December 2005

DRM versus Artists’ Control

by on December 19, 2005

John at the Commons Music Blog has an artist’s perspective on the dark side of digital rights management technology. He highlights three reasons why he doesn’t use DRM to “protect” his content. I thought the first reason was particularly on point:

I detest not having control.

“But,” say some, “DRM gives you control, not takes it away.” Silly rabbit.

DRM is not something that can be grabbed from the aether and implemented. It’s run by a series of companies, each with different platforms and technologies implementing themselves in various ways…

If I sold someone an MP3, I am quite certain that they will be able to use that MP3 on almost every computer, and in pretty much every portable device on the market. If I sell an Apple iTunes DRM’d file, that plays in iTunes, on a few cell phones, and the iPod.

Speaking of Apple, they are currently in a dispute with the record industry to allow different pricing structures and usage terms, depending on the songs. They want Apple to share its DRM so that a multitude of devices (not just the iPod) will work with it. The labels can’t force them, because the songs that millions have bought are intricately tied to Apple’s DRM, for which they fought viciously. Now, they’re stuck. They’ve lost control.

This is an important point. DRM almost never gives artists control of their own work. Hell, DRM rarely gives record labels or movie studios control over the work they publish. Rather, DRM empowers third-party technology companies–Apple, Microsoft, Real, TiVo, the cable industry, etc–who didn’t produce the content their DRM “protects,” yet thanks to DRM they have the final say on how the content is used.

Obviously, no one forces artists, labels, and studios to sign deals with the likes of Apple and Microsoft. But given all the rhetoric about how DRM is about protecting artists’ rights, it should give us pause that, in practice, DRM almost never gives artists meaningful control over how their content is used, and that, in fact, some of the restrictions placed on consumers by DRM are directly contrary to the interests of copyright holders.

Think about it: when you purchase a song on iTunes, you’re pretty much only allowed to listen to the song with iTunes or an iPod. Who does that benefit, the artist who recorded the song, the label that distributed it, or just Apple? As I’ve said before, the recording industry is being taken for a ride.

Your Ears are Analog Holes

by on December 19, 2005

A few years back, Julian Sanchez coined the phrase “reductio creep”:

So by now, everyone’s heard about the ludicrous case of the butterball who’s suing the fast food industry because they failed to inform him that shoving lots of cheeseburgers down your gullet will make you a very large and blubbery boy. (He thought “100% beef” meant it was healthy, y’see.) This is, of course, the sort of possibility people raised during the tobacco lawsuits of the 90s as an absurd analogy to holding cigarette makers responsible for the healthcare costs of people who knowingly chose to smoke. “What’s next?” we asked, picking what we thought was an extreme illustration, “suing McDonalds because you get fat?”

I think we need a term for this sort of phenomenon, and I’m partial to “reductio creep.” Reductio creep is the process by which an insane extension of some principle, offered as a reductio ad absurdum of that principle, is soon afterwards realized.

Here’s the 2005 version of reductio creep: “plugging the analog hole.” Critics of the DMCA have long argued that one of the problems with DRM is that all digital content has to be converted into analog form in order for human beings to see or hear it, and analog signals can’t be wrapped in DRM schemes. “What are you going to do,” we asked (rhetorically, we thought), “outlaw analog audio and video?”

Some Congressmen, it seems, didn’t get the point. Once the phrase “analog hole” entered the policy lexicon, they started imagining that it’s a literal security hole could be plugged with legislation. As a result, they’ve crafted a horribly complex piece of legislation that mandates that all analog devices maintain and respect government-mandated copy-protection signals within the analog stream.

But applying quasi-DRM to analog devices isn’t going to prevent people from using the “analog hole” to strip copy-protection out of commercial content. I haven’t studied the specific copy-protection methods mandated in this legislation, but if it’s anything like past analog copy-protection schemes, (such as macrovision) any smart electrical engineering student will be able to build a device from standard electronics equipment to strip out the copy-protection encoding. Are we next going to start requiring electronics geeks to get government approval before they can order breadboards and DSPs?

More to the point, the legislation exempts audio equipment already on the market. That means that for the next two or three decades, at least, anyone who wants to circumvent this copy-protection scheme can simply buy used audio equipment.

Finally, many examples of the “analog hole” won’t be affected by this legislation at all. For example, people who smuggle a camcorder into a movie theater and record the movie aren’t going to be slowed down at all by this legislation. Same with people who stick a microphone next to their speakers and record music as they’re playing it. Yes, there will be some loss of quality, but once it’s been done it can be converted into digital format and reproduced an infinite number of times with no further loss of quality.

