March 11, 2005

Phil Greenspun on the HBS “Hack” [5:29 pm]

Business schools redefine hacking to “stuff that a 7-year-old could do” [via Ernie]

  • The ApplyYourself code had a bug such that editing the URL in the “Address” or “Location” field of a Web browser window would result in an applicant being able to find out his admissions status several weeks before the official notification date. This would be equivalent to a 7-year-old being offered a URL of the form and editing it down to to see what else of interest might be on the server.

  • Someone figured this out and posted the URL editing idea on the BusinessWeek discussion forum, where all B-school hopefuls hang out and a bunch of curious applicants tried it out.

  • Now all the curious applicants, having edited their URLs, are being denied admission to Harvard and, due to the fact that universities form cartels to fix tuition prices and other policies, presumably to the other B-schools as well.

If this was the “hack,” then these schools have no business asserting that anything “unethical” happened - heck, I do the same sort of URL-probing all the time. As Phil puts it:

The HBS/ApplyYourself situation falls into the “poking around with a browser” category where you get to see stuff but the Web publisher hasn’t been injured because they still have the stuff on their server (one of the strange characteristics of the digital age). As progressively dumber programmers build progressively more complex systems we will see more of this kind of attempt to paper over coding mistakes with lawyers, sanctions, policies, and laws. Hollywood and the RIAA are usually the most successful at getting the government to do their bidding. Thus I predict that one day Disney will have a Web site where you can buy access to any of their movies. Because all of their profits are being used to pay executive salaries this will have to be built at extremely low cost. Deficiencies in the softwrae will enable vast numbers of Americans to download Bambi for free, their ISPs will be forced to rat them out, and they will all get to see Martha’s Stewart’s cell in West Virginia first hand.

Information from a commenter suggests that there’s a little more to it than Phil suggests - still lame as a “hack,” but not quite as lame. (See this, too)

Later: The NYTimes’ Not Yet in Business School, and Already Flunking Ethics

“I might feel differently if I knew that the applicants were aware that they were breaking the rules,” Edward W. Felten, a professor of computer science at Princeton University, wrote in his Web log. “But I’m not sure that an applicant, on being told that his letter was already on the Web and could be accessed by constructing a particular U.R.L., would necessarily conclude that accessing it was against the rules.”

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OT: David Byrne on PowerPoint [5:16 pm]

David Byrne explores the artistic possibilities of PowerPoint in Berkeley lecture [pdf]

Byrne’s lecture, “I (heart) PowerPoint,” came about in recent years after he discovered not only the software but also how to create music-and-art pieces with it. Those pieces became a book, “Envisioning Emotional Epistemological Information,” which came out in 2003 and included a DVD of his miniature films.

[...] “My name’s David Byrne, and I’m going to do an introduction to PowerPoint, ” he says a bit hesitantly, to more applause. It’s pretty much the last serious sentence Byrne will speak throughout the irony-heavy, hourlong demonstration, which is accompanied by simultaneous graphics on a huge screen behind him.

He delves into various components of the software, including bullet points, using PowerPoint graphics he has found online — some of them inadvertently hilarious.

[...] And there are other examples:

Why I Dumped You:

– You lied about where you were and what you did.

– You are a crack-smoking, child-abandoning mother of two.

– You claim to have proven P = NP.

A little academic humor.

[...] Byrne is most interesting when he goes off on flights of fancy that illustrate why he is called the Renaissance man of rock. “PowerPoint is a symptom of a long train of thought that started picking up steam during the Enlightenment,” he says. “The idea was that we could name everything and draw lines that connect them.”

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Apple Gets To Subpoena [4:51 pm]

Apple wins round in lawsuit against fan sites

The judge said that Apple can go ahead and obtain records from Nfox, the e-mail service provider to Mac enthusiast site PowerPage. In the ruling, Santa Clara County Superior Court Judge James P. Kleinberg ruled that Apple’s interests in protecting its trade secrets outweighed the public interest in the information.

