Just Opt Out!

I recently got this in the mail.

It must have been important, because the accompanying bank statement took pains to clearly refer to it. Basically they are changing their terms so that you have to submit to “Binding Arbitration” in the event of a dispute. Naturally I opted out immediately; there’s nothing in it for me.

I’m not picking on PNC bank; I’ve seen this many times before. It seems that every contract of employment, service agreement, mortgage agreement — in fact, just about any type of legal agreement — has a “Mandatory Binding Arbitration” clause in it somewhere.

The purpose of arbitration is to resolve problems without going to court. That sounds like a Good Thing… until you ponder one simple question: Who pays the Arbitrator? If they (employer/bank/service/bigcorp) is paying them for their services, how can they not be biased? there is a classic textbook conflict of interest — which Arbitrator would bite the hand that feeds them?

Here in the US, The first amendment to the Constitution provides the right to petition (to the courts) for redress of grievances. The Supreme Court has ruled that this does not apply to private transactions, which is all well and good until someone asks: so what’s to stop everyone from doing this? eBay and PayPal — two of the most evil companies around, in my opinion, both did this recently (and made it really difficult to opt out), and these clauses are cropping up in rental agreements and loan paperwork.

There’s a simple solution for this: change the law so that unilaterally-enforced (“take-it-or-leave-it”) Arbitration requirements cannot preclude or pre-empt the courts. I’m ok with Arbitration as a pre-litigation step to avoid the need for a lawsuit; what I am not ok with is Corporations using it to sidestep Litigation entirely.

This is clearly Tort Reform by stealth, and it must be stopped. Until that day, Just opt out.

No such thing as FREE

“FREE” is one of the most horribly mis-used words of our time. Marketers use it incessantly, as they know that it catches people’s attention. “Buy one get one FREE” (they love to capitalize it) sounds so much catchier than “Two for the price of one”. So when I received an e-mail informing me that my company was offering free birth control, my attention was somewhat piqued.

This is actually part of The Affordable Care Act (aka “Obamacare”) that is being phased in over the next twelve months. It only applies to women, though; apparently, somewhere along the line, women became a privileged class. For all the talk about women’s rights, women’s issues and women’s reproductive freedom, there is no equivalent conversation about men’s rights/issues/reproductive freedom – mention those and women look at you as if you were speaking Swahili.

As things stand, when a woman gets pregnant, the husband/boyfriend/baby-daddy has precisely two options – watch helplessly while she “makes the choice” to have an abortion, or pay for the upkeep of the kid for the next eighteen years.

So much for equality

What about free birth control for men? Don’t make me laugh; some men were never meant to breed — and these are generally the chaps who do. And while we’re on the subject of our right to guilt-free sex, where’s my free Viagra? Ridiculous. And yet the principle – the idea that you can merrily make whoopee inside or outside of marriage without worrying about the consequences – is the same in both cases.

But wait! There’s more! This “free birth control” applies only to women who have private health insurance. No insurance? Tough – pay up. Even so, this legislative giveaway benefits over forty million women. That’s forty million co-pays that “someone else” has to pay. Who? The insurance companies. And who do you think they will pass that cost on to? That’s right – the rest of us.

Now I am old-fashioned enough to believe that sex is best enjoyed within the confines of marriage. Guilt-free, disease-free, regret-free; absolute trust and rampant lust rolled up into one delightful package. It’s the best thing on Earth – trust me on this one. But, ladies and gentlemen, sex – guilt-free or otherwise – is not a human right. It is a privilege reserved for the grown-ups. And if you can’t afford contraception, maybe sex is a luxury you can’t afford.

I have no problem with birth control – if you don’t want children, you probably shouldn’t have any. Some people weren’t meant to reproduce; I’m one of them. But seriously, folks, isn’t this whole “free-birth-control” thing sending out the wrong message to our young people?

eBay/Paypal is at it again

I found this in my mailbox yesterday afternoon.

Yes, it’s a real card. No, I didn’t ask for or sign up for it. I have seen ads for it on PayPal’s website, but did not want one, so I ignored it. Apparently they don’t take “no” for an answer, and decided that I needed one whether I wanted it or not.

