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Apple’s actual role in podcasting: be careful what you wish for

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This New York Times article gets a lot wrong, and both podcast listeners and podcast producers should be clear on Apple’s actual role in podcasting is today and what, exactly, big producers are asking for.

Podcasts work nothing like the App Store, and we’re all better off making sure they never head down that road.

Podcasts still work like old-school blogs:

  • Each podcast can be hosted anywhere and completely owned and controlled by its producer.
  • Podcast-player apps periodically check each subscribed podcast’s RSS feed, and when a new episode is published, they fetch the audio file directly from the producer’s site or host.
  • Monetization and analytics are completely up to the podcasters.
  • Some podcasts have their own custom listening apps that provide their creators with more data and monetization opportunities.

It’s completely decentralized, free, fair, open, and uncontrollable by any single entity, as long as the ecosystem of podcast-player apps remains diverse enough that no app can dictate arbitrary terms to publishers (the way Facebook now effectively controls the web publishing industry).1

Apple holds two large roles in podcasting today that should threaten its health, but haven’t yet:

  • The biggest player app: Apple’s built-in iOS Podcasts app is the biggest podcast player in the world by a wide margin, holding roughly 60–70% marketshare.
  • The biggest podcast directory: The iTunes Store’s Podcasts directory is the only one that matters, and being listed there is essential for podcasts to be easily found when searching in most apps.

Critically, despite having these large roles, Apple never locked out other players, dictated almost any terms to podcasters,2 or inserted themselves as an intermediary beyond the directory stage.

Like most of the iTunes Store, the podcast functionality has been almost completely unchanged since its introduction over a decade ago. And unlike the rest of the Store, we’re all better off if it stays this way.

Distribution

Apple’s directory gives podcast players the direct RSS feed of podcasts found there, and then the players just fetch directly from the publisher’s feeds from that point forward. Apple is no longer a party to any activity after the search unless you’re using Apple’s player app.

There’s nothing stopping anyone else from making their own directory (a few have), and any good podcast player will let users bypass directories and subscribe to any podcast in the world by pasting in its URL.

Promotion

Apple’s editorial features are unparalleled in the industry. I don’t know of anyone who applies more human curation to podcasts than Apple.

The algorithmic “top” charts, as far as podcasters have been able to piece together, are based primarily (or solely) on the rate of new subscriptions to a podcast in Apple Podcasts for iOS and iTunes for Mac.

Subscriptions happening in other apps have no effect on Apple’s promotional charts because, as long as this remains decentralized and open, Apple has no way of knowing about them.

Playback

Apple’s Podcasts app for iOS is fine, but not great, leaving the door wide open for better apps like mine. (Seriously, it’s much better, and it’s free. Trying to succeed in the App Store in 2016 is neither the time nor the place for modesty.)

Apple’s app has only a few integrations and privileges that third-party apps can’t match, and they’re of ever-decreasing relevance. They haven’t locked down the player market at all.

So let’s get back to that misguided New York Times article.

What (big) podcasters are asking for

Ignoring for the moment that “podcasters” in news articles usually means “a handful of the largest producers, a friend or two of the reporter, and a press release from The Midroll, who collectively believe they represent all podcasters, despite only being the mass-market tip of the iceberg, as if CBS represented all of television or Business Insider represented all of blogging,” and this article is no exception, what these podcasters are asking for is the same tool web publishers have used and abused to death over the last decade to systematically ruin web content nearly everywhere:

“More data.”

On the web, getting more data was easy: web pages are software, letting their publishers use JavaScript to run their own code right in your “player app” (web browser) to creepily record and analyze every move you made, selling you more effectively to advertisers and letting them algorithmically tailor their content to maximize those pennies at any cost to quality and ethics.

Podcasts are just MP3s. Podcast players are just MP3 players, not platforms to execute arbitrary code from publishers. Publishers can see which IP addresses are downloading the MP3s, which can give them a rough idea of audience size, their approximate locations, and which apps they use. That’s about it.

They can’t know exactly who you are, whether you searched for a new refrigerator yesterday, whether you listened to the ads in their podcasts, or even whether you listened to it at all after downloading it.3

Big publishers think this is barbaric. I think it’s beautiful.

Big publishers think this is holding back the medium. I think it protects the medium.

And if that ill-informed New York Times article is correct in broad strokes, which is a big “if” given how much it got wrong about Apple’s role in podcasting, big podcasters want Apple to add more behavioral data and creepy tracking to the Apple Podcasts app, then share the data with them. I wouldn’t hold my breath on that.

