July 2006

The Economist on iTunes

by on July 10, 2006 · 2 comments

The Economist discusses the economics of the iTunes-iPod tie in relation to the French interoperability law, which apparently was passed a couple of weeks ago. They make the familiar razors-and-blades analogy that has been discussed here on TLF before. The weird thing is, they never get around the actually making an economic argument about why the tie is economically beneficial:

The law’s opponents reach for different analogies. They compare the iPod not to the Walkman, but to printers, games consoles and razors. Buy an inkjet printer, for example, and you must buy the manufacturer’s cartridges to be sure that it will work properly. (Although French parliamentarians will not come to your rescue, European regulators might.) Indeed, manufacturers make much of their money from the cartridges, not the printer itself, which is often sold cheaply. Economists explain this business model as a clever way for companies to “meter” their customers, charging them according to use. If they could not tie their customers to their cartridges, they would charge more for the printer itself, and the kind of person who now uses his printer rarely would not buy one at all.

Apple’s business model, however, turns this on its head. Apple makes its money from sales of the iPod, not sales of music; the printer, not the cartridge; the razor, not the blade. As Bill Shope, an equity analyst at JPMorgan, puts it, the music store is a “loss leader” that serves only to boost sales of the iPod. It is as if record stores existed only to sell record players.

The article goes on to explain why this arrangement benefits Apple, but it never gets around to explaining why it’s good policy to allow Apple to tie the iPod to iTunes. I understand the argument when you’re selling cheap printers and expensive ink cartridges. That allows manufacturers to capture more of the value of the printer (by charging heavy users more) to cover development costs while simultaneously making the printer more affordable for light users, who otherwise might not be able to afford one at all.

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Yahoo reports on music sales for the first half of 2006:

Physical album sales continued to decline in the U.S. during the first six months of 2006, down 4.2 percent in comparison to the same period last year.

However, Nielsen SoundScan figures indicate that digital sales might boost the business as a whole. Sales of digital albums soared 126 percent during the first half of the year, while digital tracks rose 77 percent.

Looking at the entire sales picture–comprising physical albums, digital albums and digital tracks–overall sales to date this year have gained about one-tenth of a percentage point over the first six months of ’05.

A total of 270.6 million physical albums were sold domestically through the end of June, representing a drop of 12 million units from last year’s six-month total of 282.6 million.

Digital albums improved by 8.2 million units, with 14.7 million units sold since January versus just 6.4 million units in the first half of 2005. Digital tracks gained by 122 million units; 281 million tracks were sold in the first six months of the year versus 158 million in the same period last year.

If we assume, as Ars did in January, that an album is equivalent to 12 stand-alone tracks, we can calculate the rough market share of downloads as a proportion of all music sales in the US. For 2004, downloads comprised 2.3 percent of the market, while for 2005, it was 7.3 percent. This year, it appears there were 270.6 million physical albums sold, 8.2 million digital albums, and the equivalent of 23.4 million albums worth of individual tracks. Adding that up, there were 31.6 million online sales out of a total of 302.2 million sales, or 10.5 percent for the first half of 2006.

It looks like sales growth isn’t quite keeping pace with last year’s growth rate, but it’s still a safe bet that downloads will be the dominant revenue source for the music industry by the end of the decade. It’s also worth noting that download revenues are probably much higher margin than physical CD sales, so even if industry revenues remain flat, industry profits are likely to rise significantly as more and more users shift to online downloading.

Here’s another interesting wrinkle in the CleanFlicks decision:

CleanFlicks first obtains an original copy of the movie from its customer or by its own purchase from an authorized retailer. It then makes a digital copy of the entire movie onto the hard drive of a computer, overcoming such technology as a digital content scrambling protection system in the acquired DVD, that is designed to prevent copying. After using software to make the edits, the company downloads from the computer an edited master copy which is then used to create a new recordable DVD-R to be sold to the public, directly or indirectly through a retailer. Thus, the content of the authorized DVD has been changed and the encryption removed. The DVD-R bears the CleanFlicks trademark. CleanFlicks makes direct sales and rentals to consumers online through its web-site requiring the purchaser to buy both the authorized and edited copies. CleanFlicks purchases an authorized copy of each edited copy it rents. CleanFlicks stops selling to any retailer that makes unauthorized copies of an edited movie.

