# OCAP- Who is capping whom?



## Justin Thyme (Mar 29, 2005)

TiVoPhish said:


> ... how does the OCAP middlewear effect TiVo?





danieljanderson said:


> What is OCAP and why is it bad?





Justin Thyme said:


> I don't see why CEA vendors should have to support an entire proprietary operating system (OCAP) and proprietary Network just to register a crummy OK button click for PPV or VOD.


There has been a lot of discussion and curiousity about what importance of OCAP is in being about to watch TV our way. I have made an attempt here to put together the picture as I see it. I have no clear idea of a solution to the problem presented- all I am doing here is attempting to describe the situation. Although it has rather vast implications, the essential details are simple. How this struggle plays out affects Tivo in profound ways.

Looking at this historically, when you have a dumb box on the end of a wire, the cable company traffic is one way. The Cablecard 1.0 spec supported that set up. The cableco headend server is just pumping data down to the box and the box decripts it and plays it. Once the box gets some more powerful processors, more interesting things can be done. Software can run on the box and send messages back to the Cable Company servers. This could be something simple like requesting a VOD channel, to something more complex, like running an interactive guide or a channel specific app like a Home Shopping Channel bidding/ order entry application. So having some kind of software is essential for these new kinds of services. At present, in the US there is an impasse between the cable companies and the consumer electronics companies. Elsewhere, other software is being used and the impasse has been solved. The essense is that the CE companies do not wish to be the victim of an operating system dominance scheme.

The objective in Operating system wars is to create a situation where all third party vendors are creating sofware, hardware and services which depends on your operating system Software.  This was the basis of major battles of recent history- like MSDOS versus DR-DOS (digital research dos), Windows versus OS/2, Windows versus Netscape and so on. OS struggles have vast implications.

It is true that both Netscape and OCAP occupy middleground between the low level operating system and the application software that the user is interacting with, but they fall into the same operating system dominance strategy because it is not the position in the hierarchy that is crucial, but whether the applications are dependent on their Layer, rather than someone else's.

Being able to define the dominant software API is critical to controlling the fate of the class of consumer electronic device that uses it.

In the mid 90's, Microsoft assembled the Cable companies in Redmond and proposed that Cable Companies use Head end and Set top box software which would do many wonderous things which are only now appearing today, such as Video on demand and the capability to copy video locally to an STB.**** By 1997, MS had purchased 1 Billion in Comcast stock to grease the deal. But the proposal to put it mildly was most unwelcome. After a crucial presentation by Gates in 1997 in New York, Cable execs exclaimed "I don't want to be Bill Gates' next download", with full suggestion of the brown shade of download which would be recieved. Malone stated at the TCI meeting shortly after, ""Bill Gates would like to be the only technology supplier for this whole evolution. We would all be very foolish to allow this to happen." source

But they liked the strategy. CableLabs was created to essentially reinvent and control the standards in their own way with their own proprietary and patented technologies. They would control their fate by controlling the hardware specs (eg cablecard) as well as the software layer (OCAP). Further, by controlling operating system software embedded in devices like TVs, they could expand their influence by providing the OS for CE devices- the role that Gates covetted. Gates didn't have the content leverage over the CE companies. Cable did.

The implications for control of the OS in the living room are enormous... You have a horse betting program written in OCAP, and so if the gambler gets hooked on it, the consumer wants to have it on their portable device- so naturally any vendors that want the application must license OCAP from cablelabs. Naturally, the OCAP data feed in such a product scenario would come from the cableco, and the consumer must pay for that. It is a lucrative situation with a high degree of leverage.

If the internet didn't happen along, we very well could have been interacting on proprietary closed cable networks rather than on an open nonpropietary network, with the attendant social goods in the internet case of the absence of boundaries of a global network where no single entity is in control or can dominate.

In europe and asia, the possibility of such OS domination by a single entity was prevented by using an open standard. In these countries, Ocap's function is filled by DVB-MHP  and is used both for cable and satellite interactive digital TV applications. Although based on MHP, OCAP is controlled by Cablelabs, a consortium controlled by US cable companies.

Independent CE companies do not want to see themselves get subjected to the kind of abuse of dominant market position that a certain software company has lorded over the computer industry. In the US, if a CE company wants a television that provides the full range of entertainment services, then they are being told by cablelabs that they must license and support OCAP. There is a class of CE companies who cater to the needs of Cable companies who buy billions of dollars of set top boxes- these include NDS, Thomson, Motorolla, and Scientific Atlanta. These companies are very eager for cableco contracts and openly embrace these competing OS's. Third party vendors not involved with such contracts, and who like Sony, Panasonic, and Toshiba instead manufacture alternatives to carrier boxes take great umbrage at attempts by the cablecos to cast their participation in the Cablecard/OCAP discussions as signifying endorsement in any way of OCAP. 
Example Snippy little note from Sony to the FCC about OCAP BS here.​
There is no technical reason for requiring OCAP in particular or even Cable proprietary network technology to switch channels- such as for VOD, switched channel, or PPV. The cableco's are using dominance in content delivery to leverage themselves into the provider of system software for the devices that CE companies build. To do that would be to surrender control.

Others are also avoiding the cow pie. In FIOS, Verizon has used fiber as a transport for a conventional one way cable system. But they have avoided the cable company's strategy of proprietary lock on technology by entirely avoiding use of the cable protocols for interactivity. They are using Internet Protocol transport (IP) instead for communication back to the video headend server**. AT&T (nee SBC)'s fiber system is using IP entirely. Since it would have been foolish to rely on protocols controlled by cableco competitors, these two telco's chose a vendor whose interests did not compete to a high degree with theirs.

Microsoft TV, take 2. Although Verizon has chosen a hybrid scheme of two different MS OS packages, this is for transitional purposes only, and both AT&T and Verizon FIOS have chosen Microsoft TV IPTV edition as their long term software platform. Although Microsoft has its own software dominance scheme, the telcos are more comfortable with MS's business model does not compete with theirs as the cableco's do. Theoretically, the telcos could switch horses to an Apple OSX, but Apple so far is no show in the living room. Alternatively, the telcos could go with DVB-MBH or choose to each roll their own proprietary scheme and control their own fates at the expense of interop with other CE devices. Microsoft's CES2006 demonstration of creating a branded experience on third party portable devices (with DirecTv) was a signal to carriers of the lost benefits if they choose an OS isolationist stance.

Ultimately, the world is moving to devices that can access content from a variety of content vendors, and so the interaction protocol and programs will have to be more generalized than those defined by particular content vendors.

When you look at what the OCAP, IPTV, and DVB-MHB software is doing- guide, navigation to multiple sources of content, player of music, photos, and a high level language for interactive applications, the feature list bears a striking resemblance to one we here are all familiar with. This little guy has a lot of Chutzpah.

Advocates of the protocols or language of one vendor over another oftentimes are unknowingly acting as proxies for rather large companies whose business interests and practices have a minimal degree of overlap with the best interests of consumers.

** See Verizon filing with FCC, Page 6. They are Cablecard 1.0 compatible with interactivity sharply divergent from Cablelabs' cablecard 2.0 proposal. Some mention of the motivations on page 8.
**** More information on this little MS debacle here


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## davezatz (Apr 18, 2002)

TiVo has an opening for Director of Software Engineer... familiarity with OCAP is a plus.


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## TechDreamer (Jan 27, 2002)

Thanks for the info, it was a nice read.


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## dt_dc (Jul 31, 2003)

Re: "Open" telco (Verizon/SBC) IP/Ethernet/DVB vs. "Closed" cable DOCSIS/QPSK/OCAP ...
Please, please don't feed into this hype.

For Verizon (and cable) this is a hardware / architecture issue and ultimately cost / perception issue. It's not a question of "openess" and "standards" ... or "closed" and "proprietary".

Verizon and cable have some disagreements ... but quite frankly other than some rhetoric being thrown around ... "closed" vs. "open" and "proprietary" vs. "standardized" has _nothing_ to do with it ...

*1. DOCSIS/QPSK (cable) vs. IP/Ethernet (Verizon)*

IP/Ethernet vs. DOCSIS/QPSK for plug and play / CableCard standards comes down to this very simple issue ...

DOCSIS/QPSK standards means Verizon has to spend $$$ (or convince CE makers and consumers to spend extra $$$ for "standard+Verizon").

IP/Ethernet standards means cable has to spend $$$ (or convince CE makers and consumers to spend extra $$$ for "standard+cable").

DOCSIS/QPSK + IP/Ethernet standards means the CE companies and consumers have to spend extra $$$ for "Verzion-and-or-cable-standard".

Really ... honestly ... it's _that_ simple. Which standard supports/compliments an MVPD's existing architecture. Which standard will force an MVPD to spend extra $$$ to support it and is uncomplimentarty with their existing architecture.

Also, _both_ methods can just as easily be used for (what I think you would consider) a "closed / propietary" network as for an "open / standard" network.

We can explore this some more ... but trust me. This has _nothing_ to do with "closed / propietary" vs. "open / standard". Don't buy the hype(rbole).

*2. OCAP (cable) vs. something "in progress" presumably DVB-MHP or something very similar (Verizon)*

Well, hard to say without somthing concrete from Verizon. But really. OCAP and DVB-MHP are both based on the DVB-GEM spec. CableLabs went to the DVB Project and asked them how to remove the DVB-specific sections of MHP and make it applicable to existing US cable systems (without millions/billions in plant re-architecture). DVB came up with GEM which would allow for that (and allow for other region-specific issues to be addressed). CableLabs is doing exactly what the DVB Project laid out for them to do.

The difference between the European (DVB Project) and the US (ATSC/CableLabs) is (again) NOT "open" vs "closed" or "proprietary" vs. "standard" or anything like that.

The difference is that in Europe there's a single DVB Project while in the US this function is split between the ATSC and CableLabs (and now, ATIS). Yes, the telcos have their equivalance to CableLabs. It's ATIS http://www.atis.org/.

Cable-controlled CableLabs is laying out their vision (preferable to cable companies) ... telco-controlled ATIS will be laying out theirs (preferable to telcos). That's it ... that's the difference.

*Don't paint this as "cable vs. telcos and CEA".*
It's not. There are two very different things going on there.
- cable vs. telcos
- MVPDs (cable and telcos and dbs) vs. CEA

The first battle really isn't very interesting. Each side has the same fundamental arguments / goals / results. The second one however ... is _much_ more interesting.


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## Justin Thyme (Mar 29, 2005)

I most certainly did not mean to imply a favorite among any of these. I am not waving the open standards flag. If anything- I am waving the interoperability flag/ not letting any player achieve dominance flag.

"Open" DVB-MHP doesn't support MP3, MPEG-4, no XML parser support... The ISV is also told that very likely any files they wrote to persistent store won't be there next time they are executed. Sounds like a pretty crappy software environment for multimedia to me. I mean really- no MP3? Maybe the EU commission or whoever came up with this thing just couldn't agree if MP3 was better than raw wave files...

Regarding transport mechanisms, if the goal is to allow third party navigation devices that can access multiple sources of content, then any box will have to support IP- either by modem or 100BT I think that is what ACAP (ocap for atsc) is doing. DBS needs an alternate return path, and the telcos are using IP. Ok fine. They all need an IP server api for requesting VOD and PPV and Switched channels.

To do this, why is this not just a fricking API called via HTTPS secure connection in the example of PPV? Like- here I am- here's my authentication... I want this channel, agree to pay. Done. The software that calls that server api? Why does anyone have to specify. It could be called by a COBOL app. Who cares. And whether it is HTTPS- who cares. It's there and it works for banking so why listen to any requests for 5 years to invent a new security protocol. Really- it's not the point that HTTPS is an open standard- it's just that it's there and it works so why reinvent the wheel.

Beyond whether you use existing protocols, the key question to me is why you need to require any of this heavy weight client support at all for something that could be answered with a client-software-agnostic server call.

I see why you need all this stuff to download arbitrary apps like a Pizza application from the server and know it will run on everyone's devices, but PPV, VOD, switched channels? I see no technical justification why you need MHP, OCAP or MS IPTV to do it. Yet people are told they must have MS IPTV or OCAP if third parties want to be able to navigate their content.

The carrier comes out with a new service- they publish the server API spec and are required to use that API for operation of the feature. MS, Apple, Sony- whoever devices can support or not support those new APIs if they so choose and they can access those apis with whatever language or client implementation they choose.

Maybe there is a technical rational for all this client (set top box software environment) Junk. I just don't see it.


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## AtomicDecay (Sep 29, 2005)

This might not be the right thread to ask this question, but I'll inject it anyway...since it got me thinking and I don't recall seeing it addressed in the other Series 3 threads.

With the specs released so far, would the Series 3 support the above mentioned FIOS/teleco system?


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## dt_dc (Jul 31, 2003)

Ok ... yes ... now you're getting into what I called "MVPDs (cable and telcos and dbs) vs. CEA"

Just to reCAP

Lets say you wanted to build a system to allow consumer availability of navigation devices for interactive services ... hypothetically 

Ok ... lots of ways someone may want / think / whatever to do this. But I'll break it down into two.

*1) "API Style"* (Edit: previously labled "Open and _in_flexible")
AKA the "API" method talked about by JT above. Also what the CEA is advocating.

Give CE makers an API and they will use it. Or an XML schema via HTTPS. Or some standardized OOB signal / protocol via QPSK. It doesn't really matter.

If we look at a specific example ... like a program guide ...

Tivo and Sony and everyone else has a way to get the actual guide _data_. Maybe there's a getGuideData(date) API call that returns guide data objects for a specific date. Or maybe they call https://guidedata?date and get XML back that they can parse for the data.

It doesn't matter.

The point is that Tivo (and Sony and everyone else) has access to that actual guide data and can do what they want with it. Present it on-screen as they want. Make it blue ... make it green. Search it ... sort it. Heck, mix it in with other content (like downloadable content from the internet) ... whatever. The user gets a guide.

The cable company feeds up the guide data. Tivo, Sony, other CE companies, whomever are free to do with it as they wish. Cable doesn't have much say in the matter.

*2) "VM (Virtual Machine) Style"* (Edit: previosly labled "Closed and flexible")
AKA the "heavy weight client" talked about by JT above. Also what CableLabs is advocating.

Give cable a standard software environment and they will use it. Or a virtual machine or whatever you want to call it.

If we look at a specific example ... like a program guide ...

Tivo and Sony and everyone else provides a standard software environment. Cable-provided software runs in that environment. The user gets a guide.

The point is that Tivo (and Sony and everyone else) don't have any access to the actual guide data. They can't really do anything with it. It's presented on-screen as the cable company wants. It's blue or green or mixed with other content ... based on the cable company provided functionality.

The CE companies give cable a standard software environment. Cable is free to do with it as they wish. Tivo, Sony, other CE companies don't really have much say in the matter.

*No brainer you (and many others) are probably saying ... I take option #1*
Obviously the better choice. You got the "open" part right ... but why the heck do you call it inflexible ...

*Notes*
- I could make an argument for (and against) either of these approaches
- CableLabs / OCAP and DVB / MHP both lend themselves equally well to either approach. The standard bodies are usually smart enough to keep out of this and leave it as an "implementation detail"


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## Justin Thyme (Mar 29, 2005)

AtomicDecay said:


> This might not be the right thread to ask this question, but I'll inject it anyway...since it got me thinking and I don't recall seeing it addressed in the other Series 3 threads.
> 
> With the specs released so far, would the Series 3 support the above mentioned FIOS/teleco system?


Surprizingly, Verizon has indicated they have lined up a manufacturer for a plug and play POD  (cablecard security device) in a presentation to the FCC last october (see slide 8). However the device is using DVB, so Tivo would have to write some more code to assure compatibility.

I suppose it is not so surprizing if they are actually doing cablecard support- after all MS is a close partner and has gone to huge effort to be able to have MCE computers able to use cablecards. It would be a raw deal if their computers couldn't access FIOS for usage as a dvr. 


verizon presentation to fcc said:


> We selected an open standard (DVB) for our digital video delivery
> Our supplier has developed new PODs for us to support the DVB open standard
> Our deployment supports One-Way PnP


More detail discussed in TCF thread here.

However, as far as I know, there is no definitive document that says FIOS will support all cable card devices, some devices, or only some specially modified cablecard devices.


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## vman41 (Jun 18, 2002)

Seems to me that the model for OCAP is what they did with DVD players. The content provider (DVD publisher) is given cotnrol over the user interface for accessing the content.


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## Justin Thyme (Mar 29, 2005)

Let's see if that's a close analogy. 

first off- the dvd player has no UI to be replaced, 

secondly, the dvd vendor is in no particular position of market dominance due to factors favoring a technical monopoly (eg. limited geosync orbit locations, limitted airwaves bandwidth, limitted ability to run wires to all homes), 

thirdly, the dvd UI is not software, but a set of static menus. What is being required here would be as if dvd's actually ran software of a language of their own choosing- and they could say to play our movie you must implement our variant of unix so that it will play our dorky menu so the consumer can play the thing they really care about- the movie.

It is as if MGM required a computing environment on the dvd player with an operating system that the MGM specifies but the dvd manufacturer must port to their hardware.

Oh yeah, and then Warner brothers gets to specify a different language/ operatiing system of their own invention if they want. That is, DirectTv could do something different than OCAP, FIOS could do something different, Dish could.... 

Is that anything like DVD players?


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## Justin Thyme (Mar 29, 2005)

I got the impression you are leaving the inflexible explanation for another note. Maybe I could anticipate the association the inflexible objection. The issue is not standards bodies determining specs "open", the issue is whether the server api used is public and accessible (not hiding inside a proprietary network). Consider the following Public but closed flexible scenario:

Let the Cablecos innovate- do their competitive thing- define their server api however they want. Like Windows APIs, it's not set by any publically accountable standards body etc. They just do what they want.

Very flexible. Like Apple, they can change their system API all they want. They won't make a totally unstable specification for business reasons- but if they wanted to change the api every year, then fine- they have that flexibility.

They just have to use the server API they publish, make timely notifications of upcoming changes.

Carrier is free to sell navigation devices using the UI they feel their consumers want to have. 

Competitors are free to build a navigation device that also connects to the carrier's network and can access all of its non software content but presents a different UI. If they want to present the cableco software content, they can do that too, but they have to support OCAP.

Other carrier groups like the Telcos or the DBS providers can define their own APIs.

Now, you may notice a similar theme to another case where leverage of one set of products is used to gain advantage in another. Essentially, Microsoft is being required to not use its operating system advantage to favor other unrelated products. If people want to buy their SQL database, then fine, but if people want to buy just their OS, and a different database, then the third party database should have the full access to the operating system APIs that the Microsoft SQL database product had. 

The principles seem directly transferable to the case with carriers.

Carriers want to bundle software with content- that's fine. If that is what customers want then more power to the carriers. But the carriers should not be able to engage in product tying- the practice of using the demand for their video to leverage their software into everyone's living rooms. If some third party vendor thinks that people want just the video without the goofy software, then fine- their product should have the technical api specification necessary to provide access to all that video content in the same way that a third party telephone vendor has all the necessary specifications to build a phone that can be plugged into any wall outlet and work reliably. 

All the vendors need are the server APIs. I don't see that they need to be open- just public. I don't see that they need to meet some arbitrary measure of Computer Science quality- the Carrier simplly needs to show that the apis constitute all the ones that their software is using.

I don't see that the industry has to converge on be all end all standard. It wouldn't be a huge deal if to select a PPV movie there are 4 different sets of apis- for telcos, 1 for cablecos, 1 for dish and 1 for direct. 

I just don't see where the huge issues are for doing Server APIs other than the Carriers insisting they have a right to tie their software to their video entertainment.


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## 11274 (Dec 1, 2001)

It's not clear to me how comprehensive the OCAP api is. Is it complete enough that Tivo could port their entire functionality on top of OCAP? 

I notice that Comcast announced that they were buying between 250K and a million Panasonic OCAP HD DVR's this year. 

There has been no announcement of how much Tivo functionality will be available on their Comcast 6412/3412 port. I had assumed that it was partially constrained by the Motorola firmware and Comcast infrastructure. For example, Comcast DVR's don't have persistent guide storage., but current Tivo SA boxes do. Which will the Comcast/Tivo do, or even could do. 

With Comcast adding a million OCAP boxes to the mix, does that mean that Tivo must port to this interface, and what limits would that impose?


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## Justin Thyme (Mar 29, 2005)

I will take a swing at some of your questions about Tivo and the Moto box, but so far my assumptions (for example that the comcast deal was for a Tivo UI on top of OCAP) have been totally wrong/ delusional fiction. Take it with a huge grain of salt. Later in the year when we have the benefit of an official announcement, Tivo will make all this stuff clear.



km said:


> It's not clear to me how comprehensive the OCAP api is. Is it complete enough that Tivo could port their entire functionality on top of OCAP?


Ok. This one I do know. OCAP is java, and so much of what is crucial to the Tivo UI- like trickplay behavior with the remote are too realtime oriented to be implementable in a high level language. But as OCAP is unsuitable to low level features, it is also unsuitable for high level features. The idea that an application cannot count on data that it stored being present when the application returns means you are pretty limitted in the kinds of Apps you can implement. Here is an implementor oriented FAQ on MHP and OCAP.

After you look at it a bit, you might wonder why anyone would want such a half baked API, and what could you possibly build with it. Well- Say shopping channel wants to allow people to look at the product details for a particular item, maybe see a video of the product again, the user can add it to their shopping basket and do order entry- basically an Amazon site with video. I figure you could do that in OCAP. Now. If shopping channel implements in OCAP/GEM, then that application will run on all boxes that have OCAP support. From what I am reading, the GEM portion of OCAP, ACAP and MHP is the carrier independent portion and is portable. OCAP adds Cableco stuff, ACAP adds ATSC specific stuff, and MHP assumes the DVB video standard in use in Europe and Asia. So written properly, the content vendor's application EG shopping channel's "Amazon application" could be ported to an ACAP or MHP carrier. And if the telco's adopted the GEM core, they could have an OCAP for Telcos and the content vendor's ability to port their app would be much easier. Looks like a nice proposition except the telcos are not going for GEM, they are using Microsoft's IPTV, and no one is using OCAP, MHP, or ACAP anyway. (When I say no one- I mean fewer than 5,000,000). The reason is there are tons of digital boxes that can't run it.

So the Cableco's are trying to imply some momentum towards OCAP with the CES announcements of major purchases, and the FCC PR letters that suggest Sony is on board- a suggestion Sony took such rude offence to in their letter.

Remember, this is the same Sony that is advancing Blu-ray, which incorporates a Java (BD-J) engine for interactive bonus material content using what? You guessed it- the GEM (Globally Executed MHP) core.**

So what are they so pissed off about with OCAP? As far as I understand it (still fragmentary, it is that the current Cablecard2.0 OCAP spec creates a Virtual machine for the Carrier's UI- so that whether a customer had a Sony HD cablecard DVR, or a Toshiba 50 inch cablecard plasma screen, it would function as if it were a machine identical to the carrier provided boxes.

Although I suppose the CE company's like the idea of Amazon type application portability, they don't like this darker side of OCAP which is that it turns the CE device basically into a slave of the carrier. From what I understand (and this may be bogus), the carrier can download their UI, their guide, totally hijack the Television, DVR, STB. The CE companies want to differentiate their products and do that in their UI and integrated services, but basically the Carriers want all third party devices to be clean slates- and OCAP does that.

Anyway- It's all the grand vision of interactive TV- at least according to the carriers. But the CE companies are seeing multiple sources of content and the need for a UI that can navigate between these multiple sources. Naturally, each carrier is not going to welcome initiatives that make their form of ITV just one of many. While "no one" uses OCAP, there is one place where lots and lots of people doing ITV right now. It's called the web. These web sites aren't using this hobbled and oddball GEM common layer, and they are running them on hardware platforms a LOT more heterogeneous than devices capable of running OCAP.

I guess that is more than what you asked. But no- you couldn't do the Tivo UI on it. But OCAP support to a Tivo would allow the Cableco to turn your Tivo into a Adelphia UI or Cablevision UI or whatever- because that what the consumer wants, right? A Cablevision virtual machine.


km said:


> I notice that Comcast announced that they were buying between 250K and a million Panasonic OCAP HD DVR's this year.
> 
> There has been no announcement of how much Tivo functionality will be available on their Comcast 6412/3412 port. I had assumed that it was partially constrained by the Motorola firmware and Comcast infrastructure. For example, Comcast DVR's don't have persistent guide storage., but current Tivo SA boxes do. Which will the Comcast/Tivo do, or even could do.


Megazone stated it is a native Motorolla application. He and Tivo personnel have stated it is intended to be a full port of the Tivo experience. With a multigigabyte hard disk, and the power of running natively on the Moto box, yeah- I think they can manage persistent guide storage. Someone familiar with any shortcomings of the dct6412 might comment on some features that might be challenges for Tivo. 


km said:


> With Comcast adding a million OCAP boxes to the mix, does that mean that Tivo must port to this interface, and what limits would that impose?


I tried to answer that in the ramble above. The cablecos are trying to give the industry a sense of momentum, just as Microsoft is. So whether those are indicative of real trends or boondoggles is a matter of conjecture. What really matters is how the market reacts to ITV applications and which compelling applications emerge. And mind you, there are significant doubts that consumers much want to interact sitting at the couch rather than at their computer. But if some trend does emerge, then CE companies will want to provide support for those sorts of applications. Some vendors like Apple will eschew standards except for their own that traffic to their content. Tivo has a Java machine already, and technically should be able to react should some cross platform ITV compelling applications arise. The [Edit- BCM7401/BCM3255 (see footnote)]****- the likely chip pair for the S3, has support for BD-J, and at CES they annouced a Tool deal with Sonic, so theoretically they are positioned well for BD interactivity (S3-BD combo box running BD-Java apps).

**At CES2006 there was a bit of a shock when it was announced that first BD devices would not have BD-J interactivity support. The main guesses as to the reason seem to be 1) the Java engine won't be ready in time or 2) the hardware requirements for such a "full profile" box requires a CPU that would push the prices from $1000 (without) to $1800 (with BD-J). 
**** SATA, dual smartcard, 10/100BT, USB2.0, 2 complete HD AV channels in and out, sound familiar? source source2 BCM cablelabs announcement [Edit- earlier this read the BCM7411. As mentioned in the August announcement (source2), the 7401 supecedes its functionality. The BCM7401 replaces the BCM7411/BCM7038 chip pair


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I got the impression you are leaving the inflexible explanation for another note.


Yes I was. Although ... thinking about it over the weekend I think I like "API Style" and "VM Style" better. Less leading. (editing above note now)

I mainly just wanted to get the point of "control" accross. Which you obviously get but alot of people don't ...

Anyway, yes you're right. There's nothing (not even your pizza-ordering app) that you can't do "API Style". Yes ... it's all about control and functionality and other non-content ralated issues ... "product-tying".

Going forward a few steps ... why should Tivo (or Sony or Apple or anyone else) be able to sell pop-ups to advertisers while the cable companies can't? Why should Tivo (or Aplle or Google or anyone else) be able to explore different revenue models while cable companies can't? For example, lets say EuroCup makes a deal where their games can be watched free ... if you get some commercials at the start and half-time that can't be fast-forwarded through and a little logo/commercial in one corner during the game. Why should Tivo, Apple and Google be able to make this deal ... but not the cable companies? Why should CE companies be able to product-tie but not MVPDs?

Where CE/cable got into disagreement over the "API Style" was ...

Cable: "Ok, and now we have some meta-data with the content that describes functionality/behavior that you have to follow/enforce."

CEA: "Woah there. We just want the content. We don't want/need to be told any rules associated with it."

Cable: "Ok, that's fine. Just be aware that certain content may only be available to 'certified' apps that follow these rules."

CEA: "Woah there. We need access to all the content. Pay for it or not, that's fine. DRM associated with it or not ... that's fine. But behavior and rules associated with it? No ..."

Cable: "Look ... nothing to worry about. We've made a deal with some advertisers so that when you FF certain content you just need to pop-up an image durring that time. Oh, and you can't put any of your UI over that pop-up so the UI needs to be costrained to certain parts of the screen ..."

CEA: "But ... we were making the same deals with advertisers ..."

Cable: "Oh, and as part of another deal we may have certain content that can't be FF'd through at all ..."

CEA: "But ..."

Cable: "And again ... if you don't want to follow these rules that's fine. Just be aware that certain content may not be available."

Ok you say. CE companies should be able to provide their software without any behavior / rules attached. Cable companies can provide theirs. Let the consumer decide.

The problem is that if cable can provide their software ... they can also make certain content only available through their software. That same "pizza ordering app" that can only run on certain boxes ... well, perhaps Dominos makes a deal where certain content is free if it's also running that pizza ordering app. Otherwise you have to pay for it. Or perhaps, otherwise it's not available at all.

The CEA isn't willing to take _that_ risk either so ...

It comes down to the cable company providing all software ... or the cable company providing none. Or ... the FCC getting way more involved in this spat than they already are and having to figure out _exactly_ what must be open and available to the CE companies.

Prohibiting "product tying" sounds nice in theory. But (almost) no one sees video content as a stand-alone product. Behavior and functionality can be tied to video when it's distributed via media (DVD, next-gen optical, etc) ... via download (Tivo, Apple, Google, etc). So just because someone spends the $$$ to run a cable to your house or put a sattelite in the air ... they _can't_ do the same?

Google's DRM that they announced with their Video service. I'd be a little curious to know what comes with it. One the one hand ... a DRM scheme allows you to make sure you get paid for certain content ... content doesn't get spread around ... etc. OTOH ... having your own DRM that compliant products must license in order to view content is also another way to enforce certain rules / behaviors / and other "product tying" practices. "Content marked with ______ must have ______ behavior."


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## Justin Thyme (Mar 29, 2005)

Windows 95 came with desktop icons that directed users to MSN accounts. Say they had other advertiser links on their desktop. Should their OEMs be able to subtract this content and put on content of their own? Or should MS be able to say- love it or leave it. It's a package deal and you either install it as we built it, or you can go elsewhere. No fair making edits to our IP. The US government answered that.

If OEMS and customers should be able to separate software + content in the MS case, then why shouldn't they be able to in the content + software case? 

If a browser has an option to disallow popups with advertising content, should that be illegal? It is the web site owner's content- and they pay good money for putting that content up there. They pay for that with advertisements. So is it unfair of some browsers to muck with their livelihood? How far does government protection of the particular presentation of content go? In Japan, the head of the broadcasters association claimed that FF over adverts was copyright infringement.

Take a case of more explicity dividing of content from behavior. If a company writes a program to display data (say just the text) on the Encarta DVD without use of Encarta program, should that illegal? User purchased the DVD, are they precluded from using an alternate software package? Should wordperfect be prevented from displaying Word files?

There is an often commented on evolution from classic monopolistic practices. People can say: A is not a monopoly because there is alternative product B. But this dodge is still very effective because if you buy into A or B, you are locked in because A only works with A compatible hardware, and after you have bought enough A compatible things, there is no way you can afford to switch to B. Call them whatever you want, pseudo vertical monopoly fiefdoms- whatever. It's anti competitive behavior.

