Author: Bruce Boyden

2

What Does It Mean to Be Interoperable?

PlugsInteroperability and content protection (a/k/a DRM) have been much in the news lately. As Deven blogged below, the French DADVSI law recently passed the French Parliament and then last week was modified by the Constitutional Council. Meanwhile, Apple is grappling with Norwegian regulators over the interoperability issue as well. And Randy Picker recently raised the issue of interoperability and video game servers over on the University of Chicago blog.

In the abstract, most people are in favor of interoperability, just like they are in favor of lower taxes, bigger houses, and better-tasting beer. But when it gets down to nuts and bolts, what’s the best way to provide for interoperability? More specifically, does an interoperable content-handling device need to protect the content in exactly the same way as the original device (which would arguably limit the amount of innovation)? Is there some sort of threshold of “good enough” protection that could be identified and mandated (and if so, by whom)? Or is it solely up to one party to decide?

Of course, there are many who hate content protection in all its forms; their answer is no doubt that the law should provide the broadest exception for interoperability possible, because that weakens content protection the most. This post is not really aimed at those people; debating the limits of an interoperability exception with diehard content protection opponents is a bit like discussing Carthaginian-Roman relations with Cato the Elder.

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5

From the Work-Life Balance Front

Right around the same time venerable law-blogger Denise Howell announced she had been fired by Reed Smith, evidently for reasons related to her part-time status, this interesting article (sub. req.) appeared in the New York Law Journal:

Faced with sharp criticism from the state and county women’s bar groups, Nassau County District Attorney Kathleen Rice yesterday defended her decision to let go a dozen part-time women prosecutors unless they agree to work full-time….

All of the part-timers are mothers, although the D.A.’s office has said that some have older children….

Responding to the criticism, D.A. Rice “said two of the top three executive positions in her office are held by women, compared to none under her predecessor…. She also said seven of the 14 management positions in her office are held by women, compared to just two under Mr. Dillon.” On the issue of the part-time program:

“We’re dealing with life and death,” said Ms. Rice, who said full-time attorneys are better able to form the relationships with witnesses that are key to many trials.

You can’t have part-time litigators,” said Ms. Rice, adding that some of her part-time lawyers have been allowed to leave trials at 2 p.m. while the judge and the defense are still in the courtroom.

Over the weekend the New York Times ran a follow-up article that gives more of Rice’s side of the story, and a letter from a reader appeared last week that basically says, “Having a child is a choice, so tough noogies.”

13

Tin Men

As a follow-up to my post about an apparently sleazy car sales tactic a few days ago, I thought I’d point you to a fascinating undercover look at the world of car sales from Edmunds.com. The reporter spent 3 months as a new car salesman, part of it at a high-pressure showroom dedicated to a Japanese brand, and the other at a “no-haggle” dealership for an American brand. In general, the article reminds me of the movie Boiler Room, as well as my own brief career in high-pressure sales (don’t ask). The traditional car lot is a shark pit of deceptive maneuvers aimed at separating marks from their money. The “no-haggle” lot seems much better, but it also seems like it’s not doing a lot of business.

There’s evidence the Internet is changing the whole business:

I was already beginning to see the impact of the Internet because of something that happened during my first few days there. [The reporter talked to a man waiting in the maintenance area, who tells him he got an "awesome deal" on one of the dealership's new SUVs -- $300 below invoice.] I asked how he did it. He said he checked prices on the Internet. He then called the fleet manager and made the deal over the phone.

I had a schizophrenic reaction to this. Part of me admired the fact that he had outfoxed the dealer. But the car salesman side of me was angry that I never “got a shot at him.” It seemed like just a matter of time before people who, in the past, walked onto our car lot, would be on the Internet making deals.

The salesmen are only vaguely aware of this developing trend. I was standing on the curb next to George and we saw one of these high-demand SUVs ready for delivery.

“Another damn Internet sale,” George said. “Why don’t they turn that car over to us? We’d get a grand over sticker. Instead they’re selling it at invoice. Does that make sense?” As the days passed I noticed more and more cars marked “carsdirect.com.” And as I approached people on the car lot they often informed me that they were here to see the fleet manager. More Internet customers.