It’s important that opponents of this legislation not get sucked into treating the “analog hole” as an actual security flaw that can be “plugged.” The “analog hole” is a metaphor for the ease with which analog content can be copied and manipulated, regardless of what format it’s in. “Plugging” it isn’t a serious policy proposal; it’s a pipe dream for people who don’t understand how media technology works.

Update: Peter Suberman’s take on the analog hole is a must-read.

New at Brainwash

by on December 19, 2005

In my latest Brainwash column, I take on the silly movement for “a la carte” cable programming mandates.

I focus pretty much exclusively on the economics of the situation. Unfortunately, I fear it won’t be terribly persuasive to a lot of the idea’s supporters, because at root, I think the a la carte issue appeals to some deeper emotional issues–people don’t like the idea that “their” cable dollars are going to pay for channels they don’t approve of. That argument doesn’t make a lot of sense, because there’s no reason to think that “family-friendly” programming would do better than the alternatives in an a la carte world, but when has an economics lesson ever changed anyone’s mind about a “moral” issue? As Adam has argued, the fundamental goal of a lot of a la carte activists is to crusade against smut, not to save consumers money, so the anti-smut activists are unlikely to care that “a la carte” is bad for consumers.

Whoever wrote this disappointing article in The Economist doesn’t seem to have done his homework:

Distressed BlackBerry users argue that too many of the world’s workers rely on the device for the service to be shut down. But many of their jobs depend on the principle at stake in this case–that the courts should protect intellectual property because it rewards inventors by conferring a real title to an intangible asset. Business requires confidence that intellectual property will be respected and infringers brought to justice, regardless of whether the litigant is using the patent or not. Only with that security will firms patent and license their inventions, thus allowing others to use their ideas.

This argument rings incredibly hollow in light of the actual facts of this case. It’s undisputed that RIM invented its system independently of NTP, and NTP never brought it’s “inventions” to market in any significant way. In light of those facts, the last sentence gets the situation precisely backwards: the patent system is serving as an obstacle to the widespread use of the “invention” in question. In this case, at least, innovation would have been served just fine without any patent system at all.

Nowhere does the article mention what the patents actually cover, and there’s certainly no attempt to defend the patents on their merits. Yet considering such details is vital to understanding what’s at stake in this case. NTP’s patents don’t cover a genuine invention so much as an obvious combination of well-known previous inventions, namely email and wireless technology. It was all but inevitable that others would think of the same combination in short order. Indeed, it’s likely plenty of geeks had already thought about the concept but considered it too obvious to apply for a patent on it.

I think it’s hard for anyone who’s looked at the details to argue with a straight face that siding with patent trolls like NTP is vital to the health of the IT industry. Quite the opposite: spurious patents have become a major drag on high-tech industry, with companies like NTP leeching off the wealth created by genuine innovators like RIM.

The Economist thinks that the principle at stake in the RIM-NTP battle is whether patents should be protected, but that’s silly. Hardly anyone is advocating that the patent system be repealed in its entirety. Rather, NTP critics are seeking reforms that will ensure that only genuine inventions–those that are genuinely useful, novel, and nonobvious–receive legal protection. Some want the obviousness requirement tightened up. Others (such as me) argue that certain classes of patents, such as those for software and business methods, never meet these standards and so should be excluded from patentability. In any event, there’s not much dispute that patents for legitimate inventions should be upheld, and that’s certainly not the principle at stake in this case.

Conservative Corruption

by on December 17, 2005 · 4 comments

Franklin Foer’s article on Abramoff’s corruption of right-wing intellectuals is must-read background on the Bandow scandal. I think it really highlights the fact that conservatives and libertarians need to do a better job of self-policing. We have a natural tendency not to look too closely at our erstwhile ideological allies. I think a thorough housekeeping is in order: we need to not simply ignore “think tanks” and “journalists” that are little more than shills for special interests, but we need to actively dissociate ourselves from them and make sure we’re not tainted by their ethically dubious behavior.

Foer points out that all roads lead to Grover Norquist. As my personal contribution to the housekeeping, allow me to point out one of the most transparent front groups around, Grover’s Property Rights Alliance. As I hint at here and discuss here, this “think tank” is, in fact, no more than an excuse for the music, movie, and pharmaceutical industries to associate their pet issues with the public backlash against the Kelo decision. Reputable think tanks should stay as far away from them as possible.

Though I haven’t read Steven Johnson’s book, I know he makes the argument that the complexity of plotlines in modern-day televison is a significant departure from the simplistic shows of the past, and as a result, our brains must work harder to digest today’s shows. In other words, the television of today is “smarter” than that of yesteryear. That’s all well and good and may be a satisfactory answer to the question of whether TV rots your brain. Answer: not anymore.

