The British ISP industry has spent a small fortune of its customers’ money fighting the people who would, in a saner world, be its business partners – only to suffer a crushing defeat. On Tuesday Lord Justice Richards threw out BT and TalkTalk’s judicial review against the 2010 Digital Economy Act.

Yet as trench warfare goes, they may consider it worth every penny.

It should be remembered that the telcos’ reasons for opposing the Act are very different to those of “digital rights” activists. For the activists, every day is the first day of the Counter Reformation. Every copyright enforcement proposal is fatally flawed: the task is quite simply to say “no” to every one that pops up. But ISPs are in fact a lot more pragmatic.

For the ISPs, it’s all about minimising risk and, at the end of the day, lowering their compliance costs. They don’t think copyright enforcement is spoiling the unicorn’s grazing meadow – they just think it’s going to be scarily expensive. And this concern takes precedence over innovation, the creation of new markets, growth, and ultimately profits. In short, they see more value from keeping the wild west much as it is today than they do from building on it – despite empirical evidence (pronounced “Sky”) that people cheerfully pay for content if it’s convenient and good value.

There is another advantage to the ISPs for pursuing a strategy of prevarication, in that it has successfully delayed the introduction of the 2010 Act. The original timetable envisaged letters being sent to copyright infringers in early 2011 and, should file-sharing have miraculously failed to cease after that, technical measures being imposed against diehards round about now. This is the sanction that copyright-holders wanted – attaching a real consequence to what today is a casual and risk-free grabbing of a bunch of movies and music. The first letters may not now go out until mid to late 2013.

In a shorter timeframe – in under three years, in fact – France introduced the vastly more ambitious (and more bureaucratic) HADOPI framework.

So focus has instead turned to the much vaunted successor to the 2003 Communications Act, and that’s where ISPs and copyright industries have come to blows. Remember that the DEA was a series of amendments to the 2003 Act. The Ministry of Fun says it wants draft legislation by April, and as you read this the Green Paper is being rewritten; the first draft was acceptable to nobody. So MPs will in effect be discussing the DEA’s replacement. Given the foot-dragging from the Mandarinate – our permanent government – it is hard to see how the Act has a vigorous life ahead of it.

In the meantime, private legal cases are filling the vacuum. Last year the Newzbin2 ruling established that ISPs were liable under copyright law – and despite shrill squawks from Consumer Focus and other activists that complying with this would bankrupt ISPs, the cost turned out to be minimal: £5,000 a pop to block a site with the ISP picking up the bill. Sky preemptively halted access to Newzbin2, avoiding the need to reach into its pockets.

But as I wrote when the SOPA hysteria was at its peak, copyright enforcement hasn’t kept pace with the technology; it’s all too easy to evade a web block which means the demand for cheap and effective redress hasn’t gone away.

Mechanisms and agreements must be created to stop the rip-off of creators ranging from you, dear reader, and the wedding photographer bloke down the road to Sony Pictures – and it must scale to encompass all these examples. These agreements don’t have to be legislation if enlightened self-interest prevails. But ISPs remain in a game theory-like trap; the first to move is judged to lose, so nobody budges an inch.

All this leaves the internet looking shabbier than it should be. Britain has a long historical legacy of enlightened private agreements and its citizens pay for movies and music. It should be a testbed for radical market experiments for the world to observe. But can you think of a decent service that’s launched over an IP network since Spotify? The action takes place off the net.

The public preview of Windows 8 has won “rave reviews” according to the Daily Mail, the newspaper that claims to reflect Middle England and is proudly conservative in every sense of the word. The Mail, it’ll have you know, is a feisty opponent of “change for the sake of it”.

So not only do I fear that somebody has spiked the water supply at the Kensington HQ of Associated Newspapers, the Mail’s publisher, I’m puzzled about what it is in Windows 8 that merits a “rave”.

For, apart from an outbreak of violent electromagnetic storms that zap our PCs at random, nothing is going to disrupt ordinary users as much as the design changes Microsoft wants to introduce. So detached from reality has Microsoft become, it touts every one of these disruptions as a virtue.

The problem isn’t Metro, it’s the Maoists

Metro is a user interface designed for smartphones, which I have praised generously, and which looks good and works well on small devices. It may yet mature into something equally attractive and useful on iPad-like tablets. But welded onto a non-touch laptop or desktop PC, it represents a huge negative for the majority of Windows users.

The problem isn’t so much Metro, which by itself represents some good thinking about touch device design. It’s Microsoft’s insistence on inserting Metro between us and what we want to do – and at times Metro is spectacularly inappropriate.

But over at Redmond, the Metro team appears to be completely out of control, like the Red Guard during Mao’s Cultural Revolution. They’ve sent the educated to the countryside to dig trenches, and for good measure broken their spectacles. Nobody seems to be able to say no to the Metro Guard, it seems, for fear of punishment. But welding this immature and inappropriate smallscreen UI into the everyday Windows experience is being carried out in a quite totalitarian fashion.

And this is being welcomed not just at the Daily Mail, of all places, but on blogs and fansites. Apparently, according to WinSuperSite the vanguard of the Red Youth will spend most of its time in Metro while the legacy UI will only be relegated for use by “office workers”.

Hey! That’s us!

I’ll explain a few of the problems here. But first, it must be said, it’s a bit of a crying shame.

Hit me again with your brilliance, Active Desktop

The Windows UI today has considerable room for improvement and simplification, and this can be done without causing such huge disruption to a couple of billion users. The Windows 7 don’t-call-it-a-dock Dock helped non-technical users without causing experienced users too much disruption. Many seasoned Windows users appreciate the Jump Lists, for example, and many who don’t like the feature can happily ignore it. It’s not intrusive.

It’s a shame because the underlying Windows 8 code shows considerable improvement. Windows 8 shows the fruit of several quiet years of throwing out the cruft and refactoring vital portions of the software for performance. Windows 8 boots much faster, applications spring to life, and many common operations just feel more responsive and crunchier – on the same hardware. Windows 8 without the Metro UI might even be the best version of Windows that Microsoft has produced.

