Keeping politicians' hands off the Net & everything else related to technology
James Bessen writes to point out next month’s conference in Boston titled “Software Patents: A Time for Change?” It looks like a great program with a lot of interesting speakers, including co-blogger Solveig Singleton. If you’re in the Boston area or otherwise interested in software patents, you should sign up. If I had more vacation days and money I’d go in a heartbeat.
Fortune has a fascinating article about “DVD Jon” Johansen’s latest project, a company that licensing technology to make third-party devices work with Apple’s FairPlay DRM. His software will allow third-party music stores to transfer their music to the iPod, and it will allow third-party device makers to play iTunes songs. Fortune asks the obvious question:
There’s an obvious question: Isn’t opening the iTunes system illegal? There is no obvious answer. FairPlay is not patented, most likely because the encryption algorithms it uses are in the public domain. (Apple would not comment for this story.) And Johansen says he is abiding by the letter of the law – if not, perhaps, its spirit. To let other sites sell music that plays on the iPod, his program will “wrap” songs with code that functions much like FairPlay. “So we’ll actually add copy protection,” he says, whereas the DMCA prohibits removing it. Helping other devices play iTunes songs could be harder to justify legally, but he cites the DMCA clause that permits users, in some circumstances, to reverse-engineer programs to ensure “interoperability.”
It seems to me that this is backwards. Johansen’s actions clearly are within the spirit of the law. There’s a reverse-engineerig clause in there for a reason. It’s extremely unlikely that creating platform monopolies was what Congress had in mind when it passed the DMCA.
Today marks the 5-year anniversary of the iPod. Matt Yglesias has some spot-on comments about the DMCA’s role in Apple’s success.
In particular, if you went out and bought an iPod, and then you wanted to legally acquire some music for it, the only place you could turn was the iTunes Music Store. And, once you’d built up a library of songs purchased through the iTunes Music Store, the only place you can play the songs is . . . on an iPod. So if when your iPod’s battery dies, you think to yourself “fuck this, I’m going to buy a different company’s player,” well, doing that will require you to re-buy all your music. So you buy another iPod, and you buy more music and you’re further and further locked-in. Even better, the Digital Millennium Copyright Act makes it illegal for a rival firm to construct a player capable of playing legally owned iTunes Music Store files. This is a great deal for Apple who, in virtue of being first, gets to entrench its advantage deeper-and-deeper but it’s not very smart legislation.
Obviously, I agree with his sentiment concerning lock-in effects. However, I think it’s important to keep in mind that there’s little evidence that the iTunes Store drove the iPod’s success, rather than the other way around. The iPod was unveiled in October 2001, while the iTunes Store didn’t launch until April 2003. Clearly, the hundreds of thousands of people who bought the first two generations of iPods weren’t doing so in order to play music purchased on the iTunes store.
And to this day, most of the music on peoples’ iPods is not from the iTunes store. Some of it is pirated, of course, but a lot of it (including almost all of mine) comes from peoples’ existing music collections on CDs.
Courtesy of reader Steve R, the Washington Post has a pretty good write-up of the mess that DRM is making of the digital music market:
Ah, progress. It used to be that you just went out and bought a compact disc and you didn’t have to worry about whether it would work on your player. These days, in the age of digital distribution, we don’t need to buy CDs anymore. What we have, instead, are a bunch of online music services, offering songs for sale or rent via quick download to a bunch of digital music players that might or might not actually play them. Take music fan Chauncey Canfield: He has a whopping 180-gigabyte music collection, an iPod and a smartphone he can fill with songs from his subscription Yahoo Music account. But he can’t put Yahoo Music songs on his iPod, and he can’t put songs purchased from the iTunes Music Store on his phone. Canfield knows that iTunes is the most popular online music store, but he avoids it because of the playback restrictions. Instead, he prefers to shop at eMusic, which sells its tracks in the MP3 format, an open technology that works on every music player on the market. Even the iPod. “The fact that they don’t have [anti-piracy controls] on them is absolutely a major plus,” he said. “I don’t have to segregate my music into various ghettos.”
The rest of the article is equally good. The only thing that’s frustrating is that he never mentions the DMCA. DRM is not a fact of nature that magically prevents consumers from converting their music between different formats. The reason that incompatible DRM formats are such a pain in the butt is that writing a utility to transfer music from one format to another is effectively illegal. If the DMCA weren’t on the books, someone could write a slick little utility that would take the music in your iTunes folder and convert it to Plays for Sure or Zune formats. But because the DMCA prohibits circumvention regardless of the reason, that’s illegal, and so we’re stuck segregating our music into various ghettos.
I’m reading Avi Rubin’s Brave New Ballot. I’ll have more to say about it when I’ve finished reading it (it’s excellent so far) but I wanted to comment on a passage that caught my eye. On pp. 185-189 Rubin discusses a proposal by Brit Williams to secure voting machines by comparing a hash of each voting machine’s software to a pre-computed hash in a centralized repository:
In the library that Williams envisioned, a cryptographic hash, also called a fingerprint, would be computed on the binary after the software is compiled. The hash would be stored in a secure location, and whenever a machine is rolled out, its software would be rehashed and the hash compared to a stored value, just as fingerprints might be compared. If they match, the software is authentic. If they don’t match, officials are alerted to a problem and can deal with it through predetermined procedures.
