There’s a company called Riya that offers software to search personal photos using face recognition technology. Jennifer Granick of Stanford law school wrote a piece about it and its privacy implications, but her take is old and doesn’t see the big picture. Yes, face recognition technology changes society in ways that no longer allows the type of anonymity we have been used to, but that’s not the story here. The news–and it’s GOOD news–is that the government no longer has a monopoly on this piece of surveillance tech. That means the threat of living in a big brother state actually decreases, as it allows anyone to watch the watchers. Moore’s law keeps making technology more accessible and that promotes liberty.

News of the video bizarre: According to a just-released survey by Scientific-Atlanta, millions of people who have HDTV sets apparently think they are watching high definition television, but aren’t. The survey was spurred by an earlier Forrester Research projection that by the end of the year some 16 million U.S. households will have HDTV sets, but only seven million wll have HDTV reception. The Scientific Atlanta survey found that, yes, some 49 percent of households were not taking advantage of their HD equipment. About a quarter found that their HD set itself provided better reception, without taking the additional steps necessary to view HD. Eighteen percent said they didn’t even know needed additional equipment, such as a set-top box or antenna. A quarter admitted they thought they were watching HD video because, after all, the programs said at the beginning that they were broadcast in HDTV.

The survey confirms the long-standing prejudice of many of us non-videophiles that HDTV really isn’t all that impressive. Still, it is milding shocking that so many people plunk down money for an HD set, but never catch on that it isn’t actually turned on.

This could open up a slew of innovative policy options for the digital transition. Perhaps, instead of actually allocating spectrum to HDTV broadcasts, the FCC could just say it has done so, saving the spectrum for more valued uses. And instead of requiring HD tuners on sets, the FCC could just require a sticker saying the set has an HD tuner. The possibilities are endless.

Cynicism at Sony

by on December 7, 2005

Ed Felten has a great post on the cynical logic of digital rights management as it played out in the Sony spyware case. It’s worth reading in full, but I can’t do better than to quote his damning conclusion:

Running through this whole convoluted tale are two consistent threads. DRM is used as a weapon not against infringers but against market rivals. And when companies use DRM to undermine compatibility, law-abiding customers lose.

Go read it.

A La Carte Fairy Tale

by on December 6, 2005 · 28 comments

I’m baffled by the increasing popularity of the a la carte cable idea. The people supporting it seem not to have given any serious thought to the economics of the situation.

Cable companies are for-profit operations. Each year, they get a certain amount of revenue, (call it R) incur a certain amount of cost, (call it C) and the difference between the two is their profit or loss (call it P). If they lose money consistently, they’ll eventually go out of business.

Now, let’s assume for the sake of argument that P is relatively fixed in the long run. In a competitive market, companies tend to price their products so that they can cover their cost and get a “normal” return on their capital invested. If P rises too high, that will cause more competitors to enter the market (for example, a new satellite network, or build-out of fiber) driving prices back down to the normal level.

Now, what does a la carte cable do? To hear the rhetoric of its supporters, it will allow consumers to save money by only “paying for” the cable channels they use. The hip 20-something will get MTV but not Nickelodean, while the suburban couple with children will make the opposite choice. Since each is saving money by not being “forced” to purchase channels they don’t want, each will see their cable bills drop. In other words, a la carte cable, by the logic of its supporters, will cause R to drop. Cable companies will take in less revenue.

On the other hand, C won’t drop at all. In fact, it’s more likely to go up. The same infrastructure will need to be maintained, and some companies will need to install new hardware to support the a la carte functionality. Customer service costs, too, will probably rise as the ordering process will take longer. In short, the cable companies’ job isn’t made easier in any way by a la carte, so there’s no reason to expect their costs will go down.

But what about subscription fees? Won’t cable companies save money because they aren’t “buying” as many TV channels? Here, too, the savings are illusory. Cable channels are in an even more competitive market than cable TV services, so they don’t have a lot of extra profits from which to cover lost revenues. So if the number of subscribers goes down, they will be forced to raise their subscription rates to compensate. Even worse, because people are less likely to watch as much TV with a la carte, advertising revenues are likely to fall, which means even more will need to be made up through subscriptions.

