Battle between Blu-ray and HD DVD fizzles as consumers watch and wait

There's a format war going on, in case you've not turned on the TV, surfed the Internet, or stepped into a consumer electronics retailer for the past year and a half. But some news that has emerged from a couple of trade shows this week shows that the "war" is more like a slap-fight between a couple of preadolescent girls: it holds great significance to the parties involved and may be slightly entertaining to watch, but it does very little lasting damage. HangZhou Night Net

Over the last couple of days, the North American HD DVD Promotional Group has sent out press releases trumpeting the format's momentum. HD DVD is going to start advertising on NBC's Sunday Night Football and will soon have 125 new HD DVD titles available. The trade group has also convinced PC manufacturer Acer to join and is highlighting a new Acer laptop (the Aspire 5920) with an HD DVD drive at this week's CEDIA EXPO 2007.

At the same expo, both Sony and Toshiba gave presentations on the strengths of their preferred formats. Sony played up Blu-ray's two-to-one sales lead over HD DVD when it comes to discs sold so far. Sony also says Blu-ray has 55 percent of the next-gen HD player market, compared to 43 percent for HD DVD and 2 percent for hybrid players. But if you take a closer look at the images snapped of Sony's charts by AnandTech, you can see a rather disturbing trend for both Blu-ray and HD DVD.

From their peaks at the end of 2006, both formats have seen a rather precipitous sales decline. According to Sony, Blu-ray sold nearly 70,000 discs per week during the last weeks of 2006. But by mid-May, the last week for which Sony provided data, that had slipped to less than 35,000 per week. HD DVD saw a similar decline, but not as steep, going from around 43,000 discs to a bit more than 20,000. At one point towards the end of April, sales of Blu-ray and HD DVD discs were in a virtual dead heat.

Toshiba blew HD DVD's horn as well. The HD DVD backer pointed out that the format has a 62.7 percent market share… for PC drives. Toshiba also pointed to some market research it conducted that showed consumers were more than twice as likely to buy an HD DVD player than they were a Blu-ray player. One problem: a majority were undecided.

Data source: Toshiba

Across the Atlantic, a panel at the International Broadcast Conference in the Netherlands discussed the battle between HD DVD and Blu-ray. One panelist says that both formats could be in trouble if a clear winner doesn't emerge soon. "The longer the confusion exists for mass market consumers, they will want one format," said Jim Bottoms, cofounder of Understanding & Solutions, according to EETimes. "If the market does not have a one-format solution within 18 months, the consumer will start to turn away."

Other panelists weren't as pessimistic as Bottoms. One estimated that the format war will still be going strong in 2011, when the US will see a 60/40 split between Blu-ray and HD DVD, but with only 40 percent of US households owning an HD disc player of any sort.

Both parties are doing whatever they can to convince consumers to vote with their wallets. Blu-ray scored a couple of victories via agreements with Target and Blockbuster, while HD DVD scored a major coup by convincing Paramount to drop Blu-ray and embrace HD DVD. There has been some serious price-cutting, too, with the first sub-$200 (but 1080i-only) HD DVD soon to launch.

Despite their best efforts, there is still a lot of uncertainty on the part of consumers, and right now, Blu-ray and HD DVD are fighting over a very small piece of the hardware pie. Sales of DVDs and DVD players still dwarf those of both next-gen formats combined: the DVD of Happy Feet sold over 4 million copies during the last week of March, which is almost twice as much as the total next-gen disc format sales since their launch over a year ago. It's a vicious cycle for the next-gen formats: sales won't grow significantly because of consumer uncertainty, that uncertainty won't lessen until there's a clear winner, and a clear winner won't emerge until sales of one format are significant enough to bury the other.

RIAA file-sharing case ending with squabble over check for attorneys’ fees

The long-running drama between the RIAA and Debbie Foster is about to come to an end, but not without an additional bit of fighting about the attorneys' fees. After Debbie Foster triumphed in the copyright infringement case brought against her by the record labels, she sought and obtained an award for attorneys' fees. After the RIAA exhausted its appeals—and after some further prodding from Foster—it finally cut Foster a check for $68,685.23 on August 30. HangZhou Night Net

Case closed, right? Wrong. Foster subsequently filed a motion to amend the attorneys' fees award citing two major factors: the amount of the payment and the way in which it was paid. Although the RIAA paid in full up to the time that the amount of the award was finalized, it neglected to include fees incurred by Foster's attorney pertaining to a hearing on July 5. It also neglected to include the interest that had accrued since the date of the award.

