I’m going to be attending oral arguments here in Boston before the First Circuit Court of Appeals in the Sony BMG Music Entertainment v. Tenenbaum case (Wikipedia backgrounder) later this morning. Appellate briefs are available here, summary from the defendant’s perspective here.
Check back later today for more commentary and analysis.
Long-time readers of this blog know that we like to cover broadband and Internet issues wherever possible. In the spirit of keeping everyone informed, I give you Public Knowledge’s latest report, “Peak Bandwidth” (PDF):
Bandwidth was formed by the tech bubble of the late 1990s and is typically found in strands of “dark fiber.” The largest fibers are called “backbones,” many of which were discovered next to railroad tracks. Since then, smaller pockets of bandwidth have been discovered in “last miles,” in forms such as DOCSIS-enabled coaxial cable and FiOS brand fiber.
Increasing strains are being placed on our bandwidth reserves. “Hogs” such as young people and cord-cutters are placing an unbearable strain on our bandwidth supplies, and “over-the-top” service providers like Netflix, Skype, Amazon, and Google consume copious amounts of bandwidth free of charge, without providing any valuable services in return. In short, our tubes are being clogged with bits. While that may not seem like a major problem now, the long-term is bleak. We will look back fondly on the day our tubes were clogged. Once bandwidth is gone, it’s gone. Used up bits are gone forever. They don’t come back and can’t be replaced. As a result important marketing messages, ecards, and Facebook updates will be crowded out of the ever-shrinking supply of usable bits.
Hilarious, Public Knowledge. And I think (hope?) you’ve made your point.
It’s no secret that copyright law is ridiculously complicated and in bad need of reform. In case anyone needed reminding, paidContent covered Pandora’s CEO Joe Kennedy’s recent speech at the NARM music conference in San Francisco. The article’s headings say it all:
That’s a pretty good summary of precisely where copyright law has gone wrong. Be sure to check out the full article.
iPod headphones are ubiquitous on college campuses and many other places. What effect such devices and more broadly, recorded music, might have on modern society is explored in this essay that includes references to sociologists Sudhir Venkatesh and Pierre Bourdieu:
Two years ago, at the nadir of the financial crisis, the urban sociologist Sudhir Venkatesh wondered aloud in the New York Times why no mass protests had arisen against what was clearly a criminal coup by the banks. Where were the pitchforks, the tar, the feathers? Where, more importantly, were the crowds? Venkatesh’s answer was the iPod: “In public spaces, serendipitous interaction is needed to create the ‘mob mentality.’ Most iPod-like devices separate citizens from one another; you can’t join someone in a movement if you can’t hear the participants. Congrats Mr. Jobs for impeding social change.” Venkatesh’s suggestion was glib, tossed off—yet it was also a rare reminder, from the quasi-left, of how urban life has been changed by recording technologies.
Later in the essay, Bourdieu is presented as the anti-Adorno, the sociologist who argued that music doesn’t help prompt revolutionary action but rather is indicative (and helps reinforce) class differences:
In the mid-1960s, [Bourdieu] conducted a giant survey of French musical tastes, and what do you know? The haute bourgeoisie loved The Well-Tempered Clavier; the upwardly mobile got high on “jazzy” classics like “Rhapsody in Blue”; while the working class dug what the higher reaches thought of as schmaltzy trash, the “Blue Danube” waltz and Petula Clark. Bourdieu drew the conclusion that judgments of taste reinforce forms of social inequality, as individuals imagine themselves to possess superior or inferior spirit and perceptiveness, when really they just like what their class inheritance has taught them to. Distinction appeared in English in 1984, cresting the high tide of the culture wars about to hit the universities. Adorno had felt that advanced art-music was doing the work of revolution. Are you kidding, Herr Professor? might have been Bourdieu’s response. And thus was Adorno dethroned, all his passionate arguments about history as expressed in musical form recast as moves in the game of taste, while his dismissal of jazz became practically the most famous cultural mistake of the 20th century.