So logically, Windows 8 could be released like Apple’s Snow Leopard, a minor $20 upgrade boasting no (or hardly any) new features but performance improvements all round. But of course, Microsoft doesn’t work like that. The accounts team want their margins, the marketing bureaucracy requires something to do. And an industry hangs off this. Consultants smell the prospect of fees, while bloggers hope to cash in with how-to books. Disinterested parties are hard to find.

The problem with Metro in Windows 8 is one of policy rather than execution. At the end of the day Metro is like one of those funky widget layers like Dashboard or Yahoo! Widgets or like a lockdown launcher, like At Ease. But the Maoists have dictated that this ephemeral layer must become the new shell.

You can’t avoid it.

The problems begin with the Metro screen, which is the fullscreen overlay now invoked every time you hit the Windows key, and the mandatory replacement for the old start menu.

This is what Microsoft wants you to see:

But once you’ve installed a few basic apps, this is what you actually see.

You see your iSCSI Initiator, your ODBC Data Sources and all your uninstallers. Microsoft hasn’t hidden anything or cleaned it up. It’s like when the camera accidentally wanders to the side of the soundstage and you see the backs of all the props.

So do you get anything from this new compulsory widget layer? Well, the quality of Metro apps varies, as you can see. The Maps app is very simple, so simple you can’t drop a pin, in fact. This next screenshot is a Twitter feed in the People app. Bear in mind that Microsoft specifies a minimum optimal screen width of 1366 pixels for Windows 8. And look what you get:

What a great use of space.

In time, no doubt, we’ll get more sophisticated desktop Metro apps – with the extra uncertainty that they won’t run on a Windows Phone, and smaller devices. Ho hum.

Here’s an example of both over-simplification and duplication, two issues which plague this release. Finding common items has become a crapshoot. There are two control panels, this being the simplified, Metro settings panel.

Very nice. Now where’s the Bluetooth toggle? Phones have them. It’s a trick question, because it’s not there.

Things get quite Heisenberg from this point on. Various options float in from the right hand edge of the Metro screen: Search, Share, Devices and Settings; Microsoft calls them “charms”. Click Devices and the only item populating it is “Second Screen”. The Windows 7 devices page has been ripped out of Computer and unhappily relocated in Metro Settings:

Now you can’t actually do anything with the devices here. Want to check the toner level of that Brother laser printer, or print a test page? Tough. Right click, and nothing happens.

Another strange inconsistency is task-switching. This seems to be something the Red Guard doesn’t want you to do. In last year’s developer preview of Windows 8, it wasn’t possible – you had to swipe through all your applications one by one. Like you do on Windows Phone. With a back button.

Microsoft has restored Alt-Tab, which now works as it has for the past 20 years (it was introduced in v3.1):

But you’re not supposed to use it in this brave new Metro World, you bourgeois recidivist! You’re supposed to use Win-Tab. But look what happens when you do:

Win-Tab slides open a vertical task bar on the left, with thumbnails of your running apps. Except it doesn’t. Here, Opera and Paint.net and a couple of Explorer windows are running, but not displayed. As task-switching goes it’s useless.

The most persistent annoyance is being thrown back into Metro when you don’t want to be, and while you can change the default handlers for every application Microsoft is going to insist on Metro.

The fix? Make Metro optional

This is just folly. Underneath we have a steadily improving OS, and we have a decent UI layer designed for smaller touch devices. That’s all fine.

I have nothing against Microsoft introducing Metro as an option, as it did with Active Desktop and Windows Widgets.

But inserting Metro into our everyday workflows causes many more context switches (modal switches, in the jargon) than we need. If you’re not on a touch device, there’s lots of pain for very little gain. We are fairly robust creatures who can cope with context switches and UI idiosyncrasies, and the web forces us to do it more often than any UI purist would want (Facebook has its own peculiarities, Twitter and LinkedIn have their own weird design quirks too.)

Microsoft should remember computers are the things getting between us and what we want to do, and making Metro – something so inappropriate for non-touch users – mandatory is completely unnecessary. Time to tame the Metro Guard, I think. ®

“Peak Oil” is the point at which the production of conventional crude oil begins an irreversible decline. The effect of this, some say, is that scarcity-induced prices rises would require huge changes in modern industrial societies. For some, Peak Oil was the call of Mother Earth herself, requiring a return to pre-industrial lifestyles. One example of this response is the “Transition Towns” network, a middle-class phenomenon in commuter belt towns in the UK.

But in a must-read research note [PDF] issued this month (which is also implicitly critical of the industry) this is premature.

Thanks to “unconventional” oil and gas, which can be tapped thanks to technological advances, Peak Oil is dead.

The analysts write:

The belief that global oil production has peaked, or is on the cusp of doing so, has helped to fuel oil’s more than decade-long rally. The resurgence of US gas production to well over its 1970s peak and into the number one slot globally over the last seven years is a result of hydraulic fracturing – fracking – techniques being applied to shale gas reserves across the US. The same companies are now using the same techniques on shale oil reserves, with results that in many cases look as promising as the early stages of the shale gas revolution. US oil production is now on the rise, entirely because of shale oil production, as conventional sources such as Alaska or California are structurally declining, and as Gulf of Mexico production is poised for a post-Macondo recovery.

Doomsayers had reasonable grounds for suspecting this – but failed to address the bigger picture, one which includes technological innovation. They simply wanted Doomsday a little too badly. The briefing note continues:

Belief in peak oil was bolstered by the repeated failure of supply to live up to the optimistic forecasts put forward by various governmental and international energy agencies. The IEA, the industry benchmark, made a habit of putting forth forecasts for the coming year of big gains in non-OPEC supply, only to spend the next 18 months revising those forecasts lower

Citigroup also castigates the oil industry and experts for failing to take this into account – over-promising and delivering late.

It’s a must read. Oil production is far more contingent on upstream investment than many people realise. When it does respond, it responds rapidly; the US well count has increased 500 per cent in three years.