Now, let's take a look at a favored mechanism of using one product to leverage another. Proprietary DRM, or "behavior with data"(ocap). Same principle. Consumer buys a portable video player. But the device only supports a proprietary DRM that is not licensable by any other company. So the only source of protected commercial content is from the same company. Bingo. Fiefdom. One way to deal with this is to say- fine you have your proprietary DRM and all, but if you don't want to license it, then you must support in your portable player at least one other DRM licensable by all competitors of your Video store business. You can't tie unrelated products.

So how does that apply to OCAP? In the above case, software in the hardware drives customers to one content provider. OCAP is in reverse- dominance in content drives software into hardware. So the analog to the DRM solution is to say fine Cableco's- you can sell all the content + behavior product you want, and make it work real dandy on hardware you provide either directly or through your surrogates. But you may not use your content to leverage yourself into an unrelated product category- OS software on entertainment platforms. 

The way to prevent software vendors from using dominance in system software to leverage their way into unrelated applications businesses is to require them to document all the APIs they are using. 

Cablecos may advocate the benefits of their client software, but access to their servers must be through public apis and a network that competitors to their client software may use.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> If a browser has an option to disallow popups with advertising content, should that be illegal? It is the web site owner's content- and they pay good money for putting that content up there. They pay for that with advertisements. So is it unfair of some browsers to muck with their livelihood? How far does government protection of the particular presentation of content go?


And if a web-site wants to publish content that is _only_ viewable with a certain browser that does _not_ block pop-ups ... should that be _illegal_? It's encrypted in a certain way and only certain browsers that follow their rules can unencrypt the content. So ... certain browsers and certain customers won't have access to certain content. Isn't that the web site / copyright owner's choice? Does the government have the right to insist / mandate that all content on my web site must be equally available to everyone and every browser?

After all ... I might use my great web site / content to leverage some unrelated product (browser) onto the market ...


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## smark (Nov 20, 2002)

Key point though is that the content is ours.


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## Justin Thyme (Mar 29, 2005)

Hold on a second, okay Smark?

DT- Consider the Microsoft Word example. Can Microsoft put DRM on it's word format and use the DMCA to say that competitors like OpenOffice may not read it's file format because they would be breaking their DRM?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Take a case of more explicity dividing of content from behavior. If a company writes a program to display data (say just the text) on the Encarta DVD without use of Encarta program, should that illegal? User purchased the DVD, are they precluded from using an alternate software package? Should wordperfect be prevented from displaying Word files?


Yes ... but do we _force_ that divide? Microsoft _can't_ encrypt Encarta data so that only the Encarta program can read it? Microsoft can't hand out free Encarta DVDs and pay for it by embedding liked adverts that the Encarta program respects? Microsoft _must_ use plain-text for it's content so other programs can use it? If I am writing a new word processing program ... I _must_ save the files in a format that Microsoft and WordPerfect (whoever owns them now) can use and import/edit if they want? It's probably in my benefit to do so ... but maybe I'm Adobe with a slightly different take on the model. I want to give away a viewer and only charge for the editor. That should be illegal? Adobe should be _forced_ to let anyone make a pdf editor?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> DT- Consider the Microsoft Word example. Can Microsoft put DRM on it's word format and use the DMCA to say that competitors like OpenOffice may not read it's file format because they would be breaking their DRM?


Can someone other than Microsoft do it if they wanted to? If I wanted to come out with a word processor with DRM-protected files only viewable / editable by my program ... is that OK (or not)?


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## TiVoPhish (Mar 12, 2003)

dt_dc said:


> Yes ... but do we _force_ that divide? Microsoft _can't_ encrypt Encarta data so that only the Encarta program can read it? Microsoft can't hand out free Encarta DVDs and pay for it by embedding liked adverts that the Encarta program respects? Microsoft _must_ use plain-text for it's content so other programs can use it? If I am writing a new word processing program ... I _must_ save the files in a format that Microsoft and WordPerfect (whoever owns them now) can use and import/edit if they want? It's probably in my benefit to do so ... but maybe I'm Adobe with a slightly different take on the model. I want to give away a viewer and only charge for the editor. That should be illegal? Adobe should be _forced_ to let anyone make a pdf editor?


You raise very good points dt_dc.

Now, if CE companies choose to make boxes compatible with OCAP, they are confined or opened to this "middleware platform" the cable companies' agree to support.

I just went through a presentation this morning with a company providing us software that has a specific purpose... that software will run equallly well on Mac or PC because it's run through the internet via Java. Because Mac and PC both agree to run Java on their platforms, Java provides the "window" (or middleware?) to this new independently developed software... software developed to run through Java on any computer.

Would this be a fair comparison to OCAP?


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> Hold on a second, okay Smark?
> 
> DT- Consider the Microsoft Word example. Can Microsoft put DRM on it's word format and use the DMCA to say that competitors like OpenOffice may not read it's file format because they would be breaking their DRM?


Nikon rcently hit this issue in a way. Some of the data (white balance) in the RAW format is encrypted in the newer gen cameras (D50/D200, etc).

Of course, the camera owner owns the pictures.

http://photoshopnews.com/?p=226

http://forums.dpreview.com/forums/read.asp?forum=1034&message=14311231

Yes, there is an SDK for "authorized developers"

Please also remember (because Lexmark learned this lesson from the Sixth Circuit), a company CANNOT rely on DMCA soley for anti-competitive purposes.

http://lawgeek.typepad.com/04a0364p-06.pdf
"If we were to adopt Lexmark's reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures "for the purpose" of pirating works protected by the copyright statute."

And no, while I can read the law just fine, when you get to items like checksum, I get a little lost. The question of "primary purpose" is somewhat clear though.

You should also differentiate between: "pseudo vertical monopoly fiefdoms- whatever. It's anti competitive behavior" and conducting business. Should DVD or Blu Ray or 802.11n be considered "anti-competitive"? WHY SHOULD we force Apple to license FairPlay? Companies are meant to COMPETE. Obviously, since Sherman, we draw some specific lines and Lexmark is another but OPEN EVERYTHING seems to be anti-innovation. Barring somewhat obvious attempts, like Lexmark, I tend to believe the market is capable of sorting things out. Apple might "own" the downloadable music market now but market share can shift rapidly and there is substantial resources behind the competition (Samsung, Sony, Microsoft, Yahoo, etc.). Apple can make a legitmate case for Fairplay's existance (it falls SQUARELY under the primary purpose reading) and in terms of NOT licensing it out, that's it's own choice. We've seen plenty of examples where not widely licensing eventually hurts and some where it works just fine. Again, the market tends to pick its winners and those who win might not even stay on top all that long (where IS Lotus 123?).

Then again, I don't like Sonic's DVD burning. Perhaps Tivo should be forced to allow me to use any DVD burn software I would like.

_ITV


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> There is an often commented on evolution from classic monopolistic practices. People can say: A is not a monopoly because there is alternative product B. But this dodge is still very effective because if you buy into A or B, you are locked in because A only works with A compatible hardware, and after you have bought enough A compatible things, there is no way you can afford to switch to B. Call them whatever you want, pseudo vertical monopoly fiefdoms- whatever. It's anti competitive behavior.


Correct ... "A is not a monopoly because there is alternative B" is _not_ valid. Just because there is some competitor ... somewhere ... that (kindof) competes with Company A ... well, that doesn't prevent Company A from being declared a monopoly and the government acting accordingly.

On the other hand ... declaring "pseudo monopoly" or "anti competitive behavior" and therefore bad or illegal or wrong is also invalid.

"Monopolistic practices" absent of a monopoly is ... well ... business as usual.

Apple can use their OS or hardware or DRM or whatever to leverage other products. The courts didn't find that _no one_ can use an OS to leverage other products. They found that "Microsoft's dominance of the personal computer operating systems market constituted a monopoly" ... and therefor the government could make a legitimate anti-trust case and seek the corrective actions it felt neccessary.

Absent of a monopoly ... if you use one product to leverage another ... well, you take the good with the bad. Apple uses the success of the iPod to leverage iMusic. Ok ... but on the other hand that potentially limits the success of iMusic and iPod. If Apple has a monopoly on portable music players, or on-line music distribution, or content ... well, that leverage isn't allowable. But if they don't have a monopoly ... there's nothing wrong with them choosing to leverage a popular product to break in to new markets.

OTOH, if they choose interoperability and openess as a way to leverage their products ... that's fine too.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> DT- Consider the Microsoft Word example. Can Microsoft put DRM on it's word format and use the DMCA to say that competitors like OpenOffice may not read it's file format because they would be breaking their DRM?


Just to get back to this ...

If you consider "Microsoft's dominance of the personal computer operating systems market constitute(s) a monopoly" ... and don't consider them to have a monopoly on word processors ...

In that case ...
Microsoft CAN encrypt Word files in a Word-specific format only editable / openable / whatever by Word ... however, they CAN NOT encrypt Word files in a format that is only readable by their operating system. That would be using their monopoly (OS) to leverage another product (word processor).

If you also considered them to have a monopoly on word processors ... in that case they would be subject to anti-trust measures which COULD include forcing them to use a "standard readable unencrypted" format. Then again, the government could come up with some other suitable anti-trust measure ... like braking up the company into a "Word Processing" group and a "DRM" group.


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> Yes ... but do we _force_ that divide? Microsoft _can't_ encrypt Encarta data so that only the Encarta program can read it? Microsoft can't hand out free Encarta DVDs and pay for it by embedding liked adverts that the Encarta program respects? Microsoft _must_ use plain-text for it's content so other programs can use it? If I am writing a new word processing program ... I _must_ save the files in a format that Microsoft and WordPerfect (whoever owns them now) can use and import/edit if they want? It's probably in my benefit to do so ... but maybe I'm Adobe with a slightly different take on the model. I want to give away a viewer and only charge for the editor. That should be illegal? Adobe should be _forced_ to let anyone make a pdf editor?


 Whether you directly profit from the sale of an application is immaterial. That you derive profit in some way due to the application is sufficient.

For the purpose of this segment of the discussion, the analog of the Microsoft OS is the CableCo servers and their APIs. The analog of Microsoft SQL server is OCAP. Simply because the transport uses a coax cable in one case, and occurs on the same machine in the other is immaterial.

From a layman's perspective, an OS does not broadcast data, but in actual fact there is a steady bidirectional stream of data between the application and the system. What Oracle was objecting to was the fact that certain protocols and data were not being documented that SQL server was benefiting from. And the government agreed that this is not permissible.

CableCo's want to be in the position of controlling navigation software. It is irrelevant whether they profit directly from OCAP's distribution- they may derive profit as you suggest through advertising revenue. They want to use dominance in content distribution to leverage themselves into a position of dominating navigation software.

My understanding is that if you support Cablecard2.0 OCAP, you MUST support forced downloads of software from the headend. You have no choice in the matter. If you are not cablecard2.0 compliant the cableco doesn't have to send you switched channels, VOD or PPV. If the Cableco wants to replace all the navigation software in your OCAP machine, they can. So if Oracle "chooses" to implement on Windows, and using windows means that the OS can force download of SQL Server and even erase Oracle software, is that permissible? What if it weren't MS. Say Apple has a position of market dominance in one some segment- are they immune from governmental objections of abuse of market dominance? Could they leverage their dominance in public schools to lock out competitors to educational software they wish to sell?

Carterphone said that everyone could have access to data on the phone network. So would it have been permissible for the phone company to say fine- when you get access to voice data, it will be in a format that will require behavior along with the audio. For example, prior to being connected, the handset would be required to run a program that would play an advertisement to which the customer could respond via keys on their handset?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Whether you directly profit from the sale of an application is immaterial. That you derive profit in some way due to the application is sufficient.


And you make absolutely no distinction between Microsoft using their OS to leverage other products ... and Apple using theirs to do likewise ... or me coming out with my own new operating system doing likewise?

Microsoft ... Apple ... me ... all the same. None of us can write an OS and then use it to leverage other products? That type of behavior is automatically a "pseudo monopoly" and "anti competitive behavior" and can't be allowed ...

No matter what the OS market is and whether any of us (Microsoft, Apple, and me) has an actual monopoly or not? The same rules apply to us all?

Is this what you're saying?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> What if it weren't MS. Say Apple has a position of market dominance in one some segment- are they immune from governmental objections of abuse of market dominance? Could they leverage their dominance in public schools to lock out competitors to educational software they wish to sell?


Woops ... sorry ... didn't see this.

Ok ... so you _do_ differentiate between Microsoft and Apple (and me).

"Market dominance" ... Seems like a rather weak / vague test.

As you pointed out earlier ... having a competitor with %0.001 market share does not automatically mean you are NOT a monopoly ... doesn't automatically preclude the government from taking anti-trust measures.

Then again ... even a 100% market share doesn't automatically equate to a monopoly either. If I make / sell _______ and no one else chooses to make / sell _______ ... well, that doesn't automatically MAKE me a monopoly either (even if I have a 100% market share).

Hmmm ... so there's a fuzzy line / distinction in there somewhere ... and it's not just related to "market share" or "market dominance".

This is coming down to whether cable (and telcos and dbs) truly enjoy a "monopoly" or not ... and if so ... exactly _what_ market they have monopolized ...


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> ...No matter what the OS market is and whether any of us (Microsoft, Apple, and me) has an actual monopoly or not? The same rules apply to us all?
> 
> Is this what you're saying?


I am saying that the law has yet to catch up with the notion of how a network of technology dependencies effectively create a local monopoly condition.


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> My understanding is that if you support Cablecard2.0 OCAP, you MUST support forced downloads of software from the headend. You have no choice in the matter. If you are not cablecard2.0 compliant the cableco doesn't have to send you switched channels, VOD or PPV. If the Cableco wants to replace all the navigation software in your OCAP machine, they can. So if Oracle "chooses" to implement on Windows, and using windows means that the OS can force download of SQL Server and even erase Oracle software, is that permissible? What if it weren't MS. Say Apple has a position of market dominance in one some segment- are they immune from governmental objections of abuse of market dominance? Could they leverage their dominance in public schools to lock out competitors to educational software they wish to sell?


I could be wrong on this, but your example is not my understanding of OCAP at all, but more like what I said further up in my reply... That OCAP is "middleware" making it possible for the interface from a stand-alone CE box run and communicate with what comes from the cable companies... similar to how Java can run programs independent of platform (but the platform itself must support and run Java).

Using certain "basics" Java can get information from my local operating system, because that OS (whether Apple or Windows) can communicate with Java. Then the program running on the Java platform can utilize that data, but run itself independent of the OS.

So running Java wouldn't illiminate (or delete) all the basics of the platform itself -- it just makes it possible for me, as a developer, to make any interface I want communicate with the resident operating system.

To translate to Cable... on their side they provide VOD or PPV or Guide Data and there is a basic "OCAP format" they follow. On the CE side, I develop my navigation system to be OCAP compatible. Now my navigation will run utilizing OCAP middleware and the "java" that makes is possible for my software to run, get information from and send information to Cable.

Maybe I'm totally wrong... or only partially right... but I don't see OCAP as "Windows" or "OS X" -- but more like the Java in the middle that lets me run my stand-alone developed software on either.

Thoughts?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I am saying that the law has yet to catch up with the notion of how a network of technology dependencies effectively create a local monopoly condition.


Oh my ... there's some buzzwords.

Ok, probably true. The law (and changes to it) often trails technology and innovation and other precursors neccesitating changes to the law.

Then again ... this is usually considered a good thing. Try as we might to pass laws that take into account every possible technology change in the next 100 years ... well, that's not going to happen.

Personally I would say that many (although no, probably not all) of our notions of monopoly and anti-trust are equally applicable whether you are looking at a physical product like oil and physical distribution ... or software and video and network technology ...

But anyway ...

So are you saying cable is _currently_ a "network of technology dependencies effectively creat(ing) a local monopoly condition"? Do all MVPDs (dbs, telco, etc) merit this special categorization? Or is it just cable's position in the plug-and-play negotiations and their "leveraging" that you are concerned with?

Or is it just comfortable (even cliche) to paint a picture of the "big bad cable monopoly"?

Like I said above ... alot of this (particular) part of the conversation is coming down to whether (or not) cable (and / or other MVPDs) is / are / have been / will be a "monopoly" ...

Fine ... well ... call the question what it is. "Is cable a monopoly"?

Not exactly a new question. Something that's been back and forth on these boards before. But ... there you have it. Nothing that new or exciting ...


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## Justin Thyme (Mar 29, 2005)

TiVoPhish said:


> So running Java wouldn't illiminate (or delete) all the basics of the platform itself -- it just makes it possible for me, as a developer, to make any interface I want communicate with the resident operating system.


Please consider page 194 of the cablecard 2.0 spec. You will see that Cablecard2.0 Apps MUST allow forced downloads of code images from the MSO.

As I said earlier, it is not the position in a hierarchy that determines whether a company is using an OS dominance strategy. If everyone is writing to your API, and you control the API, you have a successful OS strategy.


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## dt_dc (Jul 31, 2003)

TiVoPhish said:


> I could be wrong on this, but your example is not my understanding of OCAP at all (...)


I'd say you're both right. 

OCAP is like ... well, it's like a JVM. Or it's like middleware. Yes.

You've got a Sony box ... or a Samsung box ... or a Panasonic box ... doesn't matter.

If it's got an OCAP environment then anyone can (theoretically) write software to run in that environment (easily). You don't need to know box-specific commands for doing something like ... put a message on screen.

You write one "Hello World" OCAP app and it will run on any of those boxes (Sony, Samsung, Panasonic).

Ok great. Sounds good.

OCAP itself isn't really the issue.

One way to look at the issue is ...

1) There's no standard for how those OCAP apps talk to/from the cable headend

Sony (or Tivo or Microsoft) can't write their own apps that run in the OCAP environment and talk to the cable head-end. Take a VOD-ordering system. There's no 'standard' way to order VOD. Sony or Tivo or Microsoft could write a VOD-ordering app ... but ... it would be useless to provide directly to a consumer.

The only way Sony or Tivo or Microsoft can write a usefull VOD-ordering system is by first selling the cable company software that sits on their head-end. THEN their OCAP client-software knows how to talk to that software on the head-end and actually order and view VOD ...

So ... I can write a "Hello World" app with OCAP. Big deal. I can't really do (much) interesting on just the client box alone ...

more later


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> Hold on a second, okay Smark?
> 
> DT- Consider the Microsoft Word example. Can Microsoft put DRM on it's word format and use the DMCA to say that competitors like OpenOffice may not read it's file format because they would be breaking their DRM?


Apple can. Its called iTunes. Microsoft may be a special case which is not the best source of examples.

-----------------

In other words, ditto what dt_dc says:



dt_dc said:


> Correct ... "A is not a monopoly because there is alternative B" is _not_ valid. Just because there is some competitor ... somewhere ... that (kindof) competes with Company A ... well, that doesn't prevent Company A from being declared a monopoly and the government acting accordingly.
> 
> Apple can use their OS or hardware or DRM or whatever to leverage other products. The courts didn't find that _no one_ can use an OS to leverage other products. They found that "Microsoft's dominance of the personal computer operating systems market constituted a monopoly" ... and therefor the government could make a legitimate anti-trust case and seek the corrective actions it felt neccessary.


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## HDTiVo (Nov 27, 2002)

interactiveTV said:


> Then again, I don't like Sonic's DVD burning. Perhaps Tivo should be forced to allow me to use any DVD burn software I would like.


In typical situations, where the parties don't have much power, the market tends to take care of the problem(s), such that the other side of the market (ie. the consumer) tends not to buy the product in sufficient quantities to make it worthwhile or onerous to the public to pursue the tying strategy.

If the product is particularly useful, other companies come out with competing alternatives that do a similar job, offering choices. Some of those choices will be just as proprietary as the original, but still will be in and of themselves choices. There is a tendency for there to eventually be a more open choice offered by a company, which then is likely to take off with the market, and force the original provider(s) to open up as well to meet the challenge.


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## HDTiVo (Nov 27, 2002)

dt_dc said:


> One way to look at the issue is ...
> 
> 1) There's no standard for how those OCAP apps talk to/from the cable headend
> 
> ...


I think this is really the meat of what is at stake in the process of defining all this as the cable cos and CE makers fight it out with the FCC in there too.

There is precedent in the classic analog cable world. Analog cable is open such that you can stick the wire into the TV and see unscrambled analog channels. If you want scrambled analog channels, or premium movie, or digital or PPV, you need a cable box between the wire and the TV. Changing/determining who has the power over each nugget in the modern digital cable world (like the VOD ordering system) involves working in relation to such old world precedent(s).


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## smark (Nov 20, 2002)

You'll all be pissed with DCAS won't you?


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## Justin Thyme (Mar 29, 2005)

Part of it is the Monopoly question. Where else can you get legal online access to commercial music that plays on the Apple iPod? Does iTunes not have a monopoly on such music? Realnetworks created some software so that they could sell commercial music that would play on the iPod. Within a month, Apple had updated iPod software so Rhapsody once again could not interoperate with their iPod product.

The other part of the monopoly question is the significant outlay from consumers that lock them into a particular network of interoperating technologies. The "Digital convergence" buzzword refers to a technology trend whereby devices can handle many different kinds of data and also interoperate with the family of devices that use the same interoperability protocols and data formats. Ok, sounds great except the complexity of these protocols effectively serves to create a lock out to competitors who by the time they figure out the protocols can be foiled by the provider changing the protocols by upgrading the software in the field.

So customer chooses Satellite service based on an attractive channel lineup. Later, the customer wants an HD DVR- they can only buy from the dbs company or their surrogate at a significant price. If they want a portable video player than can play content from Satellite, they can buy one (again for a nontrivial price). None of this equipment will interoperate with the Cableco or the competitor satellite company's gear. Maybe the portable video device is also a VOIP/ Cell phone...and so on and so forth. This connector conspiracy can extend to a large family of interoperating devices.

As for Ocap? I have an OCAP dvr so I can play the swiched channel video. Okay the MSO has to make money- it's their program and so they also embedded OCAP code to put in embedded advertisements for the video and they made it so that you can't play the video without the OCAP. Want to play it on a portable device? Well naturally you will need an OCAP interpreter, so they will have to apply for a Cablelabs compliance certificate too. Oh- woops- guess OCAP must be on my DVD player to burn it to disk, and on the phone that plays video, and so on and so forth.

If makers of cablecard hosts have the server APIs, then they don't need OCAP, and they don't need the MSO's bytecode. If the APIs for the interoperability between the devices are not public, then the entity that controls the apis can leverage themselves into any number of unrelated businesses. Note there could be 3 or 4 companies each doing the same strategy in a given geographic area, so it is not a typical local monopoly. But are geographic barriers the only ones that create the local monopolies? Customers are effectively trapped in these local fiefdoms. The cable service may be right there on the telephone pole but it may as well be a thousand miles away because the switching costs are so high. They'd have to sell their DVR, their portable video player, their VOIP phone, maybe their plasma screen, at a significant depreciation- all because the customer is a little irritated with the carrier jacking up the rates for the Extended basic package.

It is a much larger but similar situation as the school administrator- they have an alternative to Apple API BS with educational software- they can buy PCs and get the educational software they want. Like the Oracle database user, the office manager can buy Sun Machines to bypass the Microsoft advantage with non public APIs.

I am not waving the Open standards flag. These guys can do all the closed apis they want. They just have to make them public if this fiefdom principle is in effect.

I am not railing against vendor lock-out in general- although maybe ink jet cartridges are a little overpriced. Filling up a car with printer ink would cost about $175,000. And this is due to incorporation of "killer chips" which enforce incompatibility with aftermarket cartridges. If there should be a law against that- or whether it is illegal, that is a different subject.

I am not railing against big is bad, or America's love hate relationship with wildly successful companies.

Ok, that is the Monopoly part- Whether or not current anti-trust law and regulatory policy deals effectively with the interoperating fiefdom problem.

But that is not my only objection. The other has to do with MVPDs and what is required of them by the 1996 telecom act. When section 629 states that "multichannel video programming and other services" be available to from third party devices, does that mean that the third party only gets to provide the metal and silicon, but the MVPD gets to provide the rest of the mechanism?


dt_dc said:


> OCAP itself isn't really the issue.


I don't believe that. The only way that I can access a VOD show is through a mechanism which is written in OCAP bytecode dependent on OCAP libraries necessary to interact with the headend server. These mechanisms are provided by the MVPD and/or Cablelabs, so cablecard 2.0 is not proposing a third party mechanism, and so this is not in conformance with the 1996 Telecom act. The VOD program or switched channels are "a service", but the OCAP program is not "third party". If the MVPD provided the Server API used by the OCAP program, and the Cablecard unit was allowed to access it in the same manner as the MVPD program, then a third party mechanism could be built to access the service.

Where have I erred?


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> Part of it is the Monopoly question. Where else can you get legal online access to commercial music that plays on the Apple iPod? Does iTunes not have a monopoly on such music? Realnetworks created some software so that they could sell commercial music that would play on the iPod. Within a month, Apple had updated iPod software so Rhapsody once again could not interoperate with their iPod product.
> 
> The other part of the monopoly question is the significant outlay from consumers that lock then into a particular network of interoperating technologies. The "Digital convergence" buzzword refers to a technology trend whereby devices can handle many different kinds of data and also interoperate with the family of devices that use the same interoperability protocols and data formats. Ok. You get a Satellite service. If you want an HD DVR, you can only buy from one company or their surrogate. If you want a portable video player than can play content from your Satellite, you can buy one, but it won't interoperate with the Cableco or the competitor satellite company's gear. Maybe the portable video device is also a VOIP/ Cell phone.... This connector conspiracy can extend to a large family of interoperating devices. As for Ocap? I have an OCAP dvr and so to play the video legally with embedded advertisements, on the portable device, I have to have OCAP there too. Oh- woops- has to be on my phone too if I want to play it there, and oh- must be on my DVD player to burn it to disk.
> 
> If the APIs for the interoperability are closed, then the entity that controls the apis can leverage themselves into any number of unrelated businesses. Note there could be 3 or 4 companies each doing the same strategy in a given geographic area, so it is not a typical local monopoly. But are geographic barriers the only ones that create the local monopolies? Customers are effectively trapped in these local fiefdoms. The cable service may be right there on the telephone pole but it may as well be a thousand miles away because the switching costs are so high. They'd have to sell their DVR, their portable video player, their VOIP phone, maybe their plasma screen- all because are a little irritated with the carrier jacking up the rates for the Extended basic package.


All you have described here is the fact that my car door only fits my car. That means I can't use it with any other car I might buy, AND the corollary: if I bust my door I have to buy a new one from the "creeps" that made my car.



Justin Thyme said:


> But that is not my only objection. The other has to do with MVPDs and what is required of them by the 1996 telecom act. When section 629 states that "multichannel video programming and other services" be available to from third party devices, does that mean that the third party only gets to provide the metal and silicon, but the MVPD gets to provide the rest of the mechanism?
> I don't believe that. The only way that I can access a VOD show is through a mechanism which is written in OCAP bytecode dependent on OCAP libraries necessary to interact with the headend server. These mechanisms are provided by the MVPD and/or Cablelabs, so cablecard 2.0 is not proposing a third party mechanism, and so this is not in conformance with the 1996 Telecom act. The VOD program or switched channels are "a service", but the OCAP program is not "third party". If the MVPD provided the Server API used by the OCAP program, and the Cablecard unit was allowed to access it in the same manner as the MVPD program, then a third party mechanism could be built to access the service.


Here you define the battle ground that exists between the parties: what set of rules satisfies the wording of the statute? That's a war between Cable and CE with the FCC as referee. I say wording not meaning, because each party will say the wording has a different meaning. So the solution is a set of rules which all parties (esp. FCC) believes fits the wording and gives them each a satisfactory negotiated share of the spoils.

Taking VOD specifically, VOD is similar to the type of things that under the rules of the analog cable world would have required a cable box. That is precedent, and therefore has some weight. However, many years of analog also was a learning experience and Congress modified the law to open the door for changes in the (next) digital world. Without the "Act" it would be hard not to think that VOD in digital cable would carry over the cable box type requirement (ie. PPV) of analog. Either way there would still be a battle; this part of the Act gives more weapons to CE than otherwise would be the case.

The early part of this thread outlined much of what is at stake, what the different parties interests are and how those interest complement and conflict. What is interesting ahead is talking about the signficance of those interests, the strategies being used by the parties to battle each other, what direction the game is going (what's been won/lost already, what movement an event causes in the interim balance, what might be some reasonable outcomes to expect in the end game...)


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## Justin Thyme (Mar 29, 2005)

smark said:


> You'll all be pissed with DCAS won't you?


Digital certificates was a technology that was available in 1996 when the telecom act was put into law. There will always be more attractive security solutions by the time that a specification is finally agreed to by all parties. Full compliance with the 1996 law must be reached promptly, and should do so building on existing cablecard standard, not on some back-to-square-one proposal. For the next generation, the carriers are free to make such proposals when the process for the next generation begins.

Allowing further delays due to this proposal basically says to the carriers that they can delay compliance in perpetuity, because there will always be a "new technology" card to play.


smark said:


> Key point though is that the content is ours.


You mean the movie that played on the cable channel? As has been mentioned many times by legal experts here- no it isn't ours. We have the right to keep a copy for our own viewing, like we can copy a page out of an encyclopedia brittannica. But don't "own" the content in the sense we can go out and publish a copy of the encyclopedia ourselves.


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## Justin Thyme (Mar 29, 2005)

HDTiVo said:


> All you have described here is the fact that my car door only fits my car. That means I can't use it with any other car I might buy, AND the corollary: if I bust my door I have to buy a new one from the "creeps" that made my car.


Actually the automotive aftermarket parts industry is a significant component of the US economy at about $185 billion /year. There is ample motivation of producers to lock out competitors, but ample motivation amongst legislators to see that this market segment is competitive. As ITV noted above in quoted from the Lexmark decision:


Sixth Circuit Lexmark decision said:


> "If we were to adopt Lexmark's reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures "for the purpose" of pirating works protected by the copyright statute."


So enginering for interoperability is a very old principle and reverse engineering of such automotive parts and making identicals is in most cases recognized as a legitimate business.

Reverse engineering a physical part is one thing- reverse engineering software can be exceptionally difficult especially if the author is deliberately attempting to confuse observers. Even when interoperable code is produced, due to internet connectivity, the apis on which they are based and can be easily updated in the field nullifying all the work of the third party vendor. DT-DC seems to feel "notions of monopoly and anti-trust are equally applicable" to software as they are physical products. I very skeptical that legal protections designed to assure competitive production of physical objects designed to be interoperable are sufficient to protect similar producers in the software realm. I not only believe there are inadequate legal mechanisms to deal with the abuses these companies are subjected to, but the damage done by such excesses can be fatal to a company long before a legal remedy may be applied.


HDTiVo said:


> what might be some reasonable outcomes to expect in the end game...)


 
 The FCC's authority is gutted- no actions can be anticipatory in nature, but only punitive after harm to consumer has been proven, for which there were no other remedies. Cableco's immediately terminate cablecard support, and suitable apologies issued.
Cablecard 2.0 is mandated- Cableco Adware is propagated to your dvr, your palmtop, laptop, phone... anything that might play a show with OCAP code in it. Hey- it's Java- that must mean it's open! Yeah! Adware and no FF is great!
Server side APIs for VOD, PPV and shifted channels are agreed on after 4 years of wrangling, and FCC threat of action against further CableCo foot dragging.
New wave of regulatory theory takes hold in Washington. Congress requires immediate compliance of all carriers to 1996 Telecom law, all carriers must license all necessary access technology to any third party vendor of navigational devices, and FCC is authorized to take punitive measures to force compliance if development of third party navigation devices is being hampered by the carriers in ways not anticipated by statute.


