The Real Battle at Comdex: Intellectual Property vs. Internet Protocol

by Doc Searls

A photo gallery from my trip to Comdex can be seen here.

I arrived at Comdex this year after visiting my mother and sister in North Carolina. The most memorable moment on that leg of the journey came when I visited the CompUSA store in Greensboro. No, it wasn't anything at the store that excited me. It was the banner hanging from one of the chain motels by the Interstate: "Free high speed Internet!"

This sign raised a persistent question I took with me to Comdex: What does it mean for the rest of the world when they're giving away broadband in North Carolina motels? Or, more briefly, Will freedom win?

My hotel in Las Vegas was the new Aladdin, which is huge and theme-y; they all are now. The room was nice, especially for the $79/night price. The location was relatively convenient, next to Paris and across the street from Bellagio on the Strip. It had broadband in the room, though it wasn't free. It gave you a choice between spending $9.95/day to use the dumb terminal with embedded Windows or spending $9.95 to jack your laptop into the Ethernet outlet. The two methods were charged separately, for some reason.

The Windows terminal didn't work. Both the complicated instructions and a call to the hotel's tech support folks made it clear that failure was the norm. The tech support guy advised me to ignore the box option and jack my laptop into the system. (Which I was going to do anyway, but I needed to see just how bad this mother was.)

[Hey, looking for a nice business? Sell dumb and reliable Linux internet terminals to big hotels in Vegas. Most, I'm told, don't have them. And new hotels open there all the time. The next (no kidding) may be the 10,000-room Moon Resort & Casino. (Given Nevada's lunar-like landscape, it kind of makes sense.)]

As I said in my first show report, this year Comdex was mostly a Microsoft show--a place where the company and its most compliant hardware OEMs could showcase the new Tablet PC. But in a larger sense, it also was an arena where marketing fought markets, where the hares of intellectual property raced the tortoises of internet protocol, where those that want to own the world confronted those that want to make a world that can't be owned.

As in the hare vs. tortoise contest, most of the attention focused on the showoffs. Bill Gates gave the opening keynote on Sunday night; Carly Fiorina followed the next morning. Both demonstrated Microsoft's new Tablet PC. The only other keynote attracting much attention was an hour-long attack on "digital piracy" by Peter Chernin, the President & CEO of News Corp. and Chairman & CEO of Fox Group. The title of his speech was "The Problem with Stealing". Comdex promoted the speech this way:

In his address, Mr. Chernin will present a groundbreaking argument: that digital piracy is at least as damaging to technology businesses and their progress as it is to the creative companies whose products are being stolen. In a presentation that incorporates some of Hollywood's leading creative voices and some of the technology community's most fundamental concerns, Mr. Chernin will suggest that only by joining forces with the media industry will IT companies be able to reinvigorate their businesses and achieve ongoing and profitable growth.

That call to join the Dark Side was substantiated when George Lucas himself showed up on stage to support Chernin and his arguments.

Declan McCullagh has a transcription of Chernin's speech. Jonathan Peterson, at, rebuts the speech with an annotated version of the same transcription. Here's Chernin:

The Big Bully Theory holds that by opposing digital copyright theft, content providers are looking to roll back the rights and privileges that consumers have come to enjoy and to overturn the principles of fair use in favor of our own unfair agenda. We are accused of seeking to scale back the fundamental freedoms of digital technology: the ability to time-shift by saving content for later viewing, the ability to space-shift by transferring content between televisions and computers, and many other capabilities that digital products and applications make possible and likeable by so many people worldwide.

The fact is that we have never had any such interest or agenda.

Subscribers to the Big Bully Theory may be surprised, for example, to learn that we have no objection to anyone making copies of televised content, whether aired on free or pay TV, whether analog or digital, whether recorded on a PVR, a VCR, through TiVo, or with the help of any other device geared to the viewer's convenience.

And here's Peterson's response:

The MPAA has filed a brief with the Senate Judiciary Committee asking for all Analog-to-Digital converters to be controlled by a "cop chip" which will enforce copyright, making existing analog recording equipment (VCR, cassette, sound cards, etc.) unable to record future programming.

Chernin continues:

The trumpeters of the Big Bully Theory may also be startled to learn that we have absolutely no problem with viewers shifting our content from their television to their PC, from their living room to their bedroom and to their bathroom and back again, as many times and ways as they'd like.

