Category Archives: Digital Life

Apple Abandons its Principles…Not! (Necessarily)

apple logoFollowing reports by Randall Stross in The New York Times and elsewhere that Apple had filed a patent application for technology that forces users of mobile or other devices to watch ads, the blogosphere lit up with lamentations. One blogger quoted by The Independent on Monday, to pick a representative example, called it “the most invasive, demeaning, anti-utopian and downright horrible piece of cross-platform software technology that anybody’s ever thought of.”

Sigh. Slow down, folks.

As Randy Stross correctly pointed out in his article, applying for a patent does not indicate an intention to use the technology in question. I also put very little significance to the fact that Steve Jobs himself is named as one of the inventors of the patent.

Here’s the reality. Companies file patent, trademark, and copyright applications for a variety of reasons. These days, perhaps the most common reason to file a patent is defensive; that is, to ensure that another patent holder can’t sue you for infringement, especially problematic given the absurdly broad applications that the Patent Office has been routinely granting in the last decade. (See my earlier post on the Bilski case.) If sued by a competitor, dormant patents can be useful bargaining chips in cross-licensing, pooling or other industry arrangements.

More to the point, the connection between patent filings and corporate strategy, especially for large technology companies, is generally nonexistent. For better and often for worse, company lawyers and the rest of the executive team historically only speak when something goes wrong.

Recently there have been movements to treat patents and other information assets using the same asset management tools applied to physical plant. That’s a good first step, but hardly the end of the road here. The full integration of legal and business strategy, including for patents, isn’t even a dream most executives dare to dream.

Apple’s patent filing almost certainly signals nothing about the company’s future intentions one way or the other.

There’s plenty of things for bloggers to get agitated about. This isn’t one of them.

The Bilski Case: Not With My Digital Economy, You Don't

big money logoMy view on today’s Supreme Court case regarding business method and software patents appears in The Big Money.

This case, which concerns the patentability of a paper-and-pencil system for hedging weather risks in consumer energy prices, drew over sixty friend-of-the-court briefs, more than any other case this term.

The reason has little to do with the claimed method, which almost no one (except the inventors) seem to think deserves the denied patent.

The real issue here is the deeply troubled intersection of information age inventions and the badly broken patent system. Nearly all of the briefs are concerned that a ruling from the Court of Appeals for the Federal Circuit, if left standing by the Supreme Court, will eliminate patent protection for some if not all inventions implemented in software.

Software patents have only been granted in the U.S. since the early 1980’s, after an earlier Supreme Court case expressed its approval for a process that included software in the operation of injection molds. (European patent law has looked much more skeptically on the practice.) Since then, “pure” software patents and, since 1998, “business method” patent applications have swamped the U.S. Patent Office, which has taken to granting more patents and letting interested parties sort out the good from the bad through the expensive corrective of litigation.

Litigation is a terrible way to determine whether a claimed invention ought to be granted a government-enforced monopoly. As I write in Law Eight (“Virtual Machines Need Virtual Lubrication”) of The Laws of Disruption, even when patent grantees lose in court, they often win in the market. Amazon, for example, successfully asserted its “one-click” checkout patent against Barnes & Noble in 1999, a crucial moment in the introduction of on-line bookstores. In 2001, an appellate court ruled that Amazon’s injunction was wrongly issued. Too late.

To quote from the book:

“Other business-method patents of dubious quality have likewise been used to gain a strategic advantage, perhaps unfairly. Playing the slow pace of litigation off the accelerating speed of digital life and its rapid evolution, patents can be more valuable as legal weapons than as protection for real innovation. Interim rulings, for example, supported TiVo’s claim against other DVR manufacturers to technology that allows viewers to pause, fastforward, or rewind television programs; Netflix’s claim to the idea of online home video rentals against Blockbuster; and patents asserted by IBM against Amazon for core features of the concept of electronic commerce. Each win, even those later overturned, provided the patent holder with a valuable, sometimes priceless, bargaining chip: time.”

I’m with the open source people here, including Red Hat, who are urging the Supreme Court to use the Bilski case to end the reign of terror of software patents.

If the inventions of digital life really need the kind of incentives the patent system grants, Congress should create a special form of protection more in keeping with their shorter useful lives and lower investment costs relative to, for example, new drugs. (Amazon’s Jeff Bezos, for one, thinks software patents should last 3-5 years, not the standard 20.)