By the way, while I often get pitched on garbage podcast-listening-behavioral-data integrations, I’m never adding such tracking to Overcast. Never. The biggest reason I made a free, mass-market podcast app was so I could take stands like this.

Big podcasters also apparently want Apple to insert itself as a financial intermediary to allow payment for podcasts within Apple’s app. We’ve seen how that goes. Trust me, podcasters, you don’t want that.

It would not only add rules, restrictions, delays, and big commissions, but it would increase Apple’s dominant role in podcasts, push out diversity, give Apple far more control than before, and potentially destroy one of the web’s last open media ecosystems.

Podcasting has been growing steadily for over a decade and extends far beyond the top handful of public-radio shows. Their needs are not everyone’s needs, they don’t represent everyone, and many podcasters would not consider their goals an “advancement” of the medium.

Apple has only ever used its dominant position benevolently and benignly so far, and as the medium has diversified, Apple’s role has shrunk. The last thing podcasters need is for Apple to increase its role and dominance.

And the last thing we all need is for the “data” economy to destroy another medium.


  1. Companies running completely proprietary podcast platforms so far, trying to lock it down for themselves: Stitcher, TuneIn, Spotify, Google. (I haven’t checked in a while: has everyone finally stopped believing Google gives a damn about being “open”?) 

  2. Beyond prohibiting pornographic podcasts in their directory and loosely encouraging publishers to properly use the “Explicit” tag. 

  3. Unless you listen with the podcast publisher’s own app, in which case they can be just as creepy as on the web, if not more so. But as long as the open, RSS-based ecosystem of podcast players remains dominant, including Apple Podcasts, virtually nobody can afford to lock down their podcasts to only be playable from their own app. 

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herrmann
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4 public comments
MotherHydra
348 days ago
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Spot on.
Space City, USA
AaronLMGoodwin
349 days ago
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Right on point.
Apple Valley, CA
jimwise
350 days ago
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...
fxer
350 days ago
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Marco gets a lot wrong, but not this.
Bend, Oregon
hooges
349 days ago
What is this new weird, dirty feeling? Think you call it agreeing?

Do You Own What You Own? Not So Much Anymore, Thanks To Copyright

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Do you own the things you own? No, that is not a riddle being served up by the Cat in the Hat. Nor is it a rhyme spoken by the Lorax -- after all, he speaks for the trees, not for copyright laws.

It seems like every week there is a debate about a new topic involving ownership rights. Consumers are engaged in a constant tug of war with rights holders over what they can do with the products that they already purchased from them. A wide array of questions has confused the understanding of fundamental issues such as when people can resell or repair the things that they bought. The First Sale Doctrine stipulates that a rights holder is no longer entitled to control the distribution of a good once it has gone through a legitimate first sale. However, recent technological developments have created a new disagreement to this long-standing law -- do people ever actually own the things that they purchased? Were the products ever truly sold to them, or is everything instead just a temporary lease?

Take the recent debate over Nest products. Nest is one of the leading companies in "smart" thermostats for personal use. These products utilize a variety of light, sound, and heating sensors to automatically regulate the climate in a home and increase energy efficiency. Back in 2014, Nest purchased a company named Revolv that also made "smart" thermostats and proceeded to continue selling them for $300 each.

This once promising acquisition soon turned into a highly publicized controversy when Nest recently announced that it would be disabling the Revolv product line. At first glance this hardly seems worthy of news coverage. This is not the first time that a company has decided to suspend sales and maintenance of an older product. For example, Microsoft stopped maintaining Windows XP and the Zune, while video game companies slowly stop making new products for their old systems (eg. Playstation and Xbox) upon the release of a new platform. The Nest case has become a lightning rod because as opposed to these examples, it's not just stopping the maintenance, upkeep, or the addition of new features. Nest will shut down the device entirely, rendering it as nothing more than a $300 doorstop.

How can a product that was purchased legally by a consumer be turned off by a flip of the switch by the company that sold it? The answer is as simple as it is troubling -- it is because that consumer does not in fact "own" the product. Yes, they own the physical device. But they only lease the software embedded inside the product that makes it go. And because this is a license, the company that made the product retains the right to shut it down. The product was not sold with any stipulation on the box that said that it carried this risk. A consumer would have to be a copyright lawyer to foresee this result.

