June 14, 2004

A Future Forgone? [9:25 pm]

Today’s “All Things Considered” included an interview with and performance by the Youngblood Brass Band. From their site one can download several cuts from their albums; all of which convinced me that I really wanted to get a couple of their CDs — and the RIAA Radar showed me that I could safely do so <G>

Nothing like just having things work. Sad to think that this opportunity seems to be slipping away in a fog of deceptive rhetoric and legislative denial.

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A Perspective on the WIPO Broadcast Treaty Negotiations [8:17 pm]

A law unto themselves [via Copyfight; summary info on the negotiations]

It is a control-freak’s charter. This is predictable, because an obsession with control has worked its way into the industry’s DNA. Broadcasting is a few-to-many medium: a small number of content-providers decide what is to be offered, produce the content, and push it to passive consumers. Central to the broadcasting ethos is a desire to control the viewer, to restrict choice to the menus chosen by the industry - like Skinnerian pigeons pecking at coloured levers to obtain food.

The problem is that emerging digital technologies undermine control-freakery. Digital TV recorders let viewers create their own schedules - and automatically skip ads. DVD recorders let viewers make perfect copies of broadcast movies in an easily accessible form. And so on. Digital technology empowers consumers, making them less passive. It makes even couch potatoes sit up. And that is bad news for TV.

Experience over the last decade has shown us how established industries react when they are threatened by new technology. First they go into denial. Then they resort to legal countermeasures - which invariably fail. Finally they nobble legislators, seeking to persuade them to enact laws that will protect the old business models.

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Supreme Court Declines [7:05 pm]

Court Won’t Save Phone Competition Rules

The Supreme Court refused Monday to intervene and temporarily save federal regulations that force regional phone carriers to share their networks with competitors at discounted rates.

The regional companies said the decision would have no immediate effect on service or prices. Long-distance companies, which want a bigger share of the local market, said it could lead eventually to higher rates and less competition.

Updates: Supreme Court Declines to Extend Phone Pricing Rule and The Bells and the Ruling on Access Fees

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OT: Time on Weblogs [5:03 pm]

Hey, it’s off topic, and I generally hate to link to articles on weblogging, but this one gives a little insight into how the whole thing is perceived in (or, more likely, how the perception of the whole thing is being shaped for) the mainstream: TIME.com: Meet Joe Blog [pdf] - citing Slashdot (Meet Joe Blog); BoingBoing and (surprise!) Fark

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Some Empirical Analysis of Software Patents [4:07 pm]

The precis is supplied in the TIIP Newsletter: An Empirical Look at Software Patents; Federal Reserve Bank of Philadelphia Working Paper No. 03-17/R (March 2004)

by James Bessen (Research on Innovation and Boston University) and Robert M. Hunt (Federal Reserve Bank of Philadelphia) (full text and a "less technical version" The Software Patent Experiment)

The Conclusions given by TIIP are dry, but damning:

These patterns seem inconsistent with the expectation that granting more and stronger intellectual property rights on software inventions stimulates R&D. But suppose instead that firms assemble large patent portfolios in order to extract royalties from competitors and to defend themselves from similar behavior by their rivals. In theory at least, extensive competition in patents, rather than in inventions, may occur when firms rely on similar technologies and the cost of assembling large portfolios is not very high. In such an environment, firms may compete to tax one another’s inventions by demanding royalties. In the process, they can reduce one another’s incentive to engage in R&D. Under these circumstances, firms may find themselves competing not in the marketplace but in court.

The Abstract of the Federal Reserve paper:

Abstract: U.S. legal changes have made it easier to obtain patents on inventions that use software. Software patents have grown rapidly and now comprise 15 percent of all patents. They are acquired primarily by large manufacturing firms in industries known for strategic patenting; only 5 percent belong to software publishers. The very large increase in software patent propensity over time is not adequately explained by changes in R&D investments, employment of computer programmers, or productivity growth. The residual increase in patent propensity is consistent with a sizeable rise in the cost effectiveness of software patents during the 1990s. We find evidence that software patents substitute for R&D at the firm level; they are associated with lower R&D intensity. This result occurs primarily in industries known for strategic patenting and is difficult to reconcile with the traditional incentive theory of patents.

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David Bollier on the Information Commons [3:14 pm]

Why We Must Talk about the Information Commons (Law Library Journal 96, 267-282 (Spring 2004)) [via Open Access News]

It is an exceedingly hopeful development, then, that a new language of the information commons is starting to gain currency. While still a fairly new concept, the information commons is a valuable idea because it provides a coherent framework and language for explaining phenomena that are otherwise ignored or misunderstood. By leapfrogging over a discourse rooted in an earlier media culture, the information commons helps us talk more cogently about constitutional and cultural norms that are increasingly threatened in the new digital environment. Being able to name endangered values is the first step toward understanding what is at stake and mobilizing suitable responses.

