I sure wish I’d noticed the Kaleidescape lawsuit when I was writing my DMCA paper. Although not technically a DMCA case (they have a license from the DVD CCA, who is claiming its terms were violated), it’s clearly illustrates how the DVD cartel is wielding the power given to it by the DMCA. The dispute has nothing to do with piracy and everything to do with control: the DVD CCA wants to dictate what features DVD players are allowed to have, and Kaleidescape had the gall to include features that weren’t on the cartel’s list of approved features.
One of the weaknesses of the case against the DMCA is that there’s a limited number of concrete examples of innovations that have been chilled. I think that’s because most of them never got off the ground: their perspective inventors didn’t bother creating because they knew their inventions would be illegal. Of course, that’s sheer speculation on my part. But here’s a concrete example of a category of device that probably would exist right now if not for the DMCA: video jukeboxes. It does for DVDs what MP3 players did for CDs. If the iPod is 1000 songs in your pocket, a Kaleidescape is 1000 DVDs in your living room.
I think it’s almost certain that in the absence of the DMCA, there would today be a thriving market in home media devices that allow you to rip your DVDs and then stream them to your TV. Instead, there’s only one such device, it costs $25,000-$100,000, and the DVD CCA is doing its best to force it off the market.
I haven’t been able to find any news reports on the case in the last year. Does anyone know what became of the lawsuit? Kaleidescape appears to still be selling their product.
Something I forgot to mention in my post last week, about Jim Harper’s book is that it’s a quick and engaging read. Chapters are short, and each starts with a quirky, irreverant story designed to illustrate an important concept introduced in the chapter. Now, as promised, my niptick:
Three of the central concepts in the book are identification, authentication, and authorization. Harper presents identification and authentication as essentially synonyms (with the suggestion that authentication connotes a more robust form of identification), while authorization as an alternative to identification in which the identity of the person isn’t disclosed. He gives the example of an ATM card: to withdraw money from an ATM, you don’t have to demonstrate your identity, you just have to have the card and know the pin. You could be the card holder’s spouse, child, or trained monkey, for all the ATM machine knows.
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An extremely smart blogger at Without Bound points out another problem with Bill Herman’s critique of Ed Felten’s paper:
Yes, as Herman says, the issue is currently in the public eye. But why? A few ill-advised comments from a telecom CEO and a bunch of wild speculation and exaggeration. It doesn’t appear that there have actually been any serious violations of network neutrality yet. (One dinky ISP in North Carolina blocked rival VoIP services, but the FCC stopped that with current regulations.)
So if the issue is this hot based only on a theoretical threat, I can only imagine that if ISPs actually started violating network neutrality principles, the grass roots would be even more outraged. There would be plenty of political will to enact regulations at that point, if necessary.
This is especially true because (as Jim Gattuso has documented) the pro-regulatory coalition is hardly getting by on a shoestring budget. AT&T, Verizon, Comcast, and company are currently swearing up and down that they won’t discriminate against Internet content or services. If they break their word, I bet Microsoft and Google would be happy to pony up a few million dollars for a nationwide media campaign highlighting their hypocrisy.
And remember the public outcry over the FCC’s minor tweaks to media ownership rules? It’s just not that difficult to generate a populist backlash against the abuses of media companies.
While I disagree with Public Knowledge about neutrality regulations, they’ve fighting an important and lonely battle against DRM mandates. PK president Gigi Sohn has a great post debunking the notion that the video flag is a kinder, gentler technology mandate. Here’s her response to the claim that the video flag, unlike the audio flag, protects the right to personal copying
It is true that if you have the right equipment you should still be able to make personal copies with the video flag. (Remember, some old devices may not work with flag-compliant devices, and once you buy one brand of flag-compliant device, you must buy the same brand for all downstream devices). However, regardless of what the FCC claims that the broadcast flag scheme prohibits, all but one of the broadcast flag technologies approved by the FCC prohibit all Internet redistribution, not just “mass, indiscriminate” redistribution. So if I want to email a copy of my appearance on the local news to my mother, the flag prohibits me from doing so. Essentially, the video flag permits me to retain my fair use rights circa 1992. Not a significant improvement over the audio flag, if you ask me.
She addresses several other arguments commonly used in defense of the video broadcast flag, so please read the whole thing. The bottom is that Washington shouldn’t be in the business of telling private companies how to design their products.
Radley at the Cato blog notes that Majority Leader Frist is making sure that the telecom Christmas tree has a present for the RIAA under it:
Majority Leader Bill Frist (R-Tenn.) quietly has gone to bat for the Recording Industry Association of America and other groups to make sure that a key industry priority was included in the massive overhaul of telecommunications laws that the panel approved just before the July Fourth recess, several Senate Commerce, Science and Transportation Committee aides confirmed.
The provision Frist helped place prevents satellite radio listeners from being able to record, store and rearrange music they receive from popular subscription services such as XM and Sirius. Music industry officials say that such copying would cheat labels and artists out of fees that consumers otherwise would pay when buying music on CDs or from online music services.
But the push by the record labels is rankling radio, electronics and consumer groups, who argue that listeners should be able to store songs for personal use as long as they are not selling or passing them along.
