Category: Technology

4

And now, from the Department of Ironic Advertising

Boing Boing

This weekend, Cory Doctorow at Boing Boing ran a story about DRM problems with Apple’s new iPhone; this follows up on prior Boing Boing posts criticizing Apple’s DRM, such as Apple’s iTunes/iPod tying.

And who is sponsoring these posts? Take a look at the page: One of the sponsors is Nike+.

Now, Nike+ is a pretty really cool idea (as Cory himself pointed out earlier). You put a chip in your running shoes, and a little doohickey on your iPod, and your iPod suddenly tells you your pace, distance, and so on. That’s really cool. (It’s actually one major reason I’m considering buying an iPod nano; I may actually get one if I can finesse a way to buy it with Amex rewards points). But Nike+ is also, frustratingly, tied to a single type of MP3 player — the iPod nano. Which kinda-sorta makes it a really strange sponsor for a series of posts blasting Apple’s business model for “lock-in” and calling the iPod line “a roach-motel: customers check in, but they can’t check out.”

Dream Makers, Dream Breakers

stars.jpgI recently saw Dreamgirls, a well-marketed movie that’s largely about Barry Gordy-style marketing of music from the 50s to the 80s. Although there’s a lot to viscerally enjoy in the film, I kept analyzing the action from a lawyerly angle. Compulsory licenses, payola laws, restrictive entertainment industry contracts–all play pivotal roles in the movie. Each becomes a tool in the hands of a mogul and his enemies, as they struggle for fans and creative control.

Later in the weekend, I heard an interview with hip-hop impresario Ryan Leslie, who aims to be a 21st century starmaker. After scoring a perfect 1600 on the SAT, Leslie went to Harvard at 15, and is now precociously producing videos with Hollywood icons. Leslie’s career promises to be a lot less destructive than that of prior industry powerbrokers (for some spoiler-revealing reasons I’ll disclose after the jump). But what few fully realize is how important the law is to such a development.

Read More

What Would Europe Do?

Muni Wifi Router.jpgI went to a few trying panels at the annual law prof conference, but overall I felt presentations in my fields were great. (Perhaps it’s just like Congress–people hate the institution but love their own representative). My two favorite panels were on the internet & telecommunications, and on health insurance. But I felt the latter was ultimately more satisfying than the former, largely because many of the health scholars were deeply aware of comparative health policy, but the internet/telephony panel focused very tightly on U.S. policies.

That’s not to say the internet/telephony panel was at all bad–many big names in the field were there, they directly argued with one another, and a high-level senate staffer injected some political realism into what could have become a speculative discussion. Perhaps the most compelling arguments for the status quo (as opposed to “net neutrality intervention“) were offered by Christopher Yoo, who put forward a quasi-Gilderian vision of Darwinian competition unleashing quantum advances in communication services. For example, Yoo said it would be foolish for the FCC to protect Google from “gouging” by broadband networks, since the danger of such discrimination might just drive Google to massively invest in a satellite network to provide a third alternative to the the telephone/cable duopoly. Some would say it’s that duopoly that’s largely responsible for the US’s pathetic ranking of 21st in the world (right behind Estonia) in broadband penetration.

That makes a lot of sense as far as it goes, and reminds me generally of Schumpeterian visions of innovation–let monopolies rack up rents so they’ll either use profits to innovate or provoke someone else to swipe their customers. But another, gentler vision animates some European policy on the matter, where most customers get much lower prices for much faster services than Americans do.

Read More

Fisking Posner on Inequality

In a recent post on the B-P blog, Richard Posner addresses soaring inequality. In the U.S., “since 1980 the percentage of total personal income going to the top 1 percent of earners has risen from 8 percent to 16 percent.” He concedes a few bad effects from this situation, but ultimately concludes that, aside from upping the estate tax, nothing should be done. My favorite part of the post involves Posner’s speculation that “[m]assive philanthropy directed abroad can interfere with a coherent foreign policy;” fortunately, the administration is already on the case.

It’s astonishing how assiduously Posner ignores the work of Robert H. Frank. In 20 years of rigorous articles and books, Frank has documented over and over the ways that growing inequality harms society. Some of us in the legal profession have applied his theories; Cass Sunstein on cost-benefit analysis, Richard McAdams in Relative Preferences, and my own work on luxury health care and the rise of low-volume, high-margin business models in IP.

But in this post, and even in longer treatments of the subject, Posner ignores the leading American theorist on the consequences of economic inequality. Frank takes his libertarian critics seriously, but somehow falls under the Posner’s radar. (Even in articles published in Westlaw, where a search for [au(posner) and (“robert frank” or “robert h. frank”)] got no hits evidencing engagement with Frank’s work on inequality.)

In what follows, I try to “fisk” Posner’s account of the effects of inequality.

Read More

Law & Technology Theory

prometheus.jpgI just wanted to plug a new forum that Gaia Bernstein, Jim Chen, and I recently launched–Law & Technology Theory. The big question we’re addressing is whether our experience of past regulation of technologies teaches generalizable lessons for future policy. Gaia has nicely summarized some of the key issues we’ll be considering:

Whether [a theory of law & technology] should have broad principles that apply to all technologies or whether it should offer narrower principles relevant to different categories of technologies?