This essay is an attempt to describe what the information commons is; why it is important to our democratic society; how it is jeopardized by recent developments in technology, markets, and law; and how we might begin to protect the information commons in the future. I hope to demonstrate that the information commons is not a trendy buzzword, but a useful socio-political concept for understanding the American ecosystem of creativity and information in the digital age.

See also related Drawing the Line Between Knowledge & Expression; and the somewhat older J. Boyle on the 2nd Enclosure Movement

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DVD Audio Format News at The Register [11:09 am]

Note that yesterday’s Slashdot story, New Digital Audio Formats had several comments that essentially said that the market is going to be hard to convince. I particularly liked this one:

It’s fantastic! (Score:5, Funny)

by FoboldFKY (785255) on Sunday June 13, @12:32PM (#9413599)

Just think of the advantages.

  1. Us filthy stinking consumers get to buy all our music all over again for easilly twice the price, giving the poor, suffering music industry a much needed (and obviously deserved) infusion of cash.

  2. In the case of SACD, we even get the added benefits of digital rights managements, which we freeloading, undeserving maggots so justly deserve for our years of support of the music industry.
  3. And, to top it all off, the majority of us who aren’t audiophiles (lucky buggers) will experience absolutely no improvement in quality whatsoever! Wow!

Some may be tempted to point out these are only benefits for the music industry, and you’d be right. After all, we’re just their customers; why should we benefit?

Honestly, tho, this is ridiculous. With the popularity of the iPod and iTunes (disclaimer: I neither have an iPod, nor use iTunes so I’m not being baised), why do they even bother with these new physical formats? People have demonstrated over and over again that they’d rather sit down at their computer, find the song they want, and click “Download”. Sometimes, there’s even the word “Buy” associated with it.

But shame on me, this is the music industry afterall… a body that wouldn’t know what the market wants even after we try beating into their skulls with a giant cartoon mallet.

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ITIC Reports [9:22 am]

The group IT Innovations & Concepts has a couple of press releases out that are worth a mention:

Who is ITIC? See this p2pNet posting [via Zeropaid] ITIC: at it again

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Bridging A Gap Through Metaphor [8:48 am]

Donna points to a facinating way to show two sides of the IP discussion — a way that starts to show the parameters of the ideological boxes that constrain the ability of lawyers and computer scientists to communicate and thus resolve the inconsistencies that drive each other to distraction: What Colour are your bits? [also discussed at LawMeme]

In intellectual property and some other fields we’re very interested in information, data, artistic works, a whole lot of things that I’ll summarize with the term “bits”. Bits are all the things you can (at least in principle) represent with binary ones and zeroes. And very much of intellectual property law comes down to rules regarding intangible attributes of bits - Who created the bits? Where did they come from? Where are they going? Are they copies of other bits? Those questions are perhaps answerable by “metadata”, but metadata suggests to me additional bits attached to the bits in question, and I’d like to emphasize that I’m talking here about something that is not properly captured by bits at all and actually cannot be, ever. Let’s call it “Colour”, because it turns out to behave a lot like the colour-coded security clearances of the Paranoia universe.

Bits do not naturally have Colour. Colour, in this sense, is not part of the natural universe. Most importantly, you cannot look at bits and observe what Colour they are. [...]

[...] Given two bit-for-bit identical MP3 files, there is no meaningful (to a computer scientist) way to say that one is a recording of the Cage composition and the other one isn’t. There would be no way to test one of the files and see which one it was, because they are actually the same file. Having identical bits means by definition that there can be no difference. Bits don’t have Colour; computer scientists, like computers, are Colour-blind. That is not a mistake or deficiency on our part: rather, we have worked hard to become so. Colour-blindness on the part of computer scientists helps us understand the fact that computers are also Colour-blind, and we need to be intimately familiar with that fact in order to do our jobs.

The trouble is, human beings are not in general Colour-blind. The law is not Colour-blind. It makes a difference not only what bits you have, but where they came from. [...]

[...] This idea of Colour is a problem for communication between those of us who work in the world of computers, where Colour does not exist, and those of us who work in the law, where Colour exists and is important.

[...] I just threw a bunch of math terms at you in that sentence and I don’t plan to explain them here, but all cryptographers understand that it’s not the numbers that matter when you’re talking about randomness. What matters is where the numbers came from - that is, exactly, their Colour.

So if we think we understand cryptography, we ought to be able to understand that Colour is something real even though it is also true that bits by themselves do not have Colour. I think it’s time for computer people to take Colour more seriously - if only so that we can better explain to the lawyers why they must give up their dream of enforcing Colour inside Friend Computer, where Colour does not and cannot exist.

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Berners-Lee On S/W Patents, Freedom and Innovation [8:30 am]

Pioneer Who Kept the Web Free Honored With a Technology Prize

If Tim Berners-Lee had decided to patent his idea in 1989, the Internet would be a different place.