Foster's attorney Marilyn Barringer-Thomson was also displeased that the plaintiffs overnighted her a single check payable to Debbie Foster instead of electronically transferring the funds to the accounts of those in line for payments. As a result, the plaintiff would not have immediate access to the funds due to the bank's policy of placing a hold on checks. Copyright attorney Ray Beckerman commented that it is "highly unusual for a judgment debtor's attorneys not to follow the judgment creditor's attorney's payment instructions."

The RIAA countered by filing a motion to deem the judgment satisfied. Their argument was simple: we cut the check in the proper amount, and it's now in Foster's possession, so let's call it a day. An RIAA spokesperson told Ars that Foster's filing "misstates the facts and misconstrues the judgment in this case," saying that they made payment in "strict compliance" with the order.

"As a professional courtesy, we were willing to pay the fees to counsel's trust account via wire transfer. When we asked defendant's counsel to confirm that doing so would be in satisfaction of the judgment—which it clearly is—she refused and insisted we pay her money above the amount set forth in the judgment," the RIAA spokeswoman told Ars. "Because counsel met our professional courtesy with a lack of cooperation and an unreasonable insistence that we pay her sums beyond what were ordered, we chose to avoid any dispute and made payment in strict compliance with the Court's judgment."

In an order issued earlier today, Judge Lee R. West pointed out that it's not the fault of the plaintiffs that the bank places a hold on checks and said that there is no authority barring the payment of attorneys' fees by check. Judge West denied Foster's motion to amend the judgment but instructed the RIAA to calculate post-judgment interest and cut Foster another check on or before September 13. Once that has occurred, he'll rule on the RIAA's motion to deem the attorneys' fees judgment satisfied.

Given how the whole case played out, there's little surprise that it is ending with this level of acrimony. At the end of the day, Foster has been cleared of copyright infringement, while the RIAA is left paying the legal bills for both parties.

Rage guitarist Tom Morello to appear in Guitar Hero 3

While Rock Band and Guitar Hero 3 continue their feature-war for your rhythm dollar, the truth is the gamer is winning. They both want to give you the ultimate rock experience, and that means they're both fighting for the best songs and the best bands—I couldn't be happier. Today, Activision announced that, along with Slash, Rage Against the Machine guitarist Tom Morello will appear in Guitar Hero 3 as a boss character. HangZhou Night Net

Guitar Hero III: Legends of Rock boss battles give fans a chance to compete against legendary guitarists such as Slash and now Tom Morello. Players are required to deplete the boss' Rock Meter before the boss goes into their Death Drain solo, which always means 'lights-out.' After defeating a boss, players unlock that guitarist as a playable character and continue to the encore for the set list, which is a master recording of one of their respective bands' most well-known tracks. When Morello is defeated, the next performance is "Bulls on Parade," during which Morello performs on stage alongside the player.

That sounds pretty kickass, and Tom Morello is already a fan of the game. "Whenever I play Guitar Hero my opponent always kicks my ass on my own riffs. It's embarrassing," says Morello in the release. "Now that I'm actually IN the game I hope the digital me will win once in awhile!"

Activision lauds Bulls on Parade, calling Morello's work "a highly unusual solo that sounds more like a turntable than a guitar by making use of the toggle switch and rubbing his hand along the strings parallel to the neck of the guitar." It remains to be seen how that will be played in the game, but it will be fun to find out.

Competition is a good thing.

Tabula Rasa receives ship date: October 19

At E3 two years ago the NCSoft booth had fire breathers, a live band, and Tabula Rasa. It was a little hard to get a sense for Richard Garriot's futuristic MMORPG. Luckily, in the time since, Opposable Thumbs has been able to take a look at the game at PAX and take the title for a test drive through the beta. Now we know when the game will be released: October 19. HangZhou Night Net

"It has been a heck of a journey," said Richard Garriott, the game's executive producer. "The fact that we are getting ready for the final stretch towards launch feels great, but it is also just the beginning. I think we've managed to do something truly unique and I hope that the gaming community likes it as much as we do. Now, I am looking forward to a really fun 'end of beta event' for our incredible testers, and focusing development on new planets and innovations for future expansions of Tabula Rasa."

The standard edition will be $49.99 and be available at retailers and through NCSoft's online store, and the special edition will be available for $69.99. The more expensive version features a special emote, an in-game pet, new armor colors, a coin, maps, and all those fun things that make us want to pay $20 more for our online games.

Now, while we're on this topic, this is something funny I just stumbled upon. Our first gaming writer for Ars Technica, Carl, went to E3 in 2001. There, he heard about a game that was being made by Lord British, aka Richard Garriot. Keep in mind, this was 2001.