Every day new telephones, watches, cars, books, and even household appliances like refrigerators are introduced into the market and have had a tremendously positive impact on our lives. An increasing number of products that did not contain any software five or fifteen years ago now do. As this trend continues to grow, the same phenomenon will grow with it. You will own less and less of your own products and will instead simply be leasing them. Maybe one day you will wake up and discover that you are out $300 because the company decides it would rather sell you a different product and shut yours down.

This is not just limited to electronic products. The use of a license to control the resale of a variety of other, totally unrelated products has also grown substantially. Sports teams like the New York Yankees, Golden State Warriors, and Minnesota Timberwolves have all started to use the very same tactic. You might buy a ticket to the event, but you can no longer freely sell it, donate it to charity, or give it to a friend like any other product that you would purchase. Teams are forcing ticket owners to either sell through a select service (of which they get a cut of the revenue), or get their tickets revoked. These services set a variety of economic controls, such as a pricing floor, in order to limit the ability of people to freely exchange the tickets that they lawfully purchased.

As technology continues to be intertwined with every day goods and services, we have to ask ourselves if we want to accept the erosion of our ownership rights. My organization, and those that we work with do not believe so, and will continue to fight to make sure that you do, indeed, own the things you own. A variety of large and small companies and associations have come together to form the Owners' Rights Initiative. ORI has worked with members of Congress of both parties such as Blake Farenthold and Jared Polis in order to ensure the protection of every persons' ownership rights. They've introduced the You Own Devices Act, or, YODA, to ensure that essential software travels with the hardware you purchase. Representatives Farenthold and Polis are leaders in this arena, and ORI is working to build even more champions. Join us in the fight by contacting your Congressman and Senator and asking them to cosponsor YODA.

Lyle Gore is CEO of Ethos Dynamics, a technology reseller in Atlanta, Georgia. He is the past-President of the United Network of Equipment Dealers (UNEDA) and represents the organization on the Steering Committee of the Owners' Rights Initiative.

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European Greens Present Draft Law On Protecting Whistleblowers

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It's a sad commentary on the state of transparency these days that whistleblowers have come to play such an important role in revealing wrongdoing and abuse, as numerous stories on Techdirt attest. At the same time, whistleblowers enjoy very little protection around the world. Indeed, a countervailing trend to strengthen protection for so-called "trade secrets" makes it increasingly risky to be a whistleblower today. A case in point is the European Union's new law on trade secrets, which completed its passage through the EU legislative process last month. Although it contains some protections for whistleblowers, many feel they are insufficient. Here, for example is Julia Reda, the representative of the Pirate Party in the European Parliament:

The new law also created major uncertainties about the role of whistleblowers and investigative journalists. All information, including information about malpractice, can be protected as a trade secret. As a result, the burden of proof that the public interest outweighs the business interest will now always lie with the whistleblower.
To remedy those flaws, the Greens/EFA group in the European Parliament has put together a draft law. As well as the detailed text, there is a FAQ and a useful two-page summary, which is probably the best place to start. The proposed EU Directive would introduce a uniform law protecting whistleblowers across the European Union. It would apply to both current and former employees and contractors, in all business sectors, both private and public."Protected Disclosures" in this context:
concern harms or threats to the public interest that have occurred, are occurring at the time of the disclosure, or are likely to occur. Protection is given also to whistle-blowers who disclose inaccurate information in honest error.
The intention behind the disclosure doesn't matter: what counts is whether it is in the public interest. Whistleblowers may use any channels, whether official or unofficial, and can be anonymous. One of the most important aspects of the proposal is the protection that would be offered:
exemptions from criminal proceedings related to the protected disclosure, including but not limited to prosecution for the disclosure of classified information, trade secrets or otherwise confidential information, exemptions from civil proceedings and disciplinary measures, and prohibitions of other forms of reprisal, including inter alia dismissal, demotion, withholding of promotion, coercion, intimidation, etc. Action taken against individuals other than the person who made the protected disclosure (for example colleagues or family members) may also constitute prohibited reprisal.
The situation regarding classified information and trade secrets is further clarified in the FAQ:
The Directive protects whistle-blowers who disclose trade secrets as well as confidential information related to national security, though a specific procedure is envisaged for the latter. In case of an overlap or clash between the whistle-blower protection directive and the trade secrets directive, the provisions to protect whistle-blowers must be complied with. The same is true where the information relates to national security issues. Thus, protection of trade secrets may not be invoked to the detriment of the whistle-blower concerned, even if the information revealed is not actually illegal in itself.
That approach is likely to be unpopular with many EU governments and businesses, which will make turning this whistleblower proposal into law a tough battle. Nonetheless, the Greens obviously hope that releasing this draft -- which has no formal legal status -- will help to raise awareness of the need to protect whistleblowers, and ultimately prod the European Commission into proposing its own solution to the problem.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+



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Is It Really That Big A Deal That Twitter Blocked US Intelligence Agencies From Mining Public Tweets?

