November 2006 Archives

RIAA supremo Cary Sherman has a blood-boiling Op-Ed on CNET News right now called "The Farce Behind 'Digital Freedom.'"

Even I didn't think the RIAA was cynical enough to put ironic quotes around the word "freedom."

The target of Big Content's pitbull? The Consumer Electronics Association's CEO, Gary Shapiro. The CEA is one of many organizations (including the EFF) behind the Digital Freedom campaign, which was launched to check Big Content's desire to change copyright laws in the US in ways that restrict people's freedom to enjoy the stuff they buy in ways that are most convenient to them.

Remember how Jack Valenti (now there was a Big Content shill with some flair) claimed "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone?" Well, the same thing seems to happen periodically in the world of digital content, and this is one of those flare-ups.

Like a trademark that becomes generic, the fair use doctrine is in danger of losing its meaning and value if CEA's self-serving claims are taken at face value. CEA has twisted and contorted "fair use" beyond its true intent, turning it into a free pass for those who simply don't want to pay for creative works.

The "Digital Freedom" proponents have consistently staked their case out of the mainstream. CEA president and CEO Gary Shapiro's comment that unauthorized downloading is neither "illegal nor immoral" is illustrative of the extremist position of that group, especially given the U.S. Supreme Court's opinion otherwise in its 2005 Grokster ruling.

Sherman's first nifty rhetorical trick is to try to redefine fair use so narrowly as to be inapplicable to you and I. In truth, there's no place we can turn to in the Copyright Act that actually defines fair use as explicitly or exclusively as Sherman implies. What he avoids saying is that the entire doctrine is grounded ensuring the neither the commons nor individuals are unduly restricted by expansive copyright monopoly that serves only authors and owners.

For example, the transitive and temporary incidental copies of data made during their transmission over digital networks (ie, stuff that's cached or buffered when you download or stream it over the internet) was deemed fair use by the Copyright Office. One of the bills Digital Freedom is trying to fight, the Copyright Modernization Act, would force digital, interactive broadcasters (an on-demand internet radio station, like Pandora) to obtain separate licenses for those incidental copies, in addition to the usual licenses their conventional radio counterparts have to get. The Digital Freedom campaign doesn't want to let these services operate without licenses, but merely to ensure they don't face twice the financial burden of more traditional broadcasters. Shapiro's not exactly advocating "a free pass for those who simply don't want to pay for creative works."

Another example of the legislation Digital Freedom's trying to stop? The Audio Broadcast Flag Licensing Act (or NAMBLA), whose most odious provision explicitly stuffs fair use in a time capsule by allowing product designers and manufacturers (and users) the right only to "customary use." In other words, whatever Big Content has been forced to allow you to do in the past (like record to tape), they'll continue to permit, but no new stuff! In one fell swoop, fair use is no longer a balanced test applied to new situations as required, but a backward-looking, dead thing. It also means that innovation, any new, unforseen uses, are de facto infringing. Fighting this legislation is what it takes to be "out of the mainstream," in Sherman's view.

Not that you'll see Sherman tackle these, or any other substantive arguments, head-on in his op-ed piece. Then again, what do you expect from an industry whose companies feel justified in shaking down individual consumers, the technology industry, and treating their customers like criminals? Billboard magazine had this choice quote from one of the guys who pays Cary Sherman's salary:

"These devices are just repositories for stolen music, and they all know it," UMG chairman/CEO Doug Morris says. "So it's time to get paid for it."

It's true that what we have here is one well-paid lawyer and lobbyist slinging mud at yet another well-paid lawyer lobbyist, each representing huge corporations who, while professing an undyling love for the market, would just as soon have the government legislate their enemies into oblivion in order to guarantee their incomes. No matter who wins, I have a sneaking suspicion we lose. Even so, we have to pick a bastard in this fight, and I'm choosing the one whose client didn't just call me a crook.


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[Cross-posted to from Global Nerdy, the technology blog I write wi...ah, hell, you know what Global Nerdy is. Go!]

I don't imagine for a moment that I'm alone this morning in trying to figure out the implications of Sun's decision to license and distribute their implementation of Java (SE, EE, and ME) under the Gnu General Public License (version 2).

Practically, it means that the code that makes up the various editions of the Java platform will be free (as in speech). I say "will be;" every line of every module must be vetted or incompatible copyrights, and those issues will have to be resolved before the code itself can be released under the GPL. Where the issues can't be resolved, Sun will release the modules as binary plug-ins. Sun expects the process to be done in 2007.

