May 26, 2024

Archives for August 2004

Valenti's Greatest Hits

Over at Engadget, JD Lasica interviews outgoing MPAA head Jack Valenti. In the interview, Valenti repeats several of his classic arguments.

For example, here’s Valenti, in this week’s interview, on fair use:

Now, fair use is not in the law.

We heard this before, in Derek Slater’s 2003 interview with Valenti:

What is fair use? Fair use is not a law. There’s nothing in law.

(Somebody should send him a copy of 17 U.S.C. 107.)

Here’s Valenti, this week, on the subject of backups:

Where did this backup copy thing come from? A digital thing lasts forever.

Here he is in the 2003 interview:

[A DVD] lasts forever. It never wears out. In the digital world, we don’t need back-ups, because a digital copy never wears out. It is timeless.

(Backing up digital data is, of course, a necessary ritual of modern life. Who hasn’t lost digital data at some point?)

Interestingly, in the recent interview, unlike the 2003 one, Valenti shows a blind faith in DRM technology:

I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, we’ll be able to do this, because I have great faith in the technological genius that’s out there.


We’re trying to put in place technological magic that can combat the technological magic that allows thievery. I hope that within a year the finest brains in the IT community will come up with this stuff. A lot of people are working on it—IBM, Microsoft and maybe 10 other companies, plus the universities of Caltech and MIT, to try to find the kind of security clothing that we need to put around our movies.

It may be possible to so infect a movie with some kind of circuitry that allows people to copy to their heart’s content, but the copied result would come out with decayed fidelity with respect to sound and color. Another would be to have some kind of design in a movie that would say, ‘copy never,’ ‘copy once.’

Even ignoring the technical non sequiturs (“stuff … algorithms into a movie”; “infect a movie with … circuitry”), this is wildly implausible. Nothing has happened to make the technical prospects for DRM (anti-copying) technology any less bleak.

We can only hope Valenti’s successor stops believing in “technological magic” and instead teaches the industry to accept technical reality. File sharing cannot be wished away. The industry needs to figure out how to deal with it.

Absentee Voting No Panacea

Various groups that oppose paperless electronic voting have recommended an alternative: if you really want to be sure your vote is counted, vote absentee. Having studied e-voting, and living in a county with paperless e-voting, I sympathize with the desire for an alternative. But it should be noted that absentee voting offers iffy security as well.

The best alternative to risky e-voting, where feasible, is in-person voting with a paper ballot. This allows the main election safeguard, which is the presence of observers from diverse political parties, to operate: the observers can watch the voter check-in process, watch the ballot boxes, and watch the counting of ballots.

With absentee voting, by contrast, the distribution, validation, custody, and counting of ballots are generally less transparent. You’re pretty much stuck trusting the country clerk and his/her staff. I don’t want to cast aspersions on the virtue of any particular county clerk; but I hope you’ll agree that a more transparent system is better.

Absentee balloting also weakens the secret-ballot guarantee, which requires that nobody can verify how another person voted. This is an important safeguard against vote-buying and intimidation, as it frustrates the vote-buyer’s or intimidator’s ability to know that he got his way. Absentee voting allows the voter to prove to somebody else (say an employer, union boss, or abusive spouse) that the vote was cast a particular way. That’s a serious drawback.

Now it may be that you don’t want to sell your vote, you don’t fear intimidation, and you trust your county clerk. For you, absentee voting might be the best available substitute for e-voting in person. But encouraging widespread absentee voting is not a good public policy response to the e-voting problem.

NYT Chimes in on the Real/Apple Issue

Today’s New York Times contains an odd unsigned editorial commenting on the recent dispute between Real and Apple. The piece tries to take Apple’s side, but can’t really find a good reason to do so. In the end, it reaches the unsurprising conclusion that Real is trying to make money.

The piece seems to misunderstand the law.

In late July, RealNetworks introduced a software called Harmony, which allows its music to be played on an iPod. In other words, RealNetworks mimics Apple’s software without licensing it. Litigation will surely ensue.

