Record labels win?Jobs in?Law of Unintended Consequences in the bin?

[multi]

U.S. sides with record labels

April 18, 2003, 9:02 PM PT

The U.S. government sided with the recording industry in its dispute with Verizon Communications on Friday, saying a digital-copyright law invoked by record labels to track down Internet song-swappers did not violate the U.S. Constitution.

The move, while expected, came as a blow to the Internet access provider as it struggles to shield its customers.

"We would have expected they would have recognized there are important privacy and safety issues beyond the narrow copyright claims here," said Verizon Vice President Sarah Deutsch, who is also associate general counsel.


Verizon and a recording-industry trade group have been in court since September, arguing over whether Verizon should be forced to help crack down on the online song-swapping that record labels blame for a decline in CD sales.

The Recording Industry Association of America says Verizon is required under law to protect copyrights. Verizon has said it is willing to help, but that the law only applies to Web pages stored on its computers, not the peer-to-peer networks such as Kazaa that merely travel across its wires.

A district court sided with the recording industry in January. Verizon appealed the decision, and is arguing that the names of suspected copyright violators should not be revealed in the meantime.

Verizon argues that the law in question, the 1998 Digital Millennium Copyright Act, known as the DMCA, violates free-speech and due-process rights protected by the U.S. Constitution.

In a filing with the U.S. District Court in Washington, the Department of Justice said the law is not unconstitutional. The Justice Department is required to weigh in on cases where constitutional issues are raised.

Deutsch said she was disappointed that the Justice Department would take such a stand, as stalkers and other criminals could conceivably use the law to track down victims.

"The government's filing today supports the proposition that we have long advocated: copyright owners have a clear and unambiguous entitlement to determine who is infringing their copyrights online and that entitlement is constitutional," said Matt Oppenheimer, senior vice president for business and legal affairs at the RIAA.

"Verizon's persistent efforts to protect copy thieves on pirate peer-to-peer networks will not succeed," he said.

The Justice Department said the law did not violate the free-speech rights of everyday users because it is only targeted at those who violate copyrights.

"It is manifest that the DMCA's subpoena provision targets the identity of alleged copyright infringers, not spoken words or conduct commonly associated with expression," the Justice Department said.

The government also said the law did not violate due-process protections because nothing in the Constitution specifically barred the investigative process set up by the DMCA, which requires record labels to get approval from a court clerk before asking Verizon or other Internet providers to surrender customer names.

Verizon argues that record labels should be required to get permission from a judge, rather than a clerk, a move that would add another legal hurdle to any copyright investigation.

Verizon says such a move is necessary to protect user privacy because otherwise any copyright holder--or anybody claiming to be a copyright holder--could easily obtain the name and address of any Internet user.

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Enter Jobs, exit music piracy?

April 11, 2003, 6:00 PM PT
If Steve Jobs wants to save the music industry, he'll have to convince millions of kids to give up free file-swapping networks and buy their MP3s instead.

The Apple Computer co-founder and CEO has been exploring an acquisition of Vivendi Universal's music division, according to a source familiar with the situation--surprise talks that underscore the deep problems facing the music industry. Apple's entry into the recording business would no doubt carry huge risks for the computer maker. But it could also help create a catalyst for an industry desperate to innovate its way out of the technology trap set when MP3s met Napster and the high-speed Net some four years ago.

Jobs has pulled rabbits from hats before, but this job may require less magic than it seems. Forcing MP3 traders to pay their way once seemed fanciful, but there are signs that the file-swapping juggernaut may be far from unstoppable.


Although holdouts will likely remain indefinitely, analysts said lawsuits and licensed alternatives to file-swapping networks such as Kazaa stand a good chance of turning the tide for a majority of music fans, providing that the industry can create compelling paid services.

"Music professionals see the Net as a demon right now, but in 10 years they'll look back on it as their salvation," said Phil Leigh, an analyst with Raymond James & Associates.

Apple will have its chance to shake up the industry with or without a Universal Music Group deal. The company is said to be close to unveiling a music subscription service for the Mac that would compete with current offerings targeting PCs licensed by the major record labels such as MusicNet, PressPlay, Rhapsody and FullAudio. None of these services has proven a runaway success, thanks in part to competition from free music from the likes of Kazaa. But analysts point to three trends that promise to put some wind in the sails of licensed services in the coming years:

• Free file-swapping services have not always done a good job establishing customer loyalty, frequently badgering users with invasive advertising and leaving them exposed to security and performance problems.

• Lawsuits will likely keep file-swapping services off balance for years, with the threat of court-ordered shutdowns and substantial individual liability.

• Authorized services are emerging that will begin to compete with file-swapping networks in quality and performance.

Mac Waldbaum, an attorney at the law firm Salans who represents record labels in intellectual property disputes, said he believes that Internet music piracy will decline in the long run as music companies refine their services and pursue copyright infringers in court. He added that proposed new international treaties may soon assist intellectual property owners in pursuing claims overseas.

"The laws have been there and they're starting to work," he said, referring to the software industry's seemingly endless battle against pirates. "We haven't seen it with music yet, but that will happen soon."

