; charset=UTF-8 8bit Content-length: 25504 Techdirt Daily Email for Saturday, 22 March 2008 (Click here to visit the site) New Study Shows Massive Error Rates In E-Voting Machines (Studies) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 7:42PM Just as e-voting firm Sequoia is resisting having its machines reviewed independently, the Brookings Institute has put a bunch of e-voting machines to the test, and found error rates around 3% on some of the machines. These weren't errors due to software problems, but usability problems, where the design of the system resulted in people voting for a candidate they did not want. 3% is a huge number, and could easily change the results of an election. While the study found that people generally like e-voting technology, that still doesn't mean it's particularly effective. One other interesting part of the finding: when there was a voter-verified paper trail, it didn't cut down on errors. This suggests that many voters were either confused or didn't even bother to verify their vote. This should all be very worrisome. Even ignoring the technology problems that these machines have been shown to have, the fact that the design tends to create so many mistake votes should lead people to seriously question the use of e-voting machines. 8 Comments If You Don't See The Terms Of Service Until After You Buy, Are They Valid? (Legal Issues) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 6:28PM There have been lawsuits over software packages that only allow you to see the end user license agreement (EULA) after you've already paid for the software, but does that apply in other situations as well? Broadband Reports points us to the news that for people who sign up for Verizon's FiOS fiber optic broadband, you don't get to see the full terms of service until after it's installed. Verizon claims it's just easier this way -- and that all the important points are explained ahead of time. It also says that users can cancel within 30 days with no penalty if they're uncomfortable with the terms. However, that leaves out the fact that a lot of time and effort went into installing the actual FiOS system, which could also disrupt other systems (in fact, in a few cases -- though certainly not all -- a FiOS installation cuts the old copper line). So, in that case, it would be difficult to just go back to what you had before. 8 Comments Gibson Sues More Than Just Activision Over Virtual Music Concert Patent (Legal Issues) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 5:12PM Remember how Activision had preemptively sued Gibson for a declaratory judgment that it didn't infringe on a really questionable patent concerning a computerized guitar for a "virtual" concert? Well, Gibson has now struck back, and it's not just suing Activision, but almost all the retailers who sell it as well, including Wal-Mart, Target, Kmart, Amazon.com, Toys 'R' Us and GameStop. The idea, clearly, is to have those retailers put pressure on Activision. Update: Wired reports that the lawsuit also covers a bunch of other companies. Basically, Gibson is suing anyone even remotely connected to video games that involve fake guitars. Of course, there are all sorts of questionable things about this lawsuit. As we pointed out when Activision first sued, Gibson's patent doesn't seem similar to "Guitar Hero" at all. It talks about playing a real concert, with a real guitar (with strings) attached to a head mounted display. Also, as Activision points out, Gibson didn't care about the patent as long as Activision and Gibson had a marketing agreement. They only started calling for patent infringement after the marketing agreement ended. Finally, suing retailers for selling the game is quite sketchy. In fact, the Supreme Court just heard a case looking at whether or not that was legit, and the Justices sounded quite skeptical. Gibson is clearly posturing to try to push for a settlement -- and in the process, showing yet another way to abuse the patent system. 6 Comments CBC Plans To BitTorrent Its Own TV Program (Culture) by Michael Masnick from the about-time... dept on Friday, March 21st, 2008 @ 3:52PM Four years ago, we were among a group of folks talking about how the combination of BitTorrent and RSS could create a really fantastic online TiVo type solution. Rather than having to wait for your TV to broadcast a show, broadcasters could put the shows online, via BitTorrent, and you could buy online with RSS, getting every TV show you wanted. Of course, since that time, online hosted video has become more popular, with the likes of YouTube getting much of the attention. However, it looks like the idea of using BitTorrent to distribute TV programs in an authorized manner hasn't disappeared. Joe writes in to alert us that CBC Television up in Canada is planning to distribute copies of their program Canada’s Next Great Prime Minister via BitTorrent right after it airs. And, yes, they'll be doing it DRM-free. As the folks behind the show have said: "The show will [be] completely free (and legal) for you to download, share & burn to your heart's desire." Nice to see some are starting to get it. Rather than locking stuff down, you want to share it as widely as possible. 6 Comments When We Said OLPC Should Act Like A Tech Company, We Didn't Mean Microsoft ((Mis)Uses of Technology) by Timothy Lee from the bureaucracy dept on Friday, March 21st, 2008 @ 2:31PM In the latest blow to the OLPC project, the organization's security chief, Ivan Krstić, has resigned over philosophical disagreements with the organization's direction. The nub of the dispute seems to be chairman Nicholas Negroponte's belief that now that it's out of its startup phase, the project needs to be run "more like Microsoft." Krstić complains that the organization's previous president, Walter Bender, was demoted, and Krstić was asked to report to "a manager with no technical or engineering background who was put in charge of all OLPC technology." Now as we've said before, it's healthy that the OLPC organization is beginning to realize that they face many of the same challenges as for-profit technology companies, and might be more successful if it adopted some of their methods. But bringing in for senior leadership positions and adopting a rigidly hierarchical org chart might be taking things a little too far. Culture matters in technology companies, and it probably matters even more in an organization like OLPC that depends on having employees willing to go above and beyond the call of duty for relatively modest pay. More orderly management is a good thing, but not if you cause your best people to jump ship in the process. 