29 November 2003
There is something about technology that seems to make the law occasionally lose its grip on reality.
Imagine that a publisher in the US were to say that only people living in the US were allowed to read a new book they were publishing, and not people living in Europe. How likely is it that both the US and Europe would not only give credence to the claim, but also pass laws to make it illegal for people in Europe to read the book?
But that is precisely what the law says in relation to DVDs, and it apparently sees nothing wrong with doing so.
Nearly all DVDs are region-coded, meaning they only play on hardware whose region matches theirs. So to play a European (Region 2) DVD, you need a European (Region 2) DVD player. It won't work on an American (Region 1) DVD player. The industry claims that it needs to do this to protect its practice of releasing movies at different times in different countries. It also claims that, in some mysterious way, preventing Americans from buying European DVDs (and vice versa) helps protect their copyright. It is difficult to see how this is so, and the industry has never bothered to explain, so we can probably ignore the latter claim.
Consumer groups, on the other hand, claim that the industry is doing this so that they can engage in differential pricing. The whole purpose, they say, is to prevent consumers from taking advantage of the opportunities for price arbitrage which the internet offers. Of late, some public bodies have started to listen. The Australian consumer watchdog - the ACCC - launched an investigation into DVD zoning in 2000 (although the strength of its case is in considerable doubt following the Australian Federal Court's decision on mod-chips in Kabushiki Kaisha Sony v Stevens,  FCAFC 157). And the same year, the EU launched its own high-profile investigation into DVD region coding practices (which I gather from Freshfield's firm profile is still "ongoing"), again pretty much focused on whether the industry was abusing DVD region coding to boost pricing (see, for example, Mr. Mario Monti's speech on European Competition Day 2001).
But, as I recently discovered, DVD region coding affects not just pricing, but even access to content. A few days ago, I thought I'd found the perfect Christmas gift for my little nieces in India. A DVD of Flåklypa Grand Prix - the best children's' movie ever made... well, at least in Norway. However, it turned out that the DVD was only available for Region 2, meaning I simply couldn't buy a DVD which would work on players in India, or for that matter, anywhere outside Europe.
The problem isn't just an Indian one. Companies seem to systematically release different editions of the same movie even as between Region 1 and Region 2. Usually, Region 1 DVDs have many more extras than the corresponding Region 2 DVD. For instance, the Terminator 2 Ultimate Edition DVD for Region 1 included three different versions of the movie (the Ultimate Edition, an Extended Edition, and the Theatrical Edition). The Region 2 version of the Ultimate Edition, on the other hand, only had one - the Ultimate Edition. DVD Debate.com - has an entire section devoted to comparing Region 1 and Region 2 versions of the same releases, which goes to show just how frequently studios do this.
In each of these cases, European consumers are prevented not only from finding a better bargain, but from even accessing content which is available to US consumers. Since their own DVD players are region coded, buying the US edition will be quite useless. The industry is, in effect, claiming for itself the power to tell consumers what versions they can watch, by ensuring that they do not have the technical or legal ability to watch certain versions. So, why isn't the law taking this into account? Why is it not even being considered in the investigations underway? Surely this is as important as the pricing issue?
The reasoning behind the narrow approach that's been taken is pretty much summed-up by a letter from the EU Directorate-General of Competition, available on Eurorights.org's DVD video page:
"[R]egional coding is a technological feature built into DVDs and DVD players, according to which DVDs from one geographical region cannot be played on DVD players from another geographical region. The position of the major film production companies is that it enables them to protect their copyrighted intellectual property and the traditional pattern of releasing their films at different times in different parts of the world, as well as to protect against piracy. The Commission's position, as outlined by the Court of Justice, is that it is only in limited and exceptional circumstances, e.g. if a dominant film producer were to engage in abusive pricing practices, that the Commission could intervene under the competition rules..."
That statement may or may not be fine from a competition law perspective - I'll leave that question open for our two resident competition law experts to mull over. But if this is going to be the only basis on which the law decides whether or not DVD region coding is allowed, then the law is missing the point, twice over.
