[JackSpratts]

Boob Tube

For those of you who did not watch the Super Bowl last night or just plain missed the half-time show because you were taking a bathroom break/getting more guacamole dip/what-have-you, Janet Jackson briefly bared a breast during her half-time performance. Unfortunately, the CBS network was unable to cut-away before said nakedness was able to make it to the airwaves of national television. Such an obvious publicity stunt is not normally such a news worthy event here at Ars Technica, but what is rather amusing is that according to TiVo, viewers repeatedly hit their rewind-play-pause buttons to catch a short glimpse of Janet in all her glory. According to News.com.com.com (dot com):

TiVo subscribers hit rewind on the Jackson-Timberlake incident nearly three times more than they did on any other moment during the broadcast. That makes the moment the most rewatched ever during a broadcast in three years of measuring audience reactions, a TiVo representative said. The findings were based on an anonymous sampling of 20,000 TiVo subscribers who watched the Super Bowl.

Which leads to two questions: How anonymous is this "anonymous sampling" when TiVo has the unit's unique ID number associated with the subscriber? What sort of events (past and/or future) might possibly be more watched than the one that most of the nation just witnessed this past Sunday? - Matt Woodward
http://arstechnica.com/news/posts/10...o%2002-04-2004


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No Longer 'Dot-Com Bowl,' But Game Still Super For Net
Stefanie Olsen

This year, Super Bowl fans will be reminded that digital song swapping, like grabbing a player's face mask, can mean a big penalty.

Six teenagers busted for illegal file-trading by the Recording Industry Association of America will be the stars of a 30-second commercial, called "I Fought the Law," aired Sunday during Super Bowl 38 on CBS. The advertisement kicks off Pepsi and Apple Computer's giveaway of 100 million downloads on the iTunes' legal digital-music service. People can find a code for a free file by buying a winning bottle of Pepsi.

"We're still going to download music free off the Internet," says one of the teenage girls in the commercial, referring to the giveaway. "And there's not a thing anyone can do about it."
http://news.com.com/2100-1024-5151146.html


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Libelous? Apple/Pepsi/RIAA Superbowl Ad Under Fire
Bill Royle

This is an interesting approach to the legality of this ad. Make sure to check the full story out, fresh from our friends over at P2Pnet!

On SuperBowl Sunday - February 1 - the New England Patriots and the Carolina Panthers will hold millions of Americans, and significant numbers of people in other parts of the world, in thrall as they fight for dominance.

A select few ad agencies paid fortunes to make sure their clients' products are in the faces of this gigantic captive audience.

But Apple Computers, who in the 1984 game launched Macintosh in what also became the first event ad, was significantly absent from the 2004 line-up, in spite of rumous that it was planning something big.

That's because this year, it teamed up with Pepsi-Cola. And the RIAA. And its iTunes "event ad" is more likely to be remembered in infamy than as a triumph.

It features 16 naive US teenagers 'persuaded' to appear as virtual criminals in a multi-million-dollar campaign put together by BBDO, a major New York advertising agency, promoting Pepsi-Cola and Apple Computers' iTunes, and backed by the RIAA, Big Music's public face.

The teenagers were identified by the RIAA as being alleged 'copyright violators' - 'alleged' because they never appeared before a judge. They, or their parents, settled out of court rather than risk much larger financial penalties had they gone head-to-head with the RIAA's heavyweight legal team, and lost.

The ad in question has Pepsi 'giving' away 100 million iTunes songs as a promotion. Waving bottles of soda, the stars - the 16 kids, names and addresses provided by the RIAA which sued them - let everyone know that's the way to go. No more 'illegal' downloads for them!

Annie Leith, 14, whose parents gave the RIAA (Recording Industry Association of America) $3,000 to avoid a civil lawsuit, is featured and she says she'll use some of her undisclosed ad fee to help pay for that.

Of the commercial, "It's all in good spirit," says Dave Burwick, chief marketer, Pepsi, North America.

Josh Wattles, however, doesn't think that adequately describes the spot. In fact, "Falsely attributing criminal conduct to someone is a slam-dunk libel in just about every state," he says.

"There's no calculus of relative harm to justify this kind of abusive, untruthful and cynical behavior towards minors no matter how complicit their misguided parents may have been in this deception."

He's the former acting general counsel of Paramount Pictures, a key architect of the MPAA's (Motion Picture Association of America) anti-piracy programs in the transition to videocassette distribution, and the former senior executive in charge of Viacom's music subsidiaries, The Famous Music Publishing Companies.
http://techfocus.org/comments.php?id...e%2002-04-2004


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Hacking or Manslaughter: Equal Justice?
Bill Royle

Being a political junkie, I tend to pay attention to who is in trouble and who has been let off the hook. When I saw the case of South Dakota Congressman Bill Janklow, therefore, I stewed over it for quite a while.

You see, in the past 13 years Janklow has racked up 13 traffic citations. Notorious for his lead foot, Janklow made light of the issue on multiple occasions.

Now there's nothing to make light of. On August 16th, Congressman Janklow blew right through a stop sign at about 70 mph - hitting motorcyclist Randolph E. Scott and killing him. Janklow claims that as he hadn't eaten in hours, he suffered from a diabetic reaction. The jury didn't believe him, and he was found guilty of the following:

* Second-degree manslaughter
* Speeding
* Running a stop sign
* Reckless driving.

So what was his sentence? One hundred days in jail, and three years of probation. If he completes his probation without incident, the conviction will be wiped from his record. As well, after thirty days behind bars Janklow will be allowed to leave jail to perform community service. Perhaps he'll be cutting the judge's lawn.

Now take a look at these sentences for hackers Kevin Poulsen and Kevin Mitnick.

* Kevin Poulsen - convicted of 7 counts of mail, wire and computer fraud. Also, money laundering and obstruction of justice. All non- violent crimes, yet they brought him a 51-month sentence.

* Kevin Mitnick - convicted of 4 counts of wire fraud, 2 counts of computer fraud. Also, one count of illegally intercepting a wire communication. Again, all non-violent crimes, yet they brought him a 46 month prison term, and restitution in the amount of $4,125. As well, he was sentenced to three years of probation.

What's the lesson here? Do a white-collar crime, face serious time. However, Congressmen are allowed to kill people, for the price of only one hundred days.

What a justice system. Perhaps the most fitting quote (and the pot calling the kettle black, incidentally) came from Senator Ted Kennedy in 1973:

"Do we operate under a system of equal justice under law? Or is there one system for the average citizen and another for the high and mighty?"