This is an unambiguous violation of the DMCA’s anti-circumvention rules. Yet interestingly, the judge didn’t even mention the issue. I have to assume that means Hollywood didn’t make a DMCA argument in its lawsuit. I wonder why not? Perhaps they were confident they’d win on the other grounds, and didn’t want to inflame social conservatives against the DMCA?

Joe Gratz has tracked down a copy of the Clean Flicks decision. And he has some excellent analysis of the case here:

While the First Sale Doctrine protects resellers from copyright liability, CleanFlicks is doing more than reselling. They’re making unauthorized copies. Maybe otherwise-infringing copies should be legal if one authorized copy is warehoused or destroyed for each unauthorized copy made, but that’s not the current state of the law. (If it were, there would be pretty nasty proof problems involved in keeping copiers from playing with their numbers.)

Judge Matsch also marched through the fair use factors, properly recognizing that they represent only a part of the Fair Use Doctrine. His transformativity analysis was rather unsatisfying; it seems that, in Judge Matsch’s view, only additions of content, not deletions, can be transformative. I agree that these particular deletions were not transformative, but the opinion’s language is overly broad.

The EFF filed an amicus brief seeking to rebut the studios’ argument that “the intermediate hard drive copies allegedly [used] to create [CleanFlicks’] final products violate a copyright holder’s exclusive right of reproduction[.]” The brief was successful; the court focused on the DVD-R copies CleanFlicks made, ignoring the intermediate copying in its infringement analysis.

Finally, I meant to mention the Family Home Movie Act, which explicitly legalized devices like ClearPlay, which edit out objectionable content from DVDs on the fly. It seems to me that ClearPlay would have been on much firmer ground than Clean Flicks even without this explicit exemption (since ClearPlay never makes any unauthorized copies) but in any event, parents wanting to shield their children from naughty words and images still have ClearPlay as an option. The FHMA did not mention DVD editing services like CleanFlicks.

Matt Yglesias notes last week’s ruling that services like Clean Flicks, which buy Hollywood movies, take out the naughty parts, and resell them to parents, are infringing copyright. On a policy level, I agree with his general take:

Overwhelmingly, the impact of a service like CleanFlix is to make versions of works available to people who otherwise wouldn’t be consuming them at all. Even in a CleanFlix world, authors of “unclean” content will still enjoy extremely close to 100 percent of the pre-CleanFlix market. There’s no reason at all to think that the existence of this sort of service will seriously reduce future production of new things.

Artists and so forth who think their interests are being served by pushing a strong-IP doctrine on this front are essentially dupes. The people who control the existing distribution channels for film have a very serious interest in using the new-style super-strong IP rules to insulate themselves from the winds of technological change. So, in essence, they’re pushing forward on all fronts, stomping on various totally non-harmful cases of putative infringement and attempting to radically curtail people’s ability to do what they want to do with content they’ve purchased.

The defendants’ activities clearly had little or no negative financial impact on copyright holders. Arguably, in fact, services like Clean Flicks increase sales by widening the set of movies socially conservative parents are willing to purchase.

However, on the legal merits, this is hardly an easy case. I haven’t been able to find the actual decision so consider this wild speculation on my part, but it seems to me that a literal-minded interpretation of the four fair use factors very well might find this is not a fair use–the “effect of the use upon the potential market” is the only factor that clearly weighs in favor of a finding of fair use.

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I find this eBay versus Google battle over payment services quite interesting. In case you missed it, eBay stuck it to Google this week by notifying the world that it would not allow Google’s new “Google Checkout” payment service to be used to clear transactions on eBay. A lot of people are up in arms about this claiming that eBay has excessive market power and that antitrust actions need to be considered (or at least threatened).

But I think there’s a different way of looking at this scuffle.