To start off, the question isn't just one of whether the law should intervene in a free market, as the above letter tries to make out. The law is already doing that, by giving legal effect to the DVDCCA's intellectual property licensing agreements - which tie all manufacturers of DVD players into the region coding scheme and prohibit multi-regional players - and, more importantly, by prohibiting circumvention of region coding technology (Article 6 of the 2001 Copyright Directive (Directive 2001/29/EC) and equivalent provisions of the DMCA and other statutes). Article 6 does not require a violation of copyright - all that is required is that the specific use to which the material is put not be authorised. Since the industry clearly isn't authorising Region 1 DVDs to be played in other regions, Article 6 will in all probability prohibit circumvention of region coding, thus making the numerous region free kits which circulate illegal. Additionally, the DVDCCA is also taking steps to introduce technologies that will prevent DVDs from being played on region-freed players - and Article 6 will make circumvention of these new technologies, too, illegal. So the question really isn't whether the law ought to intervene. The question is whether the law's present intervention is undesirable. And that is not a question that is being asked.
And it is here that the sort of black-letter approach we see in the Australian Federal Court's judgment, the EU Directive, the DMCA, and the letter quoted above really becomes troubling. DVD region coding raises so many issues. Ought the industry to have a right to control consumers' ability to access information and content, solely based on where they live? Should the industry's interest in being able to continue to release movies at different times in different places take precedence over the rights of users? These law should be taking a considered position on these issues. They shouldn't be decided by default, and they certainly should not depend on the answer to the question of whether the industry can erect technological barriers to price arbitrage.
But that is precisely what is happening, and it seems to be happening only because DVDs are a "new technology", unlike books. At times like this, I get the feeling that when it comes to technology-related issues the law is a little bit like the fabled blind men clustered around the elephant, grasping at any similarities it can find. The only difference is, it isn't content with just describing the elephant. It goes on to try and force the elephant to behave like a pot or a pestle or a brush or whatever it's pictured the elephant to be.
28 November 2003
This is pure McCloskey, wringing her hands at the prospect "that sociology may be rigorously following political science itself into what might be called econowannabe-ism: the promiscuous use of rational choice "models" backed with econometrics."
McCloskey raises two concerns about this, which I am afraid I just can't resist extracting in full.
1) Nothing about, though of course plenty about how we speak about, the world-can be proven on a blackboard. Obvious, right? You want to know about the power dynamics of families? Well, game theory written out on a blackboard can keep you clear about your own way of speaking about threat points and the like. That's nice. I'm not against theory. Swell. But the blackboard stuff doesn't in itself, without calibrating the theory to the facts of the world, tell you anything at all about families in the world. Not anything. If you know as much about the history of philosophy as I do (viz., nothing but what I learned in a freshman survey) you'll recognize this as the proposition that synthetic a priori is an impossibility.
2) No finding of fit or statistical significance testifies in itself to the scientific importance of an effect. Fit and importance are not the same thing. Nor is fit something that you "first" determine, and "then" move to substance. The substance of an effect is, to use a technical term, its oomph. Oomph ordinarily has nothing whatever to do with whether the coefficient is statistically significant at the .01 or .05 or .10 level.
Well, fine. But before we start throwing out the baby with the bathwater (I've lost three babies already this week that way) let's not go beating up rational choice theory, or statistical methods for that matter. Nor is the claim of "econowannabe" altogether convincing. Eric Posner has argued that economic analysis of law addresses itself towards a distinctively legal audience, using economic methods to answer traditionally legal puzzles, while Peter Ordeshook has argued that the rational choice paradigm in politics is the consequence of an earlier failed attempt at "economic imperialism". In other words, in both law and political science, the use of rational choice modelling is less econowannabe-ism, than creative adaptation of traditionally 'economic' approaches to our own disciplinary concerns.
