The Fun Done Gone. Discuss.

To pull students’ noses out of my Internet Law Casebooks and their minds away from exegesis of the Sleekcraft factors in adword-based trademark infringement claims we will discuss No More Innovation for the Fun of It in Tuesday’s pre-midterm Internet law class. Is “[t]he Internet, with corporations sniping at each other and blithely ignoring major privacy violations, [] on the verge of the same fate as the true-blue American industries before it: losing its sense of fun[?]”

One thing you can take to the bank: my exams have not lost their sense of fun.


My iPhone 3GS works fine, and I make and receive few calls I decided to buy the iPhone 4G
I hate shopping, crowds, and crowded shops I went to the Apple Store yesterday
Apple Store salespeople remind me of cult members, like Moonies or followers of EST I stood in line to talk to an Apple Store salesperson
The 60-ish women who helped me was annoyingly enthusiastic and frantically energetic I told the saleswoman “I want to upgrade to the new iPhone”
The Apple Store had no new iPhones in stock I said I’d put my name on the waiting list for a new shipment
The saleswoman brandished an iPod Touch to record my name and email address; after three tries it didn’t work and she went into the back to get another I waited for her to find a working iPod touch.
After recording my contact information she said the Store would email me when the phone came in, but that I would have to respond quickly or I would lost the phone. I said “Got it.  I snooze, I lose.”
It’s common wisdom that ATT’s network is barely, at best, up to the task of handling the iPhone. As soon as I returned home I logged on to the ATT website to upgrade my phone
There’s no reason to believe I’ll receive the phone faster from ATT than I will from the Apple Store I ordered a iPhone 4G
Consumer Reports recently refused to recommend the iPhone 4G because when held a certain way it drops calls I don’t care
My iPhone 3GS works fine, and I make and receive few calls I look forward to getting my new phone

Dystopian Applenet

I’ve never warmed up to Jonathan Zittrain’s use of the term “generativity” but understanding its meaning is critical to understanding why the Internet grew as it did over the past twenty years. The Internet’s open protocols and platform enabled creation of what now must be hundreds of thousands of applications that expanded the Internet’s utility.  The NYTimes article titled “Apple Places New Limits on App Developers” made me think of Zittrain’s The Future of the Interent–And How to Stop It.  If Apple had invented the Internet it would have a dazzling look and feel and a fraction of our Internet’s utility.  It would be tethered to Apple’s control mania.  I don’t question Apple’s right to impose limits on developers of iPhone and iPad apps.  I’m just reiterating Zittrain’s point about the benefits of open, freely-adaptable, not-centrally-controlled technology.

PC2: Potential Convert

I think I have fixed my PC problems, which means I’m 70% confident that the computer will return to functioning status each time I reboot. The fix–not cure, fix–came by doing a Windows XP repair reinstallation, updating device drivers, and applying other Microsoft spells and rituals of which Mac owners live in blissful ignorance. Like Eve with her apple I began to fall under Mac owners’ spell, to the point where I planned a visit to the local Apple store Thursday night if the pc had not rebooted properly. Reboot properly it had; I was disappointed, although happy not to spend $2,500. I expect that day will come. It’s just a matter of time.


PS: From the 5/1 Business Week: The Mac in the Gray Flannel Suit

Apple Apostasy

A month ago the media was filled with stories about the New Jersey teenager who hacked the iPhone to work on cell carriers other than AT&T. Not one of the dozen or so articles I read then addressed the most obvious questions: Won’t this hack invalidate the iPhone’s warranty? Isn’t this hack vulnerable to an Apple counter-hack? Doesn’t it violate the DMCA’s anti-circumvention provisions? Last week, after Apple issued a software update that turned hacked iPhones into $400 paperweights, the media was filled with headlines such as this from the New York Times: Altered iPhones Freeze Up

Duh. Without reading the iPhone’s Terms of Use I know that Apple’s contract specifically prohibits the carrier-switch hack and disclaims liability for user installation of non-approved software on the iPhone. I know because such provisions are boilerplate in retail tech products licenses and contracts and Apple is as PC–programatically correct–as any tech company. Exhibit 1 is iTunes, which is easy and intuitive and countenances almost no user modification of how it chooses to organize your music on your hard drive. Which makes statements like this from an editor of Gizmodo just silly: “[Disabling a phone] instead of just relocking it . . . is going way too far; I’d call it uncharacteristically evil.” Irritating, annoying, consumer-unfriendly, reason not to buy another Apple product, maybe, but since when does naked pursuit of economic self-interest upset techies? Maybe this is a corollary of last week’s a liberal is a conservative who has been arrested: “a consumer advocate is a techie whose hacked iPhone has been bricked.”