In the meantime, we’d be better off with no protection at all.

Hollywood: We Have Met the Enemy…

tivo

Strategy under The Law of Disruption requires attention to detail.

Two recent articles with competing views of the fate of Hollywood content producers caught my attention.  The first, by CNET’s Greg Sandoval, reiterates long-standing predictions that for current industry giants the Internet spells doom.   “[T]he end is coming,” Sandoval concludes, “for DVDs, traditional movie rentals and yes, much of your cable money…..”

The second, from New York Times reporter Bill Carter, reported surprising results from a recent change by ratings agency Nielsen.  In determining whether consumers are watching commercials and, therefore, what “rating” to assign a broadcast program, Nielsen now includes DVR views within three days of airing if commercials aren’t skipped.

The surprising result is that more than half of all DVR viewers don’t skip the commercials, even though they have a button that lets them do so with relative ease.  For some shows, including “Heroes” and “Fringe,” actual ratings jumped after taking the new data into account.  The DVR, seen as the destroyer of commercial television, may save the major networks, which are averaging a 10% increase in ratings under the new system.  “It’s completely counterintuitive,” the article quotes the president of research for NBC.  “But when the facts come in, there they are.”

Ah, facts.  The hobgoblins of pundits everywhere.

So is Hollywood dead or is it doing better than ever?  Let’s split the difference here.   The content industries are clearly in crisis.  But their doom is not inevitable.

Sandoval is right that digital technology, held back for years by litigation and cost, is now in the midst of thoroughly disrupting the entire content supply chain, from creation through consumption.  The lawsuits have failed (the MPAA recently fired its general counsel in a housecleaning) and, thanks to Moore’s Law, digital content is everywhere.

Sandoval  thinks that the availability of cheap copying and rebroadcasting technologies (file-sharing, streaming, and of course the Internet everywhere) poses an insurmountable foe for the content industry.  After the fall, he says, “What will come out the other side is still uncertain but will likely be very much smaller.”

I don’t agree.  In fact, I think the answer is just the opposite, and the DVR data Nielsen is now collecting (in the teeth of initial opposition from the broadcasters, who thought it would lower their commercial-viewing share points) gives the best clue as to why.  More on why in a moment.

First, let’s be clear on the source of the crisis.  Though it’s convenient for media executives to see it this way, consumers aren’t evil–they aren’t breaking the rules because they hate rules.  They’re breaking them because they want something they aren’t getting.  And they don’t understand why broadcasters would object to their efforts to enjoy entertainment content however they like.  Legally speaking, we’re all felons.  But who taught us to think of broadcast content as something that magically appeared on the TV for free in the first place?

Consumers break the industry rules (and, often, the law of copyright) not because they want to destroy the industry but because they have access to technology that lets them do something they want to do but otherwise can’t.  Consumers want to watch what they want, when they want to, on whatever device they want it.

When the only way to do so was on the broadcaster’s timetable, on media (over the air, cable, videocassettes, DVDs, Blu-Rays) controlled by content owners, paid for by advertiser support, media purchase, cable subscription fees, or all of the above, that is the way media was consumed.

Now that there are other options–including legal ones such as Hulu (ad-based), iTunes (fee-based) and Netflix (subscription-based) that remove some of the artificial constraints on time, quality, media, and frequency of viewing.  Consumers are embracing these, even as they continue, in smaller numbers, to buy media versions of movies and TV programs.

Here’s the key point: they are consuming much more media, whether legally or otherwise. They want more choices and more content. If Hollywood won’t give it to them, the Internet will. But it’s not as if we really care who gives us what we want. We’re willing to make all manner of trade-offs on quality, cost, ease-of-use.  If, that is, there is a real choice.

Consumers will always reject artificial constraints where technology allows them to do so.  Inherently, they understand that information is an inexhaustible commodity–that no matter how and how often and in what quality they watch “Star Wars” or last week’s “Flash Forward,” the programming is still intact, undamaged, and available any time in the future for them or any other viewer–simultaneously, if desired.

Now that most everything has been translated to bits (or starts life that way in the first place), the curtain has been lifted.

There are two ways to make consumers pay for this content in a manner that that make it profitable for creators, distributors and others in the supply chain to continue to produce it.  One way, the pre-Internet way, was to give them no choice.  Watch these commercials because you can’t skip them.  Buy these videotapes because there’s no other media.  Pay your cable bill because that’s the only way to get the channels you want.