Instead, the World Wide Web became free to anyone who could make use of it. [...]

[...] Because he and his colleague, Robert Cailliau, a Belgian, insisted on a license-free technology, today a Gateway computer with a Linux operating system and a browser made by Netscape can see the same Web page as any other personal computer, system software or Internet browser.

[...] Software patenting today, Mr. Berners-Lee said, has run amok. [...]

“The problem now is someone can write something out of their own creativity, and a lawyer can look over their shoulder later and say, ‘Actually, I’m sorry, but lines 35 to 42 we own, even though you wrote it,’ ” said Mr. Berners-Lee, who is director of the World Wide Web Consortium based at the Massachusetts Institute of Technology.

“What’s at stake here is the whole spirit in which software has been developed to date,” he said. “If you can imagine a computer doing it, then you can write a computer program to do it. That spirit has been behind so many wonderful developments. And when you connect that to the spirit of the Internet, the spirit of openness and sharing, it’s terribly stifling to creativity. It’s stifling to the academic side of doing research and thinking up new ideas, it’s stifling to the new industry and the new enterprises that come out of that.”

See also Microsoft file patent faces exam and EFF Asks Public to Identify Bad Patents in Patent Busting Contest

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Drawing the Line Between Knowledge & Expression [8:10 am]

Permissions on Digital Media Drive Scholars to Lawbooks

When some 20,000 first-year American medical students reported to their schools last summer, they received a free 20-minute multimedia collage of music, text and short video clips from television doctor dramas, past and present, burned onto a CD-ROM.

“The patients you meet in the coming years may have doubts about you because of the doctors they see on prime-time television,” the introduction reads. “The aim of this presentation is to explore why that is, and suggest what you can do about it.”

But the CD was perhaps more of an education for its developer, Joseph Turow, a professor at the University of Pennsylvania’s Annenberg School for Communication.

“It’s crazy,” Professor Turow said of the labyrinth of permissions, waivers and fees he navigated to get the roughly three minutes of video clips included on the CD, which was paid for by a grant from the Robert Wood Johnson Foundation. The process took months, Professor Turow said, and cost about $17,000 in fees and royalties paid to the various studios and guilds for the use of clips. The film used ranged from, for example, a 1961 episode of “Ben Casey” to a more-recent scene from “ER.”

This Friday, Professor Turow and other experts will meet at a conference sponsored by the Annenberg School to debate how digital media fits into the concept of “fair use” - a murky safe harbor in copyright law that allows scholars and researchers limited use of protected materials for educational or commentary purposes.

The conference title itself is a lament: “Knowledge Held Hostage: Scholarly Versus Corporate Rights in the Digital Age.” Many scholars, librarians and legal experts see rich promise for the use of multimedia materials in research and education. But the possibility of litigation over file-sharing and confusion over digital copyright protections have scholars feeling threatened about venturing beyond the more familiar world of printed texts, Professor Turow said.

The program looks great — I see that Hal Abelson will be there to talk about MIT’s efforts

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Obit for the 1996 Telecomms Act [8:05 am]

Keeping themselves in practice, the NYTimes opines on the Busch Administration’s moves in telecomm policy last week: The White House Hangs Up

The Bush administration is abandoning the landmark 1996 Telecommunications Act, which spawned a new era of competition in telephone service. That is the net effect of its refusal to appeal to the Supreme Court a federal court decision striking down rules that gave local phone companies access to the Baby Bells’ networks. Even more disturbing, the administration pressured the Federal Communications Commission, ostensibly an independent agency, to abstain from filing its own appeal in defense of its own rules.

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Starz! and Digital Distribution of Movies [7:43 am]

Selling ‘Nemo’ Online, Trying to Repel Pirates

Even if subscription services fail to attract a large following right away, they may still offer a more profitable business model, Starz and Real executives say. In music, pay-per-download services like iTunes have been much more popular with consumers than subscription services like Real’s Rhapsody, which lets users download and listen to as many songs as they want for $9.95 a month. But the per-song services have gross margins of 10 percent to 15 percent, compared with 40 percent to 50 percent margins for subscription services, said Richard Wolpert, Real’s chief strategic officer.

The Starz service uses technology from Real that allows the movies to be played only by a given subscriber and only within a certain time period. Each film will have an expiration date that coincides with its last showing on the cable station. The movies will be encoded so that they cannot be played after the expiration date.

[...] Eventually, studios could also start selling movies for permanent downloading, much as songs are sold by iTunes and others.

But as this market develops, Hollywood studios may have to rethink the way they distribute movies - typically, moving them from theaters to the video market, then to the pay-per-view cable market, the subscription cable market and, lastly, to broadcast television.

For now, the studios have not had to change that strategy for the initial Internet experiments.

Update: Slashdot discussion - Starz, RealNetworks Offer Movie Download Service

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