when TV broadcasters will have to end their analog broadcasts and return the frequencies used for them. Afterward, all TV broadcasts will use digital television technologies. This transition is critical–not so much for television viewers, few of whom watch television over the air anyway, but for consumers of innovative new wireless services that can put the old TV spectrum to better use…more

By now you’ve heard that Apple is launching a video-capable version of its wildly popular iPod. Apple is a real trailblazer, obviously, when it comes to innovative mobile media applications, but they’re not the only one.

For example, take a look at EchoStar’s incredible new application, the “Pocket DISH.” The PocketDISH allows consumers to access video, music, games and photos all on one small device. PocketDISH owners will be able to transfer programs from DISH Network receivers to the player and then enjoy their favorite programs on the go. It’ll be like having a TiVo in your pocket.

And the PlayStation Portable offers most of the same capabilities too. After enterprising hackers modified the PSP to do a heck of a lot more than just play games and watch movies, Sony decided to offer PSP owners downloadable software “patches” that expand the PSP into the ultimate all-in-one multi-media device. For example, click here if you’d like to find out how to watch TV using a PSP.

These amazing innovations once again illustrate the challenge lawmakers will face in the future regarding media regulation. Indeed, as I will argue in my next book, content controls are essentially doomed in our new world of media convergence and rapid technological innovation.

Think about it… how do you regulate devices like Apple’s video iPod, the PocketDISH, and the PlayStation Portable when consumers can use them (and modify them) to do just about anything and receive any type of media they want, wherever they want, whenever they want? Broadcast era content controls just won’t work in this environment absent extremely intrusive measures. But I’m sure that won’t stop lawmakers from trying.

Is DRM like a Contract?

by on October 13, 2005 · 2 comments

After reading James DeLong’s defense of Patrick Ross’s CNET article on the DMCA, I have to admit that I was being unfair to call the article “incredibly confused.” I interpreted Patrick to be saying that the DMCA literally allows consumers to break contracts they’ve made with content providers. But after reading DeLong’s defense, it’s clear to me that what Patrick meant is that a digital rights management scheme is like a contract in the sense that it allows publishers to place various restrictions on the use of their intellectual property and sell it at different prices. While this isn’t literally a contract (as Patrick might concede) perhaps it’s contract-like device that allows certain beneficial transactions to occur (such as a limited-time online rental of a movie) that would otherwise be impossible.

There’s a kernel of truth to this argument. Certainly if a content producer knows that renting videos online will lead to rampant piracy and destroy the market for purchasing videos, the producer will be reluctant to offer a rental option. Consumers clearly don’t benefit from fewer choices.

But this analysis misses two important points. The first is philosophical: a DRM isn’t a contract, and in several important ways, it’s not even very similar to a contract. As I noted in my previous post, the DRM “contract” is entirely one-sided. Its terms are set by the publisher and the publisher has the power to unilaterally and retroactively change them. If Apple sells a song to a consumer, it is under no obligation to ensure that the DRM scheme enforces the terms stated at the time of sale. Apple is free to change or reduce the functionality available to the consumer (such as reducing the amount of burning permitted) and the consumer has absolutely no recourse.

Continue reading →

If you find nothing on TV to watch next Wednesday afternoon, those of you in the DC area may want to come down to The Heritage Foundation at 12:30 for what should be an interesting discussion of the transition to digital television. WIth Congress planning to move legislation on key DTV issues–a hard date for return of the “old” spectrum, tuner subsidies, and must-carry to name a few, it should be a timely discussion as well. Participants include Peter Pitsch, high-tech’s man on DTV; Chuck Cooper, author of a new study arguing that must-carry may be the next Kelo taking; and the always-on Tom Hazlett of the Manhattan Institute.

Try to make it if you can. You can get details and RSVP here.

What’s the best way to savage the U.N., E.U., etc.? With humor.

Over on CircleID, there’s a great post illustrating the combined hubris and stupidity of the European bureaucrats who are making a project of ‘Internet governance.’

(The phrase ‘Internet governance’ can only be put in single quotes because it’s nonsensical. The Internet is not a thing.)