So I’ve changed the hed on my patents piece. It used to be “The patent system isn’t broken — we are” and now it’s “The ‘broken patent system’: how we got here and how to fix it.” Everything else remains unchanged.
Why the swap? I struggled mightily to put a title on this piece after I wrote it — my main point was to provide a well-researched foundation to the argument for people, and to identify with some clarity the main issues involved as well as some specific solutions. To that end, my working title was simply “On patents,” which has a certain type of scholarly appeal but is also extremely boring. I also considered “How to fix the broken patent system,” but didn’t want to sound like I knew all the answers, because I simply don’t. After over a day of discussion and hand-wringing, I ended up with “The patent system isn’t broken — we are” because I thought it was a clever way of saying our conversation and debate was just as dysfunctional as the system we’re trying to fix.
I was wrong. I apologize.
I spent weeks trying to paint the perfect picture, only to slap it into the absolutely worst frame possible — a frame that accuses a lot of very smart people of being wrong from the start, and adds a tone to my piece that I never intended. It was a mistake, and I regret it. If you read the piece, I think it’s pretty clear that I believe some parts of the system are indeed broken, particularly the way in which we deal with software patents. But I also believe we can and should try to do better before we pursue a policy that undoes 220 years of American history. I think that’s fairly reasonable.
I realize there’s a terrible irony in saying that I was too combative in trying to elevate our conversation, and I’ll understand if you think I was just trolling you with that original headline, or being unnecessarily sensational — I’ve spent the weekend thinking the same thing. Them’s the breaks. As a technology critic, I spend too much time criticizing other companies and people for stubbornly standing behind broken products to not make the obvious improvement here, and I’m lucky enough to work in a medium that allows for the change.
I hope you give the piece a re-skim under the new headline and realize that I’m trying to fix the same problem as everyone else, but perhaps from a different direction. There is a reasonable balance between protecting real innovation and allowing it to flourish without undue regulation, and our shared industry deserves a real attempt to find it.
AT&T finally dished out the Windows Phone 7 copy-and-paste update to Samsung Focus owners… but in the process they disabled HSUPA upload speeds. Chris has it exactly right: that’s like kicking a one-legged dog.
So as I noted in my breakdown of Apple’s lawsuit against Samsung, it looks like Apple’s law firm made an embarrassing copyright mistake: they used photos of Samsung products taken by Myriam Joire and AndroidCommunity without permission. Hell, they even cropped AndroidCommunity’s watermark.
That’s more than just a minor faux pas; I’m pretty sure it’s actionable copyright infringement. Seriously! While everything that judges and courts produce is in the public domain, there’s no rule that says lawyers and law firms are immune from copyright law. There are even a few firms out there that put copyright notices on their documents to warn other attorneys against copying their work, and the consensus seems to be that if a law firm sued another law firm for copying legal documents, they’d probably win.
I was so curious about this that I called up University of Kentucky law professor Davida Isaacs, who wrote that first article linked, and talked it through with her — it seems like a fairly unexplored area of the law. While we both agree that there’s no straight answer, it does seem as though this type of copying wouldn’t pass the general four-factor fair use test, especially since the “purpose and character of the use” is not one that required reference to these photos — unlike, say, some attempt to criticize the photos themselves. Apple’s law firm could have easily and cheaply taken their own pictures of Samsung devices to serve the same purpose. And think about this: now that Apple’s used these images in its complaint, they’re being republished everywhere without any compensation to the authors – which isn’t the result of Apple’s direct efforts, but significantly diminishes the possibility that anyone else will pay for the pictures.
All of this serves to highlight a point I seem to be making a lot lately: the norms of digital copyright usage don’t really have much to do with copyright law as it’s written. It’s a little galling when the US copyright system is so out of touch with reality that high-priced IP law firms are making errors like this in high-profile complaints. I’d bet that some overworked associate was tasked to find similarities between Samsung and Apple’s products, and they made the same mistaken assumption most people make — they looked at some photos on the internet and thought they were okay to use because it “wasn’t commercial” or because “it’s fair use” or some other poorly-understood reasoning. I hear things like that from readers in emails, comments, and tweets all the time, and they’re almost always wrong. That’s just not how our system actually works.
Now, I don’t think this is a huge deal, especially compared to the magnitude of Apple’s complaint against Samsung. In the broad sense we all use images in this way on a daily basis. But it certainly does look bad, especially in the context of a lawsuit that strenuously argues against the misappropriation of intellectual property. Apple’s law firm would do well to apologize to Myriam and AndroidCommunity for using their work without permission and swap out the images in the inevitable first amended complaint. That’s the savvy PR move, anyway.
