Petition to reverse ban on cellphone unlocking needs your sig! —

Derek Khanna (the GOP staffer who got fired after penning an eminently sensible paper on copyright policy) sez, "The White House Petition to reverse the decision to ban unlocking cellphones is at 72,000 signatures, but it needs to get to 100,000 signatures by February 24, 2013. On Friday Representative DeFazio tweeted in favor of reform - read the article about new prohibition on unlocking your own cellphone here." — Cory •

Josh from Free Press sez, " FCC Chairman Julius Genachowski wants to gut existing rules that limit media consolidation. This is bad news for people who care about the effects of too much media in too few hands. Genachowski's proposed plan would make our media less diverse, create local media monopolies and ultimately mean less news. This rule would allow ONE company to own a daily newspaper, two TV stations and up to eight radio stations in your town. And that one company could be your Internet provider, too. Scary."

No More Media for Murdoch [Petition to FCC]

In the New York Times, Tim Wu advances a fairly nuanced article about the risks of letting technology companies claim First Amendment protection for the product of their algorithms, something I discussed in a recent column. Tim worries that if an algorithm's product -- such as a page of search results -- are considered protected speech, then it will be more difficult to rein in anticompetitive or privacy-violating commercial activity:

The line can be easily drawn: as a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered “speech” at all. (Where a human does make a specific choice about specific content, the question is different.)

Defenders of Google’s position have argued that since humans programmed the computers that are “speaking,” the computers have speech rights as if by digital inheritance. But the fact that a programmer has the First Amendment right to program pretty much anything he likes doesn’t mean his creation is thereby endowed with his constitutional rights. Doctor Frankenstein’s monster could walk and talk, but that didn’t qualify him to vote in the doctor’s place.

Computers make trillions of invisible decisions each day; the possibility that each decision could be protected speech should give us pause. To Google’s credit, while it has claimed First Amendment rights for its search results, it has never formally asserted that it has the constitutional right to ignore privacy or antitrust laws. As a nation we must hesitate before allowing the higher principles of the Bill of Rights to become little more than lowly tools of commercial advantage. To give computers the rights intended for humans is to elevate our machines above ourselves.

I think that this is a valuable addition to the debate, but I don't wholly agree. There is clearly a difference between choosing what to say and designing an algorithm that speaks on your behalf, but programmers can and do make expressive choices when they write code. A camera isn't a human eye, but rather, a machine that translates the eye and the brain behind it into a mechanical object, and yet photos are still entitled to protection. A programmer sits down at a powerful machine and makes a bunch of choices that prefigure its output, and can, in so doing, design algorithms that express political messages (for example, algorithms that automatically parse elected officials' public utterances and rank them for subjective measures like clarity and truthfulness), artistic choices (algorithms that use human judgment to perform guided iterations through aesthetic options to produce beauty) and other forms of speech that are normally afforded the highest level of First Amendment protections.

That is not to say that algorithms can't produce illegal speech -- anticompetitive speech, fraudulent speech -- but I think the right way to address this is to punish the bad speech, not to deny that it is speech altogether.

And while we're on the subject, why shouldn't Frankenstein's Monster get a vote all on its own -- not a proxy for the doctor, but in its own right?

Free Speech for Computers? (via /.)

(Image: Frankenstein Face Vector, a Creative Commons Attribution (2.0) image from vectorportal's photostream)

My latest Guardian column is "Google admits that Plato's cave doesn't exist," a discussion of how Google has changed the way it talks about its search-results, shifting from the stance that rankings are a form of pure math to the stance that rankings are a form of editorial judgment.

Google has, to date, always refused to frame itself in those terms. The pagerank algorithm isn't like an editor arguing aesthetics around a boardroom table as the issue is put to bed. The pagerank algorithm is a window on the wall of Plato's cave, whence the objective, empirical world of Relevance may be seen and retrieved.

That argument is a convenient one when the most contentious elements of your rankings are from people who want higher ranking. "We have done the maths, and your page is empirically less relevant than the pages above it. Your quarrel is with the cold, hard reality of numbers, not with our judgement."

