Wednesday, December 15, 2010

Xbox Hacking Case: Finally, A Judge That Stands For Innovation!



If you are at all interested in copyright law and new technology's effect on innovation, then this article will give you chills. As Anton Ego put it in the classic pro-innovation manifesto, Ratatouille, "The world is often unkind to new talents, new creations. The new needs friends." And it is with great pleasure that I report how upliftingly a District Judge in Los Angeles embodies this notion. I'd like to briefly summarize what the case is about, then talk about why the things this judge said are so exciting.

The defendant in this case is charged with breaking digital mechanisms that protect copyrights, in this case, the Xbox's controls on what kinds of games can be played on it. The defendant developed a way to hack into the Xbox and play pirated, non-officially-licensed games on his system. Arguably, the main purpose of the hack is to let illegally copied games run on the system. But our defendant argues that there are a lot of non-infringing uses for this kind of hack, including developing new technologies for the machine and for playing your own legal back-up copies of your games, to name just two.

So this case went to trial, and while there have been a lot of cases about reverse engineering technologies and hacking them (the semi-recent iPhone jailbreaking rules, for instance), this is the first about the Xbox. Very exciting, but also potentially dangerous.

Because the judge presiding over the case could happen to really likes the rule against circumventing these technologies, maybe because he thinks that protecting large companies that develop these technologies is more important than letting tinkerers break their machines open and try to innovate. If a judge like that presides over the case, then we remain where we have been since the Digital Millennium Copyright Act was put into action in 1998: copyright law prevents a very important (in my opinion) type of innovation.

But lo and behold, the judge in this case is not the kind of pro-DMCA hard-liner that some of us were afraid of. During opening statements just a few weeks back, the presiding judge, Philip Gutierrez, realized that the prosecution's case had some problems. He pointed out, as the article linked above says, problems with witness credibility and with the prosecution's characterization of the defendant's intent. Even more importantly, the judge reversed his earlier decision to remove a fair use defense from the defendant's arsenal, essentially saying that the law must allow some experimentation on this kind of technology.

That is key: according to this judge, allowing tinkering, home-brewing, and hacking is IMPORTANT, and anyone who does it is allowed to try to prove that they did it with good reason, reason more important than the arbitrary strictures of the DMCA.

It also signals a big step forward in how judges think about these issues. To a certain extent, the prosecutors made all of these mistakes in this case because they thought they could get away with it. And if they got a judge like a lot of the other circuit judges out there, who maybe don't understand the role of hacking in innovation, they WOULD have gotten away with all of this. It's supremely uplifting to see a judge making it clear that you can't just rely on judges liking your policy aims to win cases against hackers; when you want to curb innovation, your case better be pretty strong.

(Brief notes: First of all, since this incident, the prosecution decided to dismiss the hacking incident, essentially giving up, for now, on trying to prosecute this kind of thing. Victory! For now. Also, for a great overview of how this kind of hacking works, check out famed Xbox hacker Bunnie's overview.)

Sunday, December 5, 2010

What Gawker's New Design Means For The Internet


Gawker Media is a pretty large, pretty influential blogging network, which includes a lot of different types of content. They are responsible for Lifehacker (a sort of productivity blog / DIY hub), io9 (a place for sci-fi nerds), Gawker itself (a sort of gossip / politics tabloid-blog?), and many more. Essentially, they've become a platform for a certain type of content. So their choices design-wise not only indicate the way the Internet has been heading, but they also influence the future of other sites. So here's some stuff about the most recent redesign.

(Incidentally, you can scroll to the bottom of this post to read a brief disclosure about my relationship with Gawker if you are worried about my journalistic integrity. Short story shorter: I've freelanced for them, but that shouldn't matter here.)

First, a brief overview of what has happened. As you can see at this post and in the video there, the list of posts is on one side, organized with most recent first, and the content is on the other side. The new set-up also gives Gawker a way to highlight interesting media and pictures, not necessarily the text of a given post. In short, they've redesigned to emphasize interesting visuals and information, not necessarily in-depth writing.

Which is fine! That's sort of been Gawker's model for a while. The in-depth writing is an added bonus on top of what is essentially a collection of tabloid-y news scoops, oddity roundups, and short tips, highlighted by eye-catching media. That's what it does, and it does it extremely well, in addition to the occasional in-depth writing pieces.

Anil Dash, Internet genius and trend-analyzer (and more!), has a lot to say about this redesign, including a roundup of other commenters speaking out. He's right on the money when he says that when this is the kind of information you want to put out there, this new set-up is exactly what Gawker needs. You should go there to read more, but here's a little snip:
In this way, blogs are emphasizing the trait that's always defined them, the fact that they're an ongoing flow of information instead of just a collection of published pages. By allowing that flow to continue regardless of which particular piece of embedded content has caught your eye, Gawker and Twitter are just showing the vibrancy and resilience of the format.
Exactly!

But I just wanted to add one more possible thought to this whole jumble. Another reason why Gawker can afford to do a design like this is that they're already famous. From a search-engine-optimization standpoint, this would be a weird choice. Only a site with a devoted audience, a clearly defined niche, and a built-in expectation for quality can afford to have such a busy front page with only one actual textual piece on its front page. A start-up blog would have to think very differently. It'd have to have a LOT of text on its front page and make a lot more effort to welcome new readers.

Dash is basically right on point when he says that this marks Gawker borrowing from the design of web-based applications like Twitter, mostly because web-apps don't have to advertise themselves on every page like blogs do. But maybe the better way to think about it is that all web-based information or media platforms are all starting to prioritize the same kinds of things, much like cable channels slowly did over the course of their development.

In the end, we're headed to a different version of the same place that we always do with this whole Gawker thing. Gawker is an established brand, a trusted news aggregator, and the internet is dividing itself into fewer and fewer recognized platforms for this kind of thing, with the independent blogger / startup personal brand having a more and more difficult time making an impact. Essentially just as television operates now.

If we think about what makes the Internet special, this would still preserve a lot of its strengths: the easiest platforms for making an impact (YouTube, for example) are those that will more fully develop and become popular, and those platforms will still allow interesting things to happen. But I think we're kind of past the days when new platforms can become giants. I have a post brewing in my head about the difference between networks, platforms, and applications in the world of media, but that'll have to wait. For now, I think Gawker's new design is a hint of the implications of this platform-centric approach to Internet media.

(Brief disclosure: I sort of work for Gawker. I write for their sci-fi blog io9, and they pay me, but as a display of my limited involvement, I heard about this redesign from Anil Dash, not from my ties to the company. I'm basically a long-term freelancer for them, so I have absolutely nothing at all to do with big decisions like this redesign or mission statements or anything. As much as I believe that my ties to the company have not influenced this post at all (since I am writing generally about structure and the purpose of Gawker), I'll leave it to you to discount what I have to say if you disagree.)