But mimicking the function of somebody else’s code, without copying the code itself, is perfectly legal, for good policy reasons.

In the end, the piece accuses Real of making truthful but self-serving statements:

It would be better for consumers if Apple began licensing its digital rights management software, only because the iTunes Music Store will not be able to lock up access to all the copyrighted music in the world. But RealNetworks’ contention that Apple is stifling freedom of choice is self-serving.

In other words, Real is right, but they chose to speak the truth, rather than remaining silent, for self-serving reasons. It seems odd, to me at least, to criticize a corporation, which after all is a profit-seeking entity, for trying to maximize its profit while respecting the ethical requirement to tell the truth.

It looks to me like both Real and Apple are behaving rationally within the rules, at least so far. I don’t understand why Mac chauvinists feel a need to take sides on this issue. Real and Apple are competing, and consumers benefit from competition.

Nurturing Innovation (II)

Yesterday, following Tim Wu, I wrote about the use of “innovation” as a slogan by advocates of the freedom to tinker. Today I want to probe further the rhetoric of “innovation” as used in public policy debates.

True innovation occurs in both high-tech and low-tech settings, and it is practiced by everyone: large companies, small companies, other organizations, and individuals. Yet sometimes the term “innovation” is coopted, to stand only for product development by big companies. This is what Microsoft meant with their “Freedom to Innovate” slogan during the antitrust case, and it’s what VeriSign means when they call their troublesome SiteFinder product an innovation.

This narrow view of innovation is especially common in Washington lobbying, where big companies often have disproportionate influence. Yet many of the most important innovations don’t involve big companies, at least not at first.

Consider Tim Wu’s example of Internet email. When email was new, nobody thought it would ever make anyone rich. There was no business model anywhere in sight. If “innovation” means commercial development, then email was not an “innovation” in the 1970s, and a pro-“innovation” policy process would have been indifferent to it.

That’s one of the reasons I like “tinkering” rather than “innovation” as a buzzword. Nobody expects tinkering to have a short-run payoff, but a pro-tinkering policy will allow sleeper technologies like email to be born and to incubate until the commercial world is ready for them.

Nurturing Innovation

Tim Wu, near the end of his stint as guest-blogger at Larry Lessig’s site, offered a typically thoughful entry, entitled “Who Cares About Innovation?“. The gist was that although “innovation” is the mantra of anti-regulation technologists, it may not be clear to the average person what good innovation does. Here’s a sample:

Consider a question that professor Brett Fischman asks his class about the internet, the central monument for innovationists: “What actually makes the Internet valuable to society?”

This question stopped me for awhile. Measured in social value, surely some of the oldest applications, like email, relatively untouched by innovation, produce most of the network’s present social value. Sure, I think VoIP over powerlines would be pretty cool (thanks Adam Thierer). But compared to finding old friends, staying in touch, and everything else that email does, there is no serious comparison. Logic like this suggests that faith in innovation is a faith out of touch with human ends. Perhaps making what is obviously useful – like email – reach more people is more important than constantly reinventing, redestroying, or finally writing the perfect debugger.

I do think the criticisms can be rebutted. Email, after all, was an invention, and required the right environment for it to come about. Innovationists don’t always think about nothing else. But those who share a faith in the importance of innovation should be sure that what we fight hardest for is not just the abstract beauty of new technologies, but ideals that actually have some connection to human ends.

Tim has a point here, but I worry more about the opposite error, in which we don’t bother to protect an innovation because we can’t see an immediate use for it.

Internet email was invented in 1971. Back then, could you have found even one single person in Washington who would point to this fledgling technology as one day being important to the average American? No way – anybody who said that would have been dismissed as a nut. Even two decades later, very few policymakers recognized the eventual importance of email.

Often, we seem to be drifting toward a rule in which new technologies are, by default, banned, unless some functionary can be convinced that they have merit. That’s a dangerous rule, not least because we may never know which potentially world-changing technology was snuffed out at birth.