Never forget.

Is it any wonder that Vista took 8 years–and that there’s no firm market date for incremental update Windows 7–when even minor changes require updating thousands of pages of technical documentation for a team of state antitrust regulators?

For the depressing details, read today’s “Joint Status Report” filed by 17 states, the District of Columbia, the DOJ, and Microsoft.

The government’s continued meddling with Windows, some 9 years after it was branded an “abusive monopoly” and following the Vista’s fizzling, boggles the mind. In a way, the company’s efforts to sic the antitrust attack dogs on rival Google really are a desparate attempt to level the playing field.

Yesterday, the Senate unanimously approved legislation to delay the transition to digital TV to June 13. The House is expected to follow suit as soon as this afternoon.

Under current law, television stations would cease broadcasting analog signals on February 18, potentially inconveniencing dozens of Americans who rely on over-the-air signals and have yet to purchase a subsidized converter box. “They’ve had several years to do so, but who could blame them for getting distracted?,” asks Joel Johnson. “Television has been pretty awesome over the last few years.”

Members of Congress, fearful of a flood of telephone calls following the switchover, are taking the matter seriously. “I warn those who would stand in the way, who dismiss my sense of urgency, that should they force us to keep to our current course, it is the American public who will bear the brunt of their opposition,” said Sen. John Rockefeller, sponsor of the legislation. “We owe our citizens so much more than this.”

Rockefeller is adament that Congress will not allow any further delay past June 13.

But, say observers, even that date is not carved in stone. In the weeks leading up to the switchover, Newsweek and the Consumers Union are expected to track down and interview “at-risk consumers” unprepared for the transition, which may spark further congressional action. Without still more months of heavy public-service advertising on the transition, they are expected to argue, “rural, low-income and elderly citizens across the country could be left with blank television screens.”

Only last week, President Barack Obama issued a new government-wide policy on FOIA requests mandating a “presumption in favor of disclosure” and directed his OMB to get to work fast on an “Open Government Directive,” with specific mandates for agencies, that achieves “an unprecedented level of openness in Government.” That task is a tall order for the 120-day deadline Obama set.

So no doubt this week’s day-long conference presented by the Collaboration on Government Secrecy and American University’s Washington School of Law will attract some attention from those within the Administration charged with getting the new policy out the door. Indeed, the conference’s aim seems particularly pragmatic–organizers intend to end the day with “an on?site consensus prioritization of policy changes, to be formally delivered to the Obama Administration.”

For a clue of what to expect in that “prioritization,” look to the agenda. Participants include representatives from OMB Watch, the National Security Archive, the Center for Democracy and Technology, the Constitution Project, and the ACLU. (It is a bit disappointing that no one from Mercatus–e.g., co-blogger and transparency guru Jerry Brito–or Cato or the like is on the agenda, as there’s a lot of consensus on these issues across partisan and ideological lines.) Also participating are many journalist-types and several current and former officials (though only one that I can tell with much experience in a transparency-averse agency).

So expect a tight focus on national-security matters and executive branch records–i.e., the bugaboos of the Bush era–with perhaps less attention paid to openness in the regulatory policymaking process. Then again, Obama’s choice of Cass Sunstein as regulatory czar may drive the discussion in that direction, given his strong work on the value of openness and dissent.

For those in town interested in attending the event, registration still appears to be open.

Forget net neutrality and the growing Googleplex. The real threat to Internet freedom comes from plain old criminal law.

In three weeks time, Missouri housewife Lori Drew will face trial for entering false personal details when she signed up for a MySpace account. Her indictment alone, whether or not she is convicted, should frighten anyone who’s ever filled out a form online.

The case, which captured the tabloid media when it broke last year, turns on unusual facts. Drew, posting as a teenage boy, created the MySpace account to probe why a neighbor’s daughter, Megan Meier, had broken off a friendship with her own daughter. She gave a few others access to the account, and things quickly spiraled out of control. Before long, “Josh Evans” (the fictional teen) and Meier were an online couple, and soon after that, they were hurling insults at one another on public message boards.

Meier, already suffering from depression, was devastated by Josh’s turnabout. A final private message from the Evans account–“The world would be a better place without you”–pushed her over the edge. Twenty minutes after receiving it, Meier hung herself in her closet.

Even though she was not responsible for the worst of the messages (according to a prosecutor who investigated the case but declined to file charged), Lori Drew mislead an emotionally troubled youth, and that was surely wrong.

But it’s more problematic to say that it’s a crime.

The theory of the prosecutor behind this case would make all Internet users criminals. It goes like this: Drew lied when she created the “Josh Evans” account. That was a violation of MySpace’s terms of service (those slabs of legalese that nobody reads before checking the box on a sign-up form). And by violating those terms, she accessed MySpace without authorization. “Unauthorized access” is a felony under a federal statute, the Computer Fraud and Abuse Act of 1986. The statute was meant to target hacking, but its loose language leaves the door open for a much broader reading.

(And as I discuss in a National Review Online column today, that’s the same law that could be used to prosecute the person who hacked into Gov. Sarah Palin’s email account.)

To put it succinctly: Violate any website’s terms of service, and you could face five years’ jailtime. Include a conspiracy charge (Drew faces several), and the maximum sentence doubles.

As the Electronic Frontier Foundation spells out in a brief in the case, that formula spells an end to online anonymity. Using a fake name or making up any detail when creating an email account or anything else could be grounds for prosecution.

Even innocent exaggeration could be targeted. Adding an inch or two to your height is a violation of the terms of service on Match.com and most dating sites.

But that’s not the scariest part. This threat isn’t just about one law, twisted into absurd form by an aggressive prosecutor, but thousands of them. After decades of fast growth, there are at least 4,450 separate criminal offenses in federal laws, and perhaps tens of thousands more in regulations. And then there’s state law: Each state, to begin with, has its own copy of the federal anti-hacking statute Lori Drew is accussed of violating.

I discuss this issue, in the context of the Drew case, at some length in a recent paper. The problem, in brief, is this: Public pressure has led legislators to criminalize so much behavior in vague and broad statutes that probably all Americans are criminals under some dumb law. When there’s a tragedy–like the death of Megan Meier–prosecutions will follow, whether or not anyone had reason to believe that what went on was actually against the law.

Fixing this one statute won’t solve the problem.

Right now, the only thing that safeguards our online freedoms–anonymity, free speech, the right to access speech, and so on–is prosecutorial discretion that could be revoked for any one of us at any time for any reason. This isn’t a hypothetical–it’s happening today.

From triumph to terror—that’s the likely emotional rollercoaster of the denizens of the “/b” message board on the 4chan website who hacked into Gov. Sarah Palin’s email account earlier this week. The toasts of the left-learning Internet on Tuesday, by this morning they knew themselves to be in the crosshairs of the FBI and Secret Service.

Next stop: jail. That’s the law, and it’s a fair punishment for digital breaking and entering.

According to British tech tabloid The Register, the hackers accessed Palin’s Yahoo account by way of a proxy, relaying all traffic through it to cloak their identities. The proxy’s owner promises to make his log data available to authorities, and it’s probably only a matter of time before that leads to living, breathing (nervous, sweating?) people.

The most likely charge is hacking. Federal law prohibits virtual trespassing for the purposes of stealing information. So cracking the password to a governor’s email account and perusing her messages is a clear violation. The punishment: criminal fines and imprisonment of up to 5 years.

Throw in a few conspiracy offenses—according to reports, a slew of “/b-tards” were in on the act—and the prison term could double.

No, going after a major party’s vice presidential candidate was not smart: Police and prosecutors put extra effort into famous crimes.

As for the media publishing Palin’s emails and family photos, shame on them, but it’s not against the law. In Bartnicki v. Vopper, the Supreme Court held that they have a First Amendment right to publish materials of public importance, even if illegally obtained, so long as the media doing the publishing committed no wrong itself.

But just because it’s legal doesn’t mean it’s right. No one deserves to have their private correspondence stolen (not, as per the AP, “leaked”) and posted online for the world to see. It speaks to Palin’s classiness that nothing objectionable—not even a cuss—has come to light. Too bad that the press and online gossip-mongers don’t share that trait and take the material down.

Tim’s thoughtful analysis of the slow adoption of the IPv6 protocol turned my mind to a long-standing topic of interest: the illusory value of elegance in technology. A corollary: In technology, as in life, revolutions are rightly rare and usually only visible in hindsight.

The IPv6 transition is a good example of the difference between policy and implementation. This transition raises all sorts of broad policy issues, given its potential costs and the potential for disruption. For certain kinds of network applications, carefully tuned to use existing Internet infrastructure, the transition will be difficult and costly. In some cases, things may just stop working. At the least, those who work on Internet applications and infrastructure will have to learn all the minute details of the new system and its implementation, a surprisingly deep pool of knowledge, while their IPv4 experience fades into irrelevance. These are no small things.

When naive engineers (and those who think like them) drive policy, their recommendations are often to scrap existing systems and start anew with something that’s more elegant that eliminates “cruft” and the like. It’s a fun engineering task to go back to first principles and start over with what we know now that we may not have known when creating earlier standards. It is a rewarding intellectual exercise.

But “muddling through,” as in other domains, is often the best choice in tech policy.