The second way, which will now determine who wins and who loses in the content industry of the future, is to use whatever information you can get your grubby hands on about what consumers are actually doing with technology and learn from it.

Now that both the content and information about the content have become digital, the media industry needs to learn what it is that consumers actually want–that is, what consumers actually value–and offer it to them.

The DVR data, as a  starting point, tells us two interesting things.  First, that many consumers don’t mind watching commercials, either because they like them, or they’re too dazed to skip them, or because they understand that the commercials subsidize the programming.  Media buyer Brad Adgate, quoted in the Times piece, notes something that hasn’t changed about the viewing experience:  “It’s still a passive activity.”

(To exploit that passivity, sponsors are going back to the original model of embedding product placements and commercials into the programming–a la “Top Chef” and “The Biggest Loser” and probably every other show that does it with more subtlety.)

But the second and more interesting insight from the DVR data is that resisting information because you think it will deliver bad news is a self-destructive behavior, especially during times of industry transformation.

Ten years into the digital revolution, Hollywood is still firmly stuck in the first stage of grief–denial.  Not only are they resisting change, they are resisting any knowledge about how the change is taking place.  Even when, as here, that knowledge tells them something valuable about how to thrive in the emerging new order.

(History repeats itself:  recall the industry reaction to the VCR, which MPAA President Jack Valenti famously equated to the Boston Strangler–the violent, insane destroyer of his industry.  In retrospect, the VCR saved Hollywood from itself.)

I don’t agree with Sandoval’s conclusion that the Hollywood of the future “will likely be much smaller.”  The popularity of YouTube and other user-produced content services, the explosion of cell phone apps for enjoying content, the success of Indy studios and niche channels, and the continued interest of consumers in “collector edition” and other high-end media artifacts all suggest that the public’s appetite for entertainment is unfathomable.

Three networks, we have already learned, aren’t enough.  Hundreds of specialty cable channels aren’t enough.  Content produced and delivered on a take-it-or-leave-it basis in a vacuum of consumer insight beyond gross demographics and what-worked-last-year strategies is no longer a sustainable model.

But what will come out “the other side,” as so often happens when disruptive technologies rewrite the rules, will be a much bigger industry, with more profits to share.  True, the Hollywood of tomorrow won’t look much like the Hollywood of today.  But then, the Hollywood of today has almost nothing in common with the original industry model, dominated by the studio system and a handful of powerful decison-makers.  For one thing, it’s a whole lot bigger by any measure.  Technology makes things better–always, if eventually.

Here’s what else the DVR data tells us.  In the future, information about media consumption will prove as valuable as the entertainment itself.  Strike that:  it’s already happened.  For the first fifty years of its existence, TV Guide, which merely printed local listings summarizing what was on the few channels a household received, made more money than all three of the major broadcast networks combined.

Existing players in the collapsing Hollywood supply chain can either learn new ways to add value and thrive, or they can continue to resist the inevitable, close their eyes to valuable data, insist on business as usual, sue everyone and everything, and go the way of buggy whips and analog broadcast.  Add value, as a client once summarized it for me, or adios.

I know which one I would choose.  But then, I don’t run a multi-billion dollar public company.

Yet.

Social Contracts in Virtual Life: The Danger of Terms of Service Agreements

second life
An article in today’s New York Times by Chris Nicholson brings home an important lesson about digital life under The Law of Disruption. When social contracts are formed, the medium is often the message.

The story involves the Second Life virtual environment. A couple met and married online through the site, and with virtual currency called Lindens, purchased and furnished an island retreat. After the husband died in real life, the wife could not continue to make maintenance payments on the island. Linden Labs, which runs Second Life, erased all of their shared digital possessions.

In the physical world, the relationships between citizens and their governments are embodied in social contracts, often codified in key documents such as the U.S. Constitution, Magna Carta, and the Charter of Fundamental Rights of the European Union. These documents, of course, are the architectural drawings of social constructs, left to courts and legislatures to implement and interpret.

In digital life, the sovereign is often the operator of a web service. For Second Life, that sovereign is Linden Labs. Other sovereigns include MySpace, Facebook, LinkedIn, Twitter, Scribd, Yahoo!, Google, Microsoft, YouTube and eBay. Depending on the nature of activity supported by the service, the scope of sovereignty can be modest or all-encompassing. The more intimate the activity supported by the service, the more expansive the power of the operator.