[...] California’s trade secrets law protects against the publication of private information, Kleinberg said. Although longstanding law forbids courts from preventing the publication of information, publishers are still subject to the consequences of their actions afterward, he said.

[...] “Case law shows that subpoenaing a journalist must be a last resort,” said EFF attorney Kurt Opsahl. “Apple did not use this as a last resort, but did only a perfunctory investigation before going on to subpoena the journalists.”

SFGate: Apple Wins Trade Secrets Legal Dispute [pdf]

Charlie Cooper points out the problems that Apple may reap from this: Sour Apple

The real subtext is this: Apple is directed by a collection of control freaks who would have found themselves at home in the Nixon White House.

Apple’s been an infuriating company for me to cover the last two decades or so. I adore its technology but can’t stomach its overreaching sense of entitlement. Other tech companies deal with leaks all the time. Nobody’s happy when their discussions wind up as fodder for the rumor mill. But that’s part of the give-and-take that’s defined the technology business for decades.

So why turn this into a federal case–literally? Speaking with people who know the company, they say “everything starts with Steve.”

For good and for bad.

Later, from the NYTimes: Apple Can Demand Names of Bloggers, Judge Says; Hiawatha Bray’s column Teen reporter pays price for Apple coverage [pdf]; WaPo: Apple Wins Trade Secrets Legal Dispute [pdf]

Later: BusinessWeek commentary: Memo to Apple: Lay Off Your Fans [pdf]

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Ed Felten on an Ugly Mutation [4:04 pm]

Cal-Induce Bill Morphs Into Filtering Mandate

A bill in the California state senate (SB 96), previously dubbed the “Cal-Induce Act,” has now morphed via amendment into a requirement that copyright and porn filters be included in many network software programs.

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BPI Gets Lawsuit Go-Ahead [3:10 pm]

British court forces ISPs to reveal music sharers

The British Phonographic Industry, the music trade group, said a High Court granted an order requiring six U.K. Internet providers to reveal information about 31 people.

“Today’s result is a blow for illegal uploaders who believe that the law simply does not apply to them,” said Geoff Taylor, the BPI’s general counsel.

The group said the order gives the ISPs 14 days to provide the information. Once it has the names, the BPI said it would contact the individuals and offer them the chance to settle charges against them.

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Being John Doe … and Cecilia Gonzalez (updated) [2:50 pm]

What it is today to be a John Doe defendant in an RIAA suit: Meet John Doe [pdf] [via Slashdot]

Most settlements top $3,000, and according to [the EFF's Annalee] Newitz, some can go as high as $7,000. The RIAA wouldn’t confirm these figures, but it didn’t dispute them either. [The RIAA's jonathan] Lamy says that of all the John Doe cases so far, “none have come to trial.” And indeed, it is hard to imagine going to trial doing much good for a hypothetical Doe, since millions of users are illegally downloading and sharing music. Frequent downloader Cecilia Gonzalez [pdf] didn’t settle against the RIAA, and on January 7, she received only a summary judgment in a U.S. District Court. Throwing out Gonzalez’s claims that she was simply “sampling” songs to see if she wished to buy them and that she was an “innocent infringer” unaware that she was violating record company copyrights, the court ordered her to pay damages of $750 for each of 30 songs she was found to have downloaded illegally, for a total of $22,500. That’s more than the poverty line income for a family of five in 2004 ($22,030), but it is worth pointing out that damages of $750 per infringement is the minimum the RIAA could have received, and that the original complaint filed against Gonzalez claimed that she had nearly 2,500 downloaded songs. Damage payments could potentially be much higher. Finally, courts have found that the “cumulative effect” of downloaders makes individual downloaders liable for damages, even if their personal downloading has only a marginal impact, so even penny-ante downloaders are potentially at risk.