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## TiVoPhish (Mar 12, 2003)

First on OCAP...

I hear what you are saying dt_dc... but I guess that wasn't how I understood it. I thought OCAP was the middleware itself... so if Cable runs or writes (or however you'd term it) their headend to be compatible with OCAP and then Sony or Microsoft or TiVo write their software with the OCAP basic commands ni place, OCAP makes it possible for the two systems (CE & Cable) to communicate with one another. Just like Java does independent of Operating System.

OCAP isn't cable's "OS" or the CE box "OS"... it is the Java in between that makes back and forth communication possible (if both players follow the OCAP "language" or commands).

Maybe the "standards" haven't been finalized yet, but is what I describe above a fair analogy or am I way off base?



Justin Thyme said:


> Part of it is the Monopoly question. Where else can you get legal online access to commercial music that plays on the Apple iPod? Does iTunes not have a monopoly on such music?


No. You can load any MP3 into your iPod, THROUGH iTunes, which is FREE. You can buy or steal your MP3s from wherever you like.



Justin Thyme said:


> Realnetworks created some software so that they could sell commercial music that would play on the iPod. Within a month, Apple had updated iPod software so Rhapsody once again could not interoperate with their iPod product.


Don't know anything about that, but I do know standard MP3 are perfectly loadable onto an iPod, no matter where they come from.

What your iPod WON'T do is connect to any old software application directly. You need iTunes as the "middleman" to load up your iPod... and iTunes is free.

Now why is it that Apple doesn't want the iPod they manufacture interfacing with any old software? Is it JUST because they want to lock you into using iTunes (on either Mac or Windows), so you're more likely to buy content through them? Sure. But are there other reasonable answers to the question?

TiVo doesn't has the ability to download it's guide data from anyone does it? Will it function properly without a TiVo subscription? Has TiVo not locked me into using THEIR subscription service when I buy a TiVo box? Will I get messages from anyone other than them? Can I copy recordings to my PC with anything other than TiVo-to-Go (without "hacking" or "jumping through hoops")? Can I do remote scheduling with any other guide service TiVo hasn't made a proper relationship with, supported directly by TiVo? TiVo is made to work with the TiVo service and software (or companies they have formal relationships with) -- iPod is made to work with iTunes software. Do you see these two things as so inherently different?


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## Justin Thyme (Mar 29, 2005)

The question was:

Where else can you get legal online access to commercial music that plays on the Apple iPod?

The answer- you can't buy any online commercial music from anyone but Apple.

MP3s are irrelevant. They have no DRM, therefore RealNetworks or any other online store can't sell commercial music in that form. 

If Tivo enjoys a local fiefdom as I described where dominance in one product category was being used to leverage into an different product category, then they would be subject to the same requirement for public disclosure of protocols.

OCAP can be described as middleware. Netscape offered middleware too, as an OS strategy. The important thing to an OS strategy is not whether you actually own the lowest level API (the OS itelf), or whether it is some middle (middleware) layer like Java, the CORBA object model, or to a cross platform application layer. You have succeeded in an OS strategy if you can get everyone to write to your API and not that of another. What happens next is a network effect- content forces more OCAP boxes, more boxes force more OCAP content. Then because people want to see the video on other devices, it spreads outside of the Headend/ client pair. Video bundled with OCAP behavior would require propagation of the OCAP environment to devices not connected to the Cableco network, such as portable video players, etc. Ocap content begets Ocap boxes begeets Ocap portable devices. OCAP everywhere. Cableco Adware everwhere. Yay!

Naturally, MS has its own standard for behavior to be combined with video based on XML and javascript. The pitch they no doubt made to DirecTv was- use iHD, and you will be able to run on HD-DVD, pocket PC phones, palmtops, MCE, laptops, whatever- all with DRM and your Adware preserved.

CableLabs is not the only one playing this game.


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> Part of it is the Monopoly question. Where else can you get legal online access to commercial music that plays on the Apple iPod? Does iTunes not have a monopoly on such music? Realnetworks created some software so that they could sell commercial music that would play on the iPod. Within a month, Apple had updated iPod software so Rhapsody once again could not interoperate with their iPod product.
> ...
> 
> Where have I erred?


 Right there. Where else can you get legal online access to commercial music? Plenty of places. That plays on the Apple iPod is not relevant. Apple in no way has a monopoly. Apple's implementation of Fairplay falls SQUARELY under the DMCA's primary purpose. So far, we're fine. So, Apple refuses to LICENSE it's DRM out. So what?

You are defining a PRODUCT as a MARKET. You are asking whether Apple has a monopoly on iTunes music for its own iPods. You can't do that. It doesn't work. The iPod is NOT the market. It might have substantial market share (right now) but it is NOT the market for legal online commerical music. The market includes many other players with their own pricing, own access to the same (or even music exclusive which iTunes' store does not have) content.

You use the term "monopoly" where you mean a closed system or a proprietary system. Merely being proprietary does NOT make it a monopoly. Substantial supply side substitution exists within the mp3 industry. Or the IM industry (how many times did AOL lay the "close the hole" game with Trillian and other others?).

Does the fact that I can ONLY buy Gillete blades for my Gillete razor or Oral-B toothbrush heads to work with my Oral-B toothbrush constitute a monopoly in your opinion (avoiding the DRM issue here)? Where else can I get access to toothbrush heads but Oral-B? Same question.

You seem to automatically refer to any closed system as a monopoly. While size, pricing power, and anti-competitive behavior MAY make such a system a monopoly, the mere existance of a closed system does not make it so.

I don't know the ins and outs of OCAP, but referring to Apple's iTunes store as the exclusive provider for iPods as a monopoly would be incorrect. With United States vs. Grinnel Corporation we would need to show that has the ability to exclude competitors and control pricing. Be careful, that's NOT within the iTunes/iPod system but within the legal downloadable music MARKET. Apple can do neither.

_ITV


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## Justin Thyme (Mar 29, 2005)

Thanks for the new case reference and by the way your earlier note, which you may have seen I have been very indirectly grappling with. As you can see I attempted to pick up some concepts from the Lexmark case you referenced.

First, a small correction.


itv said:


> You seem to automatically refer to any closed system as a monopoly.


I keep telling DT-DC and I'll keep telling you. I am not waving the Open standards banner. People can have closed apis all they want. They can change them as they deam necessary for new innovations. No committees. I only argue that the law require them to be made public- "the apis" being the api specification including protocols, formats and semantics necessary for interoperability between products in different markets.

OK, now to the main course. Say I have a Volkswagen and can only buy replacement parts from VW because the parts all have RFID lock out chips that if absent inform the Car CPU that non approved, possibly substandard and dangerous parts have been used, then the car should not allow itself to be started.

VW isn't being a dummy- in this hypothetical case they want to have ALL of the aftermarket business, they don't want to compete in that rat race of 187 Billion dollars in revenue aftermarket businesses.

So would this be immune from antitrust action because, as you could in this case object, there is a huge aftermarket auto parts business?

Isn't is just a little bit relevant than none of those parts will work on my VW?

So why is it relevant that there is a huge online music business? If none of their commercial music will play on my iPod, it is not a market that offers me anything. The only market I can buy legal copies of online commercial music is controled by a single vendor, and it is iTMS (Apple). A monopoly.


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## dt_dc (Jul 31, 2003)

dt_dc said:


> OCAP itself isn't really the issue.





Justin Thyme said:


> I don't believe that.
> (...)
> Where have I erred?


A little miscommunication here.

OCAP itself is not the issue / problem.

If Microsoft, in their licensing agreement, forced you to sacrifice two cows in order to use .NET ... would PETA have a problem with the technology (.NET) or the specific licensing of it (Microsoft)?

OCAP itself is not the issue / problem.

You paint a picture of OCAP not only allowing, but requiring this "Fiefdom" approach ... or the "VM Style" as I phrased it above.

It doesn't. OCAP allows for the "fiefdom" ... but then again so do other methods / technologies.

OCAP could also be used to allow for the "API" approach ... the "anti-fiefdom" approach that you would like to see.

OCAP itself is not the issue / problem.

The issue is the specific licensing / implementation of OCAP ... and / or a lack of additional standards. The CEA even talks about "a mutually agreed version of OCAP" which they would find acceptable (instead of what is currently proposed by the NCTA).

For example:
1) All OCAP clients _could_ communicate in a published, standardized way with the headend
2) All OCAP software _could_ expose a published, standardized API for other software (OCAP or otherwise) on the box to use
3) The licensing agreement _could_ be changed to allow other non-cable provided software (OCAP or otherwise) to better share resources

I say could above because ... while OCAP does not prevent any of these ... the specific implemtation / licensing by CableLabs does.

OCAP itself is not the issue / problem ... it's the specific implemtation / licensing of it that's posing a problem.


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## Justin Thyme (Mar 29, 2005)

Justin Thyme said:


> If the Cableco wants to replace all the navigation software in your OCAP machine, they can. So if Oracle "chooses" to implement on Windows, and using windows means that the OS can force download of SQL Server and even erase Oracle software, is that permissible?


Just a heads up on this statement. I have reason to believe that my picture of OCAP operation above is incorrect. While the CC2.0 spec is pretty clear that the CC device must allow the MSO to make any downloads it wishes to force on the device, and it is clear that the only way to get VOD/ PPV stuff is through OCAP code downloaded from the head, it is not clear to me how much supervisory control the device must surrender to the OCAP subsystem.

Don'tcha just love that "function not allowed" error message when you try to FF through the commercials at the start of a DVD?

I tell you, you are going to love OCAP, and what the studios do with the Java support on Blu-Ray (BD-J) [or iHD on HD DVDs if you think it will go that way]. The really nifty things is that now, they not only make sure you watch their adverts, but they can run placement ads with DVDs- Yeah! Coors commercials during my movies... and even better- I can't FF them... [email protected]#@. Oh and they can track your viewing patterns and upload them to an arbitrary location on the net! Wow- wow, a marketing weasel's wet dream!

Yay! uuumm it is Java right? And Java= Open which equals good for me, right?


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> You paint a picture of OCAP not only allowing, but requiring this "Fiefdom" approach ... or the "VM Style" as I phrased it above.
> 
> It doesn't. OCAP allows for the "fiefdom" ... but then again so do other methods / technologies.
> 
> ...


The missing API is one issue. If a server side API is available, then VOD/PPV/switched broadcasts would be possible with or without OCAP, so in that sense, the virtual machine (VM) would not be the issue for accessing those particular functions. **

But whether there is a VM controlled by CableLabs that is required on all CC devices is to put it mildly a gigantic issue. I don't think you understand what I am saying about OS wars. If you think Cable thinks the VM is not central to their strategy, then take a look again at what Malone said. If you control your OS, then you control your fate, and you can extend your control outwards. Whether or not CC2.0 makes mandatory a particular language- whatever it is- OCAP, .net, JAVA- is of crucial significance.

The Microsoft mantra is that Applications sell the OS, the OS sells the Applications. Having Word and Excel on your desktop means you want it on your palmtop. Having a show that happens to be MPEG2+OCAP doesn't mean you can just strip the OCAP and play the Mpeg2. Consumers will want personal video player devices that play this data type. But to do it, the VM is necessarily propagated to the PVP. Network effect. The more the content, the more the demand for the VM in hardware, the more the availability of the VM in hardware, the more popular the format and the more everyone moves to the format. Snowball effect- natural monopoly- the whole enchilada.

Take a look at what Microsoft is doing. All those phones, portable media players, Vista- they are all .NET platforms.

Still think that the OCAP VM is not the issue?

I'm not saying that an interactive language is bad, or arguing in favor of competitor schemes like iHD. I am saying that if within the Cablecard process, you hand the control of the required language to a particular company or cartel of companies, you have initiated a government sponsored monopoly power position.

**BTW- The CC2.- spec is pretty slimey about how it presents the OCAP as mandatory situation. It states that OCAP "may" be used to access VOD. That sounds very open minded... not "Must". But the specs say nothing about any other alternative mechanism as you point out, so guess what. That is defacto the way you MUST do it. I find it very troubling when I must read a spec as a document with hidden agendas. It is so perverse to have to be on guard that a spec might be intentionally misleading on some technical point. So you need tech guys with political feelers adjusted to max sensitivity. With so much at stake, it is not surprizing..


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> The question was:
> 
> Where else can you get legal online access to commercial music that plays on the Apple iPod?
> 
> ...


www.emusic.com

Don't like their selection? Doesn't matter... it still makes your statement incorrect. You CAN buy music online in MP3 format that will work with your iPod.

On top of that, any music you can buy online that you can burn to CD (as either an MP3 CD or regular music CD) can be loaded into your itunes, and then, onto your iPod.

Because Apple chooses to use DRM that makes iTunes and iPod uniquely compatible with one another (with music purchased directly through iTunes) does not make it a monopolistic practice. You have choices. Get a creative Zen and buy music from Rhapsody. Buy a pocket DJ and subscribe to Napster.



Justin Thyme said:


> OCAP can be described as middleware. Netscape offered middleware too, as an OS strategy. The important thing to an OS strategy is not whether you actually own the lowest level API (the OS itelf), or whether it is some middle (middleware) layer like Java, the CORBA object model, or to a cross platform application layer. You have succeeded in an OS strategy if you can get everyone to write to your API and not that of another. What happens next is a network effect- content forces more OCAP boxes, more boxes force more OCAP content. Then because people want to see the video on other devices, it spreads outside of the Headend/ client pair. Video bundled with OCAP behavior would require propagation of the OCAP environment to devices not connected to the Cableco network, such as portable video players, etc. Ocap content begets Ocap boxes begeets Ocap portable devices. OCAP everywhere. Cableco Adware everwhere. Yay!


Could be. Could also be just like Java, which does nothing of the sort. Yes, I see a Java Sun Systems logo on the window the ap loads into, but nothing more.



Justin Thyme said:


> Naturally, MS has its own standard for behavior to be combined with video based on XML and javascript. The pitch they no doubt made to DirecTv was- use iHD, and you will be able to run on HD-DVD, pocket PC phones, palmtops, MCE, laptops, whatever- all with DRM and your Adware preserved.
> 
> CableLabs is not the only one playing this game.


No kidding, and no amount of fighting it is going to change it, other than in very superficial ways.



Justin Thyme said:


> OK, now to the main course. Say I have a Volkswagen and can only buy replacement parts from VW because the parts all have RFID lock out chips that if absent inform the Car CPU that non approved, possibly substandard and dangerous parts have been used, then the car should not allow itself to be started....
> So would this be immune from antitrust action because, as you could in this case object, there is a huge aftermarket auto parts business?


Follow your own argument completely through and apply it to OCAP.

Cars all have computers for diagnosis (ECUs, Engine-Control-Units). Car manufacturers must follow a communication standard (CAN), and auto-shops must have the equipment that plugs in and can interface with the car's computer, regardless of manufacturer. There must be input and output capability. I can take my car to Firestone and whether it's a Toyota or a GM doesn't matter... it can be diagnosed and fixed.

Now admittedly, I'm not an auto mechanic, so for all I know every autoshop buys the same exact software for diagnosing cars. But either way, I'm trying to illustrate all the ins and outs of your arguments. In order for there to be aftermarket parts and devices that work with any manufactured item (be it a computer or a car), there are specifications that must be met and followed. Those standards are dictated by a variety of sources for a variety of reasons (sometimes good reasons, sometimes not). In my example above regarding ECUs, lets just assume for a second that an OCAP-like system is the middleware in between the car individual computer and the auto-shops diagnosis equipment -- do you see how this can benefit the consumer as well?

I can be an aftermarket manufacturer of volkwagen parts, but I still need to follow standards and my part must still be approved. I don't just fly by the seat of my pants and make any old thing I want. My part (depending on what it is) must also interface with volkwagen's ECU and provide input and output data. My part must be safe, and most of all, must actually do what it is supposed to. I can't decide that my distributor cap must also percolate coffee and dispense said hot tastee coffee into a cup holder inside the car. It must still function as a distributor cap.

Okay, so I'm off on a tangent now... let me try to come back to the original point.

Apple provides iTunes for free as an interface medium to your iPod and/or as a music store. There are several ways to get songs into iTunes including buying them through the iTunes music store. If none of those means meet your needs, it is within your right to go to music match or rhapsody to buy your music, neither of which will interface with your iPod. But your Creative Zen won't interface with iTunes either. You're welcome to go to emusic.com for straight MP3s, and yes, the selection there is limited -- but it is the CONTENT PROVIDERS right to decide that they don't want to distribute their music through online stores that don't assure DRM.

If Apple made the only portable and was the only online retailer your argument would be a valid one. But they are neither. Geez, these days you can buy your music online from Walmart. When you buy your music there must be assurance that you can play the music you own -- and all current online retailers give you that. However, they do NOT have to assure you that you can play that music on a specific portable device. iPod is but only one way to play purchased music through iTunes among various methods... and all other various methods will interface with just about anything capable of a network connection (and quite a few other ways).

Apple has no obligation to license Fairplay out (just like the have no obligation to license out OS X). They own it, they can do what they like. DRM is here to stay, so the next option will be the RIAA gets involved and puts forth it's OWN "OCAP" -- ie., a DRM platform that is a required "must" for any music distributor. BUT, the RIAA is comprised of large corporations, and the general feeling about the RIAA sure hasn't been a good one (for consumers) -- so we'd essentially be having the same argument all over again, only the people you have a gripe with would be different.

Make another comparison if you like. Xbox plays Xbox games. Playstation plays Playstation games. Ninetendo plays Nintendo games. There are no expectations that will change, or that it's Sony's obligation to support a Microsoft gaming experience. Even TiVo is based on proprietary technology. I can't buy PSP movies and play them on anything but PSP.

There are NO simple answers that please everyone. I suspect the same is true of the "cable wars".

Wow, I really went on for a long time, didn't I


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> OK, now to the main course. Say I have a Volkswagen and can only buy replacement parts from VW because the parts all have RFID lock out chips that if absent inform the Car CPU that non approved, possibly substandard and dangerous parts have been used, then the car should not allow itself to be started.
> 
> VW isn't being a dummy- in this hypothetical case they want to have ALL of the aftermarket business, they don't want to compete in that rat race of 187 Billion dollars in revenue aftermarket businesses.
> 
> ...


OK, let's break this down.

First, you can't use the DMCA fore the sole purpose of excluding competition. Lexmark did. Apple doesn't. Apple's DRM (well, SOME flavor) is REQUIRED by the music companies to protect their content. Exactly on point with the DMCA and Lexmark. EXACTLY.

Secondly, please STOP referring to a vertical PRODUCT as monopoly. The Apple iPod exists in the mp3 player market. That MARKET has lots of competition. One FUNCTION of the iPod is the Fairplay DRM which works with the iTunes store. Again, that DRM is completely LEGAL. Is there adequate competition within the downloadable (legally) music market? Certainly.

Justin, you KEEP confusing PRODUCTS with MARKETS. I think it is because you see anti-competitive behavior within products and call these a "monopoly." They are NOT.

The car aftermarket industry isn't the best choice because of its history and -- specifically the fight between the insurance industry and the car makers' warranty side. As the owner of a car, I can put any part on it I wish. In order for that car to remain under warranty, however, it MUST meet certain specifications.

You didn't answer me on my razor and my toothbrush. Does Gillette have a "monopoly"? Does Oral-B?

You use the term "monopoly" when you see a closed, proprietary system. That isn't the case. Look at the MARKET (not the product) and, in brief, look for supply side substitution and pricing power.

The MARKET for MP3 players is huge and Apple is but one company -- with great market share in the US -- but the market itself offers many options. Same with the legally downloable music market.

I can't comment on OCAP because you guys have lost me on the complexities of what's what, but you shouldn't even think of the iPod as a monopoly. The only question in reference to the iPod is whether there is price fixing on the part of the record studios but that's not Apple, that's the music industry and it goes beyond Apple (to the subscription based services as well).

You need to look at broadly defined MARKETS. iPod is but a single product, it is NOT a market. You cannot call PRODUCTS a monopoly (unless they constitute the MARKET). And when I say broadly, substitution is not that broad (coal for oil is not a substitute). Within the MP3 player MARKET or the downloadable music MARKET, Apple in no way has a monopoly. You cannot label a product a monopoly. It makes no sense unless that product is the market, which this isn't and, in any case, you're still labelling the market, not the product.

You can still have anti-competitive behavior with a PRODUCT -- but that's not a monopoly. There are legal things companies can do to compete and things that are illegal. Apple's protection of its DRM can easily be construed as a security measure.

_ITV


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I'm not saying that an interactive language is bad


Well ... you seem to be ...


Justin Thyme said:


> Having a show that happens to be MPEG2+OCAP doesn't mean you can just strip the OCAP and play the Mpeg2. Consumers will want personal video player devices that play this data type. (...) Snowball effect- natural monopoly- the whole enchilada.





Justin Thyme said:


> The important thing to an OS strategy is not whether you actually own the lowest level API (the OS itelf), or whether it is some middle (middleware) layer like Java, the CORBA object model, or to a cross platform application layer. You have succeeded in an OS strategy if you can get everyone to write to your API and not that of another.


By these arguments ... MPEG2+_anything_ would seem to be an "OS Strategy". MPEG2+Java ... MPEG2+XML ... MPEG2+MetaData ... MPEG2+_whatever_.

If HSN wanted to embed some "click thumbs-up to buy now" or Disney/CNN/ABC wanted to embed some poll "click thumbs-up for yes, thumbs-down for no" or ESPN wanted to enbed a "click thumbs-up for more info about this team / player" ...

If any of this is accomplished via MPEG2+_anything_ ... that would seem to meet your definition of an "OS Strategy". After all ... start moving that content around the house onto other devices ... consumers will want that functionality. MPEG2+Java ... you're forcing your JVM and APIs onto other devices. MPEG2+XML ... you're forcing other products to respond to that XML in a certain way (which is the same as an API).

Any way for ESPN to distribute a "click thumbs-up for more info about this team / player" along with their broadcast that does _not_ meet your definition of an "OS Strategy"?


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## Justin Thyme (Mar 29, 2005)

interactiveTV said:


> You didn't answer me on my razor and my toothbrush. Does Gillette have a "monopoly"? Does Oral-B?


 Sorry- I don't understand why this is an issue. From what I understand, it is legal for me to reverse engineer the way the handle connects to the blade and I can sell my own blades. There may not be much of a business there, so people instead just make their own blade/handle. But there is a business in aftermarket parts. And lots of companies do make legitimate high quality aftermarket parts that work as well or better than the Car manufacturer's parts.

Perhaps I am confused about markets. Say I have an iPod and I walk into a market but I can't buy any music in the top 500. Let's face it- a store that can't offfer more than a few bands in the top 100 or even 1000 offers no competition.

That's what the non iTms "market" is to an iPod owner. A market I have to walk out of because it offers me nothing. There is only one place I can go. That makes it a monopoly position.

Apple chose not to license FairPlay. That's fine. Apple chose not to use any of a half dozen other DRMs to use alongside Fairplay. That's fine. But those two decisions makes the online commercial music market a completely separate one from the rest of the online music market. Apple whether intentionally or not  has a monopoly position at their iTms store.



interactiveTV said:


> You cannot call PRODUCTS a monopoly (unless they constitute the MARKET). And when I say broadly, substitution is not that broad (coal for oil is not a substitute). Within the MP3 player MARKET or the downloadable music MARKET, Apple in no way has a monopoly.


If I am buying online music, What substitute is there for a Beattles song that is not encoded in Fairplay? If I own an iPod, a song encoded in any other DRM is as good as Coal, when I need Fairplay Oil. I can't buy from the Coal Market.

So ok. It's a razor blade scheme. Can I duplicate the razor? Rhapsody tried. Lasted a few weeks. Sorry- Apple can mess up third party interoperably as quickly as competitors come out with new Fairplay lookalike schemes. And there is a limit I can go to both computationally and without infringing on Apple IP. Is it legal for them to use DRM in this way? Yeah yeah I get it. You indicated your answer- you will object- that is not it's sole purpose- your argument is plain. Whether or not they are justified in using DRM this way does not change the fact that these conditions effectively put the store in a monopoly position. It was Apple's choice not to license Fairplay, or support alternative DRMs on its iPod. If they want to keep the monopoly for online music sales, they can, but there ought to be a antitrust cost of that decision. If they want to add support for other DRMs or license Fairplay, then antitrust would not apply.

If you are going to reiterate that it is not a separate market, please provide some examples why. I have made the case why it is separate, you simply repeated that there was a whole big online music market. You have given me nothing I can use to change my perspective.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Sorry- I don't understand why this is an issue. From what I understand, it is legal for me to reverse engineer the way the handle connects to the blade and I can sell my own blades.


Not if the design of the blades (including the cartridge loading system) is covered by patent(s) ...

Otherwise Gillette's entire business model (give away the razors, sell the blades) would fall apart ...

Why exactly do you think Gillette comes out with a "new design" every time one of their patents expire?

You can make a blade that fits any of Gillette's older razors that for which their patents have expired. Pick up a box of M3 refills. There's over 40 patents on there ... one of which covers how the blade attaches to the handle. When that patent expires ... you can make / sell your own blades for the M3. Not before. Of course ... Gillette won't be selling the M3 by then.


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## Justin Thyme (Mar 29, 2005)

Right. Similarly the aftermarket car parts vendor cannot build a part with a GM patent on it. I am excepting monopolies sactioned by the government such as patent covered products. But my understanding of Lexmark was that if there were no other expresssions... oops that was talking about copyright, not patent protection so the merger rule does not apply. 

OK. So applying this to the given situation I only see a footnoted exception there. I cannot provide a workalike software module that interoperates with others if the module must rely on IP for which someone else has been granted a patent. Or are there larger implications I miss.


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> That's what the non iTms "market" is to an iPod owner. A market I have to walk out of because it offers me nothing. There is only one place I can go. That makes it a monopoly position.
> 
> ...
> If you are going to reiterate that it is not a separate market, please provide some examples why. I have made the case why it is separate, you simply repeated that there was a whole big online music market. You have given me nothing I can use to change my perspective.


Justin, your perspective is based on reptition. A "monopoly position" means nothing. You KEEP referring to a PRODUCT then calling it a monopoly.

If your position is that a PRODUCT can be a monopoly, then you are 100% right, no one can change your perspective. However, repeating it over and over won't make it correct.

You DON'T have one place to go. Buy a Samsung MP3 player. You keep CLOSING the discussion by referring to a single PRODUCT then calling it a "monopoly."

I keep telling you that referring to a product as monopoly makes no sense.

The substitution is a Samsung, Sony, etc MP3 player. The substitution is the other 20 online stores selling music.

If you define the mp3 player MARKET as "iPod" then the discussion makes no sense.

I keep repeating there is a WHOLE BIG ONLINE MUSIC MARKET because there is. You keep repeating that iPod has a monopoly. That completely IGNORES the definition of monopoly which refers to a MARKET and not to a PRODUCT.

Until you stop using iPod as a "monopoly" there isn't much to discuss. It makes no sense to do so. A "monopoly position" when referring to a closed system makes no sense. You are redefining terms.

I give you the correct and legal way to view monopoly, from the market perspective, from supply side substitution, from pricing power, and you ignore it.

Don't like iTunes? Buy another MP3 player from Samsung (which WON'T work with iTunes). Supply side substitution.

I tried to help you unconfuse yourself. Your usage of the word "monopoly" is not correct. You want to keep your "perspective" then keep it. It just makes for a silly conversation when you keep defining words in ways not used by anyone else.

Lexmark wasn't about "monopoly" but using the DMCA in an anti-competitive way. There is a MAJOR difference. By your definition, Lexmark had a "monopoly" and THAT IS NOT CORRECT.

_ITV


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## NotVeryWitty (Oct 3, 2003)

Justin, it sounds like you are arguing that Tivo has a monopoly on providing guide information to Tivo boxes, and the government should step in and force Tivo to open up their communications protocols to competitors.

Correct?


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## dt_dc (Jul 31, 2003)

TiVoPhish said:


> First on OCAP...
> 
> I hear what you are saying dt_dc... but I guess that wasn't how I understood it. I thought OCAP was the middleware itself... so if Cable runs or writes (or however you'd term it) their headend to be compatible with OCAP and then Sony or Microsoft or TiVo write their software with the OCAP basic commands ni place, OCAP makes it possible for the two systems (CE & Cable) to communicate with one another. Just like Java does independent of Operating System.
> 
> ...


A bit off base.

Yes ... OCAP _is_ middleware. Well ... technically a platform but the majority/guts of that platform is a middleware stack. Yes, OCAP makes it possible for CE hardware and cable software to communicate (easily). No, I wouldn't call OCAP anyone's "OS" (although apparantly some would ... but anyway).

But no ... OCAP does NOT (inherently) provide a way for Sony or Microsoft or TiVo written software to call OCAP compatible software on the cable head-end. As an example, OCAP does NOT (inherently) provide a way for Tivo to write a VOD-ordering client that would allow you to order/view/FF/RW VOD content through that Tivo-provided software.

OCAP allows the cable company to push software to your Tivo so that when you hit a button ... the cable company's VOD-ordering system (or whatever other software they want to provide) comes up allowing you to order/view VOD content (or whatever other functionality they wish to provide). The cable company's OCAP software communicates back to their head-end in whatever arbitrary way they want. Although BDCP specs call for a QPSK modulator and DOCSIS modem ... so presumably it would be through one of those.

This is a key point to many people's objections (including the CEA including Tivo and Sony and others) to OCAP as proposed by CableLabs.


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> Sorry- I don't understand why this is an issue. From what I understand, it is legal for me to reverse engineer the way the handle connects to the blade and I can sell my own blades. There may not be much of a business there, so people instead just make their own blade/handle. But there is a business in aftermarket parts. And lots of companies do make legitimate high quality aftermarket parts that work as well or better than the Car manufacturer's parts.


Someone else replied to this already 



Justin Thyme said:


> Perhaps I am confused about markets. Say I have an iPod and I walk into a market but I can't buy any music in the top 500. Let's face it- a store that can't offfer more than a few bands in the top 100 or even 1000 offers no competition.
> 
> That's what the non iTms "market" is to an iPod owner. A market I have to walk out of because it offers me nothing. There is only one place I can go. That makes it a monopoly position.


You have a whole variety of places to go. If you want to buy music and iTunes doesn't have it, you can buy it from one of the other online retailers or you can walk into a brick and mortar store and buy it. And ALL of that music can make it's way to your iPod. No, musicmatch won't connect directly, but music you buy and own via musicmatch can easily make it to your ipod. Even my 12 year old knows this.... and I don't mean that as an INSULT. You are acting as though iTunes (e.g. Apple) owes it to you to be able to connect your non-apple Player to their software, and if they don't, they some how have a monopoly on music content. That is pretty far from reality.



Justin Thyme said:


> Apple chose not to license FairPlay. That's fine. Apple chose not to use any of a half dozen other DRMs to use alongside Fairplay. That's fine. But those two decisions makes the online commercial music market a completely separate one from the rest of the online music market. Apple whether intentionally or not  has a monopoly position at their iTms store.