So we’re left with the conclusion that R will go down significantly while C will stay the same or go up slightly. That’s a fairy tale. Cable companies do not have a giant pot of money at corporate headquarters with which to make up the losses imposed on them by a la carte cable. If forced to adopt a la carte, what they’ll do is simple: they’ll set the per-channel rates to generate the about same revenue as their previous pricing model. Instead of paying $60/month for 60 channels, you’ll pay, say, $10/month for each of your favorite 6 channels. The average consumer’s bill won’t change very much. The only difference is that he’ll be getting a lot fewer channels for his money.

The fundamental issue is that cable channels, like all intellectual property, is non-rivalrous. Once the cable company has set up the necessary infrastructure to deliver 100 channels, delivering 1 channel to the consumer is exactly as expensive as delivering 100. For that reason, it makes sense that every consumer would get every TV channel. Don’t watch MTV if you don’t want to, but it’s not costing you or society anything extra to have it available on your TV.

With a la carte regulation in the news again, I have penned a short new paper on the “Moral and Philosophical Aspects of the Debate over A La Carte Regulation.” In this PFF Progress Snapshot, I set aside the economic issues at stake in this debate and instead focus on the moral arguments that are really driving this debate today, namely: (1) that consumers have a “right” to video programming on any terms they wish; and, (2) that a la carte regulation will help “clean up” indecent programming on cable and satellite television.

To see why neither is the case, read my paper.

Politics in California is often surprising, especially so under Governor Arnold Schwarzenegger. As if the point needed proving, the governor stunned state politicos by naming of a card-carrying Democratic leftist, Susan Kennedy as his new chief of staff. Kennedy (no relation to the governor’s in-laws) has a eyebrow-raising political pedigree–a former assiciate of Tom Hayden and Jane Fonda, and deputy chief of staff to former Governor Gray Davis.

Conservatives are aghast. Political pundit John Fund of the Wall Street Journal today asked in horror “has Governor Schwarzenegger jumped the shark?” The selection of Ms. Kennedy, he said, may be the governor’s “Harriet Miers” moment.

Fund–who is usually right about such things–is wrong here. Harriet Miers was a moderate Republican whose political views were obscure. No one is accusing Kennedy of being a moderate. But– in another California surprise–she is a strong supporter of economic deregulation. In her previous job as a California PUC commissioner, she was a leader in the fight to reduce telecom regulation. One of only a handful of pro-market state regulators in the country, she put even most Republican PUC members to shame. She co-founded, along with Florida GOP regulator Charles Davidson, the “Federation for Economically-Rational Utility Policy. (See “Economically-Rational Regulators, Not an Oxymoron Anymore.”) Perhaps more colorfully, she has been called “California’s Deregulation Energizer Bunny” in Cisco’s high-tech blog.

I have no idea what Kennedy’s views are on other issues. But, as a regulator for the past three years, she resembled former governor Reagan than former Governor Davis. Pigeon-holing her politics may not be as easy as it looks. Pundits should prepare for more surprises.

Jeers to the Cellular Telecommunications & Internet Association for volunteering its membership’s data collections for the growing corporate-government surveillance axis.

In an exchange of comments to the FCC about whether there should be mandated security requirements for Customer Proprietary Network Information (aka “phone records”), the Electronic Privacy Information Center has argued for “deidentifying” older phone records that are no longer needed for billing and related purposes. This way, the companies can use the data to study their network needs without maintaining an ongoing risk to the privacy interests of customers. Whether this should be required by regulation or not – I think it probably shouldn’t – this practice is the right thing to do.

CTIA responds, “Historical calling records serve many legitimate purposes, from assisting customers who need to validate their wireless charges and document past events to responding to legal process from law enforcement in criminal and national security matters.” In other words, after all billing issues are gone, identified calling records are a trove of surveillance data for investigators. So let us keep them.

The implicit appeal to the threat of terrorism should not carry the day over the real consequences for every American consumers’ privacy. But regulators won’t put consumers’ interests ahead of covering their own asses. Watch for CTIA’s veiled terrorism argument to win. EPIC has the right answer, but it should be working this angle in the marketplace rather than in Washington.

Hackery

by on December 1, 2005 · 4 comments

As an employee of a right-of-center think tank, I’ve had my share of accusations thrown at me that I’m in the pay of corporate America, so I don’t say things like this lightly, but after reading the recently-founded Property Rights Alliance’s defense of the DMCA, I have to say: the RIAA and MPAA should ask for their money back. A few of the most obvious and embarrassing errors:

However, “fair use,” the term often identified with the right to use certain copyrighted intellectual property without permission from or payment to the patent holder, is deceptive rhetoric that masks the real effects of this term. Fair use is inherently perverse to patent holders, intellectual property corporations, and most importantly, to the American consumer.