[...] And downloading? Well, I’m done with it now, except for legal freebies, but even my close friends haven’t been scared off. One scoffed at my settlement, and said that if she were sued, she’d fight the RIAA in court. For her, downloading is “civil disobedience” in protest against the legal digital music systems that just don’t have all the music she wants. Of course it’s easy to strike a rebel pose like that . . . until you become just another John Doe.

Note that I can’t find any record of the summary judgement in the Northern District of Illinois, but reading Cecilia Gonzales’ story will raise all sorts of questions:

Gonzalez’s attorney, Geoff Baker, now sees the case as something bigger than a dispute over copyright law. A founding partner of the Oak Park firm Dowell Baker, which specializes in intellectual-property matters, he’s working pro bono because he doesn’t like the record companies’ tactics. “In our view, Cecilia should have the right — does have the right — under the Seventh Amendment of the Constitution to have a jury decide whether or not she is an innocent infringer and to have a jury decide whether or not she should have to pay any damages whatsoever,” he says. In issuing a summary judgment, “the judge took that right away from her.”

[...] More important to the defense is the claim that Gonzalez used the Kazaa program to download songs she already owned on CD onto her computer. She wanted to be able to listen to them in any order, but didn’t want to manually copy her whole CD collection onto her hard drive — she and her husband own about 250. She also used Kazaa to download a few songs she didn’t own, but only to “listen to them and determine if they were something she would be interested in purchasing.” Of the roughly 1,000 songs she downloaded, Baker says, the overwhelming majority duplicated tracks on discs she’d paid for.

In her deposition, Gonzalez testified that she and her husband spent about $30 per month on CDs, and that “her ability to download music off the Internet for free did not affect how many CDs she and her husband ended up buying.” But the RIAA wasn’t interested in splitting hairs or discussing intentions. Even if Gonzalez had copied only her own CDs onto her computer, the act of making those songs available on a file-sharing network — even accidentally and for just a few days — still would’ve been illegal.

During the discovery phase, the record companies’ attorney asked to see Gonzalez’s CD collection. “I said, ‘Great, go to her house, make a list,’” says Baker. “And that was in an effort to make sure they understood that they were barking up the wrong tree here. That they were looking to go penalize one of their good customers.” Investigators photographed and catalogued each of Gonzalez’s CDs; Baker claims that the record companies narrowed their suit to include just 30 songs after realizing they’d weaken their case by pursuing judgments on downloaded music Gonzalez already owned. “If they could have gone after her on summary judgment on the other 1,000 songs, don’t you think they would have?” he says. RIAA spokesman Jonathan Lamy puts a different spin on the decision: “We moved on a smaller number so that any recovery would be modest, and to be as fair and reasonable as possible.”

[...] The appeal Baker plans to set in motion this week with the Seventh Circuit Court will likely drag on for months or even years. “At this point we haven’t seen any notice of appeal,” says RIAA VP Pierre-Louis. “Right now, we have a summary judgment motion that we’re delighted with and I think we’ll just see what happens next.”

Later: TLA has the text of the summary judgement [pdf]; also, the January issue of Hiscock and Barclay’s IP Monthly comments on the case (Stealth File Sharing Judgement) notes the following peculiar feature of this case:

One would think that such a ruling would grab the attention of would-be music pirates. Oddly, however, there seems to have been no news coverage of this ruling or press releases issued on the part of the record companies. If deterrence is the goal such silence seems to be quite counterproductive.

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Marvel Claims Fall On Deaf Ears [2:20 pm]

Still looking for more details (Docket number CV 04-9253, CA district court, central division), but: Federal Judge Dismisses Claims and Strikes Allegations in Marvel Lawsuit Against NCsoft

A U.S. district court judge in Los Angeles dismissed several key claims by comic book publisher Marvel Enterprises, Inc in the company’s trademark and copyright infringement case against online computer game publisher NCsoft® Corporation and game developer Cryptic Studios™. Marvel sued NCsoft and Cryptic Studios in November of last year, claiming that the City of Heroes® online computer game allows players to imitate comic book characters owned by Marvel.

