By Scott M. Fulton, III, Betanews

The key issue at the heart of Viacom's case against Google and YouTube, filed in March 2007, concerns whether an Internet service that probably knows that files are traded or shown illicitly or without license there, deserves the "safe harbor" provisions of the Digital Millennium Copyright Act that protect ISPs from liability for their customers' actions. In a summary judgment motion filed yesterday with US District Court in New York and unsealed this morning, Viacom is bidding to have the judge wrap up the case -- an obvious signal that it believes its case is already strong enough.

As US law stands now, a service such as Grokster or the original Napster (not the Best Buy division that today uses that name) is liable when it intentionally establishes its service for the express purpose of trading in illicit files. It's especially liable when it finds some way to advertise itself for that purpose. An Internet Service Provider such as Comcast or Cox is not liable when its service is used for accessing one of these sites, when it doesn't advertise or offer these services explicitly, and when a customer can access them without direct intervention from the ISP. And a video site such as Veoh is not liable when any measure it might take to stop customers from sharing illicit files may also conceivably infringe upon the free speech rights of other customers who may not be trading such files.

Google, the current owner of YouTube, has been arguing the Veoh case in its own defense. But Viacom's argument -- which courts have been wrestling with for over two-and-a-half years and which we now know today -- is that YouTube is a different, special case. It's more like Grokster, it argues, in that it was founded on the principle of gathering an audience around illicit files.

"Defendants are liable under Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., because they operated YouTube with the unlawful objective of profiting from (to use their phrase) 'truckloads' of infringing videos that flooded the site," reads the opening passage of YouTube's founders single-mindedly focused on geometrically increasing the number of YouTube users to maximize its commercial value. They recognized they could achieve that goal only if they cast a blind eye to and did not block the huge number of unauthorized copyrighted works posted on the site. The founders' deliberate decision to build a business based on piracy enabled them to sell their start-up business to Google after 16 months for $1.8 billion. The Supreme Court in Grokster found no legal or societal justification for such intentional copyright infringement."

FOR MORE:

• Viacom and YouTube: Timeline of pertinent events by Tim Conneally

In a talking points document released today (PDF available here), Viacom cites various e-mails from various YouTube and Google executives, including YouTube founders Chad Hurley (CEO) and Steve Chen (CTO). Assuming these excerpts were not taken out of context, which is possible, they indicate that YouTube's founders were clearly building up a high-audience business with illicit files at their core, with the intention of selling out to somebody as soon as possible.

One excerpt has Chen suggesting that YouTube, apparently during its startup phase, "...concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil." Another suggestion, by an unnamed YouTube exec in response to an non-excerpted suggestion -- apparently asking, where should be get all this content -- reads, "Steal it! . . . We have to keep in mind that we need to attract traffic. How much traffic will we get from personal videos?"

And one excerpt attributed to Chen suggests that the whole legal process of handling DMCA takedown notices is so long and dragged on, that by the time YouTube should ever comply with one, it would be too late anyway: "But we should just keep that stuff on the site. I really don't see what will happen. What? Someone from CNN sees it? He happens to be someone with power? He happens to want to take it down right away. He get in touch with cnn legal. 2 weeks later, we get a cease & desist letter. We take the video down."

Viacom's argument that Google knows what kind of trafficking goes on via YouTube is substantiated by evidence in the form of e-mails, evidently sent prior to its acquisition of YouTube, from executives objecting to elements of what they perceived to be its business model. One message from Google's then-VP of Content Partnerships David Eun (now with AOL) to CEO Eric Schmidt cautioned, "I think we should beat YouTube . . . but not at all costs. [They are] a video Grokster." And in another excerpt, an unnamed Google executive asks, "Is changing policy [to] profit from illegal downloads how we want to conduct business? Is this Googley?"

Evidence cited in Viacom's motion for summary judgment tells the story of how Google Video failed to be competitive against YouTube, even though its engineers persisted with efforts to filter out illicit content. One memo cited says Google Video may have been throwing out 90% of its uploads, for containing suspected copyrighted material or for being generally indecent.