A final word on McCloskey - friends of mine who know more about economics than I do tell me that in spite of McCloskey's provocative ideas about the status of economics as a science, and about economic methodology, her work in economic history is terribly orthodox. Still, I am more comfortable with that than with the many philosophers of law and social science that don't actually do any law or social science.
26 November 2003
There's something to be said, I think, for keeping resources on the Web geography free. I can see if you're trying to market a particular good in one area, and it isn't available in another, or if it is required for legal reasons, but for more general resources I just don't understand the fascination with tailoring output based on geographic location of the user.
What has lead me down this road? A recent move from the US to the UK, and the resultant change in how I can surf the Web. Google gives me different results than those it gives my US colleagues, even if I search the US Google and not the UK Google (so much for the, "run this search on google and choose the third link" exchange between friends).
Then, today, I wanted to look at the actual US Code section that details the term of protection for a patent. I went to the Legal Information Institute at Cornell Law School, which is my bookmark for online code sections. When I clicked on "US Code" I got this. From there, I got this, and then, frustratingly enough, when I clicked on the link for "35 USC" I got this.
In case those of you not in the UK cannot access these pages, when I clicked on the "US Code" link on the LII home page, I got a page that says a mirror is available in the UK (offered through Warwick Law School). When I was redirected (or even if I actively clicked the link), and then clicked on my chosen title, I was presented with an empty directory (the page title is "Index of /uscode/35" -- indicating an empty directory).
All this means the mirror is not functioning, and LII has made it impossible for me to access the information elsewhere on its US site. I could use a US based proxy server, but I might as well just go to Lexis . . .
So much for reliable provision of primary legal materials for free on the Web.
And all in all, I'm still wondering about geographic control of information that isn't geography dependent (such as Google searches; shouldn't there be an option for me to get the same results someone in the U.S. would get???). I understand Cornell thinks they are keeping bandwidth usage down, especially on cross-Atlantic uses, but it seems to me then that your technology has to work. The alternative is that people find alternatives (which is what I'm going to do to keep from wasting time).
For sites that seem to alter content based on geography, but are probably not concerned with bandwidth resource justifications, I'll keep thinking about it and check back in when I can articulate what about it is more than just annoying to me (and it is definitely that).
23 November 2003
There is a tendancy in law to argue along the lines of "because law is, or has been, decisions that are made that either support that law or follow from it are automatically unquestionable." Larry Lessig called a form of this "is-ism" in his enlightening book, Code and Other Laws of Cyberspace. And, as Larry pointed out then, it's not necessarily the case. Many times our past decisions, and future decisions, actually shape the possibilities from which we can make new choices. One lesson of this is that sometimes when we see constraints, we've put them there, and we can change them.
While it's apparent that this method of decision-making would not be exclusive to the law, Robert Scoble has given us a great non-law example of decision-making allegedly justified by self-imposed constraints. In offering a justification in response to Mike Rhodes's complaint that Microsoft prefers "proprietary solutions" to open standards, Scoble outlines a bit of the decision-making at Microsoft in relation to standards. Here's some of what he says:
- Why is that the case? Well, most of us at Microsoft have Windows-based computers. If I build a little utility, or write a little Excel script, or interact with the world, I do it from a Windows computer.
- I'll admit it. The team I was a part of decided to support only Windows XP. I supported that decision. I am evil. Heh. Why did I do that? Cause we had a deadline (the PDC) that was immovable and we needed to make tradeoffs to meet that dealine.
- [I]nstead of being afraid of Microsoft's economic and market power, let's use it for good!
- Most of us have Windows-based computers: As a justification for the Windows preference in Microsoft design, that's just plain silly. It is Microsoft that gives its employees Windows XP computers; this is understandable, but it can't then be used to justify Microsoft's decisions to only design for XP. You can't give everyone a specific technology, then look around and say, "Well, it's all we've got, we better go with it."
- Cause we had a deadline (the PDC) . . . : Again, the decision to set PDC as a deadline, what it meant as a deadline (full product development, beta, announcement of future developments), and why it was chosen (market and business reasons, I would guess), are still choices made within Microsoft. It's a bit disingenuous to insinuate that the date of the PDC was actually the operative constraint, when in reality the operative constraints were imposed within Microsoft's decision-making process.