It's absolutely within Apple's right to choose not to go with the Windows route of DRM and license Fairplay to anyone and everyone. There's a downside in doing so both from a business standpoint and a consumer standpoint (from Apple's perspective). They certainly make it possible for you to do just about anything you want with the music you buy through iTunes.



Justin Thyme said:


> If I am buying online music, What substitute is there for a Beattles song that is not encoded in Fairplay? If I own an iPod, a song encoded in any other DRM is as good as Coal, when I need Fairplay Oil. I can't buy from the Coal Market.


As good as Coal? You are so wrong. I have the entire *Beatles* library nestled into my iTunes and subsequently loaded onto my 30 gig iPod. I could have bought that library from anywhere... digitally OR at an actually store. No, iTunes doesn't follow the subscription based model like Napster does, but I like to own my music, not lease it. If I BUY a song from Musicmatch, I certainly can get it to my iPod... and it requires no hacking, or any extreme technical knowledge. Nope, not plug-n-go, but Apple doesn't owe that to you because you bought some songs from record companies that happen to distribute through them (and anyone other electronic retailer).

You've ignored the TiVo comparison and it's a fair one. I have no choice in guide data, it's what TiVo provides or go scratch, right? TiVo is holding patents on several technologies that it doesn't want to just "give up" to it's competitors. What makes that so different from Apple? Just because they haven't profitted as much?


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## Justin Thyme (Mar 29, 2005)

interactiveTV said:


> Justin, your perspective is based on reptition. A "monopoly position" means nothing. You KEEP referring to a PRODUCT then calling it a monopoly.
> 
> If your position is that a PRODUCT can be a monopoly, then you are 100% right, no one can change your perspective. However, repeating it over and over won't make it correct.


Look this would be responsive if I had said that iPod was in a monopoly position. Did I say that? No.

I said iTMS was.

It is not a monopoly on Product (iPod). It is a monopoly on products (any of thousands and thousands of songs) that will play on an iPod. I want to buy commercial online music. Is there only one place I can do that? Yes. If there are competitive online stores to iTms for buying commercial music please name any.


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## TiVoPhish (Mar 12, 2003)

dt_dc said:


> A bit off base.
> 
> Yes ... OCAP _is_ middleware. Well ... technically a platform but the majority/guts of that platform is a middleware stack. Yes, OCAP makes it possible for CE hardware and cable software to communicate (easily). No, I wouldn't call OCAP anyone's "OS" (although apparantly some would ... but anyway).
> 
> ...


Thanks for the explanation dt_dc. You make it easy to understand some of this more technical stuff.

So basically, cable is saying "make your boxes OCAP compatible so if you want consumers to order VOD content we'll pop open a window with the whole interface already in place to do so" -- rather than -- "make your boxes OCAP compatible and you can create your own OCAP compliant application that will communicate with our system to get the VOD content to the consumer." It's middleware, but from an interface standpoint, Cable wants to provide the whole application, not just a set of standard controls than any interface could be built around.

I can't argue it at all, whether you are right or wrong. I'm inclined to believe you're right, but it just doesn't seem to match up to what I've read about it. I mean, OCAP essentially IS a Java-based software platform. What you're stating is the Cable prefers to be in complete control of the interface and the entire experience as opposed to something more open, where other developers using OCAP specifications (commands) can write their own applications that follow the OCAP standard/guidelines. Maybe it's somewhere in between...

What I find hard to believe is that Cable would WANT to be in that much control (and bare that much responsibility) -- I'm thinking of TV makers who will want a different interface than a cell-phone manufacturer... different set of visual/interface specs, but possibly wanting control over the same type of content.

See what I'm saying? Do I understand you correctly?


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> Look this would be responsive if I had said that iPod was in a monopoly position. Did I say that? No.
> 
> I said iTMS was.
> 
> It is not a monopoly on Product (iPod). It is a monopoly on products (any of thousands and thousands of songs) that will play on an iPod. I want to buy commercial online music. Is there only one place I can do that? Yes. If there are competitive online stores to iTms for buying commercial music please name any.


Commercial music online? Walmart, Musicmatch and Napster. And yes, you can get that music you buy from them on your iPod (no hacking, no additional-ware, my kid can do it without breaking any laws).

You cannot blame Apple for having the "scheme" that record companies felt most comfortable with for distributing their music with proper DRM. It doesn't mean Apple holds a monopoly on the online music commerce industry.... it means they had a good vision, executed it, and the record companies agreed it was a good vision and jumped on board.

You cannot blame Apple for anyone's inability to stay competitive. Nothing prevents you from going out tomorrow and starting JustinTunes to distribute music... or from inventing JustinPlayer with your own DRM that connects to JustinTunes and any other software you want it to connect to and who'll let you. iTunes doesn't owe it to you to let you jump directly into getting a piece of their pie -- no more so than TiVo does in it's platform, user interface or guide data.


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> Look this would be responsive if I had said that iPod was in a monopoly position. Did I say that? No.
> 
> I said iTMS was.
> 
> It is not a monopoly on Product (iPod). It is a monopoly on products (any of thousands and thousands of songs) that will play on an iPod. I want to buy commercial online music. Is there only one place I can do that? Yes. If there are competitive online stores to iTms for buying commercial music please name any.


iTMS is STILL a PRODUCT (service), NOT A MARKET.

It isn't a "monopoly on products." That is not the correct use of monopoly.

There are plenty of substitutes for purchasing music. iTMS is the only for iPod but that doesn't matter. I and others have named many.

You want to stick to your very distorted definition of monopoly, you can do so. It just makes no sense. Keep to your view, Justin. Changing it does nothing for me. It does make a conversation much more difficult as you are the ONLY one here using the term (incorrectly) like that.

iTunes music store is NOT a monopoly. It plays in the downloadable music arena in which there are MANY choices from HUGE players.

_ITV


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> No, I wouldn't call OCAP anyone's "OS" (although apparantly some would ... but anyway).


Eh? Never called it an OS- only that it can serve as an OS equivalent. The generic term for the two might be "software platform". I said it a couple of times, I'll say it again. The position of such software platforms in the system hierarchy is irrelevant. Although Corba and Java are middleware, they can be used in a successful OS strategy, because they are platforms that can be written to without regard to the underlying operating system or hardware environment. People can write code to those platforms without any knowlege what hardware they will be running on, or what system software. Does that make it equivalent to an OS? In many respects yes, and enough so that OS producers take notice. Or perhaps you think Microsoft was hallucinating about an the threat posed by Java to Windows in the mid 1990's.



dt_dc said:


> Well ... you seem to be ...By these arguments ... MPEG2+_anything_ would seem to be an "OS Strategy". MPEG2+Java ... MPEG2+XML ... MPEG2+MetaData ... MPEG2+_whatever_.


I am not making a generic attack on Video plus behavior. That is inevitable, and sure there will be MalWare, Adware, whatever. There will also be some really cool stuff. There is nothing necessarily different than the content+behavior uses and misues that you see on the net.

Are all OS strategies? No- while ubiquity is nice for application formats and languages, having a VM or system api controlled by a particular industry entity is very different.

Let's dissect how the others do not apply:

Mpeg+metadata (eg non code formatting information- like the way DVDs have "interactive" menus and special features. No code here means there is very little power to the platform. Sure everyone can play your data type, but they won't be able to do other things like create a photo album App on a DVR that interacts with the ComCast photo site.
Mpeg +XML- again, just data. There is nothing to prevent anyone from ignoring the XML and just playing the Mpeg2. You can write a browser that handles XML or not. XML is already a standard, but so there is no OS advantage- no one owns the specification or can exact penalties for non compliance. 
MPEG+language like Perl or javascript- These are languages that do not maintain a virtual machine. For example, whether you are on a Panasonic or Samsung DVR, the virtual machine has state- for example the OCAP DVR VM knows and maintains how large the current rewind video buffer is, and our location in it. 
Mpeg+Java Close but not quite. Java is no longer closely controled by Sun, so it cannot be used as an OS tool for their business interests. Is the same true of OCAP? If CableLabs wants to prevent any noncompliant OCAP platform from playing an OCAP file (for example because the manufacturer added a feature to optionally turn off popups), then CableLabs could do that. 
Mpeg+anything not required by the Cablecard Spec. People want access to all services of the Carrier networks as promised by the 1996 telecom law. They want VOD, switched broadcasts. If the Cablecard 2.0 spec requires a particular language, that is a huge impetus to make it the interactive Video standard format and not something else.



dt_dc said:


> If any of this is accomplished via MPEG2+_anything_ ... that would seem to meet your definition of an "OS Strategy". After all ... start moving that content around the house onto other devices ... consumers will want that functionality.


In a sense, all the programs written for DOS and later for Windows could just be thought of as files that a computer that had licensed DOS or Windows could "play". There are lots of different data files, and the popularity of them means that you probably have something that can display .GIF, .JPG, .WAV, and .MP3. So maybe they are the same? Nope, because OS's are jealous creatures.

Say you are running the OCAP virtual DVR machine. Okay- lessee- that's 620 pages of OCAP spec and 176 pages of OCAP DVR extensions. The VM is running all the time so that you are ready to execute bytecode as soon as it comes down the wire. Great- you can play interactive shows from CableVision just fine- the OCAP code is running along waiting for the right moment, then, ok- up goes an advertisement for an upcoming movie, and there is a dialog there and I guess I want to click ok record that and it goes and adds that to the programs to record list.

Fine, now my DVR also plays DVDs so I insert the Blu-Ray disk into the machine and to play it according the BD spec I have to be running a BD-J VM machine, so well crimeny, ok let's add some more ram to the machine so that it can run that different virtual machine and have it sitting there so there isn't an excruciating amount of time loading the VM just so I can get a menu on the BD disk. Ok now it is a Disney movie but it has downloaded an Advert from the net and it tells me about a nice kids show on TeenDisney Channel. So I say Ok record that but uhhh. Does one virtual machine know what the other did? What if I changed the timeline- does the other VM know its is no longer valid in time for it to get a new timeline? Are the states managed properly? Ok fine- really bright lads figured out the problems after all they are both GEM based platforms but now- well shoot. I want to "Play" another file. No problem- just like JPG vs. Tiff vs. Mpeg2 vs. Mpeg4, right?

OK Microsoft has got a great show that uses its own interactive layer that I downloaded from the net and relies on a .NET machine which I can download to my DVR but.... System error not enough memory etc etc.

You can have N data formats and N scripting languages. But having more than one virtual machine active can create some nasty incompatibilities even if you had the system resources to support more than one. On a PC- sure you could run multiple virtual machines with enough memory. Where you get into troubles is where different VMs assume they own the state of a peripheral. Has this external disk drive had it's cache flushed or not? Is this printer in the middle of a job or not? A consumer real time device could run a virtual machine but not multiple ones due to the complexities of each having to have a synchronized correct understanding of hardware state.

When you write to a Java VM, you are unaware what the underlying operating system API is. That makes it a competitor to the native platform OS's. Only one of these OS's (or VM's) will win.

Shall the government be party to a document that makes one Mandatory on a large number of CE devices in the home? Shall the control for that required software platform come from a single company, or a consortium of companies from a particular market segment?

These are significant questions.


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## smark (Nov 20, 2002)

Well considering it's our equipment, I think we should be able to dictate on how it communicates with us in a way that makes it most effiecent for us and our customers.

We have to deal with the customers and it makes it much easier to have a standard way to access our content.


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## Justin Thyme (Mar 29, 2005)

smark said:


> Well considering it's our equipment, I think we should be able to dictate on how it communicates with us in a way that makes it most effiecent for us and our customers.
> 
> We have to deal with the customers and it makes it much easier to have a standard way to access our content.


Heavens. I apologize Smark. In my earlier note, I mixed you with someone else and thought when you said "our content" earlier, you were someone else speaking as a consumer/ fair use advocate. Sorry. Ignore my previous response on that issue.

What you say would be fair if it affected just your (Comcast's) equipment. We are speaking here about Cablecard Hosts. Not the Cablecard or Headend equipment. And to give an idea of the expense here, one vendor's Blu-Ray system without BD-J virtual machine had an estimated price of $1000. The system with BD-J was estimated at $1800. source

I wouldn't expect a real snappy response on the 300MHZ cpus common on a lot of these set top boxes.

Is there a lot of variation between cable companies in the kinds of systems doing VOD? Or is one supplier pretty much supplying all cablecos the same system with different bells and whistles? If more than one, are they widely differing architectures?

I have a real dumb question. Assuming low end STBs can do VOD and PPV, why do I need to have a serious computer in my third party Cablecard device to get the same functionality. I mean sure- I understand the need for virtualization due to other VOD/PPV implmentations and equipment, but why not a server side virtualization?


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## Justin Thyme (Mar 29, 2005)

interactiveTV said:


> iTMS is STILL a PRODUCT (service), NOT A MARKET.
> 
> It isn't a "monopoly on products." That is not the correct use of monopoly.
> 
> ...


Well, why doesn't it matter? Doesn't that show that iTMS is a separate market as I stated? If there are substitutes for online commercial music on an iPod, where are they?

Perhaps you personally feel my view of the tieing is distorted. If it is, then U.S. District Judge James Ware of Northern California didn't seem to think so. He agreed that Apple must face an antitrust lawsuit on the claim Apple forces people who own iPods to buy music online only from iTunes.

I think that is what I have been saying. Since you are not offering me much more than empty bluster, I will try to put forth an answer to my claim of separate market. Perhaps ripping CDs will be ruled to be a viable alternative to online music and so not constitute a separate market? Do you think the courts should rule that ripping CDs is an adequate legal substitute? Or perhaps the court should rule that buying commercial online music from iTMS competitors, breaking the DRM and copying as MPEG to iPod is legal substitute?  


findlaw said:


> Antitrust Suit Against Apple Over iPod, iTunes to Proceed
> By DONNA HIGGINS, Andrews Publications Staff Writer
> 
> Apple Computer Inc. must face several federal and state antitrust claims arising from the operation of its iTunes online music store and the sale of its iPod digital music players, a federal judge in California has ruled.
> ...


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## Justin Thyme (Mar 29, 2005)

NotVeryWitty said:


> Justin, it sounds like you are arguing that Tivo has a monopoly on providing guide information to Tivo boxes, and the government should step in and force Tivo to open up their communications protocols to competitors.
> 
> Correct?


Well, same response as to TivoPhish- if the two products are distinct and there is a fiefdom principle in effect, then yeah, for this theoretical remedy, that would be the correct application.

As a practical observation, if all the other DVRs decided to buy their guide from Tivo at $12.95 per month, per user, I am not sure you would get too much argument from Tivo.


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## smark (Nov 20, 2002)

Justin Thyme said:


> Heavens. I apologize Smark. In my earlier note, I mixed you with someone else and thought when you said "our content" earlier, you were someone else speaking as a consumer/ fair use advocate. Sorry. Ignore my previous response on that issue.
> 
> What you say would be fair if it affected just your (Comcast's) equipment. We are speaking here about Cablecard Hosts. Not the Cablecard or Headend equipment. And to give an idea of the expense here, one vendor's Blu-Ray system without BD-J virtual machine had an estimated price of $1000. The system with BD-J was estimated at $1800.
> 
> ...


In general most of the headend equipment is the same with Motorola and SciAtl being the biggest providers. The same as well providers of VOD though different companies, SeaChange for example.

As far a server side virtualization, that isn't how the headend is setup as more or less the DAC controls the whole market processing authorizations, orders, etc so it has other things to do rather than virtualize the implmentation. By the same token the VOD servers do what they are supposed to do, receive requests for content, stream the content and send the information back to the billing system for charges if needed.

The low-end STBs are basically just sending a call out to the servers and then the servers are responding with the requested content. They need to talk via a standard so that it works across all cable systems like OCAP is designed for as well as make the customer experience worth it by having those of the less technology inclined being able to call and be told where to go to access said content in a reasonable amount of time, especially those who have a hard time understanding that the box AND television need to be one. Plus the whole security provided by DCAS as well.


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> Well, why doesn't it matter? Doesn't that show that iTMS is a separate market as I stated? If there are substitutes for online commercial music on an iPod, where are they?...


Mentioned several times already in this thread. NO ONE forces you to buy an iPod or use iTunes. MSN Music, Napster, Real, Musicmatch, Walmart -- all sell music and you have a choice of players to pick from.

Because one guy and three law firms filed a lawsuit a year ago, that certainly isn't proof that Apple holds a monopoly for online music commerce, nor that their solution is the ONLY solution. What it proves is that a guy can file a lawsuit, and a judge is willing to hear the case (though several motions were already thrown out).

Isn't Dish doing the same thing with Arcos? Their content will only play on an Archos player.

Didn't Sony try something similar -- Connect. Connect music only plays back on Sony portable products.

An anti-trust "expert" from the BBC said: "Slattery can win if he can prove that the iTunes brand is 'a market in itself separate from the rest of the online music market.' iTunes isn't different from other music stores, though--it just chooses a different way of presenting the media you buy." And let me add... it is only choosing a different model for portable playback... every other type of playback is pretty similar to other online music shops.

Not for nothin', and this is just my opinion, but this reminds me of the guy who sued McDonalds for making him fat. This guy went and bought his music through iTunes and then went and bought an iPod to play them on-the-go, and now he wants to be "rewarded" by the courts because big-bad-Apple forced him to buy an iPod. Sorry. Not buying it.

If we're citing lawsuits lets look at one from abroad that touched on this exact issue. VirginMega filed an anti-competition suit against Apple in France for this exact scenario... because anyone buying music from IT'S store couldn't load their music into an iPod, and because Apple refused to license Fairplay to them to make iPod plug-n-play compatibility possible.

The decision:

"The Conseil de la concurrence concluded that FairPlay was not an essential facility for the following reasons: First, the competition authority found that only a minor share of the market would listen to music from a portable device, the majority would listen to music via the computer or burn songs onto a CD. Second, and rather unorthodoxly, it described in detail a method how consumers could get around the existing lack of interoperability and download music from VirginMega onto their iPod. Third, the French competition authority found that the market for portable music players was sufficiently competitive and offered several portable players in addition to the iPod. *In other words, there were alternative players available that could process VirginMegas DRM standard.* In conclusion, the French competition authority did not consider FairPlay an essential facility because consumers had a choice"


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## Justin Thyme (Mar 29, 2005)

If it was as absurd a proposition as you and ITV seem to think it is, then the Federal Judge would have dismissed all claims.

"Apple moved to dismiss all the claims, but U.S. District Judge James Ware rejected the bulk of the motion."

So perhaps you should write a letter to Judge Ware instructing him how he erred. Be sure to quote the French legal precedent that should guide his opinion when you do. 

As to the accuracy of your quotes: Here's what you said appeared in from the BBC:


TiVoPhish said:


> An anti-trust "expert" from the BBC said: "Slattery can win if he can prove that the iTunes brand is 'a market in itself separate from the rest of the online music market.' iTunes isn't different from other music stores, though--it just chooses a different way of presenting the media you buy." And let me add... it is only choosing a different model for portable playback... every other type of playback is pretty similar to other online music shops.


Here is what actually appeared in the BBC article:


BBC said:


> The key to such a lawsuit would be convincing a court that a single brand like iTunes is a market in itself separate from the rest of the online music market, according to Ernest Gellhorn, an anti-trust law professor at George Mason University.
> 
> "As a practical matter, the lower courts have been highly sceptical of such claims," Prof Gellhorn said.
> 
> Apple has sold more than six million iPods since the gadget was launched and has an 87% share of the market for portable digital music players, market research firm NPD Group has reported....source


The anti trust expert only stated the select point on separate market that I have all along emphasized. He didn't say any of the rest of the gibberish in that quote about how itunes isn't any different than other stores.

I'm not sure why you are making stuff up, but it is not helpful.


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## Justin Thyme (Mar 29, 2005)

smark said:


> The low-end STBs are basically just sending a call out to the servers and then the servers are responding with the requested content. They need to talk via a standard so that it works across all cable systems like OCAP is designed for as well as make the customer experience worth it by having those of the less technology inclined being able to call and be told where to go to access said content in a reasonable amount of time, especially those who have a hard time understanding that the box AND television need to be one. Plus the whole security provided by DCAS as well.


 Wow. I had it all wrong. So I am getting the picture that the motivation to put interactions like VOD that can be done by simple STB's into OCAP is not virtualization of a bunch of client server interactions that will vary from one cableco to the next. The interactions are largely very similiar due to the widespread use of the same equipment at the headend eg. a Moto DAC-6000 or a sciAtl S-A DNCS server.

The key motivations for using OCAP to handle the service is:
1) less support time costs due to simpler UI
2) greater security.

Have I got that right?


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> If it was an absurd proposition as you and ITV seem to think it is, then the Federal Judge would have dismissed all claims.
> 
> "Apple moved to dismiss all the claims, but U.S. District Judge James Ware rejected the bulk of the motion."
> 
> So perhaps you should write a letter to Judge Ware instructing him how he erred. Be sure to quote French law when you do.


And you seem to think that because the Judge agreed to hear (and let Slattery resubmit) some of the motions, that means Slattery will win. Our courts don't work that way. Agreeing to hear a case just means it's worth listening to -- it doesn't at all mean it warrants a decision in the plaintiff's favor. Even an obviously insane fan of David Letterman got a temporary restraining order based on obsurdities, but ultimately, in the end, it didn't play out in her favor.

If you don't think international law bares relevance in a global market, you're sadly mistaken. Even the Supreme Court has made decisions citing international legal opinion.


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> Perhaps you personally feel my view of the tieing is distorted. If it is, then U.S. District Judge James Ware of Northern California didn't seem to think so. He agreed that Apple must face an antitrust lawsuit on the claim Apple forces people who own iPods to buy music online only from iTunes.


 Which way was Lexmark originally ruled? Heck, a Fed judge TAKING a case means very, very little. He was shopped for.

Don't hang your hat on that, Justin. It's like finding the guy in the stands with the sign that says, "The End is Nigh" and using it as proof of the end of the world.

Telling anyone they're "making stuff up" is not only a sign of your rudeness and your complete inability to listen to anyone else's opinion, it is a sure sign that you, Justin, continue to grasp at ANY straw.

I'm done. Pound the table to open all APIs and open the world. It's like the guy with that sign...

_ITV
http://www.calahouston.org/best.html

My personal favorite which probably gets a chuckle from the techie crowd here:

According to the San Antonio Express-News, a dozen students who took a Microsoft computer certification course at the Houston branch of Southern Methodist University are suing the school, contending they were misled the course would be easy. 
The 12 enrolled in June 1997 and all failed certification tests that would have made them eligible for jobs overseeing Microsoft computer systems.

Jason Crowson, the groups attorney said: They were told all they had to know how to do was point a mouse and click.


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## dt_dc (Jul 31, 2003)

"Forced" functionality / mandatory supported features ...

JT:

Ok ... you seem to have an aversion to CableLabs writing specs that "force" features or functionality on bi-directional cable-ready (BDCR) CE devices ...

Do you have a problem with _anyone_ forcing functionality and mandatory supported features on CE devices (or just CableLabs)? For example ... going back to your "Public but closed" scenerio in your following post:
http://www.tivocommunity.com/tivo-vb/showthread.php?p=3677712&&#post3677712

Let's say CableLabs publishes a full set of APIs that define VOD, iPPV, switched broadcasts, an EPG and guide data, etc ... very robust ... every possible functionality of the cable system is available to be used as desired by CE devices ... or not.

Ok, now Tivo wants to release a BDCR that supports iPPV, switched broadcasts, and all other linear services. But they don't want to support VOD at all. Or ... perhaps they want to support (some) VOD ... but they've made a deal with Netflix so that they only offer VOD titles from the cable company that Netflix does not also carry. Anything Netflix carries can be downloaded and viewed from them ... but not the cable company.

I'm not talking minor tweaks that potentially provides additional functionality (your own guide that integrates your own GUI and potential content from other sources). I'm talking major functionality ... and mandatory support (or not). Should the CEA be allowed to sell "Advanced Cable Ready" devices that _don't_ support VOD at all for example ... or don't support anything above 750Mhz ... or don't support the (rather funky) MPEG2 profile cable uses on their digital music channels ... etc.

Can the CEA just pick and choose whatever functionality they want (or not). Or is it acceptable to have _some_ set of baseline mandatory supported features.


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## Justin Thyme (Mar 29, 2005)

DT- I have some family chores and it will take some time to chew on your note. I had been working on a prior note, but it is in no way a response to yours.]

Readers may wonder what the point of all of the iTunes antitrust dustup was about. The point is that the Apple iPod-iTunes fiefdom is an modest instance of what the carriers shall be able to do with products in the home. [EDIT- didn't complete my sentence here. What I intended to finish was was this: Content and platform cross leverage each other in the same way as the MS mantra of- Software sells the Platform, the Platform sells the Software. Consumer demand for content fluidity gives competitive advantage to those with highest interoperability. Preventing such interoperability between can be used as an effective mechansim to lock out competitors- making a whole family of CE devices a separate market dominated by a single provider with monopoly power. ]

I recognize that existing law may not be sufficient to deal with such fiefdoms as I described. I am not making a Brand loyalty/ scorn flame here. I like my iPod and think Apple amply deserves financial reward for making technology easy for the masses.

The key point of what I am saying is that Companies are using the complexities of software interoperability and DRM to lock users into separate markets that they control. The market is separate from functionally similar devices in the general market because the general market devices cannot interoperate with the monopolist's family of products.

The interoperability has become so difficult to reverse engineer, and interoperable products from third parties are so easy to thwart, that it seems to me that one solution to this fiefdom effect when it arises is to require that companies publish an APIs for interoperation between different categories of products.

This sort of approach allows customers to mix and match products. I can buy music player X or Y, but that doesn't mean I have to buy music from just from X's or just from Y's music store. If Y offers music for 49 cents, well by golly you can buy from them. The markets are no longer separate, and so no party enjoys monopoly position, competition thrives, economic benefit accrues to the innovators, not to those who build the most comprehensive fiefdom set of products.

In the same way that demand for media is used to bind one product to another, Carriers can use formats and interoperability APIs to lock consumers into a family of products in a separate market in which they exercize monopoly power.

Concerning minor points recently posted in this thread, I think the facts speak for themselves.

The anti trust expert did not say the things ascribed to him. The antitrust argument I have made is a legitimate argument. People may differ on whether this is the best way to go about anti-trust, or whether the bulk of current caselaw supports such an argument, but the argument has sufficient legal merit to be heard.


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## classicsat (Feb 18, 2004)

Justin Thyme said:


> Well, why doesn't it matter? Doesn't that show that iTMS is a separate market as I stated? If there are substitutes for online commercial music on an iPod, where are they?


What you have is a perceived monopoly, not a defacto monopoly.

You are perceiving the "market" as iTms/iPod, when the market is online music and PMPs as a whole.

The same applies to multichannel providers.
Cable is a perceived monopoly, as you can purchase your progamming from two or more satellite providers, plus numerous new technologies such as VDSL and FIOS, despite you each being a perceived monopoly unto themselves.


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## classicsat (Feb 18, 2004)

IMO:

Cable labs should release the low-level APIs directly to the CE manufacturer, or as OCAP "stubs" with an established standard "interface", so that CE manufacturers can access the advanced features of the cable system they care to, using the UI of the STB, and the cable providers be obligated to provide that access.

Conversely, the 3rd party STB should have the full OCAP VM, so the end user can fully access the Advanced features that the STB manufacturer may not care to implement, for whatever reason they choose, or uses the advanced features through the OCAP VM, with the full OCAP applet.

And at that, in either case, none can block access to content or sevices from the one, when a competing affiliation agreement exists on the other.
For examle, Comcast, which may have a Shop-At-Home channel purchasing agreement and applet, cannot prevent a TiVo QVC applet from running, nor can Tivo prevent the Shop-At-Home applet from running.


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## classicsat (Feb 18, 2004)

Justin Thyme said:


> I have a real dumb question. Assuming low end STBs can do VOD and PPV, why do I need to have a serious computer in my third party Cablecard device to get the same functionality. I mean sure- I understand the need for virtualization due to other VOD/PPV implmentations and equipment, but why not a server side virtualization?


Because they can write the VOD/PPV/guide app they want in low level native processor code, and massge a particular version for a provider to match their system.

You need the 300 Mhz CPU on the aftermarket STB to run basically an emulator, to do what the original STB would do.


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## Justin Thyme (Mar 29, 2005)

classicsat said:


> Because they can write the VOD/PPV/guide app they want in low level native processor code, and massge a particular version for a provider to match their system.
> 
> You need the 300 Mhz CPU on the aftermarket STB to run basically an emulator, to do what the original STB would do.


 I am confused by your position. You earlier stated that the Carrier must publish it's api (presumably server api including on wire formats etc). I understand that the CE vendor _could_  provide a VM to run MSO provided bytecode, or their own to do the interaction. They need to implement a VM if they want to access the server api with OCAP bytecode. But are they prohibited from writing native code that does the same, and can run with far less demand on system resources?


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> The key point of what I am saying is that Companies are using the complexities of software interoperability and DRM to lock users into separate markets that they control. The market is separate from functionally similar devices in the general market because the general market devices cannot interoperate with the monopolist's family of products.


Just for sake of space I cut your quote down... but I'll probably address multiple parts of it.

What you seem to be missing is that each company you want to readily cooperate is a business, and those businesses have a right to fairly compete with one another. Cable has a right to offer services that others cannot and vice versa. Making stand-alone set-top-boxes that cooperate is almost a separate argument.

I say "almost" because it isn't completely fair for Cable to take over the market making it's own set-top-boxes a required purchase/lease... if a consumer chooses cable. Why is that? Because cable is in a unique position to take advantage of their customers by forcing them to buy/lease their own boxes (while iTunes is NOT in that position).

Here's the analogy:

If I want cable TV (content), and choose to go to Cable (company) then I must purchase or lease their box/DVR (product) just to see and record said content -- UNFAIR, and LOCKS OUT all STB competitors.

If I want music (content), and I choose iTMs/Apple (company), I do NOT have to buy/lease their box (product/computer/software/iPod). I have a multitude of ways to listen to that music (including the FREE software itself), or on other devices (CD players, iPod, and even other softwares/portable devices). FAIR, it doesn't lock out anyone.

So because of Cable's position, it IS fair for the proper legal entities to step in and say "no, you can't force people to buy or lease additional equipment from you" -- and if that's the case, to set the guidelines and rules on how everyone needs to cooperate with one another.

It is in Cable's best interest to be sure that stand-alone set-top-boxes will interface well with their offerings... and that is not an easy task... and to get there, YES, some functionality may have to suffer, or you may have to put up with "java" windows that provide their own interface. But can you imagine the nightmare for Cable to try to support a zillion different boxes if they all don't follow a specific standard -- both in design and performance? If I own a TiVo Series 7 that won't properly interface with VOD content, who do I blame and, as a customer, call for support?

And again, I say "almost" because all of this doesn't preclude Cable from continuing to offer their own set-top-boxes and compete with the stand-alones. That is fair and gives consumers choices. What isn't fair is locking everyone into only THEIR boxes.

Should they be allowed to offers something unique above and beyond what stand-alone set-top-boxes can do? Such as the iTMS + iPod tie-in. Sure, why not? TiVo will certainly be offering services Cable cannot provide (Netflix as an example)... so why shouldn't cable be able to do the same to fairly compete? Then the consumer can say "well, I'd prefer the choice of Netflix over PPV content" (just as an example). What Cable CANNOT do is lock out all the competition, and try to compete unfairly.

