November 2005

More Congressional Cluelessness

by Tim Lee on November 17, 2005

I apologize for the broken-record nature of my posts this week, but I thought this, from Patrick Ross’s summary of yesterday’s hearing, was pretty rich.

Diana DeGette (D-Colo.)–Tore Google a new one over its Google Print program, although she misstated the company’s program by saying it was putting whole books online.

Tim Murphy (R-Pa.)– Echoed DeGette, noting he himself is an author. He said the company was “taking away the ability to make a living.”

I wonder, does it bother him at all that DeGette and Murphy are apparently completely clueless about what Google Print (now known as Google Book Search) actually does? Did he, DeLong, or any of Google’s critics make any effort to correct their obviously flawed understanding of what’s at stake? Because this isn’t a minor misunderstanding. You can’t even begin a fair-minded analysis of Google’s product if you think that Google is distributing entire books, which everyone understands would be a clear violation of copyright law.

The DMCA vs. Interoperability

by Tim Lee on November 17, 2005

Supporters of the DMCA keep telling us that “the market” will give us the fair use privieges that the DMCA took away. What about this one?

TiVo puts a DRM wrapper on the MPEG-2 video they store, so once you download it, you can only view it if (a) you have a media access key (comes with the TiVo) and (b) their software on your PC to control the viewing experience. If you remove the DRM wrapper, then you’ve circumvented the TiVo DRM.

The iPod, of course, doesn’t understand the TiVo DRM, which is based on a Microsoft DRM technology. There’s no way to view TiVo video on your iPod without removing the wrapper. There’s the rub. As a consequence of the DCMA, if you download a show from your TiVo and remove the TiVo DRM to put it on your iPod, you’ve broken the law. Keep in mind that we’re not talking about putting the show on the Internet, giving it to your friends, or anything else. Just moving it from one device you own to another device you own to watch then throw away.

DCMA supporters would jump in here to state that the DCMA is protecting the rights of people who distribute the shows. After all, perhaps NBC doesn’t want me to watch “The Apprentice” on my iPod. Ironically, however, it’s not NBC’s rights that are being protected since NBC has no say in the matter. They may, in fact, like the fact that I’m going to watch their show and the advertisements which are built into it in large part. One more viewer!

So what is being protected by the DCMA in this case? TiVo’s business model. I have to buy TiVo boxes or use their program to watch shows recorded with a TiVo. This has nothing to do with protecting the intellectual property of NBC and everything to do with protecting the interests of TiVo. TiVo is using the DCMA to lock in customers. It’s as if Congress made moving your stock data from MyYahoo! to Motley Fool a crime so that Yahoo! could retain its customers.

I wonder if James DeLong or other DMCA supporters could tell us when “the market” will give me the opportunity to buy the right to watch TiVo-recorded TV shows on my iPod. I’m not going to hold my breath.

Congressmen: Not Computer Experts

by Tim Lee on November 16, 2005

Today’s hearing was chock full of clueless statements. Here’s Cliff Stearns, Chairman of the subcommittee:

While I would like to explore the issues HR 1201 seeks to remedy, I think the cleaner solution to this lies in technology, not necessarily legislation. On that note, I have a number of issues I would like to discuss here today. The first question I have is whether we have gotten any closer to technology that would allow a limited number of protective copies to be made of copyright-protected works. According to Mr. Valenti, representing the Motion Picture Association before the Subcommittee last year, “Keep in mind that, once copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original.” I would like to know about the state of technology in this area. I can’t think that this is not a solvable challenge. Why don’t we make it the copyright equivalent of the race to the moon. We went to the moon almost 40 years ago–it seems to me technology should afford a means of limiting the number of copies we can make of a protected work. Absent promising news on the technology front, I assume we will have to allow the legislative process to work and see if that will yield a solution, although perhaps an inelegant one.

Now, for the non-programmers in the audience: making an uncopyable file is akin to building a perpetual motion machine. It’s not just technologically challenging. It’s theoretically and logically impossible. Files are just strings of 1s and 0s. Computers manipulate 1s and 0s. There’s no such thing as an uncopyable 1 or 0, so there’s no such thing as an uncopyable file. If you’ve got one copy of a file, you can make as many copies of it as you like. That’s just the way computers work.

It’s depressing that that Rep. Stearns isn’t getting competent advice from his staff. But it’s heartening that the supporters of the DMCA have been reduced to such transparently bogus arguments. Congressman Stearns clearly accepts the premise that consumers have fair use rights that need to be respected. At some point, he’s going to realize that DRM developers are selling snake oil, and at that point the DMCA is going to be in big trouble.

Wow…

by Tim Lee on November 16, 2005 · 2 comments

This, from from James DeLong’s testimony before Congress made my jaw drop:

So, is it fair use to copy music to a portable device, as discussed earlier? The answer should be “yes,” under the old technological regime; but under the new one, the correct answer is, “Who cares”? Consumers have made clear that they expect such functionality, and the techies quickly supplied DRM that fulfills their wish. Consumers are getting these rights from the market. Perhaps in the future, as everyone gets more sophisticated, the rights granted and the price points will be calibrated more finely. Perhaps not. But it simply does not seem to be an issue with which the law, or the Congress, should be concerned.