- Instead of being afraid . . . : A refrain that is becoming more and more common; AT&T used to use it when we called it Ma Bell. The British Government uses it, too; it's not very convincing, and it certainly doesn't justify, from an external viewpoint, developing only for your own company's platform.
My point is not that Microsoft should expend all its resources developing software for other platforms, regardless of cost. That's also silly. No, my point is that Microsoft should admit that it does what it does because it can, because it is Microsoft, and because it really doesn't care to support other platforms. It should admit that Rhodes's critique is on target. That also means we need to watch Microsoft closely, because of its power and control of the market. We need to pay attention to the ways that Microsoft's power can be misused to endanger security, the market, and computer reliability. But I think we all knew that already.
22 November 2003
I've got an article that is in the final stages of editing by the Berkeley Technology Law Journal. It's posted on the Social Science Resource Network (SSRN); it's called The Information Semicommons, and it argues that when we perceive that information is property, we perceive it as the wrong kind of property. It is not purely private property, as many would argue, but rather is a semicommons, a form of property that explicitly recognizes the dynamic relationship between private and public uses of information.
The paper can be downloaded here.
I know links aren't why you're here (you want to get some real content, analysis, even; still, there's too much to talk about) . . . but all of these following things I think are either important or cool; things that we should be reading or thinking about (and possibly both, ay?). So, here goes . . .
Selling Social Software. Conference starting December 3 in London (via Many to Many). If only I wasn't going to be out of the UK I would go. I would. Really. You should. Then tell me what I missed.
Is anyone going to this? I think someone should definitely be going. Want to blog it for us? Please do . . .
There's been a lot of talk in the States about the Massachussetts Supreme Court decision ruling relating to gay marriage; some of it is worth reading, some not [I'll amend this post soon with more links]. But something that definitely is worth reading is Jack Balkin's [no permalink] post on drafting Constitutional amendments, and the implications thereof.
Larry Lessig discusses Spam, but thinks that Hormel has somehow not tried to enforce its trademark. What have I missed?
Where did this come from, and is it at all related to this? Probably not, but they're both still interesting . . .
Enjoy . . .
[edited 22 November for clarity and to remove late night overstatements]
17 November 2003
First some provocative remarks on plagiarism : "The sin of plagiarization is not that it involves copying -- this should be rewarded -- but that it doesn't give credit for the originator. Deceit is wrong: it should be avoided. The problem is that the current system of homework and examinations emphasize the individual activity, oftentimes in sterile, meaningless exercises, ones that are easy to grade. Grades are important in determining the future of each student, even though they measure only a fraction of a person's ability and potential, and quite often do a poor job even of the aspects they pretend to measure."
Norman advocates forms of assessment that encourage co-operation and collaboration: "Suppose the grading system measured level of accomplishment. Suppose the school curriculum were divided into modules of useful knowledge or skills, each relatively small (a week or two of class, perhaps even a few hours). Each student is mentored, and the module is marked as complete only when the student masters it. In other words, grade on a "Pass" basis. But only use "Pass" -- do not use a "Fail" or "Not-Pass" grade. A student either knows the stuff or doesn't, and in the latter case, the student is encouraged to keep learning."
What is most interesting about this site is the way Norman (an engineer as well as a cognitive scientist) relates performance to the learning environmnent (including the 'built environment' and the 'virtual environmnent' of cyberspace as well as the social environment). He argues in a Commencement Address to Northwestern University that educational institutions can learn a thing or two from video games designers: "Watch people at video games. You can't tear them away. More importantly, they truly are exercising their minds. They problem-solve. They take notes, read books of hints and strategy. They save the game state, try out a new course of action, and if it doesn't work, return to the saved game state. And they form social communities, sharing hints, tips, and methods. Many of you will understand, for you do it too. "
The message is: design, design, design. Universities should be designed around what empirical cognitive science tell us about how people learn, and interact with each other and with 'things'. Worth bearing in mind, should we ever be moving from Earlham Hall to a custom-built Law School.