1 Comment Flying Security: Shackle All Passengers With Tazer-Like Bracelets (Too Much Free Time) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 1:03PM And we were just talking about how the expected boom in air travel security technology never materialized, and along comes Bruce Schneier to point out a patent on a bracelet that passengers would be forced to wear, which could provide a debilitating shock at the decision of a crew member. And, yes, there's a company trying to commercialize this idea. I'm sure absolutely nothing might go wrong by strapping up all passengers with a potentially debilitating shock. Nothing at all... 25 Comments Ownership Doesn't Always Mean Control (Overhype) by Timothy Lee from the dept on Friday, March 21st, 2008 @ 11:40AM In the first post in my network neutrality series, I discussed the fear that without network neutrality rules, major telecom companies would engage in censorship of their customers' communications. I pointed out that if the government of Iran has trouble restricting the flow of information to its citizens, it's hard to imagine a company like AT&T or Verizon being able to do so. Today I'm going to expand on this point by looking at the more general assumption that the owner of a communications network has fine-grained control over the kind of traffic that gets transmitted across the wire. It's common for people on both sides of the debate to talk about network owners blocking, filtering, promoting, speeding up, or slowing down various content and applications. It's almost always taken for granted that if you own a pipe, it's straightforward to decide how that pipe will be used. I don't think that's as obvious as it might seem at first glance. This is illustrated by a story that came out a couple of weeks ago: AOL is opening its IM network to third-party developers. This seems like a smart move, although as Matt Asay argues, they could have gone a lot further than they actually did. What's really interesting about this development is the back story. In reality, AOL's instant messaging network has been a de facto open network for years, despite the best efforts of AOL. During the first half of this decade, AOL became embroiled in "an elaborate game of cat and mouse" with third-party clients like Trillian. AOL would make changes to its own software designed to shut third-party clients out of their networks. The other clients would respond within hours with patches that restored compatibility. This went on for months, and Microsoft and Yahoo! tried similar tactics. Ultimately, all three companies gave up. The constant upgrades were annoying their own users and it became increasingly clear that the third party developers weren't going to back down. This isn't technically a network neutrality question because AOL's IM "network" isn't a network in the traditional computer science sense. But I think the story has some important lessons for the network neutrality debate. One is that we should be skeptical of claims that ownership of physical infrastructure gives companies unlimited control over how that infrastructure will be used by users. One might have thought that AOL's ownership of its IM servers would give it the ability to lock out third-party clients it didn't approve of, but that's not how things worked out. Third party clients found it relatively easy to evade AOL's efforts to lock them out. And AOL was constrained in its options because it needed to preserve a reasonable level of service for its official client. Second, the story suggests that not only can users evade blocks by network owners, but in many cases, the evasion techniques can be downright user-friendly. I was using a Mac OS X client called Fire at the time, and all I had to do to restore connectivity after AOL made one of these changes was download an updater and install it. I assume the Trillian experience was similar. While there are certainly some people who don't know how to download and install an update, there are millions of people who do, and these people served as the customer base for the third-party client. Finally, it's worth noting how the third-party clients were able to respond so quickly when one of the IM networks tried to shut them out. Over time, the various third-party clients began sharing the libraries they were using to achieve with various IM networks. That meant that when AOL made a change to its protocol, just one person needed to make the necessary changes to the shared library, which was then quickly integrated into all the other clients. This allow them to respond much more quickly than if each client had to develop its own workarounds, and it was especially helpful for niche clients that might otherwise have lacked the manpower to keep up with AOL's changes. Of course, it would be over-stating things to say that this proves that a network provider could never block applications or content it didn't approve of. But I think it does suggest that network providers would find content or application blocking more challenging than is commonly supposed. A broadband provider that began filtering its customers' traffic would get locked into a cat-and-mouse game with its customers, with the customers developing new ways to evade the filters and the network owners beefing up its filtering software. This would, at a minimum, be a headache for the firm's