Perhaps better known as Lord British, Richard Garriott revealed some details of his new development house, Destination Games. The biggest coup for Destination Games so far is the deal with Korean game company NCsoft to bring Lineage: The Blood Pledge to North America. Lineage is a hugely popular online multiplayer RPG (akin to Everquest), which boasts more than 2 million registered players.

In discussing the future of Destination Games, Garriott made vague comments about a future project called Tabula Rassa (an online RPG), but details were few. One thing is known: it'll be 2.5 years in development, which is just a blink in Duke Nukem Forever years.

I can't even link to it directly, you're going to have to just scroll down in this post. I remember reading that thinking two and a half years sounded like a long time. That was in 2001. We were already making fun of Duke Nukem Forever. Crazy.

Apple faces third class action lawsuit over iPhone batteries

Apple's lawyers must be ready for a vacation right about now, since they've had quite a busy summer. In addition to not one but two class action lawsuits over iPhone batteries, they've also been faced with a variety of other suits. There doesn't seem to be much of an end in sight, either, since Apple has now been hit with a third class action suit over the infamous batteries, and has escalated the original battery suit to the federal level. HangZhou Night Net

The newest class action suit was written by two firms responsible for the earlier battery suits, so it should come as no surprise that the allegations are essentially the same. According to the complaint seen by Ars Technica, the plaintiffs (along with other iPhone buyers) were never informed the battery could only be replaced by Apple. They were also never aware of the cost of a such a replacement. The suit also claims that the battery will need to be replaced every year, which (once again) may be a bit of a stretch. Don't expect this suit to be resolved anytime soon, though. There are already two battery suits out there, one of which Apple seems to be moving on, so I suspect this case will get put on the back burner until a judge decides on one of the other two.

The first suit, filed by Jose Trujillo in an Illinois court, does appear to be getting some attention from Apple. Based on a short action submitted to the court, Apple's lawyers are removing the case from county court, and escalating it to federal court in the Northern District of Illinois. The change is occurring thanks to the 2005 Class Action Fairness Act, which allows multi-state class action suits with over $5 million in damages to be moved to federal court. The hope is that the federal court will deal more fairly with companies in multiple states, in the event that the case actually goes to trial. It's unclear if Apple will try to settle out of court, as they like to do, but we'll just have to wait and see.

Judge lets Google file brief in Vista search antitrust battle

Google has gotten an official nod to file a brief critical of Microsoft's compliance with the antitrust decree prescribed by the US government, as the search giant does not feel that Microsoft has done enough to allow third-party desktop searches to function in the same way as the integrated search in Windows Vista. US District Judge Colleen Kollar-Kotelly gave Google the go-ahead in an order this week, despite the fact that she feels that Google's complaint has already been appropriately addressed. HangZhou Night Net

Late last week the DoJ reviewed a Windows Vista machine with beta changes meant to address concerns raised by Google. The DoJ said last week that Microsoft's compliance on the matter was satisfactory, but we believe that this battle will continue because Google does not believe Microsoft is acting fairly.

Google has been quietly fighting Vista's desktop search for months now. It started in June when the company alleged that Vista's own indexing service could not be properly disabled and that it caused system performance problems when customers used competing desktop search products, such as Google Desktop Search. Google argued that the behavior was anticompetitive because it discouraged customers from installing anything else.

Microsoft responded by promising some changes to Vista that would allow end users to select a default program to perform desktop searches, while Vista's own search results would continue to be displayed in some contexts. It also said that it would not change how the system indexed files. Much to the chagrin of Google, the DoJ accepted Microsoft's proposal.

Google was naturally irked by this and responded by saying that Microsoft's changes were not enough. Google's chief legal officer said that the changes violated the 2002 consent decree between the Department of Justice and Microsoft and limited consumer choice. In late June, Google moved to have the decree extended, because it felt that Microsoft needed to do more before the judgment expired in November. At that time, Judge Kollar-Kotelly told Google to take its complaints directly to the DoJ instead, because she did not believe Google had proper standing with their complaint.

With the DoJ and 17 states' attorneys siding with Microsoft on the matter, Google doesn't seem to have much hope of pressing the issue in terms of Microsoft's compliance with the consent decree. While Judge Kollar-Kotelly's decision is largely procedural, it is another cog in the wheel of a dispute that will likely extend beyond the November expiration of complete DoJ oversight. Google has indicated in the past that it won't give up the fight until it has run out of angles to pursue.