"But Google's good intentions and compliance with the law were not paying off," Viacom argues. "YouTube was way ahead of Google Video in the race to build up a user base. Google executives understood that YouTube's success was largely due to what they euphemistically labeled its 'liberal copyright policy' of freely allowing infringing material. Losing the user race to YouTube because of the latter's copyright infringement, Google Video executives engaged in a 'heated debate' in 2006 'about whether we should relax enforcement of our copyright policies in an effort to stimulate traffic growth.' A top senior executive, Peter Chane, Google Video's Business Product Manager, argued point blank that Google Video should 'beat YouTube' by 'calling quits on our copyright compliance standards.' Chane specifically advocated switching Google Video to YouTube's 'reactive DMCA only' policy because 'YouTube gets content when it's hot ([Saturday Night Live's] Lazy Sunday, Stephen Colbert, Lakers wins at the buzzer)' and it '[takes us too long to acquire content directly from the [legitimate] rights holder.'"

It is that statement which Viacom appears to present as a smoking gun: a suggestion from a Google Video executive that it should acquire its competitor solely because its allegedly illegitimate business model is more successful than its own, legally compliant one.

In Google's memorandum in support of summary judgment in its favor, filed after Viacom, its attorneys do not take the tack or rebutting Viacom's scorching citations -- which, if substantiated, could theoretically become the basis for future criminal complaints. Instead, Google reiterates the argument that it's a service provider which, like Veoh, is entitled to safe harbor since it looks the other way, and does not actively seek infringing uploads.

Citing the Veoh finding, Google's attorneys argue, "What matters is that Veoh 'established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users...Inasmuch as this is a means of facilitating user access to material on its Web site,' Veoh did not lose the safe harbor 'through the automated creation of these files.' YouTube is indistinguishable from Veoh in these respects."

YouTube, Google argues, did not have direct knowledge of the circumstances whereby the specific content Viacom claimed was infringed upon (much of it from Paramount) was shared with YouTube users. Since Viacom's arguments must, at some point, focus themselves upon the specific infringing of the content in question, the DMCA protects YouTube on that count as well, Google continues. But all that may be moot, Google points on, by virtue of the fact that under current US law, the alleged infringers must have directly profited from their actions. YouTube gains revenue through advertising.

Writes Google, "A service provider loses safe harbor eligibility only if the plaintiff can show both that the service provider had the right and ability to control the alleged infringements and received a financial benefit directly attributable to those infringements...As with knowledge, the DMCA's control inquiry is specific, not general. The analysis focuses on the service provider's legal and practical control over the particular infringing activity at issue. The statute's text makes that clear: The question is whether the service provider has the right and ability to control "the infringing activity" alleged by the plaintiff and to which a financial benefit is directly attributable."

A number of declarations in support of both motions were filed today. One supporting Google was particularly interesting, because it goes to specifically that last paragraph: It's from the owner of a marketing firm who promoted the works of recording artists who appear on MTV, a Viacom property. He claimed that some of the very works Viacom claimed were infringed upon through unauthorized uploading to YouTube, actually were authorized by none other than MTV itself, as part of the promotion of the artists under his contract.

If Google's interpretation of the law is affirmed, and if this gentleman's claims are proven, then this whole case could become history faster than a judge can even say "summary judgment."

By Tim Conneally, Betanews

In a message sent to developers today, Apple announced that it is now accepting iPad apps for the iTunes app store. To have apps approved (or rejected) in time for the iPad launch, they must be submitted to Apple by 5pm PDT on Saturday, March 27. Only apps built with the iPhone SDK 3.2 beta 5 are going to be accepted in this round of reviews.

It has been rumored that the iPad is scheduled to launch on April 3rd, but the precise date of the device's launch is still undetermined.

By Tim Conneally, Betanews

This week, documents from Viacom's billion dollar lawsuit against YouTube for copyright infringement were published, and the three-year-long-and-counting lawsuit has again been brought to the public's attention. In case you haven't been following the case, here's a quick timeline of the major events that led up to the lawsuit, and those that occurred since the original complaint was filed:

May 24, 2005- Viacom subpoenas YouTube for information about a user who uploaded clips from Paramount Pictures' "Twin Towers."

