While I profess ignorance of the nuances of EU competition law (the European name for what Americans call 'Antitrust'), I know enough to understand how a bundling claim works. One of the essential elements of an anti-competitive bundling claim is a monopoly position. In order to win, one would have to argue that Apple is a monopolist in either:
1) Online Music Distribution
2) All Electronic Music Distribition, or
3) All Music Distribution.
While Mr. Slattery's lawyers might make some headway in asserting #1, Apple is very likely to convince the court that either #2 or #3 are what matters when it comes to measuring the consumer's options. After all, traditional plastic CDs ought to be considered competitive with iTunes, just as would any other online music store. Once you bring the bricks/mortar/plastic end of the business into the market being measured for anti-competitive behavior, Apple is far from being a monopolist.
My guess is that this is a PR stunt sponsored by one of the evil companies that begrudge Apple its just deserts--e.g., Real.
Of course, I'm not your lawyer or anyone else's involved in this case. I'm also not singling Real out as the culprit. I'm merely mentioning them based on their anti-consumer practices in the past.
My "Blue"Berry is about twice as wide as my P900, and it has about half as much functionality. Also, RIM is a sleazy company and should be avoided for any other option. When are the mobile carriers going to offer alternative secure push email services?
This is not correct. Proprietary formats can be competitive amongst one another. A proprietary format is only *anti*-competitive if the format is unlawfully imposed upon a market by a dominant player in that same market. I think you know this, but you chose your words poorly.
If a lot of people voted for a third party candidate, you can be sure the Democrats and Republicans would assimilate that third party's platform in the next election, and we would return to the same two parties in short order.
Of course, that's not to say that there isn't real value in influencing the two parties' platforms.
1) How do these records relate to VoIP activity? I don't see it.
2) Section 215 will be automatically repealed in 2005, and is already the subject of numerous amendments seeking to curtail the language of the act. The ACLU's current challenge against it is ongoing, AFAIK, and may very well result in curtailment or repeal. In any case, curtailment is likely to render Section 215 consistent with DoJ's stated purposes for the provision, which is over-broadly drafted.
I'm no expert in this stuff, but I hardly lose any sleep over the FBI looking into my library or video rental records. I also suspect that this provision has a very short shelf life. Finally, I doubt there's any reading of 215 that could accomodate snooping on the contents of VoIP transmissions.
I know people continue to propogate the meme that the PATRIOT act is eroding their constitutional rights, but can you provide some substantive evidence of this? I've read the act. I've had dinner with its principal author. I don't see how it does much more than adapt outdated tapping laws to new technologies and streamline the process required to put a tap in place.
You say the PATRIOT act allows for warrantless searches. Yes, it is true that judicial oversight for searches of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records is *diminished* under PATRIOT. It's not at all clear to me how those searches relate to VoIP, although there may be ways to exploit the ditigal/analogue distinction there.
The provisions that expand FISA searches are even less relevant to this discussion, since they require a foreign intelligence need to prompt a search and they sunset in 2005 anyway.
You still need a warrant to operate a "sneak and peek" operation under PATRIOT. PATRIOT just says you don't have to tell the person they're being watched. (As far as I'm concerned, having to tell someone that you're going to watch them is as absurd as it gets in the espionage game.) Eventually, you have to be told about the search under PATRIOT anyway, and "sneak and peek" is not unconstitutional. So, no "warrantless search" issues there either.
I suspect your beef is with Section 214 of PATRIOT, which adapt the rules for obtaining "pen register" and "trap and trace" wiretaps (NEITHER of which reveal the content of a conversation--only where the calls come from, and where they go). Before PATRIOT, FISA allowed the FBI to get these taps by showing a judge that the information would be relevant to an ongoing criminal investigation. No probable cause required there! Now, under PATRIOT, law enforcement can get these taps by certifying that the information would be relevant to an ongoing investigation into international terrorism. Whoa! Call off the Republic. America is DOOMED!!;~)
Oh, and I almost forgot the kicker!! PATRIOT also clarifies that pen register and trace and trap taps apply not only to telephonic devices, but to the Internet as well. So, it's a little hard for me to see how the FCC's ruling does much more than facilitate the tap rules that basically have changed incrementally (and not nearly as drastically as you are making out) since the passage of PATRIOT.