engineers and a source of bad publicity. At worst, it might begin to cut into the network owner's bottom line, because efforts to block certain applications would degrade the quality of Internet access in general and spark cancellations. Indeed, we're already starting to see hints of the kinds of difficulties ISPs will face with Comcast's war against BitTorrent. One of the major results of Comcast's policy has been to accelerate the adoption of clients with "header encryption" functionality. As a result, the techniques Comcast is currently using to control BitTorrent use are likely to get less and less effective over time, and Comcast will have to spend still more money developing more sophisticated filtering software. It's unlikely that either side will "win" this cat-and-mouse game. But at some point, Comcast may decide it's more trouble than it's worth. Other posts in this series: Censoring The 'Net Is Hard Ownership Doesn't Always Mean Control 7 Comments Israel Hits Back On Charges From US Lobbyists That It Doesn't Respect Copyright (Say That Again) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 10:23AM Every February, a US lobbying group called the International Intellectual Property Alliance comes out with a "report" to the US Trade Representative, supposedly highlighting which countries aren't living up to their obligations with regards to "piracy" and copyright law. The hope is to get the USTR to put that country on a special watch list. In recent years, much of the focus has been on blaming countries that don't implement draconian copyright laws (even more draconian than those in place in the US), claiming incorrectly that failing to create DMCA-like laws is a failure to live up to international treaties. That's simply not true. Michael Geist is now pointing out that Israel, who was highlighted in this year's report, has responded to the "inaccuracies and hyperbole" in the report. The Israeli response includes a rather lengthy discussion of all the things the country has already done to put in place more American-style copyright and patent laws, but does push back on a couple of important points. Specifically, in discussing the fact that it hasn't put in place DMCA-style laws for DRM (which is referred to as "Technology Protection Measures" or TPM): Internal discussions on whether to implement TPM continue and in this respect the GOI [Government of Israel] notes that the experience with TPM around the world has not been uniform, nor has it achieved the results that many of its early promoters thought it would. Additionally, comments received by the Ministry of Justice following a "request" for comments on the subject of TPM, indicate that many several large authors' groups vehemently oppose TPM, while other right holders categories favor TPM. The critiques and criticism of TPM both from business model perspectives and from copyright perspectives are almost endless. Indeed, some content providers are already experimenting with non-encrypted access to content. Hence, the question of whether and in what manner to implement TPM is not straightforward and politically volatile. Given that so many in the entertainment industry are (belatedly) realizing the pointlessness of DRM, the above paragraph is rather restrained. The response then pushes back on complaints that the safe harbors for ISPs and provisions it has for infringing content online are too lenient. In the US system, an ISP is supposed to just take the content down when informed of infringement. Israel decided on a much more balanced system that gives the other side at least a chance to respond. This seems reasonable, but it doesn't make the content industry happy. The explanation from the Israeli government is worth reading: The notice and takedown provisions are balanced and reasonable as between the rights of persons claiming injury (copyright or libel for example) and the rights of free expression. Where allegedly infringing material is notified to the ISP or host and the uploader fails to refute the charges within three days, the offending material will be removed. The IIPA, it appears, prefers a system wherein ISPs and hosts would have to take down material as soon as there is an allegation of infringement, without need for due process or rebuttal. A "takedown" system which operates on the basis of a mere allegation of infringement would be an invitation to censorship and abuse of process. To require "take down" on the basis of "constructive notice" alone, as desired by the IIPA, would require the ISP or Host to make rulings of law as to whether certain content infringes copyright or is libelous or otherwise actionable, something that only courts have competency to do. Again to require takedown on the basis of "constructive notice" (i.e. the allegation of an interested party) alone would be an invitation to censorship, abuse and restraints on free speech. It is not the role of the ISP or Host to become a policeman of content. Requiring such would effectively bring the internet to a halt. Similarly, protecting the anonymity, to a reasonable extent, of uploaders of content is essential to the promotion of free speech and discourse on the internet, provided that a court has not ruled differently. There's also a nice bit in the response to the claim that Israel's latest copyright law does not implement a "fair use" policy exactly the way the IIPA would like it. The Israeli government's basic response notes that even the US's own definition of fair use doesn't match what the IIPA is asking Israel to implement, pointing out that its own fair use rules are almost identical to the US's. It's nice to see at least some people pointing out the ridiculous claims made by lobbyists trying to push for even more draconian and limiting copyright laws outside the US. 13 Comments Comcast Tests DVR That Watches You... Literally ((Mis)Uses of Technology) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 9:01AM Broadband Reports points us to the news that Comcast has been