Same for Apple. They are allowed to give you the benefit of the iTunes + iPod combination. That doesn't preclude you from listening to the music you purchase from iTunes anywhere you like... because you can. But the benefit is the "plug-n-play" aspect of it. It's completely your choice, as a consumer. If you like the Creative Zen better, think it's a better player, you can buy it and buy your music from anywhere you like... including iTunes. The only thing you won't get is the ability to plug your Zen right INTO iTunes... and you don't HAVE to have the ability, because lots of other sources will provide it, for the EXACT same content.

ps. running out the door, so excuse an typos or misphrasings


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## interactiveTV (Jul 2, 2000)

Justin Thyme said:


> The anti trust expert did not say the things ascribed to him.


Justin, perhaps you should re-read Phish's post. He quoted from http://www.geek.com/news/geeknews/2005Jan/bma20050107028590.htm correctly, including the quote within a quote (' versus "). I can see your confusion but assuming that Phish "made it up" rather than giving him the benfit of the doubt is where I take issue. He DIDN'T make it up. Sourcing would have helped it but assuming he "made it up" is rather a drastic opinion to come to. Don't you think?



Justin Thyme said:


> The antitrust argument I have made is a legitimate argument. .


 Of course it is, Justin. You know, it's funny, I don't pretend to be a geek and understand even 10% of some of the stuff around here. Yet, with one (STUPID) lawsuit filed you believe you have a legitimate arguement even though you don't seem, from my standpoint, to understand anti-trust 101.

But, hey, what do I know? Keep telling yourself it's a legitimate arguement. Personally, I don't care. It just makes for a tough conversation when you use a different definition of word than everyone else.



Justin Thyme said:


> People may differ on whether this is the best way to go about anti-trust, or whether the bulk of current caselaw supports such an argument, but the argument has sufficient legal merit to be heard.


 You're kidding, right? Do you have any idea how many MORONIC cases get heard that have NO legitimate arguement? Just because a judge takes a case on docket doesn't mean squat. Next you'll tell me all briefs are meaningful.

Justin, you're out of your realm here. "Hearing a case" means nothing. You can judge shop -- and some are REAL crackpots but a job for life is not bad -- you can get someone bored, or, more often than not, it might sound like an interesting twist even though it doesn't really cut the mustard. Always fun to break ground and judges love it. Helps you move up. Of course, not this judge. He's never moving up.

I gave you an example of some really stupid lawsuits. You think those were legitimate arguements?

You can find a class action lawyer for just about anything...

_ITV

BTW: Ware's name MIGHT sound familiar if you ever followed the saga of the stolen sex.com domain. His name is familiar to other judges when up for an appeals court slot he got nailed in a total fabrication. But that's another story and not a pretty one


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## dt_dc (Jul 31, 2003)

TiVoPhish said:


> So basically, cable is saying "make your boxes OCAP compatible so if you want consumers to order VOD content we'll pop open a window with the whole interface already in place to do so"


Yes ... this is what cable is saying ...


TiVoPhish said:


> -- rather than -- "make your boxes OCAP compatible and you can create your own OCAP compliant application that will communicate with our system to get the VOD content to the consumer." It's middleware, but from an interface standpoint, Cable wants to provide the whole application, not just a set of standard controls than any interface could be built around.


Well ... cable is not directly _precluding_ this second approach either. They aren't providing the specs and standards that would allow for it. Then again ... perhaps they will in the future. Then again ... perhaps they won't. Perhaps the free market will force them to. Then again ... perhaps it won't.


TiVoPhish said:


> I can't argue it at all, whether you are right or wrong. I'm inclined to believe you're right, but it just doesn't seem to match up to what I've read about it. I mean, OCAP essentially IS a Java-based software platform. What you're stating is the Cable prefers to be in complete control of the interface and the entire experience


They prefer to ... at the very least ... have that _option_. What if someone decides _not_ to provide VOD. What if someone decides to provide VOD ... but filters out all titles contating the word "The"? Ok ... the second product probably wouldn't sell very well. But ... you get my gist. What if someone ... somewhere ... provided some product that did _______.


TiVoPhish said:


> as opposed to something more open, where other developers using OCAP specifications (commands) can write their own applications that follow the OCAP standard/guidelines. Maybe it's somewhere in between...


Yes it is somewhere in between. On the one hand, the client side (STB) is fairly open. Developers can write their own applications to do all sorts of things. A CNN poll that allows the viewers to interactively / immediately vote ... for example. On the other hand ... cable can squash any of those apps they want to. And again, the OCAP standard does not _preclude / prevent_ a more standardized way of OCAP apps talking cable's servers and allowing CE developers to provide those additional advanced applications (like a 'better' VOD client). It just doesn't immediately provide for one either.


TiVoPhish said:


> What I find hard to believe is that Cable would WANT to be in that much control (and bare that much responsibility) -- I'm thinking of TV makers who will want a different interface than a cell-phone manufacturer... different set of visual/interface specs, but possibly wanting control over the same type of content.


Hard to give up complete control when you're used to having it.

The cell phone and portable content are great examples where the free market and / or additional desired functionality might force cable to standardize and / or open up better. Then again ... they may not. I think the CableLabs specs take both these use cases pretty well into account ... but perhaps not.


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## TiVoPhish (Mar 12, 2003)

dt_dc -- thanks so much 

I think we're totally on the same page -- I appreciate the dialogue and it helps me understand the things I don't and confirm that I'm understanding what I read elsewhere


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## Justin Thyme (Mar 29, 2005)

interactiveTV said:


> Justin, perhaps you should re-read Phish's post. He quoted


For the second time- SHE. Okey doke- here's her quote:


TiVoPhish said:


> An anti-trust "expert" from the BBC said: "Slattery can win if he can prove that the iTunes brand is...


Show me anyplace where a BBC anti trust expert used those words. Those are the words of the writer of an opinion piece for the Mac section of Geek.com, not the words of an anti-trust expert. And this writer has his own agenda.

That is a fact. Or perhaps there is some new use of an attributed open quote mark that you and TivoPhish understand but the rest of the world is not yet up to speed on....

Now if you'd like to move on to the real meat that you seem to assiduously avoid answering any of my questions on, and also happens to be the substance of what the antitrust expert really said. The key point is whether there is a separate market. If there is a separate market, then Apple has monopoly power. You disagree there is a separate market, so therefore I cannot call it a monopoly. You bring up Grinnel and this is end game but even in this they have fulfilled the Grinnel measure because they deliberately excluded (modification of iPod code to defeat Rhapsody interoperability attempt), and power to control prices. IPod customers were locked into paying 99 cents for the same music they could by from Rhapsody for 49 cents.


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> "Forced" functionality / mandatory supported features ...
> 
> JT:
> 
> ...


CEA cannot pick and choose features related to security of the Carrier network. While standards are nice to have, the 1996 telecom law requires access for third party mechanisms to all programming and services. It does not require third parties offer all programming and services.

OCAP code provided by the MSO is not a third party mechanism, and so does not satisfy the directive of the telecom act. A public, but closed api as you describe satisfies the requirement. Third party navigational boxes are entitled to pick and choose which programming and services they wish to support, and deliberately block access to some services if they so choose. Market forces will correct such choices that consumers find disagreeable.

Discussion:

CableLabs can make up all the specs they want, and CE vendors can proudly put "OCAP inside" stickers on their products- stickers that no one else is entitled to stick on machines that failed certification.

What about people that sort of conform? Well, the OCAP apps can sort of work. Maybe the CE vendor thinks that OCAP should not be able to turn off FF. Maybe they allow the consumer to block the MSO's ability to wipe out third party apps from the carousel. OK those CE vendors don't get to proudly display the OCAP sticker. Let the consumers choose.

In all seriousness, maybe the CableCos have hit on something that consumers do want. Maybe not only do they want ITV, but everyone wants a network computer running a proprietary Java VM rather than Windows, running on cheap hardware accessing a proprietary network. With free storage, an MSOffice workalike suite, Apps sactioned by your provider that can run on your machine. Oh yeah, and it is also a box that plays television shows off that proprietary network. Maybe people will flock to that kind of product in droves. Fine- no sweat- go for it.

Should the US government be party to requiring this little "feature", this support for "just another data type (mpeg2 + embedded OCAP)" into a take it or leave it spec for "Advanced Cable ready" features? Well what is the basis for this requirement? What I see is two orthogonal lines of argument: 
antitrust, and
the 1996 Telecom act.

You never responded to my point on the Telecom Act. Along with HD, I think it is important. The Telecom act said that third parties could access programming and services of the Carriers with their own mechanisms. Was Congress in 1996 refering to hardware stripped of any software functionality that the carrier would be allowed to install? I don't think so. The navigational equipment that third parties are entitled to make is the whole enchilada- including software. VOD is one of the services of the carrier, and OCAP programs created by the MSO running on third party machines does not satisfy the 1996 telecom act of third party mechanisms. What they have accomplished is a shell game trick. Access to the network is still controlled by their mechanism- only now it is an OCAP program and an OCAP VM whose specificatin they control rather than an STB. Does it matter that it is a software and not a physcial mechanism? No.

So it can't be made part of a spec of how CableCompanies are going to conform to the telecom act.

CableLabs can propose it as a separate spec and go through a phase of politicing in the CE world similar to the BluRay vs. HDDVD standards war. But because it is a "service" of their network, it seems to me that they are not entitled to withold content or services by tieing them to these mechanisms. That means they are entitled to run the MPEG streams without executing the OCAP code.

Pick and choose is how all APIs are used. The public but closed Windows API doesn't require you to implement everything. And some specs can be dogs but have great parts that are useful. OLE was the most ludicrous spec Windows has ever foisted on the industry. But you could pick and choose. If you wanted to do full on embedded objects in other applications with in place editing and negotiated menus, then all the requirements were spelled out. Customers didn't want that feature, and it was real expensive to implement. But it turned out that third party developers really liked the COM object model api. This later achieved wild success now known as ActiveX objects. The market picked and chose among the spec what it wanted and what it thought was pure horse manure. If OLE was an all or nothing deal, there would have been zero benefit from the initiative. MS didn't put it out that way, I don't know why the government should.

Sony Televisions claim they support JPG file format. Public spec. Can they implement it partially? Sure- their choice. They may choose to not support certain commonly used "JPG" features that are in the JFIF spec. Sony's TVs support all the photos you can produce with Sony cameras or camcorders. They do not support others. OK fine- their choice. The reviewer will write- only supports Sony JPG files and many consumers will smell the skunk.

The Blu-Ray standards group decided on including BD-J Java VM in their spec last June. Soon thereafter Microsoft chose sides against BD- I think you can guess the reasons I would give for their motives.

It turned out that the BD-J requirement is way too expensive, and many vendors will make it optional. If it is optional, then many content vendors are not going to go to the expense of BD-J features, if most boxes don't have it.

OCAP should live or die by those sorts of rules.


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## smark (Nov 20, 2002)

Justin,
We also need the ability to shut down the box if needed, OCAP also takes into account those features as well as I looked at it. 


*Shutdown means prevent from access to content of ours when the customer is deliquent, etc.


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## classicsat (Feb 18, 2004)

Justin Thyme said:


> I am confused by your position. You earlier stated that the Carrier must publish it's api (presumably server api including on wire formats etc). I understand that the CE vendor _could_  provide a VM to run MSO provided bytecode, or their own to do the interaction. They need to implement a VM if they want to access the server api with OCAP bytecode. But are they prohibited from writing native code that does the same, and can run with far less demand on system resources?


I guess I should qulaify, that would be in the event a full OCAP implementation is required.


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## ZeoTiVo (Jan 2, 2004)

TiVoPhish said:


> It is in Cable's best interest to be sure that stand-alone set-top-boxes will interface well with their offerings...


funny then how the Cable companies have been working very hard to postpone or entirely derail the cable card open standard.

the law is never a concrete thing so no interest in arguing the finer points of it, without a judge and official proceedings to determine the winner 

but Apple is sure doing everything it can to protect its iTunes/iPod revenue
Apple has tons of happy consumers, they should be sued by stock holders if they opened that up to competition needlessly.

cable companies are sure doing everything they can to be sure they control the way in to their services and collect all revenue. Most people have no idea they do this. They do not see they are buying the car from the gas station, the only consumer action for change is to go with satellite. FCC mandate is the only thing that prompted real change here.

satellite companies are sure doing all they can to be sure they control their entire product as well. They seem to be keeping their churn down as well but they have no reason to open up to competition. Don'y like us then make a wholesale change to cable or the other company, not many consumers doing that and with no FCC mandate with teeth - no such open standard emerging here to let a consumer keep their equipment and call the other guy.

-- what is the one thing that would make any of them change - legislative or judical action. seems simple when the reality is looked at.


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## Justin Thyme (Mar 29, 2005)

classicsat said:


> I guess I should qulaify, that would be in the event a full OCAP implementation is required.


Right. Then I guess we are on roughly the same page there.

Now, I'd like to return to something you wrote earlier...


classicsat said:


> What you have is a perceived monopoly, not a defacto monopoly.
> 
> You are perceiving the "market" as iTms/iPod, when the market is online music and PMPs as a whole.


Well, I freely admit I am no lawyer and keep a couple guys well paid because I know that I know nothing. Still, I like to try to understand it, on the condition I don't have to pay $400/hour for a little chit-chat.

So let's take Kodak copiers for example. As with Apple, there is a broad market for those. Kodak has a different product- Servicing of Kodak copiers. They have no "monopoly" there either- there are plenty of companies that service copiers.

What if Kodak decided, as Apple did, that it would not allow competition in this aftermarket busness by withholding technology- For example- say they told them they could not buy Kodak parts needed to service Kodak printers.

OK, on the face of what everyone has been hammering me with ("Moron- there are other PMPs! There are other online stores!), you could say the same here- Therea are other copiers to buy, there is a huge copier service industry. Or as ITV would analogously put it, you can't define Servicing Kodak Copiers as a separate market/ "monopoly position".

In point of fact, the US Supreme Court felt differently. Kodak was sued for antitrust by a competitor Copier service company on the claim that Kodak had monopoly power over this aftermarket business. Kodak made it so that competitors could no longer service Kodak copiers- the simply stopped selling them parts and information manuals needed to repair the machines. This was ruled to be an abuse of their dominant market position.

In the same way, Apple took action to prevent Rhapsody from competing with iTunes in the aftermarket business of selling online commercial music for iPods.


US Supreme Court said:


> Kodak has not satisfied its substantial burden of showing that, despite such evidence, an inference of market power is unreasonable. Kodak's theory that its lack of market power in the primary equipment market precludes--as a matter of law--the possibility of market power in the derivative aftermarkets  rests on the factual assumption that if it raised its parts or service prices above competitive levels, potential customers would simply stop buying its equipment. Kodak's theory does not accurately describe actual market behavior, since there is no evidence or assertion that its equipment sales dropped after it raised its service prices. Respondents offer a forceful reason for this discrepancy: the existence of significant information and switching costs that could create a less responsive connection between aftermarket prices and equipment sales. [source]


Here, people have been arguing that the existence of other portable media players precludes the possibility that it could have market power in the aftermarket sale of online commercial music for the iPod player. If people don't like iTunes prices, they can buy a different music player. Unfortunately, the switching costs are substantial so that contention does not reflect market realities.

A similar situation may already exist in the Carrier market. That fiefdom effect will grow substantially as switching costs are raised by addition of other CE products which must have the interoperability component- in this case, an OCAP VM.

It's an OS strategy alright.


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> So let's take Kodak copiers for example. As with Apple, there is a broad market for those. Kodak has a different product- Servicing of Kodak copiers. They have no "monopoly" there either- there are plenty of companies that service copiers.
> 
> What if Kodak decided, as Apple did, that it would not allow competition in this aftermarket busness by withholding technology- For example- say they told them they could not buy Kodak parts needed to service Kodak printers.


Apple isn't withholding anything from you (or any consumer). You CAN play the music you buy through iTMS anywhere you like, easily. You keep ignoring that fact. Your analogy to Kodak is not a fair one, but in your example, Kodak is actually WITHHOLDING products that make it possible to fix their own copiers, so aftermarket service businesses could not service their copiers. Apple is not WITHHOLDING anything from competitors that could effectively put them out of business. If you told me that Apple made it impossible to play the music you buy from iTMS through anything but Apple computer, Apple CD players, Apple branded products, you'd have an argument -- but *that is NOT the case*.

And, by companies reverse-engineering Fairplay (or anyone's DRM) there's an argument to be made that they're in violation of the DMCA.

But regardless....

Service contractors of copy machines deserve to be making a fair business for themselves by servicing copy machines... and if Kodak owns the market share of copy machines and prohibits anyone from buying parts and fixing them, they are encroaching on dangerous territory.

But NO ONE is stopping consumers from choosing where to buy their music from, how to play it, and what to play it on. NO ONE is blocking Microsoft, or Real or MusicMatch or Napster from buying into anything that prevents them letting customers buy music from them. Apple's unwillingness to license Fairplay doesn't keep Microsoft out of the game. Whatever music I buy through iTunes I can play ANYWHERE (hear that, hear it loud and clear). Songs I buy from Musicmatch I can play ANYWHERE, including on my iPod.

That's quite a bit different from being prevented, as a business, from repairing 80% of the copy machines on the market because I can't buy parts or be authorized to do so. It's quite a bit different than, as a consumer, me only being able to go to Kodak for servicing and parts for my copy machine. This is not a hard concept to understand Justin. If I choose to buy my music through iTMS I can play that purchased music ANYWHERE. If I buy an iPod I can load it up with whatever music I buy... from ANYWHERE (okay, I'll say "just about anywhere" because I haven't tried them all).

The only thing I'm prevented from doing is connecting a player other than an iPod directly to iTunes, or connecting my iPod to another piece of software.

Put it this way. Kodaks bigtime copy machines run some internal type of interface/software. If Microsoft came along and said "not fair not fair, we should have the right to offer customers OUR WindowsCopyXP on there, and consumers should have a choice of running WindowsCopyXP on there" they'd have no argument. And THAT is what your argument amounts to.

Go back to my TiVo analogy... same thing. How interoperable are .tivo files???

And let me add... if you're arguing for a standard, don't argue against only Apple. WMA files are propriety too (owned by one company) -- only difference is Microsoft is willing to license it out... but that doesn't mean it's the "standard" everyone should follow. The DRM is what you have issue with (because iTunes can already import unprotected WMA files) -- and I don't see the two sides coming to any agreement anytime soon.

It'll be interesting to watch what happens with third parties now developing "media players/organizers" that supposedly bring the best of both worlds together.

Finally, as long as it's people like Microsoft (and even Real Networks) arguing for "consumer choice" the more I just have to laugh... and I'll just let that statement lie because it could only spark another whole debate.


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## interactiveTV (Jul 2, 2000)

ZeoTiVo said:


> -- what is the one thing that would make any of them change - legislative or judical action. seems simple when the reality is looked at.


 I didn't know Apple was granted an FCC license. Putting Apple in the same vein as cable is just silly. There is no franchise agreement, no built system from a monopoly, no public good.

I was pretty sure that MARKET FORCES could make Apple change if consumers had a better store they wanted to use with their iPods but you're right, Zeo, Apple's success should be met with government interference. Huge and swift. Because Jobs never learned his "license it out" lesson from the Mac when Apple almost went away. We should teach it to him.

The reality is that you haven't shown a PROBLEM with the iPod. Success is not something that should be changed with "legislative or judicial action." Apple operates without any government license or minimized competition.

C Ya.

_ITV


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## Justin Thyme (Mar 29, 2005)

Which technology Apple or Kodak withheld to maintain their monopoly position in the aftermarket is not the issue. 

The fact is that software data format interoperability can and is being used to create separate market fiefdoms, and monopolists can and will take advantage of that fact unless the law catches up. 

To those who think this is about waving flags on either side of the stadium in favor of Comcast, Microsoft, Apple, Verizon or whichever company has its hands in our pockets, I can only say... nothing.


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## ZeoTiVo (Jan 2, 2004)

interactiveTV said:


> I didn't know Apple was granted an FCC license. Putting Apple in the same vein as cable is just silly. There is no franchise agreement, no built system from a monopoly, no public good.


 first off I included Apple because it was being discussed. I did not lump them together out of the blue. also show me one place where I said or even implied the FCC had anything to do with it. Also note that I at no time said Apple had a monopoly, at no time did I say the Govt. should do anything. I said "but Apple is sure doing everything it can to protect its iTunes/iPod revenue. Apple has tons of happy consumers, they should be sued by stock holders if they opened that up to competition needlessly."
So now you look silly trying to twist yet another post of mine into something it is not.



> I was pretty sure that MARKET FORCES could make Apple change if consumers had a better store they wanted to use with their iPods but you're right, Zeo, Apple's success should be met with government interference. Huge and swift. Because Jobs never learned his "license it out" lesson from the Mac when Apple almost went away. We should teach it to him.


again you go off on the tangent and twist the statement of my post even further. I said the *Stockholders* should sue Apple if they opened up to competition needlessly. If consumers were going elsewhere well then Apple would *need* to change. Again you went off on your own agenda and implied something not even remotely in my post. More lost credibility points for you.


> The reality is that you haven't shown a PROBLEM with the iPod.


in closing - I never *even said* there was a problem with the iPod. So go ahead and try and shoot down the two sentences in my post about Apple because that means you can ignore the whole cable and satellite part which is the actual crux of the argument in this thread.



> Success is not something that should be changed with "legislative or judicial action." Apple operates without any government license or minimized competition.
> 
> C Ya.
> 
> _ITV


so what about cable and satellite? do they operate with Government license and minimized competition. Congrats for showing the whole Apple/iPod thing is precisely not the same at all as Cable and Satellite providers. Looks like legislative and judicial action should apply to cable and satellite then.


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## Justin Thyme (Mar 29, 2005)

TiVoPhish said:


> Whatever music I buy through iTunes I can play ANYWHERE (hear that, hear it loud and clear). Songs I buy from Musicmatch I can play ANYWHERE, including on my iPod.


Sorry, like so many other errors in your posts, that is just not so.


wikipedia article on Fairplay said:


> The intentional limitation of Fairplay is that it prevents iTunes customers from using the purchased music on any portable digital music player other than the Apple iPod. source


Conversely, if you own an iPod, there is only one place to buy commercial online music. iTunes. Face Facts.

For those joining this thread late, here is why this is an interesting issue, and why it has anything to do with Tivo:

Say your cablecompany starts moving over completely to a new data format. Never mind what that format is for a second. Say it has it's own DRM on it that they refuse to license to anyone else- like Tivo, Sony or anyone else they want to keep out of the market. That's what Apple does. Can cable and satellite companies do the same?

OK. Now say that the new data format that they start transmitting is licensable, except to license it you must implement a software engine whose design is controlled by the cablecos that allows the cable company to take control of your CE device- to force software downloads, and remove other software that the cable company doesn't care for. That's what OCAP is.

Is that Fair Game?


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> Which technology Apple or Kodak withheld to maintain their monopoly position in the aftermarket is not the issue.


You brought it. Your analogy was flawed.



Justin Thyme said:


> The fact is that software data format interoperability can and is being used to create separate market fiefdoms, and monopolists can and will take advantage of that fact unless the law catches up.


It's not a fact... it's your opinion. Explain this separate market you're talking about because I see two separate markets. Music commerce and Portable Players. Shopping at iTMS doesn't preclude me playing the music I purchase from them anywhere I like, and using an iPod doesn't preclude me from shopping anywhere I want. This is why your analogy doesn't work.



Justin Thyme said:


> To those who think this is about waving flags on either side of the stadium in favor of Comcast, Microsoft, Apple, Verizon or whichever company has its hands in our pockets, I can only say... nothing.


You're the one who brought up Apple. It's a bad comparison to Cable... but I already addressed that earlier.



TiVoPhish said:


> If I want cable TV (content), and choose to go to Cable (company) then I must purchase or lease their box/DVR (product) just to see and record said content -- UNFAIR, and LOCKS OUT all STB competitors.
> 
> If I want music (content), and I choose iTMs/Apple (company), I do NOT have to buy/lease their box (product/computer/software/iPod). I have a multitude of ways to listen to that music (including the FREE software itself), or on other devices (CD players, iPod, and even other softwares/portable devices). FAIR, it doesn't lock out anyone.


If Apple were charging for iTunes, if I couldn't play the music I buy ANYWHERE but through iTune, and Apple CD Player on an Apple computer, you'd have an arguments. If Apple made it a requirement that I purchase iTunes on an Apple computer in order for my iPod to work, you'd have an argument. There is NO INHERENT TIE-IN because iTunes is NOT a product and not for sale, nor does it require an Apple to run.

iTunes is a proprietary way to deliver music, but playback is no more exclusive than the DRM-WMA format. iPod is a proprietary way to play your music on the go, but getting music onto it is no more exclusive than the Creative Zen.

Let's use Sony as a hypothetical example: Sony has the potential to create the illegal monopoly you accuse Apple of. Lets say Sony creates "Connect" to buy music, and music you buy through them can only be played through their player or Sony portables. Can't be burned to CD or ripped to MP3s. Can't make it's way to an iPod or Creative Zen. Sony decides to WITHHOLD all Sony artists' music from being available through iTMS and Musicmatch and Napster (etc.) so that the only way you can buy it is through Sony Connect? Now you're talking the monopoly position that LOCKS consumers INTO only one choice and LOCKS competitors OUT from being able to compete.

That is more the proper comparison for Cable.

NOT for Apple.

And none of that precludes businesses from still being competitive with one another. Sony still has the choice NOT to provide it's content to be available through iTunes if it thinks it's more cost-effective to be elsewhere, or they'll get a better return elsewhere, or because they don't think security is high enough, and Apple has the choice not to carry a Sony artists because the wholesale price is too high. Apple is still allowed to provide "exclusives" (as provided by the record labels) and Sony is still allowed to provide "exclusives" to some other music store. Nothing evil or anti-competitive about it.

and you're other reply:

Regarding the fact that I CAN buy music online anywhere and get it to my iPod....



Justin Thyme said:


> Sorry, like so many other errors in your posts, that is just not so.
> Conversely, if you own an iPod, there is only one place to buy commercial online music. iTunes. Face Facts.


Uh no. If you think that the only online music I buy and put on my iPod is through iTunes, you're sadly mistaken. I guess you're about to call me a liar again, huh? I've bought music online from a variety of places, and ALL commercial music I buy gets to my iPod.


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## Justin Thyme (Mar 29, 2005)

Do you or don't you accept this fact?


wikipedia article on Fairplay said:


> The intentional limitation of Fairplay is that it prevents iTunes customers from using the purchased music on any portable digital music player other than the Apple iPod.


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## TiVoPhish (Mar 12, 2003)

I don't accept blindly accept anything on WIKIPEDIA as fact... a lot of it is opinion submitted by people like you and me. See those "edit" buttons?


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## Justin Thyme (Mar 29, 2005)

That was non responsive. Do you think that statement is a fact?


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> Do you or don't you accept this fact?


This is exactly what I wanted clarification about somewhat earlier when it first came up. My understanding is that Fairplay is essentially the DRM scheme that music bought at iTMS contains. Since Fairplay is not available to anyone but Apple, iTMS music can only be played on Apple products. So the music product you buy is tied to one company's products.

Conversely, iPOD will play other music than that bought through iTMS. ie. MP3 (& maybe WAV) ripped easily from CDs, or converted WMA to MP3 (again not too hard to do...) and perhaps some other ways.

I note that I don't believe iPOD took off as a market leader UNTIL the ability to play MP3 was ADDED subsequent to the original iPODs which didn't. That feeds into the market resistence to proprietary products which inhibits their success and usually causes a trend towards openness, which I mentioned quite some time ago.

----------------------

An alternate situation: HP and ink cartridges for their printers might be interesting to discuss here.


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## HDTiVo (Nov 27, 2002)

Another topic: The transition from having to have an AT&T phone on your desk plugged into the phone line.

What if AT&T had latter changed the tones or click pattern?
What if AT&T had added an "&" button/tone to their phones which allowed you to make calls for half price, and didn't publish the tone (or used patent/copyright to protect it?)

What prevented this from happening, and isn't it the same type of thing that could happen in Cable/OCAP but should be prevented?


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> That was non responsive. Do you think that statement is a fact?


No, I think it's an opinion. And since this whole "online music shopping" thing is still in it's infancy, we have no idea what Apple's long-term intentions are. You don't and I don't.

But it IS a FACT that (anyone and) I can get online music purchases to the Pod regardless of who they're bought from.


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## ZeoTiVo (Jan 2, 2004)

TiVoPhish said:


> No, I think it's an opinion. And since this whole "online music shopping" thing is still in it's infancy, we have no idea what Apple's long-term intentions are. You don't and I don't.
> 
> But it IS a FACT that (anyone and) I can get online music purchases to the Pod regardless of who they're bought from.


but to play iTunes music on say a Zen mp3 player you do first have to burn it to CD so you cna rip back as MP3 or WAV, correct ?

and remember that TiVo desktop was blocked from allowing HMO to work with ACC files due to Apple not licensing fairPlay to anyone.

also some media execs were pretty upset when TiVo anounced desktop conversion for shows to the iPod unilaterally after Apple would not talk with TiVo on a way to work with iTunes to do that.

so yes, Apple does indeed protect its revenue stream from iTunes and the iPod lineup very fiercly and wants consumers to just buy the iPod and use iTunes so that they make easy and make it harder for others to the etxent they can.

not saying this is a monopoly as I have never thought about the finer points of defining one, but the reality is that Apple works to keep its products easier to use than others and a big part of that strategy for iTunes is to use fairplay.
More power to them, don't like it don't use them and no need to so it is definitely not a market monopoly.

now cable and sat providers do the same thing by default with their digital cable box. For cable there are franchise agrements that give me no choice on cable provider. I could never use Comcast where I live but at least I can still use a TiVo and later this year I can use a better TiVo and get HD if desired.

I could go to a sat provider and indeed choose from two where I am so that eases the monopoly position somewhat but it does indeed minimize competition through no action of my own, like using iTunes.

so the FCC needs to keep on these few choices of mine and make sure things stay fair among them and fair for me.


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## Justin Thyme (Mar 29, 2005)

TiVoPhish said:


> No, I think it's an opinion.


 Ok. You are entitled to live in your reality.


TiVoPhish said:


> But it IS a FACT that (anyone and) I can get online music purchases to the Pod regardless of who they're bought from.


Why don't you just come out and say the method you are discussing- Competitors to iTunes can just encourage their users to break their DRM so that they can copy the resulting MP3's to their iPod?

Really now. Is that a legitimate "substitute"?

Similarly victims of Kodak's monopolisation of the aftermarket service business had illegitimate substitutes. Notice that the US Supreme court did not tell the independent service operators that they had an avenue to get the parts and service manuals. They could bribe Kodak employees to sell them.

So your "Fact" is once again, a falsehood. There is only one legitimate source for commercial online music for the iPod. Apple has a monopoly on that separate market just as Kodak did.


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## Justin Thyme (Mar 29, 2005)

HDTiVo said:


> This is exactly what I wanted clarification about somewhat earlier when it first came up. My understanding is that Fairplay is essentially the DRM scheme that music bought at iTMS contains. Since Fairplay is not available to anyone but Apple, iTMS music can only be played on Apple products. So the music product you buy is tied to one company's products.
> 
> Conversely, iPOD will play other music than that bought through iTMS. ie. MP3 (& maybe WAV) ripped easily from CDs, or converted WMA to MP3 (again not too hard to do...) and perhaps some other ways.