Wait, I almost forgot the REAL kicker! The pen register/trace and trap rules SUNSET in 2005.
I'm not even gonna get into roving taps and the rest of PATRIOT. I'd rather have you explain what exactly is so dire about PATRIOT, and show us all where it violates the Constitution and how it erodes our fundamental liberty. Or are you simply passing on a popular meme that you read about on some message board and seemed to fit your idea of a worthy outrage?
Listen, there's no question that bad people are going to exploit digital technologies to tragic ends. (If you have a shred of doubt about it, read this excellent article on how terrorists use the Internet to develop more and more insane ideologies and strategies.)
Nevertheless, we also have a compelling public interest in keeping Big Brother from using the backdoor to enforce stuff that goes beyond keeping the peace and encroaches on our fundamental (and hard earned!) liberties.
The bottom line is that blocking all law enforcement access to these technologies is going to cost people their lives, but letting the pigs sniff around where they don't belong is going to ruin everyone's life. This is just another balancing act in the giant circus we call a democratic society.
So, rather than moaning about one side of this argument or another, doesn't it make sense to focus on getting just the right sweet spot in between?
...Real's songs play on other players aside from the iPod. The songs sold on iTMS are designed to play on iPods alone for the time being. Therefore, Apple does not want users to buy Real songs in lieu of iTMS songs, because if users do that, iPod sales will likely suffer.
It does not follow, however, that Apple's (and possibly Lexmark's) business approach is a bad one. If the law supports their preclusion of Real's encroachment on their product line, Apple will continue to sell songs and iPods in the same manner as they have been. It seems to me that Real's legally dubious approach (and the approach of any freerider attempting to encroach on legally protected product dynamics of their competitors) is the poorer of the two business models.
Apple's business model is what it is. The fact that they might be able to use existing IP laws to prevent Real from freeriding on Apple products is not a limitation on your *legal* rights. It is simply a means by which the Congress saw fit to regulate competition among IP owners. Bottom line: you have no *legal right* to purchase licenses to IP that the Congress deems to be infringing. Blame Congress, if you want to blame anyone. Apple is well within their rights to use the existing laws to manage their product lines as they please. If you don't like it, don't buy from Apple. My guess is that Apple takes the risk of a consumer backlash into account when they make the decision to enforce their legal rights. My guess is that you have been deemed a stastically insignificant market factor. Too bad for you.
The claims on that website you link to are ridiculous.
First of all, it claims that Apple basically does nothing to reap its one-third cut of the price of a song on iTunes. What about the front-end costs of bulding the iTMS backend, developing the client application (for multiple platforms) and the ongoing costs of the bandwidth? I guess that's "basically doing nothing"?
Secondly, if a recording artist is making 11 cents per song on iTunes, isn't that 11 cents that the artist would never otherwise receive? I mean, an artists' overhead for selling on iTMS ought to consist of: (a) rehearsal and studio time, (b) mixing services, (c) hiring session musicians and maybe a famous producer or something, and (d) marketing. The label gives them an advance for all that stuff, and takes it back (and then some) in their 53 cents per song cut of sales on iTMS.
So, once the artist has paid back the label for any advance money, every 11 cent per song sale on iTMS is pure profit, right? The artist has no ongoing expenses for selling on iTMS, right?
And Apple has lots of really expensive ongoing overhead, right? And Apple says they're barely breaking even on iTMS today, right?
Apple doesn't have to sell you music for $.99 They could raise the price to make up for the sales lost to Real. And of course, Real would *never* raise its prices in response.
You have the right to do whatever you want with your iPod unless it's illegal (e.g., fraud, etc.) Apple's only legal restrictions with respect to YOU apply to the firmware/software license, not the device itself. The fact that they are using the law to prevent a third party from supplying you with crap you may or may not want doesn't change your legal obligations to Apple.
...Apple isn't telling you anything. They're managing the companies that are trying to be third party suppliers, just like Lexmark did. Only the mobile carriers are handling this as a direct legal obligation on you. There's nothing stopping you from buying Real media for your iPod today, except that Apple will break it next firmware distro.
