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“AT&T Slams Google Voice” The Washington Post, Sept. 30, 2009. The Post’s “Post I.T.” column on the Net Neutrality debate quotes from Larry’s blog. “‘Much as the FCC wishes there was still a clear distinction between ‘the Internet’ and ‘the telephone network,’ technology has obliterated that difference,’ Larry Downes, a non-resident fellow at the Stanford Law School Center of Internet and Society, wrote in his blog Tuesday.” |
Monthly Archives: November 2009
Hearsay Culture/Book Review
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Hearsay Culture (Stanford Radio) Larry Downes was the guest on this radio program focused on issues of law and technology in November, 2009. |
The Intel / AMD Settlement: Watch What Happens
Intel and AMD announced today that they were settling their many antitrust and patent disputes, with Intel to pay $1.25 billion and the two companies to cross-license the affected patents. Intel also agreed to “a set of undisclosed new business practrices,” as The New York Times puts it.
Let’s be clear what this agreement doesn’t do. It doesn’t erase the pending antitrust actions taken by the European Union and elsewhere against Intel, or the recently filed antitrust lawsuit filed in federal court in the U.S. by New York attorney-general Andrew Cuomo. (Recall that in May the EU fined Intel $1.45 billion, a judgment the company is appealing.)
The announced settlement of the private litigation, indeed, will have no effect on the EU case, at least according to EU antitrust commissioner Neelie Kroes.
I will make a bold prediction, however, that over the next twelve months both the EU and New York State antitrust enforcement actions will quietly disappear. Intel will not pay $1.45 billion to the Europeans, or face the wrath of Andrew Cuomo who, after 23 months of investigation, has found evidence that he claims proves Intel has bribed and blackmailed its major customers.
These state-sponsored antitrust actions were undertaken at the urging of AMD, and AMD has agreed to withdraw all of its regulatory complaints as part of the settlement.
That doesn’t mean the various governments suing Intel will have to stop their enforcement actions. Indeed, antitrust at the state level is only supposed to be initiated when it’s clear that consumers, not rival companies, are being harmed by anti-competitive business practices. And the rhetoric of both the European and New York regulators is all about harm to consumers.
What harm is that exactly? Thanks to Moore’s Law, the principle first enunciated by Intel founder Gordon Moore in 1965, semiconductors get faster, cheaper and smaller all the time, a function of miniaturization technologies and scale production.
As I write in The Laws of Disruption, there is more computing power in a Sony Playstation III than in 660 million Univac I’s–the first commercial computer ever sold, back in the stone age of 1955. To buy that many Univacs in 1955 would have taken more money than exists in the world today. In 2009, you can get it for $199.
As the driving commodity of the information revolution, the faster-cheaper-smaller principle is what makes the information revolution a revolution.
Moore’s Law also makes the computing industry a particularly bad fit for Antitrust Law. How can consumers be harmed when prices fall, products get better, and functionality improves by leaps and bounds? Cuomo argues halfheartedly that consumers would have had even lower prices and even better products if Intel hadn’t used its dominance in the PC market to force manufacturers to use its chips instead of those from AMD. The EU likewise claims that consumers have been harmed, but the evidence is, to say the least, extremely thin.
In antitrust law, the rule used to be “no harm no foul.”
But in Europe and Asia, and increasingly in the U.S., signs of a more politicized antitrust, one that protects local industries or pursues national or regional goals rather than correcting serious market failures, have emerged.
Without AMD pushing the regulators on this particular claim, I suspect the rhetoric will dry up and the regulators will move on to greener pastures.
Including, for example, Oracle’s efforts to acquire Sun, about which more later.
This isn’t to say, by the way, that high tech companies aren’t capable of behaving in ways that are dangerously anti-competitive, or that consumers can’t be harmed by the computer industry’s practices. It’s just to say that given the remarkable ways in which information technology advances, it’s highly unlikely that even market dominators such as Intel or Microsoft could get away with practices that are genuinely harmful.
At least not for very long.
The Bilski Case: Not With My Digital Economy, You Don't
My 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…

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.
LoD Reviewed in the Financial Times
The Laws of Disruption was reviewed today in The Financial Times by the paper’s interactive editor, Robert Minto. Mr. Minto writes,”The book exposes many outdated laws and regulations that have been (mis-)applied to cases concerning online activity and technology. There are also some eye-opening passages that expose how consumers have become confused by illusions of privacy over personal data.”