In a March 9 order, U.S. District Court Judge R. Gary Klausner agreed with NCsoft that some of Marvel’s allegations and exhibits should be stricken as “false and sham” because certain allegedly infringing works depicted in Marvel’s pleadings were created not by users, but by Marvel itself.

EFF’s summary site: Marvel v. NCSoft; earlier postings

Later: Donna offers up some clarifications of the implications of this ruling: More on Marvel v. NCSoft; Alex has the opinion URL

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Another Domino To Fall? [12:17 pm]

The Stanford Daily asks about the university’s look into music subscription services: Stanford music program won’t eliminate illegal downloading [pdf] [via Digital Music News]

The University recently established a committee to investigate the possibility of creating a legal music file-sharing service for students. While the idea is interesting and perhaps necessary — particularly since Stanford faces possible legal repercussions for student file sharing on its network — such a service is unlikely to significantly reduce illegal downloading.

The ultimate fault for this lies not with Stanford, but with the music industry. The restrictions that record companies place on legally downloaded files severely limit how songs can be used and shared, making them unattractive to students — and to music downloaders in general, which is one reason why Apple’s iTunes software and the new legal version of Napster have done little to quash illegal downloading in general.

[...] Unfortunately, none of the current possibilities for legal file sharing offer particularly compelling reasons to switch from popular programs like Kazaa and ourTunes. The music industry must find ways to adapt to changing technology — just as the film and television industries adapted to the advent of VCRs — rather than clamping down on consumers or on the universities that those students attend.

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The Future of Consumer Electronics? [12:08 pm]

Eli Noam paints a picture of the networked entertainment home: A dim future for consumer electronics?

The traditional way to build consumer electronic devices was to make them largely self-contained, each with multiple elements such as its own memory, signal processing, antenna and software. But if all devices in the home are interconnected, why duplicate all these functionalities? Instead, it makes more sense to get specialised and powerful devices - memory banks, central antennas, high speed processors and sensors - and then to internet work [sic] them so that they can serve an entire slew of home devices.

As this process takes root, the electronic technology becomes largely invisible but pervasive, like electricity or water. What are left in plain view are mostly the display screens (these will be strong sellers, together with portable terminals). The specialised electronic boxes, meanwhile, are relegated to some electronic closet in the basement.

And why stop there? The electronic functionalities could move further away, to distant facilities of commercial consumer electronics service providers that will have powerful hardware and software, and the expertise to service them reliably. In such a scenario, consumer electronics are transformed from pieces of hardware to a service. A familiar example is voicemail, where the local phone company is replacing answering machines at home, lowering consumer electronics sales.

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CA Common Law Copyright Action [11:59 am]

Via Current Copyright Readings: Copyright case may conclude with public burning

A California tribe involved in an unusual copyright lawsuit will probably burn recordings an artist made of their sacred ceremonies, the tribe’s attorney said.

[...] [Lorenzo] Baca, Isleta Pueblo/Mescalero Apache, maintains that he only disseminated the information to honor the tribe’s culture and that he had the tacit approval at the time of tribal elder Brown Tadd. Tadd died in 1992 at the age of 92. Baca told the Native American Times that Tadd commissioned him to make the recordings and that he would have approved of what Baca did. He also said that the majority of the people that bought the tapes and CDs were Me-Wuk Indians interested in learning more about their history.

The tribe sued and attorney Bob Lyon of the high-powered legal firm of Holland & Knight used California’s common-law copyright law and a portion of a federal bootlegging law the bars people from recording musical events to achieve the settlement and gain an injunction.