What were you needing clarification on? Seems to me you have it right. Apple has market power for commercial online music.

Courts could rule that buying a CD online and ripping it to mp3 is a substitute. They could also rule that buying online product from Napster, RealNetworks, Musicmatch, any of a dozen European or Asian online music sites, then similarly breaking the DRM to get it into MP3 is a substitute.

That doesn't seem very likely to me- the RIAA amicus on that issue would probably be very difficult to overcome especially since Apple very likely is not going to provide counter arguments advocating breaking DRM schemes or copying of commercial music.

The owner of the technology is fully entitled to be compensated fairly for their technology. Apple is contractually obligated to place DRM on its Commercial music as are all the other online vendors. Apple chose its own DRM. But by not placing support for any other DRM schemes on the iPod (and there are many others besides Microsoft's), Apple created a separate market in which they exercise Market power as in the case of Kodak. Nothing required them to adding a licensable DRM, it's just that when they did, they created a separate market.

Where they cross the Kodak line is where they refuse to license their DRM to other online vendors. Some might point out that Monopolies are not illegal- you have to show abuse. That is the Grinnel point that ITV brought up. But Apple meets the Grinnel test as well. When Realnetworks implemented some Harmony code that made Rhapsody downloads DRM protected but would run on the iPod, Apple deliberately broke their workaround. Secondly, they use their Market power for price control. They can and have kept their prices higher regardless whether competitors offer more attractive bargains.

TivoPhish likes Apple. I like Apple too and like my iPod. I did some of the work I am most proud of on Apple computers. Apple is to be congratulated on their important innovations and richly deserve rewards for those innovations. Similarly, the Railroad tycoons participated in a tremendous revolution in goods transport that was essential for the industrial revolution. But there were excesses then.

As an observer of the DVR trend, I just wanted to point the existence and dangers of those excesses.


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## davezatz (Apr 18, 2002)

ZeoTiVo said:


> but to play iTunes music on say a Zen mp3 player you do first have to burn it to CD so you cna rip back as MP3 or WAV, correct ?


Prior to v6 of iTunes, JHymm would remove enough encryption/meta data to allow music to play freely on other devices: 
http://hymn-project.org/jhymndoc/

As to the discussion at hand, I dig iTunes as a music store and organizer/aggregator of my content but I'd prefer to use my purchases on my Samsung MP3 player (with builtin FM). It's a closed system - what can I do?


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> What were you needing clarification on? Seems to me you have it right. Apple has market power for commercial online music.


Ok, I thought TiVoPhish was wrong, but it wasn't pointed out clearly enough by someone other than you, leaving it to look uncertain, so I thought I'd highlight it.


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> Ok. You are entitled to live in your reality.Why don't you just come out and say the method you are discussing- Competitors to iTunes can just encourage their users to break their DRM so that they can copy the resulting MP3's to their iPod?
> 
> Really now. Is that a legitimate "substitute"?


No one was talking about breaking the Law Justin. I wasn't referring to anything other than ripping CDs out of iTunes and back into another player. Perfectly legal under iTune usage rules.

"You shall be entitled to export, burn (if applicable) or copy Products solely for personal, noncommercial use."
That's from the iTunes EULA

So yeah, it's legal. And a legitimate way to get music I purchase from iTunes to a Creative Zen player.

Making the rest of your argument pointless. What I was stating did not include breaking the law. My husband has been a producer & recording engineer, is a musician and VP of Sales for a CD replication company. Violating other musicians and record labels copyrights is not something that interests either of us.


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## Justin Thyme (Mar 29, 2005)

TiVoPhish said:


> No one was talking about breaking the Law Justin. I wasn't referring to anything other than ripping CDs out of iTunes and back into another player. Perfectly legal under iTune usage rules.


You are quite mistaken.

Again.

You are stripping the Fairplay DRM to create an MP3 file. Stripping a DRM is illegal under section 1201a of the DMCA:


> Violations Regarding Circumvention of Technological Measures. - (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.


The circumvention technique you are advocating is prohibitted by Federal Law. I along with many others in this community feel that this law is unfair but as a matter of fact, it is the law of the land. Perhaps you feel you are protected from this Federal law by an Apple agreement that supercedes Federal law. Take a look at section 8B of the EULA.

You aren't.


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## HDTiVo (Nov 27, 2002)

Well, one thing I will say is that you can create audio CDs and MP3 CDs with iTunes. That means you can burn to CD WAV files or MP3 files of your iTMS music. So its a quick step from there to transfering the MP3s (or even the WAVs) to another type player.

Since it is a permitted activity to strip the DRM away, the DMCA no longer applies at that point, and the MP3s and WAVs can be used on other devices.

Not withstanding, nowhere does it seem you are given the right to use the music for other than personal, non-commercial use.

This makes it alot like the .tivo way of allowing a DVD burn; From there the video is open to any DVD/video conversion software you want...


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## Justin Thyme (Mar 29, 2005)

Sure. Technically it is simple. Like jaywalking lots and lots of people do it. Doesn't mean the courts currently believes it is legal.

Also simply because action A is legal, and action B is legal, doesn't mean the totality of process A+B is legal. When A+B= circumvention of a DRM mechanism, you are in violation of the DMCA. 

I didn't say I liked it, and I personally believe the law infringes on fair use rights, and ought to be legal, but so far the law sits on the books as is, and the courts disagree with us. The law is the law.

As such, I seriously doubt Apple would raise it as a defence if they ever sued on this. (And I think that is only a matter of time before Realnetworks comes after them.)


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> Sure. Technically it is simple. Like jaywalking lots and lots of people do it. Doesn't mean it is legal.
> 
> Also simply because action A is legal, and action B is legal, doesn't mean the totality of process A+B is legal. When A+B= circumvention of a DRM mechanism, you are in violation of the DMCA.
> 
> ...


look at my edited post.


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## HDTiVo (Nov 27, 2002)

HDTiVo said:


> Another topic: The transition from having to have an AT&T phone on your desk plugged into the phone line.
> 
> What if AT&T had latter changed the tones or click pattern?
> What if AT&T had added an "&" button/tone to their phones which allowed you to make calls for half price, and didn't publish the tone (or used patent/copyright to protect it?)
> ...


One thing accomplished with the phone breakup was that the entire functionality of the telephone system could be accessed and used through an extremely thin client. Regardless of what features a CE phone manufacturer layered onto its product, the core was very simple and cheap.

This is an important lesson for consumer cable STBs. The question of just how thick these things will have to be at their core - which JT is raising - is an essential one. The thicker, likely the better for cable, the worse for CE and you and me.


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## Justin Thyme (Mar 29, 2005)

Let's distinguish here between what we think would eventually be ruled legal after certain laws were thrown out as unconstitutional, versus the laws that are actually on the books as of this date.

Maybe you don't buy my A+B point. DMCA prohibition against circumventing DRM in this respect is no different than money laundering laws against circumventing controls. For example, if it is illegal to move money to Cuba, simply by moving the money to Mexico first doesn't mean that you can say the law against moving money to Cuba "no longer applies at that point" If the sum of legal actions A and B is the circumvention of DRM, then you are in violation of the DMCA. The sum of the actions TivoPhish described strips the DRM and creates a plain vanilla MP3 file. But according to the DMCA, this activity of stripping the DRM is illegal.

It's that simple.

If you had an electronic book protected by DRM, and stripped the DRM by printing out the pages of the book then rescanning them= well sorry, but you are in violation of the DMCA. It doesn't matter how low tech your Krak is. It is still a Krak.

And I agree it is exactly the situation with .Tivo files. I have said many times that this ought to be legal, and that I think it is our right to do it, and if it went to court I think the DMCA would be overturned by the Supreme court.

But as of this date, according to the laws of the land, this activity is against the DMCA law. A bill submitted to congress, the DMCRA is designed to undo this DMCA nonsense. "For example, under the bill a user may circumvent an access control on an electronic book he purchased for the purpose of reading it on a different electronic reader." source

If the activity you are describing were permitted under DMCA, there would be no need for this bill.

If the DMCRA were made law, it would not be illegal for Creative Zen to have a software function that cracked Fairplay so that you could simply download the fairplay file and it would play on the Zen.

Steve isn't going to like that. Nor will Cablecompanies, if S3 machines download OCAP files protected with DRM, strip the DRM and play just the MPeg2 show minus the FF lockout and Advert Popup code.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> You never responded to my point on the Telecom Act.


The Telecom Act does not guarauntee third parties access to the 'whole enchilada'. Neither does it prevent it. The Telecom Act does not force third parties to accept only selling 'stripped down' hardware. Neither does it promise anything else. Nothing is _ever_ that simple. 629 is extremely broad ... OTOH, regulatory agencies are always limited to only exercise the authority explicitly granted to them.

The relevant section of The Telecom Act says:


> The Commission shall (...) adopt regulations to assure the commercial availability, to consumers of programming and services (...) of equipment used (...) to access (...) programming and services


The FCC _must_ adopt (any permissable) regulations to (reasonably) assure commercial availability of equipment.
OTOH
The FCC _must_ (only) adopt regulations (required) to (reasonably) assure commercial availability of equipment.

Nice eh?

Hmmm ... some examples.


Justin Thyme said:


> the 1996 telecom law requires access for third party mechanisms to all programming and services


No, it doesn't. That law would have read:

The Commission shall (...) adopt regulations to assure the commercial availability, to consumers of *all* programming and services (...) of equipment used (...) to access (...) programming and services

But, it doesn't. It just reads "programming and services". *Some* programming and services meets the definition of "programming and services" just as well as *all* programming and services. Third party mechanisms must have access to (some) programming and (some) services. They only need access to (all) programming and (all) services if that will assure commercial availability of equipment.



Justin Thyme said:


> (the 1996 telecom law) does not require third parties offer all programming and services


That is correct. It doesn't. That law would have read:

The Commission shall (...) adopt regulations to assure the commercial availability, to consumers of programming and services (...) of equipment used (...) to access (...) *all* programming and services

But, it doesn't. It just reads "programming and services". *Some* programming and services meets the definition of "programming and services" just as well as *all* programming and services. Third parties must offer (some) programming and (some) services. They only need offer (all) programming and (all) services if that will assure commercial availability of equipment.

The Telecom Act doesn't even require the FCC to prevent cable from leasing certain types of navigation devices that can't possibly be made by a third party. Then again, it doesn't prevent the FCC from doing so if deemed neccessary to assure commercial availability of some equipment.

Section 629 is about jump-starting the free market process. It basically instructs the FCC to expidite the process (note, cable and CE manufacturers were already in discussion when the bill passed). Once there is a viable market for some competitive navigation devices ... some programming ... some services ... it's assumed the free market will take care of the rest (or not, as desired by the consumer).

It is not about creating the end-all-be-all-most-ultimate-ideal-solution for competitive navigation devices. Then again ... it doesn't preclude it if neccessary.

FCC even noted guide services as an 'open issue' (still unresolved) at one point:


> An issue was raised in reply comments in this proceeding, and emphasized in ex parte filings late in the process, regarding whether electronic program guide equipment and guide services are covered by the requirements of Section 629. Based on the plain language of Section 629, it appears clear that the equipment used to access such electronic program guides is "equipment used by consumers to access . . . services offered over multichannel video programming systems" and hence falls within the requirements of Section 629. While we are committed to encouraging the development of the market for the provision of electronic program guide services as part of our broader goal of promoting consumer choice, the record in this proceeding is limited on this issue. Therefore, we cannot adequately address at this time the extent of any obligation of multichannel video programming systems to make such services available pursuant to Section 629 or otherwise. We will monitor developments with respect to the availability of electronic program guides to determine whether any action is appropriate in the future.


http://www.fcc.gov/Bureaus/Cable/Orders/1998/fcc98116.pdf


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## TiVoPhish (Mar 12, 2003)

Justin Thyme said:


> You are quite mistaken.
> 
> Again.
> 
> ...


Nope, I'm not. I have the right to burn CDs from the music I purchase from ANY online store, so doing so through iTMS is no different than doing so through Musicmatch. It is being used for my own personal use, and is quite legal as stated so in the iTunes EULA. What you are stating is WRONG and is stated right in the usage rules, clearly.

- - - - -

From iTunes Usage Rules: "Any burning (if applicable) or exporting capabilities are solely an accommodation to you and shall not constitute a grant or waiver (or other limitation or implication) of any rights of the copyright owners in any audio or video content, sound recording, underlying musical composition, or artwork embodied in any Product.

"You agree that you will not attempt to, or encourage or assist any other person to, circumvent or modify any security technology or software that is part of the Service or used to administer the Usage Rules." source

- - - - -

Burning a CD, which they have given me the right to do (and so does any WMA app) is not me attempting to circumvent or modify any security technology or software that is part of the service. It is doing what the software was DESIGNED TO DO. Further up in the document (if you read it) I'm allowed tp store my music (the product) on certain devices (specifics are not mentioned, but "such as an iPod" is given as an example).

Still think I'm wrong?

Here's a quote from the RIAA's website:

- - - - -

"If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. But the fact that technology exists to enable unlimited Internet distribution of music copies doesn't make it right." source

- - - - -

Still don't believe me?

- - - - -

"But first, it should be clarified that it is legal to make copies of music you own for your personal use, under the Fair Use doctrine." source

- - - - -

Here's another one for ya...

- - - - -

"Under U.S. copyright law, it's generally regarded as fair use for you to record broadcast music or to make copies of music you own, provided that the recordings are for personal use only. However, recording may violate the license agreements of subscription services such as RealNetworks' Rhapsody, which allow you to play music only as long as you maintain your subscription." source

- - - - -

And if you still don't believe me...

- - - - -

"Do I have the right to make a copy of my CD for my own personal use?
Yes. The fair use doctrine allows an individual to make a copy of their lawfully obtained copyrighted work for their own personal use. Allowing people to make a copy of copyrighted music for their personal use provides for enhanced consumer convenience through legitimate and lawful copying. It can also enlarge the exploitable market for the rights holders. The fair use privilege's personal use right is what allows an individual to make a backup copy of their computer software as an essential defense against future media failure.

"Personal use also permits music fans to make 'mix tapes' or compilations of their favorite songs from their own personal music collection or the radio for their own personal enjoyment in a more convenient format, or "format shifting." Another example of acceptable personal use copying of a copyrighted work is "time-shifting," or the recording of a copyrighted program to enjoy at a later and more convenient time.

"As new media present new ways for people to enjoy music, the public's fair use rights accompany them into the electronic frontier. Now, music fans have the right and ability to copy their own music collection onto their own computer storage device and create customized play lists for their own personal use and enjoyment of their music.

"It is important to note that while consumers have the right to listen to their own music collection for their own personal use, they do not have the right, however, to make their music collections available to others by uploading them onto the Internet for public downloading."
source

- - - - -

By the way, it's interesting to note (and I did learn something new):

Musicmatch actually specifies MORE restrictions than iTMS does by stating "You may burn tracks and albums to CDs for your personal use, though you may only burn the same playlist seven times. *You may play tracks on digital music players that support secure Windows Media*" so if you really want to make an argument, make it against Musicmatch because *iTMS doesn't state I can only use "Fairplay / protected AAC equipped devices"* (source)

Napster also includes further restrictions than Apple -- "Once you have burned a Purchased Track to a CD, *you agree not to copy, distribute, or transfer the track from that CD to any other media or device.*" (source)

Isn't that interesting??? *So WHO exactly is preventing me from transferring legally purchased music to my iPod???* According to Napster and Musicmatch, THEY are actually inhibiting my ability, under the Fair Use Doctrine, to make LEGAL copies of the music I BOUGHT.

Maybe I should sue them, eh?

Finally, if you're still unsure...
Under Section 1201(a)(1)(A) of the DMCA: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." That means "no hacking allowed." It doesn't mean you CANNOT use software as intended (like iTunes for burning CDs) to make your own personal, non-commercial copies under the Fair Use doctrine.

Still have doubts? The RIAA isn't sueing Apple or Musicmatch or Napster or RealNetworks for providing software that "circumvents DRM" by burning a CD. The software allows it (with CONTRACTUAL restrictions from some, not law-breaking restrictions), so that is not causing the music purchaser to circumvent anything... it's how the software works. And right from the RIAA's website... go ahead and make copies for personal use - just don't go distributing it on the internet.

Let me restate it for you. It's illegal to circumvent copy protection or to create software that does so -- I am NOT circumventing copy protection by having the provided software I got from a legal party fuction as it's supposed to. Apple isn't circumventing the copy controls (the DRM) because they are Apple's *OWN* DRM scheme, and right in their Usage Rules they are giving your permission to burn CDs and export songs. Apple's EULA imposes no restrictions on what I can do with that burned CD (unlike Musicmatch and Naptser)

So why then do Musicmatch and Napster impose those restrictions? They are crying because my iPod won't play their songs, but they are imposing restrictions so that the music I buy can't be dumped into my iPod from the legal CD I burned from them??? They can be mad at Apple for not licensing Fairplay, but they can't be mad at anyone but themselves for imposing their own restrictions to state WMA-only players, and no copies of that CD you burn.

Let's be even clearer:

Circumvention, according to Section 1201(a)(3)(A), means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner." Guess what? The DRM is imposed by Apple and owned by Apple, so they are giving me the permission to burn a CD (for personal, non-commercial use) and play it on any equipment I'd like. It's a safe assumption that the record companies and musicians who own the copyrights have granted this persmission to Apple, or agreed to do it Apple's way.

And finally, if you still don't believe...

right from the DMCA "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." source


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## Justin Thyme (Mar 29, 2005)

I think the main part I wanted to get to I didn't hear you touch on. It is the bit about the cableco's essentially doing a shell game and defeat the effort to provide real alternatives for STB equipment by simply reproducing the equipment's functionality in software and making that software mandatory. 


dt_dc said:


> The Telecom Act does not force third parties to accept only selling 'stripped down' hardware. Neither does it promise anything else.


 Really? The act states commercial availability of equipment- yeah, but from unaffiliated manufacturers. So for it to be manufactured equipment it would have to be entirely third party for it to be third party. No? If it is unaffiliated equipment, it is unaffiliated. You are not partly a widow. You either are or aren't separate. 


1996 telecom act section 629 said:


> from manufacturers, retailers, and other vendors not affiliated  with any multichannel video programming distributor.


Are there other problems with on the meanings of words? If it is "equipment", then in 1996, it was very clearly equipment containing software even if it is very low level functions. So the equipment discussed does mean, including software.

The notion of a removable mechanism containing Cableco provided mechanism for security is acceptable.

But the notion of software mechanisms created by the MSO? That navigational mechanism is no longer entirely third party is it. In fact without the necessary software for VOD, it can't even navigate the VOD space of offerings. So what kind of commercial availability of third party navigational equipment is that?

Ultimately, you can make a point about any law that they can be interpreted many different ways, and in particular you have made some points that the 1996 law was vague and didn't give the fcc necessary authority to carry out its directives.

However, do the regulators not themselves share responsibility in the interpretation of the meaning of the directive, and their power to carry it out? It seems to me that if an agency is predisposed to take a passive regulatory role, it can read the 629 passage as narrowly as it wishes. Then you might things like 10 year delays resulting in devices that can't even navigate to all the channels without version 2.0 of the spec. You might see the scope of application reduced to just cablecos when the law applies to all carriers.


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## Justin Thyme (Mar 29, 2005)

TivoPhish. I happen to agree the DMCA sucks, but we are discussing what it is, not how unfair we think it is.

Your argument is really rather simple and the component parts are agreed. It is legal to copy to your CD. It is legal to copy from your CD. The entirety of your note is in discussing points thos supporting facts we are in 100% agreement on. . See A is legal. And then B. But if A+B amounts to stripping the DRM, guess what. It's still against the DMCA. Really.

Please consider the Money laundering example. It is immaterial that moving the money to mexico is legal and moving the money from mexico to cuba is itself in isolation also legal. The totality of what you have accomplished is to circumvent the law against moving money to Cuba.



TiVoPhish said:


> Nope, I'm not. I have the right to burn CDs from the music I purchase from ANY online store...


 Agree 100%. Moving the money to mexico is legal.


TiVoPhish said:


> From iTunes Usage Rules: "Any burning


no really, I understand- moving the money to mexico is legal


TiVoPhish said:


> Burning a CD, which they have given me the right to do (and so does any WMA app) is not me attempting to circumvent or modify any security technology or software that is part of the service. It is doing what the software was DESIGNED TO DO.


 Okay already. Moving the money to Mexico is legal.


TiVoPhish said:


> RIAA
> "If you choose to take your own CDs and make copies for yourself ...


Uh your point is that moving the money to Mexico is legal?


TiVoPhish said:


> ...."But first, it should be clarified that it is legal to make copies of music you own for your personal use, under the Fair Use doctrine."


 Okey dokey. Moving money to Mexico is legal.


TiVoPhish said:


> And if you still don't believe me...


No really, I do I do. Get on with it.


TiVoPhish said:


> "Do I have the right to make a copy of my CD for my own personal use?....


Finally. Yeah you bet. Complete agreement there. It is legal to move the money from Mexico to Cuba. Gotcha. More repetitions of mexico to cuba but then to the crucial point where you get to the DMCA


TiVoPhish said:


> .... Circumvention, according to Section 1201(a)(3)(A), means "to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner."...


In the terms of your agreement, Apple gave you the authority to make a CD copy. They did not give you the authority to make an MP3. In fact Apple's page discussing support for non iPod players tells you that you cannot make an MP3 from a Fairplay protected file: "Songs purchased from the iTunes Music Store are encoded using the AAC Protected format and cannot be converted to MP3 format." source

If all this junk you spouted were as legitimate as you make it out to be, could you please direct me to a place where Apple officiially describes to users that this is how people may legally circumvent their DRM?

NO? Gee. Maybe you should give a thought to why not.

Its the same reason that the DMCRA is needed to correct the DMCA.

It's because what you are describing is stripping Fairplay and making an MP3. Circumventing DRM, no matter if you take steps which in isolation are legal, are still illegal under the DMCA.

Sorry- it's still sending money to cuba no matter how many hops you made.


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## Justin Thyme (Mar 29, 2005)

HDTiVo said:


> This is an important lesson for consumer cable STBs. The question of just how thick these things will have to be at their core - which JT is raising - is an essential one. The thicker, likely the better for cable, the worse for CE and you and me.


Obviously, I agree. the kicker to me is that if Caterphone is the principle in force here- it means that cable companies cannot require third parties to accept a necessary module which only the phone company provides.

It this were acceptable, it wouldn't be a third part device- it would merely be a surrogate outer shell for a Ma Bell mechanism.

I personally don't think the regulators have the will to stand up to these fiefdoms.


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> Sorry- it's still sending money to cuba no matter how many hops you made.


Its sending Money w/o DRM to Cuba. It is legal to sending Money w/o DRM to Cuba.

As far as Napster/Musicmatch, you are really renting music, so I understand why it makes sense to be more restrictive contractually regarding what you are permitted to do with it.

-------

The process of getting from Fairplay to open format (MP3/WAV) involves some loss of quality - analogous to, but probably less than, dubbing a record or tape to tape. Indeed, iTunes software dictates the quality of the conversion. Similarly, in the .tivo case, the sanctioned MyDVD degrades the original quality in the process (which degradation I suspect is far greater than could be achieved.)

I surmise that in the iTMS case, the IP owners made the agreement knowing that the copies were not exact digital copies, that it would be necessary to have parallels of use from the analog world to have the digital method succeed commercially (Apple would wisely have negotiated this point,) and that they were still protected by other laws related to copyright - including restrictions to personal, non-commercial use.

Similarly, I suspect TiVo made a decision that its method would not get it into litigation with IP owners - although obviously TiVo did not make contractual agreements with IP owners as did Apple.


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## Justin Thyme (Mar 29, 2005)

But say TivoPhish's proposal for interoperability IS indeed ruled to be not only legal, but a substitute by the courts.

Now say the third party vendor of a telephone wants to dial long distance on a non Ma Bell phone.

Can they say "please enter your 12 digit security code.... Now as an additional security measure please enter your child's social security number. Thank you. The estimated wait time for the next available long distance line is 7 minutes 18 seconds. Please enjoy this Barry Manilow song while you wait...."

Ok HD- you are an old guy maybe you enjoy Manilow... 

Similarly for people who elect not to use OCAP, is it ok to degrade the connectivity to levels similar to what TivoPhish proposes for interoperability?

Maybe DT_DC is right and the law is written so generally that monopolist wannabe's can pretty much jack up rates however they want with the knowlege that the switching costs are so high due to the requirement for trully interoperable hardware, that few people will leave.

They can point to the availability of non OCAP hardware to say- "look! it interoperates too. Ok quit your whining- we know not everyone likes Manilow..."

Nice racket.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I think the main part I wanted to get to I didn't hear you touch on. It is the bit about the cableco's essentially doing a shell game and defeat the effort to provide real alternatives for STB equipment by simply reproducing the equipment's functionality in software and making that software mandatory.


Yes, the cableco's doing a shell game. So's the CEA. So's everyone else involved in the proceeding. All of them are doing the exact same thing ...

"When the majority of people press GUIDE ... I want them to see my guide. If someone is going to get paid to put an add in that guide, or add additional services, programming, and functionality to that guide ... it's most likely going to be me. If someone is going to get paid for a pop-up / telescoping add ... it's most likely going to be me. Etc. And, I'm going to propose regs and standards that make it easier for me to do this ... and more difficult for others to do likewise."

That's what everyone (with a stake in this ... read $$$ to be made or lost) is doing.

I don't know if I'd go as far as "defeat the effort to provide real alternatives". More like "tipping the scales towards my alternative". And that goes for the cablecos AND the CE companies (and everyone else).

But ... this gets to my "OCAP in and of itself is not the problem" point. Some specifics proposed by CableLabs are the problem ...

Let me ask you this:

Cable and the CEA and (almost) everyone else agreed in 2002 that a _version_ of OCAP, with both mandatory support by cable (must provide certain apps via OCAP) and client (required for "interactive digital cable ready" product labeling) could serve as the basis for providing interactive services.


> 4.3 Cable operators' EPG will be provided for advanced interactive digital cable products via OCAP or its successor technology


http://www.ncta.com/pdf_files/CE-NCTAagreement.pdf (CEA/NCTA Memorandum of understanding)


> Ultimately, after arguing for these options that in our view provided more flexibility, the CE group acquiesced in going forward to explore arrangements in which IDCR devices, retail and leased, that are connected directly to the external digital cable network, would run a mutually agreed version of OCAP, and that such a version of OCAP must be used for an IDCR to obtain content on an interactive basis .


http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518185152 (CEA report to FCC)

And even now ... both Cable and the CEA and (almost) everyone else is still saying the same thing.


> The present version of OCAP -- designed for STBs, or for television sets that act as STBs -- presents significant technical challenges (...)
> The CE side is committed to discussing the use of a mutually acceptable version of the OpenCable Application Platform (OCAP) as the basis for the applicable IDCR Interactivity standard.


http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518185152 (CEA report to FCC)

Read cable's and the CEA's proposed regulations. Honestly ... they are not _that_ dramatically different (on the surface ... yes, when you start tracing down the end results of those differences it can be revealing).
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518185152 (CEA)
http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518185072 (cable)

Ok ... so if you're the FCC ... what do you do now?

1) Look at the specific differences in the two reg proposals and two OCAP implementations ... and get input from everyone involved (CEA, cable, others) on how exactly these differences impact retail availability of navigation devices ... try to get CEA, cable, and others to agree / settle / compromise (because if they don't you're going to have to start deciding things for them which one, many, or all parties may find less than ideal) ... and then start making specific determinations of remaining differences / disagreements based on CEA, cable, others input on how each of these differences would impact impact retail availability of navigation devices.

OR

2) Toss the whole thing out because it doesn't suit your 'ideal' solution. Unreasonably tell the parties involved to work on something 'better' ... or arbitrarily turn to someone else to propose something ... or capriciously put your own set of regs / standards on the table ...

And yes, I intentionally used "unreasonable", "arbitrary and capricious" in option 2 ... because those are exactly the terms you'd see in a court challange of any resulting regulations.

Personally ... I'd go with 1.

Everyone's playing the shell game ... how do you see the forrest through the trees and resolve it?

If you look at the players ...
- Everyone has financial incentives
- Everyone wants something from the other parties

I would suggest that makes for a pretty good environment for throwing all the children in a room and only resolving disputes when someone yells mommy (realizing that mommy might give the toy to you ... might give it to your brother ... or might take it away all together).


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## HDTiVo (Nov 27, 2002)

It was always a good night when Manilow was on the Carson Show, but I never saw him in concert. I have seen Neil Diamond and Neil Young, but never the latter did I see on Carson.

I got a Manilow greatest hits CD two years ago from a friend who worked at Sony - seems they give out CDs there like individually wrapped hard candy. So that is another - free! - way to get music which one can manage to put on an iPod.

Anyway, precisely: how inconvenient is it to get - as of right - iTMS onto a non-Apple device? That is the important question since Apple offers an opportunity to do it. If it is ridiculously impractical, that's an issue certainly from the consumer standpoint (esp. the initial decision to buy) and perhaps a legal issue as well. Is the iTMS software unreasonably tied to the Apple hardware, such that there is unfair interference with the consumer's rights to use the music; and are there other circumstances in the market that give Apple an unfair position, for example allowing it to exclude competition either from the music buying or music player markets?

The telephone experience taught the valuable lesson that long distance access codes are a poor way to offer competition in LD. Important not to forget that lesson in the cable arena.

DT-DC is describing the machinations pretty well above. It is a negotiation over not well defined meanings in the law. Remember what I mentioned much earlier about meaning and wording - each party ascribes a meaning to the wording of the statute. A negotiated deal will satisfy each party that the terms fit the wording satisfactorily and that each has gotten enough of the total available spoils.


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> Ok ... so if you're the FCC ... what do you do now?


I have made my proposal of "closed but public" standards for interoperability. I heard you ask questions about whether people could pick and choose and I answered that. But I didn't hear objections.

Regarding government dictating standards: I have written earlier on this and I think we are in violent agreement. Everyone has their own vision of what the standard should be. And we each have some feature we would pound our fist on the table about- Firewire  or Component out HD  - whatever.

Some standards are essential, sure. For basic operation of an economy government has a role there in creating the standards necessary for a foundation for commerce (uniform weights and measures, food quality, rules of the road-antitruct, etc.). I just don't see the argument why government needs to be involved here in the definition of what the standard actually is.

My working proposal has been this:

3) Get out of the arbitration of standards business. Not precipitously- after Cablecard multistream and integration ban is complete. HDTV for Disks is getting hammered out without government intervention. Very big interests with very big axes to grind have come into play. All sorts of similar issues with interactivity and OS dominance. If government were involved like they have been involved in the cablecard initiative, we would be seeing the first bd or hddvd players not in 2006, but in 2016, and the standard would only apply to some subset of HD players- as the POD standards only apply to cable.