A few examples:

• Windows is nothing if not a prime example of muddling through. While many techies are drawn to more elegant systems (e.g., BeOS and Linux, which I would argue is only marginally more elegant than Windows as it is commonly used), most businesses and users just want something that works, something that causes the least disruption.
• The original MacOS far outlived any technical justification for its myriad shortcomings and yet was a key part of the successful transition to the more elegant OS X. The need to muddle through undoubtedly made the road to a new Mac OS (including the Copland detour) far lengthier and more complicated than it otherwise would have been. But the benefits were also great. The first release of Rhapsody, for example, was terrible; OS X 10.2 (“Jaguar”) marked the beginning of a period of excellence. Jaguar’s key difference from Rhapsody? Lots and lots of integrated legacy code and features.
• As Tim points out, the continued reign of the x86 processor family in the face of more elegant RISC designs outraged tech-heads for years. As so often happens, though, as technology evolved, x86 grew to embrace RISC designs, which now, in effect, lay at the heart of the platform. So the engineers were right, in a sense, that CISC was a dead-end over the long run, but scrapping its most popular implementation and starting over from a blank slate wasn’t the best solution either.
• Another wrinkle to the processor story: Intel and HP, you may recall, pumped billions of dollars into the ill-fated Itanium platform, designed to be an out-and-out replacement for x86, piggybacking on the “inevitable” transition to 64-bit computing. While the chips had an x86 compatibility mode, it was never on par with actual x86 chips. AMD, meanwhile, bolted simple 64-bit capabilities atop the existing x86 instruction set, changing things as little as possible. That design is now dominant, and Itanium (dubbed “Itanic” by the tech press) is at best a niche product for Intel.
• QWERTY. The debate over whether QWERTY is a benefit over Dvorak-style keyboard layouts still rages after decades of disagreement. The evidence is unclear as to which is faster, but Slashdot and other tech sites brim with Dvorak adherents certain of the superiority of their keyboards. Accepting their claims ad arguendum, Dvorak, while perhaps a better engineering solution, is a terrible human solution. Many of us can barely touch-type in QWERTY as it is; being forced to learn another system, even a marginally superior one, would be a disaster.
• HTTP: It is a stateless protocol and, for a variety of reasons, is particularly ill-suited to applications like streaming audio and video. And yet. It passes through firewalls unmolested and benefits from a huge variety of excellent implementations in more or less every development language and environment.
• The granddaddy of them all: The C programming language. No one should have to program in C. It’s worth repeating: No one should have to program in C. For your first several years programming in C, shooting yourself in the foot, repeatedly, is inevitable. Your programs will break; your code will become unmaintainable, requiring frequent refactoring; compiler upgrades will wreak havoc on more or less everything; you will expose serious security holes; and corner cases that you have not considered will rear their heads even long after your code has entered production. Higher-level languages are easier, faster to develop in, include trigger locks, and run fast enough on nearly all modern hardware. But still people program in C–why? There’s an enormous amount of highly-tuned, well-designed C code extant that has survived the test of time. C gets you close (enough) to the metal, for when you need to eke out every bit of performance possible. C works across basically every platform pretty consistently. And a lot of people know how to program in C. Starting over, no one would create this snake of a language, but as things evolved, we cannot, and should not, ditch it.

A few more examples that I will name but not discuss: The original Netscape codebase, GIFs, POP3, serial ports, VGA, FTP, quirky HTML, the DOC file format and its WMF cruft (though MS is trying real hard), MP3 encoding, etc. The list goes on and on. Readers should add any to the comments that occur to them.

Edmund Burke was understandably wary of the policies based on abstract ideas rather than experience. This differs only a bit, perhaps, from Lawrence Lessig’s “code is law.” What engineers see as cruft are often wisdom and the fruits of evolution, and these things are likely to be better suited to human needs than revolutionary approaches. Perhaps this accounts for much of the success of open-source software, which I and others have long argued is rarely innovative but more iterative. That is not, necessarily, a dismissal of it or any slight, but only a positivist description.

As much as it is disdained in the left-ish policy world and in technology circles, muddling through is frequently the best, most efficient approach. It is a modest approach, one devoted to solving real-world problems and standing on the shoulders of those who solved previous problems. It is not to be dismissed so blithely by those peddling revolutionary solutions.

People will believe anything a GPS tells them:

Bo Bai, a computer technician from Sunnyvale who said he was merely trusting his car’s global positioning system when he steered onto the tracks, was cited for obstructing a railroad crossing, officials said this afternoon. … “As the car is driving over the tracks, the GPS system tells him to turn right, and he turns right onto the railroad tracks,” said Brucker. “That’s how it happened.” Brucker added, “He tried to stop the train by waving his arms, which apparently was not totally effective in slowing the train.”

Among the GPS-gullible, I include myself. Especially in unknown territories, I’ll try whatever the GPS tells me, that blanket warning and disclaimer at its startup notwithstanding. This seems to be a field ripe for litigation.

Credulity also opens opportunities for hacks, and that’s just what’s under development in Italy, it seems:

Two Italian hackers have figured out how to send fake traffic information to navigation systems that use a data feature of FM radio for real-time traffic information. Using cheap, off-the-shelf hardware, they can broadcast traffic data that will be picked up by cars in about a one-mile radius, the hackers said during a presentation at the CanSecWest event here. “We can create queues, bad weather, full car parks, overcrowded service areas, accidents, roadwork and so on,” Andrea Barisani, chief security engineer at Inverse Path, a security company.

Perhaps a reason to be wary of bootlegged or discount map-data. Or wary of unlikely instructions from any electronic device.

Via Obscure Store, here is “The Office” segment where Michael trusts his GPS too much…

Reading the tea leaves of delay, Reuters reports (via Drudge) that the DOJ may be gearing up to derail the planned merger, announced 10 months ago, between the nation’s two satellite radio providers:

The delay may be due to the complexity of the issues raised by the merger of the only two U.S. satellite radio companies — or because the Department of Justice (DOJ) is putting together a case to block the deal in federal court, analysts at Stifel Nicolaus said in a research note on Thursday. Alternatively, top officials at DOJ may be leaning toward approval but might still be weighing arguments from staffers who oppose the deal, Stifel Nicolaus said.

Only in the mind of a regulator or a terrestrial radio broadcaster (i.e., competitor) could this proposed merger present issues of great complexity–the only issue on the table is the market definition, which may be contentious but is not overly complex, except perhaps to those who wish to make it so.

My suggestion: The FCC and DOJ should look at who’s opposing this merger in defining the market.

If this is a complex case, antitrust enforcement is, whatever its merits or lack thereof, just broken. It’s a wonder that any proposed merger gets through review, no matter the outcome.

For more on the merger, check out these thoughtful posts by TLF’s Adam Thierer:

1. XM + Sirius = Good Deal (for the Companies and Consumers)
2. More on XM-Sirius

A Bear Stearns report examines at the economics of the Wall Street Journal knocking down its paid-subscription wall:

WSJ.com revenue is currently pegged at $78 million annually, based on an estimated 989,000 subscribers paying $79/year. Including non-subscriber traffic, the company claims 122.4 million monthly page views. Based on an estimated CPM of $6 and a few other assumptions about sell-through rate and ad impressions per page, Wang arrives at the 12x conclusion.

Still, as Joseph Weisenthal notes, “$78 million in revenue only accounts for an estimated 4 percent of Dow Jones revenue, so from a strictly financial stance, it doesn’t much matter either way to News Corp.,” the Journal‘s new owner.

Where I work, we’re very wary of static economic analyses: why should a huge change (e.g., raising tax rates) have no impact on behavior (e.g., hours worked)? Yes, certainly, lowering the cost of getting Journal content to $0 will undoubtedly bring a surge in readership–maybe 12X, maybe more, maybe less. That’s not the interesting question.

The big question for media watchers should be, how will the Journal react?

A subscription to the paper today costs $100 per year (maybe; it’s hard to tell), and if the paper’s Weekend section is any indication, it’s subscriber base consists of Robb Report readers who also care about what’s up in commodities markets–that is, the gainfully employed among Robb Report readers.

The result is a general-interest newspaper with a niche sensibility. The stipple portraits and oddball Marketplace-section articles have a continuing charm. Articles on matters of finance assume a remarkable expertise of readers. Foreign coverage is delightfully eccentric, mustering on a daily basis the sort of empathic setpieces that the Christian Science Monitor has become known for in recent years. (That paper’s output, however, has become more erratic.) In today’s Personal Journal, “A Burden of Wealth: Family-Office Hunting” for those who “need help in managing their fortunes” sits just above “Higher Food Prices Start to Pinch Consumers.”

Will these charms bow to the pressures of a wider market? Witness that over at NYTimes.com (the online presence of what was once the Tiffany broadsheet), today’s top stories concern scheduling consultants for adolescent boys, the “invisible ingredient in every kitchen” (heat), and the psychology of decluttering. At the Journal, the top stories of the day discuss retirement savings, oil prices’ effect on international relations, and the Fed. Though often whimsical, it’s also a more serious paper when that is demanded.

One possibility is that the Journal will become a caricature of itself, narrowly focused on finance and snooty lifestyle to simplify its attraction. No doubt, this could further synergy with News Corp.’s other properties.

Another is that the Journal goes the way of the NY Times, loading up with self-help pieces and other bits of service journalism tailored to its demographics. Spreading beyond its New York roots has trivialized the contents of the Times , which is increasingly an upscale USA Today. Why not the Journal, too?