This is an interesting analysis. Sociologists of culture have been very interested in music in recent decades. One line of research has insights into “omnivore” behavior, those high-status people who claim to like all sorts of music. (See an example of this sort of analysis here.)
But this essay seems to tap into a larger debate about technologies beyond just recorded music: do computers, laptops, iPods, cell phones and smart phones, Facebook memberships, and other digital technologies serve to keep us separated from each other or do they enhance and deepen human relationships?
The Seattle Times reported a few weeks ago that Microsoft “is pushing Washington legislators to pass a law making it illegal for manufacturers that use pirated software to sell goods in the state”:
The proposed legislation would create a legal cause of action by making manufacturing companies liable for damages, and it would give the state attorney general and companies the right to pursue injunctions in civil court to stop the manufacturers’ goods from being sold.
For example, if a large Washington store sold T-shirts made from a company in China and the Chinese company uses pirated copies of Excel at an office in Shenzhen, Microsoft could seek an injunction to prevent the manufacturer from supplying T-shirts to be sold in Washington state.
This represents a sweeping change to current intellectual property law. It is one thing to grant monopolies via copyright for “limited Times” in order “To promote the Progress of Science and useful Arts”. It is another thing entirely to extend copyright’s monopoly over physical objects alleged to have been manufactured in another country with the help of pirated software and thus to hold the buyers of those physical objects legally responsible.
To put it concretely: this isn’t holding the buyers of obviously stolen TV’s out of the back of a pickup truck legally responsible for their purchases. This is holding GM, maker of that pickup truck, legally responsible because the Chinese manufacturer of one of the parts in the truck’s engine used a pirated copy of Microsoft Outlook to receive emailed purchase orders from GM.
Now that’s secondary liability.
Hat tip to Groklaw, where I ran across this story earlier today. If you’d like to read more about this, Pamela Jones has written rather extensive commentary, including a hypothesis Microsoft is pushing for this and similar laws in other U.S. states in order to unleash a “litigation storm against Linux” — including derivatives like Android:
The law would make it possible for Microsoft to block Android sales in whatever state passed such laws if it could find some tie between the Android product and some manufacturer of a contracted part in China or wherever who happened to use a pirated version of Microsoft Word — not to make the part but to write up an ad for it. Ephemeral, much? But can you imagine how much litigation could spring from a law like this? How little it would take to keep litigation in the air forevermore? And you don’t have to even prove infringement in China, just allege it to initiate proceedings.
Of course, Jones is quick to note that the state of Washington’s “protections” do not extend to companies like Red Hat that profit from selling open source support and services. Under the law, software companies with proprietary licenses like Microsoft
can sue in civil court and the Attorney General can go after the “wrongdoer” US company, if a notice is sent and no amelioration occurs. But if the violation is of an *open source license*, the victim can’t sue anyone under the bill, and the Attorney General does nothing for you. It’s an exception to the law.
Perhaps realizing how much money Charlie Sheen’s endorsements are worth these days, the U.S. Patent and Trademark Office recently decided to trumpet the fact that Mr. Sheen is also the proud recipient of U.S. patent #6,283,658:
Charlie Sheen’s patent for a “Chapstick Dispensing Apparatus.” Patent No. 6,283,658 was granted on September 4, 2001 to inventors Carlos Irwin Estevez and Rodger D. Thomason and assigned to Masheen Inc. in Los Angeles.
You can smack your own lips over all 14 pages here. Hat tip to Scott Walshon, friend and patent examiner, for pointing me to the link.
Oprah has been moving her operations to her own television network, OWN (the Oprah Winfrey Network). A sociologist discusses this move:
I see OWN as a smart move for two reasons. First, Oprah is only one person. She has been working nonstop in front of the camera for nearly 30 years. It may be time to think about how to develop her brand in a way that is not completely dependent on her as a frontwoman. Second, the move to cable may be a good choice in a media context where the center of gravity is shifting away from network television premised on the existence of large mass audiences.
