Archives for May 2006
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- The Moleskine GTD tabs hack
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The new Betamax case?
Seven Hollywood studios and TV networks are suing Cablevision over its new network DVR service. To a consumer, the service is just like TiVo in that they choose programs to record and watch at a later time. The difference is that there is no set-top DVR on the consumer’s premises; it’s all recorded at Cablevision’s end and sent to the customer when they request it. The studios and networks claim that this is not like TiVo but instead like video-on-demand, which would require Cablevision to license the shows it broadcasts to its customers. Cablevision counters that time-shifting is a well-established consumer fair use right.William Patry wonders if this is the next Betamax case. I think two things are key to establishing that this is consumer time-shifting. First, does Cablevision record only one copy of a show that is requested by customers and does it then multicast that copy? (Isn’t this how MP3.com did it?) The news accounts I’ve read have been sketchy on the technology, but the WSJ reports that “Rather than recording all content automatically on a centralized device, the Bethpage, N.Y., company would create individualized storage within the network for each subscriber that paid for the service.” Second, is a show available only to a customer that had the foresight to record it, or can you simply say, “You know, I’d like to watch the last two episodes of 24 even though I never recorded them, but the cable company did, so I’ll just call them up.” If not, and if each customer has hard drive space on the server that they fill up with their own copies, there’s a good case that this is just like TiVo and thus a fair use by consumers that are merely using Cablevision as their tool for recording.
But who knows, the Ninth Circuit decided this week that when Congress wrote the word “less” in a statute they really meant “more.”
Cross-posted at TLF. You can leave and read comments there. →
Why not have a comparative hearing while you’re at it?
Today there are reports that a startup headed by former FCC Wireless Bureau chief John Muleta and @Home founder Milo Medin has asked the FCC to give it a spectrum license to offer a national wireless broadband service. No auction, just an assignment. According to Reuters, “Most wireless spectrum is auctioned to the highest bidder but M2Z has offered to pay the U.S. Treasury 5 percent of its gross revenues from the premium broadband service it plans to offer alongside free, but slower, Internet access.” You can read their filing here (PDF).If this deal goes through, we will have officially learned nothing. The FCC Spectrum Policy Task Force Report found that “To increase opportunities for technologically innovative and economically efficient spectrum use, spectrum policy must evolve towards more flexible and market-oriented regulatory models.” But this would cut in just the opposite direction. Spectrum would be licensed for one particular use and wouldn’t be flexible. The five percent kickback to the U.S. Treasury is eerily reminiscent of the uncompetitive franchise fees that cable operators have paid to municipalities for a local monopoly. And what would this do to the natural development of a market in wireless broadband when every other competing network has to bid for spectrum at auction? M2Z was able to raise over $400 million in venture capital, so why can’t it put it’s money where it’s mouth is and buy the license?
Cross-posted at TLF. You can leave and read comments there. →
Zero doesn’t apply to spectrum
Mike at TechDirt takes issue with an article by Tom Lenard on C|Net that argues that market allocation of “white space” spectrum is more efficient than a “commons” designation. He writes that “Unlicensed spectrum is hardly a ‘centralized allocation system,’ and it’s hard to see how anyone could make such a claim with a straight face.” As I explained in a recent paper, in order to have a “commons” that works, you need to have rules that govern how devices operate in the space so that they don’t interfere with each other. For example, devices in the chunk of spectrum in which Wi-Fi operates, by regulation, cannot operate above 5 Watts EIRP. Therefore, the rules that govern the “commons” we now have are centrally planned by the government. It’s not controversial to say that central planning is inefficient because a planner cannot possibly have all the information about all the possible competing uses of the spectrum.While there no doubt is a place for unlicensed devices, one has to admit that designating some spectrum as a commons with certain specific rules will prevent that spectrum from being used in another, perhaps more innovative way, that cannot operate within the commons’ rules. In a market you could just by the spectrum and deploy your more innovative use; in a commons regime you would have to petition the central planner to change the rules (and we all know how well and how quickly that works.)
Second, Mike takes Lenard to task for not understanding the concept of zero, claiming that when scarcity is removed, market oriented folks have a hard time understanding policy. I tend to agree with him, and I think his is a great observation as it applies to intellectual property. Ideas truly are not scarce; their scarcity is created artificially through IP laws. However, I’m afraid that while new technologies have been able to eke out more communications capacity from existing spectrum, that capacity is still finite and, despite the rhetoric one often hears, spectrum scarcity has not been eliminated.
