" /> net.wars: August 2008 Archives

« July 2008 | Main | September 2008 »

August 29, 2008


The news that Comcast is openly imposing a monthly 250Gb bandwidth cap for its broadband subscribers sounds, as many have noted, more generous than it is. Comcast doesn't have to lower the cap progressively for customers to feel the crunch; the amount of data everyone shifts around grows inexorably year by year. Just as the 64K 640K Bill Gates denies he ever said was enough for anybodyis today barely an email, soon 250Gb will be peanuts. Comcast's move will more likely pull the market away from all-you-can-eat to arguably logical banded charging.

We should keep that in mind as the European Parliament goes to debate the telecoms package on Tuesday, with a first reading plenary vote scheduled for the Strasbourg session on September 22-25.

Many of the consumer provisions make sense, such as demanding that all users have free access to the EU-wide and national emergency numbers, that there be at least one directory enquiries service, and that there be "adequate" geographical coverage of public payphones. Those surrounded by yapping mobile phones everywhere they go may wonder why we still need payphones, but the day your battery dies, your phone gets lost, stolen, or broken, or you land in a foreign country and discover that for some reason your phone doesn't work, you'll be grateful, trust me.

The other consumer provision everyone has to like is the one that requires greater transparency about pricing. What's unusual about the Comcast announcement is that it's open and straightforward; in the UK so far, both ISPs and "all-you-can-eat" music download services have a history of being coy about exactly what level of use is enough to get you throttled or banned. In credit cards, American Express's "no preset spending limit" is valuable precisely because it gives the consumer greater flexibility than the credit limits imposed by Visa and Mastercard; in online services the flexibility is all on the side of the supplier. Most people would be willing to stay on the south side of a bandwidth cap if only they knew what it was. One must surmise that service providers don't like to disclose the cap because they think knowing what it is will encourage light users to consume more, upsetting the usage models their business plans are based on.

The more contentious areas are, of course, those that relate to copyright infringement. Navigating through the haze of proposed amendments and opinions doesn't really establish exactly what's likely to happen. But in recent months there have been discussions of everything from notice-and-takedown rules to three-strikes-and-you're-offline. Many of these defy the basic principles on which European and American justice is supposed to rest: due process and proportionate punishment. Take, for example, the idea of tossing someone offline and putting them on a blacklist so they can't get an account with another ISP. That fails both principles: either an unrelated rightsholder of the original ISP or both would be acting as a kangaroo court, and being thrown offline would not only disconnect the user from illegal online activities but in many cases make it impossible for that person's whole household to do homework, pay bills, and interact with both government and social circles.

That punishment would be wholly disproportioniate even if you could guarantee there would be no mistakes and all illegal activities would be punished equally. But in fact no one can guarantee that. An ISP cannot scan traffic and automatically identify copyright infringement; and with millions of people engaging in P2P file-sharing (seemingly the target of most of this legislation) any spotting of illegal activity has to be automated. In addition, over time, as legal downloads (Joss Whedon's dr horrible and his sing-a-long blog managed 2.2 million downloads from iTunes in the first week besides crashing its streaming server) outstrip illegal ones, simply being a heavy user won't indicate anything about whether the user's activity is legal or not.

Part of the difficulty is finding the correct analogy. Is the crime of someone who downloads a torrent of The Big Bang Theory and leaves the downloaded copy seeding afterwards the same as that of someone who sets up a factory and puts out millions of counterfeit DVD copies? Is downloading a copy of the series the same as stealing the DVDs from a shop? I would say no: counterfeit DVDs unarguably cost the industry sales in a way that downloading does not, or not necessarily. Similarly, stealing a DVD from a shop has a clearly identifiable victim (the shop itself) in a way that downloading a copy does not. But in both those cases the penalties are generally applied by courts operating under democratically decided procedures. That is clearly not the case when ISPs act on complaints by rightsholders with no penalties imposed upon them for false accusations. A more appropriate punishment would be a fine, and even that should be limited to cases of clear damage, such as the unauthorized release of material that has yet to be commercially launched.

