If the "making available" argument fails, does anyone feel there is any
realistic way for a copyright holder to prove infringement?

Any modern pirate system explicitly eliminates paper trails -- soon
they'll all use encryption and, if that's not enough, onionskin routing.
(Bandwidth is growing way faster than the size of MP3; eventually
onionskin will be perceived as cheap.) And if that doesn't work, I have
no doubt something else will be invented.

So it's safe to assume that any pirated tools in the future will, for
all intents and purposes, cause music and movies to just magically
appear on demand from an unknown, unprovable source.

In this world, even if widespread piracy is obviously occurring, would
there be any way to prove it without "making available"?

I'll take a stab at my own question and say "yes", but the shift will go
from pursuing distributors to pursuing downloaders. And I think they'll
next try some sort of "proof of payment" scheme, such as used by public
transportation:

In San Francisco, there are MUNI trains that you can board anywhere and
get off anywhere; there's no physical requirement to buy a ticket.
However, you're legally obligated to have one, and if you fail a spot
inspection by an officer of the law, you'll pay serious fine.

I wonder if that's the model they will attempt next if "making
available" fails. Basically, all stores will move to
individually-tagged songs and movies where proof of purchase is encoded
in the content itself. (This is impractical in the old world of
physical media distribution, but becomes more feasible as we move to
on-demand downloads).

One way to do this would be with watermarks: so long nobody has
incentive to remove them, they'll stick around fine. But then again,
you could probably do it with just ID3 tags and digital signatures (a
message "Bob has bought track <SHA1>" signed by Time Warner's public key
would suffice). Technically it's an easy problem to solve.

The problem will come in the audit: both how to audit the devices in
question, and when to do it.

As for how, the challenge (as always) is to distinguish between content
in the public domain and content you need permission from the copyright
owner to have. One possibility would be to build an opt-in waveform
fingerprint of all copyrighted works that elect to participate in this
proof of payment scheme. This won't truly catch everything (and won't
catch anything released before the scheme launched), but even if it
catches only the new releases with some regularity, that starts to make
an effective tool for general compliance enforcement.

So, auditors could conceivably have a device that has USB and iPod
connectors that plug into basically anything, scan all content for
waveform matches, confirms the file has a proof of payment certificate,
and alerts if not.

Ok, so all this could technically be built by a sufficiently incented
(or incensed?) party. This brings us to the next question: when would
the audit occur?

This is where it'd probably fail on constitutional grounds. A scan
under most circumstances would be "unreasonable search and seizure".
But one place that is notoriously exempt: border control. They can
basically take anything and do anything for as long as it takes.

Granted, this cedes the vast majority of domestic piracy. But their
goal isn't to eliminate the potential for piracy; their goal is to make
it such a pain that people still choose to buy. If they first make it
impossible to travel internationally without first cleansing all devices
of pirated works, this will start to bite. And after that, they'll find
other excuses to audit devices: airport security for domestic flights?
PCI and SOX compliance audits? Build auditing straight into the iPhone
itself?

The big question in my mind is whether everybody just gives up on
copyright before then and "just says no" to proof of payment and spot
copyright checks.

By and large, society as a whole has already given up on copyright, as
evidenced by overwhelming adoption of piracy. It's possible that if
pressed to make a decision that we'll simply refuse to pass any law that
allows for reasonable enforcement. Then businesses that depend on
enforcement will die and get replaced with those that don't, and
gradually the courts will limit the scope of copyright to where it can
be realistically enforced.

Anyway, so I see a copyright-free (or copyright-very-limited) future as
a legitimate possibility. And society might just refuse to allow the
proof-of-payment scheme to go into force.

So, let me conclude with my prediction: if "making available" fails (and
if they truly accept this -- not necessarily a sure bet), then major
copyright holders will marshal their forces and attempt to create a
"proof of payment" system with enforcement starting at border crossings
and gradually increasing from there. This will trigger a showdown with
society at large as it really begins to weigh how much it cares about
copyrights, and the people who hold them. And I think it's very
possible that society decides the cost of copyright enforcement
outweighs its benefit and essentially curtail copyright in all areas
where it stopped making sense, long ago.

