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07.30.2004
Holiday

Next week, this site goes dark, as I am off to Yellowstone.

posted by James DeLong @ 6:14 PM | General

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iPod and RealNetworks: Apple's Right

By now, every tech reader knows the story. RealNetworks' new Harmony software mimics the copy protection code used by Apple, and permits songs downloaded from Real to play on the iPod.

Apple wants music purchases to go through its own iTunes store and has refused all requests by outsiders to integrate with iPod. It says that it is "stunned that RealNetworks has a adopted the tactics and ethics of a hacker to break into the iPod," and threatens that future updates will end the compatibility. Apple also raises the possibility that Real has violated the DMCA.

Real responds by saying consumers should be able to choose their music source, and that the DMCA allows for interoperability.

The issue is one that keeps coming up in the digital age, in many contexts, including games, printers, and garage doors. The underlying theme is as old as the Gillette safety razor, however, and was a matter of major controversy during the heyday of the Xerox machine.

Gillette followed a strategy of selling the razor cheaply and then coining money from the repeat sales of blades. It secured its hold on blades by patents. Xerox tried a similar strategy, in that it leased out its machines and charged according to how much paper they used, controlling its customers by contract instead of technology.

The objective in each case is to discriminate in price, charging the small user a little and the large user a lot. It makes good business sense, because it expands the market. It also makes sense for consumers, who pay in rough accord with the amount of utility that they derive from the product.

The same strategy can be applied to printers, or to game consoles. If the maker sells the basic item cheaply while maintaining control over the add-ons, such as toner cartridges or games, then it is charging different prices to consumers who value the product differently.

The cyberleft goes into high dudgeon mode over this practice, but in fact it is a reasonable pricing method, and it is much to the advantage of casual users, who can access basic capabilities at a lower price than otherwise. If such bundling is forbidden, then the price of the basic item must rise, to the disadvantage of the light user

So producers should be allowed to choose their business models. Gillette should be permitted to follow its strategy, but, of course, if someone else wants to make a generic razor and allow all comers to sell blades that fit it -- its a free country.

Apple's situation is regarded as different because, according to conventional wisdom, the strategy is reversed. The songs are the basic razor; the profit comes from the iPod itself. So why, ask some, does Apple care, since more music users should mean more iPod device sales?

At least two reasons come to mind. First, conventional wisdom is probably wrong. Establishing iTunes involved a big upfront investment, and Apple needs as much traffic as possible to spread those costs over, even if the main profit is in the iPod.

Second, one of Apple's selling points to the content owners was that the integration of protection software with the playing device was an extra protection against cracking. Real's action breaks this integration, with who knows what result.

Given all these factors, Apple has the right of this argument, from the standpoint of property rights, economics, and common morality.

Furthermore, if society wants to encourage innovative devices, such as the iPod, then the innovator should be able to choose its strategy for exploitation. Real can compete by partnering with other device makers or by starting its own integrated business, but it should not be allowed to wait until Apple has run all the risk -- the iPod was no sure thing -- and then demand to share in the rewards.

posted by James DeLong @ 1:08 PM | General

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More JibJab

More interesting stuff on the JibJab parody at the Volokh Conspiracy.

Update: And at Reason.

posted by James DeLong @ 8:57 AM | General

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07.29.2004
This Song is My Song

The Volokh Conspiracy has a series of posts (see here, here, here, and here) about the controversy over the latest Internet wildfire, the JibJab satiric duel between Bush and Kerry, done to the tune of This Land is Your Land.

If you have not seen it, take a look. It really is pretty funny.

The legal problem is that parody is classified as fair use, and thus not an infringement of copyright, only if the object of the fun is the song itself, not if the song is used to parody something else. So writing a parody of This Land is Your Land would be immune. But using the song to parody the presidential candidates may indeed violate the copyright holder's rights.