experimenting (internally only) with putting cameras into DVRs in order to determine who and how many people are watching. Comcast lays out the reasons why this might be useful -- such as recognizing if a child is watching, so that child content filters are automatically turned on, or merely recognizing certain preferences based on who's watching. However, the creepiness factor of such an offering is quite high, and I doubt many people would be comfortable with such a camera -- especially coming from a company like Comcast that's been getting blasted for its traffic shaping efforts. Besides, it will be too tempting for marketers to avoid misusing such a technology. Nielsen, for example, has been trying to come up with all sorts of ways to figure out if people are really watching commercials or TV shows, or if they just leave the TV on and are doing something else. Think how tempting it would be to "spy" on people to get a sense of what they're really doing. If such a system was going to work, the homeowner would need to have full control over the camera. If it acted just like a computer webcam, with the individual having full control over how it was used and how it could be accessed, then people might be more comfortable with it (plus, conceivably it could open up the ability for people to do video chat via their TVs). But if it's sending any info back to Comast, it's going to make people exceptionally uncomfortable. 43 Comments A Public Official Actually Shows Common Sense in Wireless 'Piggybacking' Debate (Say That Again) by Timothy Lee from the we're-shocked dept on Friday, March 21st, 2008 @ 7:27AM A state legislature has apparently introduced legislation that would make it a crime punishable by up to three years in jail to "steal" a neighbor's open wireless connection (found via Slashdot). The legislator claims that his goal in passing this legislation is to "clarify intentional theft vs. accidental use." Amazingly, someone in the Maryland government actually has some common sense. The state's public defender's office filed a statement making the same point that we've been making for years: "A more effective way to prevent unauthorized access would be for owners' (sic) to secure their wireless networks with assistance where necessary from Internet service providers or Vendors." Aside from the typo, we couldn't have put it better ourselves. They also point out that it won't always be easy to know if a particular user's usage of a wireless network is "intentional" or not because many non-technical users have no idea which network their computers are contacting. And, of course, some people leave their WiFi connections open on purpose. It seems better to err on the side of caution and not threaten people with multi-year jail terms for something that's basically harmless. The police certainly have more important things to be worrying about. 15 Comments California Refuses To Play By Real ID Rules (Politics) by Michael Masnick from the waiting-it-out dept on Friday, March 21st, 2008 @ 5:31AM The Department of Homeland Security's "Real ID" program is a classic case of "security theater." It's a project designed to give the appearance of increased security, but which will actually do the opposite (and cost a ton of taxpayer dollars at the same time). The good (and somewhat surprising) thing, is that almost everyone (outside of DHS) seems to recognize this. Not a single state plans to implement the rules by the original deadline. DHS has been granting "extensions" to states that promise to implement the rules by 2010 while threatening to make drivers' licenses no longer valid IDs for things like boarding airplanes or entering federal buildings for any state that doesn't comply. While there are a few states that haven't even asked for an extension, California asked for an extension while saying clearly that it wasn't promising to implement Real ID at all -- but would use the extension to study the matter. This was a test, and DHS has backed down, granting the extension, allowing California drivers' licenses to remain legitimate federal IDs. This could give more confidence to other states to not just blindly implement Real ID. At this point, you have to think that many states are just waiting this out, assuming that there will be a change in management at DHS after the election this November, and the whole concept of Real ID will get changed or scrapped. 83 Comments China Starts Shutting Down Video Hosting Sites (Legal Issues) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 2:03AM Back in January, China put in place rules that effectively banned any video hosting/sharing website that wasn't owned or controlled by the Chinese government. However, after the law went into practice, China didn't do anything -- and many assumed that the government had been convinced that shutting down such sites would harm the entrepreneurial environment it's been trying to foster in China. Then, of course, things went nuts in Tibet. China banned YouTube, and suddenly remembered the laws it had put in place. It's now announced that 25 video hosting sites need to be shut down and another 32 will be "punished." No description of the "punishment" is provided. In the meantime, this should be a reminder to those investors rushing to invest in Chinese startups: the government can change the landscape drastically with little warning. 