Think about it.
http://techfocus.org/comments.php?id...?%2002-04-2004


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Public Domain Enhancement Act
posted by scubacuda

The EFF encourages you to send a message to your representative in support of the Public Domain Enhancement Act, a bill that will allow works that no longer have commercial value to enter the public domain. From their website:

Creative works are supposed to end up in the public domain, where anyone can use them without fearing lawsuits from copyright holders. This freedom makes it possible for Shakespeare to be the world’s most performed playwright, and it allowed Disney to create films like Sleeping Beauty and Snow White. However, some powerful copyright holders have stopped works from entering the public domain by repeatedly lobbying Congress to extend the length of copyright terms. This abuse of the law locks people out of their cultural heritage and puts an unfair tax on creativity.
http://grep.law.harvard.edu/article....t%2002-04-2004


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Digital Music Revolution Changing The Tune

CANNES, France (AFP) - 2004 will be the year of a new generation of mobile jukeboxes and telephones that will revolutionise how the world listens to music.

You can't afford to scrimp on storage. Here's how to store anything, plus top 10 hard drives and external storage options.

If the latest technological breakthroughs showcased at the MIDEM international music fair over the

past week fulfill their potential, people worldwide will soon be tuning into their favourite songs and compiling albums via their cellphones and video-game consoles, or downloading music onto mobile jukeboxes.

A host of new digital music devices and services will be launched on the market this year. But there are still snags on the horizon. Europe's copyright red tape notably is slowing the flow of music tracks onto the new digital services, and not all new gadgets are compatible with each other.

The MIDEM fair saw movers and shakers in the music industry get down to serious talk with the giants of the cellphone, telephone service providers, Internet and electronic worlds about how they can make the new technology work for them as well as for music lovers.

MIDEM, the international music industry's most influential annual gathering in this Mediterranean resort town, was the venue for this first major get together between the music and hi-tech worlds. There was also a sense of urgency that industries need to move more quickly as technology as well as consumers' tastes can change rapidly.

On the piracy front, the music industry recognised it was too slow in reacting to the onslaught of illegal music Internet downloads. These fell to 800 million at the end of 2003 but were still the main reason for last year's 10 percent slump in album sales worldwide.

Luckily for the record business and musicians, the tide is starting to turn, mostly thanks to the runaway success of the first paying online music stores and digital jukeboxes.

For the music lover, this shift is also good tidings as the new online stores and cell phone operators plan to keep the price of downloading songs at around 2.2 euros for a hot single to 0.80 euro cents for less popular tracks.

Apple Computer's iTunes store was first out of the starting blocks in April 2003 and by January this year had notched up sales of over 30 million songs in the USA, Apple's Eddy Cue said at MIDEM. Apple's iTunes owes a lot of its success to the iPod jukebox, now the most-used music-playing mobile device with a third of the US market today.

The online music giants, however, still need to duplicate their US success in Europe where the complex network of rights agreements, different prices and record release dates is making it difficult for them to launch their one-store concept.

A pan-European agreement between record labels, music publishers and the various rights and royalty collection agencies that operate across Europe would be "the holy grail," Chris Gorog, chairman and CEO of the newly legalised Napster (news - web sites) online music service, said at MIDEM.

Early this year should see both the Apple and Roxio launches in Europe but the two companies were vague about precise dates. What is sure is that they will meet new competition when they finally arrive on the other side of the Atlantic.

Europe's largest online store OD2, founded by rock legend Peter Gabriel, announced a new beefed-up online service at MIDEM. SonicSelector, a simple, on-demand music platform compatible with Microsoft's Windows media Player9, has already been signed up by Italy's Tiscali Internet service provider and Coca Cola's new online MyCokeMusic store.

In addition to being able to choose from the growing number of online music stores, music-lovers will also be spoilt in choice for mobile jukeboxes.

Apple's iPod and its mini little brother, which are not compatible with Microsoft Windows, are being joined by a host of 'lookalike' gadgets. UK phone carrier O2's own branded music player, which will cost 181 dollars or less if bought along with a cell phone, is one of many.

Or people may prefer to use mobile phones. The next generation of 3G handsets showcased at MIDEM will become available this year, opening up new opportunities to purchase and download whole tracks with far superior sound quality to what is available at the moment.

Nokia (news - web sites) has even launched what it calls a "visual radio" with colour graphics and a built-in FM transmitter that will display information such as song titles and lyrics of the music it is tuned into. Its 7700 mobile device combines a phone with a touch screen, a video player and an MP3 music player.

For ringtone fans there is good news as well. Japan's latest craze for personalized ringback tones when the person being called hears a selected tune, is expected to take off in Europe.

But not all the new gadgets and online services will be compatible. With so many competitors starting to stream on to the marketplace, it looks certain that not all of them can hope to survive. That is not such good news for consumers who might have a difficult time deciding which way they should jump.
http://news.yahoo.com/news?tmpl=stor...idem&printer=1


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Retailer Destroys Video Enhancer Stocks Deemed Illegal

Copyright circumvention prevention
INQUIRER staff:

MACROVISION CORPORATION has leaned heavily enough on UK electronics retailer Maplins to get it to agree to destroy its entire stock of video enhancers, the companies announced.

Maplins said it will comply with a European Copyright Directive prohibiting the sale and advertising of circumvention devices some of which are designed to circumvent Macrovision copy protection technologies on DVDs and VHS cassettes. The directive was implemented in the UK on 31st October 2003.

The retailer said it has withdrawn a range of three devices that may be used to circumvent copy protection technologies. Commercial Director David O’Reilly, of said: "We have discontinued these items following the change in the legislation, and out of respect for the law."

Martin Brooker, European Director of Sales for Macrovision said the company would be "working with" retailers to ensure compliance with the law," as part of an ongoing "enforcement programme."
http://www.theinquirer.net/?article=...l%2002-04-2004


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Seizures Of Fake Discs Rise In Asia
Bill Heaney

The Motion Picture Association (MPA) said yesterday that seizures of pirated movies reached record levels in the Asia-Pacific region last year thanks to nearly 13,000 raids by law enforcement agencies.

Almost 43 million illegal discs were seized, the world's leading movie industry representative body said in a report. Counterfeit discs made in the Asia-Pacific region cost the industry US$718 million last year, it estimated.

Taiwan was not mentioned in the report, but MPA's local representative said the situation here does not seem to be improving.

"Our investigation and survey shows that street vendor crime and private stores in night markets are decreasing, but piracy on the Internet and sales through fliers in newspapers are going up," Hank Kwo, executive director of MPA Taiwan, told the Taipei Times yesterday.

The reduction in street-level crime is probably due to changes in the Copyright Law last summer which made it easier for police to arrest bootleggers, Kwo said. In 2002, 44 percent of all movies sold here were illegal, costing the industry NT$1.46 billion, he said.

MPA Taiwan's 2003 report is due for release next month.