So what now?

Yet Peak Oil isn’t the only casualty of recent energy developments. The death of Peak Oil kicks away the underpinnings from a great deal of policy-making by our bureaucracies and their advisers. Over the past two decades, we’ve seen the mushrooming of the “sustainability” sector, which is almost completely dependent on state funding and which shares similar erroneous assumptions.

The proposition we’re invited to accept in each case is that modern industrial society is founded on a resource which is being depleted and which cannot be easily replaced. The second part of that is rather crucial. Peak Oil thinking was based on the idea that crude oil couldn’t be replaced by unconventional oil and, in time, with synthetic hydrocarbons. We’re now seeing unconventional oil production ramp up, and in a decade the low-carbon synthetic replacements for oil will be in production, too, assuming oil remains at $40-$50 a barrel.

The deeper problem shared by both “sustainability” and “Peak Oil” thinking is that both camps insists on thinking of a resource not as a vector, but as a thing – a thing that’s rare, unique and irreplaceable.

The Victorians once depended on whale blubber for lighting and heating – and fretted, much like today’s sustainability crowd, about what might replace it. Human inventiveness rapidly provided an alternative. And policy-makers were once gripped by the constrained and volatile supply of saltpetre, the nitrate being essential to both feeding their populations and making things that went bang. Then chemistry came to the rescue. Of course a resource is a combination of things – the limits of human invention being just one.

This inflexibility in thinking is proving fatal.

Of course, simply because we are quite good at inventing stuff doesn’t mean utopia is imminent or that politics as usual will somehow be suspended. Future technologies will still be priced, rationed and abused. But it signals the beginning of the end of what we might call Apocalypse Politics – where unpopular and daft policies gain traction simply because their advocates claim that they’re justified by some catastrophic and irreversible historical trend.

Nobody but the superstitious can really believe that any more.

The leader of the French National Front party, Marine Le Pen, wants Hadopi scrapped and replaced with a blanket licence to compensate creative industries. The extreme right party’s freetard-friendly gambit has caused the Socialists, who also oppose Hadopi, to rethink their policies.

According to The New York Times, Parti socialiste members have moved away from support for a blanket licence, and now support Hadopi alternatives such as site-blocking – and may still tax ISPs and search engines.

Alliances between the pirates and far right parties are increasing. Most notoriously, the Pirate Bay was bankrolled by Carl Lundström, the heir to the Wasabröd fortune. Lundström financially supported the Progress Party and the racist Keep Sweden Swedish campaign, and was linked to a racist attack in 1985. [Swedish / English Translation.]

One participant in the recent ACTA demonstration in Vienna reported:

“The event was very ‘young male geek’ oriented, with a few sprinkles of diversity, mainly some political parties, including some some right wing fringe parties I had never heard of before.”

The Pirate Party UK was founded on similar angry-bloke disaffection, and feelings of victimisation and powerlessness, which far right parties have traditionally exploited.

Despite electoral success in Berlin, the Pirate Party has flopped in Sweden and the UK. In the wake of the Digital Economy Act, the PPUK could barely muster over 100 votes – or 0.3 per cent of the vote – in each constituency in which it fielded candidates.*

More problematic for politicians of any hue who wish to woo the ideological copyright infringement vote is that whacking freetards remains popular with the general public, who reason that if they pay, then others shouldn’t be able to freeload. Half of the public backed internet suspensions in last year’s Google survey.

Even people who admit to downloading unlicensed goodies support stronger enforcement penalties. Work that one out.

Bootnote

It doesn’t help that they’re not completely on top of events.

“Feargal Sharkey you certainly do not speak for me!” stormed the PPUK’s Laurence ‘Loz’ Kaye at the anti-ACTA demonstration 10 days ago. We infer that he was unaware that Sharkey had quit his post as head of UK Music last November.

A mob that’s filled with self-righteous fury isn’t very discriminating.

In 2000 an angry crowd attacked a paediatrician after he was mistakenly named as a paedophile. Last year the Olympic cyclist Chris Hoy was abused by football fans who mistook him for match referee Chris Foy. And last month, a small Scottish farm certification agency, SOPA, received torrents of abuse from ‘digital rights’ campaigners who were upset about the United States’ proposed Stop Online Piracy Act.

Once it’s got its blood boiling, the mob needs new targets. Now it’s set its sights on ACTA, an international treaty to combat counterfeiting and piracy. Rallies will take place tomorrow. ACTA lost its digital copyright provisions long ago, but the mob hasn’t noticed. Many of the claims made for ACTA are completely false.

Even Ars Technica, which fomented the anti-SOPA campaign, has felt obliged to correct the anti-ACTA myths that are circulating on social media. The website recently lamented that the internet is “awash in inaccurate anti-SOPA”, busting the myths of the anti-ACTA crusaders.

ISPs are not obliged to monitor traffic, Ars points out. ACTA contains no web-blocking provisions or graduated response regime. It won’t block generic drugs.

In fact, as I pointed out at the time, ACTA is a non-binding agreement that doesn’t, in any case, apply to countries such as the UK, which have their own IP enforcement initiatives. The passage of the Digital Economy Act in 2010 made the entire discussion moot.

I recently asked the Dark Side what they hoped to get from ACTA.

“Nothing. The trademark and counterfeiting people really need it. There’s nothing in it for us, or for any copyright holders,” one entertainment industry lawyer told me.

Ars is fighting a lonely battle. If somebody has become alarmed and wants to believe the worst – they will. There’s a long history of net activists claiming that proposals will “break the internet” and are “the worst laws ever” because these are proven rallying calls for energising their base. As environmentalists have discovered, the Big Exaggeration works, at least in the short to medium-term. If as a campaigner you have a specific outcome in mind – passing a piece of regulation or blocking one – then the fib focusses the politicians. The ends justify the means.

It comes at a fatal price, however. In the long-term the public realises how cynical the original stunt was, and then returns the cynicism with added interest. Climate campaigners now complain that nobody believes them any more. It’s not because the public has become climate skeptics – far from it. They’ve just become weary of serial alarmism. Matilda cried “fire” once too often.