-david

With all that asynchronicity, it behaves in... unnatural ways. Consider the following:

var message = "Hello";
var blah0 = function() { alert( message ); }

message = "World";
var blah1 = function() { alert( message ); }

blah0();
blah1();

var div0 = document.getElementById("div0");
var values = [ "Hello", "World" ];
for( var c in values )
{
var input = document.createElement("input");
input.type = "checkbox";
input.value = values[c];
input.onclick = function() { alert( this.value ); }
div0.appendChild( input );
div0.appendChild( document.createTextNode( values[c] ) );
div0.appendChild( document.createElement( "br" ) );
}

I'm fascinated by the notion of software defined radios.  In particular, I'm fascinated by the potential for hackers to take over the radio waves like they have so effectively dominated the internet.  Consider the following futurological daydream:

1) FCC mandates all US cellphone carriers must accept any compatible device onto their networks.

2) TuxPhone quickly establishes connectivity with the major carriers.

3) TuxPhone adopts support for the Android application stack and becomes a feasible (albeit chunky) daily cellphone for hackers.

4) TuxPhone is ported to the GNU Radio platform, thereby replacing "pre-approved hardware modules" with firmware/software.

So the above isn't too far fetched -- all those guys have an interest in joining forces, and everything they're doing is in line with conceivable law (assuming (1) happens).

But once the above is done, there will be an easily available platform for hackers to ply their trade.  In particular, there will be a widely available, low-cost platform with sufficient "non-infringing purpose" such that the devices themselves cannot be restricted.  At first it'll start out relatively benign:

5) .public adopts TuxPhone as the development platform of choice for real-world testing of a completely encrypted, wireless, decentralized communication mesh.

But then it'll start to get more interesting:

6) A researcher submits a patch to .public enabling frequency-hopping spread spectrum communication, clearly marked in such a fashion that it would be illegal to use it outside of certain, default frequency ranges.  But those ranges will be user definable, and it will be easy to override the default and set the range to "all".

7) Someone packages it into an extremely simple application where anybody can enter in a password that serves as the "seed" for the pseudorandom frequency generator.  Any two individuals (in radio range) with the same password can thus generate the same random set of frequencies and thereby hop in sequence to the same frequencies.  (Though realistically it'll first just establish an SSH session using public keys over a standard narrowband connection, exchange the symmetric key (aka random seed), and then jump.  Passwords are so passe.)

8) Somebody figures out how to make a spread-spectrum repeater that also happens to serve as a fantastic narrowband repeater.  Thus mid-range mesh communications gain the benefits of pseudorandom frequency hopping, but in a way that isn't obviously illegal (because it also enables legal narrowband meshes).

9) As technology improves, there becomes no reason *not* to broadcast at the maximum legal power.  Thus the coverage and capacity of each node in the mesh increases.  In parallel, as costs fall and average utility increases, the density of the mesh also increases.  Taken together, identifying the precise location and identity of any given node becomes more and more difficult -- encouraging more egregiously illegal behaviors as enforcement fails.

10) Ultimately, mesh coverage is "good enough" for anybody to exchange high-bandwidth information with anybody within a hundred miles (especially in urban areas, where most people live).  On top of this, secure tunnels through "global" networks (satellite, fiberoptic) become as plentiful as anonymizing proxies are today.


Witness the start of perfectly secure, untraceable, global communication.


Legally, this starts to blur the meaning of spectrum ranges, which the major carriers have paid billions to lock up.  But technically, it'll be very hard to stop.  I'm curious if the futile battle for spectrum rights will play out in a similar way to the currently futile battle for copyright.

All this despite the fact that spread spectrum technology *obviates* the need for fixed spectrum bands.  The resulting technology might actually be *better*: more reliable, higher capacity, cheaper, and more flexible than narrowband technology.  Thus while the "old guard" becomes increasingly dependent upon legal war to maintain their narrowband business models (tied to ridiculously expensive spectrum licenses), the hackers will have shown that they're no longer needed -- just like they're doing today with copyright.

But the most unfortunate re-enactment of all will be if the full potential for spread-spectrum, frequency-hopping, software-controlled radios is stymied in its most crucial phases by entrenched interests, preventing any legitimate business investment in this groundbreaking technology and instead driving it underground into the hands of pirates and insurgents.

Sound familiar?

The debate over network neutrality is just a rehash of the age-old debate between top-down and bottom-up design.  Bottom-up invariably wins.  And it will here too.

The technical critics of network neutrality typically emphasize how it comes at a cost in theoretical efficiency.  The same was said in defense of communism.  And waterfall design.  All were wrong.

Or, rather, they were right in the land of theory, where code compiles on first try and rivers run with pure gold.  In this magical land of brilliant architects and benevolent dictators, top-down planning works.