For all these reasons, ISPs should be wary of signing onto the rightsholders' bandwagon when their concern is user demand for bandwidth. We would, I imagine, see very different responses from them if, as I think ought to happen, anti-trust law were invoked to force the separation of content owners from bandwidth providers.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

August 22, 2008

Intimate exchanges

A couple of years ago I did an interview with Ed Iacobucci CEO and founder of Dayjet, a new kind of airline. Dayjet has no published timetable; instead, prospective passengers (mostly company CEOs and other business types with little time to spare for driving between ill-served smaller cities in the American south) specify their departure point, their destination, and a window of time for Dayjet to get them there. Dayjet responds with a price based on the number of full seats in the plane. The airline, said Iacobucci, is software expressed as a service. And - and this is the key point here - constructing an intellectual property business in such a way meant he didn't have to worry about copying.

Cut to: the current battles over P2P. Danny O'Brien observed recently that with terabyte disk drives becoming luggable and the back catalogue of recorded music being "only" 4Tb, in the medium term the big threat to the music companies isn't P2P but file-swapping between directly connected hard drives, no Internet needed; no detection possible.

Cut to: the amazing career of Alan Ayckbourn and the Stephen Joseph Theatre in Scarborough, North Yorkshire.

Ayckbourn is often thought of as Britain's answer to Neil Simon, but the comparison is unfair to Ayckbourn. Simon is of course a highly skilled playwright and jokesmith, but his characters are in nothing like the despair that Ayckbourn's are, and he has none of the stagecraft. Partly, that may be because Ayckbourn has his own theatre to play with. Since 1959, when his first play was produced, Ayckbourn has written 71 plays (and still counting), and just about all of them were guaranteed production in advance at the Stephen Joseph Theatre, where Ayckbourn has been artistic director since 1974.

Many of them play with space and time. In How the Other Half Loves two dinners share stage space and two characters though they occur on different nights in different living rooms. In Communicating Doors characters shift through the same hotel room over four decades. In Taking Steps three stories of a house are squashed flat into a single stage set. He also has several sets of complementary plays, such as The Norman Conquests, a trilogy which sets each of the plays - the story of a weekend house party - in a different room.

It was in 1985, during a period of obsession with the plays Intimate Exchanges that I decided that at some point I really had to see Alan Ayckbourn's work in its native habitat. Partly, this was due to the marvellous skill with which Lavinia Bertram and Robin Herford shifted among four roles each. Intimate Exchanges is scored for just two actors, and the plays' conceit is that they chronicle, via a series of two-person scenes, 16 variant consequences of a series of escalating choices. Bertram and Herford were the original cast, imported into London from Scarborough. So my thought was: if this is the kind of acting they have up there, one must go. (As bizarre as it seems to go from London to anywhere to go to the theater.)

This year, reading that Ayckbourn is about to retire as artistic director, it seemed like now or never. It's worth the trip: although many of Ayckbourn's plays work perfectly well on a traditional proscenium stage and he's had a lot of success in London's West End and on Broadway (and in fact around the world; he's the most performed playwright who isn't Shakespeare), the theatre-in-the-round adds intimacy. That's particularly true in this summer's trio of ghost plays: Haunting Julia (1994, a story of the aftermath of a suicide)), Snake in the Grass (2002, a story of inheritance and blackmail), and Life and Beth (2008, a story of survival and widowhood). In all these stories, the closer you can get to the characters the better, and the compared to the proscenium stage SJT's round theatre is the equivalent of the cinematic close-up.

That intimacy may be a partial explanation of why so little of Ayckbourn's work has been adapted to movies - and when it has, the results have been so disappointing. Generally, they're either shallow caricatures (such as A Chorus of Disapproval) or wistful and humorless rather than robust and funny (like Alain Resnais' attempts, including Intimate Exchanges). There have been some good TV productions (The Norman Conquests, Season's Greetings (set in a hall surrounded by bits of a living room and dining room)), but these are mysteriously not available commercially.

That being the case, it's hard to understand the severity of the official Ayckbourn Web site's warning about bootleg copies. Given that they know the demand is there, and given the amount those 71 plays are making in royalties and licensing fees, why not buy up the rights to those productions and release them, or begin a project of recording current SJT productions and revivals with a view to commercial release? The SJT shop sells scripts. Why not DVDs?