My initial reaction is that Sun is trying to get rid of any barrier to adoption on the part of the Linux vendors. By employing the GPL, Sun's essentially saying that there's no reason for Linux to ship without a Java implementation. Of all of the reasons Sun cites for going with the GPL, I think this is the most significant: Linux distros will be able to qualify and ship with the appropriate Java implementation as a default, thus broadening the footprint of the Java platform for developers.

Java, after all, is fighting a pitched battle to be the platform for the web. It's competitors are .NET (and there's no real hope of increasing Java's footprint on Microsoft's server operating systems) and the ever-mutable LAMP (Linux, Apache, MySQL, and Perl/PHP+various substitutes) stack. One look at O'Reilly's latest state of the computer book market tells you what you need to know about the rise of LAMP and the decline of Java when it comes to releasing web-architected applications. By (hopefully) shipping side-by-side with LAMP (and Mono, for that matter), Sun probably hopes to slow the defections and bring more developers back into the Java world.

The flip side of this, of course, is the health of Java itself. It's clearly an incredibly capable platform, but it would seem that to truly take advantage of the dynamics of the open source movement, you need to play nice with the GPL. The GPL is predominant among SourceForge's most active projects, so Sun has taken to heart the idea that developer community only forms around the license that afford the most transparency, reciprocity, and protection (as well as the broadest possible target platform).

In the end, I suppose I agree with Tim Bray, the really big, long-term effects of this decision aren't easy to predict. After all, Java now "behaves" like Linux; one of the Java implementations could be forked to go into some very un-traditional directions, and who knows what kind of markets that might open up? As with Linux, anyone can build a support and maintenance business around a GPLed Java. Sun, no doubt, is betting that they can fit that bill better than anyone, but that's still up to the customer.

I suppose it's safe to say that a lot of interesting stuff will be happening here.


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[Cross-posted to Global Nerdy, a technology blog I co-write with Joey "AccordionGuy" deVilla. It has a lot less of this enterprise IT blah-de-blah, so why not stop by for a quick read?]

Yesterday saw Thomas PM "The Pentagon's New Map" Barnett post:

Consensus growing that Rumsfeld had to go to clear way for Baker's solution set to fly.

No big surprise there. Real clearing is Cheney's, with Rummy as surrogate.

Missing in the analysis so far: with caretaker in Pentagon, Baker now takes over de facto control of the war, as almost his own national security adviser, SECDEF AND SECSTATE.

No big whup for Gates. He knew that coming in. Quiet Hadley will do as told, as will Rice, but in reality, Rice's been replaced without leaving office. Imagine being SECSTATE and kicked off the one foreign policy issue that defines the administration.

Yes, yes, expect many protestations to the contrary and watch Baker go out of his way, using the study group as cover, not to upstage her.

But make no mistake, we now have caretakers (and not the real players) in both the Building and Foggy Bottom.

Sure enough, today's Times says:

The administration officials said that Mr. Bush was aware of Mr. Gates’s critique of current policy and understood that Mr. Gates planned to clear the “E Ring” of the Pentagon, where many of Secretary Donald H. Rumsfeld’s senior political appointees have plotted Iraq strategy.

Stephen J. Hadley, the national security adviser, said Thursday afternoon that Mr. Bush regarded his choice of Mr. Gates as “a terrific opportunity” to rethink Iraq.

In doing so, Mr. Gates will be drawing on his experience and contacts from the administration of Mr. Bush’s father, including the former security adviser Brent Scowcroft and former Secretary of State James A. Baker III. “Gates’s world is Brent Scowcroft and Baker and a whole bunch of people who felt the door had been slammed in their face,” one former official who has discussed Iraq at length with Mr. Gates said Thursday. “The door is about to reopen.”

About to reopen onto a world of realpolitik, and that might not be a good thing.

I fear any "solution" (if, in fact, new solutions are really in the offing) might entail engagement with Iran and Syria, asking them to, pretty please, leash their dogs in Iraq and seal the borders from their side. In addition to conjuring images of Lebanon after the (first) Israeli withdrawal, it brings the prospect of Iran's hardliners getting more than they ever dared dream: elimination of Saddam and the Taliban at no cost, de facto control over Iraq (bringing the edge of their control to the frontier of the Gulf Arab states and Jordan), and enough leverage with the United States to allow them to preserve much of their nuclear program.

In fact, this administration should have picked up the phone to talk turkey with Iran and Syria (and, perhaps Turkey, too—why the hell not?) right around the time they were going with the strong, silent type, and disparaging the "Axis of Evil." By belatedly coming around to the idea of engagement, they've made the realpolitikal options unpalatable.