June 2005- Viacom's board of directors approves a plan to spin off assets, which become known as the new Viacom, Inc. That new company is given control of Paramount, while the core company reforms as CBS Corp.

January 2006- 20th Century Fox sues YouTube to have content from Fox TV shows such as The Simpsons and 24 removed from YouTube.

June 2006- YouTube and NBC partner to create NBC channel on YouTube for Internet exclusives, clips, and trailers.

July 2006- Viacom and NBC Universal back journalist Robert Tur in his suit against YouTube for illegally posting his videos of the 1992 L.A. riots. The legal brief said, "YouTube incorrectly contends that the DMCA permits it to avoid any responsibility for the content on its commercial website and completely shift the burden to content owners to discover and notify it of infringements."

September 2006- YouTube signs content deal with Warner to host the company's music videos.

October 9, 2006- CBS and YouTube announce a strategic content and advertising partnership.

October 2006- Viacom and YouTube reach a content syndication agreement.

October 20, 2006- Google Buys YouTube for $1.65 Billion.

December 2006- Viacom reportedly walks away from negotiations with NBC Universal, CBS Corp., and Fox Interactive about creating a TV-centric YouTube competitor site.

February 2007- Viacom retracts its content agreement with Google, pulls everything off the site.

February 2007- YouTube's pending content deal with CBS halts.

March 2007- Viacom Sues Google for over 63,000 separate counts of copyright infringement seeking $1 billion in damages. YouTube protects itself with the "Safe Harbor" provision of the Digital Millennium Copyright Act.

March 2007- Viacom General Counsel Michael Fricklas in a Washington Post op-ed says that YouTube was not just a passive content host, and that it is fully aware of what it does. "If the public knows what's there, then YouTube's management surely does. YouTube's own terms of use give it clear rights, notably the right to take anything down."

May 2007- Google signs YouTube content deal with record label EMI.

May 2007- British Premier League files class action suit against YouTube for copyright infringement, says Google "knowingly misappropriated and exploited this valuable property," when it allowed users to post footage from its football games.

June 2007- YouTube introduces Content ID to help content owners identify if their content is being used, gives them the option to remove unauthorized content, or monetize it.

July 2007- Google CEO Eric Schmidt says Viacom was "built from lawsuits."

August 2007- Google asks Comedy Central personalities Jon Stewart and Stephen Colbert to testify against Viacom in copyright hearings. Comedy Central is a Viacom property.

October 2007- Viacom joins MySpace, Microsoft, Veoh, and Dailymotion in signing the "Copyright Principles for User Generated Content Services," hoping it will become a sort of "television code" of online copyright protection.

March 2008- Viacom President and CEO Phillippe Dauman says "We've already achieved a number of things with this lawsuit. It took a long time, but because of our actions, YouTube has moved in the right direction. They're where they should have been all along."

May 2008- Google claims Viacom's suit threatens the way hundreds of millions of people legitimately exchange information, news, entertainment and political and artistic expression," claims it could have a chilling effect on all Internet communications.

June 2008- New York District Court rules that Google has to turn over user IDs and IP addresses to Viacom. Angry users upload nearly 5,000 "Viacom Sucks" videos to YouTube. Google is later allowed to make this data anonymous.

July 2008- Movie studio Lionsgate partners with YouTube for a branded channel with ad-supported official content from the studio.

October 2008- The McCain/Palin presidential campaign asked YouTube to stop taking down campaign videos that incorporated clips of news broadcasts. YouTube said that it was doing so at the request of broadcasters who objected to the use of their copyrighted footage.

April 2009- Content owners discus "TV Anywhere" plan to tie Web-based video content into cable subscription fees. Viacom CEO Dauman says, "People are used to paying for video subscriptions," sees it as a good idea.

June 2009- "TV Everywhere" network scheme launches.

July 2009- Some claims from the Premier League's 2007 suit against YouTube are dismissed, but claims for "statutory damages for works not registered in the US" are allowed.

September 2009- Google gives individual copyright holders access to the Insight metrics of YouTube videos that contain their intellectual property according to Content ID.