Peterson responds by citing another Net-savvy source:

David Weinberger takes righteous offense at the preceding for good reason:

First, "shifting" does not necessarily include copying. Second - and this is what makes my blood boil - he's granting us permission to shift "our content" where "our" refers to the entertainment company? It's not their content. When I buy a DVD, the DVD is mine and I can use it any way I want so long as I'm not reselling it or broadcasting it. The disk is mine. I can make a copy for my upstairs TV. I can mold it into a pretty little ashtray. I can roll it in a tube and sell it to Peter Chernin as a home colonoscopy kit.

Keep your hands of my property, you goddamn burglar!

That was more or less the tone of the Great Debate that followed the keynote. Titled "The Gold Rush for Intellectual Property: Hollywood vs. Silicon Valley", it lined up three entertainment industry executives against free software guru Richard M. Stallman and John Perry Barlow, the EFF cofounder and self-described "cognitive dissident" whose own acquaintance with intellectual property derives largely from having served as lyricist for the Grateful Dead.

The topic was hot to begin with, but it was quickly raised past the boiling point when RMS jumped in. The man would not be silenced--or even held to the debate's protocols. At one point M. Scott Dinsdale, the Executive VP of Digital Strategy for the Motion Picture Association of America (MPAA), turned to Richard (sitting to his left) and yelled "Will you SHUT UP?" Richard ignored him.

The moderator, Eric Lundquist, Editor in Chief of eWeek, opened the debate by giving the first turn to Richard. He opened by explaining that "intellectual property" was a deceptive catch-all label that included patent, copyright and other topics that need to be pulled apart and discussed on their own terms. He then added that this discussion was properly isolated to copyright. Over the course of the exchange that followed, Richard blamed the entertainment industry for overly narrow interpretations of copyright law, for leading Congress to expansions of copyright law and for creating a system that fails to compensate most of the artists it represents--in other words, for behaving like the controlling entities they have been for many decades. "For the marketplace to do anything meaningful, it must be a free market. Not one in which media companies control the marketplace."

When Ted Cohen, Vice President of Digital Development and Distribution with EMI, said his company "believes in making music available at a reasonable price, with reasonable rights for reasonable use", and that he simply wants to find a way for artists and record companies to continue making money, Richard came back with a long rebuttal accusing record companies of cheating both artists and customers. He also called peer-to-peer sharing of files a form of "civil disobedience", and he recommended that artists bypass their industry and deal directly with their own marketplace.

Jonathan Potter, Executive Director of the Digital Media Association (DiMA), admitted the industry has not kept pace with technology. He also seemed to have little regard for the record industry's preference for attack politics rather than a constructive approach to intermediating between the "two core constituencies" in the market, artists and consumers. If the record companies couldn't help, he said, they should "get out of the way".

Scott Dinsdale also said he thought the same two constituencies should find ways to work together, and he stressed the importance of "choice" by all parties. New technologies limiting choice, he said, were "wrong and pretentious". He also said the industry's old distribution system, which sells plastic discs containing "two songs you like and ten songs you don't" through retail outlets, was a doomed one.

John Perry Barlow took issue with the term "consumer", which everybody on the entertainment industry side of the argument constantly used. He also took issue with the term content. "I didn't start hearing about 'content' until the container business started going away", he said.

He also lamented the industry's success at lobbying both Congress and the largest technology manufacturers to not only require digital rights management (DRM) but to embed DRM schemes in future equipment--including PCs and their operating systems. He said both Intel and Microsoft are already moving ahead with exactly those plans, with or without regulatory encouragement. "I see them changing the matrix of the Internet to a model that's based on surveillance and control. That is in the long term advantage of those who want to control and surveil." He also expressed some disappointment that his own originally optimistic views about the ungovernable nature of cyberspace have failed to prevail against an industry that's hellbent to regulate it.

Potter and Cohen both tried to offer upbeat scenarios. Potter, for example, gave the record industry credit for finally embracing the idea of on-line music distribution and said he expected the marketplace to sort stuff out eventually.

RMS wasn't buying it. In one of the heated exchanges that followed, he called Potter a "troll". He also loudly instructed Cohen to call Linux by its "proper name". Dinsdale finally ceased trying to contribute, sandwiched as he was between Barlow and the irrepressible RMS.

Afterwards I had a brief conversation with John Perry Barlow. He said one of his biggest concerns was Intel's new LaGrande technology, which creates a way to embed supply-controlled DRM in what will likely become more than 90% of the world's computers. "It's already well underway", he said.

At the Intel Developers Forum on September 9, Paul Otellini, Intel's President and COO, explained what LaGrande is all about:

Today I want to introduce a new technology, though, just like we did last year with Hyper-Threading Technology.