22 Comments Visit Techdirt. -- The following information is a reminder of your current mailing list subscription: You are buy onlined to the following list: Techdirt Daily using the following email: You may automatically purchase from this list at any time by visiting the following URL: If the above URL is inoperable, make sure that you have copied the entire address. Some mail readers will wrap a long URL and thus break this automatic purchase mechanism. You may also change your subscription by visiting this list's main screen: If you're still having trouble, please contact us by using this form: ; charset=UTF-8 8bit Content-length: 34250 Techdirt Daily Email for Saturday, 22 March 2008 (Click here to visit the site) New Study Shows Massive Error Rates In E-Voting Machines (Studies) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 7:42PM Just as e-voting firm Sequoia is resisting having its machines reviewed independently, the Brookings Institute has put a bunch of e-voting machines to the test, and found error rates around 3% on some of the machines. These weren't errors due to software problems, but usability problems, where the design of the system resulted in people voting for a candidate they did not want. 3% is a huge number, and could easily change the results of an election. While the study found that people generally like e-voting technology, that still doesn't mean it's particularly effective. One other interesting part of the finding: when there was a voter-verified paper trail, it didn't cut down on errors. This suggests that many voters were either confused or didn't even bother to verify their vote. This should all be very worrisome. Even ignoring the technology problems that these machines have been shown to have, the fact that the design tends to create so many mistake votes should lead people to seriously question the use of e-voting machines. 8 Comments If You Don't See The Terms Of Service Until After You Buy, Are They Valid? (Legal Issues) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 6:28PM There have been lawsuits over software packages that only allow you to see the end user license agreement (EULA) after you've already paid for the software, but does that apply in other situations as well? Broadband Reports points us to the news that for people who sign up for Verizon's FiOS fiber optic broadband, you don't get to see the full terms of service until after it's installed. Verizon claims it's just easier this way -- and that all the important points are explained ahead of time. It also says that users can cancel within 30 days with no penalty if they're uncomfortable with the terms. However, that leaves out the fact that a lot of time and effort went into installing the actual FiOS system, which could also disrupt other systems (in fact, in a few cases -- though certainly not all -- a FiOS installation cuts the old copper line). So, in that case, it would be difficult to just go back to what you had before. 8 Comments Gibson Sues More Than Just Activision Over Virtual Music Concert Patent (Legal Issues) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 5:12PM Remember how Activision had preemptively sued Gibson for a declaratory judgment that it didn't infringe on a really questionable patent concerning a computerized guitar for a "virtual" concert? Well, Gibson has now struck back, and it's not just suing Activision, but almost all the retailers who sell it as well, including Wal-Mart, Target, Kmart, Amazon.com, Toys 'R' Us and GameStop. The idea, clearly, is to have those retailers put pressure on Activision. Update: Wired reports that the lawsuit also covers a bunch of other companies. Basically, Gibson is suing anyone even remotely connected to video games that involve fake guitars. Of course, there are all sorts of questionable things about this lawsuit. As we pointed out when Activision first sued, Gibson's patent doesn't seem similar to "Guitar Hero" at all. It talks about playing a real concert, with a real guitar (with strings) attached to a head mounted display. Also, as Activision points out, Gibson didn't care about the patent as long as Activision and Gibson had a marketing agreement. They only started calling for patent infringement after the marketing agreement ended. Finally, suing retailers for selling the game is quite sketchy. In fact, the Supreme Court just heard a case looking at whether or not that was legit, and the Justices sounded quite skeptical. Gibson is clearly posturing to try to push for a settlement -- and in the process, showing yet another way to abuse the patent system. 6 Comments CBC Plans To BitTorrent Its Own TV Program (Culture) by Michael Masnick from the about-time... dept on Friday, March 21st, 2008 @ 3:52PM Four years ago, we were among a group of folks talking about how the combination of BitTorrent and RSS could create a really fantastic online TiVo type solution. Rather than having to wait for your TV to broadcast a show, broadcasters could put the shows online, via BitTorrent, and you could buy online with RSS, getting every TV show you wanted. Of course, since that time, online hosted video has become more popular, with the likes of YouTube getting much of the attention. However, it looks like the idea of using BitTorrent to distribute TV programs in an authorized manner hasn't disappeared. Joe writes in to alert us that CBC Television up in Canada is planning to distribute copies of their program Canada’s Next Great Prime Minister via BitTorrent right after it airs. And, yes, they'll be doing it DRM-free. As the folks behind the show have said: "The show will [be] completely free (and legal) for you to download, share & burn to your heart's desire." Nice to see some are starting to get it. Rather than locking stuff down, you want to share it as widely as possible. 6 Comments When We Said OLPC Should Act Like A Tech Company, We Didn't Mean Microsoft ((Mis)Uses of Technology) by Timothy Lee from the bureaucracy dept on Friday, March 21st, 2008 @ 2:31PM In the latest blow to the OLPC project, the organization's security chief, Ivan Krstić, has resigned over philosophical disagreements with the organization's direction. The nub of the dispute seems to be chairman Nicholas Negroponte's belief that now that it's out of its startup phase, the project needs to be run "more like Microsoft." Krstić complains that the organization's previous president, Walter Bender, was demoted, and Krstić was asked to report to "a manager with no technical or engineering background who was put in charge of all OLPC technology." Now as we've said before, it's healthy that the OLPC organization is beginning to realize that they face many of the same challenges as for-profit technology companies, and might be more successful if it adopted some of their methods. But bringing in for senior leadership positions and adopting a rigidly hierarchical org chart might be taking things a little too far. Culture matters in technology companies, and it probably matters even more in an organization like OLPC that depends on having employees willing to go above and beyond the call of duty for relatively modest pay. More orderly management is a good thing, but not if you cause your best people to jump ship in the process. 