From: firstname.lastname@example.org (Nilay Patel)
Subject: minidisc storage
Date: Mon, 29 Apr 1996 23:29:46 -0500
recently while cleaning, i came across a minidisc i got in the mail (i don’t own a player) and a hammer at the same time. seizing the wild abandon of the moment, i set the disc on edge and whacked it with the hammer. the two halves of the shell fell apart, and inside lay the coolest little shiny cd-thing i’ve ever seen. the point-why didn’t sony just sell these things and ditch all that extraneous plastic? i urge you to try this at home. you or a friend probably has a minidisc but not a player. just crack the sucker open, and you’ll see what should have replaced the floppy, cd, and tape in one full swoop. instead, we have a little plastic jolly rancher-type piece of crap that no one uses because the price of all the plastic drives up the price of the minidisc format. there’s enough room on the unused side of the disc to hold relevant information (a disk label, a brand name) and a minidisc holds something like 400mb, i’m told. so here’s my idea. all that’s really needed to convert a make a million dollars is an adapter that converts regular old mindisc players to accept that little disc. to explain:
just imagine this-you insert a mindisc (shell and all) into a player. when you eject it, the shell pops out and opens exposing the disc inside. the disc has just basic information printed on the unused side, because, as sony’s driven in your ear a million times, the minidisc holds track names and whatnot on itself then to play a different minidisc (just the media this time) you pop it into the empty shell (now part of the machine-like a CD tray) and push the assembly back in.
there. i hope someone builds this little adapter.
i would buy one
Chris Ziegler and I were chatting today about how jaded some of our younger readers are towards technology companies, and I remarked that I was probably just as cynical back then. Here, then, is proof — a post I wrote on comp.sys.mac.hardware.storage decrying Sony’s mishandling of the MiniDisc. I was all of 15.
This was also the year I started dating a cheerleader, tasted booze for the first time, and joined my first band, so it appears 1996 was one of my more formative years.
There’s been a lot of chatter these past few weeks about Steven Levy’s new Google book In the Plex, and particularly some revelations in the book about Steve Jobs — specifically, that Larry Page and Sergey Brin wanted him to be the first CEO of Google, and that Jobs mentored the two founders until he later saw pinch-to-zoom in Android and everything went to hell. The acrimony was so deep, we’re told, that Jobs kept the iPad a secret from Eric Schmidt even though Schmidt was still on Apple’s board of directors while it was being developed. (Schmidt would later step down, of course.) It’s juicy stuff, and it nicely feeds right into the current iOS vs. Android narrative of the day.
But I don’t think it’s as simple as all that — it feels like there’s a little media conflation going on. First, Android very famously shipped on the G1 in October 2008 without any pinch-to-zoom support at the system level at all, which of course sparked rumors that Apple had threatened patent litigation, but as far as I can tell Apple didn’t really have any PTZ patents until October 2010. Just over a year later, the Android 2.0 Droid launched with multitouch support at the system level but no pinch-to-zoom enabled at the apps level, an omission that prompted much hand-wringing, several hacks, and yes, yet another thrilling patent editorial by yours truly.
Of course, that didn’t change much: the Nexus One launched in January 2010 without pinch-to-zoom enabled, and Andy Rubin famously said he’d “consider” adding it but he preferred to use his devices with one hand. All the while Google’s partners like Motorola and HTC were adding in their own implementations of the feature and hyping it as a differentiator — Sanjay Jha even loftily promised that a “majority” of Moto devices would have it, a statement that sounds ridiculous in retrospect. (Are they all going to have screens and batteries too?)
Google finally added pinch-to-zoom to the Nexus One in a February 2010 software update and the entire kerfuffle seems to have blown over — sure, everyone is suing each other over patents, but every new Android device has pinch-to-zoom enabled, which is all that matters from the consumer perspective. It’s table stakes for a touchscreen device — just as it was the instant the first iPhone was revealed in 2007.
So after that history lesson, here’s what I’m dying to know:
*Did the first build of Android Steve Jobs saw actually have multitouch frameworks and pinch-to-zoom? The answer, according to Levy, is yes.1
*If Android 1.0 had multitouch frameworks and pinch-to-zoom, were they actually removed from the shipping G1 after Jobs saw them and got angry? Levy says that’s what happened, but removing the underlying frameworks themselves seems a little over-the-top, no?2
*Did Apple ever actually threaten patent litigation over pinch-to-zoom? If, so, what patent specifically did Apple claim was being infringed, and did it cover multitouch in general, or specifically pinch-to-zoom?