October 2009- Viacom presents "smoking gun" evidence for its case: internal e-mails from YouTube staff that show "actual knowledge" that copyright infringement was taking place on the video sharing site.

November 2009- Google announces YouTube Direct, a system where media outlets can directly communicate with users and arrange rebroadcasting rights on a one-to-one basis.

March 2010- Some of Viacom's "smoking gun" documents go public, company claims "YouTube was intentionally built on infringement."

By Scott M. Fulton, III, Betanews

Literally every day at Betanews, we get at least one security vendor "alert" of some type, warning us to be on the lookout for the latest malware. The message is always the same: Advise users to stay vigilant, to keep patching, to upgrade their antivirus to the latest editions. But the profiles of the malware typically look the same, too -- stuff you might click on by accident, links pretending to be from your "best friend" in an e-mail message, ads for products that look too good to be true.

For many of us, the situation is getting to be like the US' terror alert level, which has remained at "Yellow" since the fall of 2007. We starting to forget what "elevated" vigilance means. And maybe that's a problem, because lack of attention to advice about real threats could become as dangerous as lack of attention to any one of those miracle weight-loss links.

This isn't an ad, it's my opinion: Over the years, I've trusted the engineers at Sophos Labs to present down-to-earth analyses of possible security scares. This morning, I forwarded two recent reports from other well-known security vendors to Sophos' Chester Wisniewski, reports about malware that didn't fit the ordinary profile we tend to see from day to day.

The first report comes from ALWIL Software, publishers of Avast anti-virus, and it's been heavily circulated since it was first issued last February. It speaks of the horrors of receiving unsolicited malware by way of JavaScript elements embedded in the ads that appear on Web sites -- the sources of which, sometimes, innocent publishers have no control over.

"The malware usually spreads through Web infection placed on innocent, badly secured Web sites," reads last month's initial warning from the Czech Republic-based Avast's Jiri Sejtko. "The ad infiltration method is growing in popularity alongside with the Web site infections. Now we are facing probably the biggest ad poisoning ever made -- all important ad services are affected. It means that users might get infected just by reading their favorite newspaper or by doing search on famous Web indexers. User interaction is not needed in this attack -- infection begins just after poisoned ad is loaded by the browser -- it is not a type of social engineering."

A chart from the ALWIL security research team showing what it claims to be the number of detected instances of malware sent by advertising platforms over a six-day period.

ALWIL's research found the Fox Audience Network as among the ad platforms spreading the alleged infection, which the firm dubbed "JS:Prontexi." On Tuesday, a public relations effort by the firm dubbed the malware a "widespread campaign," leading to blanket coverage such as this story in Media Post on Tuesday, this story in the Danish BizReport earlier today, and this blog post on Photoxels, which contains the original press release in its entirety.

That press release stated as many as one in two online ads served worldwide was in danger of being infected by the malware the ALWIL team discovered. "JS:Prontexi highlights the lack of care shown by advertising services providers to actively screen the content they are distributing," Sejtko is quoted as saying.

Can this problem truly be this bad -- a malware component with a 50% worldwide Web reach?

"Infections on ad services are certainly of heightened concern," Sophos' Chet Wisniewski told Betanews earlier today, "yet this is almost a month old, and the miscreants who caused this incident have since moved on. To claim it as the biggest ad server compromise ever seems to me to be a bit of hyperbole." The moral of the story, according to the ALWIL press release: Pay attention to situations where you may think antivirus software like Avast is returning false positives...they may not be false. Again quoting Sejtko, "Consumers shouldn't immediately accuse their antivirus program of a false positive when a familiar site gets blocked. There can be a real danger."

The other "red alert" this week comes from McAfee Labs, as part of its new program of publishing "Consumer Threat Alerts." One of the first such alerts yesterday concerns a worldwide "Facebook password reset scam." Here, users worldwide are sent an ordinary e-mail -- no graphics, no text formatting, just an e-mail with an attachment: "Dear user of facebook [sic], Because of the measures taken to provide safety to our clients, your password has been changed. You can find your new password in attached document. Thanks, Your Facebook."