But in our world, the risk of error, mis-management, and outright abuse is way, way too high.  The theoretical capabilities of top-down design are -- more often than not -- lost to the practical realities of waste, incompetence, and corruption.

Thus the whole meta-debate obscures the broader point: we shouldn't be designing for maximum efficiency.  We should be designing for minimal corruptability.  Once that's in place, we can figure out the rest.  But if that's not in place, then nothing else matters because even the best design will eventually be corrupted.

So back to the topic at hand: network neutrality does forbid certain types of filtering that could in theory improve certain types of applications.  In particular, VoIP and HDTV streaming are always trumped out.  Without network neutrality, we cannot perfect these systems -- the latency and jitter are just too high!

But this technical point is not only wrong (Skype already does VoIP, and Akamai already does HDTV streaming), it mistakenly (or disingenuously?) ignores the far more serious potential for corruption that such filtering enables.

It's always a treat to play with JavaScript. C++ will always have my heart, but I do enjoy the an occasional tryst with JavaScript. I think what's best about JavaScript is the HTML DOM. It... it feels so dirty using it, just making raw manipulations on the structure of the web itself. It seems there should be some protection involved -- surely you can't just blast over half the page with innerHTML? But you *can*. That's what's so amazing about it. No matter how much abuse you do to it, it just keeps on going. Null-pointer dereference? It's cool. Syntax error? Meh. It just keeps going.

That's not to say that "it just works", however. Going and working are two different things. But it does get surprisingly close.

Did you know that the ratio of pirated music to legitimately downloaded music is roughly akin to the ratio of salt water to fresh water on the planet?  I noticed this in a moment of exasperation when reading a post casually suggesting how piracy should be reduced to a "livable range".  When translated with the above observation, the statement is about as realistic as:

"We all have to live with a range of salinities... I think the goal is to relegate salt-water to a livable range not to eradicate it altogether, which is likely impossible anyway."

Piracy *is* the digital music industry.  Everything else is a footnote or a rounding error.

I recently heard a statement to the effect of "total dollars spent on advertising probably won't go down", and I wonder about that: though both on and offline ad revenue is growing, online grew 7x faster than offline (28% vs 4%).  Furthermore, over 90% of ad spending is still offline.  So global ad growth is really quite modest -- despite internet's impressive numbers.

The upshot is the vast majority of ad dollars have yet to make the switch.  But if advertising gets more precise online, then the cost to achieve a certain effectiveness of advertising should go down.

The result is the total dollars required to achieve the same level of global ad effectiveness might be substantially less than is currently being spent.  So even if the online growth continues to skyrocket, it might precipitate an equally or even more dramatic decline in offline ad spending.

Basically, if the improved effectiveness of online ads exceeds the global growth of the ad market, then total dollars spent on advertising will go down.  And frankly, I'd wager online ads are substantially more effective than offline -- by 20%?  50%?  If so that means total ad spending might have a long way to fall.

http://www.nytimes.com/2008/06/08/arts/music/08pare.html?_r=1&scp=1&sq=trent&st=nyt&oref=slogin

Pretty long article, but two parts jumped out for me:

> Mr. Reznor has no global solution for how to sustain a long-term
> career as a recording musician, much less start one, when listeners
> take free digital music for granted. "It's all out there," he added.
> "I don't agree that it should be free, but it is free, and you can
> either accept it or you can put your head in the sand."

I like how Trent appears to reluctantly accept the new constraints of
reality, and then work within them. Personally I think the new
"constraints" are actually more liberating than the past ones, but I
don't think it's necessary to believe this: rather, it's only necessary
to believe that the constraints have changed, whether you like it or not.

> When record labels didn't want it, Mr. Reznor put it online: free to
> the first 100,000 downloaders as good-quality MP3 files or $5 for
> more high-fidelity files. He had thought that fans would willingly
> pay the price of a latte to support musicians directly. But fewer
> than 20 percent did so. "I think I was just naïve."
>
> At the time he called the project a failure, but he has reconsidered.
> "The numbers of the people that paid for that record, versus the
> people that paid for his last record, were greater," he said. "He
> made infinitely more money from that record than he did from his
> other one. It increased his name value probably tenfold. At the end
> of the day, counting free downloads, it was probably five or six or
> seven times higher than the amount sold on his last record. I don't
> know how you could look at that as a failure."

Similarly, I like how he's actively rethinking what success means in
this world of new constraints, rather than just trying to impose his
previous expectations.

All in all, it really sounds like he gets it: not as an wide-eyed
evangelist, but as a down-to-earth realist.

-david