So why are people marching in London and around the world tomorrow against ACTA? Well, the flippant answer is that they don’t get out of the house very often and need the exercise. But I think there’s something deeper, that’s often overlooked.

There is something quite specific about this flavour of digital rights internet paranoia that marks it as unique and distinct from other political paranoias, such as the anti-communism of the John Birch Society or, hundreds of years before that, fear of witches. I call it “pseudo masochism”.

What is pseudo masochism?

There is no doubt that paranoia thoroughly permeates the digital rights lobby, giving it its lifeblood. It’s even in the quite remarkable digital rights activists’ very own handbook. This useful guide, written by Becky Hogge (formerly of the Open Rights Group) is a publication funded by (you’ll never guess) George Soros; it recommends activists refrain from mentioning creator’s rights – which are supported by the public – in favour of vague principles such as “openness” and freedom. (A ‘freedom’ that turns out to be cockroach.)

In James Boyle’s comic Theft,
copyright makes you mentally ill.
Boyle served on the Hargreaves Review of IP

The paranoia is the basis upon which academics, such as Lessig and James Boyle, form their world view. It regards every attempt to advance the primitive utopia of the internet as the snake in the Garden of Eden.

So as the thoughtful copyright lawyer Terry Harte has pointed out, every law “breaks the internet” and is “the worst law ever”.

“Let’s get rid of this legislation so we can start enjoying culture again,” said one Berkman scholar in a recent televised postmortem on SOPA.

The Berkman Center is an influential think-tank attached to Harvard Law School.

It was pure Lessig-speak, and I am often surprised how closely the Children of the Lessig God exhibit all the symptoms of recently released cult members: their sense of self-respect, and sense of the value and robustness of the human individual, doesn’t seem to exist. Because their network is perceived to be under attack, they feel under attack personally. They’re frightened of their own shadows.

This kind of hysterical overstatement is quite redundant. I, personally, had enough reason to oppose SOPA-style web blocking on the principled basis that we shouldn’t ban people from simply viewing a web page that doesn’t corrupt or deprave.

And I support copyright enforcement on the basis those rights are valuable (and will be to our grandchildren), but unless they can be enforced somehow (there are better ways than web blocking) they become meaningless. And that’s a shameful legacy to leave future generations of creative people.

But I didn’t need a bogus technical argument to oppose this flavour of enforcement. SOPA-activists shrieked that web blocking broke DNS, which is a falsehood. Several European countries already implement DNS-level blocking of sites for copyright reasons, and the internet hasn’t broken.

Let’s be reasonable

The argument is very much about the future of the net, it’s true, and what digital networks might look like in the future – particularly what kind of economic activity they might enable for our grandchildren. But sensibly, most people reject the idea that the choice on offer is between a utopia and a dystopia – two imaginary worlds.

In reality, it is hard to get excited about the very diminished world offered to us by Google and Facebook – the one they call an interconnect utopia – when it has the economy of a malfunctioning Banana Republic, where talent isn’t rewarded, our private activities are catalogued and pathologized, and rational argument is closed down by roaming herds of nasty bullies.

Activists gathering this weekend for what is looks like a mechanical, almost ritualistic, activity don’t seem to realise that far from fighting the net’s problems, they’re adding to them – and have even come to embody them. ®

“Daddy, what’s a press licence?”

“Oh, that. Well a press licence allows you to call yourself a journalist and get into official events, for official journalists.”

“What for?”

“Well you get into events held by the government or a company, or for example a football club, and can then write about them.”

“So it’s like a parking permit. But I don’t understand. Everybody is writing about everything anyway. On the internet. Why would I need a press licence?”

“Well, sometimes you need to ask somebody a question in person.”

“What for? Will they tell you the truth, then?”

“Probably not.”

“So they can give you official version of something.”

“Can’t they use the internet to do give out that official version of something?”

“Er, yes. And they do.”

“Hmm. So what if you have a question they don’t want to answer?”

“Well… I suppose you can hear the answer they don’t give you in person. Although usually that is never reported, except when it’s a really silly question and everyone has a big laugh together. That’s how we hold people to account – it’s a very important job.”

“So can people who ask awkward questions not attend?”

“Not anymore, I’m afraid.”

“I don’t understand why you need a permit? How did it happen?”

“Er. Well you see, once upon a time, people used to buy newspapers and watch TV news, and these outfits could afford to pay people to do journalism full-time. It wasn’t all blogs. Why are you laughing?”

“That’s a funny idea.”

“And some of it was good and some was, well… Do you know who Hugh Grant is?”

“Hugh who?”

“Well Hugh Grant was a famous actor. Actually, not that famous, but never mind. And he couldn’t keep his trousers on.”

“I’ve never heard of him.”

“And there was another actor called Steve Coogan who couldn’t keep his trousers on either.”

“Ah. Lord Grant and Coogan, yes Dad – yes, it’s all here in the National Wikicurriculum. But so what?”

“Well they didn’t like getting in the papers when they were caught with their trousers down. So they kicked up a fuss and demanded that you needed a sort of parking permit to write stories about them.

“Why couldn’t they just keep their trousers on?”

“I er, well. Actually politicians were caught with their trousers down sometimes, too, or cheating their expenses, so they were very keen on permits too.”

“Hmmm. You can read anything you want on the blogs now. Especially that Lord Grant – have you seen what he did last week, he…”

“Stop right there, I can guess. Now there was something else behind it, let me try and remember. One of the more rubbishy Sunday blogs, er, newspapers did something quite dreadful. It deleted voicemails on a missing girl’s phone.”

“That’s horrible”

“Yes. But it turned out it wasn’t true, they hadn’t. Except nobody remembers that now. Yes, looking back, I think that’s how it all started.”

“So was the rubbishy newspaper that printed the untrue story about the other rubbishy newspaper the first to need a permit?”

“I think so. Actually, they thought it was all a really good idea.”

