Articles by Cord Blomquist

Early one morning, the Civil War crashed into my bedroom. A loud popping noise crackled just outside our window . . . I went to the window and saw men in gray uniforms firing muskets on the road in front of our house.

These men in grey uniforms weren’t soldiers, not even actors playing soldiers—these men were reenactors. They had found their way into the front yard of writer Tony Horwitz, inspiring him to write the bestselling Confederates in Attic.

For a new generation of civil war buffs there’s a way to reenact without the smell of bacon grease, gunpowder, and coffee grounds hanging in the air. Buffs old and young have many things in common—namely, abundant free time and obsessive attention to detail—but the younger breed prefers keyboards to Colt revolvers.

Sid Meier’s Gettysburg, released in 1997, marked a significant step toward satisfying generation X reenactors, but it still didn’t quite scratch the itch. More recent releases, like the History Channel’s cleverly named History Channel: Civil War was decried by gamers as boring while buffs were annoyed at its inaccuracy.

Because of all of this, a new community was born—or at least a sub-community.

Since the early days of video games, hobbyists have modified commercial video games—creating their own specialized versions with unique attributes and themes. “Modding,” as it’s often called, naturally appeals to the meticulous nature of the reenactor. Obsessions with detail and historical accuracy can now be expressed not only in recreating clothing and weaponry, but entire battlefield landscapes.

Electronic Arts’ Battlefield 1942 has been reworked to produce Battlefield 1861. Microsoft’s Rise of Nations as well as its Age of Empires series have also been re-worked to produce incredibly detailed Civil War games. Some of these efforts are the result of one lonely man’s hobby, but more often they are the result of a team of a dozen or more developers coordinating their efforts using online forums and email lists.

This kind of community of obsessive hobbyists is part of the reason why I don’t believe the PC gaming industry is anywhere near its death.  There is such a huge amount of dark data out there—data that exists, but that hasn’t been aggregated into a useful form just yet. Much of the PC gaming community is non-commercial, unmeasured, but likely terrifically huge.
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Last week CNN Money reported on the latest development in the $1 billion lawsuit that media giant Viacom has filed against Google noting that:

Viacom has agreed to let Google strip identifying information from YouTube viewers’ data before complying with a judge’s order to hand over the records as part of a copyright infringement lawsuit.

This is a small victory for YouTube as it was able to at least provide some assurance to its user base that their viewing history would be protected. But this smaller triumph doesn’t change the larger picture: This lawsuit is pointless.

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The Wall Street Journal today reported that U.S. online publishers are seeing increased traffic from overseas while seeing little revenue from these foreign visitors. This represents both an uncompensated cost—in the form of server space and bandwidth—and an untapped source of revenue. So untapped, in fact, that foreign visitors account for only 5% of revenues for most major sites while constituting as much as half of their traffic.

Many publishers are attempting to tackle the problem by using geographic information related to visitors’ IP addresses—the basic identifiers that allow computers to communicate over the Internet. (You can see what information can be gleened from your IP by visiting sites like Proxify, that display the information that is publicly available regarding your IP address.)

While this seems like a convenient way for advertisers to turn foreign traffic into a new source of income, lawmakers may interfere with this process, denying web publishers the revenues needed to continue the growth of their businesses. Efforts to limit what information web publishers and advertisers can use in order to serve up content and ads to readers are underway both in the U.S. and in the E.U. In fact, Europe is split over whether to consider IP addresses “personally identifiably information” and grant them legal protections as a result.

My colleague Wayne Crews recently testified before the Senate Committee on Commerce regarding this side of the pond’s approach to privacy regulation. In his testimony, Crews was quick to point out that regulation would not only cut off revenue streams, but also stem the development of future technologies which may use information in ways we’ve never considered. Those developments are surely to be in advertising, but will also undoubtedly be in other areas of communication—perhaps some will be as revolutionary as the web itself.

We also have to consider the “little guys” of the web. According to Google’s Q1 2008 conference call (transcript can be seen here) the search company passed along over $4 billion to its AdSense publishers network in 2007. So, restrictive privacy regulations won’t just harm big companies like Google, Microsoft, CBS, or NewsCorp; the small websites and blogs supported by larger ad networks will also be affected by laws or regulations that would prevent advertisers from getting the right ads to the right people.

The biggest issue at hand, however, is the notion of consumer choice.  Currently, search site users can choose from a huge variety of search engines and other services, each offering different privacy guarantees to visitors. Increasingly engines other than Google—like those run by Microsoft and Yahoo!—are differentiating themselves from the Mountain-View-based giant through their privacy policies, providing consumers with additional choices. And people ought to be able to choose if they want to offer up some of their personal data in return for more customized services, or tolerate a less accurate search in order to preserve their privacy.

Certainly this choice is better than the solution Congress is offering: no choice at all.

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Today I released a press statement about the Federal Communications Commission’s hearing today on early termination fees for customers who cancel their mobile phone, cable or Internet service contracts early. Quickly after the statement was released, I got reasoned response from Ken Werner, a Senior Analyst at Insight Media.