The changes in the Copyright Law were prompted by harsh criticism from trading partners of Taiwan's enforcement record in fighting movie, software and music disc pirates. Since 1992, Taiwan has been on and off the US Trade Representative Office's Special 301 Watch List of intellectual property rights (IPR) violators, and was moved up to the Priority Watch List of serious violators in 2001.

It is time to take Taiwan off the list, the nation's No. 2 man in charge of IPR protection said.

"We think Taiwan has made more progress this year compared to previous years," said Jack Lu, deputy director-general of the Ministry of Economic Affairs' Intellectual Property Office (IPO). "Street vendor crime and other crimes are down after the changes we made to the Copyright Law. We have confidence that we can be removed from the Priority Watch List this year, or at least be moved down one grade to the general watch list."

Lu cited a report on pirated discs compiled by National Chengchi University that is scheduled to be released next week.

"According to our results, DVD and VCD piracy rates should be around 36 percent in Taiwan for the big motion picture companies," said report author Paul Liu, who is also director of the university's Graduate Institute of Intellectual Property.

"Our understanding from the interest groups is that measures put together in the last one to two years have worked well: first, the 220-strong full-time IPR police task force that does nothing but enforce IPR; second, the reward system that gives up to NT$10 million to infringement informants," Liu said.

Last year, the MPA, with law enforcement agencies, seized around 2.4 million pirated discs in Taiwan, up slightly from 2.3 million in 2002. In Asia, China caused the biggest losses to the movie industry, MPA reported, selling US$76 million worth of pirate discs last year. Ninety-five percent of all discs sold in China are pirated.

The report praised Malaysia and Hong Kong for making advances in the fight against movie piracy. The piracy rate in Malaysia fell from 75 percent to 50 percent of all discs sold, and in Hong Kong it dropped from 25 percent to 20 percent. The improvement in Malaysia was as a result of the seizure of 4,679 VCD and DVD stampers. China, with 10 times the number of disc seizures, only managed to seize 1,439 stamping machines over the same 12-month period, the report said.
http://www.taipeitimes.com/News/biz/.../04/2003097440


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SCO Receives Poisonous Reception at Ivy
Jim Wagner

The SCO Group took its intellectual property challenge of Linux to Harvard on Monday and received a cold reception from area students opposed to the company's legal tactics.

In a presentation hosted by the Harvard Journal of Law and Technology on Monday, Darl McBride, SCO president and CEO, and Chris Sontag, senior vice president and SCOsource general manager, defended their decision to pursue corporations and users who violate what they consider their intellectual property.

The presentation, called "Defending Intellectual Property Rights in a Digital Age," outlined the company's decision to sue IBM (Quote, Chart) for violating a contract between the two. Last March, officials at the Lindon, Utah, software company filed a $3 billion lawsuit saying Big Blue programmers lifted thousands of lines of code from licensed Unix System V code and used them to bolster the Linux kernel.

A hearing is scheduled for Friday in Utah, where SCO lawyers will press IBM to release its AIX code for review by the company. Last month, the federal judge presiding over the lawsuit ruled SCO must show all the code under contention before IBM is required to show its own code. If SCO doesn't provide all the code in question, Judge Brooke Wells ruled, a suspension on all fact-finding evidence -- or, motions to compel evidence -- would continue.

McBride stressed from the beginning of the speech his company's desire to keep open source software, well, open, but not at the expense of code copyrighted to SCO, through its ownership of subsidiary Caldera Systems.

"I do believe, that as a society, we're on a very slippery slope right now if we move down this path of 'let's all jump on the software is free and software is good movement,' " he said. "I've had my eyes opened the last year or so."

He said IBM, with its insistence of open standards for all software, is trashing the "world of proprietary systems," which he sides with as a copyright owner. He threw a subtle jab at the Armonk, N.Y., company, which filed more patent requests than any other company in the U.S. the past three years.

"The minute (IBM) puts its 10,000 patents into the public domain, I will follow you with my product," he said.

Perhaps expecting a more relaxed reception in a region still celebrating the Super Bowl victory of its New England Patriots, he found himself in the middle of a crowd that was almost entirely pro-Linux. Several MIT students asked pointed questions.

The crowd certainly wasn't happy to hear Sontag say the software company would continue its legal pursuit of Linux users violating the Digital Millennium Copyright Act (DCMA). While SCO would "likely" not go after, say, a college student using Linux for educational purposes, companies that derive profits from Linux use were fair game, he said.

One student, who said he distributed copies of Linux outside the hall, offered to hand out more after the talks. Another asked why SCO refrained from publicizing the code they claim is infringing, so the Linux community could gut the code from the kernel and move forward without risk of violating copyrights.

McBride said that while Linux is the compilation of thousands of people donating their time and programming skills to improve kernel code created by Linus Torvalds, SCO deserves compensation for the improvements it made to Linux. Without the illegal use of SCO's code, he said, Linux isn't an attractive option anymore for high-end servers.

"We think that if you rip that code out, it's going to make Linux not nearly as attractive," he said. "But, if the common wisdom is to take that out, and to go down that path, assuming we win that court case, then absolutely that's something we'd sign up for."

At one point, McBride, explaining what he thinks is the Linux community's efforts to damage SCO through Web site attacks, asked a student whether he was affected by the MyDoom.A e-mail virus, which targeted Outlook and Outlook Express users and installed malicious code used to launch a massive distributed denial of service attack .

The attack, which began over the weekend and culminated Sunday, swamped SCO's home page domain name and forced the company to move it to another Monday morning.

When asked the question, the student replied with a hint of humor in his tone: "No, I have Linux."
http://www.internetnews.com/dev-news...le.php/3307631


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Geeks Put the Unsavvy on Alert: Learn or Log Off
Amy Harmon

When Scott Granneman, a technology instructor, heard that one of his former students had clicked on a strange e-mail attachment and infected her computer with the MyDoom Internet virus last week, empathy did not figure anywhere in his immediate response.

"You actually got infected by the virus?" he wrote in an e-mail message to the former student, Robin Woltman, a university grant administrator. "You, Robin? For shame!"

As MyDoom, the fastest-spreading virus ever, continues to clog e-mail in-boxes and disrupt business, the computer-savvy are becoming openly hostile toward the not-so- savvy who unwittingly play into the hands of virus writers.

The tension over the MyDoom virus underscores a growing friction between technophiles and what they see as a breed of technophobes who want to enjoy the benefits of digital technology without making the effort to use it responsibly.

The virus spreads when Internet users ignore a basic rule of Internet life: never click on an unknown e-mail attachment. Once someone does, MyDoom begins to send itself to the names in that person's e-mail address book. If no one opened the attachment, the virus's destructive power would never be unleashed.

"It takes affirmative action on the part of the clueless user to become infected," wrote Scott Bowling, president of the World Wide Web Artists Consortium, expressing frustration on the group's discussion forum. "How to beat this into these people's heads?"

