Related to my recent post about reverse engineering and innovation, a friend points me to another dispute over one company reverse-engineering another company’s product without permission:
In a statement, Green Hills confirmed that Express Logic has demanded arbitration of its ThreadX reseller agreement with Green Hills, and has accused Green Hills of illegally copying the ThreadX API…
The statement argues that “it is well established that copyright does not protect a software product’s method of operation, which includes its API. It is legal to copy the publicly available API of a product to implement a competing product with the same or similar API.”
Green Hills makes tools for the development of embedded software, such as the computer chip that monitors the fuel injection in your car. Green Hills had licensed some software from Express Logic, but then subsequently decided to build their own version of the software instead. The API is the application programmers interface–it defines the interface between Green Hills’s operating system and the programs its customers will build on top of it. (this is analogous to a developer creating a Windows application: he uses APIs published by Mirosoft to make sure his software will work correctly)
This case is complicated by the fact that Green Hills was previously a licensee of Express Logic’s products, so there might be some contract terms that are relevant. But at least on the copyright aspects of the case, Green Hills seems to be on firm ground. Courts have repeatedly held that a software copyright doesn’t include the right to control who may interoperate with that software. Assuming Green Hills can demonstrate they didn’t use any of Express Logic’s actual code in developing its product, they should lose the copyright case.
And it seems to me that that’s a good thing. Green Hills has customers who rely on the API when they’re building their own software. If Green Hills were forced to change its API, that would, in turn, force Green Hills’s customers to re-write all of their software. That would be extremely disruptive, and in practice, the more likely outcome would be that Green Hills would simply be forced to continue working with Express Logic indefinitely. If Express Logic wasn’t doing a very good job of keeping its software up to date, there’s little Green Hills could do about it.
As with the examples I gave in my previous post, reverse engineering acts a valuable safety valve for cases when a company’s proprietary technologies cease to serve customers’ needs. It’s quite common in the computer industry, and I think it expanding copyright law via the DMCA to restrict such reverse engineering was a mistake. And I think it would be an even bigger mistake to extend copyright law further to allow platform creators to lock out competitors.
Ed Felten is back from vacation and has a great new post on the XBox Linux project:
Microsoft had two reasons for locking down the hardware. It wanted to stop people from running Xbox games that had been illegally copied. And it wanted to stop people from running other (noninfringing) software such as Linux. The latter goal is the more interesting one. Microsoft did this because it wanted to sell the Xbox hardware at a loss, and make up the difference by charging a premium for games. To do this, it needed to stop unauthorized software–otherwise people might buy the Xbox, install another operating system on it, and never buy an Xbox game.
A group of clever engineers, calling themselves the Xbox Linux Project, set out to discover how Microsoft had tried to lock down the Xbox hardware, and how they could overcome Microsoft’s lockdown and install Linux. We would expect them to succeed–in computer security, physical control of a device almost always can be leveraged to control the device’s behavior–and indeed they did.
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In my my recent post on the DMCA, I cited the creation of a Linux DVD player as an example of innovation. Randy Picker responds:
No, certainly the DVD example isn’t evidence of stifling innovation. The DVD example is a choice, nothing more than that. I have little doubt that the DVD format creators could have made it possible to have DVDs played in a Linux environment.
They chose not to do so. We can decide whether that choice should be respected, but we shouldn’t say that it is innovative when someone unilaterally decides not to respect that choice and tries to figure out a way around that choice. That is like saying that it is innovative to drive 70 in a 55 mph zone. Anyone can do it; the trick isn’t in doing it; it is in deciding whether we want to respect the limit in the first place.
Strictly speaking, he’s right. Reverse engineering the CSS encryption scheme, by itself, isn’t an especially innovative activity. However, what I think Prof. Picker is missing is how important such reverse engineering can be as a pre-condition for subsequent innovation. To illustrate the point, I’d like to offer three examples of companies or open source projects that have forcibly opened a company’s closed architecture, and trace how these have enabled subsequent innovation:
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I want to put in a belated plug for Greg Lastowka and Dan Hunter’s Cato Policy Analysis, “Amateur-to-Amateur: The Rise of a New Creative Culture.” They do a fantastic job of describing how the rise of the Internet has enabled the emergence of a new model for cultural production.