In further comments, it is suggested that Oprah’s popularity is partly due to her positioning within the media landscape:
Oprah is an icon for many reasons, but surely one is that her career trajectory has closely mapped changes in the larger media landscape. Beginning in the daytime television talk show format, pioneered by Phil Donahue, Oprah fully realized the potential of the genre as she leveraged her fame on multiple media platforms including, radio, television, film, Broadway, books, magazines, and the Internet. In addition to her work in daytime talk, some of her most recognizable products are her highly successful lifestyle magazine O, her roles in high-end dramatic works for film and stage, like The Color Purple and Beloved, and her ill-conceived philanthropic project for girls in South Africa (also a documentary). Although these projects did not all succeed equally well, they have cemented Oprah’s cultural prominence and sheer ubiquity. They also demonstrate Oprah’s ability to take risks.
I would also note that Oprah is a global media phenomenon. Unlike other big celebrities in the United States, Oprah has taken advantage of the increasingly expansive syndication of the digital era to build a mass international audience.
This sort of perspective is a broader one, moving beyond Oprah’s personality or the atmosphere of her show and emphasizing how Winfrey has been very effective at working at the forefront of the changing media. Particularly in expanding to newer platforms, Winfrey has built her brand beyond just a talk-show.
I wonder how much of this is post-hoc analysis. When Oprah was building her show and audience, just how risky was she? Looking back, we can see that she has been successful. But there must have been other personalities and celebrities that attempted to follow similar paths. How exactly did Oprah get ahead or leverage these particular technologies? How risky were her decisions compared to others? Was she a first-adopter or just in the opening waves of certain changes?
A post in MIT’s Technology review today reminds us why embedded computing is not always a good thing: the modern car is hackable:
Researchers who have spent the last two years studying the security of car computer systems have revealed that they can take control of vehicles wirelessly.
The researchers were able to control everything from the car’s brakes to its door locks to its computerized dashboard displays by accessing the onboard computer through GM’s OnStar and Ford’s Sync. [emphasis added]
Maybe you should seriously consider opting out of Bluetooth connectivity on your next vehicle.
Update: Stewart Baker over at the Volokh Conspiracy points out that some cars can be hacked via CDs or MP3s acting as a Trojan horse, which suggests a new RIAA business model:
Considering the clout they’ve already demonstrated on Capitol Hill, it may just be a matter of time before the industry persuades Senator Leahy to introduce the “Steal Our Music, We Steal Your Car” Act of 2011, authorizing copyright owners to introduce car-hacking code into Limewire and Bittorrent networks and then take possession of the music thieves’ vehicles. No doubt, they can produce studies showing that the act would create thousands of exciting auto repo jobs, and a tie-in with CarMax would help share the lobbying burden.
He’s kidding, of course. But it’s a little sad that you had to wonder for a second, isn’t it?
Sales of Apple’s iPad have been impressive. Virginia Postrel argues that the appeal of the iPad is in its magic:
When Steve Jobs appeared on stage last week to unveil the iPad 2, which hit stores Friday, he said, “People laughed at us for using the word ‘magical,’ but, you know what, it’s turned out to be magical.”
Apple has long had an aura of trend-setting cool, but magic is a bolder—and more provocative— claim…
With its utterly opaque yet seemingly transparent design, the iPad affirms a little-recognized fact of the supposedly “disenchanted” modern world. We are surrounded by magic…
“Between a wish and its fulfillment there is, in magic, no gap,” wrote the anthropologist Marcel Mauss in “A General Theory of Magic.” Effortlessly, instantly, the magical alters reality with a tap of the finger or wave of the hand. Sound familiar?