Many of the million or so people who have so far infected their computers with MyDoom say it is not their fault. The virus often comes in a message that appears to be from someone they know, with an innocuous subject line like "test" or "error." It is human nature, they say, to open the mail and attachments.

But computer sophisticates say it reflects a willful ignorance of basic computer skills that goes well beyond virus etiquette. At a time when more than two-thirds of American adults use the Internet, they say, such carelessness is no longer excusable, particularly when it messes things up for everyone else.

For years, many self-described computer geeks seemed eager to usher outsiders onto their electronic frontier. Everyone, it seemed, had a friend or family member in the geek elite who could be summoned — often frequently — in times of computer crisis.

But as those same friends and family members are called upon again and again to save the computer incompetents from themselves, the geeks' patience is growing thin. As it does, a new kind of digital divide is opening up between populations of computer users who must coexist in the same digital world.

"Viruses are just the tip of the iceberg," said Bill Melcher, who runs his own technical support business in San Francisco. "When it comes to computers, a lot of intelligent people and fast learners just decide that they don't know."

Many of the computationally confused say they suffer from genuine intimidation and even panic over how to handle the mysterious machines they have come to rely on for so much of daily life. Virus writers, spammers and scammers, they say, are the ones who should be held accountable for the chaos they cause.

But as the same people equip themselves with fancy computers and take advantage of the Internet for things like shopping and banking, critics say that their perpetual state of confusion has begun to get tiresome. And while the Internet's traditional villains remain elusive, those inadvertently helping them tend to be friends and neighbors.
http://www.nytimes.com/2004/02/05/te...gy/05VIRU.html


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Tennessee Super-DMCA: It's Baaaaaaack!
Edward W. Felten

The Tennessee Super-DMCA is back. Here's the http://www.legislature.state.tn.us/bills/currentga/BILL/SB3101.pdf ]text[/url] of the latest version.

Like the previous version, which died in a past legislative session, this bill looks like an attempt to broaden existing bans on unauthorized access to cable TV and phone service. The old version was much too broad. The new version is worded more carefully, with exceptions for "multipurpose devices". I haven't read it carefully enough to tell whether there are remaining problems.
http://www.freedom-to-tinker.com/archives/000507.html


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Americans Think Downloading Music for Personal Use Is an Innocent Act
Robert Leitman

While the news media have been filled with stories about what some are calling "Internet music piracy," a large majority of the American public views downloading music for personal use as an innocent act, and thinks the high price of CDs leads to a lot of downloading. These are the results of a Harris Interactive survey of 2,306 adult Americans conducted online between September 16 and 23, 2003.

Fully three in four adult Americans (75%) agree that "downloading and then selling the music is piracy and should be prohibited, downloading for personal use is an innocent act and should not be prohibited."

This is consistent with a Harris Interactive survey of teens released in October 2003 which showed that roughly three in four teens feel that downloading music files without paying (74%) and letting others download files from them (78%) should be legal.

An almost equal 70% say, "If the price of CDs was a lot lower, there would be a lot less downloading of music off the Internet."

The potential financial impact of downloading on musicians and recording companies may not be fully understood by the American public. Nearly two of three adult Americans (64%) agree that musicians and recording companies should get the full financial benefit of their work. While the music industry views downloading as an issue of property rights, agreement with the three statements reported on to this point is at virtually identical levels among Republicans and Democrats, and liberals and conservatives.

While only a small majority of adults (54%) agree, "downloading music off the Internet is no different from buying a used CD or recording music borrowed from a friend," the differences by age are large. Younger people are much more likely to agree with this statement – 70% of 18 to 24 year olds and 66% of 25 to 29 year olds agree; and there is a decline with age – only 36% of people 65 and older agree with the statement.

All of this suggests that the music industry is fighting an uphill battle in winning the hearts and minds of Americans to support prohibitions against downloading. Their opportunity is to make the as yet unmade link in the public’s consciousness between downloading and its financial impact on musicians and recording companies.

The Charts


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Vegas Hotels Canceling Super Bowl Parties
Christina Almeida

LAS VEGAS - Some of Las Vegas' biggest hotel-casinos are canceling Super Bowl parties and handing out refunds to thousands of guests after the NFL threatened legal action against those who broadcast the big game on big-screen TVs.

Several hotels received letters last week informing them that their parties were "unauthorized use of NFL intellectual property."

NFL spokesman Brian McCarthy said the league only recently became aware of these large-scale parties planned in Las Vegas and elsewhere around the country.

"These establishments were attempting to charge admission for something we are offering for free, and we believe that's a violation of a long-standing NFL policy that specifically prohibits mass out-of-home broadcasts," McCarthy said.

In determining whether an event violated the NFL's copyrights, the league considered the location's size, whether TV screens were larger than 55 inches and whether people had to pay to get in.

Some hotels have scrapped party plans entirely, while others are scrambling to accommodate the estimated 274,000 visitors expected to come to Las Vegas for Super Bowl weekend.

"As far as I'm concerned, the NFL is full of soup," said Mayor Oscar Goodman. "I would tell them to go shove it."
http://story.news.yahoo.com/news?tmp...t&e=3&ncid=519


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Why More Choices May Mean Fewer
Steve Johnson

Even before TiVo, video-on-demand and TV shows on DVD came along, the traditional, top-down hierarchy of television was changing. Control was shifting from those who held the broadcast licenses to those who clutched the remotes, for better and worse.

In the not-so-old days, say two decades ago, there were three major networks, and every one of the 15 most popular shows, from "Dallas" to "AfterMASH," was seen in at least 20 percent of the nation's homes, on average. Even the 30th most popular series in the 1983-84 season, "Trapper John, M.D.," was watched in 17 percent of homes.

But then came cable and with it, if not the widely predicted 500-channel universe, then certainly a 100-channel one. If you liked homes and gardens, there was a channel for you, HGTV, but if you didn't like gardens so much, just the nitty-gritty of fixing things up in the home, you could shun HGTV for the DIY channel.

Meanwhile, new networks rose up, first Fox making its mark by aiming younger than the traditional Big Three. Then the WB network, which started in 1995, outflanked Fox, going after women ages 12-to-34.

It's both obvious and, nonetheless, astonishing how this trend of burgeoning choices and programming to ever more narrowly defined groups of viewers has changed things. This season, the most popular series in television, "CSI," doesn't draw what "Trapper John, M.D." did 20 years ago, averaging just 16.3 percent of households. Tied at No. 14, "Will & Grace" and "Two and a Half Men" dip below 10 percent (9.9). And down at No. 30, "Judging Amy" pulls just 7.9 percent of American homes.

Varied schedules

With networks no longer being able to count on viewers, they've had to work harder to try to hold them. One could argue that in some programming, this has led to more varied and richer schedules and a willingness to take a few more risks. When a show only needs 10 or 12 percent approval to be a hit, it can be "about nothing."

