The New York Times has the latest evidence that Hollywood is clueless when it comes to selling its products on the Internet. Hollywood has finally gotten around to offering users the opportunity to purchase and download movies online:
New movies will cost about $20 to $30 to download; older titles will cost as little as $10. The downloads will be available on the same day that the DVD is released–quicker than rentals, which are put online about 45 days later and cost $2 to $5.
Last time I looked, you can get DVDs of new videos for less than $20 from Amazon.com. So an Internet download will be more expensive than buying the movie on DVD. But at least there will be some new functionality, right?
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I’ve been meaning to comment on Ed Felten’s fantastic four–part discussion of the nuts and bolts of network discrimination for a while now. In particular, I think his second installment hints at a strong argument against network neutrality legislation:
If a network provider is using minimal delay discrimination, and the high-priority traffic is bursty, then low-priority traffic will usually sail through the network with little delay, but will experience noticeable delay whenever there is a burst of high-priority traffic. The technical term for this kind of on-again, off-again delay is “jitter”.
Some applications can handle jitter with no problem. If you’re downloading a big file, you care more about the average packet arrival rate than about when any particular packet arrives. If you’re browsing the web, modest jitter will cause, at worst, a slight delay in downloading some pages. If you’re watching a streaming video, your player will buffer the stream so jitter won’t bother you much.
But applications like voice conferencing or Internet telephony, which rely on steady streaming of interactive, realtime communication, can suffer a lot if there is jitter. Users report that VoIP services like Vonage and Skype can behave poorly when subjected to network jitter.
And we know that residential ISPs are often phone companies or offer home phone service, so they may have a special incentive to discriminate against competing Internet phone services. Causing jitter for such services, whether by minimal or non-minimal delay discrimination, could be an effective tactic for an ISP that wants to drive customers away from independent Internet telephone services.
Here’s the problem: let’s say Congress has passed a strong network neutrality rule and charged the FCC with enforcing it. Comcast installs some new network equipment that happens to increase the jitter on its networks. Some Vonage user gets annoyed and files a complaint with the FCC.
The FCC investigates. Comcast says that they installed the new routers for reasons that were unrelated to impeding VoIP traffic. Perhaps the new router offers improved performance in other respects, such as increased throughput or better network-maintenance features. Although they suspect Comcast’s executives chose the routers deliberately to increase jitter, they have no way to prove it. The FCC will be forced to make a judgment call: did Comcast violate network neutrality or not?
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Solveig Singleton links to this article about the French DRM proposal. I agree with its conclusion, but it strikes me as rather naive:
Like most such legislation, this bill is ill-conceived and should not pass. The reason for this is simple: it would weaken any DRM scheme, almost to the point of superfluity, and would serve only to increase piracy…
But deeper analysis shows that the provisions do nothing but undermine DRM. The problem is that the type of information necessary to achieve interoperability is also precisely the information necessary to render DRM useless: encryption algorithms, keys, content metadata, and so on. DRM would be reduced to the tiniest of speed bumps, easily surmountable with utility software that would become readily available. The boundaries between such “interoperability utilities” and circumvention software (hacks) would be erased, and the difference between legitimate and illegitimate uses of those technologies would revert to plan old copyright law–which is where we started before DRM came into being.
He’s right: the information necessary to achieve interoperability is the same information necessary to render DRM useless. But it’s not like that information is presently a secret. To the contrary, it’s already widely available, both to hackers and to any mainstream company that cares to do a bit of reverse engineering. In fact, it’s only a bit of an exaggeration to say that “the tiniest of speed bumps, easily surmountable with utility software” is a pretty good description of DRM as it exists today.
So while I don’t think companies should be required to share details of their proprietary products with rivals, my objection is mostly a matter of principle. As a practical matter, mere information disclosure isn’t likely to have much of an impact on anything.
The scary part, I think, is that sooner or later this may give judges authority over the design of software products. Because Apple changes its DRM scheme pretty regularly to deter hackers. The next step on this regulatory path is for rivals to complain that Apple doesn’t disclose those changes promptly enough. And at some point, I’m afraid that we’ll get to the point where a French judge has to sign off on any format changes before Apple can go forward with them, so rivals have time to modify their products. I don’t want the French courts to be telling Apple how to build their products.
