Topic: Telecom, Internet & Information Policy

Microsoft Volunteers to Be the Poster Child for DMCA Reform

One of the big challenges of writing about tech policy is the difficulty of explaining the subjects I write about for a general audience. This was a particular challenge a couple of years ago when I wrote a Cato Policy Analysis about the anti-circumvention provisions of the Digital Millennium Copyright Act—just typing that out is a chore. I wish I could have pointed to this story as an example, because it brilliantly illustrates my argument.

A few years back, Microsoft developed a copy-protection scheme called PlaysForSure (it will become clear shortly how ironic that name was) that was supposed to prevent music customers from engaging in Internet piracy with music they bought from online music stores. Microsoft licensed the format to a variety of different companies and aggressively promoted it as an alternative to Apple’s iTunes-iPod ecosystem. Unfortunately, Microsoft failed to close the gap with Apple, so in 2006 Microsoft unveiled a new product line called Zune, effectively discontinuing development of PlaysForSure. Zunes are incompatible with PlaysForSure music. If you built up a music library in the PlaysForSure format, it would, um, not play for sure (or at all) on a Zune music player.

Up to this point this is just an ordinary business story, and nothing for libertarians to be concerned about. Companies drop old product lines all the time, and sometimes that means customers are stuck with compatibility headaches. But there’s just one problem: not only will Microsoft not help you play your PlaysForSure music on a Zune, but it’s illegal under the DMCA for anyone else to develop software to convert PlaysForSure music to a format that could play on Zunes, iPods, or any other format. Such software would be considered a “circumvention device”—ostensibly a piracy tool—and could bring civil and criminal penalties. If you were stupid enough to buy music in PlaysForSure format, you’re stuck with the dwindling number of PlaysForSure-compatible music programs still left on the market. You can burn your music to CDs, and then re-rip them to an open format, but this is a time-consuming process if you have a large music library, and it will lead to some degradation in the quality of the music.

As if all that weren’t enough, Microsoft yesterday announced the next step in its campaign to make the DMCA look ridiculous: this fall, it will be switching off the license servers that allow customers to “authorize” new computers and operating systems to play music from customers that bought music from its now-defunct MSN Music store. This means that if you have a library of music from the MSN Music store, and you buy a new computer or upgrade your operating system, there will be no legal way to take your music library with you.

If Congress hadn’t enacted the DMCA, this wouldn’t be a big deal. Third parties could develop software utilities that would automatically convert peoples’ PlaysForSure-formatted music collections into an open format like MP3, which would allow it be played on almost any computer or music player. Customers wouldn’t have to worry about whether their computer had been “authorized,” or whether the company they’d purchased the music from was running the necessary “license server.”

The most frustrating thing about this is that forcing consumers to jump through these hoops hasn’t made a dent in illicit file sharing. To this day, the music industry sells most of its music in the copy-protection-free CD format. Anyone can buy a CD, rip it to MP3 format, and upload it to the Internet. And music downloaded from peer-to-peer networks comes free of copy protection. Which means that the hassles imposed on consumers by the DMCA and copy protection formats like PlaysForSure haven’t slowed down piracy at all. All they’ve done is created unnecessary headaches for customers who were foolish enough to obey the law and pay for the music they downloaded.

Sensors and Social Consequences

A “sensor” is a device that measures a physical quantity and converts it into a signal that can be read by an observer or instrument. Sensors that convert analog information into digital form are the most interesting. The information they collect is easy to store, transmit, and reuse.

Digital sensors are all around - the keyboard on your computer, your cell phone, the surveillance cameras in your office building, and so on.

Lots of good things come from having these sensors around, and the systems they attach to - that’s for sure. But they don’t always serve our interests. Let’s take a look at an example of digital sensing gone wrong.

A colleague of mine recently returned from a business trip, where he engaged in important and sober work. He arrived home late from his trip, and his patient and loving wife, already in bed, engaged him in some conversation. Fairly quickly, she asked him whether he had enjoyed himself at the strip bar (!). My hard-working and serious colleague was concerned. Why, on returning to the warm glow of his happy home-life, should he be asked this question?

As he tells it, he found himself short on cash one evening, and ducked into the nearest establishment looking for an ATM. The generous purveyors of this … nightclub - who could have known it was something more? - graciously allowed him entry for the few moments it took to get the cash and be on his way.

