April 24, 2024

The "…and Technology" Debate

When an invitation to the facebook group came along, I was happy to sign up as an advocate of ScienceDebate 2008, a grassroots effort to get the Presidential candidates together for a group grilling on, as the web site puts it, “what may be the most important social issue of our time: Science and Technology.”

Which issues, exactly, would the debate cover? The web site lists seventeen, ranging from pharmaceutical patents to renewable energy to stem cells to space exploration. Each of the issues mentioned is both important and interesting, but the list is missing something big: It doesn’t so much as touch on digital information technologies. Nothing about software patents, the future of copyright, net neutrality, voting technology, cybersecurity, broadband penetration, or other infotech policy questions. The web site’s list of prominent supporters for the proposal – rich with Nobel laureates and university presidents, our own President Tilghman among them – shares this strange gap. It only includes one computer-focused expert, Peter Norvig of Google.

Reading the site reminded me of John McCain’s recent remark, (captured in a Washington Post piece by Garrett Graff) that the minor issues he might delegate to a vice-president include “information technology, which is the future of this nation’s economy.” If information technology really is so important, then why doesn’t it register as a larger blip on the national political radar?

One theory would be that, despite their protestations to the contrary, political leaders do not understand how important digital technology is. If they did understand, the argument might run, then they’d feel more motivated to take positions. But I think the answer lies elsewhere.

Politicians, in their perennial struggle to attract voters, have to take into account not only how important an issue actually is, but also how likely it is to motivate voting decisions. That’s why issues that make a concrete difference to a relatively small fraction of the population, such as flag burning, can still emerge as important election themes if the level of voter emotion they stir up is high enough. Tech policy may, in some ways, be a kind of opposite of flag burning: An issue that is of very high actual importance, but relatively low voting-decision salience.

One reason tech policy might tend to punch below its weight, politically, is that many of the most important tech policy questions turn on factual, rather than normative, grounds. There is surprisingly wide and surprisingly persistent reluctance to acknowledge, for example, how insecure voting machines actually are, but few would argue with the claim that extremely insecure voting machines ought not to be used in elections.

On net neutrality, to take another case, those who favor intervention tend to think that a bad outcome (with network balkanization and a drag on innovators) will occur under a laissez-faire regime. Those who oppose intervention see a different but similarly negative set of consequences occurring if regulators do intervene. The debate at its most basic level isn’t about the goodness or badness of various possible outcomes, but is instead about the relative probabilities that those outcomes will happen. And assessing those probabilities is, at least arguably, a task best entrusted to experts rather than to the citizenry at large.

The reason infotech policy questions tend to recede in political contexts like the science debate, in other words, is not that their answers matter less. It’s that their answers depend, to an unusual degree, on technical fact rather than on value judgment.

iPhone Unlocking Secret Revealed

The iPhone unlocking story took its next logical turn this week, with the release of a free iPhone unlocking program. Previously, unlocking required buying a commercial program or following a scary sequence of documented hardware and software tweaks.

How this happened is interesting in itself. (Caveat: This is based on the stories I’m hearing; I haven’t confirmed it all myself.) The biggest technical barrier to a software-only unlock procedure was figuring out the unlocking program, once installed on the iPhone, could modify the machine’s innermost configuration information – something that Apple’s iPhone operating system software was trying to prevent. A company called iPhoneSimFree figured out a way to do this, and used it to develop easy-to-use iPhone unlocking software, which they started selling.

Somebody bought a copy of the iPhoneSimFree software and reverse engineered it, to figure out how it could get at the iPhone’s internal configuration. The trick, once discovered, was easy to replicate, which eliminated the last remaining barrier to the development and release of free iPhone unlocking software.

It’s a commonplace in computer security that physical control over a device can almost always be leveraged to control it. (This iceberg has sunk many DRM Titanics.) This principle was the basis for iPhoneSimFree’s business model – helping users control their iPhones – but it boomeranged on them when a reverse engineer applied the same principle to iPhoneSimFree’s own product. Once the secret was out, anyone could make iPhone unlocking software, and the price of that software would inevitably be driven down to its marginal cost of zero.

Intellectual property law had little to offer iPhoneSimFree. The trick turned out to be a fact about how Apple’s software worked – not copyrightable by iPhoneSimFree, and not patentable in practice. Trade secret law didn’t help either, because trade secrets are not shielded against reverse engineering (for good reason). They could have attached a license agreement to their product, making customers promise not to reverse engineer their product, but that would not be effective either. And it might not have been the smartest thing to rely on, given that their own product was surely based on reverse engineering of the iPhone.

