Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certaincompanies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.
Eric Bangeman at Ars is reporting that music giant EMI is seriously considering allowing its music to be sold DRM-free:
Reports are surfacing that EMI is in negotiations with some of the leading music stores to offer a substantial portion of its music catalog without DRM, with an announcement due as early as today. Under one scenario, music stores like Napster, Real Rhapsody, and others would fork over sizable advance payments in exchange for the right to sell music as unprotected MP3s. Another industry source reports that EMI was also discussing the possibility of selling MP3s on MySpace using SnoCap.
All of the parties reportedly involved are remaining close-mouthed on whatever negotiations may be taking place, but the scuttlebutt is that the negotiations have been going on for months. Needless to say, any decision by one of the big four labels to make a sizable chunk of its music available for download sans DRM would be ground-breaking.
I’ve got a new article up on the Internet Stopping Adults Facilitating the Exploitation of Today’s Youth Act. (Internet SAFETY. Get it?) This is part of the GOP’s “law and order” agenda, which they think will play well with voters in 2008.
The legislation would require mandatory labeling of pornographic websites and increase the already-draconian penalties for various offenses related to child pornography. But here’s the really scary part:
The bill requires that e-mail and Internet service providers retain records about their customers’ online activities for use in law enforcement activities. Failure to comply with regulations issued by the attorney general will get you a year in the slammer.
The legislation gives the executive branch essentially unlimited discretion to determine what data must be retained, and for how long. Indeed, the bill appears to open the door to requirements that ISPs retain records of their customers’ activities indefinitely. That raises serious privacy concerns, because once the records are available, there will inevitably be pressure to increase the number of people who have access to them. For example, the movie and recording industries would undoubtedly love to get their hands on the traffic records of those suspected of illicit file trading. Indeed, one member of Congress, Rep. Edward Markey (D-MA) was so concerned about the dangers of mandatory data retention last year that he proposed legislation requiring ISPs to delete personal data within “a reasonable period of time.”
Such regulations could be especially burdensome to small organizations and individuals. The law appears to apply to anyone running a web or e-mail server on the public Internet, even an individual running a server in his basement. The law is too open-ended to predict how burdensome the resulting regulations would be, but it would certainly upset many Ars readers if they were required to hire a lawyer to verify that their log rotation policies wouldn’t land them in jail.
As far as I can tell, the bill gives the AG totally unlimited discretion in dictating what information ISPs would have to retain. So if he wants them to retain records of every website their customers visit, and every email they send and receive, and keep them forever, he can issue regulations requiring that. I’m not sure how common it is for Congress to give the executive branch this kind of unbridled discretion, but I kind of thought the whole purpose of the separation of powers was to ensure that the people who write the laws are not also the ones who will be interpreting them.
In response to my post on network prioritization on Tuesday, Christopher Anderson left a thoughtful comment that represents a common, but in my opinion mistaken, perspective on the network discrimination question:
It’s great for a researcher building a next generation network to simply recommend adding capacity. This has been the LAN model for a long time in private internal networks and LANs with Ethernet have grown in orders of magnitude. This is how Ethernet beat out ATM in the LAN 10 years ago or so. Now that those very same LANs are deploying VOIP they wish for some ATM features such as proritization. And now they add that prioritization (‘e’ tagging for example) to deploy VOIP more often than they upgrade the whole thing to 10G.
There are however business concerns in the real world. Business concerns such as resource scarcity and profit. In a ISP business model, users are charged for service. If usage goes up, but subscriptions do not (e.g. average user consumes more bandwidth) there is financial motivation to prioritize or shape the network, not to add capacity and sacrifice profit with higher outlays of capital, as long as the ‘quality’ or ‘satisfaction’ as observed by the consumer does not suffer.
Anderson is presenting a dichotomy between what we might call the frugal option of using prioritization schemes to make more efficient use of the bandwidth we’ve got and the profligate option of simply building more capacity when we run out of the bandwidth we’ve got. The former is supposed to be the cheap, hard-headed, capitalist way of doing things, while the latter is the sort of thing that works fine in the lab, but is too wasteful to work in the real world.
Ed Felten has a great analysis of Steve Jobs’ DRM essay:
[Jobs’s] real scorn is for outcome (2), where Apple licenses its DRM technology to other companies. It’s easy to see why this is the worst outcome for Apple–the company loses its ability to lock in customers, but everybody still has to put up with the cost and hassle of using DRM.
What the letter really does, in typical Jobsian fashion, is frame the debate. It does this in two respects. First, it sets up a choice between two alternatives: stay the course, or get rid of DRM entirely. Second, it points the finger at the major record companies as the ones making the choice.
This is both a clever PR move and a proactive defense against European antitrust scrutiny. Mandatory licensing is a typical antitrust remedy in situations like this, so Apple wants to take licensing off the table as an option. Most of all, Apple wants to deflect the blame for the current situation onto the record companies. Steve Jobs is a genius at this sort of thing, and it looks like he will succeed again.
Meanwhile, over at the Wall Street Journal is a great example of the point Felten made last week about the way the labels have framed the DRM debate. The Journal‘s coverage of Jobs’s essay has the sub-headline “Apple Chief Now Favors Making Downloads Of Songs Freely Tradable.” If you didn’t read the article carefully, you might get the impression that he’s advocating overturning the Grokster decision. But no, Jobs is simply saying that we should abandon DRM, an anti-copying technology that doesn’t actually do very much to prevent copying.