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Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. Open source advocate Bruce Parens makes my job easy this week by explaining what’s so troubling about last week’s patent infringement lawsuit against Red Hat:

The suit against Red Hat’s concerns the use of software “objects” to encapsulate a database record and make it easier to access, a technology called Object Relational Mapping or The ActiveRecord Pattern. That technology is used in the Hibernate software developed by jBoss, which Red Hat recently purchased. FireStar Software claims that it invented the technology, and that it is covered by its U.S. patent number 6,101,502. However, over the past two decades there has been much prior art for object-oriented databases, including TopLink, an object relational system developed in the early 90’s and now owned by Oracle, so it may be that the filers of FireStar’s patent made no invention.

There’s also the question of obviousness, whether the principles claimed in the patent would be obvious to a normally-skilled practitioner of the software art and thus not be an invention at all. The function of an object is to encapsulate data, and object-oriented programming has been known since the Simula language introduced it in 1967. The U.S. Supreme Court is currently reviewing another patent lawsuit in which the defense claims that there should be a much higher standard below which purported inventions would be considered obvious and thus not patentable. A higher standard of obviousness could help, but the real solution is to go back to the original intent of the Patent Office and stop granting patents on software.

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One of the books I read last week was my co-blogger Jim Harper’s new book, Identity Crisis: How Identification Is Overused and Misunderstood. It’s excellent and if you have any interest in privacy policy you should read it.

Harper’s book does three things. In parts 1 and 2 he presents a theory of identification that classifies identification into four categories (something you are, something you are assigned, something you know, and something you have) and then identifies the relationships among identification, risk, and accountability. He particularly makes the point that the need for identification is intimately connected with the type of transaction being considered: the ID you need to check out a library book is much different than the ID you need to get a mortgage or access to a nuclear reactor. He also stresses the diversity of identification: we use many different forms of identification in our daily lives (library cards, credit cards, passwords, drivers licenses) and that’s a feature, not a bug.

In part 3 he digs into the details of identification cards: how they’re created, how they’re used, and how they can be misused. Finally parts 4 and 5 lays out his vision for an enlightened identification policy of the future: one that protects civil liberties by expanding the diversity of identifiers we use in our day-to-day life.

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It’s not schizophrenia. It’s principle. RFID is cool for tracking stuff, and it’s uncool for tracking people.

Do consumers have power to control RFID? Yes. Will RFID be everywhere? No. Yet more evidence comes from a couple of articles in a recent Information Week.

In one story, InfoWeek reports “Most retailers can’t find a business case for item-level tagging.” Meaning, they’re not going to do it – not in the near term anyway.

What about the pharmaceutical sector, where RFID is being pushed by government regulators?: “Just two years ago, adoption of radio-frequency identification technology by the pharmaceutical industry looked like it was on a fast track. . . . [P]harma’s use of RFID today remains limited to a handful of test projects.”

The upshot? RFID will be adopted where it’s useful, and not adopted where it’s not. Economics, not technology, will determine how it’s used. And economic forces will channel RFID to uses consistent with consumers’ interests.

NSA Spying: AT&T Only?

by on July 5, 2006

USA Today is backing off its previous claims that BellSouth and Verizon shared customer calling records with the NSA, but is sticking by its contentions that AT&T did so. The paper now says that it can’t definitively confirm that BellSouth or Verizon participated in the program, although it says four Congressional sources say that “Verizon’s subsidiary MCI did turn over records to the NSA.”

Of course, the fact that USA Today can’t prove that records were turned over by Verizon or BellSouth doesn’t mean it didn’t happen. Which is why programs like this ought not to be conducted in secret. Voters and customers deserve to know if they’re being spied on. There might be legitimate reasons for such spying, but if so the president should be willing to publicly ask Congress for authorization for the program, so there can be a public debate about its costs and benefits. (and no, such a debate wouldn’t compromise national security: terrorists already know their phones might be tapped, and are presumably already taking measures to avoid detection)

Luckily, EFF’s lawsuit was filed against the company that everyone seems to agree has been cooperating with the NSA’s spying program.