Mike writes that “what those who understand zero recognize, is that unlicensed spectrum turns spectrum into a free input, lowering the costs and allowing companies to provide products that serve the market at much more reasonable rates.” What he doesn’t see is that while unlicensed spectrum might be a “free input” for certain uses, a whole host of other uses are precluded. While a commons can allow low power, near range devices such as Wi-Fi, bluetooth, and cordless phones–great innovations all–you could not deploy a new national wireless competitor in voice or video over unlicensed spectrum. The only way the cost of spectrum could truly be zero is if all potential uses of spectrum could be deployed without precluding any other use. This is the case in intellectual property where I can use any idea as much as I want without ever affecting someone else’s ability to use that same idea. But it’s not the case for spectrum where one use of spectrum (even the use of spectrum for an unlicensed commons) will necessarily preclude some other potential use.
Cross-posted at TLF. You can leave and read comments there. →
‘Knight Rider’ coming to big screen
CNN reports: “The talking car K.I.T.T. is heading to the big screen in an adaptation of the hit 1980s TV series ‘Knight Rider.’ Series creator Glen A. Larson will write and executive produce the Weinstein Co. project, which he anticipates will begin production next year.” It looks like remakes have finally caught up with my childhood. First Michael Mann brings back Miami Vice, which I can’t wait for, and now this. It’s wonderful. I’m just sad that Louis Rukeyser, who died last week, won’t be able to reprise his performance as Devon Miles. Now they just need to bring back ‘Manimal‘ and the circle of life will be complete.Why your laptop won’t replace your TV
Good article in Slate: “The more time-sensitive a program is–sports, the news–the less sense downloading makes. The same goes for massively popular shows: Who wants to wait a day to download American Idol? Plus, why would broadcasters want to support 30 million simultaneous, bandwidth-hogging downloads when they could send out a single broadcast signal instead?” I have an article on this same topic coming out in the next issue of Regulation magazine.The RFID cookie monster
It looks like RFID panic is percolating a bit again. Wired has an article in the current issue about how easy it will be to hack RFID tags, and Gizmodo recently reported ominously hat Levi’s will be tagging its jeans. Most of the privacy concerns are the same as those I’ve refuted in the past; RFID is not GPS and it won’t let you pinpoint someone’s position. However, I’m curious about one new claim the Wired article raises:Grunwald has recently discovered another use for RFID chips: espionage. He programmed RFDump with the ability to place cookies on RFID tags the same way Web sites put cookies on browsers to track returning customers. With this, a stalker could, say, place a cookie on his target’s E-ZPass, then return to it a few days later to see which toll plazas the car had crossed (and when). Private citizens and the government could likewise place cookies on library books to monitor who’s checking them out.
I’m curious for more information on how this is done. To my knowledge, cookies are just static strings of text that can be used to uniquely identify a browser each time it comes back to a site. In that sense, an RFID chip is itself a cookie. An HTTP cookie isn’t written to and doesn’t contain a list of all the sites you’ve visited, so how can an RFID cookie tell a stalker all the toll plazas you’ve been to? Also, can all RFID tags take cookies? Beyond those questions, I’m not sure how a stalker is helped by knowing where his target has been. He would only know which toll plazas were crossed, not what a target’s ultimate destination was, and certainly not their current location. With the library book example, the same questions apply. But assuming that the RFID chip is written to, is the patron’s name inserted into the surreptitious cookie whenever the book is checked out? Why would the library’s software do this? Why would it insert a name and not an ID number? If it’s an ID number, then wouldn’t the stalker need access to the library database to cross-reference the patron’s name? If the stalker has access to that database, why not just look up the check out information there?
At least I’m glad to see that both the Gizmodo and Wired stories acknowledge a privacy threat from government and not just from retailers and other private companies. Privacy activists have concentrated on the perceived threat of commercial RFID use when the real threat is their use in government-mandated IDs.
Cross-posted at TLF. You can leave and read comments there. →
Not an urban legend
For a long while I’ve been bemused by the running rivalry over intellectual property issues between some of the writers on this blog and the folks at PFF. While sometimes entertaining, I often shake my head when Tim takes the time to painstakingly refute an argument from Jim DeLong that on the surface was already patently erroneous. Now, as I prepare to take the bait myself, I think I understand the feeling of exasperation that prompts such replies.Yesterday DeLong posted an entry entitled “Another Urban Legend Shot Down.” He wrote that “One of the arguments against extended copyright terms, made in Eldred and other places, has been the charge that there are piles of books, films, etc., moldering away unseen because no one can get permission to look at them and the copyright holders are too oblivious to find and exploit useful items.” He then says that the fact that Amazon sells DVD packs that contain 50 classic movies for just $16.47 refutes the idea (or “urban legend” as he puts it) that there are other movies out there that are being harmed by extended copyright terms. He goes on, “Would such treasures be available if there were no money to be made from making them so? Doubtful.”
FIrst DeLong implies that there are no such works disintegrating out of sight and hints that such an idea is just an “urban legend.” I would point him to the Library of Congress’s report on film preservation. It catalogs precisely the fact that a great number of films are literally disintegrating. It is a fact, not a myth.