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Over the weekend, some news broke about how Twitter was blocking Dataminr, a (you guessed it) social media data mining firm, from providing its analytics of real-time tweets to US intelligence agencies. Dataminr -- which, everyone makes clear to state, has investments from both Twitter and the CIA's venture arm, In-Q-Tel -- has access to Twitter's famed "firehose" API of basically every public tweet. The company already has relationships with financial firms, big companies and other parts of the US government, including the Department of Homeland Security, which has been known to snoop around on Twitter for quite some time.

Apparently, the details suggest, some (unnamed) intelligence agencies within the US government had signed up for a free pilot program, and it was as this program was ending that Twitter reminded Dataminr that part of the terms of their agreement in providing access to the firehose was that it not then be used for government surveillance. Twitter insists that this isn't a change, it's just it enforcing existing policies.

Many folks are cheering Twitter on in this move, and given the company's past actions, the stance is perhaps not that surprising. The company was one of the very first to challenge government attempts to get access to Twitter account info (well before the whole Snowden stuff happened). Also, some of the Snowden documents revealed that Twitter was alone among internet companies in refusing to sign up for the NSA's PRISM program, which made it easier for internet firms to supply the NSA with info in response to FISA Court orders. And, while most other big internet firms "settled" with the government over revealing government requests for information, Twitter has continued to fight on, pushing for the right to be much more specific about how often the government asks for what kinds of information. In other words, Twitter has a long and proud history of standing up to attempts to use its platform for surveillance purposes -- and it deserves kudos for its principled stance on these issues.

That said... I'm not really sure that blocking this particular usage really makes any sense. This is public information, rather than private information. And, yes, not everyone has access to "the firehose," so Twitter can put whatever restrictions it wants on usage of that firehose, but seeing as it's public information, it's likely that there are workarounds that others have (though, perhaps not quite as timely). But separately, reviewing public information actually doesn't seem like a bad idea for the intelligence community. Yes, we can all agree (and we've been among the most vocal in arguing this) that the intelligence agencies have a long and horrifying history of questionable datamining of other databases that they should not have access to. But publicly posted tweet information seems like a weird thing for anyone to be concerned about. There's no reasonable expectation of privacy in that information, and not because of some dumb "third party doctrine" concept, but because the individuals who tweet do, in fact, make a proactive decision to post that information publicly.

So, perhaps I'm missing something here (and I expect that some of you will explain what I'm missing in the comments), but I don't see why it's such a problem for intelligence agencies to do datamining on public tweets. We can argue that the intelligence community has abused its datamining capabilities in the past, and that's true, but that's generally over private info where the concern is raised. I'm not sure that it's helpful to argue that the intelligence community shouldn't even be allowed to scan publicly available information as well. It feels like it's just "anti-intelligence" rather than "anti-abusive intelligence."

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Techdirt Reading List: Copyfight: The Global Politics Of Digital Copyright Reform

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We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.


We've been doing a bit of a theme these last few weeks talking about books related to copyright law and copyright reform, having done books on the moral panics used to push bad copyright reform, as well as suggestions on how to do copyright reform right. Last week, we had a good look at the issues of how copyright law and the 1st Amendment don't mix, which included ideas on how to fix that.

This week, the recommendation is for Copyfight: The Global Politics of Digital Copyright Reform -- a more academic take on exactly what the subtitle notes, by Blayne Haggart (who, it should be noted, has written guest posts for us on the "fact-free world of copyright policymaking," and the possibilities for an end of maximalist copyright law.

Copyfight, which came out two years ago, is an in-depth look at how copyright reform has happened in the past, focusing on the now infamous 1996 WIPO Treaty, which was the basis for the DMCA. As we've explained in the past, copyright interests tried to pass the DMCA in the US earlier, but failed to gain Congressional support. So the lobbyists and the politicians packed up for Geneva, and used the backroom negotiations process of trade agreements to create a treaty that required the DMCA, then headed back to the US in 1998 and got the DMCA passed on the basis of "we needed to do it to 'comply with our international obligations'." It was a sleazy process, but to this day, some of those who did it are happy to admit that's how they got what they wanted.