But enough of this humanist crap. Here's an alternative view of what a law school could look like, applying Jeremy Bentham's "idea of a new principle of construction applicable to any sort of establishment in which persons of any description are to be kept under inspection".
16 November 2003
- "Simply put, Heisenberg's Uncertainty Principle states that it is impossible to know both the exact position and the exact velocity of an object at the same time. However, the effect is tiny and so is only noticeable on a subatomic scale."
Newsday says Heisenberg's Uncertainty Principle "says subatomic particles exist in multiple possible states at once, however hard as that may be to imagine, until something interacts with them." I guess I understand both of those, but yet, don't. The whole idea of something being in multiple states at the same time is just too far afield from my daily observations. I believe it, but I don't really understand it.
Whatever the case, I'm actually not too worried about the actual technology, or even the theory behind it. I'm more worried about the statement that it's break-proof. My counter is this: if there is a technology in place for long enough, someone will figure out how to break it. Perhaps I'm just being short-sighted, and this really is the first technology to ever be "perfect" in this respect. But I doubt it.
This technology is being "sold" (and the correspondent trust induced) by statements of perfection. Some examples: Newsday starts off its report by saying, "Code-makers could be on the verge of winning their ancient arms race with code-breakers." It will end, according to its developers, the technological arms race.
I worry about these kinds of statements, about any technology being labeled "this" or "that" in any kind of absolute terms. Technology comes, it stays awhile, then it goes again. It's used for things it was intended, and for things it wasn't. Saying "this piece of technology is the last kind of this type we'll ever need" is just wrong, from a theoretical, practical, and historical standpoint. Four years ago headlines like this were being used in reference to 128 bit encryption: An Unbreakable Code You Can Use. But now we know better [warning: pop-up] . . . it may not be easy, but it can be done.
I understand that lots of smart people think this technology can, and will, never be broken. But the first time it is broken, either from someone physically gaining access to the relevant bits and pieces or through a technological oversight (which can include someone who's smart enough to figure it out), that induced trust evaporates (and rightfully so). The lesson is this: technology cannot do what these (and other people) would hope. It cannot guarantee a certain result in every case, every time, and it's wrong to promise -- and to induce trust in that promise -- otherwise.
I would have less trouble (perhaps none) with all this if the company making this technology was touting it as robust, or as strong as Fort Knox in a little black box. It may be. But remember, the Navajos in WWII (and this is yet another technology named for them) were so good because the enemy didn't have any Navajos; if they did, the story changes (there's even some evidence people already recognize this about quantum encryption).
So in the end, this technology may be really, really, really hard to break it. It may take lots of resources, and computing power, and physical access. It may take years. But some people are imaginative, creative, intelligent. And some people have too much time on their hands. Put the two together, and at some time, in some way, the technology will be compromised. It's just the way things are. And likely always will be.
14 November 2003
When I was in college, we had a sign above the radio station console that read: "There's a difference between having something to say, and having to say something." In today's "instant on" media world, we might need to reinforce that idea. Case in point: ZDNet UK runs a story about vulnerabilities in a UK based DIY (that's "do it yourself" for you non-UKers) store's Web site (ZDNet UK - News - B&Q Web site lets hackers do it themselves). I have a problem with the story. Not that it's reporting vulnerabilities, I have a high tolerance for that (even if the site in question needs to go down for awhile to avoid continued compromises). Not that it makes the company look bad (which it does), as it's probably more important to get people looking at their credit card statements (which, as a rule, they don't do).
No, my problem is with the content of ZDNet's story itself. It doesn't say anything important beyond the headline. It includes interviews with people who are "horrified," and with one customer who "is not a regular B&Q customer but had once filled in the registration form on the company's Web site." Wow. Enlightening. And B&Q's response? "The issue is being resolved."
