Andy Ihnatko is none too impressed with Microsoft’s new Zune portable media player. His review essay in what the rest of us think of as Roger Ebert’s newspaper declares the Zune “just plain dreadful,” “absurd,” “immune to success,” and “about as pleasant as having an airbag deploy in your face.” And that is just in the first two paragraphs. (Hat tips to Dr. Weinberger and Boing Boing for the links.)
Now, on this blog I have missed few opportunities to tweak Microsoft for the failings of its products. And it’s not as if the company isn’t constantly providing a stream of crummy technologies for reviewers to pan. (What made that great internal Microsoft iPod video simultaneously hilarious and bittersweet was that Microsoft applies exactly the same philosophy to product development as it does to packaging design — never develop an elegant solution where a kludgy one will do.) But there’s another culprit here who bears a good deal of the responsibility for the failings of the Zune, and that’s the Supreme Court.
The Zune is one of the first major consumer electronics products to be developed since the Supreme Court’s 2005 decision in MGM Studios v. Grokster, which rewrote the rules on how media products could be designed and marketed. Before Grokster, developers of consumer electronics products were believed to enjoy broad immunity from secondary liability for copyright infringement by users of those products as long as their devices were “capable of substantial noninfringing uses,” in the famous formulation from the Sony Betamax case. That was the liability regime under which lots of user-friendly consumer electronics technologies (including the CD burner and the iPod) were developed. So long as Apple knew that the iPod could be put to substantial noninfringing uses (such as playing authorized downloads from the iTunes store), it didn’t need to worry that the iPod was also capable of infringing uses (such as playing MP3s swapped over a file-sharing network).
Grokster puts Microsoft in a very different position from Apple. Under the Grokster inducement test, the courts are empowered to look very closely at a company’s internal records for any indication that it knew and intended for its product to be used to infringe copyrights. The Grokster Court found such evidence in internal corporate memoranda and e-mails, in the defendants’ business plans, and (most tellingly) in the fact that neither defendant “made an effort to filter copyrighted material from users’ downloads or otherwise impede the sharing of copyrighted files.” Indeed, if the lower court’s subsequent opinion in Grokster on remand from the Supreme Court is correct (about which I’m skeptical, but only time will tell), plaintiffs now aren’t required to demonstrate anything except that the defendant distributed a product with the intention that somebody use it to infringe.
This means, in practical terms, that consumer electronics manufacturers must get much cozier with Hollywood if they want to avoid secondary liability for their customers’ infringing acts. The price Hollywood extracts for peace of mind is the inclusion of consumer-unfriendly copy-deterring technologies and inflexible DRM schemes in the products.
Thus, Andy has the shoe on the wrong foot when he writes that:
The iPod owns 85 percent of the market because it deserves to. Apple consistently makes decisions that benefit the company, the users and the media publishers — and they continue to innovatively expand the device’s capabilities without sacrificing its simplicity.
Companies such as Toshiba and Sandisk (with its wonderful Nano-like Sansa e200 series) compete effectively with the iPod by asking themselves, “What are the things that users want and Apple refuses to provide?”
Microsoft’s colossal blunder was to knock the user out of that question and put the music industry in its place.
The iPod and many of its existing competitors were developed in, legally speaking, a different universe. The “capable of substantial noninfringing uses” standard provided breathing room for companies who wanted to put consumers first. That breathing room is now essentially gone, thanks not to Microsoft, but to Grokster. Will some other company come along and find an innovative, but lawful, way around the strictures of the new legal/technological regime the Supreme Court has decreed? Perhaps. But until that happens, we may all need to get used to seeing many more Zune-like products in our future.