This is truly evil, and here’s the main reason why.

That’s right – if you activate the card, you set yourself up for nearly $60 per year in charges and fees before you have even used the card… all for the privilege of being able to spend your own money. I have two bank debit cards, and neither one costs me a penny – if they did, I would drop ‘em like a hot brick.

eBay is a de facto monopoly on the web, and PayPal is a de jure monopoly on eBay – they no longer allow other methods of payment. And their behavior stinks. For instance, as a seller, you are required to link your PayPal account to a real-world bank account. In the event of a dispute, PayPal can lock the linked bank account for up to six months without warning or explanation. they can also reverse transactions. This is the main reason that I stopped selling things on eBay and closed my eBay seller account.

PayPal is not a bank. And they like it that way. There are several reasons/excuse for this:

• PayPal does not “move money around”
• PayPal does not engage in fractional reserve banking.
• “PayPal doesn’t have a charter, thus it is not a bank”, say the FDIC
• “PayPal does not physically handle or hold funds placed into the PayPal service”. (er… neither do my accounts with ING direct or Perkstreet Financial – and they are both banks).

I don’t know whether or not PayPal is technically a bank. Maybe they are, maybe they are not. But there are few businesses in the world in more dire need of oversight and regulation than eBay/PayPal.

If you are as outraged about this as I am, feel free to leave a comment – and write to your Congressman.

Is eBay… eVil?

I just got an e-mail from our friends at eBay that I felt was worthy of mention. It is a change to their terms of service. Normally these things are just small changes or adjustment, but this one had two things that raised my eyebrows:

The User Agreement contains an Agreement to Arbitrate, which will, with limited exception, require you and eBay to submit claims to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate by November 9, 2012. Unless you opt-out: (1) you will only be permitted to pursue claims against eBay on an individual basis, not as part of any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Hmmm…. looks like a fairly transparent attempt by eBay to avoid class-action lawsuits. While I am no fan of class-action lawsuits where the lawyer gets $10M and I get a voucher for $0.89 off my next purchase, I don’t like any thing that takes away my right to join one. I also have a bug problem with  compulsory-arbitration clauses. Not only are they unconstitutional (Amendment 7: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.“), but there is something of a conflict of interest; if the arbitrator is being paid by eBay I question their ability to come to a fair and unbiased decision.

You don’t need to take any further action to accept the updated eBay User Agreement. If you choose not to accept the new terms, visit this help page for further direction.

And the link points to… TERMINATE YOUR ACCOUNT! That’s not “further direction” that’s “Grasshoppa, time for you to leave…“.You can opt out of the agreement to arbitrate without opting out of the updated user agreement, but they don’t exactly make it easy. Rather than giving you an “Opt-out-of-it-now” link, you are required to opt-out in writing by a specific date. They don’t exactly make that information easy to find, either – so in the interest of public information, here it is.

Sincerely,

Braden Dong, Senior Counsel
Marcus Morissette, Privacy Counsel

Ah. Written by the lawyers – why am I not surprised? Something smells funny here, and the whole thing seems very very sneaky.

Of course, this is all academic to me; earlier this year I decided to top selling things on eBay, since they seem to have become the buyers’ friend and the sellers’ enemy.

But it seems that every time they change their terms they become a little more… evil.

Apple wins, Samsung Loses – and so do the rest of us

I saw in the news that Apple recently won a billion-dollar judgement against Samsung.As a programmer and a designer, I understand that software is a collection of ideas. I also firmly believe that software, as a rule, should not be patented. To do so would have a chilling effect on innovation, as new product designers would have to avoid anything that even looks like something that the competition might have patented. I’m not saying that businesses should not keep secrets – of course they should. But that is an internal security and policy matter.

While a billion-dollar judgement sounds truly awful, it was “more than a billion less than Apple had demanded and a small drop for Samsung in the grand scheme of things”, according to the EFF. Samsung will appeal. And they will probably have the judgment reduced or reversed – and this will go on for years.