*Is the threat of patent litigation why Android devices in the US shipped without pinch-to-zoom until February 2010?
*What happened during the development of Android 2.0 and the original Droid that made Google think shipping multitouch frameworks was okay?
*Similarly, what happened on or around February 2010 that made Google decide that shipping pinch-to-zoom in Android was okay? Did Andy Rubin suddenly decide that using a phone with two hands was cool, or was there a legal reason?
As you can see, there’s a lot to this story that’s still up in the air, and it’s certainly a lot more complicated than Steve Jobs seeing pinch-to-zoom in Android during a visit to Google and getting mad at Eric Schmidt. I don’t know if we’ll ever know the answer to any of this, but it’s fascinating to me — and it’s equally fascinating that Steven Levy apparently didn’t see fit to recount the entire version of the story in his book.
As you may have heard, I’m joining my man Josh Topolsky (and some other good friends) at SB Nation, and we’re going to be building a new tech site from scratch. It’s easily the most exciting career decision I’ve ever made — you don’t often get the chance to completely start over and create something new. And trust me when I say we don’t have any small plans.
Of course, you’re only as good as your tools, and the media platform that powers SBN is some of the most powerful publishing software I’ve ever seen. It’s crazy good — and it’s backed by a ferocious commitment to technology and development that is inspiring to behold. I’ve always known SB Nation as one of the best sports sites on the web, but I’ve also now come to know it as one of the most interesting and visionary technology companies I’ve ever been around. I’m stoked to be joining their team.
So what’s next? Well, we’ve got a lot of work to do, but we’re not going into total stealth mode — we’re definitely going to keep talking about the news, and you’ll be hearing lots more about our new project as we get closer to launch. And I’m dying to know how you want our new site to look and work, so hit me on email or Twitter and let’s get this party started.
If you’re reading this you probably don’t need much background on Amazon Cloud Player — suffice it to say that Amazon launched a new “freemium” cloud storage service that’s tied into their music store. You get 5GB of online storage for free and 20GB if you buy an MP3 album from Amazon, and subsequent MP3 purchases don’t count against the cap. There’s also a Cloud Player app for Android that can play music files stored on your account — it doesn’t matter if they’re files you purchased from Amazon or elsewhere, and Amazon has tools that’ll upload your DRM-free iTunes purchases to make a switch easy. None of this is particularly earth-shattering — as a loyal Amazon MP3 customer who’s almost wholly switched to the subscription-based Rdio, I actually think most of these features are a couple years too late.
Predictably, however, a new type of music service has got the music labels in a tizzy — they say Amazon isn’t licensed for streaming, and talk of lawsuits has already sprung up, as has a perception that Amazon legally over-extended itself with the service. That perception has only been heightened by word that Amazon and Sony are now negotiating, and there’s already some bad precedent for Amazon — MP3.com lost a lawsuit over a very similar service back in 2000. (I remember the case well; I was in college when it was decided, and it directly influenced my decision to go to law school.)
But I think there’s a very real chance Amazon will emerge scot-free from all of this, because Cloud Player is built on top of massive amounts of bandwidth that simply didn’t exist for previous entrants in the market. In fact, by pursuing Amazon here, the labels might hurt their own cause in a fatal way. Let’s take a look.
We’ve been here before
Digital music locker services aren’t a new idea; they’ve just been constrained by bandwidth and the practical realities of copyright law in the past. Copyright law is inextricably bound up in the notion of copies and copying, a structural legacy that comes from physical media — copying a book is hard, so it’s easy to regulate the act of copying. But copying a digital file is trivially easy, so the law gets tripped up on what seem like insanely pedantic issues when it comes to digital media — instead of focusing on who owns the content, the law focuses on who owns the copy.1
UMG vs MP3.com was a prime example of this distinction in action. The My.MP3.com service was actually quite brilliant: you scanned in your CDs using their app, and then you got streaming access to all those MP3s on their site. (Remember, this was 2000 and most people were still on dialup, so uploading huge amounts of music wasn’t practical.) The labels sued almost immediately, of course. In court, MP3.com argued that its service was the “functional equivalent” of users making their own local copies of songs, an act protected by fair use, but the court didn’t buy it. Because MP3.com was the party that made the copies, it was found guilty of copyright infringement, and $53 million in damages later, the company went bankrupt.
