September 2006

Contracts, DRM Style

by on September 21, 2006 · 28 comments

I think the hysterical tone of this article about the new restrictions in the latest version of the Windows Media Player DRM is unnecessary, but it makes some good points:

One of the problems with WiMP11 is licensing and backing it up. If you buy media with DRM infections, you can’t move the files from PC to PC, or at least you can’t and have them play on the new box. If you want the grand privilege of moving that content, you need to get the approval of the content mafia, sign your life away, and use the tools they give you. If you want to do it in other ways, you are either a lawbreaker or following the advice of J Allard. Wait, same thing.

So, in WiMP10, you just backed up your licenses, and stored them in a safe place. Buying DRM infections gets you a bunch of bits and a promise not to sue, but really nothing more. The content mafia will do anything in its power, from buying government to rootkitting you in order to protect those bits, and backing them up leaves a minor loophole while affording the user a whole lot of protection.

Guess which one wins, minor loophole or major consumer rights? Yes, WiMP11 will no longer allow you the privilege of backing up your licenses, they are tied to a single device, and if you lose it, you are really SOL.

We hear a lot about how DRM is a contract. But what kind of contract allows one party to unilaterally and retroactively change its terms?

Moreover, this is really a pretty severe restriction on the use of digital files. Backups are a fundamental part of good computer use. I back up my data at least once a month. I use my laptop pretty heavily, and a little bit abusively, and I rely on the fact that if my hard drive dies (or is lost or stolen) I’ll be able to get my data from backups.

In some cases, if you ask really nicely, the store that sold you the files will permit you to access the files again. But it’s clear that they do this out of the goodness of their hearts: “Some stores do not permit you to restore media usage rights at all.”

Is it any wonder that Windows Media-based music stores are going down in flames?

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Randy May On Neutering the First Amendment

by on September 21, 2006

Supporters of neutrality regulation often claim the mantle of defenders of free speech. Even the pending Senate telecom bill–which largely avoids comprehensive neutrality rules–includes a section on “Application of the First Amendment,” stating that no ISP may limit content based on “religious views, political views, or any other views expressed in such content.”

The problem, however, is that the First Amendment covers governmental, not private restrictions on speech. Moreover, as Randy May of Maryland’s Free State Foundation argues this week in Broadcasting and Cable magazine, such limits may violate–rather than further–First Amendment principles. As he points out:

Under traditional First Amendment jurisprudence, it is as much a free-speech infringement to compel an entity to convey messages it does not wish to convey as it is to prevent it from conveying messages it wishes to convey.

Going farther, he says that:

….When you think about it, laws imposing “neutrality” are eerily reminiscent of the defunct Fairness Doctrine that required broadcasters to present a balanced view of controversial issues.

The last point is particularly interesting. Given that a fair number of neutrality regulation proponents have also argued for the Fairness Doctrine, one wonders if they would disagree with the comparison.

A fuller version of May’s argument was published by the Free State Foundation here. Worth reading.

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Media Deconsolidation, Part 14: Time Warner Without Time?

by on September 21, 2006

In parts 8 and 12 of this series, I’ve discussed Time Warner’s ongoing problems in what was suppose to be mass media paradise. The mega-merger that critics decried as “Big Brother,” “the end of the independent press,” and a harbinger of a “new totalitarianism” has turned out to be anything but. $100 billion in lost market cap by 2003 alone, AOL bleeding subscribers, and talk of spinning off the cable division have all led Time Warner President Jeff Bewkes to declare the death of “synergy.” More poignantly, he went so far as to call synergy “bullshit”!

And now the oldest members of this marriage – – Time and Warner – – may actually be considering a divorce too. Just last week Time announced that it was putting 18 of its 50 magazines up for sale. And, according to David Carr of the New York Times, the fire sale may not be over:

“[C]urrent realities and pressure from shareholders suggest that Time Inc. will either become a smaller, more profitable division of a public company or it will be in play. A very large boat will have to be turned around very quickly with little additional investment. There will be no big magazine start-ups, no significant acquisitions, only the grinding, dangerous task of taking some of the most storied brands in publishing and making them relevant at a time of rapidly changing consumer and advertising dynamics.”

It’s just another sign of how dynamic the media marketplace really is. See my last book for more details.

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Republicans for Fair Elections

by on September 21, 2006 · 0 comments

Techdirt is reporting that Maryland Governor Erlich has come out against the use of electronic voting machines in this year’s elections. I agree with Mike:

The rationale for keeping the machines also leaves us scratching our heads: “We paid millions. These are state-of-the-art machines.” Two responses: The evidence is pretty clear that these are not state of the art machines. They’re badly made, with ridiculously weak security, and a company behind them that bullies its critics, blatantly misleads in its responses to security problems and cracks jokes about their weak security when confronted. Therefore, it really doesn’t matter how many millions you spent on them, the machines are a problem. The Senate President also accused Ehrlich of simply using this issue as a political ploy to rally his supporters. By the way, for those of you who want to believe e-voting is simply a big Republican conspiracy (based on some offhand remarks by Diebold’s former chief), we should note that Ehrlich (who wants to scrap the machine) is a Republican, and the folks who want to keep the machines are Democrats. So, once again, we’ll note that this is not a partisan issue. It’s an issue about having secure, fair and accurate voting.