Turner Broadcasting is paying Boston $2 million to compensate them for the costs of Boston having idiotic public officials. Although of course they have to emphasize publicly how sorry they are for the incidient, I wouldn’t be surprised if the company is privately thrilled with the outcome. Adult Swim’s target audience is precisely the sort of people who will be amused rather than appalled by the incident. And the national news coverage they received brought the show to the attention of millions of people (including me) who otherwise never would have heard of the show. It will be very interesting to see if they get a ratings spike as a result.
And via Radley, here’s a video of the perpetrators making the media look silly:
The news story above says their case hasn’t been dismissed yet, but I expect (hope?) that will happen soon.
Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. There haven’t been any major patent controversies this week, so our patent of the week comes from last November. VoiceSignal Technologies has sued Nuance Communications over its voice patent. I’ll discuss the patent below the fold.
You should really read Jobs’ essay in its entirety, but here’s one other passage from it that’s worth highlighting (this one immediately precedes the one I quote below):
The second alternative is for Apple to license its FairPlay DRM technology to current and future competitors with the goal of achieving interoperability between different company’s players and music stores. On the surface, this seems like a good idea since it might offer customers increased choice now and in the future. And Apple might benefit by charging a small licensing fee for its FairPlay DRM. However, when we look a bit deeper, problems begin to emerge. The most serious problem is that licensing a DRM involves disclosing some of its secrets to many people in many companies, and history tells us that inevitably these secrets will leak. The Internet has made such leaks far more damaging, since a single leak can be spread worldwide in less than a minute. Such leaks can rapidly result in software programs available as free downloads on the Internet which will disable the DRM protection so that formerly protected songs can be played on unauthorized players.
An equally serious problem is how to quickly repair the damage caused by such a leak. A successful repair will likely involve enhancing the music store software, the music jukebox software, and the software in the players with new secrets, then transferring this updated software into the tens (or hundreds) of millions of Macs, Windows PCs and players already in use. This must all be done quickly and in a very coordinated way. Such an undertaking is very difficult when just one company controls all of the pieces. It is near impossible if multiple companies control separate pieces of the puzzle, and all of them must quickly act in concert to repair the damage from a leak.
Apple has concluded that if it licenses FairPlay to others, it can no longer guarantee to protect the music it licenses from the big four music companies. Perhaps this same conclusion contributed to Microsoft’s recent decision to switch their emphasis from an “open” model of licensing their DRM to others to a “closed” model of offering a proprietary music store, proprietary jukebox software and proprietary players.
This echoes a point I’ve made before: there is no such thing as an open DRM standard. By definition, an open standard is available for anyone to look at. And by its nature, DRM requires that at least some details of a DRM standard be secret, which means that it cannot be open. “Open DRM” is simply a contradiction in terms.
Steve Jobs just posted an essay on DRM on Apple’s website. I started reading it expecting to hate it, until I got to this:
The third alternative is to abolish DRMs entirely. Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players. This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat. If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.
Why would the big four music companies agree to let Apple and others distribute their music without using DRM systems to protect it? The simplest answer is because DRMs haven’t worked, and may never work, to halt music piracy. Though the big four music companies require that all their music sold online be protected with DRMs, these same music companies continue to sell billions of CDs a year which contain completely unprotected music. That’s right! No DRM system was ever developed for the CD, so all the music distributed on CDs can be easily uploaded to the Internet, then (illegally) downloaded and played on any computer or player.
One of the most interesting things in Cory Doctorow’s article was a link to this network neutrality write-up from last year in Salon. I thought this was fascinating:
There is fractious division among network engineers on whether prioritizing certain time-sensitive traffic would actually improve network performance. Introducing intelligence into the Internet also introduces complexity, and that can reduce how well the network works. Indeed, one of the main reasons scientists first espoused the end-to-end principle is to make networks efficient; it seemed obvious that analyzing each packet that passes over the Internet would add some computational demands to the system.
Gary Bachula, vice president for external affairs of Internet2, a nonprofit project by universities and corporations to build an extremely fast and large network, argues that managing online traffic just doesn’t work very well. At the February Senate hearing, he testified that when Internet2 began setting up its large network, called Abilene, “our engineers started with the assumption that we should find technical ways of prioritizing certain kinds of bits, such as streaming video, or video conferencing, in order to assure that they arrive without delay. As it developed, though, all of our research and practical experience supported the conclusion that it was far more cost effective to simply provide more bandwidth. With enough bandwidth in the network, there is no congestion and video bits do not need preferential treatment.”
I missed it when it came out last summer but Cory Doctorow has a good article on network neutrality. Good, but a little strange. He makes a lot of good points, but then he ends up at a conclusion that doesn’t seem to follow from the points he made earlier in the article. On the one hand, he rightly points out that the end-to-end principle has been crucial to the success of the Internet to date, and that there’s reason to worry about telcos screwing around with it. On the other hand, he gives some great examples of the challenges regulators are likely to face:
The rules are going to have to do three incredibly tricky things:
1. Define network neutrality. This is harder than it sounds. If a Bell lets Akamai put one of its mirror servers in a central office, then Akamai’s customers can get a better quality of service to the Bell’s customers than those using an Akamai competitor. This is arguably a violation of net neutrality, but how do you solve it? It’s probably not practical to require the Bells to let all comers put local caches on their premises; there’s only so much rack space, after all.
Another tricky case: the University that provides a DSL service to its near-to-campus housing and configures its network to deliver guaranteed throughput to a courseware archive. It gets even stickier if the DSL and/or the courseware archive are supplied by commercial third parties. Poorly written net neutrality regulations could prevent universities from providing those services, which should be allowed.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.