Now, I’m not a lawyer, but I’m pretty sure there’s no such thing as a fair use doctrine in patent law. And in any event, HR 1201 doesn’t make any changes to patent law. It’s hard to see how you can even begin to have an intelligent discussion of the merits of Boucher’s legislation if you don’t even know the difference between a patent and a copyright. This was clearly written by someone who doesn’t have the first clue what he’s talking about. It continues in the same vein:

Fair use provisions stated in [HR 1201] allow for the manufacturing and dissemination of hacking devices that circumvent copyright protections and infringe on patents, so long as these products are “capable of substantial non-infringing uses.”

HR 1201 allows you to infringe patents? That’s certainly news to me. I suspect it’s news to Rep. Boucher as well. And strangely, the text of the bill does not include the word “patent.”

Then we have this gem:

Providing an exemption for any device that has non-infringement purposes effectively destroys all protections of copyrighted material.

I bet Justices Stevens and O’Connor will be surprised to learn that they abolished copyright law when they established precisely that standard in 1984. Who knew that America had no effective copyright protections until Congress enacted them in 1998?

I could go on, but you get the point. I vigorously support the right of corporate America to hire people to promote their point of view in the legislative arena. But for their own good, they really ought to choose hired guns who know what they’re talking about.

Blackberry Blackout

by on December 1, 2005 · 6 comments

I really don’t care very much about the particulars of the patent battle between RIM and NTP.

But when I read yesterday that a US District Judge invalidated the $450 million settlement reached earlier this year, I was elated at the possibility, however unlikely, that an injunction might shutdown the Crackberry of every jackass lawyer in DC.

Occasional TLF co-blogger Solveig Singleton has some very sensible comments about the pending lawsuits against Sony BMG. I largely agree with her that the actual damages of Sony’s actions are pretty small, and that these class action lawsuits are more likely to enrich lawyers than compensate consumers. I still think the lawsuits should go forward, however, especially given that Sony has yet to pull its other spyware, MediaMax, from the shelves, despite well-documented problems.

The part of her argument that I found most interesting was this paragraph:

It isn’t the technical characteristics of something alone that determine its legal treatment (whether or not we should think of it as an “attack”), it is partly the intent of the actors. Set aside the intent issue for a second and look at the tech. Is it really always clear what is a “pure” hacker tool and what is not? Isn’t it likely that in future programmers might well continue to experiment with “hacker tools” to see if they can use principles in those tools for a useful purpose? Isn’t the argument that there is such a thing as a purely useless and bad tech usually made by advocates of tech bans? Are we saying that all software always has to be easily removable and detectable? By everyone? What about security software or content filters used by parents or schools or employers? Suppose experts could find and remove it but not beginners? Suppose a DRM system was hard to find or hard to remove, but didn’t create a security vulnerability to outsiders? Or suppose it did, but was easy to find and remove? There are a million possible permutations of technology here–hard to imagine the legal system coming up with a top-down rule that makes sense for all of them, especially at this early stage of the game. Markets adapting after the fact are much more flexible.

I wholeheartedly agree. And I’m curious how Ms. Singleton would apply this reasoning to the DMCA. After all, the DMCA is a “tech ban” on a class of devices, namely “circumvention devices,” (which in practice means any devices that interoperate with DRM’ed devices without the permission of the DRM creator). It’s quite true that some “hacker tools” might be useful in software like parental controls. It’s equally true that some “circumvention tools” have legitimate uses as well. For example, as long as Hollywood refuses to create a DVD player for the Linux operating system, any software to play DVDs on Linux is by definition a “circumvention device.” Likewise, any utility to convert songs from the iTunes Music Store format directly to the Windows Media format (so they can be played on WM-based MP3 players from Dell, or Sony) is a “circumvention device.” I could give lots of other examples.

In short, the line between legitimate software and piracy tools isn’t clear-cut, and, to paraphrase Ms. Singleton, it’s hard to imagine Congress coming up with a top-down rule that makes sense for all of them. Which is why it was stupid for Congress to legislate such a rule in 1998. Markets adapting after the facts would, as she says, have been much more flexible.

So is there some distinction I’m missing? Or is Ms. Singleton a closet supporter of the DMCRA, which would repeal the “top down rule” Congress imposed on this market in 1998 and allow market actors to experiment with the potentially beneficial uses of circumvention technology?