In any case, it’s hard to imagine that boosting circulation by a factor of 12 (or even far less) won’t have a major impact on what the paper prints.

As a subscriber to the print edition, I’m happy with the status quo–the website is convenient but with walls just high enough to keep the hoi polloi out.

This flattening of markets wasn’t quite the Internet’s promise a decade or more ago, when we all talked about niches and narrowcasting. That’s done well, certainly, but today the New York Times competes for the same readers with CNN, the BBC, Yahoo!, TMZ, and Matt Drudge. Is there still room on the Internet for something like Hotwired, halfway between niche and general interest? It seems a dying, if not already extinct, category.

(This is in response to a thoughtful post by Adam, who beat me to the punch, and to a controversial recent article (“Long Live Closed-Source Software!“) by the free-thinking Jaron Lanier that Adam discusses.)

No one needs to say “Long live open-source software,” because it is what it is and isn’t going anywhere. Think of it as the ground beneath our feet.

As Lanier explains, closed source is the font of nearly all paradigmatic innovation–the great revolutionary leaps. Open source contributes iterative innovation, such as the best kernel scheduler for variable workloads–this is a problem it is possible to work out slowly, with small changes over a period of years. It is also a problem that doesn’t matter at all to most users–good enough is good enough, though better is, of course, better.

Where the two forms of development come together most interestingly is the use of open source as a stepping stone for closed-source radical innovation. Asus, for example, didn’t have to step forward and create its own OS from the ground up for its EeePC. Even though the thing sports an interface unlike those in most Linux distributions, the underlying guts are the same. Would something like the EeePC even be possible without open source? Could a manufacturer afford to undertake the great expense, and gamble, of working out an OS for itself? Free software lets businesses take chances on projects that would otherwise be too expensive to devise and products that would otherwise be too expensive to market.

Apple’s OS X is another example, built on the same core (well, nearly) as the open-source FreeBSD OS. Running FreeBSD and OS X are completely different experiences, but again, the guts are the same. And if Apple (or NeXT before it) had had to develop the whole system itself, it probably never would have been built–at least, not in anything like the form we see it today. (Would some of us be running, god help us, Copland?)

My point, which I think jibes with Lanier’s, is that open source establishes a technological baseline that facilitates innovation in more interesting areas. Very few of those innovations, though, are actually done in open source, at least not until they’ve been created in the closed-source world first.

(Even web browsers are an example of this. Today’s Firefox would be instantly recognizable to, and usable by, someone familiar only with Netscape Navigator 3. Most of the changes have been iterative and under the hood. The biggest changes in the browser experience in recent years have been Flash and XMLHttpRequest, both borne of closed-source development, but it was the web’s open standards that made Flash and AJAX possible.)

For those of us who haven’t taken sides in what Adam astutely calls a “senseless techno-philosophical holy war” but instead recognize that both forms of development have their own advantages, it is important that each side have the flexibility to do what it does best. I wonder, then, what Lanier think of the “viral” GPL, which no doubt inhibits or slows some software revolutions that could be built atop software that is open source but covered by the GPL but are not because of the redistribution requirement. On the other hand, there is great value to iterative development from requiring that most changes to source code be distributed freely. Projects like FreeBSD (free source code, but no requirement that changes be shared), however, suggest that requiring changes to be made public may not always be necessary in iterative development.

In a dispassionate discussion (not debate), it might be a good resolution to conclude that sharing is a community norm and radical innovation an economic, market good–few business probably expect to make bundles off products that are only slightly better than everyone else’s. It’s an empirical question as to whether that would favor more flexible licenses, like the BSD and MIT licenses (which permit code to be used in closed-source development), but I think it’s likely.

Sadly, there is too often nothing but passion and absolutist rhetoric in the debates over (of all things!) source code licenses.

That’s why Lanier’s column is so welcome. With his background, credentials, and (yes) the dreadlocks, Lanier can command the attention of all but the most devout GPL adherents and perhaps goad them to think about their religion and reflexive hostility to close-source development. It’s not that open source doesn’t have its benefits–it does, and they’re big ones–but just the more modest point that it isn’t best for certain and important kinds of development. Why that is so controversial in some circles is beyond me.

Popular Mechanics speculates that Apple is on the verge of announcing a breakthrough laptop-tablet device that’ll change computing as we know it (hyperbole deliberate):

So any Apple tablet would have to be, first and foremost, a laptop—not an über-iPhone. … I’m also requesting that the MacBook Plus fall in the ultralight realm—a sorely neglected category for Apple. It could, and should, be 2.5 pounds or less. To achieve that, the tablet should offload heavy components such as the optical drive, making do with, say, a 32 GB solid-state drive rather than a hard-disk drive…. That would let it run a full Leopard OS while delivering long battery life—hopefully using a lightweightbattery. Plus, it could probably be passively cooled, meaning no noisy, bulky fans or hot spots on the lap.

Two thoughts on why an Apple tablet would be a big deal:

First, in Apple tradition, none of these are new technologies. Apple’s core strength is not developing or touting technology but developing experience–in other words, what does technology let me do, not how many MB/sec or how many separate objects can be tracked on a touch surface. The difference between Apple’s approach and everyone else’s was never clearer than when Bill Gates introduced Microsoft’s “expensive table,” which uses multi-touch technology similar to that of Apple’s iPhone. God (and Bill Gates, maybe) only knows what I’d ever want to do with a multi-touch table–Gates suggested that it might be good for comparing cell-phone models (?!). When Jobs launched the iPhone, it was all about use, not tech features.

Second, the tablet form-factor is intriguing and offers lots of advantages, but it’s never worked right with Windows Tablet Edition. Tablets are great in meetings (they demolish the wall created by laptop screens) and are a better shape for laps than laptops ever could be–think about using a tablet on the subway, in the car, or even at your desk. Windows Tablet Edition, despite some nice flourishes (OneNote isn’t bad), doesn’t take full advantage of the hardware across the OS, and too many of the hardware designs have been uninspiring–basically bulky laptops with flip-screens bolted on as an afterthought. The current tablets are a lot like Windows Mobile phones–a category that the iPhone seems to have surpassed in popularity despite Microsoft’s ten-year or so head start.

Bottom line: If anyone can make the tablet form factor work, it’s probably Apple, so I’m looking forward to this (if, that is, the rumors have even a grain of truth to them). For many folks I know, tablets have changed the way they work, but it’s still, at this point, a niche technology. There’s no good reason why that should continue to be the case.

So is this game-changing? It just might be, in the way that the iPhone has been. The iPhone raised the bar for what a phone should do, and no one doubts that any phone on the market next year and later will be inspired by it and cop a lot of its features. An iTablet could boost Apple’s fortunes somewhat, but even more significantly, it could raise the bar for tablet computing across the market. That would be a far bigger gain and could really change that way that we interact with our computers in the years ahead.

Over the slow holiday season, the Internet has been alight with outrage over the Recording Industry of America’s argument in a file-sharing case that, per the Washington Post, “it is illegal for someone who has legally purchased a CD to transfer that music into his computer.”

But as copyright expert William Paltry explains, it simply ain’t so:

[T]he RIAA is being unfairly maligned. I have read the brief (and you can too here). On page 15 of the brief, we find the flashpoint: “Once Defendant converted Plaintiffs’ recordings into the compressed .mp3 format AND they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs.” I have capitalized the word “and” because it is here that the RIAA is making the point that placing the mp3 files into the share folder is what makes the copy unauthorized. The RIAA is not saying that the mere format copying of a CD to an mp3 file that resides only on one’s hard drive and is never shared is infringement. This is a huge distinction…

An interesting point from Joel Johnson:

That it seems possible that the RIAA would go after people for ripped CDs says a lot about the way most people—including the Washington Post, apparently—view the organization…

This is true, but is any other course imaginable? CD sales, and record company profits, seem to be in free-fall, and it’s beyond credulity at this point to argue that online file-sharing isn’t, at least to a significant extent, to blame. Why would an industry fade without a struggle?

As the recording industry grasps desperately for revenues, it is perhaps inevitable that it will increasingly clash with record buyers, musicians, and the public. So expect more alarmism, more yellow journalism, and greater vitriol from the “copyfighters” and their allies and expect (probably) for all this to be used as further leverage to push “open culture” policies, however tenuous their connection to the source of conflict, the collateral damage of an industry’s slow collapse–which itself is no new or unique thing.

In other words, expect a lot more of these kind of stories in 2008. John Tierney’s article yesterday on the sociology climate change is a better explanation than most as to why.

Each year, the Edge Foundation surveys a score (~160 this year) of prominent scientists and other notables for brief-essay answers to a big-picture question. This year: “What have you changed your mind about?”

Some elaboration:

When thinking changes your mind, that’s philosophy. When God changes your mind, that’s faith. When facts change your mind, that’s science. WHAT HAVE YOU CHANGED YOUR MIND ABOUT? WHY? Science is based on evidence. What happens when the data change? How have scientific findings or arguments changed your mind?”

With Richard Dawkins, Aubrey de Grey (less repetitive than usual), various Dysons, Denis Dutton, and Brian Eno among the respondents, there’s plenty of interest to read and consider.

And much to mock. On the existence of god as a signal of one’s above-it-all elitism, compare the trite Alan Alda (yes, him) with an unusually shrill Clay Shirky.

