Here's wishing each and every one of you the happiest of holidays.  Whether you celebrate Chanukah (Happy Chanukah), Ramadan (Ramadan Mubarak), Christmas (Merry Christmas), New Year's (Happy New Year's), Kwanzaa (Merry Kwanzaa), or something I've missed, I hope the holiday season brings you rest, relaxation, and most importantly, meaningful time with friends and family.  Remember that these are the times when fond memories are made.

confusion
is like a slow falling
a kaleidoscope of grays
that stays the same
the more it changes
a field of contradiction
without gravity
or form
a rush of silent confetti
that belongs
to no one

[circa 1986]

Sony announced an upgrade to their already impressive humanoid robot.  Qrio (short for "quest for curiosity") can now jog, throw a ball, dance, hop, and kick a soccer ball.  Most important is the jogging part as running requires that both feet be off the ground at the same time (walking, on the other hand, requires that only one foot be off the ground at any one time).  You can see a clip of the latest demonstration here (Windows Media Player) or here (Real Player).  The clip is a few minutes long, so I recommend using a broadband connection to view it (if available, of course).

RealNetworks recently filed a lawsuit against Microsoft for allegedly monopolizing the multimedia player market through its Windows operating systems.  I think RealNetworks has a bit to learn about how the market works and why their products aren’t doing so well.

I’ve grown weary of the Microsoft-bashing mentality that has run rampant in the technology industry.  Many PC-industry companies view Microsoft as an easy way to make a lot of money, so they abuse the legal system and file lawsuit after lawsuit in the hopes that either Bill Gates and crew will settle or a judge or jury will be swayed by all the anti-Microsoft hype and will order Microsoft to write yet another check.

If one were to look at the situation objectively, it becomes increasingly clear that many companies in this industry cannot support their own business models, cannot legitimately compete with Microsoft, and continue to make inferior products whilst blaming their falling market shares on the Redmond-based software giant.

Don’t get me wrong — I’m not a Microsoft zealot.  I work with Microsoft products every day and have done so for many years, and I will be the first to say that they are often full of security holes, use default configurations which are nothing more than invitations for someone to break in, offer very little flexibility when it comes to how people work and use computers, and suffer from a myriad of other shortcomings and problems.

That having been said, however, I am a pragmatist.  Many of the companies which have seen fit to take Microsoft to court recently are poorly run businesses which offer inferior products or abuse the computing public and wonder why their products fail.

RealNetworks falls into both of those categories.

Running to the federal court in San Jose, CA, RealNetworks is simply stomping its feet and hoping to get on the let’s-sue-Microsoft gravy train.  I would hope they could focus that effort on improving their products and removing the invasive code that commandeers a person’s PC when installed.

The RealNetworks formats have never impressed me.  I have often found the Quicktime or Windows Media Player versions of multimedia files to offer better audio and video.  In addition, the RealNetworks player is not user friendly and is extremely cumbersome to the average netizen.  And don’t get me started on the RealOne player, a wholly unnecessary piece of bloatware — or should I say malware? — that is laughably one of the most horrific attempts at software development ever created.

When you install a RealNetworks player, unless you are technically proficient and have plenty of time to chase down everything the software wants to change, it unreservedly steals file associates, installs automatically-loaded junk in the system tray, attempts to contact the RealNetworks servers on a horrifyingly regular basis (with no indication of what it’s communicating so often and unnecessarily), and barrages the user with superfluous messages from RealNetworks about paying to upgrade to their premium service (among other extraneous junk that it constantly pushed into your face).

To add insult to injury, the RealOne player is as inelegant a piece of software as I have ever seen.  It’s simply not suitable for manufacture or distribution, not to mention use.  The interface is kludgy and inexplicably complicated for the average computer user.  In fact, one can easily call it Byzantine, especially once an attempt has been made to get through all of the preferences.

Oh, and there’s that little issue of having been bundled with AOL for a long time that raises questions about RealNetworks’ lack of character.  You are, after all, known by the company you keep — and AOL is simply the poorest company one can keep.

But the technical considerations are the core of the problem RealNetworks is attempting to solve with this lawsuit.  A bad product with a bad implementation with a bad media format with in-your-face marketing and unrelentingly invasive software all add up to a sagging bottom line for the company.  And this is where the truth can be found.

Just consider what RealNetworks chairman and chief executive Rob Glaser said in a statement regarding the legal action: "While we much prefer competing in the market — as we are doing and have done for nine years — our board has made a carefully considered business decision to take this action to end Microsoft’s illegal conduct and recover substantial damages on behalf of our shareholders."

It strikes me as odd that he has to point out that RealNetworks is in fact competing in the market.  Yes, technically they are, but the competition is similar to selling Lexus and Hyundai in the middle of an affluent neighborhood and wondering why the Hyundai vehicles never leave the lot.

If you look at his statement objectively, you can’t help but take special note of the "substantial damages" remark.  I suppose, if my business were faltering due to bad products and apparently bad management, I too would look for a company with deep pockets that I could sue for "substantial damages."

Given Microsoft’s bad luck of late, now is the time to take advantage of a biased population which has been force fed overwhelming amounts of anti-Microsoft propaganda (all from its competitors, but they don’t advertise that fact).

I think it’s time for the technology industry to stop earning a living off of legal attacks against Microsoft and to start dealing with the underlying problems which force them to seek "theft by litigation" solutions.

