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Sun May 9 22:50:58 EDT 2010
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FCC Gives Hollywood The Right To Break Your TV/DVR... Just 'Cause - For a couple years now, the MPAA has been asking the FCC to break your TV/DVR, and let them effectively put a type of DRM (by enabling "Selectable Output Control" or SOC) on video content, such that you will not be able to access the content via third party devices, such as your DVR or your Slingbox. Effectively, they want to break the ability of your equipment to work. You wouldn't be able to legally record the movie that was playing on your TV. The MPAA's argument here makes absolutely no sense at all -- and when they're called on it, the doubletalk comes out.

The MPAA's argument is that if it could block people from recording movies, they could release the movies on things like PPV before they release them on DVD, adding yet another window to the long list of windows that Hollywood uses. It's still not clear how more windows helps anyone but Hollywood, but they keep claiming this is some sort of consumer benefit. The thing is, their argument makes absolutely no sense at all when you look at the details. First of all, there was nothing whatsoever stopping them from releasing movies on PPV prior to the DVD release. Nothing. You don't need DRM to do it. In fact, some major studios already do this without breaking your TV in the process.

Of course, the MPAA's response is that it would never release movies this way without SOC, because then people would copy them and... um... piracy... oh mygod... Hollywood is dying. Or something like that. But that makes no sense. First, as noted, some studios already release movies this way. They don't need SOC. Second, the whole claim that this will lead to more unauthorized file sharing is a total red herring -- because all of the movies they're talking about were already in theaters -- and once a movie is in the theaters, it's already available widely on file sharing networks. There is no increase possible, because the content would already be widely available. On top of that, of course, as the GAO just noted, the MPAA's ridiculous claims of losses from "piracy" are totally bogus.

Given all that, it seemed ridiculous to think that the FCC would give in... but late last year the reports were that the FCC had already decided to give in to Hollywood, and today the FCC made it official (pdf):

"This action is an important victory for consumers who will now have far greater access to see recent high definition movies in their homes..."

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The era of legal defensibility is upon us. The legal risk associated with information security is significant and will only increase over time. Security professionals will have to defend their security decisions in a foreign realm: the legal world. This article discusses implementing security that is both secure and legally defensible, which is key for managing information security legal risk.

Now is the time for legal, privacy and security professionals to break down arbitrary and antiquated walls that separate their professions. The distinctions between security, privacy and compliance are becoming so blurred as to ultimately be meaningless. Like it or not, it all must be dealt with holistically, at the same time, and with expertise from multiple fronts. In this regard we must all develop thick skins and be not afraid to stop zealously guarding turf. The reality is, the legal and security worlds have collided, and most lawyers don't know enough about security, and most security professionals don't know enough about the law. Let's change that.

"the newsgathering privilege is inapplicable here because Implode is neither an established media entity nor engaged in investigative reporting."

It explained that "[t]he fact that Implode operates a website makes it no less a member of the press," and that "Implode's website serves an informative function and contributes to the flow of information to the public." ... Therefore, the court concluded, "Implode is a reporter for purposes of the newsgathering privilege."

While the system is designed to restore order on the Big Board, trading is so fast during times of panic that orders routed past the exchange may swamp other venues and exhaust buy orders, said Angel at Georgetown.

That's when prices may plummet as orders execute against so-called stub quotes from market makers. Brokers can set the quotes as low as a penny a share because they're never expected to be used.

if buyers who step in later see their trades canceled, it removes all incentive for them to step in - and then you don't get the bounce back that we saw! Think about how much havoc it causes a trader who astutely bought cheap stock, then sold it out at a profit. He's now short! Or, he spent the entire day wondering if his order would be canceled, in a state of limbo. What's the alternative - that traders should just assume that the orders will get canceled, and NOT buy stock? Guess what - if no one buys, the stock stays cheap! SOMEONE has to buy, and that someone shouldn't be penalized in favor of remedying the ignorance of the seller who screwed up.

But even as I've heard over the past decade that things weren't that bad, that the music industry was moving to a new, better business model, each year's numbers have been worse. Maybe it's time to admit that we may never find a way to reconcile consumers who want free entertainment with creators who want to get paid.

Reflecting on this problem, the computational neuroscientist Anders Sandberg recently noted that although we have strong instinctive feelings about ownership, intellectual property doesn't always fit into that framework. The harm done by individual acts of piracy is too small and too abstract. "The nature of intellectual property," he wrote, "makes it hard to maintain the social and empathic constraints that keep us from taking each other's things."

In other words, we kept to our rules about IP as long as it was attached to a physical object: a book, a CD, a videotape. Now that it consists of endlessly replicable electrons, we are ethically unmoored.

They are Generation Free, and they just might kill the goose that lays the golden egg.