If I purchase a song from the iTunes music store, I cannot transfer it to a Dell or Sony MP3 player. Moreover, any tool I might develop or download to allow me to do so would be classified as a “circumvention device” under DeLong’s beloved DMCA, and be illegal. To my naive eyes, it doesn’t seem to me like I’m “getting my rights from the market.” Rather, it looks to me like I’m having my rights taken away by a heavy-handed law passed by Congress at the behest of people like DeLong. And so far, “the market” hasn’t given me the opportunity to buy those rights back (rights I would otherwise have had for free) at any price.

Let’s consider a few other rights traditionally enjoyed under copyright. If I want to get permission to include a five-second sample of a song I purchased from the iTunes Music Store in another musical work, can I buy the rights to do that? Nope. What if I wanted to give my song to another person? Can I do that? Nope. Can I purchase the right to play it with jukebox software other than iTunes? Nope. How about if I want to transfer it to my high-end home stereo system? Not for any price.

I’m honestly at a loss as to how someone who I assume follows this issue closely can write something that so brazenly ignores the actual state of the market. Is he unaware that the market is being balkanized into incompatible DRM schemes that prevent users from transferring music between them? Does he imagine that Microsoft and Apple’s DRM schemes are going to magically become compatible at some point in the future? (They’re not.) Does he think that it’s just fine that anyone who purchases a song from Apple is locked into buying iPods for the rest of his life to play that song? Does he think that no consumer will ever want to do something with an iTunes song that Apple’s engineers hadn’t anticipated?

2 comments

Geeky Conspiracy Theories

by Tim Lee on November 16, 2005

Donna Wentworth links to a very long article about how telecom companies are going to destroy the open Internet we now enjoy and replace it with a proprietary network that only allows officially-approved traffic.

The theory is that the telcos want to be able to charge us premium prices for various telecom services like phone calls and video. But they can’t do that on the current Internet, where you get unlimited data access for a flat fee. So, the theory goes, the telcos would dearly like to replace the open, end-to-end Internet with a proprietary network that only allows approved content to be exchanged.

I think the author of the article is wrong. Indeed, with all due respect to the people pushing so-called “network neutrality” regulations (whose arguments I find persuasive on a lot of other issues), I think it’s rather silly. The Internet is a massive, chaotic, fiercely competitive ecosystem. No one carrier owns more than a tiny fraction of its capacity. No one company controls more than a tiny fraction of its content. In short, no one company is ever going to control the Internet.

But can’t telcos phase in restrictions piecemeal, gradually tightening users’s access to services that compete with their own until the open Internet is de facto transformed into a closed system?

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Is Convergence Nothing But Hype?

by Adam Thierer on November 15, 2005

Two of my favorite media and First Amendment scholars, Thomas G. Krattenmaker and Lucas A. Powe, once observed that “it has become a trivial ritual to observe that telecommunications technologies and media are converging.” But while “convergence” is a buzzword that has been uttered in almost every conversation about technology, communications, and media over the past decade, that doesn’t mean the significance of this phenomena should be casually overlooked or ignored by policy makers, business leaders, or consumers. Indeed, technological convergence is set to upend the entire media universe and public policy along with it.

If you don’t believe me, then you need to check out this excellent new report by Deloitte entitled Digital Convergence: The Trillion Dollar Challenge. The Deloitte report notes that “increasingly substance is displacing the hype” about convergence. They cite numerous examples of how convergence is at work–and with a vengeance–in the technology, media and telecommunications (TMT) sectors.

Rapid convergence for TMT is being driven, they argue, by three underlying trends:

(1) The Proliferation of Digital Data: The general digitization of all information and content in our new economy;

(2) Widespread Connectivity: The tying together of previously diverse information, networks, devices, organizations, and communities; and,

(3) Technological Advance: The unrelenting pace of technological change and innovation–most notably embodied in Moore’s Law–which continues to make everything in the Digital Economy faster, cheaper, smaller and more energy effiecient.

These convergence factors, the report goes on to argue, can be expected to “create new product categories, new markets, and in some cases even change the structure of existing industries–shifting the balance of power and altering the basis of competition. Some companies will win; some will lose; and some will stand idle as the best opportunities pass them by.”

Traditional media and communications companies… are you listening?

Epstein on Google Print

by Tim Lee on November 15, 2005

Richard Epstien is a hero of mine, so this essay on the Google Print controversy was frustrating to read. His point of departure is the recent tiff between James DeLong and Larry Lessig over Lessig’s airplane analogy.

Now, I agree with Epstein and DeLong that Lessig’s exposition of the Causby case was sloppy. When I first looked up the case while writing this article, I was surprised to find that the point he highlights was in fact an aside to the case.

Nevertheless, I think it’s pretty clear that Lessig was drawing an analogy to the Google Print case. He wasn’t citing the case as a precedent, nor was he claiming that the issues presented were precisely the same. What he was saying was that mindless applications of old rules to new technological situations can lead to absurd results. Clearly, requiring airplanes to get permission from every landowner whose property he crosses would be absurd.