The new technology has to do with safer computing. This technology is codenamed LaGrande Technology. LaGrande is all about creating a safer computing environment.

If we are going to enable convergence, if we are going to enable the promise of e-Business, we have to be able to have a more secure environment here. Hardware-based strengthening to this is critical.

LaGrande delivers a hardware-based foundation for security. It includes protected execution, protected memory, and protected storage.

It will be delivered into the marketplace through our processors and our chipsets working together to create a secure hardware environment.

We are working with the industry to do this, not just our OEM partners and ISV and OSV partners, but also the privacy experts to ensure we do it in a way that is acceptable to the norms of privacy nowadays.

It's a core technology that things like the Microsoft Palladium initiative can take advantage of to build much more stable platforms.

In "Intel - Another 432?", David Reed, one of the Internet's primary architects, compared LaGrande to the failed 432 microprocessor. It tried to embed a software idea--object oriented programming--in hardware:

OO computing is fundamentally about "late binding"--which, like my own design principle, the "end-to-end argument" means avoiding putting too much function in the least plastic parts of the system. Late-binding enables a system to evolve rapidly and flexibly. That's what software is good at, and why OO is inherently a software idea. Putting the evolving ideas of OO into hardware is the design equivalent of an oxymoron. Wasting all that specialized and frozen silicon on a specific version of OO burdened any design with costs and risks that the future would not play out as planned.

...What will kill LaGrande is the same problem. Building some specialized notion of content protection into the processor and its buses is "early binding" in an extreme form. It makes the whole architecture brittle, and unable to compete for new opportunities, new applications, etc.

Why is LaGrande's design early binding? Because we don't know, we really don't know, what sorts of protection make sense in the emerging digital, networked marketplaces. Despite 35 years of computer security research, we have not yet increased our understanding of what needs to be protected beyond a simplified, very unworkable notion of military document security. Now joined with a simplified, very unclear notion of what Hollywood might really need (as defined by its lawyers and lobbyists--not the most technically savvy designers).

Barlow is no less aware of the pitfalls for efforts like LaGrande, but he's still rather pessimistic for a basically optimistic guy. Worse, he suspects the leading companies in our own industry really aren't on our side either. He told me one of his (and our) biggest mistakes in recent years has been underestimating the Net-hostile resolve of the entertainment industry, with its armies of lawyers and enormous clout. He now believes Congress won't take technologists seriously until they organize themselves and "take out" one of Hollywood's elected lackeys in an upcoming election.

Even though we already know pretty much where Microsoft stands, it's helpful to read what Infoworld's Paul Roberts reports in "Comdex Discussions Focussed on Digital Rights":

During a panel discussion outside of Comdex, senior executives from Microsoft Corp. said that the company's Palladium technology, when finished, will provide a secure hardware and software platform to begin offering digital rights management on newly released material.

Microsoft, however, disagreed with the entertainment industry's focus on enforcing copyrights on insecure material that has already been released.

"The media industry has been too focused on trying to bring forward copy protections and apply them to the general environment of the computer system," said Craig Mundie, senior vice president and chief technical officer of advanced strategies and policy at Microsoft.

"Microsoft would rather come together [with the media industry] around a strategy of rights management than look backwards at areas of copy protection," Mundie said.

When released, Palladium will complement the industry's efforts to secure copyright content, enhancing digital rights protection with hardware-based encryption, according to Mundie. Microsoft executives didn't say when Palladium will be out, but said it will be part of a set of features in a future Windows release.

Addressing the thorny problem of how to ensure that copyrights are enforced on material that is so broadly distributed and used, Mundie said that the very nature of music and images makes it unlikely media companies will ever be free of the issues of piracy and unlicensed use.

Taking to heart what David Reed says about simplicity and about limiting complexity in the least elastic parts of the Network, it seems AMD and Linux will have an advantage in what they don't include, as well as in what they do.

There is nothing Intel or Microsoft can do to limit the market's ability to kick their tires. It's too late for that. Customers have too much access to information and too much power to inform each other.

It was interesting to me that Barlow and Stallman were the only panelists in the Debate who not only had laptops in front of them on stage but used them as resources in preparing their responses. They looked, quite simply, far more evolved.

Markets are naturally resourceful. In the long run, freedoms will outsell restrictions, no matter how embedded those restrictions may be. But unless we inform and organize our markets about what Hollywood is up to, that run will be a lot longer than we'd like.

Doc Searls is senior editor of Linux Journal.


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