But it has also brought about the tyranny of the largest minority. Because reality shows are hot right now, most networks throw them up willy-nilly, holding their noses all the way. And news, which networks used to treat more like a public trust in exchange for their licenses to operate over public airwaves, has become another profit center. Viewers bring profits, and because the people want Michael Jackson "news" more than, say, foreign trade news, they get Michael Jackson news.

But now rapidly burgeoning digital technology is threatening to narrow those audiences even further, at the same time giving them the ability to, as TiVo touted in one of its ad campaigns, "pause live TV" -- or record it for later viewing, ignore it altogether in favor of waiting for the boxed DVD set, or, in some cases, interact with it.

The irony is that in gaining so much control, viewers also are likely to lose some, possibly without even realizing it.

"Consumers are definitely getting more control over devices," said Phillip Swann, an industry analyst and publisher of TVPredictions.com. "At the same time, when they think they're getting more control they're actually giving up more control in the long run."

Television has always been the entertainment medium most immediately sensitive to popular taste. Ratings are provided almost instantly, and the very business model is not to sell the entertainment, but to use the entertainment to gather an audience. The audience is what is sold, to the advertisers.

And, as leaders from all aspects of television have warned, when you diminish advertising's effectiveness you mandate that TV has to find a different way to pay for itself.

That means three likely results: the end, or shrinking, of over-the-air free TV to be replaced by much more pay-per-view; more stealth ads sneaked into the content of a show itself, like today's product placement only more so; and, in all likelihood, probably more repeats and a greater ratio of reality schlock to carefully produced scripted fare, because the latter is so expensive to make.

"Ten, 15 years ago, as UHF signals were improved, as cable spread, the beginning of satellite later, spreading the signal, making additional choices more accessible [all] worked to the benefit of the consumer and to almost all of us in the business at the time," Jamie Kellner, who co-founded both Fox and the WB, told reporters in January.

"Technology was our friend and the viewer's friend. Now I think technology is becoming the enemy of both. . . . As you fragment the audience down to too small a piece, you actually, I think, damage the business, its ability to do what pays for it."

But that, Kellner said, is not coming next year: "That's more like 10 years away. But it's going to have to get worse in the next three, four, five years economically and then that will stimulate a change. But the technology will be available to make a change into more of a pay model at that point."

In the meantime, consumer control is working well for those who take advantage of it.

There is a tremendous boom in TV shows, old and new, being repackaged on DVD, in some cases giving them new life, as with the Fox cartoon "The Family Guy." Little watched in its brief original incarnation, it's now showing again, on cable's Cartoon Network, because the DVD sold so well. Obvious cult favorites like "Buffy the Vampire Slayer" led the DVD revolution, but it's now spread down to the likes of "Gilligan's Island," the first season of which was just released with, of course, the "lost" pilot episode.

The price? The more television becomes watched on DVD, the smaller the market is for, say, "Simpsons" reruns. With boxed sets of each of the seasons widely available, it's not hard to imagine a time when you won't be able to see a "Simpsons" rerun two or three times a day, just outside of prime time, on a major broadcast station, as you can in Chicago now.

Interactive TV

Interactive TV, a long prophesied dream of Wired magazine types, has finally begun to gain a minor foothold with the success of the Fox talent contest "American Idol," the results of which are determined by a phone-in vote. More intriguing is that NASCAR viewers on some Comcast cable systems can choose which of several drivers to follow.

"You play the director," Swann said. But again, interactivity is a two-way street: If the TV knows you like Jeff Gordon, it's going to be able to impose some very specific ads on you. Maybe that's helpful, maybe it's annoying and creepy.

Advanced cable video-on-demand services allow viewers not only to buy movies, but also to call up programs they missed the night before.

Then, and most amazingly to viewers and most ominously to telecasters, there is the digital video recorder. DVRs such as TiVo are in a small fraction of homes now, but that number is, finally, growing rapidly.

They floundered in the marketplace as stand-alone boxes, despite reams of (justified) hype. But now some cable systems have begun marketing them in combination units with cable receiver boxes. Time-Warner Cable, for instance, went from essentially 0 installed DVRs to 340,000 in the course of the last year, Swann said.

What the technology allows consumers to do is create their own network, recording shows they want to a hard drive, calling them up when they want, and, of course, whizzing past the commercials.

With the machine as middleman, TV turns from an overexuberant effusion of programming into a boutique. Enjoy it now, but know that there will, soon enough, be a price to pay.
http://www.chicagotribune.com/featur...technology-hed


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Et Tu, Fair Use? The Triumph of Natural Law Copyright
John Tehranian

Abstract:
Since its advent in 1841, the fair use doctrine has been hailed as a powerful check on the limited monopoly granted by copyright. Fair use, we are told, protects public access to the building blocks of creation and advances research and criticism. This Article challenges the conventional wisdom about fair use.

Far from protecting the public domain, the fair use doctrine has played a central role in the triumph of a natural law vision of copyright that privileges the inherent property interests of authors in the fruits of their labor over the utilitarian goal of progress in the arts. Thus, the fair use doctrine has actually enabled the expansion of the copyright monopoly well beyond its original bounds and has undermined the goals of the copyright system as envisioned by the Framers.

Specifically, this the Article first analyzes the anti-monopolistic impetus for federal copyright protection and reflects on the original understanding of copyright as epitomized by a series of early cases on the rights of translation and abridgement. The Article then examines the impact of the fair use doctrine on the copyright monopoly and progress in the arts. All told, the Article calls for a serious reassessment of the role of fair use in the infringement calculus, especially in an age where networked computers and malleable digital content has enabled new forms of artistic and post-modern experimentation.
http://papers.ssrn.com/sol3/papers.c...ract_id=486283


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Is Copyright Property? A Comment on Richard Epstein's Liberty vs. Property
Adam Mossoff

MSU-DCL Public Law Research Paper No. 01-25

Abstract:
This short essay is derived from commentary on Richard Epstein's article, Liberty vs. Property, which were delivered at the 2003 conference on Promoting Markets in Creativity: Copyright in the Internet Age, co- sponsored by The Progress & Freedom Foundation and the George Mason University's Tech Center. The essay suggests that the opponents of Epstein's position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that "copyright is policy, not property," this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that "copyright is policy, not property," is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government's utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition - we are still in the midst of the digital revolution-copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright's status as a property entitlement.
http://papers.ssrn.com/sol3/papers.c...ract_id=491466


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Who Owns My Ownership?
Julian Dibbell

How naive must one be, in this day and age, to spend months debating the question of virtual property without once wondering whether the question itself (or at any rate the phenomenon underlying it) wasn't already somebody's intellectual property?