But, new research by a couple of fellows at the University of Chicago suggests that the answer might be: it never did. Certainly, too much of anything can be bad for us, but Matthew Gentzkow and Jesse Shapiro contend that the presence of television in American life has actually raised our IQs, especially in homes where English was a second language. I had the good fortune of meeting Dr. Shapiro this past weekend at an IHS-sponsored event. He explained that he and Gentzkow’s research compared standardized test scores for children in certain areas before and after television was introduced. Conclusion: scores rose after the introduction of TV. Read the whole thing here.

More from our Bizarre Survey Department: Everyone knows what VOIP is by now right? Voice Over Internet Protocol telephony is the hottest thing in the communications world, and tech policy geeks can talk about it–as well as over it–all night. But, according to a survey conducted by Harris Interactive, most Americans have no clue what it is. The Verizon-commissioned survey, conducted in May but just released recently, found 87 percent of respondents could not say what VOIP was. Of those who took a guess, 20 percent said it was a hybrid European car. Another 10 percent thought it was perhaps a low-carb vodka.

Is this bad news for VOIP providers? Not really. People don’t really care what their phone service is called, they just want to be able to talk on the phone without spending a lot of money. It is techies and policy geeks who should take heed–as excited as we may get over all this new stuff, most people don’t know what the heck we are talking about. If only they read the Tech Liberation Front more often…

Its enough to make you reach for a bottle of Voip.

In a previous column about “A La Carte as Censorship,” I noted how some regulatory activists were using a la carte regulation as a Trojan Horse to impose content controls on cable TV. In the last couple of days, “family-friendly” tiers have been “voluntarily” offered by the cable industry as a way to head off a la carte mandates and cable censorship in general. But it’s already clear that this won’t change things much since activist groups and lawmakers are jawboning for specific channels and content to be included or excluded from these tiers.

Continue reading →

Supporters of telecom reform got an unexpected Christmas present yesterday as Sen. Jim DeMint, a Republican from South Carolina, introduced the “Digital Age Communication Act.” If the name sounds familiar, it should–DACA is the product of a year-long effort by the Progress and Freedom Foundation to develop a free-market framework for telecom reform. DeMint’s proposal takes the parts of the PFF plan completed to date–including proposals for regulation and for universal service subsidies–and puts them into legislation.

DACA represents the work of dozens of telecom experts from academia and the think-tank world, serving on working groups covering all aspects of telecommunications policy. (I was pleased to be able to serve on two of those groups). While not all of the groups have completed their work, the product so far provides a market-oriented, yet practical, framework for reform. The core of the plan is a new approach to regulation. Instead of defining regulation by type of service (what PFF’s Randy May calls “technocentric” regulation) rules are applied based on the presence or absence of competition, using an “unfair competition” test borrowed from the Federal Trade Commission Act. Other sections of DACA would replace current universal subsidies with block grants to the states, and limit state and local regulation of telecom and cable TV services.

No one will agree with all aspects of the plan. In many areas, it could have gone further. Rather than provide “unfair competition” authority to the FCC, I would have preferred to recognize that the FTC already has such rules, apply them to telecom, and send everybody home. That said, the DACA approach is the best entrant so far in Congress’ telecom sweepstakes, showing that free-market concepts can be incorporated into practical proposals. Kudos to PFF and Sen. DeMint for taking the telecom debate a big step forward.

Richard Huff, TV columnist for the New York Daily News, has a very entertaining column today entitled “Your Kids, Your Cable, Your Problem.” It’s basically an open letter to the parents of America who are calling for cable regulation or censorship.

“Stop looking for outside help from Congress or watchdog groups to clean up, clear up and make safe the programming your kids watch,” he argues. “If parents want to have a handle on what their kids watch, well, then, they’ve got to take control of the situation. Sorry, that’s the truth. Stop looking for someone else to blame.”

Huff makes a powerful case for parental responsibility over government nannyism and points out that if we give up and let the government play the role of surrogate parent, we will be making a serious mistake:

“The idea of limiting channel lineups is as crazy as the arguments being made to clean up TV in general. It’s born of the same mentality that requires the producers of a commercial with a car climbing the side of a building to warn viewers not to try it themselves.

Here’s my advice: Get all the programming you can for the price you can afford. Give yourself options. And if you’re seriously concerned about blocking content, take control and use the tools at hand.

The last thing you want is for someone else to make those decisions for you.”

Amen brother!