Even Kazaa hopes to shift the balance of files traded over its network from unlicensed to licensed content. "We provide a complete end-to-end distribution solution for record labels and artists," a representative said, noting the company this week signed a distribution deal with rapper Ice T through a partnership with Altnet.

Breaking consumer habits built on years of freely available music won't be easy--but it likely won't be impossible.

Michael Gartenberg, a research analyst with Jupiter Research in New York, said consumer surveys conducted by his company repeatedly show that people appear willing to pay for music given the right mix of features, performance and price. Current subscription services typically charge 99 cents for each download, although analyst Leigh said he believes those prices may have to fall by half or more to entice large numbers of customers.

One major hang-up facing the music industry to date, Gartenberg said, has been its insistence on including security features to ward off piracy--an addition that frequently degrades the customer experience.

Gartenberg said Apple has done a good job in the past handling so-called digital rights management in its products, pointing to its iPod music player. The devices make it easy to transfer files off of a PC, but prevent casual users from trading files between multiple users.

"Paid music services can compete effectively with free file-swapping networks, but to do that depends on a number of factors," he said. "If you get into reasonably priced downloads with the ability to burn tracks to a CD, then there can be some success there."

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The Street Finds its Own Use for the Law of Unintended Consequences

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Jewish grandmothers are among the great innovators of the late 20th century. Raised in Stone Age Eastern European shtetls, brought to America in leaky, cholera-ridden refugee boats, the great army of Snowbird Seniors retired to Florida and bought VCRs, collaborating to sniff out manufacturers' rebates advertised in the Sunday papers.

Unlike their grandchildren, these elderly women actually mastered their VCRs' cryptic interface. They hooked them up in series and set up tape-duplicating farms of sufficient power and elegance to terrify the likes of Jack Valenti, Motion Picture Association of America (MPAA) president, who testified in 1982 that the VCR was to the film industry as "the Boston Strangler is to a woman alone."

But my grandmother and her bridge circle in their gate-guarded retirement community in Fort Lauderdale aren't bootlegging redacted Blockbuster rentals; they're preserving their family histories.

From Bar Mitzvah and (shudder) bris tapes to family Warhol moments culled from slow-news-day broadcasts when a minicam crew was dispatched to film a championship little league game or college graduation, the denizens of Century Village and its sister shuffleboard paradises compiled, duplicated, and stored their families' video clippings. They distributed the tapes to their far-flung children, forced their friends to sit through them, kvelled over them.
Industrial Failure of Imagination

When the coked-up Hollyweird cabal tried to ban the VCR in the mid-eighties, they thought they were fighting for their existence. They did not imagine that 20 years later they'd be attempting to ban ReplayTV PVRs, terrified that the new devices would kill the pre-recorded tape market, which has become the backbone of their industry, providing revenue long after Police Academy n-1 has left the big screen.

We're accustomed to failures of imagination from the subnormal intellects of the entertainment industry, but even the legendary rule-busting technologists of Sony did not anticipate all the uses that the world would put the VCR to: the amateur porn industry, anti-global activist news-gatherers, student projects, security cameras, and .

The fact of the matter is that no group of engineers in a boardroom can ever anticipate what normal people will do with their inventions.
Success Through Failure

Indeed, the measure of a product's success is how far it diverges from its creator's intentions.

When an invention is turned to uses that the inventor dislikes, the "law of unintended consequences" is invoked. The law of unintended consequences is a cautionary tale, along the lines of "no good deed goes unpunished." A municipality attempts to alleviate a congested highway by adding a parallel road, which encourages new businesses to spring up along the newly opened freeway, which increases the number of commuters, which creates additional traffic sufficient to offset the added capacity.

William Gibson proposed an alternate interpretation, just about the time the VCR was being legalized: "The street finds its own use for things." The innovation only begins in earnest once a new invention leaves the production line and falls into the hands of consumers. Recreational drug users are, of course, famous for this (There's a Lenny Bruce sketch where the kid who discovers glue-sniffing exclaims, "I've done it! I'm the Louis Pasteur of junkiedom!"), but they're just the tip of the iceberg.

Cheapskates and home economists have made a sport of dreaming up new uses for products and trading them around.

Repurposing has turned many a niche invention into a world-changer:

* The telephone, invented to broadcast opera into America's living-rooms
* Krazy-Glue, invented as a field suture
* The Web, invented to help high-energy physicists exchange research papers

These inventions transcended their inventors' tunnel-vision, mutated by their users into the indispensable firmament of modern living. Along the way, they made rather large bathtubs full of money.
Tampering Is the Human Condition

It goes without saying that all of this innovation was only possible because users were free to tamper with their purchases. Watch young children at play: An action figure and a stuffed monkey and a sock puppet come together for an incongruous tea party, Lego bricks and an old tie become a rocket ship, a stack of sofa cushions are a fortress.

The best of us never lose that spirit, that ability to look askew at the devices that clutter our lives and torque them to our needs. The deaf in the UK have embraced SMS as a means of communicating with their friends while roaming away from TDD devices; audio-hackers are juxtaposing pop songs with remixers; remixers; and soldiers used condoms to protect their rifle barrels from saltwater as they waded ashore at Normandy.