Several Commerce Committee aides confirmed that Frist had made it clear that he would allow the telecom bill to come to the floor only if it included the measure, which is commonly called the “audio flag” provision.
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Beyond what appears to be a home-state interest in the issue, aides and lobbyists close to the debate noted that former Frist Chief of Staff Mitch Bainwol now heads the record labels’ lobby, the RIAA.
The more I hear about the telecom bill, the more I root for gridlock.
On a related note, Bill Herman incorrectly stated that EFF is on the network neutrality bandwagon. I wanted to point out this fantastic post by EFF Chairman Brad Templeton on why his organization is sitting this one out:
If you’ve followed closely, you’ve seen very different opinions from EFF board members. Dave Farber has been one of the biggest (non-business) opponents of the laws. Larry Lessig has been a major supporter. Both smart men with a good understanding of the issues.
I haven’t supported the laws personally because I’m very wary of encoding rules of internet operation into law. Just about every other time we’ve seen this attempted, it’s ended badly. And that’s even without considering the telephone companies’ tremendous experience and success in lobbying and manipulation of the law. They’re much, much better at it than any of the other players involved, and their track record is to win. Not every time, but most of it. Remember the past neutrality rules that forced them to resell their copper to CLECs so their could be competition in the DSL space? That ended well, didn’t it?
Even without the telco lobbying wizards to be afraid of, none of the draft proposals I have seen have made a lot of sense to me. In general, they have ranged from being quite constraining on the net to being trivial to bypass for a determined telco or cable company. It’s hard enough to find something with the right balance, let alone keep it right through the political process.
Templeton says a lot of other smart things, so I urge you to go read his whole post.
Bill Herman has a response to Ed Felten’s paper over on the Public Knowledge blog. It’s a long and thoughtful response, so I thought it would be worth quoting in detail before I respectfully disagree with his conclusion:
In the U.S. political system, most policy topics at most times will be of interest to a small number of policymakers, such as those on a relevant congressional committee (Jones & Baumgartner, 2005, p. 39). House and Senate committees specialize, develop most of the language of topical bills, and oversee the implementation by the relevant administrative agencies–which are even more specialized. Interest groups who care about niche issues can therefore easily locate and lobby the policymakers who most control their fate, providing electoral support (including campaign donations) to helpful committee members. Constituent groups also lobby on behalf of helpful (and against disagreeable) agencies. In most cases, the rest of the legislative and executive branches will pay little attention to this cozy relationship, and a hardened three-way bond of mutual indebtedness will grow over time. This is called an “iron triangle.” (Follow the link for a very useful illustration.) Well-financed interests consistently succeed in currying favors from the other two members of the iron triangle, and poorly financed public interests generally fail.
So far so good…
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Michael Perelman of Against Monopoly points out this Business Week story about probably the world’s largest patent troll invention company, Intellectual Ventures:
Nathan Myhrvold, Microsoft’s first chief technology officer, has a plan for Intellectual Property. First he gathers leading scientists and patent attorneys to brainstorm and come up with ideas that his company, Intellectual Ventures, can license to others. They plan to produce nothing but patents. You know what comes next.
The company also offers to “immunize” corporations from patent suits for a $50 million fee. The company will go around and buy patents before other patent trolls do, thereby “protecting” the clients. Others, of course, will have to face the consequences of not having ponied up the $50 million.
Does the word “blackmail” have any relevance here?
An excellent question! I found the phrase “culture of infringement” particularly chilling. Companies in the software industry don’t infringe because they’re uninterested in doing the right thing. They infringe because they realize that finding and paying off everyone who holds a patent that describes something they could do is logistically impossible. “Ending the culture of infringement” in the software industry means ending the freedom to develop software without spending tens of thousands of dollars on legal advice first.
Which, in practice, means limiting the software industry to a handful of large companies staffed mostly with lawyers. Hey, come to think of it, that sounds a lot like Intellectual Ventures!
Nick Gillespie has a great article at Reason on the Clean Flicks decision. His conclusion is right on:
I have no problem with gratuitous nudity (is there any other kind in a movie?), foul language, and graphic violence; but I’m squarely on the side of the easily offended CleanFlicks’ customers. They are doing precisely what technology is there for: to create the sort of art, music, video, and text that an individual or group of individuals wants to consume.
By all accounts, the CleanFlicks-type outfits weren’t ripping off Hollywood in any way, shape, or form–they were paying full fees for content–and they weren’t fooling anyone into thinking their versions were the originals; the whole selling point of CleanFlicks’ Titanic is that it spared audiences the original movie’s brief moment of full-frontal Winslet. CleanFlicks was simply part of a great and liberatory trend in which audiences are empowered to consume culture on their own terms–not the producers’. Big content providers may have prevailed in this specific case, but the sooner they understand and adapt to a much larger and more powerful cultural dynamic, the better they’ll be at serving the audiences who are increasingly in control of what they watch, listen to, and read.
Hollywood sure seems to be shooting itself in the foot with this decision. Instead of litigating Clean Flicks out of existence, they ought to have negotiated a licensing agreement with them. Not only would that mean more revenue for Hollywood and fewer boobs on the TV screens of conservative viewers, but it would also give conservatives one less reason to lobby for censorship.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.