Speaking only for myself, I confess the thought never crossed my mind. Not until last week, that is, when I received a friendly email from veteran game designer Ron Martinez, who alerted me to U.S. patent 6,119,229, "Virtual Property System," filed April 1997, granted September 2000, and jointly held by Martinez, Greg Guerin, and the famous cryptographer Bruce Schneier.

Here's the abstract. Game designers, read it and weep:

"A digital object ownership system is disclosed. The system includes a plurality of user terminals, where each terminal is accessible by at least one individual user. The system also includes at least one central computer system that is capable of communicating with each of the user terminals. A plurality of digital objects are provided, where each of the digital objects has a unique object identification code. Each of the digital objects are assigned to an owner. The digital objects are persistent, such that each of the digital objects is accessible by a particular user both when the user's terminal is in communication with the central computer system and also when the user's terminal is not in communication with the central computer system. The digital objects have utility in connection with communication over a network in that the object requires both the presence of the object identification code and proof of ownership."

It's hard for this layperson to see how the patent doesn't cover every MMORPG with an economy, but Martinez assures me not all games with property in them infringe. In particular, he notes, "[t]here is a distinction between [traditional multiplayer inventory systems] and a limited edition, ownable object, particularly one that can be exchanged for cash value." To the extent that that's a distinction with a difference, my guess is it means that the deeper designers build transaction systems into their games, the harder they step on this patent's toes.

IP lawyers and other masochists will want to read through the details of the claim and judge for themselves.
http://terranova.blogs.com/terra_nov...ns_my_own.html


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MacArthur Foundation Awards $600,000 to Electronic Frontier Foundation

To Represent the Public Interest in Global Standards on Digital Television
Press Release

Chicago, IL - The John D. and Catherine T. MacArthur Foundation has awarded a $600,000 grant to the Electronic Frontier Foundation to represent the public interest at meetings of the Digital Video Broadcasting Project in Europe where global standards on digital television and other digital data services will be set.

"There are a number of influential members of the entertainment industry that use industry standard setting meetings - such as the Digital Video Broadcasting Project in Europe - as opportunities to mandate technological features that control digital media, such as devices for digital television that limit the user's ability to copy programming for personal use or to skip commercials," said Jonathan F. Fanton, President of the MacArthur Foundation. "By participating in such meetings, the Electronic Frontier Foundation is working to protect the rights of the user and ensure that future uses of technology are not restricted by the industry."

"We're so pleased that the MacArthur Foundation is supporting our work in this important area," said EFF Executive Director Shari Steele. "It's imperative that the public interest be represented in these standards meetings, and thanks to the Foundation, we'll be able to make sure that the public's voice is heard."

The Digital Video Broadcasting Project is a consortium of broadcasters, manufacturers, network operators, software developers, regulatory bodies, and others from more than 35 European countries that work together to set standards for their industry. They are currently debating copy-management standards for digital television, which will help determine the future design of televisions, video recording equipment, and video components of personal computers. At these industry meetings, policy is often set that has far-reaching implications for the future use of technology on digital rights management and intellectual property. Because these meetings have traditionally been closed to the media and the cost of attendance has limited the participation of public interest advocates, the Foundation is providing support to ensure there is input that balances the commercial interests normally represented at these meetings with those of the public.

The Electronic Frontier Foundation will use MacArthur funding to prepare for and attend industry meetings, and to educate the European public and European consumer groups about issues related to digital rights management and intellectual property.

The Electronic Frontier Foundation is an organization that was established in 1990 to defend civil rights and civil liberties in cyberspace. They have worked on a number of cases that have become landmarks in establishing a legal framework for the rights and standards in a digital environment, including a case that gave email the same legal protections as phone calls and another case that determined that computer code is protected speech under the First Amendment. They are currently involved in other legal cases involving trademark law and domain names, anonymity, peer-to-peer technologies, and Internet blocking.

About the Initiative on Intellectual Property and the Long-Term Protection of the Public Domain: Through the Initiative on Intellectual Property and the Long-Term Protection of the Public Domain, the Foundation seeks to contribute to an intellectual property regime in the digital era that balances the legitimate needs of both creators and the public. Grants support policy analysis, scholarly research, and participation in significant international forums where intellectual property policy is made. The Foundation will also support work designed to protect over the long term the public domain of information and ideas.

Other recipients of support through the Foundation's Initiative on Intellectual Property and the Long-Term Protection of the Public Domain include Creative Commons to develop and implement a new form of licensing for creative works and an intellectual property conservancy; Harvard University's Berkman Center for Internet and Society to explore the future of copyright in a digital environment; and the Center for the Study of Responsive Law to analyze the intellectual property restrictions being proposed in international agreements, such as the Hague Convention.

Grants for this initiative are made through the Foundation's General Program.
http://www.eff.org/IP/Video/HDTV/20040128_eff_pr.php


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Battle Over Garage Door Openers Spreads To New Front
ILN

BNA's Electronic Commerce & Law Report also reports on a recent decision from the United States International Trade Commission which ruled that a notice barring consumers from using third party garage door openers--inserted "after" a court held that use of "authorized" replacement transmitters does not violate the DMCA--does not amount to a "new fact" sufficient to defeat application of res judicata to this DMCA-related proceeding. Article at http://pubs.bna.com/ip/BNA/eip.nsf/is/a0a8a5u6b2


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Spyware Cures May Cause More Harm Than Good
John Borland

Web surfers battling "spyware" face a new problem: so-called spyware-killing programs that install the same kind of unwanted advertising software they promise to erase.

Millions of computers have been hit in recent years by ads and PC-monitoring software that comes bundled with popular free downloads, notably music-swapping programs. The problem has attracted dozens of companies seeking to profit by promising to root out the offending software. But some software makers are exploiting the situation, critics allege, turning demand for antispyware software into a launch pad for new spyware attacks.

A small army of angry Web users has set up a network of Web sites where they post reports of antispyware programs said to prey on consumers by installing offending files. Some of these charges could get a hearing soon, as public- interest group The Center for Democracy & Technology plans to file complaints with the Federal Trade Commission against specific companies.

"If people feel as though their privacy has been violated by a company that claims to be protecting them, that clearly is an unfair and deceptive practice," said Ari Schwartz, an associate director of Washington-based CDT. "You would think that an antispyware company would hold itself up to the highest standards."

The boom in spyware, adware and other PC hijackers has led to increasing calls for regulation from lawmakers, including presidential candidate Sen. John Edwards, D-N.C., and from public-interest groups.

Many software makers have turned to advertising as a way to make money from consumers who are reluctant to purchase programs. The same approach has been taken by some antispyware companies, even though they promise that their products will root out unwanted advertising from others. But the failure of some to disclose their practices has raised the greatest outcry.

