The Quiet War on Innovation

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04.11

04.11

The Quiet War on Innovation

By David Pietrocola

In January, President Obama proclaimed in his State of the Union address, “In America, innovation doesn't just change our lives. It is how we make our living.” The Obama administration has highlighted a multitude of technological advancements that defined our past and are writing our future. But tucked away from the front pages and presidential speeches, a legal battle of sorts is being waged against innovation, however unintended it may be. Its outcomes have affected — and will continue to impact — digital media, technology and what one may legally do with them.

At issue here is Washington’s decision to protect old business models at the expense of the very innovations and innovators they continue to praise. Take, for example, the recent case of George Hotz, a 21-year-old hobbyist who published code to reverse engineer the Sony PlayStation 3 (PS3) in order to install and run the Linux operating system. The thing is, when Hotz and millions of gamers and institutions purchased the PS3 after its release in 2006, installing Linux or any other operating system was completely permitted and even encouraged. In fact, the United States Air Force boasted the ability to build an inexpensive supercomputer by clustering 1,760 PS3 consoles and taking advantage of its phenomenal processing speed. But Sony killed the feature last year with a mandatory firmware upgrade, citing concerns the feature could facilitate the playing of pirated and homebrew games. The change may not affect the cluster directly as it is not hooked into the PlayStation Network service, but any necessary console replacements may prove problematic.

For anyone unfamiliar with copyright and fair use history, this is the same Sony Corporation that successfully defended the fair use rights of its customers in the landmark 1984 Supreme Court decision that established precedent for fair use. In that ruling, Sony argued its Betamax recorder was capable of substantial non-infringing uses and the Court voted 5-4 to uphold that argument, thus creating a stable legal environment that ushered in today’s consumer electronics.

However, today, Sony is a significant content producer and its priorities have shifted. Under the Digital Millennium Copyright Act’s (DCMA) anti-circumvention provisions, Sony has sued Hotz in the most recent of its attempts to prevent hobbyists from modifying and expanding the features of Sony devices. At the time of writing, a federal judge had granted Sony access to inspect Hotz’s hard drive, as well as access to all visitor log information to his website, YouTube videos and Twitter account.

Washington continues to side with the powerful lobbying groups of the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA). Retired five-term Senator Chris Dodd (D-Conn.) recently became president of the MPAA at a whopping $1.5 million salary. Additionally, the Obama administration continues to appoint former RIAA attorneys to the Department of Justice and applauds trade agreements, like the proposed Anti-Counterfeiting Trade Agreement (ACTA), without one mention of fair use rights for consumers.

The particularly disturbing issue since the DMCA was signed into law in 1998 is that content providers and their lobbying groups have a significantly stronger position now than they have had at any point in the century-old battle between the existing content business model and the transformative technologies that threaten them. Consider sheet music vs. piano rolls, cable television providers vs. broadcast television providers, the film industry vs. Betamax/VCR — the government sided with technology and unforeseen benefits, and revolutionized an industry time and time again. With unprecedented bipartisan lobbying muscle, the DMCA and recent court rulings, content providers (old business models) have the legal system working in their favor, and most technology companies have resigned themselves to signing partnership agreements or foregoing potentially controversial devices or features.

Despite these setbacks, engineers and hobbyists are trying to make their voices heard. In an online plea to help fund his legal defense against Sony, Hotz raised all he needed in just 18 hours. He has cited his defense will stand up for the hobbyists with a right to do what they please with devices and media they lawfully purchase. In the March 2011 issue of IEEE Spectrum, Robert W. Lucky — a successful innovator in his own right — reminisced about the days when engineers could regularly tinker with gadgets around the home: devices could be opened up, fixed, modified and learned from.

“I’m an engineer and yearn to tinker with these closed boxes,” Lucky wrote in his article. “It’s what I grew up doing.”

As a young engineer, I have heard similar statements from dozens of experienced and successful engineers. Steve Wozniak, the co-founder of Apple and designer of the Apple I, described his childhood experiences building ham radios in his autobiography iWoz. Countless engineers pursued careers in the profession because they became hooked on tinkering and modifying the analog radios and televisions of old.

Today, tinkering with commercial consumer devices is much more difficult, and it is hardly encouraged. Aside from the complexities introduced by advanced digital technologies and Digital Rights Management (DRM), the legal protections the DMCA grants them act as a final deterrent to even the cleverest of hobbyists — like Hotz. Hotz should be celebrated for his technical expertise in a society woefully lacking in the push for new engineers and scientists it will need to successfully compete in the coming decades.

Microsoft launched the Kinect Xbox peripheral in November. Since that time it has sold 10 million units and set a Guinness World Record for fastest-selling consumer device. While it is impossible to say how these Kinects are being used, it is clear that thousands of buyers, this writer included, are using the combined RGB and depth sensor for hobbyist projects ranging from autonomous robotics to novel human-computer interfaces. The $150 price tag makes the sensor a potential game changer in the field of robotics, where comparable sensor performance previously required expensive stereoscopic cameras or laser range finders. Microsoft’s decision to forego any DRM on the device’s USB interface not only saved a few hours work for the hobbyist community to crack it, but kept the DMCA legal battle at bay (it should be noted, however, that Microsoft has used DRM and the DMCA to stifle hobbyists with respect to the Xbox).

Having the ability to tinker and modify purchased products fosters innovation in countless ways. At time of writing, Microsoft is readying its own software development kit to allow PC users to play with the Kinect. Sony and the Obama administration should take some notes.