For a good laugh, read the always humorous Douglas Rushkoff’s entry. (He is joking, right?) Rushkoff says he had expected the Internet “would change people,” but, “Sadly, cyberspace has become just another place to do business.”

Sadly, Tyler Cowen did not contribute. Perhaps he’ll pen a riposte.

Esther Dyson’s deceptively simple post on online privacy stands out (among many that do). Way back when, she thought that individuals would consume privacy-enhancing services, but that never happened so she changed her mind: who cares, when consumers certainly don’t? But more recently, another change: “Users have never learned the power to say no to marketers who want their data…but they are getting into the habit of controlling it themselves because Facebook is teaching them that this is a natural thing to do.”

More:

In short, for many users the Web is becoming a mirror, with users in control, rather than a heavily surveilled stage. The question isn’t how to protect users’ privacy, but rather how to give them better tools to control their own data – not by selling privacy or by getting them to “sell” their data, but by feeding their natural fascination with themselves and allowing them to manage their own presence. What once seemed like an onerous, weird task becomes akin to self-grooming online.

It’s an interesting thought. Privacy as property is unwieldy, and it’s never taken off as a consumption good, either. Privacy by form contract works, but only so far as it’s worth anyone’s time and effort to even think about it–usually, it’s not. But this is more interesting: think of online privacy as the other side of convenience/utility of revelation and focus on the latter, not privacy itself. Facebook, per Dyson, is a good example–I get to choose what disclosures will benefit me.

The point is that online privacy is becoming much more nuanced and, when the issue is framed in terms of practical benefits, informed consumers are choosing to disclose. This is the mostly hypothetical market that so many have been arguing would arise (or already existed) for so many years. This won’t snuff the burning-hot privacy debates, to be sure, but it should throw a bit of water on the fire, gradually, over time. After all, isn’t consumer control what every side says it wants?

Did you know that you have only 412 days left of analog-TV viewing pleasure?

Yes, it’s true (unless lawmakers change their minds in response to lobbying from, e.g., circa-1968-Zenith-owning grandmothers from the Heartland flown in by the NAB). In 412 days, your old analog set will pick up nothing but soothing, gentle static (let’s hear it for user-generated content).

For some, this may be a relief–it will be, after all, locally-produced static.

But for others, it will be terror. No 10 o’clock news! No “View”! No very special episodes!

Without some kind of help, it would be denial, anger, bargaining, depression, acceptance for the 45 million or so American homes without cable or satellite service who somehow miss word of the transition. No doubt 911 call-centers will be inundated.

But fear not: The government has a program. Visit the just-launched DTV2009 website to apply for a $40-voucher towards the purchase of a converter box. Get two, even! No eligibility requirements. There’s no need even to prove that you have some kind of analog device, lack cable, etc. Just fill out the form, sit back, and check your mail every once in a while.

With the voucher, expect to pay around $10 for a converter box–cheap!

To free speech, assembly, compensation for takings, and due process add a right to free terrestrial-broadcast TV. It’s probably somewhere in the 14th Amendment.

Herb Vest, CEO of the online dating service True.com, is still working hard to get the government to push background checks for those seeking love on the ‘net. The New York Times reports:

True, which conducts criminal background checks on its subscribers, is the primary force behind a two-year-old campaign to get state legislatures to require that social Web sites prominently disclose whether or not they perform such checks…. The company then tried to have laws passed in several states that would require other sites to conduct background checks or disclose that they do not…. True has had little political success so far, but is backing bills that legislators are considering in Florida, Texas and Michigan.

As the Times reports, Vest is no newcomer to lobbying government to gain an advantage over competitors.

As I noted two years ago, Vest’s preferred legislation would require matchmaking sites not conducting background checks “stamp this stark warning atop every e-mail and personal ad, in no less than 12-point type: ‘WARNING: WE HAVE NOT CONDUCTED A FELONY-CONVICTION SEARCH OR FBI SEARCH ON THIS INDIVIDUAL.'”

Is this really necessary? When I want to know for sure whether my online date is a felon, I just visit this site.

For a lawyer-in-training, watching the commenters on Slashdot, Digg, and similar techie forums debate fine points of law is a special treat–finally, a group that knows less about that law than I do. Faster than you can type “IANAL,” some dope has posted that the income tax is unconstitutional, that breaking into government computers cannot be lawfully prosecuted, or that one has a good case against Comcast when the cable installer came a day late.

Non-lawyers often treat the law as intuitive; does it seem like this is illegal or improper?, they ask. The answer, of course, frequently justifies their own behavior.

Thus I learned from Digg today that “Downloading Pirated Anything Is NOT Illegal.”

Here’s the argument:

I read every bit of information I could find, including case law. I studied the DMCA. Since then I have studied the NET Act. I have studied everything I could find. Guess what? I could not find a single line in any act that said that downloading anything was illegal, or even anything that could be construed to mean it…. I submit that there’s a legitimate reason there is no law covering the downloads. I believe it’s because you cannot know for certain that a file is pirated until it is in your possession. File names mean nothing. Fake music files planted on Kazaa prove it. Fake video files planted on torrent sites prove it. Even non-pirated files get named with titles that could be misconstrued as being pirated. I also believe that intent is insufficient to come to the conclusion that a person is attempting to download a pirated file.

The analysis concludes with this: “If you can cite a reference to an actual law that says anything to the effect that downloading a pirated file of any kind is illegal, you will be my blogging buddy for life.” (Doesn’t that sound a lot like tax protesters’ challenges?)

As a service to Diggers, here are a couple cites that may be of interest.

Probably the best place to look first is the law. 17 USC s. 106 states:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords;…(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;…

It seems pretty clear that subsection (3) probably covers file sharing uploaders. Similarly, (1) may cover downloaders.

Let’s see what the copyright office has to say:

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.

Of course, that’s not law, but the Copyright Office folks have probably thought this through a bit. Then again, some will probably accuse them of being in the RIAA’s pocket.

Let’s look to case law. The Ninth Circuit’s Napster decision (239 F.3d 1004, 1013-14) contains this paragraph:

The district court further determined that plaintiffs’ exclusive rights under § 106 were violated: “here the evidence establishes that a majority of Napster users use the service to download and upload copyrighted music…. And by doing that, it constitutes-the uses constitute direct infringement of plaintiffs’ musical compositions, recordings.” The district court also noted that “it is pretty much acknowledged … by Napster that this is infringement.” We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holders’ exclusive rights: the rights of reproduction, § 106(1); and distribution, § 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights. Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.

The Supreme Court essentially adopted this application of the law in its Grokster decision (545 U.S. 913, 936-39). The Court looked to the defendants’ own advertisements that users could download copyrighted files “to prove by a defendant’s own statements that his unlawful purpose disqualifies him from claiming protection.” (id. at 938). In other words, defendants’ promotion of an unlawful activity (downloading) was proof of their unlawful purpose.

A shrewd attorney could argue that this aspect of the opinion is dicta–that is, inessential to the outcome of the case–because file distribution by uploaders (which is certainly infringement) was also present. Good luck!

And just to be clear, IANAL–yet.

As more and more of our consumption comes in the form of bits, how to keep all that data safe becomes a big problem. Obviously, data security is a big issue. But the bigger one, I think, is keeping good backups.

It used to be that only geeks and businesses could keep good backups. To copy everything, you had to buy a second hard drive or a stack of CDs or DVDs (or floppies or cartridges) and spend too much time setting things up and flipping disks. The really hardcore bought tape drives, and those with deep pockets signed up for network-based solutions like Retrospect.

But all at once, the market for the rest of us is heating up. The home user now has some excellent options.

A good backup system needs a few attributes. First, it has to be easy. If it’s complicated, things can go wrong, and you don’t want things going wrong with your backups. Second, it has to be automatic. Counting on the user to run a backup manually doesn’t work. Third, it can’t be a burden. Running a backup shouldn’t require the user to do anything and shouldn’t slow the computer to a crawl.

If possible, the backup system should also be redundant (in case lighting strikes and everything gets hosed), off-site (for fires and floods), versioned (so that screwing up a file on your computer doesn’t screw up the only copy in the backup too), and make your data available to you wherever you are, when you want it.

And it should be cheap, of course.

The easiest solution is just an external drive. They’re cheaper than ever before and usually come with decent backup software. While there are no doubt better ones on the market, this 400 GB external drive is serviceable and can be had for a mere $150 if you shop around. If you’re on a Mac, spend another $30 on Super Duper, which is very reliable and can make a full backup of your main disk(s) on schedule. Apple’s forthcoming “Time Machine” software also will use an external drive.

But what if you have more than one computer or don’t want to have to plug your laptop into a hard drive every day? Network-attached storage may be the solution. Expect to spend $100 to $150 more than for a comparable external drive. Some wireless routers–like the newest ones from Apple–now include a USB port for this purpose, letting you supply your own hard drive.

The big movement lately, though, has been in online storage. It’s easy to see why. When your data is housed on the ‘net, it’s far away from any disaster that might claim your computer, it’s usually backed up with redundant copies, your files can be accessed from everywhere, and you can backup from anywhere with ‘net access. If you have broadband or easy access to broadband, this is the way to go.

I have about 100 GB of data that I wanted to backup and so tried a couple online options.