The problem with that argument is that maths is inherently more regulatable than speech. If the numbers say that item X must be ranked over item Y, a regulator may decide that a social problem can be solved by "hard-coding" page Y to have a higher ranking than X, regardless of its relevance. This isn't censorship – it's more like progressive taxation.

Google admits that Plato's cave doesn't exist

A quiet announcement from the Fedora Linux community signals a titanic shift in the way that the computer market will work from now on, and a major threat to free/open operating systems. Microsoft and several PC vendors have teamed up to ensure that only operating systems bearing Microsoft's cryptographic signature will be able to boot on their hardware, meaning that unless Microsoft has blessed your favorite flavor of GNU/Linux or BSD, you won't be able to just install it on your machine, or boot to it from a USB stick or CD to try it out. There is a work-around for some systems involving a finicky and highly technical override process, but all that means is that installing proprietary software is easy and installing free/open software is hard.

This is a major reversal. For many years now, free/open OSes have been by far the easiest to install on most hardware. For example, I have installed Ubuntu on a variety of machines by just sticking in a USB stick and turning them on. Because the OS and its apps are free, and because there are no finicky vendor relationships to manage, it Just Works. On some of those machines, installing a Windows OS fresh from a shrinkwrapped box was literally impossible -- you had to order a special manufacturer's version with all the right drivers to handle external CD drives or docking stations or what-have-you. And the free/open drivers also handled things like 3G USB adapters better than the official drivers (not least because they didn't insist on drawing a huge "WELCOME TO $SOME_STUPID_PHONE_COMPANY" box on the screen every time you connected to the Internet.)

At issue is a new facility called UEFI, which allows a computer's bootloader to distinguish between different operating systems by examining their cryptographic signatures. In theory, this can be used to alert you if malicious software has modified your OS, putting you at risk of having your passwords harvested, your video and sound secretly captured, and your files plundered. But rather than simply alerting users to unsigned ("I have found an unknown operating system and I can't tell if it has dangerous software in it, continue? [Y/N]") or changed OSes ("Your computer has been modified since the last time it was turned on, and now has a version of Windows that can't be verified") Microsoft and its partners have elected to require a very complex and intimidating process that -- by design or accident -- is certain to scare off most unsophisticated users.

Fedora has opted to solve this problem by paying to receive Microsoft's blessing, so that UEFI-locked computers will boot Fedora without requiring any special steps. The payment is comparatively small ($99). When you multiply $99 by all the different versions and flavors of free/open operating systems, it adds up to a substantial revenue stream for Microsoft cost to, and drag upon the free/open software world.

What's more, free/open OSes that don't pay the $99 Microsoft tax will not boot at all on Microsoft-certified ARM-based computers, because Microsoft has forbidden it partners from booting an OS that hasn't been signed by Microsoft, even if the user takes some affirmative step to install a competing system.

This is a tremor before an earthquake: the hardware vendors and the flagging proprietary software vendors of yesteryear are teaming up to limit competition from robust, elegant and free alternatives.

Here's Fedora's Matthew Garrett explaining their decision:

We've been working on this for months. This isn't an attractive solution, but it is a workable one. We came to the conclusion that every other approach was unworkable. The cause of free software isn't furthered by making it difficult or impossible for unskilled users to run Linux, and while this approach does have its downsides it does also avoid us ending up where we were in the 90s. Users will retain the freedom to run modified software and we wouldn't have accepted any solution that made that impossible.

But is this a compromise? Of course. There's already inequalities between Fedora and users - trademarks prevent the distribution of the Fedora artwork with modified distributions, and much of the Fedora infrastructure is licensed such that some people have more power than others. This adds to that inequality. It's not the ideal outcome for anyone, and I'm genuinely sorry that we weren't able to come up with a solution that was better. This isn't as bad as I feared it would be, but nor is it as good as I hoped it would be.

What about ARM

Microsoft's certification requirements for ARM machines forbid vendors from offering the ability to disable secure boot or enrol user keys. While we could support secure boot in the same way as we plan to on x86, it would prevent users from running modified software unless they paid money for a signing key. We don't find that acceptable and so have no plans to support it.

Thankfully this shouldn't be anywhere near as much of a problem as it would be in the x86 world. Microsoft have far less influence over the ARM market, and the only machines affected by this will be the ones explicitly designed to support Windows. If you want to run Linux on ARM then there'll be no shortage of hardware available to you.