While album sales have generally fallen since 2000, the number of albums being created has exploded. In 2000, 35,516 albums were released. Seven years later, 79,695 albums (including 25,159 digital albums) were published (Nielsen SoundScan, 2008).... Similar trends can be seen in other creative industries. For example, the worldwide number of feature films produced each year has increased from 3,807 in 2003 to 4,989 in 2007 (Screen Digest, 2004 and 2008). Countries where film piracy is rampant have typically increased production. This is true in South Korea (80 to 124), India (877 to 1164), and China (140 to 402). During this period, U.S. feature film production has increased from 459 feature films in 2003 to 590 in 2007 (MPAA, 2007).

Can the market evolve fast enough to keep up with the expectations, and predations, of Generation Free? Even if the music industry manages, what about all the other businesses that depend on intellectual property--including (gulp) my own?

Yet even if die-hard music buffs spend more on albums than the guy who buys one box set a year, they're still buying less than they used to. Moreover, spending less on recorded music doesn't necessarily mean you spend more on shows; the savings could just as easily go toward beer. And even avid music lovers in urban areas can see only a few shows a week. To raise revenue, you have to get new customers in the door or raise ticket prices.

Concert-promotion mogul Michael Rapino has said that just 2 percent of Americans attend more than a couple of concerts a year, which leaves plenty of room to increase attendance, but also suggests that most people don't particularly care for live music. It's far from clear that free MP3s increase the number of concertgoers, instead of just changing the mix of shows they attend.

This fragmentation has been good news for performers like Jonathan Coulton, who makes a decent living selling quirky songs and related merchandise on his Web site. But the broader music industry, like other entertainment fields, has always worked on a tournament model: a lot of starving artists hoping to be among the few who make it big. What happens to the supply of willing musicians when the prize is an endless slog through medium-size concerts at $25 a head?

Moreover, whatever the sins of the big labels, they invest heavily in finding, promoting, and recording new music... People tend to underestimate the extent to which the old industry supports things like... concert attendance.

A smaller, more amateur music business is possible, if not optimal.

But I doubt that YouTube can substitute for Hollywood in a world where "cheap" indie films can cost millions.

Children's films might be made at a loss to sell action figures--but how do you finance The Godfather? With a co-branded line of frozen cannoli?

We have yet to figure out how to make IP work in the new era.

Even if we don't, people will still make pictures, sing songs, and write stories--just not as frequently, or as lavishly

But even if we do, file-sharing will probably alter the form of the works we do create. The popular arts may come to look more like the rest of the Internet...

"AT&T went so far as to tell the FCC that nothing it could possible do would be as worrisome as what Google was up to. "And more than any physical network provider, search engines pose concerns that the [rulemaking] identifies as a potential basis for government intervention: They 'determine the information ... that customers access online' through algorithms that highlight some information, favor certain websites, and even omit some sites altogether. As a result, they can 'deter market entry in areas that would benefit consumers and damage[e] potential entrants.' Just as search engines dominate the selection of winners and losers on the Internet, one search engine in particular -- Google's -- dominates the search engine market."

"Search neutrality" is an absurd notion, given that search algorithms by their very nature aren't neutral, and the entire purpose of search is to discriminate and point the user toward more pertinent results. Meanwhile, Google became a market leader by being good at what they do. Users have other options available if they feel that isn't the case, or if they find that Google is suddenly discriminating in terms of search results -- so Google can very quickly be punished should they begin to engage in ranking skulduggery. A company like AT&T, meanwhile, holds a physical monopoly in many markets -- leaving consumers with little to no option should AT&T choose to engage in anti-competitive behavior.

Search neutrality at its core is a term created by companies eager to bog Google down in bad regulation -- the same kind of bad regulation companies like AT&T believe Google is foisting upon them in the network neutrality debate. The difference, again, is that Google's customers can vote with their wallet, while most broadband customers have few if any alternatives (which is why we argue that tackling competition should take priority). Meanwhile, ISPs repeatedly insist that network neutrality rules aren't necessary because there's no evidence of ISP foul play -- yet here they are -- pushing for nebulous regulations without providing evidence of Google abuse (aside from a few people whining late last year that they weren't ranked high enough for their liking).

All of this simply highlights how the entire network neutrality debate has been so polluted by lobbyist, lawyer and think tank nonsense and hypocrisy (on all sides) -- that it has just completely degraded into incoherent rhetoric. Whatever you think of the need for neutrality regulation, it's important to remember the network neutrality debate truly took off in 2005, with AT&T telling Google they wanted to charge content companies already paying for bandwidth an extra toll -- just because. AT&T was loudly and clearly told by Internet users that this was idiotic idea -- though the conversation seems to have gone completely downhill from there in terms of actually making sense.

File-sharing is also a technological capability that, having been unleashed on society, is highly unlikely to go away. I don't think it's like a smallpox virus that can be eradicated. Close down the Pirate Bay this week and another Bit Torrent site will pop up next week. Find a way to reduce the popularity or effectiveness of this particular form of unauthorized file-sharing and another technology will replace it. The chances are also that the newer forms of file-sharing will be less easy to detect, less easily identified with the individuals at various ends of the process -- until our detection methods improve and seek to clamp them down, and so the cycle will continue.