For years, I’ve backed up data on a hosted server that I own. This is a bad deal. You don’t want to administer a server yourself (it’s hard and time consuming), and the costs add up. It made sense a few years ago, when web hosting services were less sophisticated, but not today.

My first stop this time was Amazon’s S3, which is the same storage platform that Amazon uses to house its sites. It’s super-reliable and, according to Amazon, scalable so that it will never slow down. There’s the added bonus that, perhaps unlike other dotcoms, Amazon will be here in 5 years.

End-users can’t access S3 directly–nor would you want to. You need a program to do it, and I chose JungleDisk, which is a $20 client (for now, though, it’s free) for S3. Amazon charges 15 cents per GB of storage per month and 20 cents per GB of transfer. JungleDisk can do automatic backups, and encrypts all data.

JungleDisk+S3 isn’t perfect: it’s expensive if you have a lot of data; JungleDisk itself can be a bit slow and sometimes buggy; it’s hard to configure; and it can overwhelm a computer if you try to backup a lot of files. Still, give it a bit of time to mature, and this could be a good option for storing especially confidential and important data–but probably not your mp3s.

The next one I tried is Mozy, which is at the top of the pack of (and comparable to) a large number of hosted backup startups . It costs about $5 per month for unlimited backups and is free for 2 GB or less. (I was concerned, with all the data that I have, that “unlimited” might not really mean unlimited–I’ve read that there may be a 50 GB limit but can’t find any solid documentation on it.)

Advantages: Mozy is inexpensive, encrypts data, versions files, performs automatic backups, and is pretty easy to setup. The most interesting part of the service is that the company will ship you a DVD of your data if you need to restore it faster than is possible over the ‘net.

Disadvantages: at least initially, it’s slow; it’s hard or impossible to share data with others; it may not work on multiple computers; and the Mac version (now in beta) is buggy, as is the Windows version, to a lesser extent.

Bottom line: Mozy is pretty neat and is more than sufficient for most users. But if you have a lot of data, or want to share some of it with others, Mozy is probably not for you.

My last choice, and the one that I settled on, isn’t marketed as a backup service but as a web hosting provider. For $10 per month, Dreamhost will give you 170 GB of online storage. It takes snapshots of its fileservers regularly, providing redundancy, and, because it’s a full hosting environment, can be made to do more or less whatever you want. The downside is that it will be difficult to setup an automatic backup system, though this page provides some hints. But once you have it going, it should just work.

I wrote a quick script that uses rsync to seek out and backup any changed files a few times a day on each of my computers. It runs in the background, without any user interaction, and creates weekly snapshots of important files. While most of my files are not encrypted on the server, they are encrypted in transit. The tools powering all this are simple and rock-solid after years, or even decades, of use.

Because Dreamhost is a full-service hosting service, you can also make your files available on the Web. I decided to use Ajax File Browser as a front-end, because it’s fast and flexible and allows multiple users with different permissions. I can also retrieve files through SFTP or rsync (which would be good for mirroring a directory on second computer).

Again, setting up a system like this isn’t for everyone…yet. But with the prices of disk storage and bandwidth dropping, expect fierce competition in the online backup sector, which should lead to flexible solutions at prices even lower than today. Rumor has it that Google may be getting into the game; if so, prices could plummet to $0 for all but picky corporate customers.

I wouldn’t be surprised to see online backup bundled with Windows and OS X in few years. That’s a good thing, because even with low-cost services available, many or even most home users will still neglect making backups (blame optimism bias). For a computer with music software, photo tools, word processing, and email, reliable backup is basically required and should probably, in the end, be a part of the base operating system package.

This post isn’t meant to prove anything, just to note something of some small significance–a data point, basically.

Digg is major gathering point for the pro-open source, anti-big company, anti-DRM crowd. To be sure, many others use the site, and most Diggers who hold these views are casual about their advocacy and not among the hardcore folks who hang out on more focused sites.

But sometimes I wonder whether among casual holders of this creed, the motivating factor isn’t political, philosophical, or ideological, but just to get something for nothing.

So note the current top stories on Digg:

Just a correlation, proof of nothing in particular.

Arguing in favor of telecom regulation, some people say that telephone networks are owned by the public, which was forced to pay for them as captive ratepayers. The upshot is that telecom firms therefore shouldn’t be able to restrict competitors from using their wires.

As my colleague and co-blogger James Gattuso has explained in some detail, this historical analysis is deeply flawed. Today’s networks are “overwhelmingly the product of recent private investment,” concludes Gattuso.

But for those seeking more proof that private investment in building network capacity continues to be robust, today’s Wall Street Journal covers Verizon’s hugely expensive effort to bring super-high-bandwidth fiber into the home.

Verizon executives see the new network, called FiOS, as a chance to reposition the telecom giant into more of an Internet-based company — one that can supply a raft of digital services under one roof. The plan is to offer a host of new services to run on FiOS, some of which are still in the development stages. The company is targeting everything from online games and local news shows to movie downloads and music-mixing sites. With FiOS’s ability to carry huge amounts of data at warp speed, Verizon is betting that the network will be a magnet for subscribers and advertisers alike.

Many on Wall Street say Verizon’s fiber rollout is too risky:

Investors, however, remain generally uneasy about Verizon’s costly fiber initiative — even though some think the new content might eventually bring in major revenue…. John Santo Domingo, a portfolio manager at New York hedge fund Acero Capital Management LLC, says one of the reasons his firm doesn’t hold any Verizon stock is because it thinks the company’s strategy is too risky. “It’s a very capital-intensive endeavor they’ve undertaken,” he says. “You don’t know what the industry is going to be like by the time [FiOS] is fully deployed. There’s a lot of uncertainty.”

Verizon’s plan is to use its speedy new network to deliver digital services to households: phone, television, games, and so on. It hopes to gain enough service subscribers to recoup its $18 billion infrastructure investment.

That’s a risky bet, but if it pays off, Verizon deserves the reward. That’s the best way to ensure that more Americans get access to the stunning speeds that fiber offers.

Today’s Wall Street Journal profiles ($) Free Press, a media activist group that opposes loosening ownership rules for broadcast stations. As the Journal reports, the group has been wildly successful in its drive to block further consolidation in local markets, organizing thousands to protest and contact the government.

Free Press’s stated concerns are “diversity of viewpoints and coverage of local issues.” But no surprise, there’s more than a bit of media elitism at work, too.

“If you watch TV news, it’s all car crashes, shootings and Brangelina. If we can’t create more hard-hitting journalism, then we have a real problem,” says Mr. Silver, a political activist who says he decided to form the group after becoming mad one night when a local newscast led with a story about the rising price of lobster. Local ownership of stations or newspapers leads to more accountability to citizens and better journalism, he says.

But local ownership doesn’t necessarily equal diversity in content or viewpoints. Or serious local journalism.

A good example is my hometown’s public broadcaster, Philadelphia’s WHYY. Unlike big nasty media conglomerates, local public stations are closer to the community and do a better job covering local news, goes the argument.

So then why do I remember so many interminable Yanni concerts from my childhood?

A quick look at WHYY’s schedule shows that things haven’t changed much: The station airs just half an hour of locally-produced content each weekday. And that show, “Delaware Tonight,” doesn’t even focus on Philadelphia. Almost every other program on WHYY comes from PBS headquarters. (Meanwhile, the local FOX-owned station airs two hours of local news every night.)

This isn’t so unusual in the world of public television. If you want news, watch Jim Lehrer–if your PBS affiliate hasn’t replaced it with back-to-back eps of “Are You Being Served?”

And maybe the media behemoths aren’t so bad as Free Press makes them out to be. As Slate’s Jack Shafer explains, a Clear Channel takeover of six stations (previously owned by two companies) in Minot, ND, actually doubled the number of formats on the air:

Speaking before a Senate committee investigating media ownership, Clear Channel Chairman Mays said the Minot stations represented only three radio formats before the company made its acquisitions—country, adult contemporary, and news talk. Clear Channel diversified the mix by adding a classic rock, a hits, and an oldies station.

Shafer goes on to explain why this makes good sense:

Wherever a broadcaster consolidates ownership in a region, it will tend to diversify programming for economic reasons. Consider: If six companies own six stations in a small market, all six will tend to gun for the highest ratings possible and put the other stations out of business. Such a strategy will almost always result in duplication of formats, as was the original case in Minot. But when a single owner controls all six stations, there is no incentive to put the other stations out of business. He’s more likely to diversify his programming portfolio to reach the largest aggregate listenership, which is what mega-owners like Clear Channel aim for when they own multiple stations in a market. The economic incentive to occupy as many strong programming niches as possible is so great that the scurvy bastards at Clear Channel even broadcast the liberal Air America network in about 17 markets.

But the economics of media ownership probably matters less than individuals’ visceral response to the media–why else would so many expend so much energy railing against the rhetorical excesses of Bill O’Reilly and Keith Olbermann? For most, opposition to media consolidation seems to have less to do with local journalism and viewpoint diversity than with indignation and self-affirming elitism.

Which may explain why so many of anti-conglomerate activists I’ve met seem to spend so much time on TMZ.com.