Apple wants to slash TV show prices in half, aggresively drive iPod sales

Last week, Apple and NBC-Universal's relationship ended in a messy split. The usual he-said, she-said followed: Apple accused NBC of wanting to double prices on some TV shows; NBC said no, they just wanted to have some flexibility in pricing. There may have been another factor at work, however: Apple's desire to cut prices drastically on TV shows. HangZhou Night Net

Sources close to the discussions between Apple and the networks told Variety that Apple wants to chop per-show prices in half from $1.99 to 99¢ each—the same price Apple charges for DRMed music. Unsurprisingly, Apple is meeting with a lot of resistance from the studios on the idea.

The iPod maker's argument is simple: lower the prices on TV shows, and you'll more than make up the difference in increased volumes. Left unsaid is how Apple believes 99¢ TV shows would help sales of iPods. With video content priced the same as music, Apple could use the cheap episodes to market the iPod as a way to stay on top of one's favorite shows, and inexpensively at that. Nate could finally catch up on That's So Raven for less than a price of the DVD.

DVD pricing is a big red flag for the studios, however. Take 30 Rock for example. The MSRP for the DVD set of the first season is $49.99, but you can find it for as little as $32.00. Under Apple's proposed pricing plan, fans of the show could grab the first season's 21 episodes for $20.79 (it costs $41.79 at $1.99 per episode). DVD extras—along with the ability to play the discs on the device of your choosing—might be enough to convince some fans to pay extra for the DVD, but others will likely opt to go for the cheaper download option. With DVD sales still a major source of revenue for the studios, fears of cannibalization will be lurking in the background of any discussions over price reductions.

NBC has pointed out that lowered prices for content work primarily to Apple's benefit. "It is clear that Apple's retail pricing strategy for its iTunes service is designed to drive sales of Apple devices, at the expense of those who create the content that make these devices worth buying," said NBC Universal executive VP Cory Shields.

NBC has taken its ball and gone to Amazon, where its programming will be available, albeit with more stringent DRM and in a format incompatible with both the iPod and Mac OS X. NBC will get its much-desired variable pricing, though.

Apple's vision for cheaper content on iTunes is going to be a tough sell to the networks. Disney and its family of networks (e.g., ABC, ESPN) may prove especially amenable to Apple's proposals given that Apple CEO Steve Jobs has a seat on the board and Disney was the first studio to hop aboard the movie train at the iTunes Store. Should Disney go along, the presence of 99¢ episodes of Desperate Housewives alongside $1.99 episodes of CSI: Miami might be enough to spur some of the other networks to go along… or leave iTunes behind.

Apple applies for patent on content popularity tracking

When you hear the words "Apple" and "patent," you usually think of some sexy, groundbreaking piece of technology that the patent is giving us a glimpse of. Unfortunately, all patents can't be that exciting, even if they are coming from Apple, although this one is somewhat interesting to those of us who are data nerds. A recently published patent application covering a way to compute the popularity of web content (particularly podcasts) offers us a peek at what Apple employees are working on. HangZhou Night Net

One thing they (or more accurately, their patent lawyers) are not working on is their art skills, as evidenced by the (hand-drawn, with a crayon) patent drawings. Fortunately, a bit more time has gone into the application itself. It outlines a method for tracking the popularity of "serial content" without using the number of purchases or downloads as a metric. Why does that matter? Well if you've got something like a podcast that's made up of multiple parts, going by the number of downloads may not do much for you.

The improved method proposed in the application involves using subscriptions to keep a better tally of the popularity. The change in the number of subscriptions could then be looked at to give an idea of how the popularity of a series of content is changing. To add a further twist, rankings can be based on "decayed subscriptions," where subscriptions are given less weights as they get older, until they reach a certain point and are no longer counted

It seems like a bit of a trivial idea to me, but I'm not a patent lawyer, so make of it what you will. In terms of usefulness, this rating system is clearly aimed at things like the Podcast Directory on iTunes. I don't know how much of this (if any) is currently being used to rank podcasts, but rankings for content are a big deal (just look at Netflix), so Apple could have a few tricks up their sleeve that require a system like this.

Man busted for using P2P to steal “identities” of dozens of file-sharers

Add one more reason to the list to tread carefully while using file sharing services—not only could you contract a virus or end up writing a four-figure check to the RIAA, you could also have your identity stolen. A Seattle man was arrested this week for doing just that, using popular P2P programs LimeWire and Soulseek to search for personal documents on other users' computers that were running the same software. HangZhou Night Net

Authorities say that the man, Gregory Thomas Kopiloff, bought over $73,000 worth of goods online using the information from at least 83 individuals between March 2005 and August 2007. He had the items shipped to various addresses, which, according to a copy of the indictment seen by Ars Technica, authorities say was meant to conceal his activities. Many of the things he purchased were electronics, such as an 80GB iPod, Shure headphones, and a Lacie 2TB hard drive, which he then resold online.