Now that the unlocking software is out, the ball is in Apple’s court. Will they try to cram the toothpaste back into the tube? Will they object publicly but accept that the iPhone unlocking battle is essentially over? Will they try to play another round, by modifying the iPhone software? Apple tends to be clever about these things, so their strategy, whatever it is, will have something to teach us.

Does Apple Object to iPhone Unlocking?

I wrote Monday about efforts to “unlock” the iPhone so it worked on non-AT&T cell networks, and the associated legal and policy issues. AT&T lawyers have aggressively tried to stop unlocking; but Apple has been pretty silent. What position will Apple take?

It might seem that Apple has nothing to lose from unlocking, but that’s not true. AT&T can exploit customer lock-in by charging higher prices, so it has an obvious incentive to stop unlocking. But AT&T also (reportedly) give Apple a cut of iPhone users’ fees, reportedly $3/month for existing AT&T users and $11/month for new users. This isn’t surprising – in exchange for creating the lock-in, Apple gets to keep a (presumably) hefty share of the resulting revenue.

Apple’s incentive is much like AT&T’s. Apple makes more money from iPhone customers who use AT&T than from those who use other cell providers, so Apple gains by driving customers to AT&T. And it’s not pocket change – Apple gets roughly $150 per user – so even though Apple gets money for selling iPhones to non-AT&T users, they get considerably more if they can drive those users to AT&T.

Thus far, Apple seems happy to let AT&T take the blame for intimidating the unlockers. This mirrors Apple’s game plan regarding music copy-protection, where it gestures toward openness and blames the record companies for requiring restrictive technology. If this works, Apple gets the benefit of lock-in but AT&T gets the blame.

From Apple’s standpoint, an even better result might be to have iPhone unlocking be fairly painful and expensive, but not impossible. Then customers who are allergic to AT&T would still buy iPhones, but almost everybody else would stick with AT&T. So Apple would win both ways, selling iPhones to everybody while preserving its AT&T payments.

What a clever Jobsian trick – using a business model based on restriction, while planting the blame on somebody else.

iPhone Unlocked; Legal Battle Looming?

In the past few days several groups declared victory in the battle to unlock the iPhone – to make the iPhone work on cellular networks other than AT&T’s. New Jersey teenager George Hotz published instructions (starting here) for a geeks-only unlock procedure involving hardware and software tweaks. An anonymous group called iPhoneSimFree reportedly has an easy all-software unlock procedure which they plan to sell. And a company called UniquePhones was set to sell a remote unlocking service.

(Technical background: The iPhone as initially sold worked only on the AT&T cell network – the device was pretty much useless until you activated AT&T wireless service on it. People figured out quickly that you could immediately cancel the wireless service to get an iPhone that worked only via WiFi; but you couldn’t use it on any other mobile phone/data network. This was not a fundamental technical limitation of the device, but was instead a technological tie designed by Apple to drive business to AT&T.)

Unlocking the iPhone helps everybody, except AT&T, which would prefer not to face competition in selling wireless services to iPhone users. So AT&T, predictably, seem to be sending its lawyers after the unlockers. UniquePhone, via their iphoneunlocking.com site, reports incoming lawyergrams from AT&T regarding “issues such as copyright infringement and illegal software dissemination”; UniquePhones has delayed its product release to consider its options. The iPhoneSimFree members are reportedly keeping anonymous because of legal concerns.

Can AT&T cook up a legal theory justifying a ban on iPhone unlocking? I’ll leave that question to the lawyers. It seems to me, though, that regardless of what the law does say, it ought to say that iPhone unlocking is fine. For starters, the law should hesitate to micromanage what people do with the devices they own. If you want to run different software on your phone, or if you want to use one cell provider rather than another, why should the government interfere?

I’ll grant that AT&T would prefer that you buy their service. Exxon would prefer that you be required to buy gasoline from them, but the government (rightly) doesn’t try to stop you from filling up elsewhere. The question is not what benefits AT&T or Exxon, but what benefits society as a whole. And the strong presumption is that letting the free market operate – letting customers decide which product to buy – is the best and most efficient policy. Absent some compelling argument that iPhone lock-in is actually necessary for the market to operate efficiently, government should let customers choose their cell operator. Indeed, government policy already tries to foster choice of carriers, for example by requiring phone number portability.