Unpopular on MySpace? Buy a few friends:

Enter FakeYourSpace.com, a business founded by Brant Walker, which offered users of MySpace.com and similar sites a way to enhance their page with photographs and comments from hired “friends”–mainly attractive models–for 99 cents a month each. … MobileAlibi.com and PopularityDialer.com offer similar services, using fake cellphone calls scheduled in advance to provide an excuse to escape a tedious situation, like a bad date, or to make the subscriber appear in demand.

(With apologies to Marginal Revolution.)

As everyone knows by now, whether the proposed Sirius-XM satellite radio merger goes through has turns, in large part, on the definition of the market in which the companies compete.

And it’s no secret that many tech analysts, being (often) forward-looking, recognize that satellite radio’s weakness is due to the competition it faces from other market segments.

But an analyst quoted in a Times column today makes a more interesting point:

“The question they have to ask now is: what problems haven’t been solved in the car?” said Michael Urlocker, a former wireless analyst with UBS Securities who is now the chief executive of The Disruption Group, a Toronto-based consulting company. “The lack of customer sign-ups on a profitable basis should be a sign that trying to create a better iPod than Apple is a losing proposition.”

In other words, satellite radio–today, tomorrow, and forever–is a losing proposition, not a powerful duopoly.

If Sirius and XM join together today, the column explains, the combined company might be able to make a go of it providing mobile video services. But even that strategy faces big competitive risks:

As [XM’s chairman] sees it, satellite radio systems would most likely be able to provide only “a minimal amount of streaming video.” It may be preferable, he said, to simply download video from satellites to in-car hard drives for later viewing. … [T]here are limits to what even a combined satellite radio company can do. Satellite systems effectively do not allow two-way transmissions, ruling out services such as e-mail. And without enormous reinvestment, the systems are not likely to approach the transmission speeds of WiMax, a new wireless technology being developed by Nortel Networks and others that will probably start operating within the year. Those systems, like cellphone networks, will pass moving users from tower to tower and offer transmission speeds comparable to high-speed, wired connections in homes. Susan Kevorkian, an analyst with IDC, said that the satellite radio connections with automakers would give them a significant advantage over WiMax, at least in the short term.

So the best case scenario for a combined Sirius-XM is slow video downloads to cars, and maybe decent profits in the short term, before being clobbered in a few years by terrestrial cellular technology.

OK, I have to ask: Doesn’t anyone remember what happened to Iridium?!

Cnet News reports that BitTorrent (the company) is launching an online movie rental store today. As with Zudeo, a similar service from the creators of the Azureus bittorrent (the protocol) client, the movie files will reach viewers via tit-for-tat peer-to-peer networking. The question is whether consumers will bite at the chance to lend BitTorrent their bandwidth.

It’s one thing to download a movie or song directly to your computer from, say, Apple or one of the other online media stores. But bittorrent systems are different: They use your bandwidth to send the audio or video files to other computers. The result is less bandwidth fees for the movie store because it doesn’t have to pay for every byte sent to a customer.

BitTorrent tells Cnet its service is a good deal for consumers because it’s fast:

Developed in 2001, BitTorrent’s open-source (sic) distribution system was designed to help transfer large files over the Internet. BitTorrent allows a single file to be broken into small fragments that are distributed among computers. People then share pieces of the content with one another. : So how fast can BitTorrent deliver the same movie? “Depending on the connection speed,” Navin said, “how about we say faster than a pizza delivery?”

It is an open question, though, whether downloads will be any faster. To begin with, direct distributors like Apple buy bandwidth in bulk from providers all around the world and employ speedy content distribution systems. Their files are already distributed from high-bandwidth points that are near, in terms of network speed and capacity, their customers’ computers. While it is true, as a BitTorrent flack notes, that direct services can slow down under heavy loads, this doesn’t happen much in practice because it’s not hard for these services to provision bandwidth to meet all but the most extreme loads. Apple’s iTunes store, for example, bogged down around Christmas but has otherwise been fairly speedy.

Second, the “long-tail” effect cuts against bittorrent’s alleged strengths in movie delivery. Files that are widely shared benefit the most from bittorrent’s distribution model (and save the media store the most money on bandwidth); in bittorrent-speak, the more “seeders” a file has, the faster its transfer rate it likely to be. But less-popular films–those residing in the long tail–won’t get this boost. It’s really neat that BitTorrent has “The Ballad of Cable Hogue,” but downloading it probably isn’t going to be much faster than downloading a movie from iTunes or anywhere else unless the software leaves your computer “seeding” for days at a time, eating up your bandwidth in the process.

Third, in many cases, the speed limit is set by the downloader’s Internet connection. Bittorrent can’t pump more bytes through a narrow pipe than any other means of distribution

Network protocols are more than just technical things; they’re also, in a sense, social. Bittorrent works best in a community that values sharing sharing as a social norm and whose users are sympathetic to content distributors. Open source projects, for instance, frequently use bittorrent to distribute their files; their users know they’re giving back to the project by “seeding” those files to others. Similarly, bittorrent is popular in piracy circles, where social and technical norms mandate and reward sharing (e.g., via “share ratios“).

But the BitTorrent movie service isn’t a community–it’s a store. Blockbuster doesn’t ask me to deliver movies to my neighbors when I pick up one for myself, and if it did, I’d want a big price break.

BitTorrent’s prices for movie rentals are comparable to what Blockbuster charges, and its TV shows, which you can keep, seem to match Apple’s prices. The difference is that Apple doesn’t leech on your bandwidth for hours or days after you download.

What Internet broadband providers do about media stores that seek to compete against them while pushing the cost of distribution onto their shoulders (via all-you-can-eat broadband plans) is anyone’s guess–though one can guess what they’d like to do. How consumers will feel about handing over their bandwidth is another matter entirely.

So BitTorrent may need to tweak its pricing model, but it would have a greater incentive to do so if broadband providers could charge it back for the extra network resources it’s using. A commercial service using the bittorrent protocol shifts costs without creating much additional value, such as better networks and more bandwidth to consumers. Making it pay for what it uses just seems fair.

Nobody expected the net neutrality debate to die down with the installation of a Democratic majority in Congress, but even now, few realize that it will flare so powerfully as it is likely to do later this year.

A new IPTV service from the developers of Skype and the filesharing service Kazaa is set to force the issue. Joost is a peer-to-peer-based television-over-IP system that streams (relatively) high-quality video to users’ computers over their Internet connections. This eats up a lot of bandwidth: 320 MB in downloads and 105 MB in uploads per hour, according to the developers. They also note that “the application continues to run in the background after you close the main window,” presumably to help Joost’s developers save a bit on bandwidth costs by piggybacking on their users’ broadband connections. Running full-time, that amounts to about 225 GB downstream and 75 GB upstream per month, far more bandwidth than the average broadband user consumes today.

How much more? Comcast is one of the largest and fastest broadband providers in the U.S., offering peak speeds of 6 or 8 Mb/sec in many areas, which is enough to support Joost. Its all-you-can-eat service has an informal cap of 200 GB per month to prevent high-bandwidth users from imposing “an overly large burden on the network.” This is enough to download around 50,000 MP3 songs. Joost would hit that limit in the last week of every month. And keep in mind that Comcast, compared to other providers, is generous with bandwidth.

The bigger question, though, is whether Comcast’s and other providers’ networks could support the burden of hundreds or thousands of users in every neighborhood maxing out their bandwidth capacity around the clock. Certainly not. Like the electricity grid, data networks aren’t designed to pump full capacity through every wire at once–it’s just not cost-effective. When the tubes fill up, everything slows down, including important services such as voice over IP. And remember that net neutrality can get in the way of Internet providers’ providing priority routing to services like VOIP.

If their users adopt Joost en masse, Internet providers will have to respond with traffic shaping (that is, limiting the bandwidth available to Joost) or by blocking Joost altogether so that their customers don’t suffer massive Internet delays (if this is even possible; Skype can slip under many locked doors). Most of today’s networks just aren’t ready for such a bandwidth-intensive application.

In the long term, the solution is to upgrade networks to support higher-bandwidth uses, something that providers are doing today anyway. But Joost and similar offerings will make providers put the pedal to the metal in ramping up speeds, at great expense. Should cable-TV companies and the telephone companies that are just beginning to offer TV over IP service be forced to shell out big bucks to effectively subsidize a competitor?

The FCC’s current net neutrality “principles” would impose that burden. Consumers are entitled to access any “lawful Internet content,” “run applications and services of their choice,” and enjoy “competition among…application and service providers, and content providers.” Although the principles are not explicitly a part of any FCC rule, the agency has said that it will incorporate them into its policymaking, and it is already working behind the scenes to impost them on individual providers in exchange for OKing mergers and other activities that require its cooperation. With the agency’s leverage over service providers, it could impose net neutrality by fiat. To some extent, it is.

Congress passing a law mandating net neutrality would have the same effect. A few neutrality bills were introduced last year, and legislation has already been proposed this session.

Those on both side of the debate say that their respective positions would best encourage innovation and serve Internet users better. Joost will certainly put that latter claim to the test. As for the former, one wonders that transmitting regular TV programming over the Internet is especially innovative. Unlike, say, YouTube, this isn’t participatory media. Joost looks like a means of broadcasting that avoids the costs and headaches of cobbling together a broadcasting network, such as a string of network affiliates or a set of wires running to most homes in the country. It’s awfully convenient for Joost that someone has already undertaken this expense.