• Patents are for mechanisms and devices – not ideas. There are a lot of things that are patented that should not be. Apple patented the “slide-to-unlock” mechanism… while conveniently forgetting that it has been used to secure garden shed doors for centuries. Fortunately a UK court saw sense and declared the patent obvious and therefore invalid, but US courts are not always so sensible.
• Google was so worried about Patent wars that they purchased Motorola for a cool $12.5Billion.
• Ideas are built on other ideas. Innovation is all about building a better mousetrap – doing things better than the way they were before. But you can’t do that if there are patent trolls lurking about under bridges looking for a similarity that they can use to hold you for ransom.
• Let’s not forget that this was a battle between an American company and a Korean company, in an American court, with American Jurors. Why are we surprised at the verdict?And the non-technical jurors were asked hundreds of technical questions that they were fundamentally unqualified to answer. I smell shenanigans.
• Outside the US, however, Apple aren’t so good at getting their way. “On August 24, a South Korean court found that both parties had infringed on each other’s patents, banning the sale of the iPhone 3GS, iPhone 4, two iPad models and Samsung’s Galaxy S2. The Korean court ordered Apple to pay Samsung $35,000 and Samsung to pay Apple $22,000″, according to CNN (emphasis mine).
• Steve Jobs used to refer to Google’s Android as a “stolen product”, presumably because Android shared some look-and-feel elements with IOS. One only needs to look back to the “look-and-feel” lawsuits of the 1980s, where Apple was busily suing Microsoft for “stealing” their UI… while conveniently ignoring the fact that both MacOS and Windows were both using ideas “inspired by” (i.e., swiped from) research done at Xerox PARC.
• A major part of the problem is the patent system; which is overworked and underfunded. As a result, overly broad patents are often granted, and they are not overturned unless challenged in court. this needs to be fixed.The patent system, as it stands, favors the big – those businesses with thousands of patents and cross-licensing agreements that allow them to use each others’ patents with impunity – and gives them the leverage to drive small players from the field. This can’t be good for business.
• One of the criteria for granting a patent is that it should be non-obvious. One of the design elements that Apple claims that Samsung “stole” was “pinch-to-zoom”. Put a tablet in the hands of a three-year-old – they will instinctively pinch the screen when they want to zoom. Looks pretty obvious to me…
• Innovation always breeds imitation. But Apple have always been trigger-happy with it came to litigation. Innovation meant staying out in front, not “lawyering up” at every opportunity – in the past they have tried to assert that they own everything that begins with “i-” or end with “-Pod”.

I close with a quote that says it better than I ever could:

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today”– Bill Gates, 1991

There is an elephant in the room

More than two years ago, there was a battle royal going on between Amazon and the book-publishing industry. The fight was over who gets to set the price. The general consensus among authors at the time was that Amazon (who wanted to sell e-books at a discounted price of $9.99) was evil, and that the Publishers (who knew the writing business best) should set the price.

At the time, In a blog post entitled “When Elephants Fight” I opined at the time that the publishers should not be allowed to set the price, because they would push prices up and blame the resulting drop in sales on “piracy”

Two years on, e-book prices have gone up, but that has not affected me. Although I have purchased two Kindles since then (and run Kindle software on several other devices), I have not spent more than $3.99 on a Kindle book.

Oh, and the DOJ has hauled half a dozen of the major publishers, along with “Co-conspirator” Apple, into court.

As Jim Carrey once said: “I’m sick of being right”

Dear Netflix

We have been customers of yours for about a year now. We stayed with you when you made that disastrous pricing mistake that cost you millions of customers last year.

For the past few weeks, Her Ladyship has been watching a TV series called “Monarch of the Glen” A British TV series about a Scottish family. She had watched approximately 20 episodes, about a quarter of the total available for viewing. But when she went to watch a episode earlier this evening, it wasn’t there.

“Monarch of the Glen” had softly and silently vanished away, leaving behind only it’s DVDs-by-mail. Which we don’t get.

I called customer support, and after a very short wait indeed, I was put through to a CSR who informed me that you no longer had the streaming rights to this series.

I understand how your business works. I know that this sort of thing can happen. what I do not understand is why there was no indication, no warning, no clue that this was about to happen.