There is a shift in attitude of mind required. We have to look at a world in which the reproduction right and the control of it are progressively eroded. Given the woefully low level of economic development of alternative methods of funding content, we are fortunate that the rate of erosion is slower than it might have been. Whether the impending new legislation in the UK will slow that erosion any more, I somehow doubt. And unfortunately I believe the cost of that legislation to civil liberties and freedom of speech will be much greater than the likely cultural and economic benefit it strives to achieve.

For those of us toiling in the cultural digital fields however, this kind of legislation also has another negative effect. It continues to provide incumbent businesses with a remedial focus on prevention of piracy rather than on investment in new solutions to the economic problem it causes. Worldwide expenditure on anti-piracy measures is out of all proportion to the worldwide investment in new digital content business models. More importantly the investment in new ways to invest in content is not coming from the music industry. It's coming from new entrants who are faced with the prospect of rights holders who make it difficult and expensive to try new things out. Rights holding companies typically demand advances and even equity in companies that dare to enter their sector with a new idea for creating economic growth.

A school spokesman said it's possible the student who recorded the cell phone video could get in trouble as well because students are not supposed to use their phones during the day.

School officials said they are not allowed to record video in locker rooms because of privacy.

We recently noted how the Library Of Congress and Twitter made a big deal of the fact that the LOC would now be archiving Twitter conversations. The idea is that researchers may find a mountain of largely-incoherent blathering about the Twilight films useful in providing context as they try to piece together events of the twenty-first century. Late last week a little more detail of the archiving process leaked out, the LOC saying that in response to privacy complaints they wouldn't store deleted tweets, and they'd also be placing all tweets under embargo for a period of six months (for whatever that's supposed to accomplish). For good measure, they're also apparently locking down the Twitter archive to "qualified researchers" and considering further restrictions:

"The library will embargo messages for six months after their original transmission. If that is not enough to put privacy issues to rest, she said, “We may have to filter certain things or wait longer to make them available.” The library plans to dole out its access to its Twitter archive only to those whom Ms. Anderson called "qualified researchers."

The historical dangers of "filtering certain things" aside, what's the point of these restrictions? The entire archive is already being indexed by Google in real time, with no delays or restrictions -- and other copies are being doled out to companies like Microsoft and Yahoo. In an age where phone companies are feeding every single byte of data in real time to the NSA with questionable oversight -- worrying too much about the storage of your clever Twitter barbs seems to be missing the forest for the trees. The Library of Congress appears to have responded to these largely-senseless privacy concerns (you are communicating using a public service) by making the government's Twitter archive more annoying to use. Though hey, if the apocalypse manages to decimate every other copy of the Twitter archive -- you can sleep well knowing that you'll still be able to dig through OchoCinco's insights at The Library Of Congress with a laminated community college ID.

In 2008 we noted how Canadian incumbent phone company Bell Canada began throttling smaller wholesale ISP traffic before delivery -- without bothering to tell anyone.  In short, Bell wanted to make sure that smaller, independent ISPs that were reselling Bell's bandwidth weren't able to offer services that were superior to their own throttled and capped DSL service. Independent ISPs complained, and Canadian regulators (CRTC) largely ignored them. Now reader Slatemass writes in to direct our attention to the fact that the CRTC has also approved another Bell plan to begin charging all (wholesale and retail) customers per-byte overages up to $1.13 per gigabyte. Needless to say, operators of smaller ISPs are rather angry:

"The rates are absolutely atrocious. How the hell are we doing above one dollar for extra usage?" said Rocky Gaudrault, president of Chatham, Ont.-based Teksavvy. "It's in the thousands of multiples beyond what the costs are." Gaudrault said Bell also continues to have an advantage over smaller ISPs in that it is able to offer superior speeds. The CRTC issued an order in December 2008 that gave wholesale ISPs access to the faster networks of phone companies such as Bell and Telus, but the federal government last year ordered the regulator to reconsider the decision."

To be clear: this shouldn't be confused with pure "billing by the byte." The low cap and high overage model (which Time Warner Cable tried -- and failed -- to impose in the U.S. last year) simply jacks up prices "thousands of multiples beyond what the costs are" on top of the already high flat rate price -- ensuring that consumers wind up paying significantly more money for the same service. Bell also wants to ensure resellers can't offer a flat-rate pricing model that could better compete with their expensive capped DSL services. Of course Bell couldn't get away with this kind of obnoxious pricing were there more competition -- but just like in the States, most Canadian customers lack the option to be able to vote with their wallets.

It seems anomalous that the poor inventor who made the real thing gets only twenty years of protection, but the clown who made the silly imitative toy gets life plus forever protection for his "original work of authorship". Query whether such protection promotes the purposes of the Copyright Act.

"The process of preparing fixture lists involves very significant labor and skill in satisfying the multitude of often competing requirements of those involved," Judge Christopher Floyd said. "(It is) not mere sweat of the brow, by which I mean the application of rigid criteria to the processing of data. The quality of the solution depends in part on the skill of those involved."

Although this case was decided largely on the pleadings, it has somehow generated an appendix over 8000 pages in length. Seldom have so many trees died for so little. We see three causes for this wretched excess....