December 26, 2024

Why So Much Attention to "What's a Website?" Judge?

One of the benefits of talking to the press is that reporters often ask thought-provoking questions. Recently Noam Cohen, a New York Times columnist, called and asked me why the Net community gets so excited when a public figure professes ignorance about the Net. It’s natural for people to chuckle at Ted “Tubes” Stevens or George “Internets” Bush; but why devote so much e-ink to them? This was the topic of Mr. Cohen’s latest column, which quotes part of our conversation.

The latest victim of Net outrage was a British high court judge, Peter Openshaw, who reportedly said during a trial, “The trouble is, I don’t understand the language. I don’t really understand what a web site is.” Predictably, the Net responded with derision.

Like most folk tales, the Technologically Ignorant Policymaker story has legs because it connects to a deeply felt concern of the community. In this case, it’s the worry of Net folk that policymakers will cluelessly cripple the Net. One ill-considered comment is not by itself a big deal, but it becomes a symbol of a broader problem.

It’s worth noting, too, that in the case of Stevens and Bush the storyline resonates with the speaker’s reputations – fairly or not, neither Stevens nor Bush is thought to be particularly curious or well-informed as policymakers go. Fewer people know about Judge Openshaw, but his comment must have resonated with concerns about judges in general.

Though cathartic for Net folk, these incidents do have a down side. The next time a judge or policymaker hears technical jargon he doesn’t understand, he’ll be a bit less likely to ask for a clarification. And it’s better to ask a question and learn the answer than to stay in the dark.

Finnish Court: Okay to Circumvent DVD DRM

A court in Finland ruled last week that it is not a violation of that nation’s anticircumvention law to circumvent CSS, the copy protection system in DVDs. Mikko Välimäki, one of the defense lawyers, has the best explanation I’ve seen.

Finnish law bans the circumvention of “effective” DRM (copy protection) technologies. The court ruled that CSS is not effective, because CSS-defeating tools are so widely available to consumers.

The case is an interesting illustration of the importance of word choice and definitions in lawmaking. The WIPO copyright treaty required signatory nations to pass laws providing “effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of the rights …” Reading this, one can’t help but notice that the same word “effective” describes both the remedies and the measures. The implication, to me at least, is that the legal remedies only need to be as effective as the technological measures are.

The Finnish law implementing the treaty took the same approach. In language based on an EU Copyright Directive, the Finnish law defined an effective technology as one that “achieves the protection objective” (according to Mr. Välimäki’s translation). The court ruled that that doesn’t require absolute, 100% protection, but it does require some baseline level of effectiveness against casual circumvention by ordinary users. CSS did not meet this standard, the court said, so circumvention of CSS is lawful.

U.S. law took a different approach. The Digital Millennium Copyright Act (DMCA), the U.S. law supposedly implementing the WIPO treaty, bans circumvention of effective technological measures, but defines “effective” as follows:

a technological measure `effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work

Some courts have read this as protecting any DRM technology, no matter how lame. It has even been held to protect CSS despite its notoriously weak design. It’s even possible that the structure of the U.S. DMCA helped to ensure the weakness of CSS – but that’s a topic for another post.

One of the tricks I’ve learned in reading draft legislation is to look closely at the definitions, for that’s often where the action is. An odd or counterintuitive definition can morph a reasonable-sounding proposal into something else entirely. The definition of a little word like “effective” might be the difference between an overreaching law and a more moderate one.

Newsweek Ranks Schools; Monkey High Still Tops

Newsweek has once again issued its list of America’s Best High Schools. They’re using the same goofy formula as before: the number of students from a school who show up for AP or IB exams, divided by the number who graduate. Just showing up for an exam raises your school’s rating; graduating lowers your school’s rating.

As before, my hypothetical Monkey High is still the best high school in the universe. Monkey High has a strict admissions policy, allowing only monkeys to enroll. The monkeys are required to attend AP and IB exams; but they learn nothing and thus fail to graduate. Monkey High has an infinite rating on Newsweek’s scale.

Also as before, Newsweek excludes selective schools whose students have high SAT scores. Several such schools appear on a special list, with the mind-bending caption “Newsweek excluded these high performers from the list of America’s Best High Schools because so many of their students score well above the average on the SAT and ACT.” Some of these schools were relegated to the same list last year – and still, they’re not even trying to lower their SAT scores!