Like viruses, adware and spyware programs can sneak into a user's computer hard drive with little or no warning and can hide their tracks in ways that make it difficult for even the most sophisticated computer users to find and permanently delete.

As adware and spyware have spread, demand for applications that clean up infected hard drives has grown, drawing a large group of competitors eager to profit. More than 50 programs claiming to erase adware and spyware are available online, and many of these are offered as free downloads. Several major Internet service providers, including EarthLink and America Online, have also moved to provide spyware-removal applications to their subscribers.

But as these programs proliferate, some software makers face mounting criticism that their products install the very things they promise to defend against. Some antispyware companies have pointed fingers at rivals and have added competing programs to their list of applications that contain adware or spyware. These lists are used to identify and sweep out offending software during antispyware scans.

Keeping track of spyware
One such tool facing allegations of abuse is SpyBan, an antispyware program that has been downloaded some 44,000 times in the last four months, according to Download.com, a software download site owned by CNET Networks, the publisher of News.com. Download.com removed the software this week, noting that SpyBan had failed to disclose and explain all the software components included in its installation, a violation of the Web site's policies.

Numerous competing antispyware companies, including Spybot-Search & Destroy parent PepiMK Software and Sweden-based Kephyr.com, have identified SpyBan as a potential source of unwanted spyware--notably a program listed by many spyware cleaners as Look2Me. Download.com had also independently warned that Look2Me might be installed along with SpyBan.

"I classified SpyBan as a Trojan Horse, since it gives the impression that it will protect your privacy, but does the opposite--installs spyware," alleged Kephyr's Roger Karlsson in an e-mail interview.

A CNET News.com test of SpyBan on Jan. 29 found that the software did remove some adware components but also confirmed that it led to the installation of a file that Spybot and security firm Symantec identified as Look2Me. Symantec lists Look2Me as a spyware application, while its rival PestPatrol defines the same application as an adware program.

"Look2Me is a spyware program that monitors visited Web sites and submits the logged information to a server," Symantec reports on its Web site. According to PestPatrol, Look2Me is categorized as "software that brings ads to your computer. Such ads may or may not be targeted."

Who is SpyBan?
Information and links on SpyBan's Web site disappeared late on Monday, following inquiries from a CNET News.com reporter. An e-mail to a generic "info" address at the SpyBan Web site elicited an initial reply, but the company did not reply to questions about its software.

Prior to going dark, the SpyBan Web site contained no information about its corporate parent, and the domain name database--Whois--that typically contains contact information for companies contained none for SpyBan.

A Look2Me license agreement found on a cached Google Web page identified Minneapolis-based NicTech Networks as the software's "owners/authors."

A trace of SpyBan.net's Web domain name late on Tuesday showed that the site was hosted at the same Internet address as NicTech Networks. The SpyBan e-mail also originated from that IP address. Repeated calls to NicTech were not returned.

A question of trust
The effects of spyware and adware programs vary. Some spyware programs run quietly in the background, sometimes capturing what a computer user types or what Web sites are visited. Some of these applications, which are called keystroke loggers, are so potent that they can record user names and passwords for the most closely guarded Web sites, including online banks.

Far more common are "adware" programs, which can operate unseen in the background. These periodically pop up windows with advertisements, change a Web browser's home page, install unwanted search toolbars or add bookmarks to a browser. Many of these software programs track Web surfers' habits online and send the data to their parent companies.

Security experts say it is difficult to keep up with spyware programs, which constantly shift their way of working inside a computer to evade detection and which generally contain many times more programming instructions than an average virus. The confusion is underscored by differences in how security firms describe specific programs.

"I doubt anyone knows precisely what these things do, apart from the authors," PestPatrol researcher Roger Thompson said. "They are really complex. Viruses are easy compared to these things."

There is little doubt that millions of PCs have been infected with spyware and adware programs.

A recent unscientific EarthLink survey gives some indication of the spread of the problems. The company offered its subscribers a free online spyware-scanning tool, similar to an antivirus scan program. In the course of 426,500 scans, EarthLink found more than 2 million adware files installed and more than 9 million "adware cookies"--a type of cookie that tracks people's surfing habits.

A few independent antispyware companies, such as Lavasoft's Ad-Aware and Spybot, have been around long enough and have been used by enough people to have gained a reputation as safe.

For the most part, Net experts warn consumers simply to be careful, to make sure that they trust the source of any software they install on their computers and to contact authorities such as the Federal Trade Commission if they think that their privacy has been violated.

"My first advice, if you get spam advertising a piece of software: You should really think twice before downloading that program," the CDT's Schwartz said.
http://news.com.com/2100-1032-5153485.html


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Lawmaker Sees VoIP Classified as Telecom Carrier
Roy Mark

U.S. Rep. John Dingell (D-MI) said Wednesday the Federal Communications Commission (FCC) should "step back from its apparent rush" to classify the Voice over Internet Protocol (VoIP) (define) telephone business as an information service.

In a process that is expected to take at least a year, the FCC began proceedings in December to determine what, if any, telecom taxes and rules should apply to VoIP. If the FCC determines Internet- based telephony is an information service, as opposed to a telecommunications carrier, the emerging technology would be free of many of the myriad rules and regulations governing traditional telephone companies.

"As the FCC moves forward in this proceeding, there are several economic and social implications that must be considered. Among the most important are universal service, law enforcement and 911 services," Dingell said at a House Subcommittee on Telecommunications and the Internet. "Based on recent news reports, I am concerned that the FCC chairman is not sufficiently aware of these issues."

Dingell, the ranking member of the Energy and Commerce Committee that oversees the telecommunications and entertainment industries, said it may be "far wiser" for the FCC to regulate VoIP as a telecom carrier and then "forbear where appropriate."

While VoIP technology clearly provides telephone service, it does it by turning voice packets into data packets and does so over the virtually unregulated Internet, both public and private, instead of the heavily taxed and regulated public switched voice telephone networks (PSTN). The VoIP industry claims it is not a telecom since it does not deal in voice traffic and should not be subject to the usual taxes and regulations.

While the FCC has signaled it thinks VoIP should be as regulation-free as possible, the Department of Justice has already urged the agency to require VoIP providers to comply with the Communications Assistance for Law Enforcement Act (CALEA), which mandates telephone companies, at their own expense, make their systems wiretap friendly.

There are also concerns about the location accuracy of 911 calls and whether VoIP telephone companies should pay fees into the Universal Service Fund, which subsidizes telephone service for low income individuals and schools and libraries.

Telecom analysts at the hearing, however, said requiring the VoIP telephony industry to meet the same wiretap availability and 911 mandates of traditional telephone companies will have little effect on the expected growth of VoIP.

Even if VoIP providers are required to comply with CALEA and 911 rules, Adam Quinton, a telecom analyst for Merrill Lynch, told the lawmakers that "VoIP will still offer cheaper service than traditional telephone companies."