Asking that risks missing the essential nature of theater, which, along with storytelling, is probably one of the earliest forms of intellectual property expressed as a service. A film is infinitely copiable; every live performance is different, if only subtly, because audience feedback varies. I still wish they'd do it, though.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

August 15, 2008

License to kill

Yesterday, a US federal appeals court reversed a lower court ruling that might have invalidated open-source licenses. The case, Jacobsen v. Katzer, began more than two years ago with a patent claim.

Open-source software developer Robert Jacobsen manages the collective effort that produced Java Model Railroad Interface, which allows enthusiasts to reprogram the controller chips in their trains. JMRI is distributed under the Artistic License, an older and less-well known one of the free licenses (it isn't one of the Free Software Foundation's approved licenses, though its successor, Artistic License 2.0, is). Matthew Katzer and Kamind, aka KAM Industries sells a functionally similar commercial product that, crucially, Jacobsen claims is based on downloaded portions of JMRI. The Artistic License requires attribution, copyright notices, references to the file listing copyright terms, identification of the source of the downloaded files, and a description of the changes made by the new distributor. None of these conditions were met, and accordingly Jacobsen moved for a preliminary injunction on the basis of copyright infringement. The District Court denied the motion on the grounds that the license is "intentionally broad", and argued that violating the conditions "does not create liability for copyright infringement where it would not otherwise exist". It is this decision that has been reversed.

This win for Jacobsen doesn't get him anything much yet: the case is simply remanded back to the California District Court for further consideration. But it gets the rest of the open-source movement quite a lot. The judgement affirms Richard Stallman's original insight that created the General Public License in the first place, that copyright could be used to set works free as well as to close them down.

The decision hinges on the question of whether the licensing terms are conditions or covenants, a distinctions that's clear as glass to a copyright lawyer and clear as mud to everyone else. According to the Electronic Frontier Foundation's helpful explanation (and they have lots of copyright lawyers to explain this sort of thing), it's the difference between contract law and copyright law. Violating conditions means you don't have a copyright license; violating covenants means you've broken the contact but you still have a license. In the US, it's also the difference between federal and state law. When you violate the license's conditions, therefore, as Lawrence Lessig explains , what you have is a copyright infringement.

It's hard to understand how the district court could have taken the view it did. It is very clear from both the licenses themselves and from the copious documentation of the thinking that went into their creation that their very purpose was to ensure that work created collectively and intended to be free for use, modification, and redistribution could not be turned into a closed commercial product that benefited only the company or individual that sells it. To be sure, it's not what the creators of copyright - intended as a way to give authors control over publishers - originally had in mind.

But once you grant the idea of a limited monopoly and say that creators should have the right to control how their work is used, it makes no sense to honor that right only if it's used restrictively. Either creators have the legal right to determine licensing conditions or they have not. (The practical right is of course a different story; economics and the size of publishing businesses give them sufficient clout to impose terms on creators that those creators wouldn't choose.). Seems to me that a creator could specify as a licensing condition that the work could only be published on the side of a cow, and any publisher fool enough to agree to that would be bound by it or be guilty of infringement.

But therein lies the dark side of copyright licensing conditions. The Jacobsen decision might also give commercial software publishers Ideas about the breadth of conditions they can attach to their end-user license agreements. As if these weren't already filled with screeds of impenetable legalese, much of which could be charitably described as unreasonable. EFF points this out and provides a prime example: the licensing terms imposed by World of Warcraft owner Blizzard Entertainment have been upheld in court.

Blizzard's terms ban automated playing software such as Glider, whose developer, Michael Donnelly, was the target of the suit. EFF isn't arguing that Blizzard doesn't have the right to ban bots from its servers; EFF just doesn't think accusing Glider users of copyright infringement for doing is a good legal precedent. Public Knowledge has a fuller explanation of the implications of this case, which it filed as an amicus brief. Briefly, PK argues that upholding these terms as copyright conditions could open the way for software publishers to block software that interoperates with theirs. (Interestingly, Blizzard's argument seems to rely on the notion that software copied into RAM is a copyright infringement, an approach I recall Europe rejecting a few years ago).

