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.

Quote of the week

From this Youtube vid, on the subject of downloading and piracy.

The way they did it was they were like, ‘You wouldn’t think of stealing a purse, would you? You wouldn’t think of stealing a car.’ And I was thinking about that as I was watching it, and you know what? I would steal a car — if it was as easy as touching the car, and then 30 seconds later I own the car. And I would steal a car if the person who owned the car got to keep the car… I would also steal the car if no one I had ever met had ever bought a car in their whole lives.

This is the argument that the “downloading-is-theft” mob do not want to hear.

Happy Birthday Anne

The ancestor of all of our copyright laws, the Statute of Anne, is 300 years old today.

Before this law was passed, only “copy rights” (as they were called at the time) were controlled and enforced by guilds, who had exclusive – and eternal –  rights granted to them under license from the Crown, to print books.

This law, passed in 1710 and named after the Queen at the time, moved the “copy right” from the guilds (publishers, if you like) to the authors. It also reduced the length of the term of copy right (to 21 years for books already in print and 14+14 years for new ones) – which effectively birthed the Public Domain.

So revolutionary as this idea that elements of the Statute of Anne found their way into the U.S. Constitution.

Oh, how far we have fallen…

When elephants fight…

Even a casual perusal of my little corner of the web is enough to convince most people that Copyright – and the abuse thereof – is a subject that is dear to my heart. So it was with much interest that I read about the ongoing spat between Macmillan (the publishing house), and the on-line giant, Amazon. Here’s the story so far:

• Amazon buys e-books from publishers at 50% of retail price, and then sets the selling price – typically $9.99.
• Macmillan decide that they want to “go to an agency model” which allows them so set the price and reduces Amazons “cut” to 30%. They also want to raise the price of e-books to around $15.
• Amazon removes the “Buy” buttons from ALL Macmillan products – e-books and print – from their site.
• Amazon later reverses their decision, calling it a “Capitulation” to Macmillan’s “Monopoly”.

Macmillan’s reasoning for wanting to raise the price of e-books is so that they can bring them out at the same time as the Hardback edition without cheap e-books cannibalizing hardback sales.

This makes sense.

They also claim that this arrangement allows them to reduce prices later.

This does not make sense, as they conveniently forgot to mention that they can already do that.

Most of the commentary that I have seen on the subject has been from the writing community. Most of it favors Macmillan, and has vilified Amazon as evil incarnate.

I respectfully disagree. Sort of. Partly.

For centuries, the publishing industry has used the tried-and-trusted Author->Publisher->Wholesaler->Retailer->Customer business model, and for physical books, it still works well. But that business model is not appropriate for electronic media. Why? Because there are no production and distribution costs involved. In theory, an author could write, edit and publish an electronic book and sell it direct to the public.

When I buy a paperback, I can sell it or give it away. It is my property. No-one can take it from me. With an e-book, I am stuck with it. I cannot give it away to someone else (though this is technically feasible, no publisher will enable such functionality unless a gun is put to their head). Even worse, if the publisher decides to yank paid-for content from the customer’s device, there is nothing that the customer can do about it – shame on you, Amazon, for that, if nothing else. So the value proposition is radically different, and no matter how hard you try, the the old rules cannot be made to fit the new .

In spite of this, publishers like Macmillan still insist on clinging grimly to their old model; why? Perhaps it is because like their cousins in the Music and Movie industries, “That’s the way we’ve always done it”. And we’ve all seen just how well that’s working out for them…

I am a firm believer in the free market, but it must be remembered that copyright is a necessary distortion of that market in order to reward creativity and not “kill the goose that lays the golden eggs”. Technically speaking, Amazon is right: Publishers hold a monopoly, as far as copyright is concerned. That is as it should be.

Publishers like Macmillan seek out new talent. In partnership with the authors they help to produce, develop and market their products. They represent the authors. They do their job well and are very good at it.

Retailers like Amazon provide a mechanism to sell stuff. They seek out markets and shift boxes. They also handle returns, complaints and post-sale support. They do their job well and are very good at it.

Amazon is not evil; neither are the publishers. Both are looking after their own interest, and either is free to do business on their own terms.

• Macmillan believe that they should set the price, since they are the publishers and the books are their “property”.
• Amazon believe that they should set the price, since they are… Amazon (well, it works for Wal-Mart!)

They are both, of course, wrong – we, the consumers, set the price with our decision to buy. Market value is “what a willing buyer would pay a willing seller”, but the copyright monopoly distorts that equation.

This whole fight is about who fits in where, and who gets to set the price.

Here’s a case in point: Recently, Amazon put “Dark Side of the Moon” MP3 on sale for $2. I’m not a Pink Floyd fan, but at that price I snapped it up. I would NOT have bought it at the full price of $5. Amazon made money, and so did the artist – money that would not have been made if the publishers were allowed to set the price. The way I see it, I set the price with my buying decision.

I love the idea of e-books, but I do not not own en e-book reader. Why? Cost the reader and the content are both too bloody expensive and DRM requires that I surrender too much freedom for my liking.

• I would pay $3-6 for an e-book; at that price I would buy one or two every week.
• At $10 I might buy 3 or 4 a year.
• At $15, they will never see me – I’ll just visit the library instead.