It is inevitable that as consumer demand for bandwidth continues to rise, network capacity will rise in tandem. The real issue is who pays to build up the networks. In the end, application providers (such as Joost) and service providers (such as Comcast) pass their costs onto consumers in one way or another–otherwise, they go out of business. In the long run, net neutrality means that all Internet users pay for high-bandwidth applications. Non-neutrality means that the users of those applications pay. The biggest bandwidth users are younger, more tech-savvy, and from disproportionately well-off families. Net neutrality is, in a sense, a subsidy for these users paid for by everyone else.

If net neutrality applies to Joost and similar applications, think of it as a sort of regressive tax on broadband subscribers for the benefit of those who probably need it least. So that they can watch TV on their computers. Apparently, Americans do have a right to TV, whether they want it or not.

Any modern society worthy of the title must have progress. But sometimes the government gets in the way. Or rather, sometimes it doesn’t. CNET bemoans a recent example:

The Food and Drug Administration set a deadline of December 1, 2006, for U.S. pharmaceutical companies to comply with regulations regarding paper trails, known as “pedigrees,” for their drugs…. [But] Judge Joanna Seybert agreed [with critics] and on December 11 granted an injunction against the implementation of the requirements. While the decision does not directly weigh on technology standards, the injunction, along with other state cases that challenge it, could subdue the rush for companies to comply and stall their adoption of RFID technology, Liard said.

That’s right; without regulation and a government mandate, RFID adoption will be stymied. Horrors.

This mentality is far from abnormal among scientists and technologists (consider the debates over stem cells and NASA funding). The march of progress is onwards and upwards, by hook or by crook. And if it’s the government’s hook, so be it–full speed ahead!

Probably most people woke up last Saturday morning to the shock that a Member of Congress had resigned over some filthy instant message exchanges with an underage page. I wasn’t so shocked. Well, it’s about time, was my first thought.

No, I don’t have any inside dirt on former Rep. Foley’s peccadillos or those of any other Member. But I have done a lot of research into how the legal system treats instant message evidence and recently put forward the first real set of guidelines as to how it ought to. (Find my full analysis here.) One thing I learned: there are a lot of sickos on the Internet. (This is news?) And so it boggles the mind that this is the first high-profile instant messaging case.

Another thing I learned: plenty of the instant message evidence that makes it into courts is obviously forged junk. That doesn’t stop it from being incredibly persuasive, especially to juries.

A few bare text files–easily falsified by a ticked-off youngster–have proved enough to wreck Foley in the public’s eye (er, well, outside of his district, anyway) and send him into rehab and “crystalized recognition” and confession even if not quite accepting “full responsibility.” But now that the FBI’s on the case, Foley’s got to be wondering whether this evidence will stand up in court. There’s no easy answer.

And the answer isn’t foreordained, either. Instant message logs are about the least reliable evidence that a prosecutor can bring into a criminal court, and in this age of AIM, MySpace, and the like, they may be the most convincing to the jury, especially when the “crimes” committed took place solely online–an increasingly frequent occurrence. Defendants have a great incentive to try to keep this stuff out of the courtroom, and they’ve got ample legal tools to make that happen. But few have even tried because getting into the technology of IM can be daunting, and understanding the technology is necessary to make the argument that IM logs should be kept far, far away from the jury. There’s little persuasive judicial precedent, then, on what courts should do about IM evidence. Still, a lawyer who’s prepared to make the argument that IM evidence is junk may stand a good chance of getting the judge to agree.

It looks like the Foley camp is already planting the seed for a vigorous defense. Foley’s lawyer has been “requested by me to fully and completely cooperate regarding any inquiries that may arise,” but stories about the genesis and purpose of the now-famous IM logs are already rife. Certainly Foley and his team have done nothing to quell the rumors that the conversations were somehow part of a prank or game–in other words, that there’s some larger story going on that the IM chat logs, as now available, don’t reveal for one reason or another. Tampering? Could be.

Then again, his post-revelation behavior makes Foley look guilty, guilty, guilty, which in the current caselaw is more important than whether the proffered evidence is like completely bogus.

(And if you want to Digg this, please do.)

Sonia’s pointed post earlier today spurred my thoughts on Adobe’s efforts to sic the European antitrust squad on Microsoft to keep PDF generation out of Office. But rather than argue over Microsoft’s position as a monopolist, I’m inclined to look towards the consumer surplus destroyed here by competition law.

(But first, I should add a new update: in response to Adobe’s threatened legal action, Microsoft agreed to yank PDF features from Office.)

Many Windows users need to generate a PDF from time to time–probably not enough to justify purchasing Acrobat. And so they rely on friends and colleagues to translate their files, a process that can run into all sorts of problems (e.g., fonts, formatting, metadata, etc.) and is annoying for everyone involved. (Trust me.)

Apple addressed this need nicely–any user can print a PDF from any application in Mac OS X. (I should note that Apple’s implementation of this feature is far, far different from Microsoft’s, in that OS X’s graphics system is based on PDF. I’m not sure that this matters.) Since the mass adoption of OS X, I’ve seen a lot more PDF files coming from Mac users. For most of these users, Acrobat–which is stuffed with useless, annoying, and puzzling features as badly as any Microsoft application–is just overkill. But a low-cost way to generate PDFs is really attractive and proves to be really useful–far more so, I suspect, than most users imagined initially.

This is, essentially, the sort of feature that Microsoft aimed to bring to its Office suite. Until, that is, Adobe threatened legal action, exploiting Microsoft’s (one-time?) status as a monopolist. (What kind of legal action? According to one report, “It’s unclear whether that action would be in the form of a complaint to the European Union or a formal antitrust suit.”)

A cynical person might say that Adobe is keen to protect its monopoly in PDF generation on the Windows platform. After all, for a consumer who doesn’t need all the whiz-bang features of Acrobat, $0 compares very well to $150+. (There is the Ghostscript-based PDF Creator application, which is free, but it is, in my experience, buggy, unreliable, and extremely subject to software entropy.)

At the moment, Adobe has a lock on this market and it shows. Acrobat 6 and 7, for example, are almost as bad as Word 6 on the Mac a decade ago, and innovative features have been few and far between in recent releases of Acrobat Reader and Standard–which nonetheless continue to bloat to impressive levels. (Acrobat Reader 7 on my computer is 101 MBs, about twice the size of my web browser and email client combined.) Instead, Adobe has focused its development energies on the high end of the market, pre-press and other areas in publishing, and to great success. This does nothing, though, for regular users, who don’t need to do…whatever it is that prepress folks do with their thousand-dollar copies of Acrobat. Competition at the low-end of the market would be a good thing, for consumers anyway. We could use some price competition and better software.

I’m not going to say that Adobe is being shortsighted and that, in the end, PDF-generation capabilities in Office could lead to increased sales of Acrobat as users look to ‘move up.’ I assume that Adobe recognizes its interests better than I do and that it expects to lose piles of money if Microsoft embraces (and extends?) PDF.

But so what? Is that how competition is supposed to work? And isn’t competition what antitrust is supposed to protect?

Yes, and that’s exactly why Adobe is running to the antitrust authorities, which in Europe are only too happy to do its dirty work.

Earlier this week, Swedish authorities raided the offices and server racks of “Pirate Bay,” an extremely popular Bittorent tracker site with millions of page views per day, as part of an investigation into possible copyright infringement charges against the site’s operators. Pirate Bay stored and indexed thousands of “torrent” files, which point to files that are shared by users’ Bittorent clients. By opening a torrent, a user is able to download the files to which it points, such as a movie or computer application, and quickly begins serving to other users what has already been downloaded. As its name implies, Pirate Bay was used almost solely to facilitate piracy of copyrighted works.

For what it’s worth, the operators of Pirate Bay contend that they have violated no law because they did not serve copyrighted materials, merely pointers to such. They may be right. In any case, the site is down for now (though its operators maintain it will be back in a few weeks). What I’m wondering is, how do “copyfighters” feel about this?

Many participants in the debate over copyright enforcement today–e.g., those who campaign against digital rights management systems and pooh-pooh rights holders’ efforts to go after users who have made the works they own available online–maintain that they do not favor piracy per se and are simply standing up for users’ rights against overly powerful media companies that have co-opted the government’s police power. (In so painting things, I am being a bit reductionist. There are a range of views on all sides of the issue. This view seems to me, though, fairly widespread.) But many who favor strong copyright enforcement say that this is just a put on: the anti-DRM, ant-enforcement crowd really just wants something for nothing.

Pirate Bay facilitated wholesale piracy of copyrighted works, and so its being offline probably shouldn’t bother the anti-enforcement but pro-rights crowd, even though they may dislike the manner in which it was closed, right? (And some shouldn’t even mind the way that it was taken offline; surely going after a single site that facilitates rampant piracy is better than sending legal threats to thousands or millions of its users.) So what are “copyfighters” (and others who debate IP) saying, and are they bemoaning the closure of what was, by all accounts, a major facilitator of piracy?

For now, at least, nobody’s saying much.

Cory Doctorow, sci-fi author and former EFFer, was a bit of a fan of Pirate Bay for its “showing how the radical wing of the copyright reform movement is keeping copyright’s overreach squarely in the public eye.” Doctorow hasn’t posted on the takedown–at least that I could see–but he did note the site’s resurrection with a seemingly positive spin, faulting the MPAA for issuing “a crowing press-release that danced on ThePirateBay’s grave.” Anti-MPAA animus or pro-piracy enthusiasm? It’s hard to tell. Doctorow did point to a legal defense fund for the operators of Suprnova (of which he was a user), another tracker site mostly for pirated materials, when it was shut down in 2004.