This argument reminds me of Max Weber’s claims about the rationalization of the modern world. On a broader scale, Weber argued that bureaucracy, efficient for dealing with large groups of people, would lead to a “iron cage” where everything would be routinized. Postrel argues that even though the iPad is the product of modern bureaucracies (even Apple is a bureaucracy though it positions itself as the anti-bureaucracy, usually referring to Microsoft, with a charismatic leader), it is magic in that the user has little idea of how it all works, is unable to open it up and “look under the hood,” and it is like an extension of oneself.
This could be one explanation for the iPad as magic. There could be some other reasons as well: its size, the vibrant screen, the Apple brand, and its positioning as the most popular (and the first mass-market product?) of the burgeoning tablet market. Another explanation could be this: the iPad brings joy or happiness to its users in a way that many modern products do not. While laptops are often intended for work and new cars are functional transportation options, the iPad is there for enjoyment. In a disenchanted world, this is an re-enchanting product in the same way that the Microsoft Kinect (with its own impressive sales) is magical: it is meant to be used for fun.
Will the magic decline over time as more products offer the same possibilities? Probably. But for now, the iPad may have just cornered the short-lived market on magic and re-enchanting its user’s worlds.
You might have seen certain figures bandied about how often Facebook is cited in divorce cases: this story says, “Two-thirds of the lawyers surveyed said that Facebook was the “primary source” of evidence in divorce proceedings.” But is it fair to then say that Facebook is a primary driver of divorce proceedings? Carl Bialik says the numbers are more complicated than many news stories would lead you to believe:
Some lawyers do say that they see Facebook playing a bigger role in divorce these days, that doesn’t mean the site destroys marriages…
“Correlation is not causation,” Thomas Bradbury, professor of psychology at the University of California, Los Angeles, wrote in an email. “Divorce has been around for a long time, long before these sorts of possibilities were present; the newly available information does add a new flavor to relationship maintenance and dissolution, but I don’t think it changes the basic processes that underlie change and deterioration in relationships.”…
These issues are symptoms of a larger issue in divorce research: “It’s very hard to separate out the causes” of divorce, says Andrew Cherlin, a sociologist and divorce researcher at Johns Hopkins University.
“To do this kind of research requires a huge amount of persistence,” said George Levinger, professor of psychology emeritus at the University of Massachusetts.
Part of the reason is that it is hard to pinpoint a single reason or even a set of reasons for any marital split…
Some researchers have asked divorcees why they divorced, and gotten conflicting results from men and women. Others have looked for factors that predict whether couples divorce. “There are many social, cultural, and behavioral predictors of divorce,” W. Bradford Wilcox, director of the National Marriage Project at the University of Virginia, wrote in an email.
Other academics examine couples’ behavior, seeking clues that might predict marital dissolution.
It sounds like this a more complicated methodological issue that still needs to be worked out by researchers: how exactly can one identify the primary cause or causes of divorce? Just because Facebook is mentioned as contributing to a divorce does not mean that it causes the divorce. As you might expect, Facebook itself says this argument is silly:
A spokesperson for Facebook said: “It’s ridiculous to suggest that Facebook leads to divorce. Whether you’re breaking up or just getting together, Facebook is just a way to communicate, like letters, phone calls and emails. Facebook doesn’t cause divorces, people do.”
It is no surprise that lawyers would want to use Facebook data for a divorce case (or other types of cases such as fraud – one example here). Facebook is often fairly public information and people often post on there without thinking about the potential consequences of sharing such information. It would be interesting to hear more about how this data from Facebook is presented in court and the reactions to it from both judges and the participants in the case.
But I wonder if these sorts of figures and ideas about Facebook and divorce have gained notoriety because they may fit some larger narratives about privacy and information sharing on Facebook as well as voyeurism on the Internet. These figures from lawyers could be presented as evidence that people lead dual lives, one in the offline world and another one in the real world. Whether this is actually the case doesn’t matter as much; what does is that the hot company of recent years, Facebook, can be linked to negative behavior.