This is the beauty of simply repealing the anti-circumvention rule (or in the French case not enacting one): companies would be free to implement interoperability features if they wanted to, but the cost of doing so would be entirely on their shoulders. The state wouldn’t be forcing Apple to open up its platform, but it wouldn’t be forcing other companies to leave it closed, either. Both Apple and its competitors would have to rely on self-help, not the courts, to make their business plans work.
Steve Jobs is just a fountain of anti-DRM quotes. You might recall his 2003 comment that protecting digital content was impossible. Then there’s this comment from 2002:
Apple CEO Steve Jobs offered a critical view of the recording industry in an interview, following Apple’s acceptance of a technical Grammy award from the National Academy of Recording Arts and Sciences last week. As reported by Don Clark of The Wall Street Journal, Jobs suggested that recording labels need to make it easier for consumers to use their own music however they want.
“If you legally acquire music, you need to have the right to manage it on all other devices that you own,” said Jobs.
I guess that by “all other devices,” he meant “devices manufactured by Apple.” And “however they want” meant “however the DRM maker wants them to.” Or maybe he changed his tune after he realized that DRM would help to make him the most powerful man in the music industry.
There are a lot of political debates in which one side believes that a particular activity ought to be compulsory, while the other side believes it ought to be prohibited. For example, conservatives liberals want to teach evolution in schools, while liberals conservatives want to prohibit the teaching of evolution in schools. The debate over filling birth control prescriptions is similar: conservatives think pharmacies should be prohibited from requiring their pharmacists to fill them, while liberals think pharmacists should be required to fill them.
Ordinarily, libertarians stake out a third position: that the activity in question should be neither prohibited nor compulsory. In the case of schools, they argue for giving parents more choices, so they can find a school whose curriculum matches their beliefs. In the case of prescriptions, they believe the pharmacy should be free to set whatever policy it likes, and the pharmacists are free to find a new job if they don’t like it.
That’s hard for non-libertarians to swallow, because they’re always more interested in the particular issue (should our kids learn evolution? Should women have access to birth control?) than the broader issue of whether the state should get involved at all.
So here’s another example of this kind of unlibertarian thinking. In his recent criticism of my paper, Mr. Ross seems to think there are only two options: either interoperability can be mandatory, or it can prohibited:
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In my initial response to Patrick Ross’s critique of my paper, I said that he appears to have failed to engage (or to simply not have grasped) my central arguments. Here is an example:
The paper also appears to embrace piracy. Take this example: “Shipping a carton of bootleg videotapes across state lines is expensive, time-consuming, and legally risky. Uploading a bootleg movie to a file-sharing network, in contrast, costs almost nothing, can be done in minutes, and is unlikely to lead to jail time. In the Internet age, people can infringe copyright from the comfort of their homes.” This is all factual. It also seems to be a compelling case for government to re-exert its traditional role of defining and enforcing property rights to ensure a functioning market. But the author seems to believe that this ease in piracy–and the decreased risk in jail time–means that the copyright owners should be willing to surrender some of their rights that were more easily enforced in an analog world.
I have no idea where he gets that conclusion. I do not in any way shrug my shoulders at piracy or say that peer-to-peer file sharing is just fine. I don’t claim that copyright holders have to give up rights they enjoyed in the analog world. This appears to be another example of question-begging on his part.
He believes that permitting circumvention would increase piracy, so he projects that assumption on me and concludes that I’m also soft on piracy.
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Jim will have to stop needling PFF for ignoring my paper, as Patrick Ross has posted a truly epic three part critique.
I found his responses disappointing for several reasons.
First, he engages in a fair bit of name-calling, insinuating that anyone who agrees with EFF can’t possibly be a libertarian. (I wonder if Ross has actually bothered to peruse their site? While I don’t agree with every position they’ve taken, I would imagine that he, as a libertarian, would find a lot to like.) The entire critique is suffused with this kind of black and white, “us versus them” attitude. For example, he faults me for both criticizing and praising Apple, as though there’s something inconsistent about praising one aspect of a company and criticizing another. He also, bizarrely, argues that my comparison of DRM to a Maginot Line means that my “friends who like to breach DRM” are the Nazis.
Second, it doesn’t appear that he really engaged my central arguments. For example, he doesn’t make any effort to address the point that DRM hasn’t been an effective piracy deterrent. He doesn’t seem to have grasped my specific criticism of OpenCable–that the DMCA has put consumer electronics companies like TiVo at the mercy of the cable industry, thereby stifling the development of any devices that might be a competitive threat to cable companies. The analogy to the IBM BIOS case (a case in which a platform was opened against the will of its originator) seems to have made no impression on him. And most generally, the distinction between inter-platform and intra-platform competition appears to be completely lost on him.