Quite so. Computers are very useful for a wide variety of tasks, but merely putting a computer in something does not make it “state of the art.” These are defective voting machines, they put the integrity of the election at risk, and so they shouldn’t be used no matter how many bells and whistles they might have. Hopefully Erlich’s announcement will be the start of a trend.

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Internet Data Storage Is The Wrong Way To Combat Child Sexual Exploitation

by on September 20, 2006

Kudos to Attorney General Alberto R. Gonzales for cracking down on child sexual exploitation, but it’s troubling he’s still considering whether to ask Congress for legislation to require communications companies to store things like search queries and which web sites their customers visit. Proposals like this endanger the civil liberties of the innocent and risk creating a police state. They are a dangerous substitute for adequately-funded law enforcement and prisons, and for a higher priority on children’s safety than on second- and third-chances for dangerous criminals.

Jim discussed some of the problems with government-mandated data retention here and Adam added his thoughts here. I would add that when Congress held hearings on protecting children from sexual predators in 2005, it emerged that protecting children didn’t used to be a very high priority for some public officials. Consider these findings:

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My Kind of Moderates

by on September 20, 2006

The Washington Post reports that the president’s “national security agenda”–that is, its campaign to undermine the Fourth Amendment (and the Geneva Convention)–is faltering:

Frist surprised senators yesterday on the warrantless wiretapping issue, sending surveillance legislation already approved by the Senate Judiciary Committee to the intelligence committee for further review. With one week left to consider the bill on the Senate floor, Sen. Olympia J. Snowe (R-Maine), an intelligence committee member, said passage before the election would be “extremely ambitious.”

The intelligence committee is considered hostile to legislation worked out between Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and the White House. That bill would allow but not order the administration to submit its warrantless surveillance program to a secret national security court for constitutional review. The program involves monitoring overseas phone calls and e-mails of some Americans when one party is suspected of links to terrorism.

Three Republicans on the intelligence committee–Snowe, Sen. Mike DeWine (Ohio) and Sen. Chuck Hagel (Neb.)–have co-authored competing legislation that would give Congress considerably more oversight of the program.

It’s good to see Republicans standing up to the president in defense of civil liberties. I wish I could have said the same for a certain “moderate” senator from Pennsylvania.

Hat tip: EFF

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My Filing in Latest FCC Indecency Proceeding

by on September 20, 2006

For those of you following the potentially historic legal battle currently unfolding in the courts dealing with broadcast indecency regulation, you might be interested in the comments I filed at the FCC today.

Just by way of brief background, on September 7, the U.S. Court of Appeals for the Second Circuit issued a brief stay of the Commission’s latest round of indecency fines and remanded them back to the agency. (The case is Fox Television Stations v. FCC, 2nd Cir., No. 06-1760). The FCC had requested the stay to allow the broadcast networks (and others) more time to provide input on the agency’s fines. (In essence, the FCC wanted to make sure that the networks couldn’t claim that they didn’t have plenty of time to provide input to the agency.)

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How Much For Those Tubes? Stevens Telecom Bill Priced at $5.2 Billion

by on September 20, 2006 · 2 comments

More bad news for Sen. Steven’s struggling telecom bill this week, as the Congressional Budget Office toted up the price tag for the 200+ page measure: $5.2 billion over the next ten years. That’s worth saying again. $5.2 billion. That’s billion. With a “b”.

Most of the cost comes from extending communications subsidies to broadband. CBO pegs the cost of the proposed new “Broadband Service Fund” at nearly $4.5 billion. Other provisions–such as permanently exempting the Universal Service Fund from the Anti-deficiency Act (allowing grants to exceed fund revenue)–expansion of rural health care spending, among others–make up the rest of the new spending. (Among the others are, presumably, the provision expanding subsidies to “States that are comprised entirely of islands”. See this post.)

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No Label?

by on September 20, 2006

Matt Yglesias makes a good point about the Birdmonster story:

I have to think it would be odd to see tons of folks want to follow down this particular path over the long haul. Just because technological changes may make it easier to do publicity, marketing, distribution, etc. on a DIY basis doesn’t necessarily make doing things that way appealing or advisable. After all, there’s no particular reason to think people ready and able to produce music people want to hear are going to have enormous aptitude or inclination to do this other stuff once they’re in a position to get someone else to do it for them in exchange for money. That could be the case even if, in some sense, the numbers “don’t add up.” The simple added convenience of outsourcing functions outside one’s core areas of interest/competency has value. More likely, you’ll just see the nature of services that bands get in exchange for a chunk of their earnings will shift as the structure of the music industry shifts with it.

I think this is obviously right. Division of labor is a good thing. The guy who’s good at playing the guitar is probably not the same guy who’s good at writing press releases, booking shows, or handling media inquiries. Labels have traditionally handled those functions, and clearly there will be continued demand for people to do that.

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Diebold’s Non-Denial Denial

by on September 20, 2006 · 0 comments

Ed Felten has responded to Diebold’s criticism of his paper. Felten emphasizes that the most interesting thing about Diebold’s response is what they don’t say. They cite a lot of supposed security measures–tamper-evident seals, encryption, digital signatures, etc–but at no point in the response does Diebold specifically claim that any of those measures actually would have prevented the attacks Felten describes in his paper. Diebold waves their arms a lot in the hope you won’t notice this. But the bottom line is that Diebold has given us no reason to believe that the vulnerabilities documented in the paper have been corrected.

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