by Glenn Caleval
Saturday November 14, 2009
BBC reported mass bans of Xbox consoles by Microsoft in advance of the upcoming release of the Call of Duty: Modern Warfare 2 game. Searches of both the Microsoft site and the Xbox news release sites revealed no public statements on the matter other than the standard Xbox ban faq. Therefore we take the many web stories referring to a “Microsoft statement” as referring to the statement made to the BBC in the course of its reporting.
The easy condemnations of Microsoft’s announcement that it has banned over 1 million Xbox console sets misses the real significance of the questions at stake and the need to enforce legitimate regimes of intellectual property protection while respecting the rights and privacy of users. This is to say that the matter extends well beyond Xbox and Microsoft.
Piracy protection is in the interests of users.
Disregarding ethical questions, widespread piracy creates an environment in which hostile programming can flourish, resulting in serious harm to users. The vectors or entry points of that harm multiply with the number of platforms that can be pirated. In simple terms, the more piracy there is the greater the chance the bad guys will steal your identity, destroy your property or wreck havoc with your reputation.
But it also says there are a million potential entry points into an environment that could cause real damage to innocent bystanders.
So consumers/users need companies to protect against piracy. Legitimate piracy protection measures should be enforced with zeal, not only to protect legitimate corporate profits but to protect users.
The issue therefore is not a question of whether or not Microsoft has a right and a need to defend against piracy.
The issue is the means used to achieve that goal.
Apple has long manufactured into its iPhones the ability to completely disable the equipment if a user is simply running software of which Apple does not approve. It does not matter whether or not the software is legal, paid for or even written by the user herself. If Apple does not approve, the phone can be rendered as useful as a brick.
Microsoft has done the same thing with Xbox, but has restrained itself to preventing access to its online community, Xbox Live. So an Xbox user can modify his Xbox, run whatever software he so desires and the equipment will continue to function (for the most part) but that machine will never be allowed to connect to Xbox live.
So in theory, the Microsoft approach is less draconian than that of Apple.
Consider the phenomenon of locked cell phones in North America. Many countries make the practice illegal to preserve competition in telecommunications, but in Canada and the United States the rule is that if you wish to access a particular cell phone service provider, you can only do so on a physical telephone locked into that provider. Many services will simply refuse to connect a cell phone that was not obtained directly from them.
All three of these situations – MS Xbox bans; Apple disable coding; cell phone lock ins – have arisen out of the inability or bald unwillingness of policy makers to accord as much importance to the rights and privacy of their own citizens as they accord to corporate interests.
Often those corporate interests are legitimate as in the case of Microsoft trying to prevent piracy. Often they are borderline legitimate as in the case of Apple wanting to guarantee that everything run on its equipment is compatible. But, often, those interests have no merit whatsoever as in the case of cell phone companies wanting to manage competition rather than actively engage in competition. This is also a real concern with Apple’s approach, despite its claims of legitimacy.
The point is that Microsoft is taking the hit because it is the first to actually impose its solution on a wide scale. But of all the range of policies, Microsoft’s is actually among the least severe.
Nonetheless, none of these approaches is acceptable.
The claims about protecting intellectual property only “sound like” they make sense and sadly, the majority of legislators are impressed with how things “sound” rather more than how things “are.”
Consider a comparative:
Few products contain more intellectual property than a modern automobile. From the scientific research on materials, massive investments in engineering, unrivaled expenses on design, ergonomics and customer needs, to the very processes that build the components and assemble the cars; the modern automobile is 90% intellectual property and 10% raw materials and labour.
Now consider if the automobile industry was able to enforce rules that the only gasoline you could use in your car is gasoline sold by them. Imagine if, when you left the city in which the car was purchased you were forced to buy additional licenses to use the car in any other city, so that when you left New York, before entering Boston you were required to obtain the proper usage license for Boston. The terms and conditions of your purchase of the automobile provide that you may only use the equipment in the city in which it was purchased.
Consider further that you want to add a new entertainment device for the kids to be occupied in the back seat, perhaps a dvd player. But your license does not allow you to “modify” the automobile, so the only dvd player you can purchase is one sold by the manufacturer of the car.