1 Comment Flying Security: Shackle All Passengers With Tazer-Like Bracelets (Too Much Free Time) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 1:03PM And we were just talking about how the expected boom in air travel security technology never materialized, and along comes Bruce Schneier to point out a patent on a bracelet that passengers would be forced to wear, which could provide a debilitating shock at the decision of a crew member. And, yes, there's a company trying to commercialize this idea. I'm sure absolutely nothing might go wrong by strapping up all passengers with a potentially debilitating shock. Nothing at all... 25 Comments Ownership Doesn't Always Mean Control (Overhype) by Timothy Lee from the dept on Friday, March 21st, 2008 @ 11:40AM In the first post in my network neutrality series, I discussed the fear that without network neutrality rules, major telecom companies would engage in censorship of their customers' communications. I pointed out that if the government of Iran has trouble restricting the flow of information to its citizens, it's hard to imagine a company like AT&T or Verizon being able to do so. Today I'm going to expand on this point by looking at the more general assumption that the owner of a communications network has fine-grained control over the kind of traffic that gets transmitted across the wire. It's common for people on both sides of the debate to talk about network owners blocking, filtering, promoting, speeding up, or slowing down various content and applications. It's almost always taken for granted that if you own a pipe, it's straightforward to decide how that pipe will be used. I don't think that's as obvious as it might seem at first glance. This is illustrated by a story that came out a couple of weeks ago: AOL is opening its IM network to third-party developers. This seems like a smart move, although as Matt Asay argues, they could have gone a lot further than they actually did. What's really interesting about this development is the back story. In reality, AOL's instant messaging network has been a de facto open network for years, despite the best efforts of AOL. During the first half of this decade, AOL became embroiled in "an elaborate game of cat and mouse" with third-party clients like Trillian. AOL would make changes to its own software designed to shut third-party clients out of their networks. The other clients would respond within hours with patches that restored compatibility. This went on for months, and Microsoft and Yahoo! tried similar tactics. Ultimately, all three companies gave up. The constant upgrades were annoying their own users and it became increasingly clear that the third party developers weren't going to back down. This isn't technically a network neutrality question because AOL's IM "network" isn't a network in the traditional computer science sense. But I think the story has some important lessons for the network neutrality debate. One is that we should be skeptical of claims that ownership of physical infrastructure gives companies unlimited control over how that infrastructure will be used by users. One might have thought that AOL's ownership of its IM servers would give it the ability to lock out third-party clients it didn't approve of, but that's not how things worked out. Third party clients found it relatively easy to evade AOL's efforts to lock them out. And AOL was constrained in its options because it needed to preserve a reasonable level of service for its official client. Second, the story suggests that not only can users evade blocks by network owners, but in many cases, the evasion techniques can be downright user-friendly. I was using a Mac OS X client called Fire at the time, and all I had to do to restore connectivity after AOL made one of these changes was download an updater and install it. I assume the Trillian experience was similar. While there are certainly some people who don't know how to download and install an update, there are millions of people who do, and these people served as the customer base for the third-party client. Finally, it's worth noting how the third-party clients were able to respond so quickly when one of the IM networks tried to shut them out. Over time, the various third-party clients began sharing the libraries they were using to achieve with various IM networks. That meant that when AOL made a change to its protocol, just one person needed to make the necessary changes to the shared library, which was then quickly integrated into all the other clients. This allow them to respond much more quickly than if each client had to develop its own workarounds, and it was especially helpful for niche clients that might otherwise have lacked the manpower to keep up with AOL's changes. Of course, it would be over-stating things to say that this proves that a network provider could never block applications or content it didn't approve of. But I think it does suggest that network providers would find content or application blocking more challenging than is commonly supposed. A broadband provider that began filtering its customers' traffic would get locked into a cat-and-mouse game with its customers, with the customers developing new ways to evade the filters and the network owners beefing up its filtering software. This would, at a minimum, be a headache for the firm's engineers and a source of bad