Imagine how you would feel if you had read the first two or three of a series of books, and after investing twenty hours of your life, you were informed that the publisher had decided not to print the rest of the series after all. You would be furious, and rightly so.

Here’s what I think you should do:

1. Offer some kind of tangible apology to those who have been inconvenienced by this and similar debacles. There is no excuse – the nature of your business makes it easy to identify those who have been inconvenienced by a disappearing series — and “too-bad-so-sad-so-sorry” just doesn’t cut it.
2. Put on your “product” pages the date that the streaming rights will expire. If  it had said “Monarch of the Glen (Streaming until 1/31/2012)”, Her Ladyship could have chosen to spend those twenty hours doing – or watching – something else, and we would have had nothing to complain about.
3. Listen to your customers. There is no physical postal address to which your customers can send mail, and no way to send an e-mail from your website. All I could find was a well-hidden e-mail web-form that is labeled “This page does not accept customer service inquiries” that that does not work properly (clears all fields in Firefox, in IE it tries to invoke the local e-mail client to send – why not just do this instead?). It seems self-evident that you don’t want to hear from your customers. Because of this,  I have posted my complaint here, for you to address the issue directly. It will be interesting to see what you have to say, if anything.

It has been said that the movie studios are out to kill Netflix, this is probably true; they feel that Netflix undermines the value of their product. But in my opinion, Netflix represents the true value and Hollywood, has overvalued their product, as they so often do.

However, Netflix needs to get their act together. Having shot themselves so spectacularly in the foot last year, it seems like they are now happily shooting themselves in the other foot by not telling their customers what is going on.

For a year now I have been recommending your streaming service to friends, showing it on smart-phones and tablets, and generally telling the world how cool it is. I am not one to make threats, but if you think that annoying your customers like this is acceptable business practice, losing my $8/month will be the least of your worries.

I await your reply. Make it a good one, for it will be posted here, so the world can see what stuff you are made of.

Netflix rules, ok?

Netflix Rocks — It’s Hollywood that’s the problem.

I recently heard on my favorite podcast that Netflix is, by bandwidth, the biggest site on the Internet. This is very comforting, as it proves something that I have always believed in my spirit; that the majority of people would rather not pirate movies if they were given a convenient, reasonably-priced alternative. For this reason, Netflix’s $8-per-month video streaming service is one of the best bargains (I refuse to use the word “value”; it just sounds wrong) on the Internet. It even works on my phone!

But it’s not all wine and roses. While there is alot of good stuff out there, there are many movies that do not feature on Netflix’s streaming service. Here are some of them:

• Avatar (2009)
• Star Wars (all six movies, 1977-2005)
• Indiana Jones (All four movies)
• Back to the Future (Trilogy)
• Iron Man I and II
• Spider-Man (all three)
• The Chronicles of Narnia (all three)
• Fantastic 4 (both)
• How to Train your Dragon
• Schindler’s List
• The Hurt Locker (One movie I will never watch or buy — here’s why)
• Almost anything from Walt Disney

In most cases, you have to pay more for the DVD-by-mail service. This is understandable for a recent movie like Avatar, but Star Wars (IV) is thirty-four years old!

As with most disputes of this nature, if you go far enough down the rabbit hole, you will find an obstinate publisher (Director/Producer/movie studio/media conglomerate etc.) at the bottom of it. These folks honestly believe, deep down in their souls, that copyright is ownership; they have told themselves and the rest of us that lie long enough that it has become universally accepted as fact.

Copyright is, and always has been, a bargain between creators, publishers and consumers, intended to give those who create a “limited and exclusive right” to make money out of their creations, after which they fall gracefully into the public domain. It is not, and has never been, ownership. Repeat after me: “Loaned, not Owned”. Got it? Great.

These folks have got the “exclusive” right down pat, but the “limited” part seems to elude them: Assuming there are no more retroactive copyright term extensions, Avatar will enter the public Domain on Jan 1 2105 — how “limited” does that sound to you? Why do they need 95 years? Personally I say five is enough, with an option to purchase an extra five years for, say $100,000.

