Thursday, January 16, 2003

Tennessee law professor Glenn "Instapundit" Reynolds, in his new role as professional blogger (I guess he lacks a Nigerian trust fund), has joined Stanford law professor Lawrence Lessig in ridiculing lawyers for the Sony corporation. The lawyers had threatened suit, under the Digital Millenium Copyright Act (DMCA), against a programmer who had posted to the Internet a method to "hack into" Sony's Aibo "electronic dog" to make it do a new trick. Both Reynolds and Lessig consider the decision to be commercially nonsensical. "Management should begin to demand a business justification for copyright litigation. How does this legal action advance the bottom line?", advises Lessig. "Will calling our customers criminals increase consumer loyalty?" Reynolds goes further:
Lawyers don’t think enough about business considerations, it’s true. But the people whose job it is to think about business considerations need to do some thinking too. Then they can clue in the lawyers.

What did Sony have to lose here? If the trick worked, it could only result in more pleased Aibo owners, and thus more Aibo sales. If it didn’t work, Sony wasn’t going to get the blame. And, who knows, Sony’s engineers might have learned something from the trick, too.
Now, I grant that no population in the world is more renowned for their legendary marketing savvy than law professors. (That's why the law profession's "brand" is so universally beloved, after all.) But even a techie like myself, reading excerpts from Sony's letter to the Aibo hackers, can see why Sony's business people--not just their lawyers--might find publication of the hack worrisome:

  • The letter claims that the hack reveals Aibo software that had been encrypted. There may be trade secrets inside that code that Sony had wanted to preserve.

  • The letter also claims that the hack involved circumventing the content protection mechanism in Sony's Memory Stick technology. The same circumvention could presumably also be used on Memory Sticks used for other purposes--such as to protect digital entertainment content. Putting aside the whole issue of the effectiveness and advisability of copy-protection technology, it's easy to see why Sony management would view the breaking of their own version of it as a major danger to their company's commersial interests.

  • Even taken as a hack of the Aibo tout court, it could easily be used to get the Aibo to do much more embarrassing things than mere dancing. And for a toy to come to be associated with the wrong "uses" can obviously be a marketing disaster. (Sony did eventually provide alternate means to write customizing software for the Aibo, but that only demonstrates that they found the threat of illegal hacks more frightening than the threat of brand-damaging customizations--not that they were necessarily thrilled about the latter.)

  • Of course, Reynolds and Lessig, both longtime opponents of the DMCA, didn't really oppose Sony's lawsuit because they stay up at night worrying about the interests of Sony shareholders. Their commercial advice to Sony is in fact based on their own personal preferences regarding the structure of intellectual property markets. And while they probably genuinely believe that their preferences are also in the long-term best interests of corporations like Sony, it might behoove them to show just a little bit of deference to the dedicated employees of a company that has for decades been spectacularly successful at a task (marketing consumer electronics) about which Reynolds and Lessig obviously know, for all their bravado, less than nothing.

    Then again, what do I know about marketing? I'm no law professor, after all.

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