Instead of constitutions and charters, digital life is described in much more humble documents–the “terms of service” agreements that users habitually agree to without reading a word. And why should they? ToS documents are written by lawyers for lawyers, in dense language and legal terminology that is intended to intimidate and discourage close (or even cursory) inspection. ToS agreements are one-sided, enforceable by fiat, and non-negotiable.

If you don’t want to live by the rules laid out by Linden Labs, where an inability to pay “taxes” results in the confiscation and destruction of your assets, your only choice is to go live your second life somewhere else.

But as more of our physical activities migrate to digital life, the ToS will take on increased significance as a governing document. Users will not accept a charter that they cannot read, let alone one to which they did not contribute.

Some months ago, for example, a group of Facebook users rebelled against proposed changes to the ToS that they believed gave unreasonable power to Facebook to control information contributed by users. (As a social networking site, nearly all of Facebook’s content is contributed by users–well, all of the valuable content in any case.)

After over 100,000 Facebook users made use of the tools provided for collective action by Facebook itself to create a “Facebook Users Against the New Terms of Service” page, the company responded quickly. The proposed changes were withdrawn. Henceforth, the company promised, the ToS would be written in English based on joint efforts between the company and its users. “Our terms aren’t just a document that protect our rights,” wrote CEO Mark Zuckerberg, “it’s the governing document for how the service is used by everyone across the world. Given its importance, we need to make sure the terms reflect the principles and values of the people using the service.”

Given the company’s reliance on user support for its value and very survival, Zuckerberg’s responsiveness was both admirable and necessary. At the time, Facebook had over 175,000,000 users. It now has over 300,000,000, making it the fourth largest “country” in the world.

As more web services become reliant on user input for their value, expect more user revolts and more compromises by the sovereigns of digital life. The Terms of Service agreement will evolve to become collaborative. New legal institutions–not adaptations of old physical ones optimized for the industrial age–will emerge to implement and adjudicate them.

Indeed, I don’t think it’s an exaggeration to say that the Facebook revolt signaled the beginning of a new kind of government for digital life, with a new form of law suited to its unique properties.

In law, the replacement of one form of government with another is called a “revolution.” Not all revolutions are bad, and not all revolutions are violent.

In the digital life revolution, the first coup was a bloodless one. That’s a good sign.

Identity Theft: Not Dead Yet

lifelock logoJulia Angwin’s column in The Wall Street Journal argues that identity theft is nothing but a “fear campaign.”

Not exactly.

I also have some strong words about the overuse and abuse of the term “identity theft” in The Laws of Disruption, and have written elsewhere in this blog on the subject. But I don’t think the problem is, as Angwin writes, merely a linguistic construct “designed to get us to buy expensive services that we don’t need.”

Let’s start with where I agree. By and large, “identity theft” is a term that is being kept alive by organizations with a vested interest in making the problem sound as severe and dangerous as possible. Angwin mentions credit bureaus and companies such as Lifelock who sell insurance against the problem. I would add to that list traditional insurers who are also selling identity theft policies, software companies such as McAfee and Norton who sell anti-malware products and services, and the U.S. Federal Trade Commission, which reports every information theft as identity theft even when it is only credit card companies who are at risk. Each of these groups has its own reasons for keeping the problem at the forefront of consumer fears about Internet commerce.

Angwin is also right to point out that the true problem–which for the most part are unauthorized purchases–is not a problem for consumers. Credit card companies and banks, by law, bear nearly all of the actual losses. (Of course the losses–still some $48 billion in 2008–are ultimately paid by consumers in the form of higher interest rates and other card and merchant fees.) Most consumers pay nothing when their card is stolen and used by thieves. Even when new accounts are opened in your name (the truer example of identity theft), the average loss to consumers is less than $600. The scale of identity theft in both frequency and cost has been steadily declining since the FTC began keeping records in 1999.

But I wouldn’t go as far as Angwin in saying there’s no problem here. Because while it’s true that consumers have no legal responsibility to pay for unauthorized charges on credit cards and bank withdrawals, many victims of Internet-related fraud do pay a significant price.