A result is that one sees learned legal debate over the exact target of a parody. Is JibJab really satirizing the politicians, or is it also poking fund at This Land is Your Land? Blogger Nick Morgan thinks the latter, and, as he points out, the discussions quickly become so droll that they look like parodies of legal opinions.

It does seem like the law could use a better sense of humor. It is hard to see any damage to the holders of the copyright from this parody, and perhaps they should simply be grateful for having the original returned to the public's attention.

A similar case arose during the last political season, when Ralph Nader produced a commercial that was a riff on the MasterCard "Priceless" campaign.

My thought at the time, to which I adhere: "If a creator of intellectual property is fortunate enough to hit such a rich chord of public resonance that the result becomes iconic -- a Dr. Seuss, a Buffy, a Star Wars, perhaps a 'Priceless' -- then it should accept the bitter with the sweet, and the scope for parody, allusion, take-off, and imaginative adaptation should be broadened, not reduced. Since all creators are both borrowers and lenders, and admitting the importance of protection against direct theft, the effort to try to keep the accounts to the penny is ultimately destructive for everyone."

posted by James DeLong @ 2:48 PM | General

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Software Piracy

In "Pirates of the European", TechCentralStation looks at world-wide software issues, picking up on the recent BSA report.

posted by James DeLong @ 9:10 AM | General

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07.28.2004
The Latest on File-Sharing Lawsuits

In Sony v. Does 1-40, a New York federal court upheld the right of the record industry to file "John Doe" law suits against unknown illicit file sharers and then obtain the names of the alleged violators from their ISPs. (The opinion is available on Lexis, but the Southern District does not put opinions on the Internet.)

The decision was not a surprise, since few had expected any court to rule that constitutional protection of anonymous speech encompasses a right to engage in illicit downloading, any more that one would expect a court to uphold a free speech right to shoplift from a book store. That line of argument was pretty much disposed of by the Supreme Court in Eldred (2003): "The [Copyright Term Extension Act] . . . protects authors' original expression from unrestricted exploitation. . . . . The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech; it bears less heavily when speakers assert the right to make other people's speeches."

What the case really illustrates is that the "Copyleft," or "Free Culture Movement," or whatever one wants to call it, is not being straight with the public. During the Verizon litigation (see also here), when the content owners were trying to obtain names of file sharers before filing suit, the argument was that this was unconscionable and that the owners should be forced to obtain the names through John Doe law suits so that a court could pass on the merits of the allegations. Now, when John Doe law suits are brought, the reaction is: "Oh no! You should not be able to sue them at all."

Similarly, if the content owners attempt to hold the P2P providers responsible for infringement, the Copyleft says that is the wrong approach and that infringers should be sued directly. But if the infringers are sued, then it is contended that they were misled by the P2P providers and that suing them is not fair. But certainly we should not create a new cause of action that would allow the content owners to sue the P2P providers, however egregious their behavior. That would "stifle innovation."

If one asks, "Then just how are the content owners to protect themselves, and incidentally protect the public interest in a flow of creative product?" the response is a vague reference to new business models.

Let us be clear. There is a reason for this shifty approach. The goal of the Copyleft is to destroy the use of property rights and markets in the production of creative property and to substitute -- yes, let us use the dreaded "S" word -- a socialized system under which content would be distributed without cost and creators would look to the government for economic support.

In a talk I heard a couple of months ago, Larry Lessig called this assessment "intellectual McCarthyism." If that be so, then I challenge him and his ilk to explain wherein it errs. I am happy to acknowledge that the values of fostering technological progress and of avoiding unfairness to Internet users are very important, and that our system of copyright law must indeed recognize their value. But I would like some acknowledgment from the Copyleft that the values of protecting creative property and perfecting markets for its distribution also deserve respect. What I hear is silence.

posted by James DeLong @ 3:54 PM | General

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07.26.2004
Marybeth Peters on S. 2560

The debate over the "Inducing Infringement of Copyrights" bill tends to be conducted in terms of abstractions and hypotheticals. But in her recent testimony to the Senate Judiciary Committee, Register of Copyright Marybeth Peters summed up some of the specific concrete acts engaged in by P2P networks that are designed to encourage and facilitate copyright violations. See particularly pages 16-20.