Copyfight's main focus, though, is in looking at how WIPO was then implemented in three different countries -- the US, Canada and Mexico, and what the different implementations mean from a policy perspective. It also tries to put some of this historical analysis into the context of the modern digital copyright fights, talking about how online activism may be shaping the debate as well. It's a good overall read and highly recommended (though not the ebook version, which for reasons that make no sense, costs about 3 times the paper version).

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How Java's Inherent Verboseness May Mess Up Fair Use For APIs

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The latest round of the Oracle/Google API copyright lawsuit has been an attention grabber to say the least. There's plenty of absurdity to go around, but in reading through the coverage and commentary, it became clear that part of the problem is actually in the nature of Java as a statically typed, verbose language. To me, the crux of the case has been in the fact that non-technical people don't seem to get that software and APIs are different things. They don't get that an API is more like a map or a menu, rather than the actual stuff itself. The API is basically just explaining how to get information, not what the information itself actually is.

But this distinction is lost on people who aren't very technical. Sarah Jeong, whose coverage of this case on both Twitter and Motherboard have been phenomenal, wrote a great piece last week calling out this distinction:
The problem with Oracle v. Google is that everyone actually affected by the case knows what an API is, but the whole affair is being decided by people who don’t, from the normals in the jury box to the normals at the Supreme Court—which declined to hear the case in 2015, on the advice of the normals at the Solicitor General’s office, who perhaps did not grasp exactly how software works.
In fact, during the jury selection process, it appears that an effort was made to make sure no one even remotely technical got onto the jury. So much for the jury of your peers, right?

But, a further point drove home for me just how messed up this whole thing is -- along with the recognition that part of the problem is in just how verbose Java is. Last week, one of the witnesses in the case was a top Android programmer, Dan Bornstein, who was actually asked to write some code on a white board, to show what "declaring code" is, as compared to the actual implementation code. While no photos are allowed in the courtroom, EFF's Parker Higgins (who also has been known to guest post here on occasion), did his best to recreate what Bornstein drew:
In response to this, on Twitter, programmer Aviv Ovadya, showed what the same thing would look like in Python, rather than Java:
And, the even clearer, side-by-side version:
Python is a dynamically typed language, rather than statically typed, meaning that the declaring code is much more concise, and much more obviously a specification of what's needed, rather than a code designed to do something directly. In the Java version, if you don't have a fair bit of experience with programming, the difference between the declaring code and the implementation is not that clear. It looks pretty similar. That's why it's probably no surprise that in asking the Supreme Court to reject hearing this case, the Solicitor General of the US wrote:
Nothing about the declaring code at issue here materially distinguishes it from other computer code
As we pointed out at the time, this is just wrong. The declaring code explains the interface for communicating with computer code. The implementation is actual computer code. They're not the same. But in Java... they look pretty similar because Java is so verbose, and requires much more detailed declaring code. In the Python version, the differences are much, much clearer, and you can see how the declaring code is basically just a specification for something you want, rather than a bit of creative coding to do something new.

And thus, what we're left with is the fact that, in part because of how Java works, the declaring code looks too much like regular code and that confuses the hell out of basically anyone who's not a programmer. Remember how, in the first version of this trial, Judge William Alsup first had to teach himself Java to understand why an API should not be covered by copyright? Unfortunately, the appeals court justices (and Supreme Court Justices) did no such thing, and couldn't understand the inherent difference here, sending the case back to Judge Alsup's courtroom.

And, now, even with it being "fact" that APIs are covered by copyright in certain cases in the 9th Circuit (hopefully other courts have a chance to fix this at some point soon...), we're still facing the same kind of argument.

Technically, this round for the trial is supposed to focus solely on whether or not Google's use of the Java APIs is "fair use" under copyright law. But that has made for some weird discussions in the trial, because you don't need fair use if there's no copyright in the first place. And since many people involved were operating under the (reasonable!) assumption that there was no copyright in the API, it's made for some weird discussions in the trial, where everyone has to dance around the copyrightability question. In fact, there's been some discussion between the judge and the two companies over whether or not the jury should even be informed about the results of the first case and the subsequent appeals process.

In the end, it's creating a very messy case, and a big part of that mess is because code is confusing to non-techie folks, and Java's inherent design appears to make it even more confusing -- which does not bode well for copyright and APIs going forward. And that could create a really big mess in the software world. Lots of people who dislike Java have claimed that it is inherently awful for a long time, in part because of how verbose it is. But perhaps they didn't realize that factor might wreck some important concepts in software development far beyond just Java programming itself.

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