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OT: It’s Friday [11:17 am]

From Fark, a piece of NC legislation that’s bound to get a little revising, especially if anyone familiar with UK slang has any input — otherwise, I predict a surprising amount of demand: Senate Bill 429 HTML - First Edition

1. G.S. 20-79.4 is amended by adding a new subdivision to read:

“(b) Types. - The Division shall issue the following types of special registration plates:

(38c) Shag Dancing. - Issuable to the registered owner of a motor vehicle in accordance with G.S. 20-81.12. The plate may bear the phrase “I’d Rather Be Shaggin’” and a picture representing shag dancing.”

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More Vonage Blockage — And Not A Common Carrier This Time [10:06 am]

Vonage Being Blocked — Again

Brooke Schulz, Vonage’s vice president for corporate communications, confirmed that the company is “investigating a new instance” of service interruption that appears to be another case of port blocking. Schulz said the incident involves Vonage customers who use high-speed Internet services provided by a cable operator, somewhere in the Midwest U.S.

[...] Vonage declined to name the operator. Schulz said that Vonage does not yet know the exact number of customers affected, but that it could range “from the tens to the hundreds to the thousands.” Schulz said that Vonage was able to re-establish service for several customers who complained by rerouting its VoIP traffic.

Unlike the Madison River incident, Vonage has not voiced any complaint about the new incident to the FCC, Schulz said.

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Post-Powell Discussion [10:01 am]

What Happens To VoIP After Powell?

But whether or not Powell’s successor continues in a VoIP-friendly direction is a guessing game. Michael Gallagher, deputy director of the National Telecommunications and Information Administration (NTIA) and an assistant secretary for the Department of Commerce, praised the audience at the Spring 2005 VON show Wednesday in San Jose, Calif., claiming that VoIP would provide a boost to the overall economy.

But Gallagher — who is effectively the Bush team’s point man on telecommunications — waffled when asked if the President supported Powell’s “Internet Freedoms” policy. At first Gallagher tried to answer through interdepartmental osmosis, drawing a path that said since Powell worked for the FCC, and the FCC was “part of the team,” then by definition Bush supported the theory.

But when asked if Bush would push to make the Net Freedoms a law, Gallagher went into a four-corners delay.

“The Congress controls the shot clock, they control the ball, and the height of the rim,” Gallagher said, comparing legislative process to another seasonal disease. While the administration knows which way it wants telecom reform legislation to proceed, it’s not going to “show all [its] cards” up front, Gallagher added.

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Microsoft Calls For Patent Reform [8:56 am]

From the MS www site, an interview with the company’s general counsel, Brad Smith: Q&A: Microsoft Calls for Reforms to the U.S. Patent System. As one might expect, the proposals described in this article are going to take a little time to digest, and I expect that I’m going to find that there will be a lot of commenters. The obvious question that comes to mind is whether Mr. Smith is talking about all patents, or just those business method/software patents that are at the heart of most of the problems Microsoft has been having with patent litigation these days — particularly the proposal that “first filers” rather than “first inventors” get the patent.

After all, contrast this:

Regarding legal reform, the United States is the only country in the world that applies a “first-to-invent” standard for awarding patents. Under a first-to-invent system, the first actual inventor is given priority even though that inventor may file his patent after the filing date of another applicant claiming the same invention. Every other country applies a “first-to-file” standard, meaning that the first person to file a patent application on an invention is given priority. A growing number of U.S. stakeholders — including the National Association of Manufacturers, the Intellectual Property Owners Association and the American Intellectual Property Law Association — have recently come out in support of the United States moving towards a first-to-file system. Doing so would not only earn us goodwill internationally, but would also make the U.S. system substantially clearer, simpler and more predictable.

with this discussion in the Register article on the speech: MS calls for US patent reform

Perhaps the most notorious patent dispute involving Redmond is its spat with Eolas regarding “a method of opening third party applications within a browser”.