I blame Mickey Mouse; but that’s another story. But Netflix rocks.

Freeloaders

.Somebody recently asked me what I despised most of all, what made me angry more than anything else. My reply, to my own surprise, was “freeloaders”.

After thinking about this for a while, I realized that freeloaders come in many different shapes and sizes.

• If you take something that belongs to someone else, you are a freeloader. You have taken a shortcut to stuff at someone else’s expense.
• If you expect someone else to make sacrifices so you can realize gains, you are a freeloader.
• If you are receiving royalties for someone else’s work, or for something you did decades ago, you are a freeloader. Copyright and Patent laws were designed to allow progress. This is done by rewarding creative folks sufficiently to make them create and invent more stuff. This also applies to publishers and people who have stopped creating because they make too much money… but that is another story.
• If you are unwilling to work, but expect others to feed, clothe and shelter you, you are a freeloader.
• If you expect someone else to pay for your health care, you are a freeloader. Health care is not a human right.
• If your business expects the government to enact laws to help you destroy the competition, you are  a freeloader.
• If your business expects the government to bail you out, you are a freeloader.

That’s all for now.

How to save the music industry

To go forward, we must first go back

Since 1977, we have had copyright extension after extension. We have laws that made the record companies judge, jury and executioner and force all manner of others — including libraries, ISPs and branches of the Government — to do their dirty-work for them. We have watched as the courts have handed down judgment after judgment for illegal file-sharing for exorbitant amounts that are, to the rest of us looking on in horror — the very definition of cruel and unusual punishment. They even tried to change a law in the dead of night when no-one was looking. More recently they have even tried to sneak a one-world-copyright agreement under the radar by calling it an “Anti-Counterfeiting Treaty”.

For over thirty years, the copyright mob have gotten pretty much everything they wanted.

And what do they have to show for it? An industry on the verge of collapse, falling profits, businesses on the verge of bankruptcy — and a generation of customers who hate them and want to see them fail.

And what is their solution? They continue to clamor for harsher and more consumer-hostile laws.

Somebody should slap some sense into these folks

I submit that their efforts at “control” of their “property” have stifled the market  and driven customers away. The world has changed, but they have not; their solution is to pretend that it is still 1975 and wish that the Internet would go away. That is not going to work.

Here is my solution for how to sell digital music online, protect the public domain and make sure that everyone — including the artists, whom they claim to represent — gets paid:

1. One year of “Ownership“: For the first year after a piece of music becomes available in a digital format online, the publisher can assert “ownership”. They can control who sells it, and for how much. They can also dictate terms about who gets how much money — in other words, the way things are today.
2. Four years of “Agency“: After the year is up, they still exert “ownership” of the work, but they lose the right to control the price or who can sell it. For the next four years, the music company gets 40%, the Artist/Songwriter split 40% and the seller pockets 20%. Statutory damages during this phase must be limited to seven times the PROVEN damages, and not based on outrageous and unprovable assumptions. The artists should be paid out of those damages, instead of the money being quietly pocketed, as is currently the case.
3. Five-year Renewals: At the end of the first five years, the publisher can get another five years of “Agency” by paying a fee of $20,000 per song. The publisher can renew this for as long as they are willing to pay the fee. This fee will force the publishers to ask themselves if the copyright is worth keeping, and will be used to finance the system.
4. Artistic License: If the publisher declines to renew, the Artist may acquire the rights for half-price. At this point the split changes to 60% to the artist/songwriters,  40% to the seller. The Artists can renew for as long as they want. If the artist has died, their direct heirs may exercise this right until the artist’s youngest children reach the age of 21. If an artist wants to provide for their heirs, they should do like the rest of us (life insurance, investments etc.). Copyright was never intended to be a legacy except to all of us, via the public domain.
5. If the artist refuses to renew, the music falls into the public domain.

Sorted

A similar model could be applied to movies, with slightly different times: Five years of “Ownership”. Ten-year “agency” agreements, renewable for $200,000 a pop. Since they are works for hire, there is no “artist”, and the movie will then sidestep the orphaned works problem and fall, as gracefully as Forrest Gump’s feather, into the public domain.