Returning to the Macmillan-Amazon incident, In theory, Macmillan should set the price. In practice, they will set their prices higher than I am willing to pay. And then, whey sales do not live up to their over-inflated expectations, they will take a leaf out of the RIAA and MPAA’s books – and blame Piracy for their own inflexibility. Come on guys; it’s only ones and zeroes…

Which leads to an African Proverb that most accurately describes this “kerfuffle” as one pundit put it – though I prefer the term “brouhaha”:

“When elephants fight, it is the grass that suffers “

Background Reading:

http://www.authorsguild.org/advocacy/articles/the-right-battle.html

http://www.huffingtonpost.com/susan-piver/the-macmillan-vs-amazon-t_b_444879.html

http://www.businessinsider.com/henry-blodget-hey-john-sargent-ceo-of-macmillan-books-screw-you-2010-1

http://pubrants.blogspot.com/2010/02/amazon-macmillan-kerfuffle.html

http://bits.blogs.nytimes.com/2010/01/29/amazon-pulls-macmillan-books-over-e-book-price-disagreement/

http://www.guardian.co.uk/commentisfree/2010/feb/03/amazon-macmillan-kindle-books

Now reading: Second Variety, by Philip K. Dick

Bad ACTA

The Anti-Counterfeiting Trade Agreement has finally become newsworthy – and it’s about time. This piece in the New York Times goes over the subject in a lot more detail.

Here are my objections to ACTA:

• Is it really about counterfeiting? From what little we know about ACTA, there is a large amount of anti-piracy stuff in there – and most of that has nothing to do with counterfeiting.
• Why all the secrecy? Most treaties are negotiated in public, but this one is being kept strictly on the down-low, and nobody wants to tell the rest of us why. The parties at the table include the Trade Negotiators, the Hollywood “sue-the-customers” Copyright Lobby (what are they doing there?) and … er… that’s it. They’re not even telling us who wants it kept secret; While President Barak “Transparency” Obama has defended the secrecy as a matter of “National Security”, many – including the European Parliament – are calling for the contents to be made public.
• Guilty unless proven innocent? ACTA contains a provision to permanently remove a person from the internet after three accusations of piracy. On it’s face, that is not unreasonable, except that that is three accusations, not three convictions; and that is blatantly unconstitutional in the US – can you say “no person may be deprived of life, liberty or property without due process of law“?

Here are some choice quotes from the article and my response…

“The threat of physical goods bearing counterfeit trademarks is a real one, and it is a priority for ACTA,… Americans do not want to brush their teeth with counterfeit toothpaste or drive a car with knockoff brakes.”

True, but that’s just fear-mongering – we already have laws in place to deal with both of these problems. NEXT!!!

several people with knowledge of the talks said there was no truth to one early rumor — that the accord would empower customs officials to search digital music players for illegally copied songs at border crossings.

Simple solution: There’s only one way to put our minds at rest – Make the contents of the treaty public! Problem solved.

“Given the importance of this agreement to our economy and to consumers, we must not allow ACTA to be derailed by a minority opposed to protecting the rights of artists, inventors and entrepreneurs,” Mark T. Esper, executive vice president of the Global Intellectual Property Center

It makes me feel so much better to know that the Global Intellectual Property Center has our best interests at heart, but I am fairly sure that their constituents are not really artists, inventors or entrepreneurs. I’m not opposed to “protecting their rights”, but these folks forget that copyright is a bargain between “artists, inventors and entrepreneurs” and their consumers and customers. As things stand, that bargain is hideously one-sided and is getting worse, as media conglomerates defend their “rights” at the expense of everyone else… including those “artists, inventors and entrepreneurs” they so vociferously claim to “protect”.

One supporter of the talks, the Motion Picture Association of America, is urging U.S. negotiators not to back down on proposals for fighting the unauthorized digital copying of movies. “Internet piracy has emerged as the fastest-growing threat to the filmed entertainment industry… M.P.A.A. firmly believes that a strong ACTA should address this challenge, raising the level and effectiveness of copyright enforcement in the digital and online marketplaces.”

A-HA! Now we’re getting to the meat of the matter and getting a glimpse at “the man behind the curtain” . Only one problem; piracy and counterfeiting are two different things, and you’re trying to cram them both into one treaty…

Bottom Line: It’s clearly and obviously an attempt at an international DMCA-style law by the back door. Implementing this as an International Treaty will result in law without the legislative process – Congress will not get a vote or a veto; the President will sign it and it’s game over.

I am not a conspiracy theorist, but it’s pretty obvious to me that the Movie and Music industries are behind the secrecy; sneakily trying to create an internationally-enforceable DMCA under the guise of combating “counterfeiting” is just their style. After all, they have some experience in the lack art of Hijacking laws in the dead of night…

For the record, I do not share copyrighted materials. I do not do Peer-to-peer. I try my best to respect the rights of the artists that give of themselves to bring us art and entertainment. However, have little respect for an industry that enforces its “rights” at the expense of those of its customers’ and uses legislation like the DMCA to remove my fair use and criminalize reasonable behavior. If I want to watch my movie on my iPod I should be able to without committing a felony or having to pay for the same thing twice. And letting this industry write the copyright rules – particularly in secret – is like letting the lunatics take over the asylum.