The case saw Microsoft slapped with a $565m penalty for allegedly infringing an Eolas patent. However, the US Court of Appeals last week sent the case back for a new trial. A delighted Redmond says it will “now be able to tell the jury the whole story of how this technology was developed and to present evidence that shows that Eolas did not invent this technology, and that it was developed by others”.

Slashdot: Microsoft Calls For Patent Law Change; Mary Jo Foley’s take

Later: Microsoft pot calls Patent Office black

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Music Biz: Warner’s Royalty Problems [8:29 am]

More Woes for Bronfman’s Warner Music Group [pdf]

Edgar Bronfman Jr.’s Warner Music Group is quietly reassigning its chief comptroller, NEWSWEEK has learned, drawing renewed attention to problems with its systems for paying artists their royalties. Last week, Cher sued the company’s music publishing arm, Warner/Chappell, alleging that it failed to pay her $250,000 in royalties over the last four years, though it is unclear whether the dispute is related to the sys­temic problems.

[...] Barely a year ago, Bronf­man led an investment group that pur­chased Warner Music, whose roster ranges from Led Zeppelin and Madonna to Sean Paul and Josh Groban, for $2.6 billion from Time Warn­er. In a regulatory filing last December, Warner Music itself first warned that the problem might pose a risk for potential public investors. Warner Music noted that outside auditors were concerned about in­compatible “royalty systems.” The problem “created certain complexities in reconciling royalty expense and payables,” the compa­ny added, without elaborating. To help remedy the problem, Warner Music said it had hired outside experts. In addition, it is seeking a longer-term solution through a joint venture with, among others, rival Universal Music Group, to build a new roy­alty system.

[...] Earlier, one of Warner Music’s biggest stars, Kid Rock, also publicly lambasted the company’s direction. Citing little support from Warner Music for his 2004 tour, he complained that he needed new partners “that are more interested in music than IPOs.”

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Video Game Bans [8:22 am]

Suppose Illinois is looking to increase demand even further? Ill. Moves Toward Banning Some Video Games [pdf]

Gov. Rod Blagojevich’s proposal to bar stores from selling violent and sexually explicit video games to children unanimously passed an Illinois House committee Wednesday, despite concerns that it might be unconstitutional.

Under the proposal, which now goes to the House floor, any store that violated the ban could face misdemeanor charges and fines of up to $5,000.

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Growth In Online Content Spending [8:19 am]

With a surprise to me — online dating? Study: Consumer Spending on Online Content Grows 14 Percent [pdf]

The Online Publishers Association, working with comScore Networks, a group that studies consumer behavior online, said in its report that the biggest gain came in spending on entertainment, which jumped 90 percent over a year ago to $413.5 million, driven mainly by greater purchases of music.

Spending on dating sites remained the top category, however, growing 4.4 percent in 2004 to $469.5 million last year. Spending on business and investment fell 6.3 percent to $312.9 million, the group reported.

Other big gainers in online spending were games, up 21.8 percent to $88.8 million, and sports, up 38 percent to $52.8 million.

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French Movie Litigation News [7:53 am]

Via the Pho List: Movies Downloading Judged Legal In France - Blog des Audionautes - the title overstates things, but the news is interesting as the French are working through what they think is worth litigating.

Slashdot: P2P (More) Legal in France; CoCo; CopyFight

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Apple Weighs In On The Next DVD Format [7:38 am]

Apple Backs Sony Format for DVD’s

Apple, whose computers run software to create DVD’s, joined the Blu-ray Disc Association’s board, a statement by Blu-ray said yesterday. Sony is fighting to win support for its standard over one called HD-DVD that is backed by Toshiba and NEC.

Blu-ray said Apple would support the new high-definition DVD format in its iMovie and Final Cut video-editing software programs.

“Apple is pleased to join the Blu-ray Disc Association board as part of our efforts to drive consumer adoption of HD,” Steven P. Jobs, Apple’s chief executive, said in a statement on the Blu-ray Web site.

Slashdot: Apple Backs Blu-ray

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