As McAfee's threat alert from yesterday reads, "This threat is potentially very dangerous considering that there are over 400 million Facebook users who could fall for this scam. This is also the sixth most prevalent piece of malware targeting consumers in the last 24 hours, as tracked by McAfee Labs." Since this is also the type of phishing scam that we see here at Betanews every single day (sometimes every few hours), certainly this can't be the kind of malware delivery mechanism that people fall for, can it? Haven't people smelled this kind of scam long enough to spot it at a distance?

Surprise. As Wisniewski told us, this one deserves the red flag and the blaring klaxons.

"We are seeing very high volumes of this attack. Sophos detects the attachments as TROJ/Invo-Zip, which we talked about being involved in a similar MySpace attack this January. It then proceeds to infect you with Mal/FakeAV-BW (Fake Anti-virus). The same malware is also making the rounds as a fake delivery notification from DHL. The only thing unique is the extremely high volumes and the large user base that Facebook has that could be convinced to run the malware."

So to recap: A completely unsophisticated e-mail attachment, of the garden variety we've seen for the last 15 year, is seen by Sophos as being more dangerous and widespread than an embedded JavaScript that one security researcher says has the potential of appearing in half the world's online ads. The only way to ever find out the truth, is to ask the right questions of the right people.

By Tim Conneally, Betanews

Late in February, Palm issued a shareholder warning which said that profits for the full year were going to be "well below" expectations due to a surprisingly slow demand for Palm's smartphones.

Today, the company issued its third quarter earnings report, and though the numbers were actually up against the same quarter last year (when Palm posted a net loss of $98 million,) the company is still losing money; $22 million to be exact.

True to the company's warning last month, device shipments were up tremendously, but sales did not follow. Thanks to the newly-released Pre Plus and Pixi Plus on Verizon Wireless, Palm shipped 960,000 devices, but only 408,000 sold through.

Jon Rubinstein, Palm's chairman and CEO said, "Our recent underperformance has been very disappointing, but the potential for Palm remains strong. The work we're doing to improve sales is having an impact, we're making great progress on future products, and we're looking forward to upcoming launches with new carrier partners. Most importantly, we have built a unique and highly differentiated platform in webOS, which will provide us with a considerable - and growing - advantage as we move forward."

By Scott M. Fulton, III, Betanews

Download Nvidia ForceWare Drivers for Windows version 197.73 from Fileforum now.

Version 196.75 of Nvidia's GeForce/Ion drivers were indeed responsible for fan overheating problems reported by users. That's the verdict from Nvidia, which in a second round of responses to customer concerns has released version 197.73, which it assures users doesn't have the problem.

According to a frequent contributor to Nvidia's support forum, the problem was with the release version of the driver (other contributors reported no such problem with the beta). Specifically, version 196.75 ran the on-board graphics chip fan at 40% speed like it's supposed to. But when the card got hotter, the speed boost failed to kick in.

As one tester verified, "Up to 72° [Celsius], the fan remains at 40%. At 73° it increases to 41%, at 74° to 42%, and at 75° it varies between 44 and 45%."

To its credit, Nvidia's response has actually been quite swift. Over the past few days, registered driver users received e-mail messages advising them to roll back to an earlier version. One Dell XPS M1730 customer tried that, only to find that certain data left behind from a simple uninstall made it impossible to reboot his computer except into Safe Mode -- where, after a short time, it would freeze. A volunteer pointed out the M1730 is a laptop...and the 196.75 drivers were for desktop PC cards.

Other volunteers suggested the use of driver cleaning utilities such as Guru3D Driver Sweeper. Meanwhile, they advised others to use manual utilities to monitor their processor temperatures.

Though some long-time forum members were prematurely lamenting about how long they'd have to wait to see software fixes, they actually did come within a few days. But that wasn't good enough for some who complained they lost their cards entirely. Over the weekend, prior to Nvidia's announcement, one forum contributor commented, "I have filled out an error report form and it seems that all I (we) can do now is wait. The possible fixes I have heard include: RMA video card for a new one; buy a new video card. These seem like rather poor fixes."