Despite RealNetworks’ meretricious arguments to the contrary, this lawsuit is intended solely to derogate from competing legitimately (and, perhaps, designing a decent product for once) in favor of demonstrating once again that even an otiose business model and line of products can be overcome by strategic litigation.

Sounds like The SCO Group to me.  But I shall save that laughable story for another day.

President Bush recently signed into law the CAN-SPAM bill — the first federal attempt to curtail unsolicited commercial email.  Many supporters of the bill claim it will be a significant weapon in the war on spam.  As a technology professional who has been dealing with the growing onslaught for years, I beg to differ.

After more than six years of exploring the idea of a federal spam law, Congress finally came up with what they believe to be the solution.  I see it as a first step — a law with no teeth to accomplish what it was meant to do.

When the new law takes effect, it defines how companies can communicate with people they know and people they don't know.  Falsifying email headers is punishable with prison terms.  Sending sexually-oriented email without proper labeling can also land you in the big house.  Oh, and most interestingly, the law grants the FTC new enforcement authority and the right to establish a national "do not email" list similar to the unbelievable popular "do not call" list for telemarketers.

All of that sounds good, doesn't it?  As you were told as a child, not everything is as it seems.

CAN-SPAM is unlikely to demonstrate any noticeable decline in spam for email users when it goes into effect on January 1, 2004.

It legalizes (yes, I said legalizes) sending non-fraudulent spam, so you can be inundated with junk email so long as it's not sent using forged email headers.

The law does away with the state laws governing spam — many of which are far more stringent and protective of the consumer.

CAN-SPAM outlines an "opt-out" approach to spam rather than "opt-in."  The difference is significant.  In an "opt-in" system, spammers cannot send junk email to you unless you have specifically requested it.  On the other hand, the "opt-out" system requires that you the consumer pursue the spammer in order to be removed from their marketing list.  It's like saying identify theft is OK unless you ask the thief not to steal your identity.  Is it just me or does that sound entirely backward?

Although the law forces spammers to let recipients unsubscribe from their list, it doesn't say anything about them having to make it easy.  They don't have to offer an obvious click-to-unsubscribe link or reply-to-unsubscribe functionality.  Instead, CAN-SPAM will let them use any "Internet-based mechanism," prompting complaints that an unsubscribe feature could be buried in a Web site clogged with pop-ups.

It prohibits recipients from suing spammers, even if they are repeatedly and maliciously spammed.

The law imposes no labeling requirement on email unless it is sexually explicit.  Currently at least 15 states require "ADV:" or a similar label on all unsolicited commercial email.  Because CAN-SPAM would zap those laws and includes no labeling requirement of its own, spammers in those states could no longer be sued if they chose not to label.

As is typical (and exactly the same as the telemarketing "do not call" registry), the law doesn't regulate spam from political, religious or nonprofit groups.  No other antispam law in the United States appears to do this either, primarily because of questions about whether levying such regulations on noncommercial speech would jibe with the First Amendment's guarantee of freedom of expression.  Also, politicians sometimes engage in spam themselves and prefer to keep their options open.

Analysts and spam-fighting companies have warned that CAN-SPAM could lead to even more unsolicited commercial email.  MessageLabs predicts that it "could increase already growing volumes of spam and adversely affect consumers and businesses."  Gartner warns spam would likely worsen despite the existence of a federal law.

Ray Everett-Church, a lawyer at antispam firm ePrivacyGroup.com, says that even with the FTC and state attorneys general, there is not "enough enforcement to make spammers think twice about engaging in the practice."

Everett-Church and other spam opponents have said that, because CAN-SPAM will legalize nonfraudulent spam, every business in the United States could send an unspecified amount of unsolicited email repeatedly, until the recipient asks to be removed.  The Small Business Administration says there are 22.9 million small businesses in the country, and each one would be able to take advantage of this new legal right.

California Sen. Debra Bowen, a Democrat who supported her state's legislation, said in a statement on Dec. 8 that CAN-SPAM "doesn't can spam, it gives it the congressional seal of approval…  An advertiser's First Amendment right to free speech doesn't trump a person's basic right to be left alone.  Spam isn't legitimate advertising and it's not free speech."

Tim Muris, the chairman of the Federal Trade Commission and a veteran of the spam wars, has been warning since the summer that CAN-SPAM might do more harm than good.  Instead of helping, Muris said, the measure "could actually be harmful" to the FTC's ongoing efforts to sue spammers.

In a speech in August, Muris warned that under CAN-SPAM, "the FTC would have to prove that the seller (who hires a spammer to advertise a product or service) knew, or consciously avoided knowing, that the third-party mailer intended to violate the law.  This standard requires proof of both the seller's and spammer's level of knowledge…  These requirements to prove intent pose a serious hurdle that we do not have to meet to obtain an injunction under our current jurisdiction."

The National Association of Attorneys General, which would also be charged with enforcing CAN-SPAM, is more blunt.  In November, the group sent a letter to Congress that warned: "The bill creates so many loopholes, exceptions, and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement…  We respectfully request that you not move forward…"

In addition to all of these issues, the law has no jurisdiction over spam sent from other countries.  I personally receive quite a bit of junk mail sent from China, Canada and Brazil (among many other countries), but this law will do nothing to curtail any of that.  That is a problem with many things other than spam, however, and will require a significant catalyst to get the world community to work together on the problem.

When Rep. John Dingell, D-Mich., predicted in November that "it is quite possible that we will have to revisit this matter again," he was very much the prognosticator of the day.  CAN-SPAM was well-intentioned but poorly designed.  I believe its impact on spam will be negligible at best.