This indicates that wealthier, computer-savvy customers may be circumventing the sleazy sales tactics, leaving the sharks to prey only on poorer, less-informed customers. It could develop into yet another element of the “poor tax.”

HT: Consumerist

0

J’Accuse!

Dreyfus's Induction into the Legion of Honor J’accuse enfin le … conseil de guerre d’avoir violé le droit, en condamnant un accusé sur une pièce restée secrète….

Today is the 100th anniversary of the end of one of the more astounding legal episodes in modern history, the Dreyfus Affair. French President Jacques Chirac marked the occasion on July 12 (Fr.; BBC coverage) by giving a speech honoring Alfred Dreyfus, a French artillery captain convicted of treason in 1894. July 12, 1906, was the date on which the Supreme Court of Appeal reversed Dreyfus’s conviction and finally proclaimed him innocent; on July 21, in recognition of all he had been through, Dreyfus was made a Chevalier of the Legion of Honor in a ceremony held at the Ecole Militaire. In response to cheers of “Vive Dreyfus!”, Dreyfus famously responded, “No, gentlemen, I beg of you. Vive la France!”

The Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military. As that list should indicate, the affair is ripe with allegorical potential, for all sorts of different purposes, but Americans aren’t very familiar with it.

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Claim of Unilateral Mistake Confers Right to Repossess Non-Financed Car?

A quick contracts/property/tort/consumer law hypothetical for incoming first-year law students (and their professors) to ponder over:

Car dealer sells a used pick-up truck to Buyer for $8,100 and a trade-in. Buyer pays the full amount by personal check and drives the truck off the lot. Dealer then calls Buyer at home and tells him that they looked up the wrong number in their book; the truck actually costs $10,000 more. Dealer tells Buyer that either he has to return the car and they’ll pay him $500 for his trouble, or he needs to cough up the extra $10,000. Buyer refuses.

In the middle of the night, the Dealer comes and “repossesses” the truck from Buyer’s driveway. Buyer’s trade-in is returned to him. Buyer’s check is not cashed.

Dealer claims that the contract was invalid because “one party ma[de] a mistake, and the other party knew or should have known that a mistake was made.” (See here for more details from WTVF-Nashville, and note the video link on the upper right. The file-dropping bit seems right off the Daily Show.) Assume that the Blue Book value of the truck is $21,240, and the trade-in was worth only a nominal amount.

Discuss; was there a valid contract? What claims does Buyer have, and even more important, what remedies should he get?

(HT: Consumerist)

3

Don’t Write Angry!

GroundhogWay too much writing about copyright issues is done by first, allowing your blood pressure and heart rate to rise as high as possible, and then second doing your entire article (or blog comment) in “steamed” mode. This tends to lead to not-so-insightful analysis. An example appeared in this morning’s Washington Post in Steven Pearlstein’s article, “A Sound Marketplace For Recorded Music,” which focuses (eventually) on the record labels’ lawsuit filed last month against XM Satellite Radio.

The RIAA complaint alleges that XM’s new “XM + MP3″ service, which transmits to XM’s associated “Inno” receiver, falls outside the statutory license provisions for digital music transmissions and therefore violates the Copyright Act. There’s some interesting issues there, but they’re hard to glean from Pearlstein’s article.

First, Pearlstein makes the standard swipes at “monopolists” shutting down “innovation.” This isn’t much more illuminating than the standard rhetoric from large copyright owners, that “pirates” are destroying incentives. It gets very murky when you realize that “innovation” and “piracy” are not distinct categories — you can have innovative pirates. Whether a given service is or should be legal can’t be determined based on these labels, unless you’re an extremist.

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Video Games as Art?