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Tuning in to Tunisia: A Bad Start to the UN Information Summit…

by James Gattuso on November 15, 2005

Delegates and other assorted hangers-on are gathering in Tunis this week for tomorrow’s start of the UN’s “World Summit on the Information Society.” Given the topic, one would expect a fairly free flow of information surrounding the event–for appearance sake, if nothing else. Not so. Reports are that Tunisian authorities broke up a meeting on press freedom, beat up a French journalist, and blocked access inside the country to a website of a side event called the “Citizen Summit on the Information Society.”

Certainly an odd way to begin a summit on the information society. If this is what happens when a government is on its best behavior, what happens when nobody is watching? No wonder there’s so much opposition to plans–to be debated at the summit–to “globalize” governance of the Internet.

The Tunis summit, by the way, will be the subject of a Heritage policy forum on Thursday, November 17 at 10 am. Speakers include Sen. Norm Coleman, Rep. John Doolittle, Heritage China expert John Tkacik and fellow TLF blogger Adam Thiere. If you are in DC, stop by. If not, you can catch it on the web. Details here.

Unintentional Humor

by Tim Lee on November 14, 2005

This is funny:

Open source will fail to deliver innovation and is more likely to break applications, according to Shai Agassi, president of the product and technology group at SAP.
“We all talk about how great Linux is,” he said at a speaking engagement at the Churchill Club in Silicon Valley.

“But if you look at the most innovative desktop today, Microsoft’s Vista is not copying Linux, it is copying Apple.”

And Apple’s Mac OS X, of course, is based entirely on proprietary, commercial software. It doesn’t have a Unix-based open source core, an open-source web server, a web browser based on the source code of a web browser originally developed for Linux, Samba, an open-source package that allows file and printer sharing with Windows, CUPS, an open-source project that handles Mac OS X printing, and… well, I could go on like this for pages.

Mac OS X is a bundle of features, some of which are open source and some of which are proprietary. Arguably, most of the features that Microsoft is copying are proprietary, but to a large extent, the reason Apple has been able to develop so many innovative features so quickly is that they built the OS on a rock-solid open source foundation, saving them a lot of work in re-implementing a whole bunch of wheels. It’s downright absurd to argue that Mac OS X is a poster child for the superiority of proprietary software over open source software. What Apple demonstrates is that both proprietary and free software can benefit from collaboration.

I also think it’s a mistake to assume that the desktop is the be-all and end-all of the software market. Open source software isn’t that great at producing high-quality desktop software (Firefox is a major exception) because, frankly, desktop software is boring to create. In contrast, open source software is thriving in behind-the-scenes roles like web, file, and email servers which, while not as visible to the average user, is every bit as important economically.

The Dark Side of DRM

by Tim Lee on November 10, 2005

Lovely:

Virus writers have begun taking advantage of Sony-BMG’s use of rootkit technology in DRM software bundled with its music CDs.

Sony-BMG’s rootkit DRM technology masks files whose filenames start with “$sys$”. A newly-discovered variant of of the Breplibot Trojan takes advantage of this to drop the file “$sys$drv.exe” in the Windows system directory.

“This means, that for systems infected by the Sony DRM rootkit technology, the dropped file is entirely invisible to the user. It will not be found in any process and file listing. Only rootkit scanners, such as the free utility RootkitRevealer, can unmask the culprit,” warns Ivan Macalintal, a senior threat analyst at security firm Trend Micro.

Now here’s the awkward question for supporters of the DMCA: what would constitute “circumvention” in this case? The DMCA doesn’t make an exception for poorly-written DRM schemes. It doesn’t say circumvention is illegal unless it’s necessary to safeguard the security and stability of your computer. So if I had a PC infected with Sony’s software, would I be a criminal if I removed it? Is a programmer who shares a removal tool “trafficking” in circumvention tools?

The fundamental problem with the DMCA is that it focuses on technological design decisions (“does this product circumvent a DRM scheme”) rather than on the behavior of people (“does this company’s business model undermine copyright holders’ rights?”). The members of Congress aren’t computer programmers, and so not surprisingly, when they tried to legislate about technological design decisions, it didn’t work very well. We get vague concepts like “technological protection measure” and “circumvention device” that don’t track well with the way actual computer software works.

One solution would be to amend the DMCA to make it clear that you can circumvent DRM schemes that threaten the security of your computer. A better solution, though, would be to get Congress out of the business of legislating about technological designs altogether by repealing the anti-circumvention provisions of the DMCA.

Update: I agree with Ed Felten. This is spyware, plain and simple. Felten also links to a great followup by Mark Russinovich, the guy who broke the story in the first place, on the embarrassingly complicated uninstall process that Sony has set up to dissuade users from removing its spyware from their computers. Sony needs to realize how badly it has screwed up, apologize to its customers, and publicly distribute a one-click un-installer for its spyware DRM.

Also, if you still have a PC (and really, isn’t it time you jumped on the Mac OS bandwagon?) you should disable auto-run to protect yourself from incidents like this in the future.

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