Friday, August 13, 2004

I mentioned yesterday that Apple were considering suing RealNetworks under the DMCA for creating 'Harmony' which facilitates interoperability with the iPod, allowing iPod owners to buy songs from a Real music retailer. It turns out that James Boyle had an article in the FT yesterday about the dispute. And as usual James cut right to the heart of the issue with a terrific analysis.

"You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Palo Alto Zen-chic the company normally projects. “We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA [Digital Millennium Copyright Act] and other laws.” What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real’s Music Store and play them on their own iPods. That’s it. So why all the outrage? It turns out that this little controversy has a lot to teach us about the new economy...

...The first lesson of the story is how strangely people use the metaphors of tangible property in new economy disputes. How exactly had Real “broken into” the iPod? It hadn’t broken into my iPod, which is after all my iPod. If I want to use Real’s service to download music to my own device, where’s the breaking and entering? What Real had done was make the iPod “interoperable” with another format...

... Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, is figuring out how things work, in order to compete with the original manufacturers, breaking and entering? In the strange netherland between hardware and software, device and product, the answer is often a morally heartfelt “yes!” I would stress “morally heartfelt”. It is true manufacturers want to make lots of money, and would rather not have competitors. Bob Young of Red Hat claims “every business person wakes up in the morning and says ‘how can I become a monopolist?!’” Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn’t your iPod, it’s Apple’s iPod. Yet even if they believe this, we don’t have to agree.

In the material world, when a razor manufacturer claims that a generic razor blade maker is “stealing my customers” by making compatible blades, we simply laugh. The “hacking” there consists of looking at the razor and manufacturing a blade that will fit. But when information about compatibility is inscribed in binary code and silicon circuits, rather than the moulded plastic of a razor cartridge, our moral intuitions are a little less confident. And all kinds of bad policy can flourish in that area of moral uncertainty...

... second new economy lesson. In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone’s music service, or to try to keep it closed...

... If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades, or printer cartridges. The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to badmouth their quality, and to use “fear, uncertainty and doubt” to stop consumers switching...

... If the consumers got irritated enough they could give up their sunk costs, and switch to another product altogether All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good, and competition will often require interoperability.

But thanks to some rules passed to protect digital “content” (such as copyrighted songs and software) the constant arms race over interoperability now has a new legal dimension. The Digital Millennium Copyright Act and equivalent laws worldwide were supposed to allow copyright owners to protect their content with state-backed digital fences that it would be illegal to cut. They were not supposed to make interoperability illegal, still less to give device manufacturers a monopoly over tied products, but that is exactly how they are being used."
The ACLU have issued a report stating that the US government are circumventing the checks and balances on surveillance operations by increasingly using private corporations to gather the information for them. Private companies are not subject to the same restrictions on the gathering of personal information and people trust them more than they trust the government, so are more willing to unquestioningly hand over personal details.

"The Privatization of Surveillance
The U.S. security establishment is rapidly increasing its ability to monitor average Americans by hiring or compelling private-sector corporations to provide billions of customer records. The explosive growth in surveillance by government and business is creating a "Surveillance Industrial Complex" that threatens all of our privacy."

Wired have an article covering the report.

Thursday, August 12, 2004

From the Home Affairs select committee report on the UK government's proposed natioal identity card scheme:

"The proposed system is unprecedentedly large and complex. It will contain sensitive personal information on tens of millions of individuals. Any failure will significantly affect the functioning of public and private services and personal and national security. Measures to ensure the integrity of the design, implementation and operation of the system must be built in to every aspect of its development. As we will remark at a number of points throughout this report, the Government's lack of clarity about the scope and practical operation of the scheme, and the nature of the procurement process, does not give us confidence that this will be achieved."
Apple Computer are considering suing RealNetworks for circumventing iPod anti-circumvention measures to facilitate interoperability.
Some interesting comments on electronic voting over at Politech.