“I still don’t see why anyone should need a permit, no blogs have one.”

“Well, all the journalists go to school with the politicians they write about, and sometimes the actors they write about too. The permit stops other people, who didn’t go to school with them, from writing something they don’t want to read.”

“And they can ignore the internet and all pretend everything’s all right? That’s really stupid.”

“Anyway. What’s your next assignment?”

“Oh it’s great. It’s about these City of London guilds. But I don’t know what most of them are. What’s a Mason? What’s a Haberdasher?”

Windows Phone might be the most impressive bit of software Microsoft has produced – but it isn’t setting the world on fire. The iPhone and Android go from strength to strength – the latter proliferating so widely even Google doesn’t know how many Android systems are out there. (It can’t count the Chinese forks which don’t use any Google services and don’t phone home.)

This discrepancy puzzles people. Reviewers like WinPho a lot – it’s clean, fast, functional and forward-looking. The social media integration is very clever. Operators have a soft spot for Nokia and WP7 too, because – if for no other reason – they dislike and distrust Google and Apple even more. So what’s the problem?

Three weeks ago I raised the prospect that there may never be a third smartphone ecosystem – something upon which Nokia has bet the company. Many markets only have room for two leading players – and in the technology platform world, many have only one. On the margins the niche players are little islands. No matter how impressive WP is, if the needle doesn’t move, then it too becomes a marginal player. Ecosystems can perish more rapidly than they arise. If Windows Phone is to avoid the same fate as WebOS then the dynamic has to change.

But what might this be?

To help try and find an answer to this, I’ve been using Nokia’s Lumia 710 as a main phone – there’s no substitute for experience, and you can read my review of it here.

1. It’s a device business, stupid

The smartphone market is one driven by a desire for unique and distinctive devices – quite unlike the white box consumer electronics business. Operating systems and platforms don’t really matter to people, who make their choice from three or four models on display on the High Street at any particular time. This isn’t to say they don’t matter at all – nobody wants to choose a lemon – but if a phone is on display, it has a chance of selling.

Nokia has never had to think like this before, and spent the Noughties coasting on its brand and market position. Getting it to think about the customer and retail experience is one of the biggest cultural changes Elop has to make. Yet where are these quite outstanding and attractive devices going to come from? Microsoft’s reference platform allows little scope for differentiation or innovation.

A couple of years after announcing Android, Google did a strategic U-turn that upset many of its partners. It anointed a manufacturer to work with on what is essentially a reference phone, giving this chosen handset Google branding. The idea was that other ODMs (Original Device Manufacturers) would have to raise their game. It’s worked and nobody left the Android fold.

It’s hard to see Microsoft usurping Nokia’s branding (more than it already has), but the two need something creative to raise the visibility of WP in the public consciousness – it hasn’t left a footprint so far.

But Microsoft needs to loosen its reference platform to encourage some serious design innovation. Where’s the Windows Phone Communicator – with a clamshell or slide-out keyboard?

2. Growing up

This is probably the easiest of the problems to fix. It simply takes time, money and careful product management. WP7 was very much a working technology demonstration, lacking removable storage card support and a clipboard, amongst other things. Mango fixes a lot of these, but it still feels like a version 1.1 product. The flagship Nokia devices don’t have video calling or tethering, for example.

But it takes time. It took Apple three generations of iOS to implement a clipboard and four to implement coherent task switching and notifications. But these are major architectural features with huge knock-on impacts elsewhere. There’s little point in Microsoft getting one team to tune battery life when the system can change so drastically overnight.

Now I’ll get to the hardest problem. We need to raise some home truths about the Windows user interface, which aren’t noticed by bloggers and unboxers and only become apparent after extended use. Colour me surprised – you might be too.

3. We need to talk about the UI

The Metro UI for Windows Phone has been justifiably praised for being clean and distinctive. Microsoft is extending it across more products, most controversially, into Windows 8. But in extended use, I found myself using the phone less than I expected, because I simply didn’t want to read text on the screen. This realisation came quite subtly, and was unexpected.

Here’s what I think is the issue.

Some things in the world are theoretically human-readable, but nobody ever reads them. Postscript source code is one example, the fiction of Cory Doctorow another. Metro turned out to be a little like this. It is a UI designed to be glanced at, and it fulfils that very well.

But it makes poor use of the space available. My preferred WP Twitter app Rowl shows me three tweets at a time. You do have to pinch yourself that you’re using an 800×480 pixel screen. Entire newspapers were being laid out on VGA screens (or smaller – many were Mac Classics) 25 years ago – but this is a poor use of space.

The font is for glancing, not for reading, and the white-on-black colour scheme doesn’t help.

There’s too much thumbing going on. The default WP home screen shows you eight options. A thumb press will show you eight more options or twelve by revealing the Apps List. The default iPhone screen shows you 16, and a swipe 16 more. Android also shows much more. And from the Blackberry OS 7.0, I can change almost any setting by swiping from the top.

Now none of this is catastrophic – and it’s all fixable. Choose a better body font, change some of the proportions, and vary the size of home screen tiles – all would help enormously. But first, admit there’s room for improvement.

If you want to make the phone an "immersive experience", as per the jargon, don’t punish users for getting wet.

4. Give it all away? Not a good idea

"You can’t compete with free" is a cliche in the content world. And it’s proved one of the most misleading. Android is nominally given away for free, making Microsoft’s paid-for licensing model almost seem like an anachronism. Smartphone platforms are given away for free, or not given away at all.

But this argument is misleading. Android isn’t free at all, the patent uncertainties require ODMs to pay third parties – including Microsoft. This is a long way from being resolved.

So although one option is to go royalty-free, it’s one Microsoft doesn’t have to take. Not when there are more creative options on the table.

5. Telcos hate smartphones. They don’t have to hate yours

Telcos like growth, but they view smartphones very ambivalently. Once the pesky users have one – all they want to do is use it – the impertinence! – while the value of the services we use is captured by everyone except the telcos. So mobile operators have rapidly found themselves in same funk as broadband ISPs – who want punters to sign up (as long as the acquisition cost is low), and who don’t want them to leave, but who want them to use the network as little as possible while they’re there.