ATMs are digital sensors. They record usage information and tie it to other details, like location. This is known as “meta-data” - information about information, such as where and when a given piece of information was collected.

The ATM transmitted this data and meta-data back to my colleague’s bank and, through an online banking system, to his wife. The system identified the ATM as being at “Antics Topless Lounge” or something like that. You can understand the short string of inferences that his caring, truly lovely wife drew when presented with this single item of sensed data.

The reporting of ATM location information is a convenience to those who may have forgotten where they used the ATM, but it’s less welcome to someone whose sweet and lovely life-partner might draw unfortunate inferences from ATM use in certain locations. Sensors have social consequences, and they’re not all good.

So I was nonplussed by the cover of the latest issue of Government Technology magazine. It shows the front of a police car, photographed from a low angle to give it a pugnacious look. (Alas, I can’t find the image online.) The car is decked out with lights and sirens, of course, but also with sensors - on the roof and behind the windshield.

“FREEZE FRAME,” says the magazine cover, “License plate scanners extend the reach of local police.” Inside, an article describes how license plate scanning by U.S. police agencies is “the next big thing” for catching stolen cars and locating suspects. But the real benefit, according to the chief of detectives and commanding officer of the Detective Bureau at the Los Angeles Police Department, “comes from the long-term value of being able to track vehicles - where they’ve been and what they’ve been doing … .”

Make no mistake: there is value in that, just like there’s value in knowing where you used the ATM. But there’s risk in that, too. It’s not an unalloyed good to give people data about your comings and goings - other than your loving, caring family, of course.

Unlike my colleague and his saintly wife, it’s none of the police’s business where law-abiding citizens have been going and what they’ve been doing. When these sensors are used for mass surveillance and not just spotting bad guys, that crosses an important line.

This is not an argument against giving police these sensors. They will be a boon for law enforcement and an aid to our safety and security. But if the back-end systems put information about every vehicle’s location into a database for later use, that’s inappropriate surveillance of the law-abiding public. Unlike my colleague’s charming, gracious, and forgiving wife, the police shouldn’t be in a position to ask us whether we enjoyed ourselves at the strip bar.

Abstract Ideas Can’t Be Patented. Or Can They?

The Supreme Court has long held that laws of nature, physical phenomena, and abstract ideas are not eligible for patent protection. Because these things are discovered rather than invented, they are “free to all men and reserved exclusively to none.” In recent years, however, the United States Court of Appeals for the Federal Circuit, which hears most patent appeals, has begun to relax the restriction on such patents. I’ve written before about the problems created by software patents. Software is is ultimately just a sequence of mathematical formulas, and in their pure form they’re not patentable. But in a series of decisions in the 1990s, the Federal Circuit opened the door to patents that cover software when it’s loaded onto a computer, which of course is the only useful thing to do with software. Since then, we’ve seen an avalanche of patents on software, which have started creating serious problems for innovators in the software industry.

The latest example of the problems on patenting abstract concepts comes via Mike Masnick of Techdirt: a company had some problems with a satellite launch, and wanted to use a maneuver called a Lunar flyby to correct it. Unfortunately, Boeing holds a patent covering the maneuver they wanted to use, and they have been unable to negotiate a license of that patent. So they’re planning to let the satellite go down in flames and try to collect the insurance money on it.

Now, as Mike points out, the maneuver in question is just an application of basic physics to spaceflight. The basic principles have been understood since Newton, and NASA has been computing these kinds of orbital trajectories since the 1960s. The patent office should have rejected the patent for trying to patent a straightforward application of basic physics. Unfortunately, thanks to the Federal Circuit’s increasingly permissive standards for patentable subject matter, Boeing was granted the patent, and this company now faces the unappetizing choice of leaving the satellite in the wrong orbit or getting embroiled in litigation with Boeing.

Crucially, the Supreme Court has never endorsed the Federal Circuit’s experiment with allowing patents on abstract ideas, and several justices have voiced concerns about the direction the Federal Circuit has taken the rules for patentability. Apparently, the widespread outrage over the abuse of such patents has gotten the Federal Circuit’s attention, as it has decided to re-hear a case called In Re Bilski that could give it an opportunity to tighten up the rules for patenting abstract concepts. Several public interest groups have filed briefs in the case urging the court to do just that.