As reasoned as Ken’s response was, however, it just doesn’t make much sense. Ken argues that, ” bundling of phone and wireless services does not enhance competition; it suppresses it.” He goes on to say that “Unbundling of phone and service sales would create a far more varied and vibrant set of offerings.”

But this simply isn’t true. By forcing unbundling—that means banning subsidized phones—we’re taking away consumer choice. Being able to buy a phone outright and then purchase a plan on a month-to-month but if Ken is right and “Google, the Android open platform, the Open Handset Alliance, and (maybe) even Verizon are moving in that direction,” then there is no reason to force a no-contract model on the wireless industry.

The way to true offer a “more varied and vibrant set of offerings” is to allow the market to continue to operate as it is. Because of exceptional hardware like the iPhone, Ken is likely right that Verizon and other carriers will open up to selling plans separately from phones, but consumers should still be able to buy basic phones that are subsidized through long-term phone plan commitments. Banning the latter option decreases choice, rather than expanding it as Ken claims.

It may take times for American business models to shift, but ultimately it will result in more choice than markets like Europe, where choice is limited by contract negotiation. To say that banning contract options will increase the variety of options is simply a contradiction in terms.

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It’s worth noting that the Viacom lawsuit against YouTube makes little sense in light of the DMCA. For the few TechLiberation readers unfamiliar with the DMCA, that’s because the law grants YouTube, and other sites with unedited user-generated content “safe harbor.” So long as YouTube honors requests to take-down material that is claimed to be protected under copyright, it isn’t liable for that material being posted in the first place.

Google is following the DMCA and even going beyond its legal obligations to protect copyright.

In fact, YouTube suspended CEI’s account—wiping out all of our videos—based on a disputed 7 seconds of footage used in one of our videos. This was a very severe punishment and thankfully our account was reinstated after we were able to argue against the merits of the take-down. For those who do violate copyright, permanent suspension is a harsh punishment—so long as the account in questions isn’t a throw-away. Google is going well beyond the required take-down in this instance.

Yet, one of the complaints Viacom has about YouTube is that it hasn’t implemented software that would automatically weed out some copyrighted material produced by the entertainment industry—something that, again, would be above and beyond their legal obligations. YouTube planned to implement this software last year, but has failed to roll it out to the site. Viacom can complain about this delay, but not in the legal sense. Viacom simply has no grounds for a legal complaint unless they can somehow argue that the safe harbor provision of the DMCA is somehow invalid. A copyright lawyer might be able to suggest to us how such a thing could be done, if possible.

If Viacom means to show that the DMCA is in conflict with other copyright law and therefore the DMCA should be abandon or at least rewritten, it makes one wonder what a new system would look like. The current system of free posting and honoring take-downs seems to work well. It allows users to upload 10 hours of content per minute to YouTube—most of it seems to be kittens doing amusing things, not pre-lease episodes of 24—while still honoring copyright through take down. This has created a whole new medium for self-expression, expanding the media market in ways we are still trying to understand.

Were another balance to be struck, one that place the burden of policing content on YouTube, we would see this explosion of user-generated content fizzle out…or at least, like I said in my previous post, on YouTube.

Another balancing of the concerns of video sites and content owners—this one more heavily favoring content owners—would create significant barriers to video sharing and drive many from the market. Even so, user-generated video won’t be going away and infringement will continue in different forms. So again I’m forced to ask, “What is Viacom getting out of this?”

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As the Viacom’s lawsuit against YouTube and its parent company Google rolls forward, it’s worth asking if any outcome of the suit will change the situation for Viacom. In fact, were the impossible to happen, like a judge shutting down YouTube altogether, Viacom may be worse off.

CNET’s coverage of the piece sites an anonymous source from Viacom who notes that “The company basically is paying for an entire new department to watch YouTube.”

But imagine how difficult it will be to police amateur video without YouTube or other video sharing sites around—it’d be impossible. That’s because even if huge repositories of video are made illegal, web-based video won’t just disappear, it’ll move.

Our favorite cute kitten videos could end up on the same foreign servers that are serving up online poker and other forms of gambling to Americans each day, despite that activity being made illegal by the last Congress. (That was a Repubican Congress, the guys who stay out of your lives.) Just like Sierra Leone lent its flag to pirate broadcasters in the 1960s, it may rent its servers to pirate video broadcasters of the web variety.

On the other hand, videos could move to smaller websites domestically, even individual blogs and web pages. But the location doesn’t really matter, either scenario would be bad for content creators. Balkanizing videos and making them harder to find makes them harder to police. Similarly, moving video from larger sites run by legitimate, domestic businesses manes take-down notices might not be honored.

It’s possible that YouTube could function similarly as an index, just as Google does for web content. But the Torrent Spy case suggests that even “contributory” copyright infringement—making the copyright-infringing material easier to find—is just as illegal as hosting it in the first place. This means that even video search could be off the table if the principles of the DMCA aren’t upheld.

Ultimately, I just don’t see what Viacom thinks it’s getting out of this lawsuit, other than the obvious benefit that comes with $1 billion in cold hard cash. To think this move will suddenly make the realities of web-based video go away is foolish at best. It might be hard for some to accept, but we just can’t make it 2004 again.

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