So what would the rules be? Well (and of course everyone will say this  )- the rules required by statute (ahem- yes- my interpretation of statute- I recognize other interpretations are legitimate):

Carriers must promptly comply with the interpretation of the 1996 telecom act that access by third party navigation devices to programming and services means access to the substantial majority of programming and services- only omitting those that are technically not feasible to be supported by third party devices. Carriers means all carriers.

Access by a third party mechanism means just that- a third party mechanism must have the access necessary to be able to create a competitor navigation mechanism to the carrier provided mechanism. That means that, aside from security functions, the third party must be able to manufacture a third party device without reliance on local carrier provided mechanisms.

The Carriers may each define the access mechanisms "the API" however they like, they may define formats and protocols however they wish. They may change the protocols however they wish so long as they do not disable legacy third party devices. They may not define formats and protocols in such a way that the technologies used make the third party dependent on the Carrier (or companies affiliated with the carriers) to operate.

Carriers must eat their own dogfood. The API, whatever it is must be the api that the carriers use to deliver their services and programming.

If CEA vendors don't like the protocol because it came from a closed standard, they don't like the computational model that it forces, then tough. If portions of the API are technically or financially impossible for a third party to implement, or a new API was not made public in time to create a competitive offereing to an MSO product that took advantage of it, or they require onerous behaviors (playing of Manilow music) then that is a case for FCC punitive action.

The principle I state here has precedent- it is not a new remedy. It has been used successfully with Microsoft. The DOJ agreement provides for the employment of 3 full time engineers to verify that the APIs that Microsoft uses in its applications do not make use of non public OS system calls or semantics.

This mechanism of requiring APIs be made public is a mechanism that could be applied to any "fiefdom" where interoperability was used as a mechanism of product tying. With applications in music players, Cell phones, and operating systems for interoperating CE devices. Yeah, I am talking about pissing off Microsoft, Apple, and Verizon/Sprint/Tmobile. It's not that I have a grudge against the carriers in particular. This proposal is an equal opportunity offendor, because it will promote competition. Of course all of them will hate it because as we all know the key to brilliant business models answers the question on how you will close out your competition (legally). Interoperability games are certainly not new- there was International Salt Co. v. United States where the bastards in 1947 wanted to require only that their salt tablets be used with their machines, or countless other interoperability/tying schemes.


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## HDTiVo (Nov 27, 2002)

Too what extent can the government get out of the standards business? If each Cable operator used a different interface, would not this be a hardship for CE? Imagine NYC with Cablevision in the Bronx, TWC in Manhattan, someone else in Jersey. What would the retail shelves have to look like, or how thick would the 3rd party devices have to be to work with any cable plant?

How were the cable modem (DOCSIS) and DSL modem standards reached?


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## smark (Nov 20, 2002)

DOCSIS was created by CableLabs.


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## Justin Thyme (Mar 29, 2005)

As smark pointed out earlier, they use a lot of common head end equipment, so my crackpot thinking here is that it is like interaction with video. At first people are writing into video buffers directly (direct manipulation of Cable server apis). Later, as it becomes more sophisticate, it probably becomes more like video card drivers where you talk to virtualized functions written by a third party that grooves on writing such things that talk to Motorolla DAC-6000's or SciAtl equipment. They sell their driver to whoever has cablecard support- Apple, Microsloth, Sony, Tivo. This makes it easy to send an update down to the DVRs when the System administrator mucks around with the configuration, altering the interaction timings slightly.

It's still a work in progress proposal because if it is an API approach the huge portion of the service burden is off the provider. For example in the current scheme if you are certified as Cablecard 1.0 compliant Host, then the carrier Must function with you. Their techs have to come out and have to figure out why their network is not working properly with a compliant host and card.

So support costs shift to the third party box supplier. If they can show they were making legal api calls using proper semantics etc, then maybe they would be entitled to charge the support cost back to the carrier. In my experience with system apis, it is generally the third party apps that are doing highly illegal things with the api- not the system messing up.**

I say the burden is off the provider because you probably only get certified for the basic security, low level functionality of recieving and sending packets, getting authenticated, and getting "shut off" (account access to the network terminated due to non payment). I don't see how you certify a high level third party app like a Guide that is simply using the API is "correct". See what I mean? I know that you used to be able to get your App Windows 95 certified, but that only meant that you followed particular rules they were looking for- well behaved use of new structures like the registry, not grabbing handles of other peoples windows, and dicking with them etc. Good citizen stuff- not actually doing anything horrifying like walking the code and verifying you weren't doing undocumented crud. It just isn't realistic to certify such complex apps, except with a general test suite.

So I can see support costs would be a force that would persuade CE companies to move closer to the cablecos and actually ask for a more comprehensive spec/ certification process. But market forces and not government fiat would force that.

**There was a good example of this on a Blog site of an old time Microsoft engineer from the systems group. Hilarious stories. One story was that when XP was in beta, it "broke" SimCity- Get this, it crashed on XP because the code assumed it was OK to access memory it had released- you could do that under certain conditions in win98, but in XP you get a protected memory violation- so guess what MS does- they actually tweak XP when SimCity is running so that it can do this thing which was highly illegal under win98 and well established programming practice),


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## classicsat (Feb 18, 2004)

HDTiVo said:


> If each Cable operator used a different interface, would not this be a hardship for CE? Imagine NYC with Cablevision in the Bronx, TWC in Manhattan, someone else in Jersey. What would the retail shelves have to look like, or how thick would the 3rd party devices have to be to work with any cable plant?


They'd be the same essentially.

You wouldn't have the same STB in a Cablevision version, TW vesion iO version, Comcast version, and so on, you'd have just the one.

It would assimilate to something useable on your cable system, the moment a CC is married to it. If you move from The Bronx to Long Island, you take the box with you, insert their card, and it will assimilate itself to the new system.


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## classicsat (Feb 18, 2004)

AFAIK, it is not really not that hard really.

For PPVs:

User: Tune PPV channel
Tuner: Tuner PPV channel
Card: Determine PPV status of customer and event. (PPV=allowed, credit=good, event=purchaseable)
Card: If all postitive, request order, if neccesary use parental controls.
Tuner>customer: Interact with customer to authenticate request
tuner>card give okay to purchase.
Card: If Authentication good, authorize event (with whatever authentication methind the access system utilises)
User: Enjoy "The Fight"

For a switched channel:
User: select switched channel XYZ.
Tuner>card tune switched channel
Card>Tuner: tune to carrier:stream (virtual channel 1)
Card>headend:set carrier:stream to switched channel XYZ.

For VOD: Much like a switched channel, except headend will choose a stream from a server, and the user will be able to send pause, reverse, and forward commands.


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## Justin Thyme (Mar 29, 2005)

Right. Hey, it looks like a problem that requires lots of memory and a Virtual Machine.

So let's require a proprietary Java VM so the Cablecos will have a boatload of options- like doing Larry Ellison's Network computer (NC) idea. With the cablecos of course providing the network and servers, and third parties building the NC's (cablecard 2.0 devices) for them.

OTOH- say it is optional to the cablecard 2.0 spec and not required for PPV VOD and switched broadcasts.

Naaahh. What if the CEA questions whether customers want to pay for faster processors and memory needed to run OCAP? What if we use a process where we let the market decide? 

Naaaah. Naive prattle. Nevermind.


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## HDTiVo (Nov 27, 2002)

smark said:


> DOCSIS was created by CableLabs.


Yes, but how did we reach the point where I can walk into a store and by any DOCSIS modem and plug it into any cable system and have my broadband? That concept is part of the necesary model for plug and play digital cable TV.



classicsat said:


> They'd be the same essentially.
> 
> You wouldn't have the same STB in a Cablevision version, TW vesion iO version, Comcast version, and so on, you'd have just the one.
> 
> It would assimilate to something useable on your cable system, the moment a CC is married to it. If you move from The Bronx to Long Island, you take the box with you, insert their card, and it will assimilate itself to the new system.


But only if there is a follow through with creating such a standard. That's where the government comes in because market forces alone would not create this situation.

Left to their own "devices" the cable cos. would change strategies to make a box bought for one system incompatible with another, leading to incentives to rent boxes from the cable co. rather than buy.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I have made my proposal of "closed but public" standards for interoperability. I heard you ask questions about whether people could pick and choose and I answered that. But I didn't hear objections.


More later ... but ...

The first thing I would do is point out (rather sardonically) that the OCAP specification meets every single one of your guidelines in this post.

Under your proposal, CableLabs could just publish the OCAP specs and be done with the entire process (from the cable side at least ... doesn't address the 'all carriers' part of course).

The second thing I would point out is that CableLabs wouldn't even need to publish the OCAP specification. Under your proposal, all they would need to do would be to publish (or rather point to) the DVB specification for data broadcasting
http://webapp.etsi.org/workprogram/Report_WorkItem.asp?WKI_ID=7555

I will admit that making a third party device based on the DVB data broadcasting spec alone would be technically rather difficult ... and therefore financially expensive. But not impossible.


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> More later ... but ...
> 
> The first thing I would do is point out (rather sardonically) that the OCAP specification meets every single one of your guidelines in this post.


Not at all. It does not satisfy this paragraph:


justin thyme said:


> Access by a third party mechanism means just that- a third party mechanism must have the access necessary to be able to create a competitor navigation mechanism to the carrier provided mechanism. That means that, aside from security functions, the third party must be able to manufacture a third party device without reliance on local carrier provided mechanisms.


That includes carrier provided software necessary to do VOD and PPV.

It not possible at this time to access VOD, or PPV functions without reliance on a Carrier supplied piece of OCAP code. If the Carrier provided data on how to manufacture this code, then they would comply. But if they provided the data on how to manufacture the code, then the manufacturer would not have to use OCAP. They could just emit the Server control codes that the OCAP bytecode emitted.


dt_dc said:


> The second thing I would point out is that CableLabs wouldn't even need to publish the OCAP specification. Under your proposal, all they would need to do would be to publish (or rather point to) the DVB specification for data broadcasting.


Really. That is hardly in the precendent set by DOJ settlement with Microsoft on published APIs. Would it have been sufficient of Microsoft to simply point to Intel Pentium assembler instruction set to show Oracle what "API" that SQL server was using to access their other product, Windows NT?

Let me make it plain. There are two different entities. Windows NT is to Cableco Head end servers AS Microsoft SQL server is to Cableco controlled navigation devices that currently do PPV and VOD. They currently do this without OCAP using an API that is closed but not public. All that is necessary is to publish that they use in current products.

That is all. This is not a complex proposal requiring decades of negotiation. Just publish what protocol they are using right now. It must not be any big secret, because their engineers appear to be able to manipulate it just fine.

So I am confused how you think that either of your points apply.


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## Gregor (Feb 18, 2002)

Justin Thyme said:


> Not at all. It does not satisfy this paragraph:
> 
> That includes carrier provided software necessary to do VOD and PPV.
> 
> ...


Interesting discussion here, but I believe the intent of having to use the OCAP supplied code to do the communication is to avoid having a consumer-supplied device that's not quite compliant break the network. It wouldn't be hard to imagine such a non-compliant device breaking something and causing a large outage. Consider this on Super Bowl Sunday and you've got a huge problem.

Otherwise the cable company would have to certify every device that they would allow to run on their network, which would be a tremendous effort. Since all the cable companies headends are often not running the same revision of software, you'd end up with a headend-specific list of supported consumer supplied equipment. Remember, too that that consumer device may never update it's code once shipped, so it becomes a maintenance nightmare as these devices age.

Think of the OCAP code as providing an interface to the cable network, where the interface is on the consumer device, not on the cable network.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I have made my proposal of "closed but public" standards for interoperability. I heard you ask questions about whether people could pick and choose and I answered that. But I didn't hear objections.


The next thig I'd point out is that your general ideals and principals is pretty much _exactly_ what the FCC vocalized in thier first report and order on the subject.

Now, the FCC didn't formalize these ideals into regulations yet. For cable (still not meeting your "All Carriers" ideal) ... they told CableLabs to come up witht their "API" and then everyone could discuss whether (or not) it fit these ideals.

Many of the things you left until "after the fact" are the _exact_ things that are / have been discussed since then. For example, exactly what is (and is not) technically possible or fiscally prohibitive ... what is "onerous behavior" ... exactly what type of "access" needs to be available to create a "competitive product" ...

If the FCC had put these ideals into regulation at the start ... well, we'd probably be exactly where we are now which is figuring out whether (or not) the "API" meets the ideals ...

Things like "technically or financially impossible" ... are never black and white. Everything is technically and financially possible ... it's a matter of balancing technical "possibilities" with resources ($$$, time, etc.)

For example, scrambled analog content. The FCC / CEA / CableLabs went through this exact same process with scrambled analog content.

CableLabs has "The CableLabs API" which allows access to scrambled analog content. They say it's expensive and will take a long time to implement on the headend ... but ... once done the CEA should be able to make navigation devices for scrambled analog content at minimal cost.

CEA says that CableLabs' API is not as expensive or difficult to implement on the headend as cable says it is. However, it is very expensive to implement in navigation devices. If it's implemented, no one is going to make them. But there's "The CEA API" which isn't that expensive on cable ... and will make navigation devices much cheaper / easier to make. If done this way, the CEA will be able to make navigation devices.

CableLabs of course says that "The CEA API" is near-impossible (technically and financially) to implement on the head-end. Not impossible ... it can be done. BUt at great cost. And, they also say that once done, "The CEA API" really doesn't make navigation devices as easy to implement as they say it will.

The ironic part here is the small cable operators. "The CableLabs API" and "The CEA API" are both too expensive for them to implement. If they could afford to start moving those scrambled analog channels to digital, they would be anyway. They can't ... they also cant' afford either solution. The big cable operators that can afford either solution are getting rid of scrambled analog anyway via market forces.

CableLabs, CEA, and FCC eventually mostly agree to "defer" scrambled analog untill later. Cable can still use it, but there's not going to be an API yet for it. Maybe later. The market will probably take care of the issue on its own. I say mostly because, there's still a few parties that would like to see an API for scrambled analog.

Now, lets look at this "after the fact" as you propose. "The CableLabs API" is published. Big cable operators (mostly) get rid of scrambled analog anyway. A few big operator plants still have it ... but not many. Those that do support "The CableLabs API". Small cable operators are the ones mainly using scrambled analog ... but they can't really afford the cost to implement "The CableLabs API" either. CEA doesn't make any boxes that support "The CableLabs API" because they say it's too expensive and most cable operators with scrambled analog don't support it anway. CEA brings a claim to the FCC that 1) "The CableLabs API" is financially impossible to implement for them, and 2) many cable operators don't use it anyway, seeking the "punitive damages" you refer to.

So now, the FCC has to get right back in to the "arbitration of standards" business figuring out who is wrong and who is right. Are the small operators right that it's too expensive for them to implement? If so, do we offer examptions to some operators? If so, where do we draw the line? Is the CEA right that "The CEA API" is a better, cheaper solution?

You're not getting out of the arbitration of standards business at all. You're just deferring it for someone to do later. The exact same issues that the interested parties are discussing / arguing / negotiating / agreeing to now (without much FCC intervention at all) are the exact same issues that someone would have to decide later, after the fact. After cable publishes and implements their API ... someone would have to arbitrate these disagreements.

Why isn't preferable to arbitrate them now ... especially when the parties are (mostly) in agreement without FCC arbitration at all.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> They currently do this without OCAP using an API that is closed but not public. All that is necessary is to publish that they use in current products.


I would call the current API "public". Ok, you have to pay to get at them. But, for the most part, "what they use" is available. Note that this isn't because of any FCC actions at all. It's because of standard market forces. The cable companies insisted on it.

If the cable companies bought Scientific Atlanta Guide Data software on the headend ... they didn't want to be locked in to Scientific Atlanta software on the client. They wanted to be able to write their own ... or get others to do it. Which, by the way, many people have done.

You, or I, or anyone else can write software that talks to all of cable's guide data head end software ... or VOD head end software ... or iPPV head end software. Like I said ... you gotta pay to see the specs. But this isn't the issue. "Not public" APIs are not the issue.

So why don't we have "commercial availability of navigation devices" right now?

The issue is portability / standardization.

I can write software that will talk to BrandA guide data servers (which some cable companies use). I can write software that will talk to BrandB guide data servers (which some cable companies use). I can write software that will talk to BrandC guide data servers (which some cable companies use). I can write software that talks to any one of these ... but not the others. I can even write software that will talk to all three. Of course, writing software that talks to all three is significantly more expensive than writing software that talks to just one. Same thing goes for VOD servers ... switched broadcast servers ... iPPV servers ...

In fact if you pick a (well known) brand of any of these I can probably find you multiple clients from different vendors for any of them.

The issue is portability / standardization.

Now, as noted earlier in the thread ... there aren't a whole lot of _major_ competitors in these spaces. You can break most down in to two or three major ones. Of course, there's also lots of minor ones.

And the competitors don't even always have their own "API". "Use our better/faster VOD head-end software and you can still use the C-Cor VOD client" is a very attractive sales pitch for new entrants to the field.

Again ... all due to standard maket forces.

But ... there ARE different APIs.

Cox uses BrandA in some places ... and BrandB in some others. Comcast uses BrandB in some places ... and BrandC in others. Time Warner uses BrandA in some places ... and BrandC in others. And of course, a few places use D, E, or F.

So, as a CE company do you support BrandA and not the others. Or BrandB and not the others. Or BrandC and not the others. Things of course get even more complicated when you're talking BrandA, BrandB, and BrandC for various components (Guide, VOD, etc). Or do you try to support them all ... very expensive and you're going to be competing against cable-supplied software that only has to support one ...

Your "closed but public" API exists right now. CE companies say that they can't afford to manufacture / market products that will work on _all_ cable systems. On the other hand, they don't see a market for products that work on some Cox systems (but not all) even if the product also works on some Comcast systems (but not all) and some Time Warner systems (but not all).

Cox, Time Warner, Comcast etc. of course have no problem supporting / providing the less expensive clients that will only run on one (or a few) cable systems.

Portability was a major point of discussion early on in the preceedings ...

You keep comparing cable to Microsoft ... I would say a better comparison is to PC makers. Current PC makers ship PCs that run Windows, MacOS, Linux, Solaris, etc. You're asking the PC makers to ship PCs so that the same applications run on any PC they ship. So that third parties can write software that will compete with the software Dell bundles with its PCs. A bonanza for application developers (they get to easily write apps that will run on any PC). But you're basically imposing a government-mandated standardized OS ...

How do you address portability? How do you define "Carrier" above? Does all of cable have to support the same API? Or is it acceptable for Cox, Comcast, and Time Warner to support different APIs (even better, different APIs in different markets). And don't forget about Verizon. Verizon is technically a 'cable company' too. Do they have to support the same 'cable' API or do they get to choose another one?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> It not possible at this time to access VOD, or PPV functions without reliance on a Carrier supplied piece of OCAP code. If the Carrier provided data on how to manufacture this code, then they would comply. But if they provided the data on how to manufacture the code, then the manufacturer would not have to use OCAP. They could just emit the Server control codes that the OCAP bytecode emitted.


Not true. You, me, and anyone else can write software to access VOD from a C-Cor server (that some cable comapnies use). You, me, and anyone else can write software to access VOD from a Tandenberg VOD server (that some other cable companies use). We can do this without using OCAP at all. OCAP does not prevent this at all.

The Tandenberg and C-Cor VOD server APIs are publically available.

OCAP allows you and me to build a box that will run the cable-provided software that will then access VOD regardless of whether they are using a Tandenberg VOD server or a C-Cor VOD server. They (cable) know what servers they are using so ... they will provide software that knows how to talk to it. They might provide their own software, or client software provided by the same company that makes their VOD server, or they could even provide software from a third party (that knows how to talk to their VOD server). The key is ... they know what brand VOD server they are using so ... they only have to provide software that can talk to one brand of VOD server.

But OCAP does not prevent us (you and me and anyone else) from writing software that talks to these servers directly. We could sell it to the cable companies (to put on their boxes). We could put it on our own box and sell it directly to customers. We could make the navigation / selection / GUI / user-visible funtionality exactly how we wanted too. We could integrate other third-party content (internet downloads, whatever) in there. We would basically have the flexibility to make that VOD client app look / feel / behave however we wanted too.

The problem is ... if we're making software to put on our own box and sell directly to the customers ...

Do we support Tandenberg servers? Do we support C-Cor servers? Do we support only one and try to explain to the customer why VOD works on some cable systems ... but not others. Or do we try to support both which would be expensive. It would definately be more expensive than software that only supports one. And we are competing against software that only has to support one. And while Tandenberg and C-Cor might have a very large market share ... they are not the ONLY ones with VOD servers (with their own APIs). There are others.


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## classicsat (Feb 18, 2004)

Gregor said:


> Interesting discussion here, but I believe the intent of having to use the OCAP supplied code to do the communication is to avoid having a consumer-supplied device that's not quite compliant break the network. It wouldn't be hard to imagine such a non-compliant device breaking something and causing a large outage. Consider this on Super Bowl Sunday and you've got a huge problem.
> [//quote]
> That is part of it.
> 
> ...


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## classicsat (Feb 18, 2004)

dt_dc said:


> How do you address portability? How do you define "Carrier" above? Does all of cable have to support the same API? Or is it acceptable for Cox, Comcast, and Time Warner to support different APIs (even better, different APIs in different markets). And don't forget about Verizon. Verizon is technically a 'cable company' too. Do they have to support the same 'cable' API or do they get to choose another one?


This is what the proverbial "stub" OCAP applet does.

The cableco integrator designs an interface applet to interface between the network and the STB UI, using "standard" UI hooks. The "hook" inteface wood have standard ports to order PPVs, call up a switched channel, or call up a VOD program and control it, and get a guide list of VOD and PPV events.

The STB software can make their own isolated VOD or whatver applet if they want, or seamlessy integrate VOD/PPV/Switched channels into their STB UI. Or they can choose to use a full OCAP applet, it is up to the sovtware writer for that STB.


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## dt_dc (Jul 31, 2003)

classicsat said:


> This is what the proverbial "stub" OCAP applet does.


Yes ... proverbial.

AFAIK, there are no standard "stub" OCAP interfaces defined and cable isn't really putting any on the table. Please correct me if I'm wrong.

Yes, if there were ... that would provide a solution for what (some members) of the CEA are looking for ...

OTOH ... even if cable doesn't provide any now ... market forces and all could very well provide them going forward ...


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> If the FCC had put these ideals into regulation at the start ... well, we'd probably be exactly where we are now which is figuring out whether (or not) the "API" meets the ideals ...


Well it is an unprovable point.

Standardization sounds like a really really hard problem until you are talking about over 20 million customers using the same type of VOD server. I was assuming the kind of heterogeneity problem you are talking about until Smark suggested that the opposite was the case, and that the virtualization was serving unrelated goals. Smark is in a position to know for a fact whether this is so, and I have no reason to doubt his credibility.

So I'd like to understand more about your assertions about this big complicated world that is crying out for that the god of virtualization can fix for us.** Are you asserting that today, Panasonic or Sony or Samsung or anyone else could produce a Cablecard box that can access VOD/PPV services for say Comcast's use of a particular VOD brand of server and the only thing stopping them is the cost of paying for the access to the manuals? I'm not sure why that is not a practical business opportunity when you look at the number of customers involved.

Because I see no such initiatives, I am skeptical of this assertion, so perhaps I am misunderstanding what is "publically available" today, or I misunderstood the picture of uniformity that Smark drew. On the former, I believe you are professionally familiar with these types of system installations. I can imagine that having a manual on a VOD server would be quite useless if you did not have information on how the server was configured.

Even if we were to constrain ourselves to particular vendors in particular localities, is it true to say that all such information necessary for an implementation that would work in a particular locality is available?

**Don't get me wrong- I am a big fan of virtualization stuff. I DO question whether non virtualization is practical today even in isolated localities with current public information. I DO question whether the cableco requirement that third party vendors run cableco navigation mechanism locally is conformant to interpretations reflecting the intent of the 1996 telecom act. IF the former is not practical, and the later can be interpreted legitimately to not be conformant, then maybe what we need is new FCC commisioners that will get serious about enforcement of 1996 Telecom Act, not new laws.


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> I would call the current API "public". Ok, you have to pay to get at them. But, for the most part, "what they use" is available. Note that this isn't because of any FCC actions at all. It's because of standard market forces. The cable companies insisted on it.


Nope. Oracle didn't have to pay any extra money to learn what the formerly nonpublic APIs to Windows were. Public means.... public. You go the the Comcast Seattle Website and it has the api calls, the timing semantics, and example code for changing from one VOD channel to the next. No big deal. Just hire some technical writers to document what all the internal engineers know.

No decade long wait. I hear what you are saying- it is real complicated, it involves computers, cableco networks are complex, there is no standard, it will be chaos. This is exactly what the priesthood of the Mainframe said when micros happenned along. For every PC, it was a different hardware and software architecture. And it was absolute chaos.

But guess what- the apis were public and entrepeneurs rose to the occaision.

If it is way too hard for Sony or Samsung to build a service network that stays on top of changes that require updates to STBs, then fine. They need not show up at the party.

I can tell you if I had a web page in the city where I live that I would write the dang interface code. And I wouldn't need any bureaucrat paper pusher theorizing what the best way for me to write that ideal code on an ideal theoretical machine.

When you on the other hand cast my proposal as "Ideal", it implies impracticality or that I am promoting some particular ,model of how computers should interact. Well- what is the vision of interaction? Nope- all I am saying is whatever the model that these particular companies have in particular localities-

Just Make Whatever It Is Public​
That's an ideal? What model of interoperability am I promoting? What theory? What feature wishlist? I'm proposing no such ideals here.

And what is impractical about it? I heard you say it's complex and impractical. I heard you say that its hard to define what games are and are not permissible that the carriers may play with the public info. You know what- you could spend a decade imagining what sorts of BS people could come up with. Let's not wait another decade trying for an imaculate conception. Just publish the dang info and deal with the BS as it comes up. Yet there is something impractical if you don't clutter up a simple "make it public" directive without a bunch rules attempting to deal with hypothetical situations which may never arise.

I challenge the characterization that this is somehow an idealistic (impractical) proposal. If it were true the microcomputer revolution would never have happened.

Offhand, I would say that the current scheme of requiring 10 years to produce the cablecard spec that only half way works is demonstrably a delusionally idealistic and unworkable scheme for high tech industries.


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## Justin Thyme (Mar 29, 2005)

So this thread looks like it is winding down, so I'd like to offer some parting comments.

A lot of folks have been stating- Gee, no Cablecard 2.0 support, I think I want to wait until that comes along... Well all I have to say is you need to know what Cablecard 2.0 is before you say that, and if it is taken the way the cable companies wrote it, you will lose a lot of functionality. Much of this is due to OCAP. Others think OCAP is a good thing because it is like Java, or like Europe's MHP upon which it was based. This is false. Here's how the engineering site for MHP, OCAP and JavaTv describes OCAP:


InteractiveTvWeb.org said:


> OCAP is not really aimed at a horizontal market in the same way that MHP is, and sometimes it shows. This is one of the places where it shows most clearly. It's a way of introducing some elements of a horizontal market (by letting the consumers buy the receiver and allowing receivers to be moved from one network to another) while still retaining a large element of vertical market philosophy (*since the network operator has more-or-less full control over any receiver plugged into their network*). source


Remember, this was written by folks that _like_  OCAP. But is "full control" by the cable operator an exaggeration? Well, whether or not you consider the following OCAP features "OS powers" or not, ask yourself if you want the cable companies to control the following features on your third party box**:

Network approval of Applications required: If an application has not been validated by the Network controlled Monitor, it will not be allowed to run. You dont get to run the apps you want to run.
Ability to modify or block User Inputs: Before any other application gets access to the User input, the network controlled monitor app may modify it. Keys may be remapped or entirely disabled. Cannot be overriden. You like your FF key?
Network controlled Copy Protection: The monitor master application can use the org.ocap.hardware.CopyControl class to enable or disable analog copy protection schemes such as Macrovision. Using the same interface, it can also enable or disable down-conversion of high-definition services to standard definition. Cannot be overriden.
Network controlled Reboot. Hey- you didn't really want to record that anyway.
Forced download of Apps from the network. Deletion of user applications is permitted.
Network control of Flash memory: The network controlled Monitor master application may erase any data stored in flash memory. If the local cableco doesnt like whats another app has in flash memory, its gone.
Is this TV our way? Or the cableco's way?

Is this the product of a regulatory system that is looking out for consumer interests? What if the phone company got to control your third party telephone this way? You think you'd have the features we take for granted or be seeing low long distance rates we do now?

If after 10 years this is the best the FCC can do to fulfill the mandate of the 1996 Telecom law to see that third party devices can fully access the networks of the carriers, then maybe it is time for a change.

** For an more engineering oriented synopsis of the OCAP software architecture, you may find this article very interesting.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> When you on the other hand cast my proposal as "Ideal", it implies impracticality or that I am promoting some particular ,model of how computers should interact.


ideal - An honorable or worthy principle or aim
http://dictionary.reference.com/search?q=ideal

The perfect / impracticle implication was not intended.


Justin Thyme said:


> Just Make Whatever It Is Public


The FCC issued the following regulation as part of its first report and order on implementing section 629 of the telecom act:


> Sec. 76.1205 Availability of interface information.
> 
> Technical information concerning interface parameters that are needed to permit navigation devices to operate with multichannel video programming systems shall be provided by the system operator upon request in a timely manner.


http://a257.g.akamaitech.net/7/257/...cess.gpo.gov/cfr_2004/octqtr/47cfr76.1205.htm

Which ... I think could be interpreted as 'make it public'. Of course, FCC orders (like congressional laws) are subject to interpretation / challanges / etc. But 'make it public' was exactly what the FCC was trying to do here.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Are you asserting that today, Panasonic or Sony or Samsung or anyone else could produce a Cablecard box that can access VOD/PPV services for say Comcast's use of a particular VOD brand of server


Did I mention CableCard in my above rambling diatribe? I was getting at the 'software' API ...

For conditional access ... you can license Powerkey and/or Digicipher directly from Scientific Atlanta (Cisco) and/or Motorola

If you want to make a CableCard box ... you'd have to:
1) Sign the DFAST (unidirectional) license, which would prevent you from using cable's return channel (two-way functionality)
2) Sign the CHILA (bidirectional) license, which would let you use cable's return channel in your own software applications (I think) ... but yes, you'd also have to implement OCAP and the hardware that provided that return channel would ultimately be subject to control by the (cable provided) OCAP resource manager


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> If after 10 years this is the best the FCC can do to fulfill the mandate of the 1996 Telecom law to see that third party devices can fully access the networks of the carriers, then maybe it is time for a change


Let's go the other way and look at what the FCC actually did ... to see how we got to where we are today ... and see where we might be going.

In 1998, the FCC issued a bunch of orders related to implementing the 1996 Telecom Act. Yes, their orders are just as subject to interpretation as laws ...

No 'arbitration of standards' ... no getting in to details ... a bunch of orders which would seem to hit the highlights ...

I mentioned 76.1205 above ... seems to meet an interpretation of 'make it public'. I would note that (AFAIK) no one has challanged / accused any system operator of failing to meet this.