[Can we] formulate a theory that differentiates on the basis of the social values or institutions a new technology destabilizes?

Our “virtual symposium” will host an international group of scholars with a wide range of theoretical commitments. We’ll be publishing the proceedings in the Minnesota Journal of Law, Science, and Technology this Spring. We hope you’ll consider reading and commenting as the discussion progresses. (Some of us will also be at the IASTS conference in Baltimore this February.)

By the way, on a completely untheoretical note, I have to say that the travel time involved in this symposium is great–zero! By developing a forum somewhere between a blog and a conference, we’re trying to promote a new kind of academic exchange. We hope it ends up being a bit more inclusive than the average conference circuit, which can be inhospitable to those who have a tough time traveling.

Art Credit: Elsie Russell, Prometheus (1994).

0

Spam, Spam, and More Spam

computer6a.jpgAccording to CNN:

The number of “spam” messages has tripled since June and now accounts for as many as nine out of 10 e-mails sent worldwide, according to U.S. email security company Postini. . . .

“E-mail systems are overloaded or melting down trying to keep up with all the spam,” said Dan Druker, a vice president at Postini.

His company has detected 7 billion spam e-mails worldwide in November compared to 2.5 billion in June. Spam in Britain has risen by 50 percent in the last two months alone, according to Internet security company SurfControl.

The United States, China and Poland are the top sources of spam, data from security firm Marshal suggests.

About 200 illegal gangs are behind 80 percent of unwanted e-mails, according to Spamhaus, a body that tracks the problem.

Experts blame the rise in spam on computer programs that hijack millions of home computers to send e-mails.

Net Neutrality: Law, Money, and Culture

dailyshow01.jpg

Bill Moyers enters the fray in the raging legal debate over net neutrality tonight, with a documentary on PBS. The Wu/Yoo debate on the topic gets the central issues on the table: should we permit dominant ISP’s (like Verizon and Comcast) to discriminate among the “bits” on their networks, giving more rapid service to preferred sites? I’ve offered some tentative thoughts on the matter, and these continue in that vein.

The net neutrality battle may offer us a classic efficiency-equity tradeoff. Imagine a world where everything on the internet came to you four times faster, but dominant ISP’s could cut deals with certain sites that made their content come 10 times faster. On many classic economic accounts, that would be Pareto-optimal–everyone’s better off. As some very smart people (like Philip Weiser) have claimed, that differential pricing could finally lead to revenue levels that would remedy the US’s unacceptably slow pace of getting people connected to broadband (and faster) networks.

But on the other hand, what about the competitive disadvantage of those unable to cut the deals? Compare this article reprinted in the Boston Pilot (the Boston Roman Catholic Archdiocese’s official paper) touting net neutrality and this piece from Brookings-AEI disparaging it as a form of “price control.” The economists just tend to miss the cultural importance of media consolidation. That’s what convinced me that the stakes are ultimately a “battle for mindshare” (to use Hannibal Travis’s evocative metaphor), and can’t be cast in simple economic terms.

Read More

5

Form of Internet Access Task Force: FTC Group to Examine Net Neutrality

network cables 2.JPG

According to ComputerWorld the FTC has created an Internet Access Task Force to examine whether broadband providers are behaving anti-competitively. Chairwoman Deborah Platt Majoras has framed the issue this way:

I have to say, thus far, proponents of Net neutrality regulation have not come to us to explain where the market is failing or what anticompetitive conduct we should challenge.

First, the quote seems like an invitation for those who support net neutrality to approach the FTC with their arguments. Second, it seems that the question might be put differently so that it asks what anti-competitive behavior we face without net neutrality legislation. The problem may be that proving the undesired behavior now is not possible because it has yet to occur. (Those who have examples speak up and let the FTC know). Even for those who see the NN problem as huge (here’s a link Larry Lessig and Robert W. McChesney’s piece on the topic), the arguments seem quite general and assert that not maintaining net neutrality would lead to X, Y, or Z result but don’t provide the evidence that Majoras appears to want.

Read More

2

AOL’s Treasure Hunt for Spammer’s “Nazi” Gold

gold bar 2.JPG

AOL is prospecting for gold. Literally. CNET reports that AOL won a $12.8 million verdict against three men one of whom is Davis Wolfgang Hawke, an alleged neo-Nazi and spammer sending ads pushing penile implants and diet pills. The judge in the case “granted a motion giving AOL the right to any property that Hawke left with his parents or his grandparents.” So AOL is planning on using sonar and radar to search Mr. Hawke’s parents’ property. His parents, Hyman and Peggy Greenbaum, (according the article Mr. Hawke changed his name from Andrew Britt Greenbaum to cover his Jewish heritage) are not pleased and think their son is not a spammer and that “their son would [not] be ‘stupid’ enough to bury gold bars on their property.”

Curiously, CNET reports that Mrs. Greenbaum believes gold bars do exist, just not on her property. She also thinks her son is hiding in Belize.

With all the oddity on the defendant’s side, AOL’s spokesperson may be the winner in the understatement category as he noted “This particular defendant may have a colorful and outrageous history–there are some conditions that might make this case unique” but asserted that AOL always goes after assets and property and cited past examples such as AOL’s taking a Porsche, a Hummer, and gold coins.

So my question is does AOL sell these items on its site or on eBay?

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.

Read More