In fact, Quinton predicted, requiring CALEA and 911 compliance "could actually accelerate the growth of VoIP, making the service comparable to traditional telephone services."

Frank Louthan, an analyst with Raymond James, said "technology will solve the law enforcement and 911 issues, but the other issue to consider is access fees. That will be the more difficult issue to get around."

In addition to issuing its first proposed VoIP regulations next week, the FCC is expected to rule in March on several claims already on file that VoIP services should be exempt from federal, state and local fees normally charged on telephone calls.

Long distance carrier AT&T (Quote, Chart) is challenging the fees it must pay for delivering calls traveling mostly over the Internet to traditional local carriers. Free World Dialup, whose calls are routed entirely over the Internet, is seeking a total exemption from FCC imposed fees since its traffic never touches the legacy Bell infrastructure system.
http://www.internetnews.com/infra/article.php/3308761


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Protect Your Investment: Buy Open
Cory Doctorow

Scoble has written a weblog entry about, among other things, iTunes DRM and Microsoft DRM, and whether you should get an iPod. Scoble works for Microsoft, as do a number of good, sharp, ethical people that I know, and I know him in passing, and he seems to be a good guy. With that disclaimer out of the way, let me say that I think that this blog entry of his epitomizes the sloppiest, worst thinking about digital-media in the field today.

Scoble's point, if I understand it, is that we are going to spend a bundle acquiring music from "legit" services like the iTunes Music Store and the upcoming Microsoft music store. If we spend hundreds of dollars on digital music, we should be on the lookout to protect and maximise that investment. I agree.

Well, says Scoble, all of the music that we buy from these legit services is going to have DRM use-restriction technology ("See, when you buy music from a service like Apple's iTunes or Napster (or MSN), it comes with DRM attached."). So the issue becomes "choosing between two competing lockin schemes."

And in that choice, says Scoble, Microsoft wins, because it has more licensees of its proprietary, lock-in format. That means that when you want to play your music in your car, it's more likely that you'll find a car-stereo manufacturer that has paid Microsoft to play Microsoft music than that you'll find one that has coughed up to Apple to play Apple music.

And this is the problem with Scoble's reasoning. We have a world today where we can buy CDs, we can download DRM- music, we can download non-DRM music from legit services, we can download "pirate" music from various services, and we can sometimes defeat DRM using off-the-shelf apps for Linux (which has a CD recovery tool that handily defeats CD DRM), the Mac (with tools like AudioHijack that make it easy to convert DRM music to MP3s or other open formats) and Windows (I assume, since I don't use Windows, but as Scoble points out, there's lots of Windows software out there.).

In this world where we have consumer choices to make, Scoble argues that our best buy is to pick the lock-in company that will have the largest number of licensees.

That's just about the worst choice you can make.

If I'm going to protect my investment in digital music, my best choice is clearly to invest in buying music in a format that anyone can make a player for. I should buy films, not kinetoscopes. I should buy VHS, not Betamax. I should buy analog tape, not DAT.

Because Scoble's right. If you buy Apple Music or if you buy Microsoft Music, you're screwed if you want to do something with that music that Apple or Microsoft doesn't like.

Copyright law has never said that the guy who makes the records gets to tell you what kind of record player you can use. If Scoble and his employer want to offer a product with "features" that their customers want, those features should reflect what their customers want: No Windows user rolled out of bed this morning and said, "I wish there was a way that I could get Microsoft to deliver me tools that allow me to do less with the music I buy."

No, the "customer" for Microsoft DRM is the guy who makes the records: the music industry; and not the gal who buys the records: you. That customer has already told Microsoft how it feels about its products: in the Broadcast Flag negotiation, the movie companies locked Microsoft DRM out of consideration for use in next-generation PVRs in favor of DRM that Sony (also a movie company, surprise, surprise) had a patent for.

Microsoft is selling out its customers to people who aren't even buying. Scoble points out that Microsoft licensed the hell out of its OS to hardware vendors, pioneering a new kind of open-ness. He's right. Microsoft set a good example that Apple has been too stupid to follow, and it's time for the company to do it again. When Microsoft shipped its first search- engine (which makes a copy of every page it searches), it violated the letter of copyright law. When Microsoft made its first proxy server (which makes a copy of every page it caches), it broke copyright law. When Microsoft shipped its first CD- ripping technology, it broke copyright law.

It broke copyright law because copyright law was broken. Copyright law changes all the time to reflect the new tools that companies like Microsoft invent. If Microsoft wants to deliver a compelling service to its customers, let it make general- purpose tools that have the side-effect of breaking Sony and Apple's DRM, giving its customers more choice in the players they use. Microsoft has shown its willingness to go head-to-head with antitrust people to defend its bottom line: next to them, the copyright courts and lawmakers are pantywaists, Microsoft could eat those guys for lunch, exactly the way Sony kicked their asses in 1984 when they defended their right to build and sell VCRs, even though some people might do bad things with them. Just like the early MP3 player makers did when they ate Sony's lunch by shipping product when Sony wouldn't.

But forget Microsoft, because Scoble's not talking about the best thing for Microsoft, he's talking about the best thing for you. The best way to protect your investment in music. Without a doubt, the best way to protect that investment is to only buy music that isn't in a lock-in format, and to break the locks on any music you do own, while you can. Scoble asks what you will do if "Apple doesn't make a system that plays its AAC format in a car stereo?" I'll tell you what you should do: you should get yourself tools to turn AACs into OGGs or MP3s right now, so that you can buy any car stereo you want and play your music on it. If you can't get those tools, you shouldn't buy AACs (Student: "What do I do if three thugs follow me down a dark deserted street in the middle of the night?" "Master: Don't walk down a dark deserted street in the middle of the night.")

Microsoft can pursue the bone-stupid strategy of kowtowing to the music labels instead of delivering the tools its customers want, but it's a dead end. When Sony invented the VCR, it did so after the movie companies had already decreed that they would only license their movies for use on the "Discovision," a hunk of shit best forgotten on the trashheap of history (much like the products that Sony later delivered instead of MP3 walkmen). With the VCR, though, Sony delivered what its customers wanted, and the movie companies got rich off of it, dragged kicking and screaming to the money-tree again.

Now, that's grandiose. Now that's visionary. Next to that, Microsoft's fraidy-cat technology is suicidally stupid, and so are you if you invest in it. Protect your investment. Vote with your wallet. Buy open. Link
http://boingboing.net/2004_01_01_arc...22707986132477
















Until next week,

- js.













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Jack Spratt's Week In Review is published every Friday. Please submit letters, articles, and press releases in plain text English to jackspratts (at) lycos (dot) com. Include contact info. Submission deadlines are Wednesdays @ 1700 UTC.