Just as a swarm of ants can quickly locate and disseminate the best path to a food source (and a swarm of virtual ants can locate optimal network routes), just as a swarm of hackers can uncover the source of bugs in open source software, a swarm of users can identify the best uses for new technologies.
Universal Machines and Infinite Play

Constraint is the enemy of innovation. Blocks (and high-tech blocks, like Legos) are the darlings of educators and child-development specialists because they encourage open-ended play (likewise, the profitable trend to license Lego kits is bemoaned by the same educators because it constrains children's imaginations). Tamper-resistant seals and proprietary connectors discourage innovation through constraint.

The technological equivalent of the humble block is the Universal Turing Machine. Alan Turing, the father of modern computing, revolutionized computers with his realization that it was possible to replace all the special-purpose electronic computers of his day -- one device for calculating one function, another to calculate another -- with a single, meta-machine.

This Universal Machine -- the foundation of the microprocessor in your watch, alarm clock, VCR, laptop and singing greeting card -- is capable of performing any task that can be expressed mathematically. The Universal Machine ushered in an era of unprecedented innovation. It was the protean, primordial goo that was stretched and deformed and smooshed into every corner of human existence.

Turing's Machine gave us an aesthetic of mutability. Our world is increasingly full of configurable artifacts. The Transmeta chip changes its computing characteristics in response to software instructions, software-defined radio opens the possibility of a single card that can emulate a cell phone, an 802.11b card, or a digital TV receiver. Nanotechnology promises a world of Utility Fogs and smart matter that dynamically reconfigures meatspace as we move through it, optimizing reality to suit our needs.
Selling Innovation (Out)

The problem with innovation is that you can't predict it. That's what innovation means -- the stuff we haven't thought of yet. Great innovations are ridiculous at the time of invention, startling on implementation, and obvious in hindsight.

Cory Doctorow is the co-founder of OpenCola, co-edits the Weblog Boing Boing, writes for Wired, and won the John W Campbell Award for Best New Science Fiction Writer at the 2000 Hugo Awards. He presented Fault-Tolerant Realpolitik: Abandoning Reliability Online at the 2002 O'Reilly Emerging Technology Conference in Santa Clara, Calif.

For example, radio. Recorded music, radio stations, and television killed off Vaudeville, displacing a dominant, well-loved entertainment medium. No one was really sure how these things would make any money, and certainly the idea that laundry-soap manufacturers would underwrite the cost of daytime dramas or that advertisers would pay for radio variety hours interspersed with wooden, insincere testimonials for their products would have been ridiculous in their day. It's easy enough to see why the VCR -- which opened up new a multibillion-dollar market for the film studios -- caused a technophobic panic that is so ridiculous in retrospect.

In 1984, the VCR won its right to exist, and the world prospered because of it. Today all technology, up to and including Turing's Universal Machine, is endangered by the copyright industry. Music and film trade associations like the MPAA and the RIAA have bought senators who are only too happy to enact laws like the Digital Millennium Copyright Act (DMCA) and its successor, the as-yet-unpassed Consumer Broadband and Digital Television Promotion Act (CBDTPA) (a.k.a. "The Anti-Mammal Dinosaur Protection Act").

These laws seek to protect the past at the expense of the future. As the copyright industry stares down the barrel of the latest iteration of Mr. Turing's marvelous invention, cocked and loaded with Moore's Law, it sees the death of its existing profit base and worries about imminent bankruptcy.

The street finds its own use for the law of unintended consequences. Technology will change the way the copyright industry makes its ungodly sums of money, but it won't eliminate it. No one can predict what the innovative ways of selling entertainment will be -- that's innovation for you -- but it will come.

It will come, if we're allowed to invent it. It will come, if the world is able to play and invent and innovate. But the controls enacted by the DMCA and the CBDTPA won't afford us that freedom. Under their regimen, new technologies will only be brought to market after a "consensus" on their features is negotiated at lawyerpoint between the technology industry and the Political Officers of the entertainment industry. Once this "consensus" has evolved, it will be illegal to make, sell, or distribute any technology that doesn't conform to it.

The technologies that come out of this consensus will be the opposite of Turing's wonderful machine. These technologies will be designed so that every use is either forbidden or mandatory.

Explaining why this is a bad thing is tricky. When Hollywood asks us to enumerate the uses we'll lose if it gets its way, we can't. That's innovation for you. If we could predict the future uses of new technology, they wouldn't be innovative.

That's innovation. It's the force that drives our civilization. It's the force that drives our culture. It's the force that makes us human ("the tool-using animal").

I'm not willing to give it up, even if I don't know what it is.

The fact of the matter is that no group of engineers in a boardroom can ever anticipate what normal people will do with their inventions.

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[JackSpratts]

thanks multi!

the piece "unintended consequences" is a favorite of mine. it's required reading for anyone interested in the costs of prior restraint.

- js.

[multi]

if u go to the "from" link there is links to other pages in the peice..
that cory guy writes some alright stuff..
the other two stories were from news.com.com