In the US, at least, mobile phone devices are subsidized by the service contract. Therefore, most mobile carrier plans include a cheap or free phone/device. Saying that Apple can't control the formats on the iPod, or that Lexmark can't control the origin of replacement cartridges, is equivalent to saying that mobile carriers have to give you a free phone and then let you cancel the service contract (at no cost to you) so you can take it to a new carrier. That's silly. Do you understand that the result of claiming that as your right is that the phones will not be free any more?
Lexmark could charge you more for the printer, and let you use third party cartidges, if you like. Apple could charge more for the iPod and let you use Real format. Is that what you really want?
The chances of pulling off a reverse engineering project without encountering long, expensive and often successful claims from the target IP owner are next to nil. There are many, many risks associated with clean-room techniques. For example, when the company undertaking the clean room project develops specs for the product being reverse engineered, how much access to the target product is too much? When those specs are handed off to the clean room team, how close are the specs to actual access to the target product? Is anyone in the clean room lying about their background? To be perfectly safe, I would imagine that the clean room team would have to be composed of people who don't own an iPod, and have never used or touched an iPod. Try proving that in today's world. Real says they did it by the book, but there are tons of ways to prove them wrong.
If Apple is making money on the iPods, and using those profits to subsidize losses on the iTMS, why shouldn't Apple be able to tie these two products together? It seems to me that consumers benefit from the symbiosis of these two products, since Apple probably wouldn't be able to implement the iTMS without the iPod sales.
And, if you're being honest with yourself, you'll admit that there would not be a Real music store today if there hadn't been a (successful) iTMS.
I just bought an eMate because I've been looking high and low for a way to make my MP2100 a "writer's computer". I looked at all the subnotebooks and PDAs and kept wishing I could just type on my Newt. The eMate is the near-perfect writer's computer. One additional benefit: no web access to distract you from getting some work done!! (Of course having dictionary.com and thesaurus.com on hand would be nice, but certainly not necessary.)
Every time I think of the perfect "writer's computer", I think of the leather-clad, voice recognition transcription handheld in Wim Wender's Until the End of the World.
I absolutely applaud your efforts to learn the IP laws. But, you need to work harder and pay more attention.
First of all, Real cannot "do whatever they want with the iPod." The DMCA would prevent them from hacking the iPod's DRM features, for instance. Secondly, patents needn't be reverse-engineered as they are publicly disclosed. Thirdly, originality is a requirement of *copyright*, which, together with trade secret protections, are the area of IP concerned with reverse engineering. Finally, if Apple could show that Real's hack was based on some access to confidential information about the iPod, and that the hack employs code/features that are copyrightable and that are substantially similar to Apple's copyrighted materials, the hack would still give rise to liability. Since we're talking about Real, I'd say the likelyhood of something sleazy happening is quite high.
Slashdot Mirror
1) Online Music Distribution
2) All Electronic Music Distribition, or
3) All Music Distribution.
While Mr. Slattery's lawyers might make some headway in asserting #1, Apple is very likely to convince the court that either #2 or #3 are what matters when it comes to measuring the consumer's options. After all, traditional plastic CDs ought to be considered competitive with iTunes, just as would any other online music store. Once you bring the bricks/mortar/plastic end of the business into the market being measured for anti-competitive behavior, Apple is far from being a monopolist.
My guess is that this is a PR stunt sponsored by one of the evil companies that begrudge Apple its just deserts--e.g., Real.
Of course, I'm not your lawyer or anyone else's involved in this case. I'm also not singling Real out as the culprit. I'm merely mentioning them based on their anti-consumer practices in the past.
Welcome to the real world.
Wow. Just wow.
My "Blue"Berry is about twice as wide as my P900, and it has about half as much functionality. Also, RIM is a sleazy company and should be avoided for any other option. When are the mobile carriers going to offer alternative secure push email services?
This is not correct. Proprietary formats can be competitive amongst one another. A proprietary format is only *anti*-competitive if the format is unlawfully imposed upon a market by a dominant player in that same market. I think you know this, but you chose your words poorly.