You'd think no company would want to sue its own customers. But keeping the traditional balance copyright law was created to achieve between providing incentives for artists and creators and public access to ideas continues to require more than relying on common sense.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

August 8, 2008

Broadcast of the Rings

There's a certain irony in the International Olympic Committee's choice of YouTube as its broadcast platform for the Beijing Olympics, which started last night or this morning depending on your time zone. The plan is that the IOC's official channel will bring clips of Olympic coverage to the 77 countries in Africa, Asia, and the Middle East where it hasn't sold TV rights. This is the first time the Olympics will have official Internet coverage.

The IOC said eight years ago that it would not allow Internet broadcasting until technology was in place to control geographical distribution reliably. Four years ago, major broadcasters like the BBC did their first Webcasts of the Games to subscribers in the right geographical areas who had broadband. And now YouTube: the Olympics are starting to do their own TV production.

The irony lies in a couple of things. First of all, of course, are all those suits YouTube is currently experiencing. There's the Viacom suit, the one in which the judge has ordered YouTube to turn over "anonymized" user data. There's the €500 million suit brought by Mediaset, Italy's largest commercial broadcaster, owned by prime minister Silvio Berlusconi, which has said it will also claim compensation for lost advertising revenues. Music publishers. Football leagues. And so on. It's a surprise that the IOC is partnering with YouTube rather than suing Google.

Second of all is that even though YouTube (which, as it was only founded in February 2005, didn't actually exist at the time of the last summer Olympics) seems to be capable of blocking viewers from the wrong sort of IP address from the official channel the odds are pretty good that in a very short time the amount of unrestricted "unofficial" Olympic coverage on the site will dwarf the official stuff. It remains to be seen what kind of policing effort the IOC mounts to prevent that.

But the third irony is of course that there are plenty of ways to see the Olympics that bypass local broadcasters. And plenty of motives for doing so: US viewers, for example, have for years been frustrated by NBC's insistence on saving the biggest events for prime-time evening viewing, even if that means showing them on tape delay many hours after they actually took place. Got a friend with broadband and a VPN in another country that shows events live? VPN into friend's network and access their local broadcaster's stream via their network. British friends ought to be especially in demand for this kind of thing, since the BBC's coverage is...actually, comprehensive isn't really a big enough word for it.

If you're friendless and don't care about real-time viewing, you'll probably find the sport of your choice popping up pretty quickly via the usual torrent sites. True, that, too, will be time-delayed, but you will still get it sooner than those poor NBC-afflicted saps.

If you're friendless and do care about real-time viewing, your best bet is to download one of the many Chinese P2P TV players such as TVU Player (desktop and mobile phone versions), Sopcast (desktop and Web versions), or PPLive, or head over to Channelsurfing.net. These things tap into the open streams from broadcasters all over the world. Not ideal: the output is in a small, low-res screen on your computer, but as against that there's the benefit of having the commentary in a (usually) incomprehensible language. It's hard to get so annoyed with commentators you don't understand. (TVU Player showed the Olympic opening ceremony over what seemed to be an Italian channel.) Channelsurfing.net publishes a schedule you can click on. With the other players the schedule is always a little bit of a mystery, although AsiaPlate seems to be helpful with respect to the Olympic streaming schedule. (Its tennis page, however, hasn't been updated since February.)

By 2012, it would be a logical progression for the IOC to offer streaming video from its own site, particularly for the smaller niche sports that don't get much coverage even in the best-endowed countries. NBC is boasting as much as 3,600 hours of coverage if you include TV and broadband services, standard and high-def; NBC has said 2,900 hours of it will be live. The difficulty for the IOC is that according to its own figures (PDF) 50 percent of its revenues - $2.57 billion - come from broadcast rights (and much of that from NBC). Sponsorship is 40 percent, ticketing 8 percent, and licensing and other sources only 2 percent. It's hard to imagine the Net being able to replace that kind of revenue any time soon. What's more likely is pressure on broadcasters to encrypt those open streams.