Once consumers stop the unauthorized charges and close the fraudulent accounts, many encounter a demonic maze of obstacles trying to clear the criminal activity from their credit reports, scores, and credit card accounts. And ignoring the errors is not an option. Keeping an accurate profile is essential for everything from applying for a mortgage to getting a job or apartment–basic life activities, in other words. Yet these financial records are in the hands of shadowy third parties–who charge, when they can, just to divulge what inaccurate information they have on file. Either by design or ineptitude, these organizations make correcting their own errors nearly impossible for consumers.

The victims of identity theft are victimized not so much by the information criminals, but by the information managers.

Federal and state regulations are supposed to protect consumers from this kind of abuse, too, but enforcement is poor.

Accurate financial data is critical in the development of the information economy. We need more transparency in the operation of credit bureaus, agencies, credit card companies and others who have appointed themselves the guardians of consumer financial records. We need a Federal Trade Commission that is interested more in protecting consumers than protecting the markets for consumer protection products that are in part unnecessary and in part insurance against the incompetence of the industry the FTC supposedly regulates.

As Mark Twain once said, “A lie can travel halfway around the world while the truth is putting on its shoes.”

We still need tools to give the truth a fighting chance.

Be Careful What you Lobby Against

jameson“Science fiction,” literary critic Frederic Jameson once said, “is a kind of nostalgia for the present.”

Meaning: when faced with the possibility of revolutionary change, it’s human nature to frame it in reductive metaphors. A car is a horseless carriage. A TV is radio with pictures. Steel cable is wire rope. A Blackberry is a wireless telephone. Information is “intellectual property.”

I thought of this again reading Nate Anderson’s recent post at Ars Technica, a wonderful piece he called “100 years of Big Content Fearing Technology—in its Own Words.” Anderson, Associate Editor at the site, detailed some of the most inflammatory comments made by information content producers and distributors in response to revolutionary technologies of the past—the player piano, the VCR, the photocopier.

In every case, those with a vested economic interest in existing media and business models for exploiting it see every breakthrough as catastrophic. The photocopier will put an end to books. The VCR will be the death of the movie industry. Napster will destroy the music business. “I say to you that the VCR is to the American film producer and the American public,” the late Jack Valenti fumed, “as the Boston Strangler is to the woman home alone.”

It’s fun to read these quotes in retrospect, because the irony is always that disruptive technologies invariably create new uses, new markets, and new wealth, much of it captured by those trying the hardest to make time run backward and uninvent the new media. The VCR, it’s now completely clear, saved the movie industry. Or rather, it transformed it into a new industry, bigger, more productive, and richer than the old one.

Anderson has some sympathy for the doomsayers, though, and so do I. For one thing, the transition to new media is rarely a gentle one. Consumers experimenting with new technologies often bypass existing channels, ignore borders and boundaries, and break the law. We don’t call them disruptive technologies for nothing.

In the end, as I argue in The Laws of Disruption, those who cling to a dying past always turn to law, usually a combination of lawsuits, regulatory change, and new laws forced through to put the brakes on the inevitable. Sometimes it helps to slow things down, maybe just a little. Often it warps the direction of change, creating unintended and unexpected consequences that often boomerang. The movie industry lost their case to ban the Betamax, thank goodness. Yet Sony, which won the case, lost the market to the more open and more customer-focused VHS.

The new medium, to badly paraphrase Marshall McLuhan, creates a new message. But it’s impossible to get that message until consumers have a chance to play with the medium for a while. How long depends in part on how quickly the technology reaches critical mass. Thanks to Moore’s Law, that period has gone from years to months.

There’s almost not enough time to resist. So why bother?

I am regularly drawn to this quote from the pioneering antitrust lawyer Brooks Adams, great grandson of John Adams. Arguing before the Interstate Commerce Commission a little over a hundred years ago, Adams wrote:

There is no ancient and abstract principle of right and wrong which can safely be deduced as a guide to regulate the relations of railways and monopolies among our people, because railways and monopolies are products of forces unknown in former times. The character of competition has changed, and the law must change to meet it, or collapse. Such is my general theory.

Adams was cadging the Commissioners. The law always collapses, as he well knew. Which is not as bad as it sounds. Soon enough, old metaphors are replaced by new metaphors, and with them a new legal system that better fits the new reality.

That, after all, is what a revolution is: replacing one system of government with a different, perhaps better, system.