Of course, that's not to say that there isn't real value in influencing the two parties' platforms.
1) How do these records relate to VoIP activity? I don't see it.
2) Section 215 will be automatically repealed in 2005, and is already the subject of numerous amendments seeking to curtail the language of the act. The ACLU's current challenge against it is ongoing, AFAIK, and may very well result in curtailment or repeal. In any case, curtailment is likely to render Section 215 consistent with DoJ's stated purposes for the provision, which is over-broadly drafted.
I'm no expert in this stuff, but I hardly lose any sleep over the FBI looking into my library or video rental records. I also suspect that this provision has a very short shelf life. Finally, I doubt there's any reading of 215 that could accomodate snooping on the contents of VoIP transmissions.
You say the PATRIOT act allows for warrantless searches. Yes, it is true that judicial oversight for searches of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records is *diminished* under PATRIOT. It's not at all clear to me how those searches relate to VoIP, although there may be ways to exploit the ditigal/analogue distinction there.
The provisions that expand FISA searches are even less relevant to this discussion, since they require a foreign intelligence need to prompt a search and they sunset in 2005 anyway.
You still need a warrant to operate a "sneak and peek" operation under PATRIOT. PATRIOT just says you don't have to tell the person they're being watched. (As far as I'm concerned, having to tell someone that you're going to watch them is as absurd as it gets in the espionage game.) Eventually, you have to be told about the search under PATRIOT anyway, and "sneak and peek" is not unconstitutional. So, no "warrantless search" issues there either.
I suspect your beef is with Section 214 of PATRIOT, which adapt the rules for obtaining "pen register" and "trap and trace" wiretaps (NEITHER of which reveal the content of a conversation--only where the calls come from, and where they go). Before PATRIOT, FISA allowed the FBI to get these taps by showing a judge that the information would be relevant to an ongoing criminal investigation. No probable cause required there! Now, under PATRIOT, law enforcement can get these taps by certifying that the information would be relevant to an ongoing investigation into international terrorism. Whoa! Call off the Republic. America is DOOMED!!
Oh, and I almost forgot the kicker!! PATRIOT also clarifies that pen register and trace and trap taps apply not only to telephonic devices, but to the Internet as well. So, it's a little hard for me to see how the FCC's ruling does much more than facilitate the tap rules that basically have changed incrementally (and not nearly as drastically as you are making out) since the passage of PATRIOT.
Wait, I almost forgot the REAL kicker! The pen register/trace and trap rules SUNSET in 2005.
I'm not even gonna get into roving taps and the rest of PATRIOT. I'd rather have you explain what exactly is so dire about PATRIOT, and show us all where it violates the Constitution and how it erodes our fundamental liberty. Or are you simply passing on a popular meme that you read about on some message board and seemed to fit your idea of a worthy outrage?
Nevertheless, we also have a compelling public interest in keeping Big Brother from using the backdoor to enforce stuff that goes beyond keeping the peace and encroaches on our fundamental (and hard earned!) liberties.
The bottom line is that blocking all law enforcement access to these technologies is going to cost people their lives, but letting the pigs sniff around where they don't belong is going to ruin everyone's life. This is just another balancing act in the giant circus we call a democratic society.
So, rather than moaning about one side of this argument or another, doesn't it make sense to focus on getting just the right sweet spot in between?
...Real's songs play on other players aside from the iPod. The songs sold on iTMS are designed to play on iPods alone for the time being. Therefore, Apple does not want users to buy Real songs in lieu of iTMS songs, because if users do that, iPod sales will likely suffer.
It does not follow, however, that Apple's (and possibly Lexmark's) business approach is a bad one. If the law supports their preclusion of Real's encroachment on their product line, Apple will continue to sell songs and iPods in the same manner as they have been. It seems to me that Real's legally dubious approach (and the approach of any freerider attempting to encroach on legally protected product dynamics of their competitors) is the poorer of the two business models.