As she notes, a bill directed at these patterns of behavior that are obviously designed to foster copyright violations really does not present significant threat to honest developers of technology.

I started to quote it, but there were too many good parts. So read the whole thing.

posted by James DeLong @ 2:43 PM | General

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More Corporate Blogging - Schwartz on Software

Sun CEO Jonathan Schwartz, who has started regular blogging, has an interesting piece on Competing Against a Social Movement, analyzing Sun's position vis-a-vis Linux.

See also his earlier entries on Competition in the Software Industry and Commodities, Railroads, and How Sun Monetizes Java, which take up the issue of software-as-commodity (or not).

posted by James DeLong @ 10:03 AM | General

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Corporate Blogging

CNET News.com on Friday had an article Blog's the word in big business, with the tagline: "Long heralded as a way for the masses to wrest the Internet back from corporate control, the Web log has emerged as the hottest new enterprise tool."

Microsoft is Exhibit A, as 1000 employees maintain Web logs. Prior posts on the corporate blog phenomenon are here and here.

posted by James DeLong @ 9:05 AM | General

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07.23.2004
Emended " Czar" Quotation

To correct my earlier post about the need for an "intelligence czar," and on the need for czars of any sort, I checked with Woolsey's office and got an accurate version of his statement:

"The 500 years of stupidity, rigidity, and autocracy that culminated in the Bolshevik Revolution is not a model on which to base the organization of American Intelligence."

posted by James DeLong @ 11:24 AM | General

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07.23.2004
Material on S. 2560

posted by James DeLong @ 9:07 AM | General

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Quote of the Day: Let's Not Have a Czar

posted by James DeLong @ 8:05 AM | General

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07.21.2004
Witnesses for Hearing on S. 2560

posted by James DeLong @ 3:59 PM | General

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P2P and Filtering

posted by James DeLong @ 3:53 PM | General

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Antitrust Retrospective

posted by James DeLong @ 7:49 AM | General

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07.20.2004
Markets Affect Type of Files on P2P Networks

posted by @ 1:23 PM | General

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The Free Market Garden

posted by James DeLong @ 9:00 AM | General

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07.19.2004
Good Article on Inducing Infringement & Sony

posted by James DeLong @ 10:57 AM | General

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Hearing on S. 2560 (Inducing Infringement)

posted by James DeLong @ 8:51 AM | General

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07.16.2004
Video of ICAC Event on the DMCA

posted by James DeLong @ 11:34 AM | General

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07.15.2004
Today's Menu

posted by James DeLong @ 3:47 PM | General

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07.14.2004
NYT Rejoinder

posted by James DeLong @ 10:13 AM | General

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Landes & Posner Monograph

posted by James DeLong @ 8:22 AM | General

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07.13.2004
More on Micropayments

posted by James DeLong @ 9:06 AM | General

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07.12.2004
Blogger Powell . . .

posted by James DeLong @ 12:04 PM | General

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07. 9.2004
10th Annual Aspen Summit

posted by James DeLong @ 10:50 AM | General

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Chicken Little-ism & Inducing Infringement

posted by James DeLong @ 10:08 AM | General

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07. 8.2004
Software Piracy Study

posted by James DeLong @ 4:07 PM | General

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07. 7.2004
Tech Workers of the World, Unite!

posted by James DeLong @ 11:43 AM | General

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07. 6.2004
Filtering Technology

posted by James DeLong @ 1:38 PM | General

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07. 2.2004
Upgrades on Open Source & Corporate Blogging

posted by James DeLong @ 8:57 AM | General

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Fahrenheit 9/11

posted by James DeLong @ 8:31 AM | General

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07. 1.2004
Intel Corrects a Typo on H.R. 107: "Change That 'Yes' to 'No' "

posted by James DeLong @ 9:41 AM | General

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