You can take a look at the full report / order by going here:
http://gullfoss2.fcc.gov/prod/ecfs/comsrch_v2.cgi

And searching for DA/FCC Number (field 2) 98-116

The exact regs passed in 1998 were:

1201 Rights of subscribers to use or attach navigation devices
1202 Availability of navigation devices
1203 Incidence of harm
1204 Availability of equipment performing conditional access or security functions
1205 Availability of interface information
1206 Equipment sale or lease charge subsidy prohibition
1207 Waivers.
1208 Sunset of regulations.
1209 Theft of service
1210 Effect on other rules

Now, these regs would seem to hit alot the highlights. No specific standards. No one trying to make, sell or attach a navigation device has (directly) accused any cable company of violating any of these.

This is what I was getting at when I said "well, the FCC has already done alot of what you suggested" ...


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Even if we were to constrain ourselves to particular vendors in particular localities, is it true to say that all such information necessary for an implementation that would work in a particular locality is available?


"Available" is a good way to describe it. IMO, available ... yes.

"Public" gets into a sticky issue.

If Comcast is using a proprietary API from another unafiliated vendor ... Comcast can give you information about that API (Concurrent Mediahawk x.xx), but Comcast can't legally give out any Concurrent proprietary information (protected by patent / copyright). If Concurrant copyrights their APIs and charges others to use them ... Comcast can't turn around and make that "public". Comcast's vendors like "product-tying" and "fiefdoms" just as much as other companies.

Ok, so tying this back to what the FCC actually did:


> Sec. 76.1202 Availability of navigation devices.
> 
> No multichannel video programming distributor shall by contract, agreement, patent right, intellectual property right or otherwise prevent navigation devices that do not perform conditional access or security functions from being made available to subscribers from retailers, manufacturers, or other vendors that are unaffiliated with such owner or operator, subject to Sec. 76.1209 (Theft of service)


The FCC said that Comcast can NOT prevent availability of navigation devices via contract, agreement, patent right, etc ...

Comcast CAN use proprietary technology from an _unaffiliated_ third party. Unaffiliated is the key. Comcast can use proprietary technology from Concurrant. But they can't by contract, agreement, etc. prevent Concurrant from making this available to others. It's up to Concurrant to decide whether or not to make it available to others. Whether to make it public or not. Whether to charge license fees or not. Let the free market reign ...

About the "conditional access or security functions" ...

That's another big part of the FCC's orders. They seperated out the "navigation device" and the "security functions". Comcast can't by contract, agreement, patent right, etc. control the "navigation device". However, they can control the "security functions".


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## Justin Thyme (Mar 29, 2005)

Very interesting indeed.

These regs come under the heading "MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE".

That appears to include non cable. Does that mean that DBS has to follow these regs, or did DBS get a waiver for these regs as well?

Tivo for example has a contract running out in 2007 with DirecTv. Tivo knows very well how to build a DTivo, and an HDTivo with Mpeg4 support. For the DTivo they can use the existing design. I presumed Direct could block this sort of thing, but that's not what one of your regs states:


FCC 76.1202 P said:


> No multichannel video programming distributor shall by contract, agreement, patent right, intellectual property right or otherwise prevent navigation devices that do not perform conditional access or security functions from being made available to subscribers from retailers, manufacturers, or other vendors that are unaffiliated with such owner or operator, subject to Sec. 76.1209.


So excepting any contractual agreements made, does that mean DirecTv cannot legally prevent Tivo from shipping DirecTivo models to compete with their R15?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> These regs come under the heading "MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE".
> 
> That appears to include non cable. Does that mean that DBS has to follow these regs, or did DBS get a waiver for these regs as well?


As noted on other threads ...

Yes, the regs apply to dbs.

Edit:

Incorrect - But yes, for various reasons ... DBS got a waiver (for this particular reg).

Correct - No, the only reg dbs got a waiver for is Sec. 76.1204 (Availability of equipment performing conditional access or security functions)


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## Justin Thyme (Mar 29, 2005)

Oh for cripesake- the Act states waivers are only supposed to be temporary for the period of time necessary to enable some new technology. 

Would Tivo have a reasonable chance of succeeding in petitioning the Waiver to be lifted, (pointing to the 10 year elapsed time), or does that have an iceberg's chance in hell of succeeding?


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## dt_dc (Jul 31, 2003)

dt_dc said:


> Incorrect - But yes, for various reasons ... DBS got a waiver (for this particular reg).
> 
> Correct - No, the only reg dbs got a waiver for is Sec. 76.1204 (Availability of equipment performing conditional access or security functions)


But the end result is the same.

I know D* equipment has an 'access card'. But, in their design most of the actual 'conditional access' and 'security functions' aren't part of the card. They are still integrated with the box.

76.1204 is the part that calls for that seperation of "navigation device" AND "security device" AND calls for MVPDs to provide a seperable "security device".

DBS is expempted from this ... and their current designs don't follow it either. They still control that integrated "security device" inside the box.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Would Tivo have a reasonable chance of succeeding in petitioning the Waiver to be lifted, (pointing to the 10 year elapsed time), or does that have an iceberg's chance in hell of succeeding?


Like I said on another thread ... I dunno. They might. They might not. They'd have a greater chance if joined by others (like other CE companies and maybe even cable and Verizon that would like to see their competitors subjected to the same regs).

If they DO challange they risk the chance of having the FCC explicitly extend the waiver ...

Then again, the FCC MIGHT sunset the waiver ...

The risk of which gives you leverage if trying to negotiate a deal with D* and E* ... even without explictly bringing a challange to the FCC ...


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> So excepting any contractual agreements made, does that mean DirecTv cannot legally prevent Tivo from shipping DirecTivo models to compete with their R15?


So D* can still control the security device inside the box by "contract, agreement, patent right, intellectual property right or otherwise". I guess ... if somehow ... the existing contract allowed Tivo to design a new box and still fall under their existing contract ... yes, they could design a new box. But I would imagine the existing contracts explicitly state "Tivo shall make ______" and precludes anything else.

Then again ... that's not really FCC related ... just standard contract-related law.


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## dt_dc (Jul 31, 2003)

dt_dc said:


> Incorrect - But yes, for various reasons ... DBS got a waiver (for this particular reg).
> 
> Correct - No, the only reg dbs got a waiver for is Sec. 76.1204 (Availability of equipment performing conditional access or security functions)


Gah ... wrong again.

Correct - Certain examptions (not temporary waivers) were built in to Sec. 76.1204 (Availability of equipment performing conditional access or security functions) which DBS at the time (potentially) met.
http://a257.g.akamaitech.net/7/257/...cess.gpo.gov/cfr_2004/octqtr/47cfr76.1204.htm


> The foregoing requirement shall not apply to a multichannel video programming distributor that supports the active use by subscribers of navigation devices that: (i) operate throughout the continental United States, and (ii) are available from retail outlets and other vendors throughout the United States that are not affiliated with the owner or operator of the multichannel video programming system.


Same comments above apply as to success of challanging (I dunno) and risk / benefit (some of each).

There'd be another option which would be to challange in court (either the FCC for not fulfilling Congressional law or an MVPD for not meeting FCC regs).

Same comments above apply as to success of challanging (I dunno) and risk / benefit (some of each).

And THAT was the part I had the most problems with ... the unaffiliated part. Does D* currently meet that part? I dunno ... I don't think they do ... but I can see arguments that they do. You'd really have to go through their contracts with manufacturers to know that (for sure) ... which I don't have access to.

Then again, does every possible type of 'navigation device' have to be available from an unaffiliated source ... or just some types? Can D* open up the reciever marked and keep the DVR market for themselves? And again, I can see arguments both ways (as we noted earlier ... subject to interpretation).

As to whether or not the examption should be there in the first place ... again, I can see arguments both ways. You would think that an MVPD that meet the two conditions above would pretty much have a thriving third party market ...

After all, even if they attach "onerous conditions" or "very bad things" to unaffiliated third parties ... well, if someone somewhere is willing to sign the contracts and make navigation devices and they exist in the marketplace ... well, the conditions can't be too bad. If no one was willing to accept the "third party" conditions in the first place ... there wouldn't be any third party devices. They only devices would be from "affiliated" sources which would contradict with the exemption and ... bam.

If the only condition was a "license fee" for example. If D* charged a $1 billion per STB license fee ... no one would accept it. They'd have to make all their own devices. OTOH, if they charged $1 ... everyone would. But, somewhere in between there's a free-market acceptable number that the market will bear ...

But, if someone is willing to pay higher-than-market rates for an "exclusive" deal ... or the (unseen, non-public) contracts have some semblances of "affiliation / control" ...

So ... anyway:
1) Unafilliated sources
2) All types of navigation devices or just some types
3) Whether the examption should have been there or not in the first place

I can see argumens either way on any of those points ... I dunno whether challanging any of those points would succeed (maybe, maybe not) ... and I see benefits AND rists to challanging any of those points. I think that's what I actually came to on the other thread(s). How's that for definitive? And you wonder why we have a court system to interpret these oh-so-obvious laws ... or why sometimes it's good to let the parties involved come to their own deals and let the free market figure things out ...


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## Justin Thyme (Mar 29, 2005)

OK. A lot to chew on there and a separate subject that I'm going to have to reflect and investigate more about but before returning to OCAP implications, I note you continually refer to DirecTv possibly not complying any longer due to NDS, but you do not refer to Dish Network. I thought all the STBs were controlled by echostar or affiliates, so isn't Dish in the same boat as DirecTv regarding questions on whether there are navigation boxes available from unaffiliated third party sources?


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I thought all the STBs were controlled by echostar or affiliates, so isn't Dish in the same boat as DirecTv regarding questions on whether there are navigation boxes available from unaffiliated third party sources?


I don't follow E* as closely. But yes, same general principals would apply.

Note that "affiliated" doesn't just mean someone you have a deal with ... or a contract with ...

It means some sort of direct control. You own them ... they own you. You have a member on their board ... they have a member on yours. Etc. There's some legal definition on the FCC site and in various Congressional laws ... but it's pretty much just direct control ...

The tricky part gets to some of those contracts. If D* buys 250,000 boxes from Humax and sells them to Best Buy ... well you're buying the box from D* not an unafilliated source. OTOH, if D* licenses Humax to build 250,000 boxes but requires them to sell them to Best Buy for $X ... or you could picture 100 other ways a contract could be structured ... Well then, I haven't a clue.


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## dt_dc (Jul 31, 2003)

Better source for first report and order (one searchable "text" pdf instead of three "image" pdfs)
http://www.fcc.gov/Bureaus/Cable/Orders/1998/fcc98116.pdf

But anyway, my own paraphrase of the 1998 order is:
- Right to attach (or build) "navigation devices"
- No MVPD can "prevent" "navigation devices" via contract, patents, IP, etc.
- However, "navigation device" and "security function" are different / seperate
- MVPD can control the "security function" via contract, patents, IP, etc.
- However, MVPD can only control the "security function" to the point of "inten(t) or function to defeat the conditional access controls of such devices or to provide unauthorized access to service"
- Ie, they can't use their ability to control the "security function" to control the "navigation device"
- MVPDs must provide a seperate "security device" ... ie, POD ... upon request by July 1, 2000
- MVPDs must rely on this POD themselves for new equipment by January 1, 2005
- MVPDs must provide "technical information concerning interface parameters" upon request

A very "make it available and they will build it" approach. No "arbitration of standards" ... we have to wait untill 2003-2004 for that. I honestly can't think of (much) that I would have done differently.

Ok, perhaps they shouldn't have included the nationwide / already availalble exception. But ... well Congress DID tell them to sunset the regulations once a competitive market was established so you have to at least start thinking about that and what that meant. Plus DBS was what ... 4 years old with 4 million subs ... not sure if ordering them to redesign their boxes in two years would have seemed prudent. There was finally some competition in MVPDs ... not sure anyone wanted to squash that for competition of STBs ...

Perhaps they should have defined "navigation device" better ... as noted in the order it's a bit of an open issue (Guide software and guide data vs. boxes and MPEG2 streams).

Perhaps they should have defined "cable service" a little better ... it's a point of contention between the CEA and CableLabs right now ...

Heck, alot of people saw that first report and order and thought we'd have cable boxes at Circuit City by 2000. 1996 Telecom Act ... 1998 FCC Order (in the midst of implementing everything else in the Act like Open Video Systems which went nowhere and ILEC/CLEC reform which has been embroiled in the courts ever since) ... 2000 implementation ...

Of course, CableCard boxes on the shelves didn't happen in 2000 (01, 02, 03, 04). But ... it didn't happen because anyone failed to do anything ordered by the FCC. Or at least ... no one failed to do anything that anyone else complianed too loudly about. Cable actually DID have a POD standard by July 1, 2000. Interface parameters were "available". They even said they would provide PODS to anyone who asked for one. Of course ... no one did.

Hindsight is 20/20 but ... I can't think of (much) I would have done differently (then).


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> ** For an more engineering oriented synopsis of the OCAP software architecture, you may find this article very interesting.


Thanks for the link to the article ... because the paragraph directly before the one you quoted expresses something I've been trying to verbalize ...


> OCAP monitor applications can do an awful lot of things that an MHP navigator can't. In some cases, there are good practical reasons for this, but in other cases it's driven purely by the existing business models of the cable operators. Whether or not this is a good thing is debatable, and some electronics retailers in the US have tried to get the monitor application removed from OCAP (or at least, get a lot of its power removed), but that hasn't happened yet.


The "full control" by the cable company ... the "OS Powers" ...

These come from very specific parts of the OCAP spec (and the CHILA license) ...

This is exactly what the CEA is trying to get changed.

The "full control" and "OS Powers" are not inherent in OCAP simply because it provides an environment where applications from the cable company can be downloaded and run ...

It's because of some specifics in the form of monitor applications (and resource management). And of course ... licensing.

And it's these specific things ... for those specific reasons ... that the CEA is trying to change (and the back and forth at the FCC are only one very small part of this attempt).

They are not trying to scrap OCAP altogether. They aren't trying to scrap the entire idea of downloading and running various applications from the cable company. They aren't even adverse to certain functionality / content from the cable company only being accessable via downloading and running an application (although yes, there are some things they'd like better, more standardized access too) ... because these large / big / general things alone do not provide for the "full control" and "OS Powers".

It's a few *very specific* details ...


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Would Tivo have a reasonable chance of succeeding in petitioning the Waiver to be lifted, (pointing to the 10 year elapsed time), or does that have an iceberg's chance in hell of succeeding?


Also, keep in mind ... as I pointed out in this post ... the FCC's integration ban is (again) being challanged in court. Although it's not the DBS exception that's specifically being challanged ... it's the entire integration ban. So ... could make the question moot.

FCC notice http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518150885
NCTA brief http://www.ncta.com/pdf_files/Final_STB_Brief.pdf

Now, one of the challanges in the NCTA petition IS the DBS exception. So, if the court rules that the integration ban has to be lifted because the DBS exception is 'arbitrary' ... the FCC would have to decide whether or not to re-instate the ban (and presumably if they did, it would be without the DBS exception). However, if the ban is overturned on any of the other challanges ... the question would be moot.

OTOH, if the court denies the petition ... everything stays as it is.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> Very interesting indeed.
> 
> So excepting any contractual agreements made, does that mean DirecTv cannot legally prevent Tivo from shipping DirecTivo models to compete with their R15?


Actually ... I think I jumped too quickly on the POD / Card / whatever issue ...

No ... looking at the FCC regs ... I don't think DirecTV can _legally prevent_ Tivo from shipping DirecTivo models to compete with the R15.

If Tivo wants to keep making boxes ... they can keep making boxes.

In fact, the agreement that expires in 2007 ... they keep referring to it as a "marketing agreement" ... it's not a technical agreement ... a licensing agreement ... whatever ... it's a "marketing agreement".

So Tivo can make a box ... but ... D* can make their boxes and offer them free (with an x month commitment). A Tivo box however ... you gotta pay full price (to Tivo unless Tivo is willing to loose $$$). D* offers tech support on their box ... but for the Tivo box, beyond telling you how to connect the coax ... they can tell you to call Tivo. D* can start using MPEG5 or VC-1 or whatever else they want to tommorrow. With their box ... you get upset at them and ask what they'll do for a replacement. With the Tivo box ... you do the same to Tivo. D* can push software updates and whatever else they want down to their box via their network (big cost savings). With a Tivo box ... the only way to get things that aren't broadcast to everyone via sattelite (like a software update) to the box is via phone / ethernet (a more expensive way to do so). There's probably some other factors that come in to play too ...

So yes, Tivo can make a box.

Can they make it in a way to truly be competitive? Can they make it in a way that enough people will choose it over D*'s box to make it worthwhile?

That's what the POD / integrated security ban is in there for. Providing PODs isn't neccesary to make a box. The other FCC rules take care of that. The PODs / integrated security ban is in there to try to level things out and make it possible for third parties to be more competitive ...

Interesting triangle.


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## HDTiVo (Nov 27, 2002)

I put this up because of all the discussion of iPOD and digital music sales and particularly the point highlighted in the article about proprietary systems hampering future growth. These do not lead to optimal markets.

It should be in the content providers' interest to see a uniform standard. This applies to cable/other TV distribution as well. That's how they can sell or rent the most content for the most revenue. However, in cable, there is substantial cross ownership between cable systems and cable channels, so just how much of an ally can the content providers be in this circumstance?

http://finance.lycos.com/home/news/story.asp?story=54858407

HOT OFF THE WIRE PORTFOLIO NEWS - from Lycos Finance

(NASDAQ:AAPL) Apple Computer, Inc.

Group: Music Sales Via Net Top $1B in 2005
- Jan 19, 2006 12:53 PM (AP Online)
- http://finance.lycos.com/home/news/story.asp?story=54858407

===========================================================================

By JANE WARDELL AP Business Writer

LONDON (AP) -- Worldwide sales of music via the Internet and mobile phones hit $1.1 billion last year, almost triple 2004 sales and accounting for 6 percent of global record companies' revenues, an industry group said Thursday.

The International Federation of the Phonographic Industry, or IFPI, said the legitimate music business was gradually gaining ground on digital piracy. It said research showed that in Europe's two biggest digital markets _ Britain and Germany _ more music fans are now legally downloading music than illegally file-swapping.

"2005 was the year that the digital music market took shape," said IFPI Chairman John Kennedy.

Another big success story was sales of mobile-phone ring tones, which now account for around 40 percent of record companies' digital revenues, Kennedy said.

"In the cellular or mobile world, there is a culture of payment" that didn't exist in the early days of the Internet, said Adam Klein, EMI Group PLC's executive vice president for strategy.

In the case of Internet downloads, Kennedy said a series of court judgments against unauthorized file-sharers in 2005, including Kazaa and Grokster, had helped transform the digital music market.

Kennedy also put Internet Service Providers, or ISPs, on notice that the IFPI would consider litigation against them if they did not join the fight against piracy. Kennedy said he approached prominent ISPs a year ago about a coordinated response and has received "effectively a zero response."

A series of lawsuits against piracy by the IFPI have so far largely targeted individual song swappers for breach of copyright rather than ISPs, which can claim they have no knowledge of piracy occurring on their networks.

The London-based IFPI said music fans around the globe downloaded 420 million single tracks in 2005, more than double the 156 million downloaded the previous year, when record companies' revenues from downloads were $380 million.

In the United States alone, single-track downloads doubled year-on-year to 353 million units in 2005, the IPFI said. Album downloads rose to 16 million and accounted for nearly 3 percent of the total U.S. album market.

In Europe, the United Kingdom led the way with 26 million single-track downloads, followed by Germany (21 million) and France (15 million).

*However, Kennedy warned that a lack of "interoperability" of different portable music devices and download systems was hampering future growth in the digital music market. Industry leader Apple Computer Inc.'s iPod portable player and iTunes download system use different technology than other devices.*

Industry forecasts for future digital growth vary. Some analysts suggest that 25 percent of record company revenue could come from digital sales by 2010, others put the figure at less than 10 percent.


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## Justin Thyme (Mar 29, 2005)

If true that would be very good news. I understand your skepticism about going head to head with R15 since NDS will probably incrementally MeToo Tivo. But Tivo can and will go places NDS will refuse to go. Looking at the broadcom chips, it looks like Tivo can add DirectTv demodulation to the S3 architecture at a cost of a 25 buck chip** Would DirecTv sell a box that allowed you to access content from both the internet and cable companies? The best DBS and cablecos can do is subsidize their boxes and make the pitch that it is cheaper to buy from a single vendor.

Or would such S3 multi carrier support of DirecTv not be permissible (moving DirecTivo security access code to a new chip). I thought the carrier can block a third party on anything having to do with the security functions- using patents or impossible pricing on licensing- What happenned to that roadblock? I thought you were a software engineer- you obviously know your way around the regulatory environment, but I am curious- do you have some background in law as well?

**The BCM4501 dual satellite reciever  on a chip.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I thought you were a software engineer- you obviously know your way around the regulatory environment, but I am curious- do you have some background in law as well?


I've had to sit in alot of meetings like the following:
- Engineering (Me)
- Product Management / Marketing
- Lawyers

With Engineering discussing what is and isn't feasible ... Product Management / Marketing discussing what will and won't sell ... and the Lawyers of course figuring out the legalities, regulatory issues, copyright, patents, etc ...

Fun fun (although occasionally enlightening)

Actually "meeting" is a bit of a misnomer. It's usually a very long drawn out process ...

And a few times ... in a few "smaller" companies / situations ... I've been forced to (try to) wear multiple of the above hats (sometimes successfully ... sometimes not so much). Engineers get hired first ... then the Lawyers, Product Managers, Marketing Departments, Business Development departments, etc. get to come in and clean up our mess after the fact (which I've also been invloved in).


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## HDTiVo (Nov 27, 2002)

Justin Thyme said:


> If true that would be very good news. I understand your skepticism about going head to head with R15 since NDS will probably incrementally MeToo Tivo. But Tivo can and will go places NDS will refuse to go.


This is the question of whether the DVR is a Product or a Feature, where many influential folks say Feature. If the DVR is an embedded feature within a greater product offering, and that DVR is used to sell other profitable features, then TiVo has a business problem selling a DVR as a product against the other DVRs.

So what is TiVo's answer/strategy? That question has been floating in my head for a while without the time to analyze sufficiently to talk much about.

Differentiated features from cable/Sat are needed to make the TiVo DVR worth more than the other DVRs to enough people to have an on going business. Better interface is a start. Season pass...OK. Download entertainment from the internet (with better offerings and easier navigation...) important. In home networking, portability of content to other devices... all important.

So far, TiVo has not proven to be premium enough vs competitors to be succesful. To be fair, even when there basically were no competitors, TiVo did not sell itself well enough to acheive business success.


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## dt_dc (Jul 31, 2003)

Justin Thyme said:


> I thought the carrier can block a third party on anything having to do with the security functions- using patents or impossible pricing on licensing- What happenned to that roadblock?


Yes ... that's the Catch-22 ...

As this Wiki article notes:


> Due to News Corporation's iron grip on VideoGuard, it is impossible to get a licenced VideoGuard Conditional Access Module for a third-party box, or get VideoGuard routines for a software CAM.


http://en.wikipedia.org/wiki/Videoguard

Like I said on the above ... some of that is "my interpretation" of the FCC regs. The FCC regs are a little vague on that line between "conditional access", "navigation device" that _does not_ perform "conditional access", "navigation device" that _does_ perform "conditional access", and "navigation device" without any mention of whether it performs conditional access or not ...

I think it's very intentional since the Telecom Act specifically said that the FCC couldn't compromise an MVPD's "security". So, the FCC explicitly said "conditional access" is the MVPD's ... and they couldn't prevent a "navigation device" ... without themselves explicitly drawing the line between the two. They even noted that to do so would require them to get into the "arbitration of standards business" ... which they didn't want to be in.

That's where the PODs and integration ban come in to play. That allows an MVPD to decide for themselves where that line is ... what part is required for "security" ... and then they have to provide that part (upon request) ... and rely on it themselves ...

A little triangle of interrelated regulations.

The FCC and others even noted that the PODs / integration ban weren't _required_ to open up the market to third party boxes ... it was there because the FCC interpreted the Telecom Act to not only have them pass laws that made it _possible_ to make thrid party boxes ... but to pass laws that would _encourage_ that third party market (in this case, by bringing more parity between the third party and the MVPD's own supplied boxes).

So I think, in _theory_ if NDS refused to license VideoGuard to a third party ... if it weren't for reasons of "security" ... well, that third party could take News Corp, NDS, DirecTV to court. It would be a long, messy, expensive trial ... would require getting in to all sorts of technical details and interpretations of FCC rules / regs ... but I think in the end, the third party would prevail. Then again ... that's my interpretation so ... maybe not ...

But that's just a theory because the market-reality is ... NewsCorp owns DirecTV, and NewsCorp owns NDS, and NewsCorp is controlling those VideoGuard licenses ... and the free market breaks down a little bit ... and you'd have to go to court to figure it all out ... and bringing NDS/DirecTV/News Corp to court wouldn't exactly be a fun day in the park ...

Lets break it up a bit more. Say the MVPD and CA company aren't owned by the same parent (like DirecTV / NDS used to be and is the case with cable and SciAtl / Moto). Well, again ... if the deal between the CA company and MVPD is something along the lines of "MVPD licenses the CA system and gets to determine who else gets licensed" ... well, the MVPD in the end is determining who gets those "security" licenses or not. If the deal is "MVPD licenses the CA system and CA company gets complete freedom to decide who else to license" ... well, it's completely up to the CA company. But neither of those deals tends to happen in a free market. After all, the CA company wants to make money from either 1) vendor lock-in (cable must then buy their boxes) or 2) licensing the CA system to others. The MVPD wants to 1) avoid vendor lock-in (they want to have a competitive market for boxes) while 2) making sure security isn't compromised. So the deal is usually along the lines of "we license the CA system on the grounds that you/us get to make sure its licensed to others if we all assure security isn't compromised". That's what happened in cable. The CA companies locked cable in. Cable didn't like it. They started making sure they wouldn't be. Balance was (somewhat) reached. Sony, Pace, Pioneer, and others can (and did and do) make boxes by licensing CA system. But ... it's (still) a little cheaper / easier for the CA companies to make and sell their own box. Cable decides based on cost / features. CA company makes money directly or by licensing. There's an opportunity for others to make boxes. Etc ...

Things only break down if the CA company out of the goodness of their hearts decides not to license the CA system to others ... which wouldn't tend to happen in a free market ...


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## dt_dc (Jul 31, 2003)

dt_dc said:


> But that's just a theory because the market-reality is ... NewsCorp owns DirecTV, and NewsCorp owns NDS, and NewsCorp is controlling those VideoGuard licenses ... and the free market breaks down a little bit ... and you'd have to go to court to figure it all out ... and bringing NDS/DirecTV/News Corp to court wouldn't exactly be a fun day in the park ...


I wonder if anyone mentioned any of this durring the News Corp / NDS / DirecTV merger talks. I would think someone would have had to ...


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## Justin Thyme (Mar 29, 2005)

The grotesqueness of a lawsuit is not at all dissuasive to some companies. At for them, the credible threat of a lawsuit could motivate Carriers to change their behavior.

MS is getting cozy with DirecTv for portable video, but I could see them coming up to say Dish and making the legal case to the E* lawyers, let them stew on it a few weeks and then give the following pitch- we MS will take you to court and we promise you if we do, we will fight it through to the end and we are confident of winning [grind you to dust etc.] .... OR....

You can sign a deal with us to allow vista approved PCI card producers to manufacture boards with your security technology.

Dish's Problem is they lose control of their UI for MCE devices.

Alternatively, Dish could as a defense against such an MS or Apple move, proactively go out and license the access technology to CE companies who would likely not sell many boxes so that they could point to them and say look- there are third party vendors- no need to fix what ain't broke. Dish does this because it is better to have puny competitors that can be manipulated than immovable object competitors like MS where resistance is futile.


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## classicsat (Feb 18, 2004)

Justin Thyme said:


> If true that would be very good news. I understand your skepticism about going head to head with R15 since NDS will probably incrementally MeToo Tivo. But Tivo can and will go places NDS will refuse to go. Looking at the broadcom chips, it looks like Tivo can add DirectTv demodulation to the S3 architecture at a cost of a 25 buck chip**


As I said before, you need the satellite tuner hardware as well. Although the tuner hardware likely will be minimal, you will still need it. Plus you will need some sort of mediaswitch, to allow the the two outputs of the satellite tuner/demods to input into the DVR/MPEG chip. The BCM7401 can handle 5 inputs, the current S3 would use 4, if that chip is what is used in the S3 TiVo.



> Would DirecTv sell a box that allowed you to access content from both the internet and cable companies?


Unless pressed by regulators to do so, no. Their model is to sell or give away their hardware. which will work only on their service.

Having to sell universal hardware would mean they have to sell the hardware at full price, which is not what the public is expecting.



> Or would such S3 multi carrier support of DirecTv not be permissible (moving DirecTivo security access code to a new chip).


Technically, it is doable. It would all be in contracts and regulators whether or not they can make the unit access DirecTV or Dishnetwork's services.


> I thought the carrier can block a third party on anything having to do with the security functions- using patents or impossible pricing on licensing- What happenned to that roadblock?


AFAIK It is still there. If a manufacturer wishes to build an STB, they have two options:

 Build a tuner requiring a completly modular access unit.
Little contracts or licensing are required, but this would require the CA or service provider to develop and deploy CA modules, and honor ther use.
 Build part or all of the security into the STB, requiring them to purchase and/or license the CA hardware/software, and still, the provider be obligated to honor such a system.

I thought you were a software engineer- you obviously know your way around the regulatory environment, but I am curious- do you have some background in law as well?
[/QUOTE]


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## HDTiVo (Nov 27, 2002)

More on the iTunes analogy...



> Draft Law Clouds iPod's Future in France
> - Mar 17, 2006 05:42 PM (AP Online)
> - http://finance.lycos.com/home/news/story.asp?story=56793991
> 
> ...


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## dt_dc (Jul 31, 2003)

CEA status report to FCC on progress of two-way products. They seem to be working with CableLabs on issues with the OCAP resource manager ...


> Since the date of the last status reports, the parties joint engineering team has continued its work and has made significant progress in how to define how resources in interactive Digital Cable Ready Products (IDCPs) using the OpenCable Application Platform (OCAP) can be shared between cable applications and other applications of the IDCP, in particular how to avoid conflicts in the use of resources within IDCPs by cable applications and other applications.
> 
> http://gullfoss2.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6518332570


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## Justin Thyme (Mar 29, 2005)

dt_dc said:


> They are not trying to scrap OCAP altogether. They aren't trying to scrap the entire idea of downloading and running various applications from the cable company. They aren't even adverse to certain functionality / content from the cable company only being accessable via downloading and running an application (although yes, there are some things they'd like better, more standardized access too) ... because these large / big / general things alone do not provide for the "full control" and "OS Powers".


DT, At the time, I thought you underestimated the OS platform threat that OCAP poses to CE and IT companies.

I was surprized at your evaluation that CE companies were only concerned about particular properties of OCAP.

Apparently, the CE companies are almost united in opposition to OCAP. The only exception are those with fat orders for hundreds of thousands of OCAP boxes from cable companies. Last month, the CEA proposed, along with 11 other major CE and IT companies a standard for how interactive features would be supported in third party devices without OCAP.

One article discussing the filing specifically recognizes what OCAP is: 


> OCAP is a middleware program, in effect an operating system


source

Personally, I think we are going to have interactive features like VOD, PPV and switched video on Tivos without OCAP and other onerous aspects of the CC2.0 spec.


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