Rubin identifies several problems with this idea. He notes that software binaries can change frequently for legitimate reasons, so the library would have to be constantly updated with additional hash values. In addition, he notes that this does nothing to counter threats from insiders; if somebody is in a position to introduce malicious code into machines, he might also be able to introduce a malicious hash value into the library.
Mike Linksvayer points out the release of Songbird 0.2, an early preview of an open source iTunes competitor based on the Mozilla code base. And he predicts that Songbird (or a product like it) will do to Apple what the Web originally did to AOL and other proprietary online services in the 1990s:
Someone mentioned to me today that if the web were like iTunes you could only connect to msn.com, which reminded me of speculation that earlier aggressive intellectual protectionism online could have led to a proprietary cul de sac in online services. In that post I said without explanation that aggressive protectionism is being allowed to kill or stunt online music. People have been noting for awhile that protectionism enabled iTunes’ dominance, or as Techdirt put it “How The Recording Industry’s Obsession On DRM Made Apple So Powerful.”
I’ve downloaded Songbird and played with it a bit, and it is pretty impressive in some ways. However, I don’t think Apple will have any reason to sweat until they implement iPod integration. Songbird has a “devices” menu, so I assume that’s coming. It’s also a little strange that they don’t offer MP3 ripping functionality, given that some of its developers previously worked on WinAmp.
But what they’ve implemented so far is quite impressive. I hope eMusic is talking to them about tighter eMusic/Songbird integration, as this would give eMusic customers a much cleaner way to buy music than the current clunky “download manager.” And of course Songbird would benefit from having a music store as tightly integrated as iTunes is with the iTunes Store.
It appears that some of this functionality is available via extensions, but if they want to put a serious dent in Apple’s market share, they’re going to have to bundle the most important extensions seamlessly with the main product.
Ars reports on the NBCU 2.0 initiative, NBC Universal’s bid to cut costs and diversify into more cutting-edge media formats in a bid to keep up with the pace of change:
NBC plans to slash costs on prime-time programming by no longer producing expensive comedies and dramas for the first hour of prime time (8pm in the Eastern and Pacific time zones, 7pm Central and Mountain). Instead, expect to see more of the reality TV we’ve become accustomed to. Think more “Deal or No Deal” and less “Friday Night Lights.” NBC will also consolidate the news bureaus for its three networks (NBC, CNBC, and MSNBC) and network-owned affiliates on the east and west coasts. Workforce reductions go hand-in-hand with consolidation, with the network expecting to cut 700 jobs–about 5 percent of its workforce–over the next two years. Between layoffs, news consolidation, and other cost-cutting measures, the network hopes to chop $750 million in costs by the end of 2008.
This is a classic example of the long tail thesis in action: NBC’s prime-time programming are the “blockbusters” of the TV world, and they’re bleeding viewers as more and more alternative programming is created and distributed without NBC’s overhead.
I’m impressed by the decisiveness of NBC’s management. As NBC Universal television group CEO Jeff Zucker puts it: “we have to recognize that the changes of the next five years will dwarf the changes of the last fifty.” These guys know full well that their core business is going to fall off a cliff once Internet-based video distribution matures, and they appear to be doing their best to assure that’s not the only card in their hands when it happens.
I expect we’ll see a lot more stories like this in the coming years. Newspapers, record labels, and Hollywood studios are all facing a future with hundreds of nimble competitors with fixed costs an order of magnitude smaller than theirs. I think companies like NBC that recognize the threat now and act decisively to cut costs and move into new markets will find themselves much better positioned a decade hence than the companies that try to shoehorn their 20th century business models into 21st century markets.
Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week, I consider the patent dispute between Qualcomm and Broadcom over this patent. Here’s the abstract:
Mike Masnick points out that the British are now considering extending copyright to 95 years, as the United States did in 1998. I’ll heartily concur with Mike’s analysis:
On archiving, he brushes off the concern of the library by suggesting that the copyright owners can do a fine job archiving everything on their own, and that there’s really no need for librarians to worry about such petty little things. “The British Library isn’t the only archivist in town. The idea that if it weren’t for the British Library no archiving would be going on is false.” However, if it’s a really big concern, he might, possibly be willing to carve out an exception. Of course, he’s missing the fact that these firms are archiving content only based on commercial viability, leaving plenty of other works out in the cold. A large part of the debate is over how to archive “orphan works” that have no direct commercial value, but cannot be copied due to copyright restrictions. Because commercial entities are only interested in content that has commercial value, they’re not archiving the rest of it. This is just one of the reasons why orphan works laws make sense. The bigger issue, though, is copyright extension, and again, the guy from BPI is really far off-base. The purpose of copyright is to put in place the incentives for people to create creative works that they might not have done otherwise. Once that work is created, it’s hard to see any reason to increase the incentive. After all, the work has already been created. However, here, the BPI representative totally twists the purpose of copyrights around: “Copyrights are the asset bases of British record companies. If we enhance the asset base, we can go on to make other, more exciting entrepreneurial investment decisions. If we increase the length of the term, we increase the value of these assets.” …That’s not the purpose of copyright at all.
Indeed it’s not. This is a good example of Ed Felten’s Pizzaright Principle. More fundamentally, it’s an example of Frederic Bastiat’s broken window fallacy in action. Obviously, if you change the law to enhance the profitability of a particular industry, that industry may invest the increased profits in beneficial ways. But that money isn’t created by the government–it’s taken out of the pockets of consumers who would otherwise have spent the money on other products like iPods or tennis shoes. Apple or Nike are just as likely to invest their increased profits in beneficial ways.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