Sports, particularly the biggest events, seem likely to continue to increase in value to broadcasters: they are one of the few things that a mass of people really care about seeing live. Which is the fourth irony: both the IOC's own official YouTube channel and an important portion (a little over 20 percent) of the official channels of its biggest broadcaster, NBC, are both tape-delayed.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

August 1, 2008

All paid up

"His checks keep bouncing because his signature varies," says a CIA operative (Sam Waterston) admiringly of the movie's retired spy hero Miles Kendig (Walter Matthau) in the 1980 movie Hopscotch. "He's a class act."

These days, Kendig would be using credit cards. And he'd be having the same problem: the part of his signature would be played by his usage patterns as seen by the credit card company's computers.

This would be doubly true if he used Amazon's Marketplace sellers. It seems - or so Barclaycard tells me every time they block my card - that putting through several purchases through Amazon Marketplace and then, a few days later, buying something larger like a plane ticket or a digital recorder exactly fits one of the fraud patterns their computers are programmed to look for.

Buy a dozen items in a day on eBay (go on, I dare you), and your statement will show a dozen transactions - but they'll all be from Paypal. Buy a dozen items in a single shopping basket on Amazon, and you'll get a dozen transactions all from different unknown sellers. To the computer what seems to you to be a single Amazon purchase looks exactly like someone testing the card with a dozen small transactions to see if it's a) live and b) possessed of available credit. Then, y'see, when the card has passed the test, the fraudster goes for the big one - that airplane ticket or digital recorder.

It's not clear to me why Barclaycard's computer doesn't recognize this pattern as typical after the first outing or two. (I fly one route, but my Barclaycard will not buy me a plane ticket.) Nor is it clear to me why it doesn't occur to the Barclaycard computer that as frauds go buying a digital recorder or a plane ticket for delivery to the cardholder's name and address ranks as fairly incompetent. Why doesn't it check that point before causing trouble?

You might ask a similar question of one of my US cards, which trips the fraud meter any time it's used outside the US. Even though they know I live in...London.

This week Amazon announced that it's offering its payment system, including One-Click, to third party sellers as one of its Web services offerings.

Much of the early press coverage of Amazon's decision seems to be characterizing Amazon Checkout, along with Google Checkout, as a competitor to Paypal. In fact, things are more complicated than that. Paypal, before it was bought by eBay, was one of the oldest businesses on the Net. Its roots, which still show every time you go through the intricate procedure of opting to use a credit card instead of a bank transfer, are in making it possible for anyone to send cash to anyone with an email address. Its first competitor was Western Union; its long tail business opportunity was online sellers who couldn't get credit card authorizations because they were too small. For eBay, buying Paypal meant being able to integrate payments into its ecology with some additional control over fraud while making extra money off each transaction.

Paypal is being adopted as an alternative payment method by all sorts of third parties, and as much of a pain as Paypal is (it can't cope with multinational people and you cannot opt out of giving it a bank account to verify) this is useful for consumers. Its security is generally well regarded by both banks and credit card companies and surely it's better to store financial details with one known company than with dozens of less familiar ones you may only trade with once. Given the choice, I'd far rather that single account were with the much-pleasanter-to-use Amazon. It's clear, though, that if you're offering a platform for others to build businesses on, as Amazon is, payment services are an obvious tool you want to include. Most likely, just as many stores now display multiple credit and debit card logos, many Web sellers will offer users a choice among multiple payment aggregators. Who wants to call the whole thing off because you say Google and I say Paypal?

Unfortunately, none of this solves my actual problem, those damn fraud-detecting algorithms. If Amazon actually aggregated payments into a single transaction - which is actually what you imagine it's doing the first time you buy from Marketplace - and spit the money back out to the intended destinations, there'd be no problem. For you: for Amazon, of course, it would raise a host of questions about whether it's a financial service, and how much responsibility it should assume for fraud. Those are, of course, very much the reasons why Paypal is so unpleasant - and yet also why it offers eBay buyers insurance.

What is clear is that this is yet another step that brings Amazon and eBay into closer competiton with each other: they are increasingly alike. Amazon's recent quarterly statement notes that about 30 percent of its revenues come from Marketplace sellers - and that the profitability of a sale is roughly the same whether it's direct or indirect. On eBay 42 percent of items now are straightforward sales, not auctions, and the changes it's made that favor its biggest sellers are making it more Wal-Mart than flea market.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).