The Federal Circuit will be hearing the case en banc next month, and it has already become one of the most closely-watched cases on the Federal Circuit’s docket. Given the Supreme Court’s heightened interest in patent issues in recent years, it’s not hard to imagine the Supreme Court deciding to review the decision as well. Given that Congress has so far ducked the issue of reining in patents on abstract concepts in its pending patent reform legislation, In Re Bilski may be our best chance of reform.

The Helping Hand of Government …

… strips away privacy before it goes to work.

Here’s a nice, discrete example: S. 2485, introduced in the U.S. Senate last week, would require asset verification of participants in State Medicaid programs, exposing the personal information held by financial institutions to government access.

This privacy loss is a natural outgrowth of entitlement programs. It’s nearly mandated by the simple and warranted effort to reduce waste, fraud, and abuse.

My 2004 Policy Analysis, “Understanding Privacy - and the Real Threats To It,” explored how entitlement programs almost always carry with them a significant privacy-cost:

To provide benefits and entitlements—and, of course, to tax—governments take personal information from citizens by the bushel. Nearly every new policy or program justifies new or expanded databases of information—and a shrunken sphere of personal privacy.

The Vote: Ease? Security? Or Enough Already?

The Universal Right to Vote by Mail Act of 2007 (H.R. 281) recently passed the House Committee on House Administration. It would amend the Help America Vote Act of 2002 to require states to allow eligible voters to request a mail-in ballot for all federal elections without having to provide a reason.

In a TechKnowledge piece called “Voter ID: A Tempest in a Teapot that Could Burn Us All,” I shared some thoughts that are relevant to this bill:

Increasing voter participation has been a policy fetish for the last decade or two-never mind whether more voting for its own sake makes a better democracy… . The growth in absentee balloting has undone some of the protections against voter impersonation and multiple voting that previously existed. People are much more reticent to commit fraud in person - it’s riskier - so in-person voting was a natural security against impersonation fraud. Voting in multiple jurisdictions is simply too time-consuming to do on any scale when it has to be done in person.

The bill would require states to verify signatures on absentee ballots by cross-checking them with voters’ signatures on the official list of registered voters, but this only begins to shore up the security hole opened by mass absentee balloting.

The people who want this bill undoubtedly believe it will improve both the political discourse and their electoral prospects. Folks on the other side - the proponents of identification requirements for voting - will only be energized by these efforts, which lower the bar for both legitimate voting and for voter fraud.

Both sides should just drop this food-fight-to-the-death and work on substantive policies that they believe will win voters to their sides. Hopefully, those policies are centered on limited government, free markets, and peace.

“Biggest … Lie … Ever”

A friend and supporter of my work on REAL ID sent me a link to this WebMemo from the Heritage Foundation, entitled “All Aboard: Fifty States Now Compliant with Real ID.” I’m using the subject line of his email as the title of this post.

There certainly seems to be confusion in some quarters about REAL ID’s current status. Let’s take a brief look at how states stand in terms of compliance.

Because not a single state will comply with REAL ID on the statutory deadline, May 11th, the Department of Homeland Security has been giving out deadline extensions willy-nilly the last few months. It gave extensions just for the asking to states that have statutorily barred themselves from complying, for example.

Some states refused to even ask for extensions. When this happened, DHS quickly switched to issuing states extensions if the states were independently changing their driver’s licensing processes in ways that would meet any of the requirements of REAL ID. States like Montana and New Hampshire wrote to DHS expressing no intention to comply with the law, but stating what they had done on their own. These DHS interpreted as requests for extensions, and granted them.

When the governor of Maine last week finally sent DHS a letter stating his intention to submit legislation relating to REAL ID compliance, the DHS took that as a request for an extension and granted it. The Maine legislature will have to consider any such bills, of course. Maine’s is the legislature that was the first in the country to reject REAL ID.

Getting deadline extensions by hook and by crook out to all 50 states is a pretty long way from getting all 50 states to comply. The actual state of things is reflected well on this map, maintained at the ACLU-run Web site RealNightmare.org. It shows seven states still self-barred from complying, and many others protesting the law. An eighth - Idaho - recently saw legislation barring compliance with REAL ID move through the Senate and to the governor’s desk.