They walk the reader through the “supply chain” of the culture industry (creating new works, selecting works for publication, producing copies of the work, distributing them to consumers, and promoting them) and shows how technolog is radically decentralizing each of them. Fifty years ago, only wealthy people and commercial movie studios could afford the technology needed to create professional-quality videos. Today, you can do the same thing with a few thousand dollars of equipment, and the cost of that equipment drops every year. Twenty years ago, if you wanted to become a nationally-known pundit, you needed to spend decades working your way up through the ranks of a large, hierarchical media organization like the New York Times. Now, as Julian explains, you just start a blog, and the size of your audience is limited only by the quality of your work. A decade ago, creating an encyclopedia required hiring dozens of full-time employees to solicit and edit articles. Today, a far more comprehensive encyclopedia is being produced by volunteers, and it’s available for free on the Internet.
Some people dismiss these developments as anomolies, or at least as isolated incidents. Blogs, Wikipedia, open source software, and the rest are just manifestations of people having too much free time on their hands, the theory goes–the real work is still done in hierarchical, commercial enterprises. What Lastowka and Hunter do a good job of demonstrating, I think, is that these phenomena deserve to be regarded as a new form of production on par with the 20th century’s industrial production model. It’s in its early stages yet, so naturally it still accounts for only a minority of cultural products, but that’s not surprising, given that industrial production methods had a 100-year head start.
I do have a criticism of the paper, however.
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I received an email from Patrick Ross charging that yesterday’s post about the broken window fallacy misrepresented his views:
Your “broken window” argument falls apart when you look at my full post. I was criticizing Benkler for using traditional dollars-exchange-hands analysis when it comes to the size of the content industry (with flawed numbers, as I pointed out) yet also saying that it doesn’t matter what dollars-exchange-hands amounts are when discussing Wikipedia and SETI@Home. In other words, I pointed out he was selectively choosing metrics based on what backed any given argument. If anyone ignored Bastiat it was Benkler.
I’ll quote the relevant portion of his post and let you judge for yourself:
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Patrick Ross critiques a recent presentation by Yochai Benkler:
To begin with, he praised open source software (not surprisingly) and also the collaborative nature of Wikipedia. He noted that Nature had found it to be comparable to Britannica (no, he didn’t mention the stinging rebuttal later published by Britannica of that article.) He also praised the computational power of SETI@Home, which exceeds the fastest supercomputer by tapping unused computing capacity of volunteers. SETI@Home and Wikipedia don’t contribute in any meaningful way to the US economy, but he ranked them in social importance far higher than any commercial encyclopedia or proprietary supercomputer.
How do we know that Wikipedia and SETI@Home don’t contribute in any meaningful way to the U.S. economy? Apparently, because no money changed hands. By the same logic, the sun and the air don’t contribute in any meaningful way to the U.S. economy.
As PLN pointed out back in March, this is a prime specimen of the broken window fallacy (which was originally described by Bastiat) in action. The resources consumed during the creation of the Encyclop¦dia Britannica are a loss to the rest of society. If society can get an equivalent-quality encyclop¦dia for free (that is, by a process in which each participant finds participation rewarding enough to do so without charge), that benefits all of us, because the resources that would have been spent hiring people to write the Britannica can be deployed for other ends.
Incidentally, Britannica does not appear to have an entry on the broken window fallacy, and the Wikipedia entry on Bastiat is ten times as long as the corresponding Britannica entry. Wikipedia may not be contributing anything to “the economy,” but it’s certainly doing a good job of making a lot of information available to a large number of people. That certainly seems valuable to me!
Last week, I criticized Nick Carr’s silly claim that Wikipedia was dead. Or, at least, dead as “the poster child for the brave new world of democratic, citizen media, where quality naturally emerges from the myriad contributions of a crowd.”
So today President Bush nominated a new Treasury secretary, who happened to be Goldman Sach’s CEO. Intrigued by the seemingly endless stream of Goldman Sachs alums who go on to careers in the public sector, I thought I’d check out Wikipedia to learn more about the company.
It crossed my mind that maybe I should do my part to keep Wikipedia updated by adding a mention of his nomination. Then I noticed that someone beat me to it. Intrigued, I clicked on the version history for the article. It seems that between 10:07 and 10:14 Eastern, someone at IP address 140.254.225.82 made seven changes to the article to incorporate news of the treasury nomination.