Newsweek’s FAQ tries to defend the formula, but actually only argues that it’s good for more students to take challenging courses. True, but that’s not what Newsweek measures. They also quote some studies, which don’t support their formula [emphasis added]:

Studies by U.S. Department of Education senior researcher Clifford Adelman in 1999 and 2005 showed that the best predictors of college graduation were not good high-school grades or test scores, but whether or not a student had an intense academic experience in high school. Such experiences were produced by taking higher-level math and English courses and struggling with the demands of college-level courses like AP or IB. Two recent studies looked at more than 150,000 students in California and Texas and found if they had passing scores on AP exams they were more likely to do well academically in college.

Worst of all, if parents pay attention to the Newsweek rankings, schools will have an incentive to maximize their scores, which they can do in three ways: (1) force more students to show up for AP/IB exams, whether or not they are academically prepared, (2) avoid having high SAT scores, (3) lower the school’s graduation rate, or at least don’t try too hard to raise it.

When asked why they publishing rankings at all, the FAQ’s answer includes this:

I am mildly ashamed of my reason for ranking, but I do it anyway. I want people to pay attention to this issue, because I think it is vitally important for the improvement of American high schools. Like most journalists, I learned long ago that we are tribal primates with a deep commitment to pecking orders.

As Monkey High principal, I agree wholeheartedly.

What's the Biggest Impact of IT on Copyright?

On Saturday I gave a talk (“Rip, Mix, Burn, Sue: Technology, Politics, and the Fight to Control Digital Media”) for a Princeton alumni group in Seattle. The theme of the talk is that the rise of information technology is causing a “great earthquake” in media businesses.

Many people believe that the biggest impact of IT is that it allows easy copying and redistribution of all types of content. To some people, this is the only impact of IT.

But I argue in the talk that the copying issue is only one part of IT’s impact, and not necessarily the biggest part. The main impact of IT, I argue, is that computers are universal devices that can perform any operation on digital data (except those operations that are inherently undoable and therefore can’t be done by any device).

I stress universality over copying in the talk for two reasons. First, it’s a point that most people miss, especially non-techies. Second, it lets me hint at the most important tradeoff in copyright/tech policy, which is how copyright sometimes stands in the way of developing powerful technologies for creating and communicating. Most people are quick to see the advantages of strong copyright in the digital world, but slow to see the price we’re paying for it.

This debate – whether IT is primarily a copying machine, or a creative tool – seems to run deeply throughout the online copyright debate. Those who see copying as the main impact of IT don’t much mind restricting digital technologies to further their copyright aims. But those who see creativity as the main impact of IT aim to protect the vitality of the IT ecosystem.

I come down on the creative side. I think the biggest long-run effect of IT will be in changing how we communicate and express ourselves. This is not to say that copying doesn’t matter – it clearly does – but only that we need to take the creative effects of IT at least as seriously as we take copying.

As I say in the talk, if IT’s impact is like an earthquake, file sharing is not the Big One, it’s only the first tremor.

(Thanks to Ed Lazowska, whose email exchange with me after the talk triggered this post.)

If It's Not Snake Oil, It's Pretty Awesome (Part 2)

Four years ago I wrote about a company called Music Public Broadcasting:

In today’s Los Angeles Times, Jon Healey writes about a new DRM proposal from a company called Music Public Broadcasting. The company’s claims, which are not substantiated in the story, give off a distinct aroma of snake oil.

I went on to document the snake oil indicators: (1) the flamboyant, self-promoting entrepreneur, newly arrived from another field; (2) the vaguely articulated theoretical breakthrough, described in mystical terms unintelligible to experts in the field; (3) the evidence that the product hadn’t been demonstrated or explained to its customers; (4) the claims to invalidate an accepted, fundamental principle in the field — but without really explaining how it is done. As one potential customer said, “If it’s not snake oil, it’s pretty awesome.”

Now the same company, having adopted a new name, is floating an equally improbable legal theory: that Microsoft, Apple, Adobe, Real, and anybody else making music download tools is legally required to license the company’s technology. Their theory is that these target companies are “avoiding” the use of their anti-copying technology – avoiding it in the sense of not buying it – and the Digital Millennium Copyright Act prohibits avoidance of copy protection. In other words, the target companies have a legal obligation to buy the company’s technology and, on the same theory, any other technology that claims to stop infringement. Snake oil purchases are now mandatory.

If you believe this company’s legal claim is any more solid than its technical claim, I have a bridge to sell you – and let me assure you that you’re legally compelled to buy it.