Cartoon Consequences

The guerrilla marketing campaign for a Turner Broadcasting System cartoon show that prompted a Boston bomb scare this week has generated a lot of talk. So far the legal focus has centered on the two men hired by Interference, Inc., the advertising agency behind the campaign, to place the devices around the city. They’ve been charged with placing a hoax device (a felony) and disorderly conduct (a misdemeanor), both of which will be difficult for the state to prove according to an article in today’s Boston Globe. The same Globe article reports that Massachusetts Attorney General Martha Coakley is close to settling legal issues with TBS and Interference who, presumably, will pay their pounds of flesh and make formal mea culpas. Settling the matter quickly means there won’t be a full airing of possible legal claims in court which, while great blog fodder, would be in neither Turner’s nor the state’s interests.

A February 1 Globe article–the title of which captures its essence: Marketing gambit exposes a wide generation gap–stated “[t]he episode exposed a wide generational gulf between government officials who reacted as if the ads might be bombs and 20-somethings raised on hip ads for Snapple, Apple, and Google who instantly recognized the images for what they were: a viral marketing campaign.” Reactions to the campaign showed whether one belonged to the target demographic. A number of students said that the TBS campaign was wildly successful and therefore justifiable. They argued that TBS will likely earn far more in publicity than it paid to obtain, thanks precisely to the cluelessness of public safety officials. It was a great campaign, exceeding its aspirations. From more than a few students I heard “there’s no such thing as bad publicity.”

I did not and do not agree. Does the response justify the campaign? In every endeavor one always needs to ask: what could go wrong? How can my actions be misinterpreted? Failing to exercise due care to prevent the reasonably foreseeable injurious consequences of one’s acts is negligence. Whether one incurs legal damages, acting without regard to consequences is socially irresponsible. A positive cost-benefit analysis does not make it right.

Young people are so inured by the 12 billion ad messages they’ve received that marketers must whack them upside the head to get their attention. Some day, when Coke and Pepsi encode sales pitches on DNA molecules to insert in utero, today’s young folk can pine for that simple time of marketing devices taped to support girders on the Boston University Bridge.

iTunes: Up or Down

I posted last week (iTunes iNtrouble?) about a report by Forrester Research that, according to The Register, Bloomberg, and others, disclosed a collapse in iTunes’ sales in 2006. The claims of trouble at iTunes “threw the cat among the pigeons,” as a boss used to say. Apple shares dropped almost 3% after Orlowski’s story, others claimed iTunes 2006 sales are “surging,” and the report’s author criticized the media for taking one sentence of the report out of context. Which figures are correct? It is hard to say since Apple does not report iTunes sales separately. Analysts look at other official Apple figures or figures from other sources to deduce iTunes sales trends and, not surprisingly, different sources yield different conclusions. For instance, the Forrester Research report is based on 2,700 debit and credit card transactions. Carl Bialik, The Wall Street Journal’s “Numbers Guy,” examined the different methods here. (Subscription required)

Commentary branched off from there. Andrew Orlowski’s December 12 article in The Register pointed to digital rights management as a cause of Apple’s declining sales, a theme reiterated by others: ” . . . the metrics are beginning to support the notion that DRM, at least in part, is actually driving people away from Apple’s music store.” (Joe Lewis, Orlowski spun another strand, predicting the advent of blanket licenses in which users subscribe to online sites for a small fee and obtain “the right to exchange music freely” and licensors (artists and labels) divvy up the pie in some equitable fashion.

Others attacked Orlowski’s article. In the “‘Collapsing iTunes Store’ Myth” characterized Orlowski’s blanket-license model as a “socialist fantasy” mandating a “Soviet style choice:”

The point was not just to create a sensationalist article, but to use it as proof for later articles that followed a preset agenda: iTunes can’t succeed, because Orlowski has other ideas in mind about how to distribute the world’s music. links to a chart and analysis from Blackfriars Marketing of Apple sales supporting the Apple press-release claim that iTunes’ sales are, um, just peachy. Absent actual Apple iTunes sales figures this dispute is mostly noise, revealing more about the use of the Internet to flog a topic into tiny pieces than about iTunes’ sales or the future of digital music. Google, for example, produced over 10,000 hits for “apple ‘itunes sales’ ‘forrester research report.'” I don’t have a dog in this hunt. I’m neither confident of iTunes’ imminent downslide nor optimistic about its continued dominance over the music download market, merely curious about how the future unfolds and how we perceive it.
It reveals something else, too: the passionate, minute interest in the present and future of digital entertainment. It’s hard to imagine a report of, say, declining sales of Sony HDTVs provoking the same type of commentary.