Now consider if you decided, the hell with it, you paid for the car so you’re putting in that dvd player and taking the kids to Boston. After you get all loaded up, everyone in the car, you turn the ignition and you hear the following come from somewhere in the dashboard:
“This automobile has been banned for violations of the Terms of Use. To protect the XYZ automotive service and its drivers, XYZ does not provide details about bans. There is no recourse for Terms of Use violations.”
This of course is the exact language of the Xbox ban, except you would substitute the word “console” for “automobile and “Xbox Live” for “XYZ automotive.”
If we keep the comparisons straight, the Microsoft policy would not stop you from driving the car until you got to Boston where it would die; the Apple policy would stop you from starting the car at all; and the cell phone policy would prevent you from entering the car in the first place.
In all of these cases, the hard truth is that you never “own” the equipment you have purchased in any meaningful sense of the word. You are being loaned its use for a fee and if you breach the terms of service that you almost certainly have not read and may well not understand if you have, not only will your “property” be of no value to you, you do not have the ability to resell that property because the property itself has been attacked.
There are more legitimate tools available to protect against piracy than allowing the end of private property. Be clear, we are increasingly living in an economy that has corporate property and government property, with private property continually eroded by legislative acts and corporate terms of use policies.
Secure log in and code testing can and should be more than adequate to prevent unpaid guests from gaining access to online gaming environments with illegal copies of games. If my bank can provide me secured access to my financial accounts, it is not conceivable that Microsoft cannot secure access to its Xbox Live service.
Microsoft needs to remember from where it comes. Its massive dominance of personal computing is the direct result of programmers and equipment makers being able to freely innovate on the PC platform. Apple lost that race because from the beginning it insisted that the only software that could be used on its computers was software it sold. No one could buy a peripheral, like a new monitor or hard drive for an Apple machine that Apple did not sell.
Today, if a third party wants to develop new gadgets for an Xbox console, Microsoft should not be standing at the door ready to disable the console. If a creative user wants to tinker with her Xbox to see what she can do, Microsoft should no more punish that activity than it was punished when it was Gates and Ballmer tinkering to come up with an inferior operating system called DOS.
The nonsense about quality always winning out is given the lie by history. If the operating system wars were about quality IBM would have won with OS2. Before that, Quarterdeck would have won with Desqview. Both were unimaginably superior to the offerings on hand from Microsoft at the time.
The move to corporate property and the end of user rights will lead not only to an increasingly controlled society and command economy, but also to the erosion of real innovation and creativity that freedom creates.
As long as consumers and voters are willing to allow themselves to be increasingly constrained, the trend will continue. Corporate power will never be counteracted by political power until and unless voters demand it.
As for this particular episode, there are many alternatives that in the end would be better for Microsoft itself.
If there really were 1 million pirated copies of Microsoft internet games out there it says more about Microsoft’s competence in both technology and marketing than it does about the issue of piracy.
Committing piracy on an Xbox is not a trivial exercise. If nothing else, it takes time. Time to modify the hardware, time to download very large files from pirate sites, time to install that software around the glitches.
It is the rare person indeed who would rather spend most of their spare time for the better part of a week to avoid paying $50 for a game. If there are a million people willing to go through that, then it is likely the $50 means a hell of a lot more to them than to Microsoft and so in marketing, Microsoft would do better to provide an upgrade path than to ban.
The ban is not going to result in the million going out to buy first a new Xbox and then the new games. The $50 for the game is already too high a price for them. So offer an innovator upgrade. Anyone who has successfully modified their box to play a pirated game can get the real thing for $25.
The complaint is that then everyone would install pirated copies. Nonsense. The people who today prefer spending the money to spending the time, getting direct and honest support rather than be willing to suffer the consequences of crashes and other glitches introduced by piracy, in other words the vast majority of consumers, will continue to be good customers.
Tighten up your online security, reward those who can break it and learn from them how to plug those holes, and go after the true pirates with a vengeance but leave the equipment out of it.
Or, accept your own theory that if a crime is committed with property, then that property should never be resold to anyone and stop selling Microsoft Windows and Microsoft Office. Because both of Microsoft’s flagship products have been used over and over again to commit major crimes. So blame the property and remove it from the stores.