It’s a mug’s game: spending billions on network upgrades but seeing the value realised by device manufacturers (Apple) or ad networks (Google). The mobile network operators don’t want to be dumb bit-pipes – which is all they will be in Apple and Google’s future.

It doesn’t have to be like this – and Microsoft has an ace up its sleeve, with a messaging platform almost everybody in the world has heard of: Skype. It might be time to start thinking about some radical initiatives.

Here’s one: why exactly is Microsoft licensing Skype? Why is it even tolerating it? It paid a lot of money to acquire this proprietary VoIP messaging platform, and sees no advantage from it. How about raising the fees for Skype for some or all non-Windows mobile platforms? One of the first things Steve Jobs did in 1997 to stabilise Apple was to stop licensing MacOS and kill the clones.

And messaging is just one example. Advertising and media could benefit from some sort of semi-open shared platform on the wholesale side. This is something Microsoft and Nokia have thought about, so the idea shouldn’t be alien. But it makes sense to move value up the stack. When all smartphones look alike, one with an attractive bundle of messaging and content should be able to stand out from the crowd. We might even pay a pound or two more for it.

The verdict

Of course, Windows Phone might not need any of this. Perhaps it’s just not being seen, and will sell gazillions of units once people see it. Perhaps simply throwing more money at development and marketing will do. It worked for Xbox.

But Xbox was a success that was years in the making, soaking up billions of dollars of capital. Nobody involved in WP has this luxury. Nokia is fighting a battle on three fronts – and haemorrhaged €1bn last year – and Nokia is absolutely key to WP’s success. Although it has cash in the bank, it can’t fight on with this kind burn rate.

We know from WebOS, or BeOS, or many technically wonderful predecessors that won rave reviews from the critics only to perish in the marketplace, that being good isn’t enough. These are interesting times – the opportunity is there. ®

Angry copyfighters barraged a small Scottish food certification agency with abuse last week – in the belief they were protesting against hated US anti-piracy legislation.

The Scottish Organic Producers Association – whose website is at sopa.org.uk – was perplexed when it found itself on the receiving of dozens of nasty and illiterate emails.

Remarkably, nothing about the site’s design – including pictures of sheep, vegetables, Angus cattle and fruit – did anything to suggest to the furious freetards that they’d got the wrong SOPA – or that something might be not quite right.

Dozens of emails were submitted via a form on the the association’s website. Techie Gavin McMenemy told us that the nastygrams had subsided by the end of last week. Here are a couple of examples received by the agency, which certifies organic farmers in Scotland.

One from ‘Josh Chard’ pleaded:

Stop what you are doing. NOW. Your laws are stupid!! We love entertainment. I\’d copyright all i want!! Problem? I\’d do it to entertain friends, Family and even strangers!! You pass and you\’ll be hated everywhere in the world! Why can\’t you fat fuck americans get this in your uneducated heads?!

Topped by this one:
you suck eggs mother fucker sopa

Well, that’s telling them.

But perhaps in the overheated minds of the angry Boing Boing reader, it’s all part of the same giant conspiracy. Look very closely at these pictures:

Is that really a tractor? And that may look like a hen shed – but could it be a secret, RIAA-built holding facility for copyright criminals? Think about it.

I am going to propose something that may sound radical, but really isn’t. Legislation like SOPA ideally isn’t necessary in an ideal world, and this idea comes about through voluntary agreement. The Stop Online Piracy Act was proposed because of a tragic impasse, a lack of agreement between two powerful and deeply entrenched sides. Although one side has moral force on its side, being ‘right’ doesn’t mean it’s going to ‘win’. Like a classic game theory tragedy, both sides are losing.

To understand why I shall tell you a story. If management sages and internet gurus annoy you – it’s a story you might enjoy.

When he died in 1903, the prolific Victorian journalist and author Herbert Spencer was thought to be one of the cleverest people in the land, and England’s greatest philosopher. Such was his reputation, there was a clamour to bury him in Westminster Abbey. But in reality, Spencer was a hard-working clot, whose reputation fell more sharply and quickly than that of a disgraced fraudster.

Spencer knew all the right buzzwords, but was loathe to read past the first chapter of a book. Spencer even carried ear-plugs in case he was exposed to interesting new ideas, as he feared intellectual stimulation might keep him awake; he often inserted the ear-plugs midway through a conversation. He masked all this, and his books were phenomenally popular, because he stuck to opaque but calming generalisations. Rather than resolve a matter, his generalisations allowed him to waffle around it. (He also heaped on masses of detail to sidetrack the reader). When the novelist George Eliot complimented the old man on the lack of wrinkles on his forehead, Spencer replied that he’d never encountered anything that ever puzzled him.

Spencer may have been the Victorian Malcolm Gladwell, or Tom Peters, or Tim O’Reilly. Generalisations are a great way of avoiding looking at what’s really going on, and tackling a subject with arguments from first principles. Social media has turned this kind of showy avoidance of reality into a massive multiplayer game. Twitter is an ocean in which armies of cliches swim pass each other. You can even badge your avatar to remove any doubts in the audience about nuances in your position: ‘STOP SOPA’ being the most recent. SOPA has indeed been stopped, or fatally gutted.

While the legislation is now moribund, the underlying concerns behind SOPA haven’t gone away. No amount of bloviating is going to resolve this. The main provision of SOPA (and PIPA) is website-blocking, which has no friends here at El Reg. But SOPA will return next year, and the year after, until the issues have been tackled head on. The STOP SOPA stickers will return. It’s all avoidable and getting quite tedious.

The internet has a problem

In the Panglossian worldview of Silicon Valley, everything is perfect on the internet, it’s the best of all possible worlds, and any tinkering with this robs humanity of its last Utopian hope. This is a view of the world that actually owes much to religion, or the desire to recreate the certainty of religion. It’s faith-based, and isn’t a view grounded in reality, especially the reality of doing business. On the internet, fame may arrive quickly, but financial reward doesn’t follow. It’s the only area of business where this is true.