Finally, throughout the paper, he makes statements like this:
The author also freely admits that some court decisions have not been in accord with his belief in this “balance,” yet we are told that we shouldn’t trust Congress or markets but rather unaccountable judges.
Note the question-begging use of the word “markets.” In point of fact, that’s precisely where we disagree: whether the DMCA is an interference with the free market. A free market is an economic system in which individual rights are protected, contracts are enforced, but people are otherwise left alone by the government. While a circumvention ban might be
compatible with market principles, it certainly isn’t required by them. Yet whenever I point out problems that have been caused by the DMCA, he responds by accusing me of being hostile to markets. That’s a non-sequitur.
Mr. Ross and I have some serious policy disagreements about the real-world consequences of the DMCA, and we have some different opinions about whether some of those consequences are good or bad. I plan to address a couple of his specific criticisms in a subsequent blog post. But I wish he’d focus a bit more on engaging on those policy disagreements instead of constantly insinuating that I should have my libertarian card revoked.
I’ve got a new op-ed in the Salt Lake Tribune. There won’t be anything in it that’s news to regular TLF readers, but here’s how it starts:
Did you know that it’s a federal crime to listen to your music on the wrong brand of portable music player?
It’s true. At least, it is if you buy your music online. Take Apple’s iTunes Music Store, which recently sold its billionth song. Apple talks a lot about the convenience and affordability of its music, but they don’t mention its darker side: it’s only compatible with Apple products. MP3 players from other companies aren’t supported.
In a free market, that wouldn’t be so bad. Manufacturers of competing MP3 players, such as Sony, Creative and Samsung, could provide software to automatically convert the music to a compatible format. But that would be illegal, thanks to a little-known law called the Digital Millennium Copyright Act, which Congress passed in 1998.
Liberal blogger extraordinaire Matt Yglesias on my DMCA paper:
I have no idea whether America is becoming a theocracy (probably not) but I do rather firmly believe that our government is, to a troubling extent, falling under the iron grip of copyright law run amok. My friend Tim Lee has recently published a Cato Policy Analysis paper on one aspect of this question, the Digital Millenium Copyright Act’s prohibition of any technologies that may be used to “circumvent” digital rights management (DRM). I’m more of a radical on copyright issues generally than Tim is, but his moderate posture helps highlight some of the more insidious expansions of intellectual property law we’re seeing right now.
In my DMCA paper, I point out that consumers with non-typical hardware and software devices, such as Linux users and audiophiles with high-end audio systems, are harmed by the DMCA. Reader Ben Galliart writes to point out another marginalized group that is particularly harmed by the DMCA: the disabled.
The anti-competive nature of the DMCA also extends to hurting the disabled. The American Disablities Act was passed to force employers to provide the additional resources to disabled employees to give them an equal opportunity to accomplish a job. Or put another way, it uses legal requirements to encourage addressing the technical obstacles to assisting the disabled. But the DMCA does the exact opposite by legally enforcing artifically created obstacles.
For example, eBook access for the blind. The technical obstacle for using a text to speech software package is getting the book in a format that the software can read. While the ADA can require an employer to provide a sound card so that use of text to speech software is possible, eBook’s right management allows the author to disable access to the feature. Any further attempt by the employer to further assist the employee for use of the eBook via text to speech is criminalized.
A publisher of an eBook usually has little to loose by disabling the text to speech software. Most points of sale for eBooks do not provide information on what eBooks disable the feature. Instead, the advantage is provided that any future audio version of the book will not have to compete with the text to speech option. Even if the author then does choose to provide a CD version of the book, it does not provide the same degree of control over the reader voice (speed, pitch, inflection, etc).
Lastly, DMCA also allows the creator of the eBook reader software to restrict access to text to speech functionality to the built-in feature. While a third party might provide improved features (such as an improved text to speech voice), the author of the eBook software can lock out the third party from accessing the material. The DMCA creates an enviroment where it is to the software author’s advantage to lock out third party plug-ins as to avoid having to compete with it’s features. The software author then can require the customer to purchase an upgrade to get features that otherwise could have been provided by a third party for a version of the software the customer already owns.
An excellent point!
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.