The return of Bakerism to DC compounds the worst mistake of Bush II with the worst mistake of Bush I.

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I woke up to some sad news today: Microsoft, once the most feared company in the world, is a total wuss. They've cut a crazy deal with Universal Music Group to pay a $1 royalty for every Zune device they sell (in addition to any royalties for UMG music they actually manage to shift). The New York Times has the details:

In a rare move, Microsoft said yesterday that it had agreed to pay a percentage of the sales of its new portable media player to the Universal Music Group.

Universal Music, a unit of Vivendi, will receive a royalty on the Zune player in exchange for licensing its recordings for Microsoft’s new digital music service, the companies said.

UMG is shaking down the new kid on the digital music block, trying to get from them what they haven't been able to get from Apple: a cut of the hardware sales. Microsoft, desperate to have all the major labels on board, folded like a cheap suit, and set a precedent that'll affect their relationships with the other major labels (who probably have "most favored nation" clauses in their contracts with Redmond).

It's clear that the overriding motive for Microsoft was desperation:

In discussing the rationale for the royalty, Chris Stephenson, general manager for global marketing in Microsoft’s entertainment unit, said the company “needed people to rally behind” the new device and service.

“It’s a higher-level business relationship,” he said.

A higher level of punk-itude, maybe. Anyway, I'm sure it wasn't lost on anyone at Microsoft HQ that this would eventually make life tough for Apple when it came time to renegotiate their licenses with the majors.

The rationale for the major labels is simple: Apple's done better, in gross dollar and margin terms, from the hardware than they have from the music they've sold, and they want a piece of Apple's cake, too.

Remember, these companies have sold many of us the same music over and over again (In my case, I can pick out tracks on my iPod that I've bought on vinyl, tape, CD, and now as downloads). Apparently making money from the business they're supposed to be in isn't enough. The fact that every MB of disk space on an iPod isn't occupied by tracks from the iTunes Store  is all the backup UMG et al need to justify their position:

The move also reflects Universal’s recognition that, for all the runaway success of gadgets like the iPod, consumers are still not buying enough digital music to make up for declining sales of music on compact disk. Universal said it was only fair to receive payment on devices that may be repositories for stolen music.

“It’s a major change for the industry,” said David Geffen, the entertainment mogul who more than a decade ago sold the record label that bears his name to Universal. “Each of these devices is used to store unpaid-for material. This way, on top of the material people do pay for, the record companies are getting paid on the devices storing the copied music.”

He added: “It certainly changes the paradigm.”

Yes, from one where record labels got money for the music they sold, to one where they get money because they assume their customers are thieves.

It would appear that Universal's thirst for royalty justice is small, however: a one dollar royalty is, after all, the equivalent of one track per device. I'm with Om "GigaOm" Malik when he says:

If Apple had to pay at least $1 per device for every iPod sold over past two fiscal years, its cost would be $62 million at minimum: or about one more song per device. If music industry cannot sell one additional song to consumers (and has to blackmail for more money) then, you as a business, have lost grip over your core competency.

Which makes it all the more appalling that Microsoft has caved in. Surely Apple's precedent meant that they didn't have to.


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[Cross-posted from Global Nerdy, the tech blog I write with Joey "AccordionGuy" deVilla]

BusinessWeek is peddling a rumor that Michael Dell is tyring to handpick a new executive team to jumpstart his company's (relatively) moribund business:

Says one high-ranking executive from a Dell rival: "It has been clear for months that Rollins had lost external support, but my sense is that he has now lost internal support as well. Perhaps a CEO can lose one of the two temporarily, but never both."

A Dell spokesman says that the company is not seeking to replace Rollins. "Michael and Kevin have been involved in business decisions, in accessing talent, in interviewing talent, together," says spokesman Bob Pearson. "There's nothing new here. There's no change."

Pearson declined to comment in any detail on attempts to fill other senior positions at Dell. "We're always looking to grow teams at all levels. We're always interested in looking at top talent," he says.

So, the word from Dell is "Nothing to see here, everything is fine, all systems are normal." BusinessWeek, however, goes on to suggest that Dell's been looking to find some heavy-hitters to shore up a few weak spots in the business. Nothing major, just looking for executives to fix Dell's services, their marketing, design, and operations.

Wow. If you're bleeding in all those areas, why not just shut it down and give the money back to the shareholders, Mike?