Now, this makes perfect sense if you’re focused on the copy and not the content: it didn’t matter that the user owned the music on CD — what mattered was that MP3.com was making unauthorized copies. The judge basically laughed MP3.com out of court, because he viewed the law through the prism of copies.
So what’s new for Amazon? Bandwidth, and tons of it. We’ve reached the point where uploading 5 or 15 or 20GB of data to a cloud service is a feasible task for most broadband-connected consumers, and that changes the nature of the argument entirely. If you’re a Cloud Player customer, you get a defined 5GB or 20GB of storage, and the music that lives in that storage is your copy. Your copy that you’re allowed to make. It’s not “functionally equivalent” to a fair use copy anymore — it is a fair use copy. I’d even bet that additional purchased songs that don’t count against your cap are actually transferred to your storage and given extra space that doesn’t show up on the meter, because that way each user still has their own copy.2
This is going to completely fuck the labels, since they can’t argue that Amazon is making unauthorized copies of songs. In order to stop Cloud Player, they’re going to have to completely switch tactics and argue that it’s actually the content that matters, and that Amazon doesn’t have the rights to enable streaming content from their platform. But that’s a ridiculous argument, since Amazon is just going to say that it’s not actually doing much of anything — it’s just giving users some storage space and publishing an app that can play those files over the network. The labels will have to somehow argue that the content of the music files is protected, since they can’t really touch what the users are doing to their own copies.
But once the labels open the door to saying it’s the content and not the copy that matters, all hell will break loose. Once it’s the content that matters, the MP3.com case gets decided much differently — that “functional equivalent” argument starts to look a lot better. I’m not so sure the labels are willing to take that gamble just yet; the current model has served them well thus far. It’s only recently that consumers have been able to easily make remote copies of massive amounts of data, and it’s only now that Amazon is commercializing it in this way. The media industry will have to decide how to approach this very, very carefully — and I’d bet Cloud Player emerges unscathed in the meantime.3
The copy/content divide is at the heart of why copyright law feels completely out of touch with reality: copyright lawyers spend all day and night thinking about ownership of digital copies, while most non-lawyers couldn’t give two shits about who actually owns the digital copy of a song once they’ve bought it. ↩
This is insane, from a systems design standpoint. Why should Amazon store 50 million different copies of Teenage Dream? It would make far more sense to just have one copy that streams to everyone. But that’s a content-centric view of the world — and as we’ve seen, that view of the world is incompatible with our current copyright law. ↩
Barring some clause in the existing agreements between Amazon and the labels that forbids a service like Cloud Player, of course. ↩
Yes, I’m leaving Engadget as well. In fact, I’m already gone — my last day was March 4th. I hadn’t told anyone in order to afford our team the chance to transition in relative peace and quiet. Not that there’s anything quiet about an Engadget workday.
Leaving Engadget is one of the hardest decisions I’ve ever made. Not only am I leaving my current position as managing editor, but I’m also walking away from the opportunity to be editor-in-chief. That’s a pretty exclusive fraternity — I would argue that Peter Rojas, Ryan Block and Joshua Topolsky are three of the brightest stars in our industry, and simply trying to equal their unparalleled leadership of our publication has long been the goal at the end of my five-year plan.
In just four short years (and somewhere over a million words on 4,313 posts) Engadget has completely changed my life. It’s insane to think that I used to read the site to relax and slack off in law school, and even crazier to remember fanboyishly listening to Peter and Ryan on the podcast. Getting an email from Peter saying he was giving me shot to write for the site was literally a dream come true — a dream that only got better when I took a full time position just over a year later.
And what a dream it’s been. The Engadget team is peerless in the industry — a collection of some of the smartest, funniest, most passionate writers and thinkers I’ve ever encountered. Working at Engadget isn’t easy, but it’s also like having an endlessly amazing conversation with two dozen of your best friends. That goes double for our readers, commenters and peers in the industry — I’ve been privileged to have a front row seat as journalism transformed from a one-way street to a multichannel discussion, and all of you have made me a better writer, thinker, and person.
Ultimately, however, I’ve come to the realization that it’s not this five-year plan, but rather the next five years that are critically important if I’m going to keep growing and learning. Leading Engadget might be the culmination of one dream, but in my heart I know I need to find the next beginning. It’s bittersweet, but I feel surprisingly good about it.
All that said, it’s Saturday night. Pick up your super-complicated mobile phone and use it for what it’s meant for — connect with your favorite people and go have some real-life fun. (I recommend dancing.) I’ll see you on the internet again soon enough.