Half-Life CoverSo I’m listening to one of my favorite soundtracks — from the game, Half-Life. Video games are becoming more and more like cinematic experiences. (In many cases, they are being converted into really bad cinematic experiences, such as the Doom movie or Alone in the Dark, but that’s not my point right now.) In addition to soundtracks, video games like Half-Life have plots, scenes, characters, and dialog. A lot of this is rudimentary — the dialog, for example, is pretty limited, and character development is sparse — but it adds a level of depth and complexity to games that only recently were as simple as Space Invaders.

Still, as Roger Ebert pointed out last year, it’s silly to think they rival movies as story-telling formats:

“[V]ideo games [are] inherently inferior to film and literature. There is a structural reason for that: Video games by their nature require player choices, which is the opposite of the strategy of serious film and literature, which requires authorial control.”

Ebert got a lot of hate-mail from gamers for this comment, but I think he’s essentially correct that games are inferior story-telling devices, at least given today’s technology. The more interesting question is whether the loss of “authorial control” that Ebert correctly ascribes as the fundamental difference between a game and a movie makes games “inherently inferior” as narrative devices.

Half-Life and Half-Life 2 illustrate both my points and Ebert’s.

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Red Herrings in the Defense of Liberty Are No Vice

Today’s Washington Post contains an article on the upcoming congressional debate over the procedures to try Guantanamo enemy combatants that features this trope that I’ve seen or heard several times in the past few days:

“I don’t want a soldier when he kicks down a door in a hut in Afghanistan searching for Osama bin Laden to have to worry about . . . whether he’s got to advise them of some rights before he takes a statement,” [DOD Dep. GC Daniel] Dell’Orto said. “I don’t want him to have to worry about filling out some form that is going to support the chain of custody when he picks up a laptop computer that has the contact information for all manner of cells around the world, while he’s still looking over his shoulder to see whether there’s not an enemy coming in after him.”

House Armed Services Committee Chairman Duncan Hunter says the same thing later in the article, and Sen. John Cornyn repeated that idea on Tuesday on the NewsHour. My question: Where is this idea coming from? There’s nothing in the Hamdan decision, as far as I can tell, that even remotely touches on domestic criminal procedure rights being applied to the battlefield. If I’m reading Hamdan correctly, this is beyond a slippery slope argument, it’s digging a trench and then pointing to the slope.

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Cyberspace as Marchland

Wind Farm at South Point, HIThe picture I provided to Dan for his introductory post was taken at South Point on the Big Island of Hawaii, which my wife and I visited last month on our honeymoon. South Point is, as the name implies, the southernmost point on the Big Island and therefore the southernmost point in the United States. It is accessible only via an 11-mile-long, one-lane, barely paved road that cuts directly through a sparsely inhabited, windswept plain to the ocean. At the end of the road, the only signs of life are the makeshift parking lot for visitors, a nondescript navigational beacon, and a rickety pair of boat launches. The area is as isolated as it looks. Although other parts of the island are booming, particularly the area around Kona, the south side of the island, and South Point in particular, has been left behind. The guide books all warn against paying for parking at the nearby “Visitor’s Center;” in fact it is an abandoned building, and the people charging are squatters, not state employees. The proprietor at one of the B&B’s we stayed at told us that people go to live at South Point when they don’t want to be found.

The area is also littered with the remains of failed business ventures. One of the more spectacular of these is the wind farm just north of South Point, pictured above. I have no idea who built the wind farm, or why. But there are now several dozen wind mills standing in various states of disrepair. A few still spin, making a plaintive low whistle that you can listen to if you stop the car and turn the engine off (your entertainment mileage may vary). Most are rusted in place. Several have one or more blades missing. The scene reminded me of what Shelley must have had in mind when he wrote Ozymandias, thinking of Luxor and knowing little of ancient Egypt’s history:

“My name is Ozymandias, king of kings:

Look on my works, ye mighty, and despair!”

Nothing beside remains: round the decay

Of that colossal wreck, boundless and bare,

The lone and level sands stretch far away.

The whole thing strikes me as an apt metaphor for cyberspace. Getting there requires tying South Point and Ozymandias to colonial America, turbulence, the Gunfight at the O.K. Corral, and peer-to-peer filesharing.

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