Now this is quite different to the argument that life must be fair: we know it isn’t. We don’t expect the bestselling fiction book to be the most subtle or sophisticated, or the No 1 record to be the greatest work of art (although many have been great works of art). You do need expertise to turn talent to popularity – but that’s a different argument. Nor does money guarantee success, and therefore security; that again is another argument. Financially successful businesses are quite entitled to drive themselves into the ground, and many do. The simple reality remains that in all fields of commerce – with the vital exception of one – money follows popularity.

The SOPA supporters’ argument is that this is entirely down to theft. Before we get down to it, let’s look at the specific core proposal. SOPA and PIPA have other measures, and some are important and hardly controversial. But SOPA was really written for one tactical purpose.

The hypocrisy of web-blocking

The meat of SOPA was concerned with blocking rogue foreign sites – such as The Pirate Bay – from being accessed by Americans. Site-blocking is regarded as illiberal and unloved, and may ultimately have been totally unnecessary, as we shall see. A block list, according to SOPA critics, put the United States on a par with regimes such as China, which prevent their citizens from reaching the internet. It’s certainly hard for US diplomats or policy-makers to take the moral high ground when preventing their citizens from merely seeing a website that is unlikely, on its own, to corrupt or deprave. Merely looking at The Pirate Bay shouldn’t be a crime. This was a strategic error by the IP industries: you may punish people for their actions, not their possible actions.

Yet the hysterical case made against SOPA was quite often dubious. SOPA was solely concerned with rogue sites beyond US jurisdiction, and so could not "make YouTube disappear", as angry anti-SOPA bloggers wanted us to think. And the ‘censorship’ argument needs the cold blast of reality to give it some context.

Remember that Google itself is a web censor on a quite significant scale, and in an arbitrary way. Last year, Google made 11 million sites disappear on a whim, removing the .co.cc domains from its search index because the sites were deemed by Google to be "spammy". Many were, but were all of them? We shall never know, and really, it’s beside the point: a single powerful corporation was making a subjective value judgement call to make a large chunk of the internet vanish. In this case Google was judge, jury and executioner, and the process had no ‘transparency’, another favourite buzzword of the critics. And this single corporation is a vertically-integrated operator of enormous social consequence. It holds monopolies on search and pricing; it creates de facto technical protocols; its decisions decide which small businesses survive or perish.

So this looks less like a row about censorship, but about who gets to do the censoring – and Google would dearly love to be in sole control. Bear that in mind the next time Google says it wants to keep the internet open.

As we know, Google benefits greatly from anti-social behaviour. In both the short-term and and long-term it has a strategic interest in not dealing with piracy. In the short-term, Google nets millions of dollars from its ad networks from pirate traffic. And long-term, rogue sites diminish the likelihood of a legitimate market of creators and consumers. So at some point in the future, having destroyed the legitimate institutions because they can’t make money, Google may slip into the role of the world’s de facto royalty collecting society – and creators will have nowhere else to go but Google. Meet the New Boss: he might not look like the Old Boss, but at least you got paid sometimes.

We’re nothing but our creativity

The deeper battle is a the historic one, about how much social and corporate responsibility new internet companies are obliged to take on board. The DMCA legislation of October 1998, correctly, let them off the hook for anything. This was done in the hope that new markets would be created without the constraints imposed by backward-looking copyright industries.

But now, after 15 years, things seem quite curious. It’s the web giants that are backward-looking, and who fight hardest against the creation of markets. (They’d much prefer to be personal data miners, rather than allow free commerce to flourish.) Silicon Valley has done very well wrapping angle brackets and pastel colour graphics around 30-year-old internet protocols and calling them innovation. IRC becomes Twitter, for example. As former vulture Ashlee Vance writes (a must-read), Valley’s Web innovation may not leave very much for our grandchildren – and is acquiring all the vanity of Hollywood.

Web companies may have thoroughly outgunned property rights owners in terms of light and noise generated online fighting SOPA, but that’s because the professional industry lobby groups focus like lasers on the lawmakers. And here, with the rise of China, the deeper argument is being won.

China today mirrors the dynamic growth of the United States 100 years ago, and has the same buccaneering disrespect for other people’s stuff. Which leaves the question of how to compete. The West doesn’t do manufacturing any more, so the ‘intangible’ or ‘invisible’ inventions are much more important. The West can’t afford not to protect its inventors and creators: if it can’t, there’s nothing to build the service economy of the future upon, and life becomes a diminishing series of asset bubbles. This is simple, brutal economics, and Utopian waffle about internet freedoms do not cut much muster – at least not on a planet where unicorns don’t have the vote, and the emerging Eastern economies are delighted to take what they can.

And the specific problem SOPA was designed to address – exquisitely demonstrated here by this independent film-maker at Pop Up Pirates – is very much a live one. Rights-owners argue that it’s because their property rights aren’t enforceable. For years we could argue that ‘harm’ took place because of the absent of cheap, decently-priced legitimate services. But with cheap streaming services coming online, that’s hard to argue now.

So there’s a problem, and we don’t like web-blocking legislation as a ‘solution’. Fair enough.

Wrinkle avoidance strategies

For years, copyright industries avoided old-age wrinkles by using enforcement to retain control – working against the grain of technology, rather than with it. Copyright industries are not natural enforcers, when they try it, they’re quite spectacularly clumsy. Take your pick from from an unsavoury list over the years that includes remote kill-switches for media, or creating and distributing millions of spoofed music files containing noise, or plans to insert spyware onto your PC that locks your computer or deletes your music. All pretty dumb. More recently, they’ve started to work with the implications of digital networks: with UltraViolet you buy a license, rather than repeatedly purchasing limited rights over and over again. That’s a step forward.

And it’s the sort of progressive thinking conspicuous by its absense in Silicon Valley, and its armies of ‘copyfighters’. They love the war too much for it to end. And to keep fighting, you must avoid thinking about constructive, mutual agreements. That might cause wrinkles. Spencer’s ear plugs are firmly in place.