Sensing the onset of a possible customer revolt, forum contributor ImNutz4NvSLI (who, we can assume, is nuts for Nvidia SLI) attempted to put out the flames: "Paying attention to your GPUs temps is your responsibility. I can't imagine a situation in which my GPUs would get to over 100c and I wouldn't know about it. I am not trying to be cruel or insensitive, I am just stating it like it is. In this world today people are always looking for something for nothing, and looking to pass blame and not take responsibility for their own actions. While this driver may have broken automatic fan control on some users GPUs, certainly not all, fan control was still there to use and was working, all you had to do was pay attention to the temps."

The contributor pointed to a thread he set up last Saturday, containing illustrated instructions for setting up manual temperature monitors in Windows. Utilities such as EVGA Precision, for instance, show little temperature indicators in the Windows system tray, and can even overlay game screens with temperature monitor information on-demand.

By Tim Conneally, Betanews

For more than five years, Netflix has had a feature called "Friends" which lets users connect their Netflix account with others so they can view each other's queues, suggest movies to each other, or see how a movie ranks against their peers' ratings.

Todd Yellin, Netflix VP of Product Management said that after six years, only two percent of subscribers actually used the feature, so it is going to be phased out in the coming months.

"No company has unlimited resources and we decided to move engineering development time and resources from a little used feature to support and maintain the things that benefit all Netflix members as the service evolves ??" more devices for streaming and better encoding, for example," Yellin said.

Streaming, by comparison, is an absolute smash. Yellin said that roughly 50% of all Netflix subscribers use the Instant Streaming feature on their TVs, set-top boxes, and game consoles.

Unfortunately, the way the change became evident was rather clumsy.

Last week, Netflix implemented a new "Movie Detail" page on its Web site, which eliminated top 10 lists, friend ratings, and the ability to send movie notes. The features were still on the site, but their tabs were just removed from the page. Customers who used the "friends" feature were upset.

On a Hacking Netflix article about it last week, one commenter said, "The Friends feature and Top Ten Lists are *not* on individual movie pages any longer. Reviews from random Netflix users *are* there, however, and that makes absolutely no sense. Why would I care more about a random Netflix user's opinion than my friends'?"

Rather than letting subscribers know up front that the feature was in the process of being removed, Netflix just pulled the feature from its prominent position and relegated it to the background.

"We fumbled the ball this week," Yellin said. "In making some changes to the Movie Display Page we didn't fully communicate how they impact users of the Friends feature, and we owe you that. We've read every blog post, Tweet, news article and call log to Customer Service by those of you who are upset about this decision. To you, we apologize for not being more upfront earlier. We appreciate your passion and we understand your disappointment and frustration. Our decision is meant to benefit all Netflix members by allowing everyone to enjoy more movies and more TV episodes on more devices while still receiving the unbeatable convenience, selection and value that are the hallmarks of the Netflix service."

By Tim Conneally, Betanews

When Amazon debuted its first Kindle e-reader just over two years ago, we asked "...but will anyone buy it?"

We still can't say for certain.

Amazon CEO Jeff Bezos has made it very clear that Kindle users consume a lot of Amazon's e-books. But to date, Bezos has never gone public with hardware sales figures. So we can't be sure if it's Kindle hardware that's driving content sales, or perhaps the software Kindle for Windows 7, iPhone, iPod Touch, and BlackBerry.

A report from Credit Suisse Group AG in February determined that Amazon.com had a 90% share of the e-book sales market last year. So the question looms large: What is everyone reading these books on?

Today, Amazon announced Kindle for Mac, the latest addition to the family of free Kindle software. It's essentially the same software that was released for Windows back in November, which lets users synchronize content and bookmarks between their mobile Kindle device and their desktop. If a user is reading an e-book on his Kindle 2 or iPhone, he can pick up on his PC where he left off on his mobile.

The software gives users the ability to shop in the Kindle Store, access their library of previously purchased content, view notes and highlights, adjust font size and spacing, and unlike the Kindle device, read books in full color. Amazon says the software will eventually come to include full-text search and the ability to make new annotations.

Kindle continues its strong push in the software direction this year. Microsoft CEO Steve Ballmer showed off a mystery HP slate running Kindle Software at CES this year, and Amazon promises a version will grace Apple's hotly anticipated iPad. So Amazon looks ready for the tablet trend.