Now, the AP transcript of the event got posted at 9:55. I assume that means that Bush’s nomination speech probably started at 9 and concluded around 9:15. Which means that the article was out of date for less than an hour.
You can’t tell me there’s nothing new going on here.
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Nick Carr pronounces the death of Wikipedia. Well, that’s what he suggests in his attention-grabbing headline. What he’s really talking about is the alleged end of Wikipedia as an open encyclopedia:
There was a time when, indeed, pretty much anyone could edit pretty much anything on Wikipedia. But, as eWeek’s Steven Vaughan-Nichols recently observed, “Wikipedia hasn’t been a real ‘wiki’ where anyone can write and edit for quite a while now.” A few months ago, in the wake of controversies about the quality and reliability of the free encyclopedia’s content, the Wikipedian powers-that-be – its “administrators” – abandoned the work’s founding ideal of being the “ULTIMATE ‘open’ format” and tightened the restrictions on editing. In addition to banning some contributors from the site, the administrators adopted an “official policy” of what they called, in good Orwellian fashion, “semi-protection” to prevent “vandals” (also known as people) from messing with their open encyclopedia.
I think this misunderstands what “open” means. Open source projects sometimes get similar criticism for the fact that they’re often organized as tightly-knit groups of core developers led by a “benevolent dictator” who has ultimate control of the code base. Critics claim that this proves that the projects aren’t “really” open and democratic.
But this misunderstands the point of “openness” in this context: it isn’t about the organizational philosophy of a project, it’s about what constraints are placed on the use of the finished product. Or specifically, about the lack of such constraints. What distinguished Wikipedia from Britanica, or MySQL from Oracle, isn’t that one was created “democratically.” Rather, it’s that anyone is free to use, copy, and modify Wikipedia or MySQL for their own use, while the use of Britanica and Oracle are controlled by for-profit companies.
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Last week Ed Felten had the following summary of Larry Lessig’s comments at the Princeton-Microsoft Intellectual Property conference:
He starts by saying that most of his problems are caused by his allies, but his opponents are nicer and more predictable in some ways. Why? (1) Need to unite technologists and lawyers. (2) Need to unite libertarians and liberals. Regarding tech and law, the main conflict is about what constitutes success. He says technologists want 99.99% success, lawyers are happy with 60%. (I don’t think this is quite right.)
I think Lessig is misunderstanding the lawyer-technologist split. It’s not primarily a matter of ideological purity. Rather, I think there are two things going on. First, technologists are less likely to be fooled by “compromises” like Sun’s DReaM that are just the same bad wine poured into new bottles. They understand that because of the way DRM works, most proposals for kinder, gentler DRM won’t turn out to be so kind or gentle in practice. DRM is bad because it requires a central decision maker, be it Apple, Microsoft, Sun, or the DVD CCA, to oversee the design of all devices used with the platform. That’s going to produce lousy technology regardless of the details.
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Ed Felten reports on his keynote at the SANE conference in the Netherlands:
The talk was a quick overview of what I used to think of as the copyfight, but I now think of as the technologyfight. The first part of the talk set the stage, using two technologies as illustrations: the VCR, and Sony-BMG’s recent copy-protected CDs. I then switched gears and talked about the political/regulatory side of the techfight.
In the last part of the talk, I analogized the techfight to the Cold War. I did this with some trepidation, as I didn’t want to imply that the techfight is just like the Cold War or that it is as important as the Cold War was. But I think that the Cold War analogy is useful in thinking about the techfight.
The analogy works best in suggesting a strategy for those on the openness/technology/innovation/end-to-end side of the techfight. In the talk, I used the Cold War analogy to suggest a three-part strategy.
He offers a three-prong strategy in the techfight. Prong 1 is containment: patiently but firmly resisting content industry efforts to gain ever more control over our technological devices. Prong 2 is explanation: Make sure that the public clearly understand what’s at stake. This is, I think, the most difficult task. I remember wandering around the University of Minnesota campus in 2001 with flyers explaining why it was a bad thing that Dmitry Sklyarov was in jail. I got mostly blank looks. Consumers benefit from open technologies, but most of them don’t really understand how they work or why they’re important. I think this job is gettig a little bit easier as DRM-related problems become more widespread, but the issue is still off the radar of virtually all voters.
I think his third prong is the most important, creation:
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