Well, to return to where we started, legislation is quite unnecessary. That is, if ISPs abided by a clear and open voluntary code to respect creators’ rights, which required booting out the few serial offenders; if ad networks refused to support parasitic foreign companies; and if search engines shared revenue with media companies to whence they drove traffic, we wouldn’t need new laws. This is not a fantasy – it’s going to happen in the UK, remember. The UK has website-blocking legislation on the statute book, but Culture Minister Ed Vaizey wants a voluntary agreement – a most liberal solution – instead. Alas ISPs, service providers and search engines today see only risk in being socially responsible, not an opportunity.

As Friday’s exasperated joint White House statement points out, the copyright worries are justified, and entitled to some kind of enforcement – they won’t go away. A property owner must be able to enforce their property rights, with legal backup, and the effective sort, or the rights become meaningless. They shouldn’t be able to do so easily or cheaply, lest this becomes a substitute for innovation, for finding talent and marketing it effectively.

"Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right," the Three Czars demand.

However, Silicon Valley’s problem – and one activists have – is that they’ve never thought about it like this. They’ve never seen a voluntary copyright enforcement backstop they liked: they were all problematic. Campaigners instinctively oppose everything – leading to ever more bonkers legislation.

Like Spencer, Silicon Valley doesn’t seem to want worry about it, it doesn’t want too many wrinkles in old age. This is why I call SOPA "what goes around, comes around" legislation. It isn’t nice, and it isn’t necessary, but we’re all here because Silicon Valley’s web companies refuse to grow up. The White House just told them they should. ®

Humiliatingly, Nokia was forced to deny rumours last week that it was planning to break up and sell its crown jewels to Microsoft. Normally a company can remain impervious to Twitter-born gossip, particularly from a known antagonist.

Acknowledging the rumour simply gives it a chauffeured ride around the internet. But not this time: the ‘Microsoft buys Nokia’ story fulfils so many conspiracy theories, thousands of people wanted it to be true.

And the notion of Microsoft buying a hardware company and ripping up its licensing business has become much less outlandish after Google’s acquisition of Motorola’s phone business. Ah, but that was desperation, I hear you say; the Chocolate Factory had miscalculated its IP strategy catastrophically, and it had to grab what patents it could at almost any price.

But there’s a whiff of something – it isn’t desperation, more like earnest exasperation – around Microsoft’s phone business these days. Redmond has got an excellent product, for the first time, and people who have a Windows Phone love using it. But there just aren’t many of those folk around. The phones aren’t shifting. Christmas has come and gone, and while we wait for some reliable channel figures, Nokia’s flagship seems to have made almost no impact on the UK market. It’s the phone that leaves no footprints.

So that makes Nokia’s American comeback all the more challenging. Your reporter has lost count of the number of thwarted US comebacks Nokia has made over the years – each time the story ends the same way. Either the operator gets cold feet or Nokia gets cold feet first.

In recent years Nokia baiting has become a cruel bloodsport for American pundits and bloggers, the latter even refusing to review Symbian phones on the reasoning that, well, they must be rubbish. After years of being patronised by Europeans and told to catch up, talking heads in the States are now taking their revenge. Europe’s dominance turned out to be temporary; the US public is now getting the best gadgets and fastest data networks first – even if the nature of the competition means they’re paying a high price for it. And as the industry leader in Europe’s 2G dominance, and general bossy boots, Nokia is now getting thoroughly beaten up for missing out.

This is not the most promising position from which to launch your comeback – but then again, expectations are now calibrated so low that any success is going to mean a lot.

Yesterday Nokia launched what’s probably its most competitive US product for a decade. You’re welcome to contest that claim, of course (fire away!) but bear in mind that the last time Nokia caused a ripple was four years ago. That was with a US model of the N95 – marketed under the slogan "this is what computers have become" – which was delivered six months after the Apple iPhone had started shipping.

The Lumia 900 has a fair bit going for it. It’s got a modern UI that’s really nice to use. It’s got the backing of a major operator. And it’s bang up to date with advanced network technology – it’ll be able to use AT&T’s LTE data network, which is already live and due to be rolled out in full by the end of next year.

But it also has the drawbacks of The Phone That Leaves No Footprint. The 900 is identical to the 800 but with a larger screen – which brings no additional increase in screen resolution – and larger battery. The 900 also shares the 800′s peculiar camp colour palette, which restricts its appeal. And the same harsh square corners – and the camera mirror that scuffs if you so much as breathe on it. All these points have been flagged by multiple reviewers but Nokia seems quite deaf to them, and quite insistent that it’s the greatest design ever.

"It looks sleek and progressive on the outside," according to CEO Stephen Elop in a canned promo video. I can understand sleek, but what on Earth does progressive mean here?

The tech bloggers’ criticism that it’s not cutting edge remains a valid one: compare the screen resolution to the Galaxy S2 or the Razr Android. This matters, not because most punters fit the boy racer category (they don’t), but in perception: it’s a fast moving market and regular buyers don’t want to lock themselves into two-year contracts with something they fear will be obsolete. And how frustrating this must be: the Lumias perform extremely favourably to the competition.

The greater problem for Nokia – and Microsoft – is the nagging idea that there’s no room for Windows at the smartphone table, no matter how fabulous it is. Remember that Elop’s great gamble at Nokia is to make Windows the ‘third ecosystem’. Well, maybe there isn’t going to be a third ‘ecosystem’ in smartphones. Maybe there’s going to be Apple, Android, and everything else – BlackBerry, featurephones and dumbphones. After all, there wasn’t room for more than two in PCs.

It’s too early to tell yet. Nokia has yet to throw its best designers (assuming they haven’t all left) or radical innovations at Windows Phone yet. This is very much a product market, one that’s crying out for some differentiation at the moment.

But if it turns out to be the case that there are only two ‘ecosystems’, then the Armageddon option of breaking up the company doesn’t look quite so irrational.