Regardless of what AT&T does, its effort to stop iPhone unlocking is likely doomed. Unlocking software is small and easily transmitted. AT&T’s lawyers can stick a few fingers in the dike, but they won’t be able to stop the unlocking software from getting to people who want it. This is yet another illustration that you can’t lock people out of their own digital devices.

Judge Geeks Out, Says Cablevision DVR Infringes

In a decision that has triggered much debate, a Federal judge ruled recently that Cablevision’s Digital Video Recorder system infringes the copyrights in TV programs. It’s an unusual decision that deserves some unpacking.

First, some background. The case concerned Digital Video Recorder (DVR) technology, which lets cable TV customers record shows in digital storage and watch them later. TiVo is the best-known DVR technology, but many cable companies offer DVR-enabled set-top boxes.

Most cable-company DVRs are delivered as shiny set-top boxes which contain a computer programmed to store and replay programming, using an onboard hard disc drive for storage. The judge called this a Set-Top Storage DVR, or STS-DVR.

Cablevision’s system worked differently. Rather than putting a computer and hard drive into every consumer’s set-top box, Cablevision implemented the DVR functionality in its own data center. Everything looked the same to the user: you pushed buttons on a remote control to tell the system what to record, and to replay it later. The main difference is that rather than storing your recordings in a hard drive in your set-top box, Cablevision’s system stored them in a region allocated for you in some big storage server in Cablevision’s data center. The judge called this a Remote Storage DVR, or RS-DVR.

STS-DVRs are very similar to VCRs, which the Supreme Court found to be legal, so STS-DVRs are probably okay. Yet the judge found the RS-DVR to be infringing. How did he reach this conclusion?

For starters, the judge geeked out on the technical details. The first part of the opinion describes Cablevision’s implementation in great detail – I’m a techie, and it’s more detail than even I want to know. Only after unloading these details does the judge get around, on page 18 of the opinion, to the kind of procedural background that normally starts on page one or two of an opinion.

This matters because the judge’s ruling seems to hinge on the degree of similarity between RS-DVRs and STS-DVRs. By diving into the details, the judge finds many points of difference, which he uses to justify giving the two types of DVRs different legal treatment. Here’s an example (pp. 25-26):

In any event, Cablevision’s attempt to analogize the RS-DVR to the STS-DVR fails. The RS-DVD may have the look and feel of an STS-DVR … but “under the hood” the two types of DVRs are vastly different. For example, to effectuate the RS-DVR, Cablevision must reconfigure the linear channel programming signals received at its head-end by splitting the APS into a second stream, reformatting it through clamping, and routing it to the Arroyo servers. The STS-DVR does not require these activities. The STS-DVR can record directly to the hard drive located within the set-top box itself; it does not need the complex computer network and constant monitoring by Cablevision personnel necessary for the RS-DVR to record and store programming.

The judge sees the STS-DVR as simpler than the RS-DVR. Perhaps this is because he didn’t go “under the hood” in the STS-DVR, where he would have found a complicated computer system with its own internal stream processing, reformatting, and internal data transmission facilities, as well as complex software to control these functions. It’s not the exact same design as in the RS-DVR, but it’s closer than the judge seems to think.

All of this may have less impact than you might expect, because of the odd way the case was framed. Cablevision, for reasons known only to itself, had waived any fair use arguments, in exchange for the plaintiffs giving up any indirect liability claims (i.e., any claims that Cablevision was enabling infringement by its customers). What remained was a direct infringement claim against Cablevision – a claim that Cablevision itself (rather than its customers) was making copies of the programs – to which Cablevision was not allowed to raise a fair use defense.

The question, in other words, was who was recording the programming. Was Cablevision doing the recording, or were its customers doing the recording? The customers, by using their remote controls to navigate through on-screen menus, directed the technology to record certain programs, and controlled the playback. But the equipment that carried out those commands was owned by Cablevision and (mostly) located in Cablevision buildings. So who was doing the recording? The question doesn’t have a simple answer that I can see.

This general issue of who is responsible for the actions of complex computer systems crops up surprisingly
often in law and policy disputes. There doesn’t seem to be a coherent theory about it, which is too bad, because it will only become more important as systems get more complicated and more tightly intereconnected.