Kopiloff was able to purchase these items by digging up information from bank, tax, and student loan documents from unsuspecting LimeWire and Soulseek users' computers. He then used that information to access people's personal bank accounts, and in some cases, open up credit cards in their names. These users had unwittingly instructed the applications to share all documents on their computers, not just movie and music files. However, the indictment also specifies that Kopiloff installed the P2P software with such permissions onto "computers in his possession" so that his scheme could be perpetuated, leading us to believe that he may have worked as a computer repair tech of some sort before his arrest.

Kopiloff's scheme wasn't entirely P2P-based, though. The indictment acknowledges that some part of the personal information he obtained came from good, old-fashioned dumpster diving—that is, digging through trash to find paper documents that people have simply thrown away. The indictment doesn't say exactly what percentage of the documents were obtained through this manner, however.

The US Department of Justice says that this is the first case against someone accused of file sharing in order to commit identity theft,according to the Associated Press. Kopiloff is now being charged with two counts of aggravated identity theft, one count of mail fraud, and one count of illegally accessing a personal computer.

Patent Reform Act close to vote, Google and others weigh in on changes

Update: The House voted 220-175 to approve the Patent Reform Act today.The Senate should vote on its version quite soon. HangZhou Night Net

The Patent Reform Act looks on schedule for a vote in both the House and the Senate within the next couple of weeks, and companies are lining up to make their opinions heard. Google, for example, spelled out its position on Tuesday: it supports the legislation as a way to "defend against frivolous patent claims from parties gaming the system to forestall competition or reap windfall profits."

The problems are clear enough: patent infringement lawsuits have tripled in the last decade, patent applications are increasing faster than the number of patent examiners available to handle them, and the triple damages that can come with "willful" infringement scare many companies away from even examining the patents filed by competitors. Stir in the problem of "venue shopping" (*cough* Eastern District of Texas *cough*) and you have a recipe for some really bad patent borscht.

The Patent Reform Act has been in the works for years, and the bill is intended to fix many of these problems with the current system, which has not been substantially updated in almost 50 years. Over the last few months, the legislation has been substantially amended to address concerns from stakeholders and other members of Congress, and it now appears to be close to its final form. With votes expected soon, let's take a look at the major changes to the Act since introduction.


The Act will still switch the US from its current first-to-invent system to a first-to-file system like that used in the rest of the world. New in the bill now is a provision that will prevent this switch from taking place until Europe and Japan adopt a one-year grace period intended to prevent academics, small companies, and individual researchers from losing out on their inventions by being beaten to file by a large corporation.

Publication of all patents

"Submarine patents" could surface in the US long after they were first filed so long as inventors only applied for domestic patents. The Patent Reform Act will change this so that all patents will now need to be published, most within 18 months of first filing. An expected amendment could provide a bit more time for some filers to keep their work hidden from view, but the law should go a long way toward depth-charging submarine patents.


This was one area that concerned Google greatly. Under the current system, winners in some patent infringement suits could collect damages based on the entire value of the infringing invention, no matter how small a part the patent in question played. As Google puts it, "a windshield wiper found to infringe a patent should not spur a damage award based on the value of the entire car." The Patent Reform Act will allow judges to assign damages based on an "apportionment." Patent holders could collect damages only on the partial value of the infringing product.

Post-grant review

It used to be that there were two main ways to challenge a patent: litigation or a USPTO reexamination. Both were time-consuming and costly. The new bill provides for "post-grant review" during which companies can file petitions and present evidence in order to have newly-granted patents struck down. Such petitions must be filed within one year of the patent issue date (a "second window" for doing this has been eliminated from the Act).

Tax planning patents

Believe it or not, some tax preparers are currently trying to claim business methods patents on their proprietary strategies for reducing a client's tax bill. The Act would eliminate all such patents.

Venue shopping

Venue shopping would be curtailed under the Act by requiring most cases to be brought in the district where the plaintiff "resides" (or where a business is headquartered). This should help curtail the "Texas flood" of patent cases that have flowed into places like… well, Texas. Currently, patent holders can bring a suit against a company like Amazon or Google in any district where that company does business. For Internet companies, this can be any district in the US, and plaintiffs routinely seek out the most patent-friendly districts in which to file their cases.

We should know within a few weeks if these changes will find their way into US patent law, or whether the bill will be reworked once again to address concerns from patent-holding companies that the bill will lower the value of their IP.