My advice to ZDNet UK? Stick to headlines (perhaps offering the headline only), and think about the difference between having something to say, and having to say something.
11 November 2003
Stefan Collini describes the state of UK Higher Education in the London Review of Books. I know it's not technology, but it is relevant. Here's a piece:
- It's true that it isn't easy to characterise what universities are and what they now do, and so not easy to lay down a 'vision' of what they might do in the future. That is partly because of the intrinsic difficulty of talking about intellectual activity in terms that are both general and useful, partly because the 'higher education sector' embraces a diverse range of institutions each of which is something of a palimpsest of successive social and educational ideals; but above all it is because the populist language that dominates so much discussion in contemporary market democracies " is not well adapted to justifying public expenditure in other than economic or utilitarian terms, and it is principally as a form of expenditure - a problematic or resented one - that universities now attract political and media attention.
Chris at Crooked Timber introduces the piece by saying, "The depressing state of debate over the British University system is well explored by Stefan Collini in the LRB." He concludes: "Read the whole thing."
What are you waiting for?
08 November 2003
There are an awful lot of really interesting conversations going on in the blogosphere, for those interested. One of the most interesting is Clay Shirky's new piece on the Semantic Web, which others are discussing here and here.
Ernie Miller over at "The Importance Of" (which we should all be reading regularly) is discussing how blogs work (Who is John Simpson?) providing an in-depth analysis of criticisms levelled at bIPlog's coverage of the Diebold mess. Good stuff
And, last but never least, Copyfight has coverage of the broadcast flag, a little piece of nastiness just imposed on TV manufacturers in the U.S. and decried by many as little more than a nod to the power of the U.S. content industry.
07 November 2003
As Europe's "Copyright Harmonisation" Directive (pdf, html/low graphics version here) regarding protection of digital rights management schemes comes into play through the enactment of European national laws (such as the UK's provision, which took effect somewhat poetically on Halloween), something else is going on that perhaps some people have missed. Microsoft has released its new Office software.
How are the two connected?
Imagine that you want to send a harassing E-mail to a co-worker; or blogger; or professor. You use Microsoft Office's new security and control features, and off it goes. The intended recipient receives it, reads it, is infuriated, but can't send it on, copy it, save it, print it, or extract the text (copy and paste) from it. She sees that it is set to expire (ie, delete itself) tomorrow. She doesn't want it to expire; she wants to show everyone what an idiot you are.
She calls a friend who is good with technology, and her friend sends her an application that she can use to get around Microsoft's protections (Microsoft, for its part, would pay money to find out this 'circumventer' is). She saves the message, distributes it, and gets you in all kinds of trouble. You find out that you're in trouble, and about how you got in trouble through the saving and distributing of your message.
What do you do? Apologize? Run and hide, hoping it will blow over?
No. You sue her under the relevant anti-circumvention law of your country (in the U.S. it's the infamous Digital Millennium Copyright Act, in the EU the laws follow from the EC Copyright Directive noted above). And do you know what? You win.
Could this happen? Could anti-circumvention measures, designed ostensibly to protect the large content providers from mass piracy, be applied to E-mail (and Word documents, and spreadsheets, and well, everything)? Sure it could, if Microsoft has its way (and when does it not?). For offices that implement Microsoft Office's full package, including its RMS server software and its 'Rights Management Client' add-on for Office (back all the way to Office 98), they will be able to control who can open, change, print, etc., E-mail messages, Word documents, spreadsheets . . . in fact, the platform is designed to be 'utilized by any Windows based application.'
It's not clear to me what happens if you receive one of these messages and do not have Microsoft's control regime in place. It seems most likely that you simply will not be able to read the E-mail (another nod to Microsoft's desire to end inter-operability on a model such as that of the Internet).
There are lots of other problems with this scheme as well, including the potential for fraud and deception, for loss of historical information, and for violation of government and private records retention laws, but these have been noted elsewhere. I'm most interested in thinking about the implications of restrictions on anti-circumvention of protected E-mail. And it seems Microsoft is, as well.