TLF’s own Tim Lee, who writes often on the intersection of IP and technology, noted the raid, as well, but also had no clear comment.

Slashdot has posts on Pirate Bay here and here. Slashdot, to my mind, reflects somewhere around the mean opinions of the open-source community, which has become increasingly hostile to IP in recent years. This community (broadly conceived) makes up a big part of copyfigher’s constituency, and its interest is definitely strong in piracy. Comments to both posts seem to be largely negative on the site’s closure and positive on the affiliated “Pirate Party,” the platform of which is to disregard copyright. And of course, because it is Slashdot, there are lots of posts by people admitting not to be lawyers who nonetheless write interminable (but amusing) treatises on Swedish copyright law (about which most lawyers who don’t specialize in this kind of thing would admit to knowing nothing).

Comments on Digg, a Slashdot competitor, take a similar tone. Comments discuss the law and trade tips on other torrent repositories. A representative comment: “This is horrible. I knew this was going to happen, but I didn’t want to admit it. I just hope that they get back online for the sake of mankind.”

Gizmodo, a weblog that usually covers gadgets, calls Pirate Bay’s closure “a sad bit of news” and links to other sites that host torrents for copywrited materials.

Oddly, there’s no mention of the shutdown anywhere at all on the Copyfight weblog, said to be the home of “all-star” team of copyfighers. But maybe they’re just on vacation.

Finally, a fairly rambling post on the Mises Institute blog bemoans the site’s closure, asking “Isn’t it interesting how the ‘criminal class’ is increasingly shining the line on the direction that praiseworthy web entrepreneurship will take in the future?” I’m not going to try to characterize the Mises’s folks view on copyright, though; they tend to be willfully obscure and ill-tempered.

So what’s my view? I know nothing whatsoever about Swedish law and so can’t comment intelligently on that. That said, Pirate Bay offered the kind of service that should be against the law–or expose its operators to massive liabilities. The site’s operators deliberately facilitated copyright infringement and promoted their site as a means to that end. I have no idea whether the raid was appropriate under Swedish Law (and whatever international agreements on copyright Sweden has ratified), but I don’t think the result, in any case, is anything but positive–to some marginal extent, it will be more difficult for the site’s users to pirate copyrighted works and maybe scare the operators of similar services–and of course drive a few more users to them. To the extent that the raid and shudown increases costs for those engaged in evading copyright, good.

I will update this post if any good commentary turns up.

Soon computer viruses, spyware, and other malware may be a thing of the past.

If, that is, you pony up an extra $50 per year to Microsoft. This week, the software giant (obligatory cliche) announced a Windows Live OneCare, which promises to provide subscribers with “round-the-clock protection and maintenance–virus scanning, firewalls, tune ups, file backups, the whole nine yards.” This comes after years of demands from customers that the company shore up its operating systems and focus more attention on security.

Then again, regular major security flaws haven’t done much to erode Microsoft’s market share, and so perhaps there is some justification for making security an add-on service rather than a part of the operating system itself.

But one factor in the decision to sell Windows Live OneCare live, according to several industry analyst, is that Microsoft is aiming to avoid the attention of the antitrust squad. According to at least one commentator, this restrained competition is laudable:

It’s fair to argue that something like OneCare ought to be built into Windows. But think about what would happen next: The competition would probably find its air supply cut off, as people flee from the cost and complexity of adding third-party replacements for something built into Windows. And recent history has shown that Microsoft tends to slack off if it doesn’t feel a competitive threat–witness how Windows Media Player and Internet Explorer stagnated until iTunes and Firefox got Microsoft’s attention. With OneCare, Microsoft is trying to clean up its own mess while preserving competition. That’s especially important in the security-software market, where many of the companies that have dominated it so far seem to have adopted Microsoft’s worst habits of sloth.

Remember that the ostensible purpose of antitrust law is to protect consumers. When companies become monopolists, the argument goes, they can raise prices and extract undue sums from their customers, while innovation, and the consumer benefits that come with it, stagnates.

But here, it’s consumers that are getting the short end of the stick. For fear of the antitrust boys (and perhaps because the market will bear it), Microsoft has essentially unbundled what was traditionally a part of an operating system–strong security to protect users’ files, networks, and operating environment–and is now selling it as a separate service for $50 per year. (Among UNIX-derived operating systems, for example, including advanced security auditing tools is the norm.) If antitrust concerns are behind this decision, then antitrust is costing security-conscious consumers, by my calculations, $50 per head per year.

That’s protection? It seems more like a protection scheme. One wonders whether Microsoft isn’t exactly upset that it can hint about antitrust concerns as its reason for unbundling security so as to avoid consumer ire.

Even if not in the U.S., Microsoft surely would have run into antitrust problems in the EU, where antitrust authorities are much keener to meddle, especially when a U.S. firm is involved. Recall that the company’s last settlement with the EU gave birth to “Windows N,” a version of the operating system without a bundled media player. (Not surprisingly, “N” has not exactly been a hit with consumers, leading to the joke that the ‘N’ stands for ‘no one.’)

Inadvertently, this time, the antitrust enforcers may have just created yet another version of the popular operating system: Windows NS. ‘NS’ stands for ‘no security,’ and it’s likely the version that you’re using right now.

Better than restrained competition–the sort of term that makes any economist nervous–is plain competition, unburdened by the threat of arbitrary government meddling. Without the antitrust hatchet hanging overhead, Microsoft’s OneCare might well just be a part of the operating system, correcting (perhaps; hopefully?) a series of flaws in the design of its products that have frustrated users for years.

Although the word “spyware” alone can make the blood boil for those who have struggled to remove the stuff from their computers, coming up with an actual definition of the concept is actually quite difficult. Still, the Anti-Spyware Coalition, consisting of consumer groups, Internet service providers (ISPs), and software companies, is struggling to pin one down. The group released a draft definition this week.

The Coalition, which includes Microsoft, EarthLink, McAfee, and Hewlett-Packard, is accepting comments on its definition (PDF link) now. Spyware, the group says, consists of products that “impair users’ control over material changes that affect their user experience, privacy or system security; use of their system resources, including what programs are installed on their computers; or collection, use and distribution of their personal or otherwise sensitive information.”

Not a bad definition, though it is certainly not perfect. What standard, exactly, does “impair” suggest? Would administrative tools cross the line? Headless distributed computing daemons? What exactly is “personal information”? Is usage data and crash reporting included?

The Coalition answers some of these concerns by including in its report a table that defines common types of malware that are presumptively “spyware.” Further, the group notes that “with proper notice, consent, and control some of these same technologies can provide important benefits.” This goes a long way towards ackowledging the inherant ambiguity of the enterprise, especially in a domain as fast-moving as networked software.

The Coalition has lofty goals for its proposed definition:

The group hopes the definitions will clear the way for anti-spyware legislation and help create a formal, centralized method for companies to dispute or change their software’s classification:The anti-spyware community needs a way to quickly and decisively categorize the new programs spawning at exponential rates across the internet:The lack of standard definitions of spyware and adware has doomed federal and state legislation and hampered collaboration between anti-spyware forces.

Private certification sounds good. Though Ben Edelman, a spyware researcher, “questions whether the new definitions are simply there so that adware companies can find a way to get a stamp of approval for their software,” the value of the Coalition’s reputation should ameliorate this concern, to some extent. If it certifies bogus software, consumers will quickly learn to ignore its seal. Other groups could pick up the slack, or the ad-hoc system that we have now–in which spyware is defined, essentially, by the fiercely competitive and consumer-driven companies that make products to remove it–could continue (as it certainly will in any case. Especially of late, anti-spyware software has become very capable.

But legislation is a different beast altogether. First, as the Coalition acknowledges, its definition includes many activities that do not really constitute “spyware” and, in fact, “provide important benefits.” Also, whether a practice makes a piece of software “spyware” or not may turn on “consent,” which is a difficult thing to prove one way or the other. Is a click-through box consent? Is downloading and installing software consent? Need there be some notification standard? All of these questions have to be asked on a case by case basis. More likely, however, legislation would seek to answer all these questions exhaustively, creating a labyrinth of regulations that anyone writing software would be forced to navigate. Legislation could scare many software entrepreneuers (the competitors of the big businesses creating this definition) away from innovative practices, drive them out of business, or force them to weigh down their software with all manner of intrusive pop-up boxes, click-throughs, etc.

And of course, no set of regulations, no matter how finely detailed, would have much of an effect on gray-market software companies that operate out of Russia and Asia and are responsible for many of the worst computer viruses and much of the most intrusive spyware.

All that said, a voluntary ‘seal of approval’ seems like a good idea, so long as it remains voluntary. Bringing consumers greater information should help them make better choices and should steer software makers in the right direction. With a voluntary seal, companies would face pressure to improve their practices in line with consumer expectations, which is a good thing, without the specter of criminal enforcement should they make even a minor misstep. A voluntary standard may even have some sway in the courts, especially for tort claims, though its worth in any particular case would be, reasonably, a rebuttable presumption. With the weight of industry heavies behind it, such an approach should be more than enough to keep law-abiding software companies honest.