He further characterizes the argument he is trying to refute as a charge that works are “moldering away unseen because … the copyright holders are too oblivious to find and exploit useful items.” It’s not just that they are oblivious, but that they are completely unaware of their ownership. It’s called the orphan works problem and I assume he’s familiar with it. You can read more about it here. Film is a fragile medium and to preserve it one must copy it. (The same goes in many respects for photos, too.) Copying without permission, of course, is infringement–even if you can’t find anyone of whom to ask permission. This means that even if I wanted to restore 50 orphan films on the verge of disintegration so that I could make and sell an Amazon DVD pack–a fine motive–the copyright on those films will prevent me from doing so. The longer copyright terms are extended, the longer I can’t restore and sell the movies, and with disintegrating film time is a major factor.
It also does not follow that because there are DVD packs for sale on Amazon that all films will benefit from restoration. As the LOC’s report sates:
If there is a single division that separates most of the preservation issues discussed in this report, it is between two categories of films: those that have evident market value and owners able to exploit that value; and the other films, often labeled “orphans,” that lack either clear copyright holders or commercial potential to pay for their continued preservation. In practice, the former are primarily features from major Hollywood studios; the latter–numerically the majority–include newsreels and documentaries, avant-garde and independent productions, silent films where copyright has expired, even certain Hollywood sound films from now defunct studios. For these films the urgency may be greatest.
DeLong further seems to argue that without extended copyright protection, the Amazon DVD packs would not exist. He asks, “Would such treasures be available if there were no money to be made from making them so? Doubtful.” But I would point him to another series for sale on Amazon called Dover Thrift. It is a series of books, priced at about $2 each, the underlying works of which are all in the public domain. That is, they are being printed–and someone is making money–without copyright.
Therefore, what I argue for is not no copyright, but rather sensible copyright. I argue for taking into consideration the public domain, and not just the interests of creators, when setting copyright terms. What should be the balance is up for debate, but an informed debate requires that we face facts and not simply dismiss those facts as urban legends because they are inconvenient to our position.
Cross-posted at TLF. You can leave and read comments there. →
The Smarmies of the Night
Boy, does the New York Observer have the number of the social life available in our embarrassing little town.“Not being famous is hot,” said Kathleen Parker, a Washington-based syndicated columnist and frequent panelist, along with Mr. Brooks, on The Chris Matthews Show. “You know, if you Google someone and get nothing? That’s what I aspire to!” False modesty is both hot and timeless. (Lying has always been Washington’s Chanel suit!) … [I]n Washington, they explained, it’s not money that matters. “It’s power,” said Ms. Orloff, to nods all around. “It’s where you work. It’s who you know. It’s what committees you’re on.”
That last bit was said by a tiara-wearing bachelorette getting soused at Bistrot DuCoin. It’s true. I’d never seen the tiara bachelorette party phenomenon before coming to D.C. Hat tip Joanne!
Google’s Mountain View Wi-Fi Network Hits a Snag
“Google’s begun testing [its proposed Mountain View, CA,] network and, in so doing, has discovered it might need to add more Wi-Fi transmitters than originally thought to deliver the coverage and service quality it promised[.]” This follows “snags” in the muni wi-fi efforts in St. Cloud, FL. I’ve said it before and I’ll say it again: communications over a “commons” requires government-enforced low-power restrictions like those imposed on wi-fi. Low power works great when you’re in a small area you control: your home, a coffee shop, etc. Wi-fi, and unlicensed/commons communications generally, are not suited for municipality-wide reach (unless you define the municipality as city hall and the town square).Cross-posted at TLF. You can leave and read comments there. →
Google grows up
Google, who less than a year a go didn’t have an office in D.C., seems to have picked up the ways of Washington pretty quickly. The New York Times reports today that Google has gone to Justice Department and EU antitrust authorities to complain that the search box in Microsoft’s new Internet Explorer 7 browser uses MSN as the default search engine.Google has informed the European antitrust authorities of its worry that “Microsoft’s approach to setting search defaults in Internet Explorer 7 benefits Microsoft while taking away choice from users,” said Steve Langdon, a spokesman for Google. … “We have spoken to the Justice Department generally about our business and the importance of preserving competition in the search market,” Mr. Langdon said.
Wow. This is deja vu all over again. According to Microsoft, it is simple to change the default search engine if you want to. Also, last time I checked, Firefox, Safari, Opera, and the AOL browser all have Google as the default–and Google paid cash to the latter two for the privilege.
Cross-posted at TLF. You can leave and read comments there. →
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This is the personal site of Jerry Brito, a lawyer and writer in Washington, D.C. He’s an academic researcher and the creator of Unclutterer and several other blogs. More »
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