Implementing UEFI Secure Boot in Fedora (Thanks, Deborah!)

Today, Tor Books, the largest science fiction publisher in the world, announced that henceforth all of its ebooks would be completely DRM-free. This comes six weeks after an antitrust action against Tor's parent company, Macmillan USA, for price-fixing in relation to its arrangements with Apple and Amazon.

Now that there is a major publisher that has gone completely DRM-free (with more to follow, I'm sure; I've had contact with very highly placed execs at two more of the big six publishers), there is suddenly a market for tools that automate the conversion and loading of ebooks from multiple formats and vendors.

For example, I'd expect someone to make a browser plugin that draws a "Buy this book at BN.com" button on Amazon pages (and vice-versa), which then facilitates auto-conversion between the formats. I'd also expect BN.com to produce a "switch" toolkit for Kindle owners who want to go Nook (and vice-versa).

I think that this might be the watershed for ebook DRM, the turning point that marks the moment at which all ebooks end up DRM-free. It's a good day.

Tom Doherty Associates, publishers of Tor, Forge, Orb, Starscape, and Tor Teen, today announced that by early July 2012, their entire list of e-books will be available DRM-free.

“Our authors and readers have been asking for this for a long time,” said president and publisher Tom Doherty. “They’re a technically sophisticated bunch, and DRM is a constant annoyance to them. It prevents them from using legitimately-purchased e-books in perfectly legal ways, like moving them from one kind of e-reader to another.”

DRM-free titles from Tom Doherty Associates will be available from the same range of retailers that currently sell their e-books. In addition, the company expects to begin selling titles through retailers that sell only DRM-free books.

Tor/Forge E-book Titles to Go DRM-Free

US antitrust regulators have never really been able to find the right place to stick their lever and pry when it comes to the Internet (witness their failure to understand Microsoft's platform dominance in the 90s). Now they're going after various publishers and Apple over price fixing (my publisher is included, and for the record, I don't agree with their stance on "agency pricing"), but they're missing all the big elephants in the room: platform lock-in by way of DRM, prohibitions created by both Apple and Amazon on using third-party payment systems on their apps, and all the associated ticking bombs that represent the real, enduring danger to the ebook marketplace. Every dollar that is spent on a locked, proprietary platform is a dollar of opportunity cost that society will have to spend to get out from under the would-be monopolists of ebooks when (not if) they abuse their power (see my latest PW column on this).

Wired's Tim Carmody does a really good job of pointing out the fail here, as antitrust regulators miss the forest of lock-in for the trees of abusive pricing.

What’s left out of the Justice department’s lawsuit might be even better news for Amazon than what’s included. There is no broader look at any of the anticompetitive vagaries of the e-book market beyond publishers’ negotiations with retailers in the period before and after the launch of iBooks.

The suit blasts most favored nation agreements without noting that Amazon has aggressively pursued MFN agreements with publishing partners, including partners whose books it sells wholesale. It’s completely silent on retailers’ and device manufacturers’ use of DRM to lock customers into a single bookstore. Amazon is purely a market innovator, not a budding monopolist, even as the DOJ notes that Amazon’s pricing power helped determine pricing power across the industry.

Blogger Mike Cane wrote a powerful email to attorneys at the Department of Justice listed in the lawsuit titled, “Dear DoJ: You Need To Sue Apple Again.” It cites Apple’s in-app purchasing rules that prohibit Amazon, Kobo, Barnes & Noble and other retailers from offering books for iOS devices on the same terms that Apple can offer in iBooks, without browser workarounds.

This, Cane says, “is every bit as much restraint of trade as the collusive price-fixing that made the Department bring Apple and its co-conspirators before the court for remedy.”

But it’s actually great news for Amazon that the DOJ isn’t opening up restrictions on in-device purchases. Once thrown, that stone bounces back to hit Amazon in the face right away.

Jeff Bezos Should Send Eric Holder a Christmas Card

Microsoft has (kind of) acquired Netscape, buying many of its key patents and assets from erstwhile owner AOL. Early Netscape employee JWZ calls it "brand necrophilia" and adds, "I assume that this means that ValueClick will now be suing Microsoft over the cookie patent instead of AOL, if that's still going on. There are no winners here." AOL says the sale was made at a loss, for the tax-break.