publicity. At worst, it might begin to cut into the network owner's bottom line, because efforts to block certain applications would degrade the quality of Internet access in general and spark cancellations. Indeed, we're already starting to see hints of the kinds of difficulties ISPs will face with Comcast's war against BitTorrent. One of the major results of Comcast's policy has been to accelerate the adoption of clients with "header encryption" functionality. As a result, the techniques Comcast is currently using to control BitTorrent use are likely to get less and less effective over time, and Comcast will have to spend still more money developing more sophisticated filtering software. It's unlikely that either side will "win" this cat-and-mouse game. But at some point, Comcast may decide it's more trouble than it's worth. Other posts in this series: Censoring The 'Net Is Hard Ownership Doesn't Always Mean Control 7 Comments Israel Hits Back On Charges From US Lobbyists That It Doesn't Respect Copyright (Say That Again) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 10:23AM Every February, a US lobbying group called the International Intellectual Property Alliance comes out with a "report" to the US Trade Representative, supposedly highlighting which countries aren't living up to their obligations with regards to "piracy" and copyright law. The hope is to get the USTR to put that country on a special watch list. In recent years, much of the focus has been on blaming countries that don't implement draconian copyright laws (even more draconian than those in place in the US), claiming incorrectly that failing to create DMCA-like laws is a failure to live up to international treaties. That's simply not true. Michael Geist is now pointing out that Israel, who was highlighted in this year's report, has responded to the "inaccuracies and hyperbole" in the report. The Israeli response includes a rather lengthy discussion of all the things the country has already done to put in place more American-style copyright and patent laws, but does push back on a couple of important points. Specifically, in discussing the fact that it hasn't put in place DMCA-style laws for DRM (which is referred to as "Technology Protection Measures" or TPM): Internal discussions on whether to implement TPM continue and in this respect the GOI [Government of Israel] notes that the experience with TPM around the world has not been uniform, nor has it achieved the results that many of its early promoters thought it would. Additionally, comments received by the Ministry of Justice following a "request" for comments on the subject of TPM, indicate that many several large authors' groups vehemently oppose TPM, while other right holders categories favor TPM. The critiques and criticism of TPM both from business model perspectives and from copyright perspectives are almost endless. Indeed, some content providers are already experimenting with non-encrypted access to content. Hence, the question of whether and in what manner to implement TPM is not straightforward and politically volatile. Given that so many in the entertainment industry are (belatedly) realizing the pointlessness of DRM, the above paragraph is rather restrained. The response then pushes back on complaints that the safe harbors for ISPs and provisions it has for infringing content online are too lenient. In the US system, an ISP is supposed to just take the content down when informed of infringement. Israel decided on a much more balanced system that gives the other side at least a chance to respond. This seems reasonable, but it doesn't make the content industry happy. The explanation from the Israeli government is worth reading: The notice and takedown provisions are balanced and reasonable as between the rights of persons claiming injury (copyright or libel for example) and the rights of free expression. Where allegedly infringing material is notified to the ISP or host and the uploader fails to refute the charges within three days, the offending material will be removed. The IIPA, it appears, prefers a system wherein ISPs and hosts would have to take down material as soon as there is an allegation of infringement, without need for due process or rebuttal. A "takedown" system which operates on the basis of a mere allegation of infringement would be an invitation to censorship and abuse of process. To require "take down" on the basis of "constructive notice" alone, as desired by the IIPA, would require the ISP or Host to make rulings of law as to whether certain content infringes copyright or is libelous or otherwise actionable, something that only courts have competency to do. Again to require takedown on the basis of "constructive notice" (i.e. the allegation of an interested party) alone would be an invitation to censorship, abuse and restraints on free speech. It is not the role of the ISP or Host to become a policeman of content. Requiring such would effectively bring the internet to a halt. Similarly, protecting the anonymity, to a reasonable extent, of uploaders of content is essential to the promotion of free speech and discourse on the internet, provided that a court has not ruled differently. There's also a nice bit in the response to the claim that Israel's latest copyright law does not implement a "fair use" policy exactly the way the IIPA would like it. The Israeli government's basic response notes that even the US's own definition of fair use doesn't match what the IIPA is asking Israel to implement, pointing out that its own fair use rules are almost identical to the US's. It's nice to see at least some people pointing out the ridiculous claims made by lobbyists trying to push for even more draconian and limiting copyright laws outside the US. 13 Comments Comcast Tests DVR That Watches You... Literally ((Mis)Uses of Technology) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 9:01AM Broadband Reports points us to the news that Comcast has been experimenting (internally