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Microsoft's embrace of Novell's SUSE Linux looks like they're extending an olive branch to open source, but may really just be a step towards extinguishing Red Hat and VMware.

Microsoft Corp. and Novell Inc. today announced a set of broad business and technical collaboration agreements to build, market and support a series of new solutions to make Novell and Microsoft® products work better together. The two companies also announced an agreement to provide each other’s customers with patent coverage for their respective products. These agreements will be in place until at least 2012. Under this new model, customers will realize unprecedented choice and flexibility through improved interoperability and manageability between Windows® and Linux.

“They said it couldn’t be done. This is a new model and a true evolution of our relationship that we think customers will immediately find compelling because it delivers practical value by bringing two of their most important platform investments closer together,” said Steve Ballmer, CEO of Microsoft. “We’re excited to work with Novell, whose strengths include its heritage as a mixed-source company. Resolving our patent issues enables a combined focus on virtualization and Web services management to create new opportunities for our companies and our customers.”

The agreement begins with patent cross-coverage. Microsoft and Novell each pledge not to assert their patents against each other (or drag their customers into it) until at least 2012.

Technologically, the two companies say they will work together on three fronts. First, they'll collaborate on virtualization offerings. Second, they'll improve customers' ability to manage mixed SUSE and Windows environments by improving their respective system management tools and directory services. Third, they'll work on document format compatibility between Microsoft Office and

Now, if this was truly a customer-driven initiative, it would make far more sense for Microsoft to have partnered with the company selling the top Linux distro in the enterprise, Red Hat. The fact that Microsoft's giving a boost to the #2 player (and just days after Oracle took a kick at Red Hat's core maintenance business) clearly begs for a second, cynical look. I think Alfresco's Matt Asay's onto something when he says:

Microsoft clearly does not view Novell as a threat. You don't link up with those that threaten to crush your business, not unless customers are demanding it. Given the relative market shares of Red Hat and Novell, it's a near certainty that if Linux and Windows integration is desirable (and it is, and customers are asking for it), then the most desirable partner for Microsoft (from a customer standpoint) would be Red Hat.

If SUSE gains from these agreements ("It's the Linux that Microsoft loves!"), it will come at the expense of Red Hat.

And while each element of this relationship is designed to, in some way, make life difficult for Red Hat, I think the virtualization aspect is also meant to address another of Microsoft's competitors. After all, as Mary Jo "All About Microsoft" Foley says, "Microsoft didn't need a special alliance with Novell in order to get Windows to run virtually on SUSE Linux or to make SUSE Linux to run on the Longhorn Server Hypervisor."

When you hear "Microsoft" and "virtualization" in the same sentence, it's usually a hint of Microsoft's pitched battle with VMware for the virtualization market. Thus far, Microsoft has had trouble dislodging the industry leader, but they're trying their damndest to change that with upcoming releases of Windows Server Longhorn and Windows Virtual Server. They're planning to optimize ("enlighten") how Windows Server Longhorn performs with their their "Viridian" hypervisor (all part of an ongoing overhaul of Windows Virtual Server), so a Windows guest OS will perform better than another guest OS (say, RHEL) running on Windows Virtual Server. VMware, of course isn't keen on Microsoft being able to tout a proprietary performance advantage for their server consolidation solutions. Does the Microsoft-Novell deal mean that SUSE will selectively be given access to Microsoft's optimizations, so that SUSE Linux outperforms Red Hat when running on a Viridian hypervisor? Not only would that ding Red Hat, it would also create some pain for VMware. (A related, but tangential question would be whether anything in this agreement will lead to a SUSE-controlled virtualization platform will be able to take advantage of Microsoft's Enlightenment API, thus allowing Windows Server Longhorn to run just as well on SUSE as it does when hosted on Windows Virtual Sever? That may mean licensing some very non-GPL code to XenSource, so we'll have to wait and see)

Destpite my getting into a speculative lather, I think this agreement nets out to a few things: Microsoft wants to put the boots to Red Hat, and if they can take on VMware too, so much the better. Novell's probably got intellectual property assets in operating systems (they own UNIX), networking, and office productivity that make them a formidable legal threat to Microsoft, so a patent truce is probably worth everyone's time. The technological points of collaboration as described don't seem so deep as to merit a formally announced relationship, so what gives? All we can do now is wait to see how it shakes out, and speculate in the interim.


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[Cross-posted from Global Nerdy, the everyday technology blog I write with Joey deVilla. Normally I'd put my thoughts on enterprise IT-type stuff here, but Joey asked if I had an opinion on this deal. Who am I to refuse?]