Microsoft will acquire all the patents surrounding the Netscape browser, while AOL will still own the actual brand. That extends to the Netscape business, which was once an ISP, as well as the URL for the brand.

Netscape was one of the factors behind Microsoft’s entry into the wide world of the internet, prompting them to license Mosaic source code and turn it into Internet Explorer. Fitting, then, that everything has come full circle, and Microsoft has purchased patents behind IE’s raison d’être.

Microsoft quietly buys Netscape browser technology - SlashGear

(Image: My Old Navigator, a Creative Commons Attribution (2.0) image from oimax's photostream)

Enrique Dans is a professor at Spain's IE Business School and a well-known blogger who has been a fierce critic of the entertainment industry. Last summer, Prof Dans wrote a blog post, Siete motivos por los que el caso SGAE es mucho más que la propia SGAE, which set out his view that Promusicae, the Spanish record industry consortium, had formed an illegal cartel to distribute music for radio broadcast, which shut out non-members and independents.

Now Promusicae is suing Dans for EUR20,000, accusing him of libel and "threatening their honor," and they are demanding a retraction. As Ernesto writes on TorrentFreak, Dans is standing his ground.

The professor, on the other hand, says his claim was well researched and that he consulted experts in competition law before he wrote it up. And even if that’s not the case, Dans believes he has the right to make such claims in an open and free society.

“In short, what I said in the article was my opinion, protected by the right to freedom of expression and, as I documented it properly and professionally, the right to freedom of information.”

” I stand by my opinion,” he writes in a new blog post. “Of course it may be debatable, but even if it were not well founded and I was wrong, I can not think how it can be an attack against the honor of a society such as Promusicae... The reality? Promusicae are using the ‘honor’ argument to restrict the right to freedom of expression and information. After many years of direct confrontations and repeatedly being humiliated in numerous public forums, now they want to shut me up through a lawsuit.”

Spanish RIAA Sues Blogging Professor for Defamation

Last night, Rob posted a very good piece on Apple's new "Gatekeeper" technology, which defaults to warning users of Apple's new Mountain Lion OS that software from companies that haven't been officially recognized by Apple should not be installed (though users can still choose to override it, or turn it off).

But I have one rather large quibble with Rob's piece. He wrote:

The truth is that Macs don't currently suffer much from malicious software, and DRM-esque lockouts are always circumvented. So what's the point of a DRM-esque system for malware prevention?

I agree that DRM is always circumvented, and it is especially circumvented by copyright infringers and malware creators. But I think that Rob has misunderstood the primary value of DRM to technology companies: because many countries' laws prohibit breaking DRM even if you're not doing anything illegal, DRM gives companies the right to sue competitors who make compatible products and services.

The law has always recognized that interoperability is good for competition, markets, and the public. From generic windshield-wiper blades and hubcaps to third-party hard-drives and keyboards and inkjet toner, and software like Pages and Keynote, the law recognizes that there is a legitimate reason to reverse-engineer a competitor's products and make new products that replace, expand and augment them.

Read the rest

A French court has ruled that Google's free Google Maps application API is anti-competitive and has ordered the company to pay €500,000 to Bottin Cartographes, a for-pay map company, as well as a €15,000 fine. Bottin Cartographes argued that Google was only planning to give away the service for free until all the competitors had been driven out of business and then they would start charging. This seems implausible to me, and contrary to Google's business model (give away services, make money from mining the use of those services). Google says it will appeal.

"This is the end of a two-year battle, a decision without precedent," said the lawyer for Bottin Cartographes, Jean-David Scemmama.

"We proved the illegality of (Google's) strategy to remove its competitors... the court recognised the unfair and abusive character of the methods used and allocated Bottin Cartographes all it claimed. This is the first time Google has been convicted for its Google Maps application," he said.

I wonder what Bottin Cartographes will do when OpenStreetMaps finishes producing high-quality, free, public domain maps of France that can be used to create APIs of the same scope and utility?

France convicts Google Maps for unfair competition (via Engadget)