only) with putting cameras into DVRs in order to determine who and how many people are watching. Comcast lays out the reasons why this might be useful -- such as recognizing if a child is watching, so that child content filters are automatically turned on, or merely recognizing certain preferences based on who's watching. However, the creepiness factor of such an offering is quite high, and I doubt many people would be comfortable with such a camera -- especially coming from a company like Comcast that's been getting blasted for its traffic shaping efforts. Besides, it will be too tempting for marketers to avoid misusing such a technology. Nielsen, for example, has been trying to come up with all sorts of ways to figure out if people are really watching commercials or TV shows, or if they just leave the TV on and are doing something else. Think how tempting it would be to "spy" on people to get a sense of what they're really doing. If such a system was going to work, the homeowner would need to have full control over the camera. If it acted just like a computer webcam, with the individual having full control over how it was used and how it could be accessed, then people might be more comfortable with it (plus, conceivably it could open up the ability for people to do video chat via their TVs). But if it's sending any info back to Comast, it's going to make people exceptionally uncomfortable. 43 Comments A Public Official Actually Shows Common Sense in Wireless 'Piggybacking' Debate (Say That Again) by Timothy Lee from the we're-shocked dept on Friday, March 21st, 2008 @ 7:27AM A state legislature has apparently introduced legislation that would make it a crime punishable by up to three years in jail to "steal" a neighbor's open wireless connection (found via Slashdot). The legislator claims that his goal in passing this legislation is to "clarify intentional theft vs. accidental use." Amazingly, someone in the Maryland government actually has some common sense. The state's public defender's office filed a statement making the same point that we've been making for years: "A more effective way to prevent unauthorized access would be for owners' (sic) to secure their wireless networks with assistance where necessary from Internet service providers or Vendors." Aside from the typo, we couldn't have put it better ourselves. They also point out that it won't always be easy to know if a particular user's usage of a wireless network is "intentional" or not because many non-technical users have no idea which network their computers are contacting. And, of course, some people leave their WiFi connections open on purpose. It seems better to err on the side of caution and not threaten people with multi-year jail terms for something that's basically harmless. The police certainly have more important things to be worrying about. 15 Comments California Refuses To Play By Real ID Rules (Politics) by Michael Masnick from the waiting-it-out dept on Friday, March 21st, 2008 @ 5:31AM The Department of Homeland Security's "Real ID" program is a classic case of "security theater." It's a project designed to give the appearance of increased security, but which will actually do the opposite (and cost a ton of taxpayer dollars at the same time). The good (and somewhat surprising) thing, is that almost everyone (outside of DHS) seems to recognize this. Not a single state plans to implement the rules by the original deadline. DHS has been granting "extensions" to states that promise to implement the rules by 2010 while threatening to make drivers' licenses no longer valid IDs for things like boarding airplanes or entering federal buildings for any state that doesn't comply. While there are a few states that haven't even asked for an extension, California asked for an extension while saying clearly that it wasn't promising to implement Real ID at all -- but would use the extension to study the matter. This was a test, and DHS has backed down, granting the extension, allowing California drivers' licenses to remain legitimate federal IDs. This could give more confidence to other states to not just blindly implement Real ID. At this point, you have to think that many states are just waiting this out, assuming that there will be a change in management at DHS after the election this November, and the whole concept of Real ID will get changed or scrapped. 83 Comments China Starts Shutting Down Video Hosting Sites (Legal Issues) by Michael Masnick from the dept on Friday, March 21st, 2008 @ 2:03AM Back in January, China put in place rules that effectively banned any video hosting/sharing website that wasn't owned or controlled by the Chinese government. However, after the law went into practice, China didn't do anything -- and many assumed that the government had been convinced that shutting down such sites would harm the entrepreneurial environment it's been trying to foster in China. Then, of course, things went nuts in Tibet. China banned YouTube, and suddenly remembered the laws it had put in place. It's now announced that 25 video hosting sites need to be shut down and another 32 will be "punished." No description of the "punishment" is provided. In the meantime, this should be a reminder to those investors rushing to invest in Chinese startups: the government can change the landscape drastically with little warning. 22 Comments Visit Techdirt. The following information is a reminder of your current mailing list subscription: You are buy onlined to the following list: Techdirt Daily using the following email: You may automatically purchase from this list at any time by visiting the following URL: If the above URL is inoperable, make sure that you have copied the entire address. Some mail readers will wrap a long URL and thus break this automatic purchase mechanism. You may also change your subscription by visiting this list's main screen: If you're still having trouble, please contact us by using this form:

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