It is important to differentiate between "electronic voting", which has immense promise to make voting more accessible to many people, as well as improving the efficiency and accuracy of the voting process, and "Direct-Recording Electronic" voting systems, a type of electronic voting system that record votes _only_ electronically, with no human verified physical record, which raise many concerns, and have had numerous operational problems in actual use, leading to (for example) decertification of DRE's in California.
It's critical to be aware that there are many electronic voting systems that provide all of the benefits that the LCCR cares about (prevention of overvotes, reduction of undervotes, spoken prompts for hearing or reading impaired voters, support for multi-lingual ballots, voters like touchscreen voting), but that are not DRE's."
Funny. "Bush-Kerry parody draws the ire of the music publisher that owns the Guthrie song."
"All children to go on ‘big brother’ computer" reads a Sunday Times headline from 25 July. The national ID card by the back door in one generation.
Here's a funny and insightful blog - OK/Cancel.
Microsoft have agreed to pay Lindows $20million to change its name to Linspire. Can't see Michael Robertson and Bill Gates walking off into the sunset as bosom buddies though.

BT say their new Net filtering system is blocking 23000 attempts per day on average to access child pornography. Meanwhile the prime minister has invited ISPs to one of his summits to encourage them to follow BT's line.

The EU competition authorities have approved the merger between Sony and Bertelsmann's music businesses.

A UK company is suing Apple and Microsoft for patent infringement.

James Grimmelmann has a nice take on yet another Simpsons copyright story.

There is a new UK anticircumvention decision to follow Sony v Owen. It's called Kabushiki Kaisha Sony Computer Entertainment Inc. (Also Trading As Sony Computer Entertainment Inc.) v Ball et al. Since Sony v Owen happened before the implentation of the EU copyright directive of 2001, I'm assuming this latest case is now the definitive one, though I haven't yet had the time to puruse the decision in detail.

"The defendants are involved in the design, manufacture, sale and installation of an electronic chip, called Messiah 2. It can be fitted into a PS2 console and works so as to trick the console into believing that the CD or DVD being played has the necessary embedded codes. By this means, the modified PS2 console can be made to play not only authentic PS2 games designed for the geographical area for which the console was intended, but also unauthorised copies and also games from either of the two regions which are "foreign" to the console."

The decision deals (paras 19 to 26) with a possible loophole for exporters of the Messiah 2 mod chips prior to the the implementation of the EUCD but clearly finds in favour of Sony.

Senator Hatch will be falling further out of favour with Larry Lessig with his call for the banning of p2p networks in a Senate hearing on the proposed INDUCE act.

There's an interesting paper in the May 2004 issue of THE YALE LAW JOURNAL, according to Lawmeme. Extract from the abstract:

"The struggle to define the role of the legislature in the modern administrative state has been central to constitutional politics in Western countries. That struggle was especially intense in Germany and France from the 1920s to the 1950s. Contrary to claims of certain interwar theorists, like Carl Schmitt, the apparent demise of the legislature was not the consequence of an "insurmountable" opposition between parliamentary democracy and the demands of executive power in an era of administrative governance.
Rather, for both Germany and France, the constitutional flaw was traceable to a basic tenet of traditional republicanism inherited from the nineteenth century. This view held that a republican parliament, as the privileged institutional expression of national sovereignty, necessarily possessed plenary authority to allocate power among the branches as it alone deemed expedient in the circumstances. In the interwar period, the German and French parliaments repeatedly relied on this notion to cede full powers to the executive, a practice that ultimately provided the legal foundation for dictatorship.
After 1945, the drafters of the West German and French postwar constitutions gleaned two lessons from the interwar experience: first, that there had to be a substantive "reserve" of governing authority that a republican parliament could not delegate; and second, that an independent body had to have power to enforce those delegation constraints against the parliament itself. Although such constraints ran contrary to older conceptions of parliamentary supremacy in a republican form of government, the drafters concluded that they were necessary to ensure the place of the parliament in a democratic system of separation of powers. "

Extremely pertinent in the light of recent battles in the UK between the House of Lords and the the government over constituional reform.