Apple's business model is what it is. The fact that they might be able to use existing IP laws to prevent Real from freeriding on Apple products is not a limitation on your *legal* rights. It is simply a means by which the Congress saw fit to regulate competition among IP owners. Bottom line: you have no *legal right* to purchase licenses to IP that the Congress deems to be infringing. Blame Congress, if you want to blame anyone. Apple is well within their rights to use the existing laws to manage their product lines as they please. If you don't like it, don't buy from Apple. My guess is that Apple takes the risk of a consumer backlash into account when they make the decision to enforce their legal rights. My guess is that you have been deemed a stastically insignificant market factor. Too bad for you.
First of all, it claims that Apple basically does nothing to reap its one-third cut of the price of a song on iTunes. What about the front-end costs of bulding the iTMS backend, developing the client application (for multiple platforms) and the ongoing costs of the bandwidth? I guess that's "basically doing nothing"?
Secondly, if a recording artist is making 11 cents per song on iTunes, isn't that 11 cents that the artist would never otherwise receive? I mean, an artists' overhead for selling on iTMS ought to consist of: (a) rehearsal and studio time, (b) mixing services, (c) hiring session musicians and maybe a famous producer or something, and (d) marketing. The label gives them an advance for all that stuff, and takes it back (and then some) in their 53 cents per song cut of sales on iTMS.
So, once the artist has paid back the label for any advance money, every 11 cent per song sale on iTMS is pure profit, right? The artist has no ongoing expenses for selling on iTMS, right?
And Apple has lots of really expensive ongoing overhead, right? And Apple says they're barely breaking even on iTMS today, right?
So how is Apple screwing artists?
Apple doesn't have to sell you music for $.99 They could raise the price to make up for the sales lost to Real. And of course, Real would *never* raise its prices in response.
You have the right to do whatever you want with your iPod unless it's illegal (e.g., fraud, etc.) Apple's only legal restrictions with respect to YOU apply to the firmware/software license, not the device itself. The fact that they are using the law to prevent a third party from supplying you with crap you may or may not want doesn't change your legal obligations to Apple.
All it would take is evidence of a very high likelyhood that one of the engineers had access to the device to begin to chip away at Real's claim.
...Apple isn't telling you anything. They're managing the companies that are trying to be third party suppliers, just like Lexmark did. Only the mobile carriers are handling this as a direct legal obligation on you. There's nothing stopping you from buying Real media for your iPod today, except that Apple will break it next firmware distro.
Lexmark could charge you more for the printer, and let you use third party cartidges, if you like. Apple could charge more for the iPod and let you use Real format. Is that what you really want?
The chances of pulling off a reverse engineering project without encountering long, expensive and often successful claims from the target IP owner are next to nil. There are many, many risks associated with clean-room techniques. For example, when the company undertaking the clean room project develops specs for the product being reverse engineered, how much access to the target product is too much? When those specs are handed off to the clean room team, how close are the specs to actual access to the target product? Is anyone in the clean room lying about their background? To be perfectly safe, I would imagine that the clean room team would have to be composed of people who don't own an iPod, and have never used or touched an iPod. Try proving that in today's world. Real says they did it by the book, but there are tons of ways to prove them wrong.
And, if you're being honest with yourself, you'll admit that there would not be a Real music store today if there hadn't been a (successful) iTMS.
Hello?! The firmware is still Apple's software. (Actually it's made by Pixo--some ex-Newton OS developers.)
Real is trying to lock consumers into their closed DRM scheme by attempting to freeride the iPod's commercial success.
...and hand-eye coordination.
Every time I think of the perfect "writer's computer", I think of the leather-clad, voice recognition transcription handheld in Wim Wender's Until the End of the World.
First of all, Real cannot "do whatever they want with the iPod." The DMCA would prevent them from hacking the iPod's DRM features, for instance. Secondly, patents needn't be reverse-engineered as they are publicly disclosed. Thirdly, originality is a requirement of *copyright*, which, together with trade secret protections, are the area of IP concerned with reverse engineering. Finally, if Apple could show that Real's hack was based on some access to confidential information about the iPod, and that the hack employs code/features that are copyrightable and that are substantially similar to Apple's copyrighted materials, the hack would still give rise to liability. Since we're talking about Real, I'd say the likelyhood of something sleazy happening is quite high.