The Portable Music Player Format Wars

Looks like we’re on the edge of a format war in the portable digital player space. In spite of the CES announcement from HP about licensing the iPod and speculation about its functionality, Wired News reports that the HP iPods won’t do WMA: Hewlett-Packard: No WMA for IPod

The Slashdot discussion, No WMA for HP iPod, is essentially all about format wars, familiar to anyone who’s considered buying a device lately and described tangentially in Lots of Players, Little Harmony.

Setting and exploiting standards seems to have been the nature of a lot of digital business models, and there’s no reason to expect that Apple and Microsoft are going to eschew a tried and true plan of attack. The real question is whether there’s a new entrant prepared to embrace a different model, and whether the market will reward the entrant accordingly — or will the entrant instead be nibbled to death by the ducks in the IP battles that would accompany the release of such a flexible (and useful) player?

Two For the Price of Two

Rights issue dogs CD protection — "Yes, I know you’re doing this to protect my IP, but you still are making two copies." It’s times like these that tell you who your real friends are!

A dispute over royalty rights on copy-protected CDs and other types of music discs is helping to stall the release of some new music technology, and could result in record labels owing tens of millions of dollars in back payments to music publishers.

At issue are “double session” CDs that include two versions of each song on a disc, formatted for playback on different kinds of devices. The most widely distributed type are copy-protected discs that prevent CD tracks from being copied to a hard drive, but that also include a digital version of the songs, often in Microsoft’s Windows Media format, that can be transferred to a computer or portable digital music player.

Music publishers and songwriters, who are entitled to payments of a few cents for every copy of a song sold, contend that since these double-format discs hold two copies of songs, they should be paid for both copies. They’ve been negotiating with record labels for months, but already hundreds of millions of discs have been released around the world, raising the possibility of huge back payments.

Even more striking is this portion of the writeup, citing something that I bet the RIAA didn’t really expect would get stated quite so baldly:

In most of the double-session discs being released, the extra formats included on the disc are aimed at making it easier for consumers to use their music on multiple devices as digital audio technologies proliferate.

The copy-protection technology produced by Macrovision and others blocks people from ripping MP3s, a format that consumers can duplicate at will. The second session includes digital files that can be used on a computer or an MP3 player, with certain restrictions aimed at preventing tracks from being distributed endlessly on file-swapping networks such as Kazaa. While these discs remain controversial among American consumers, slowing release of the technology in the United States, the technology is far more widely accepted in Europe and Japan.

Similarly, on some Super Audio Compact Discs (SACD), a high-fidelity format sold in many record stores, ordinary CD-quality audio versions of songs are also included, so that the discs can be played in car stereos and other older players. Even hybrid DVDs are hitting markets, with such features as the entire soundtrack for a movie included along with the film itself.

This may be more convenient for consumers, but it worries publishers and songwriters. Their livelihoods have relied on people buying versions of their songs in multiple formats–once on a DVD, and again on the soundtrack album, for example. They’re worried that their income will be substantially reduced if people are able to buy a disc that combines multiple formats. [emphasis added]

Slashdot’s gleeful writeup: Record Labels May Have to Pay Double Royalties

Jack Balkin on Digital Speech

[via Legal Theory Blog] Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society — the abstract is great, but see also the conclusing paragraph (below)


This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning – making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual’s ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values – interactivity, mass participation, and the ability to modify and transform culture – must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will increasingly fall to legislatures, administrative agencies, and technologists.

The concluding paragraph (and what I would argue we’re all working on here):

The digital revolution is a revolution, and like all revolutions, it is a time of confusion, a time of transition, and a time of opportunity for reshaping the structures of the economy and the sources of power. As a time of opportunity it is also a time of opportunism, a period in which the meaning of liberty of expression will be determined for good or for ill, just as the meaning of economic liberty was determined in an earlier age. Make no mistake: The digital age will change the meaning of freedom of expression. The only question is how it will change. If we do not reconsider the basis of liberty in this age, if we do not possess the vigilance of the guide as well as the guard, we shall end up like every person who travels through the wilderness without a compass, or through the forest without the forester. We shall end up lost. [emphasis added]