The Kindle hardware, however, doesn't appear to be blazing as many new trails right now. The educational pilot programs with the Kindle DX were largely unsuccessful, and Amazon job listings earlier this month showed the company was considering improvement of the Kindle's rudimentary Web browser "on a tight schedule." It's obvious that Kindle is a vehicle for selling Amazon's proprietary e-books. But with no sales figures to illustrate consumer adoption of Kindle hardware, a saturated market of competing e-reader hardware of equally negligible relevance, and continuing growth of the free Kindle software, we may have to rephrase and restate Ed Oswald's question from two years ago...

People are buying Kindle books, but are they buying Kindle?

By Carmi Levy, Betanews

Ever since she brought me into the world, my mother has taught me many things, namely to not only learn from my own mistakes, but also from the mistakes of others.

Microsoft clearly never spoke to my mom, as evidenced by its decision to leave cut, copy, and paste capabilities out of the new Windows Phone 7 Series platform, at least in the early rounds. If they had paid Mom a visit, they would have been told -- after being offered some tea, of course -- to fix all the boo-boos of earlier smartphone operating systems before releasing their own updated version. She would have advised them to understand the rough spots encountered by competitive offerings, and do everything in their power to avoid them.

I think my mom's ticked with Microsoft

Okay, perhaps she wouldn't have worded it precisely that way, but I'm certain you get my point regardless. I'm sure I speak for my mother (and likely, a whole bunch of you, too) when I say I'm disappointed in what may either be Microsoft's "decision" to leave three of the most basic functions in the history of computing out of its just-announced OS, or as we seem to be learning now, it's having overlooked the whole subject in the planning phase.

This morning, blogger Long Zheng reports he was told by Microsoft that cut and paste is something the company hopes will find a place in Windows Phone 7 Series at some future point.

Now, the initial excuse the company provided was (and is, and quite likely always will be) insufficient and, if we're being brutally honest, more than a little arrogant: "Most users, including Office users, don't really need clipboard functionality." So what's the story now, after Long's report: "We asked users to give us some details, and they decided, most users do like clipboard functionality, just not right at first?"

While I realize OS vendors have to make countless decisions about which features should and should not make it into the final product, I bristle at Microsoft's tone -- a bit like US Congresspeople explaining why the public option for health care is a really, really, really good idea, but just not for the bill being discussed today. If Microsoft (or, for that matter, if anyone at all) can learn anything from Congress this year, it's that people don't like being told by The Powers On High what they are supposed to want or not want, and when.

It isn't Microsoft's place to tell users that they won't ever need to cut, copy, or paste anything for as long as they own their new devices. It's the kind of blow-off statement that sounds shockingly like Apple when it introduced the iPhone in 2007, similarly stripped of any ability to cut-and-paste. After a sea of complaints from users and reviewers who actually do know what they want, and don't need to be told, Apple wisely retro-baked that functionality back into the OS two years later. While the controversy didn't seem to dent Apple's market share, Microsoft hardly has the benefit of Apple's marketing prowess or brand equity.

Apple aficionados were willing to cut the company some slack, and ended up buying iPhones anyway. Microsoft aficionados are a lot harder to find, they won't line up around the block in the middle of the night, and they'll probably pick up an Android-powered device as an alternative. With Windows Mobile...oops, Classic devices retaining this feature, and Windows Phone 7 Series lacking it, the inconsistency is difficult to understand. However you slice it, there will be no slack for Windows Phone 7 Series, and it's more than a little shocking that Microsoft couldn't see this coming.

Teaching us all a lesson?

In fairness to Microsoft, its new mobile OS includes a data detection service that automatically recognizes common elements like addresses and phone numbers. Within this context, perhaps there's room to make the argument that cutting and pasting is yesterday's news. This technology, popularized with the first mass-market GUIs in the early '80s, and perpetuated in virtually every desktop and mobile OS ever since, could be one of those things that we hold on to like a security blanket. And like the ratty old blanket, perhaps there's a time when we need to let go. Maybe, just maybe, Microsoft is doing us all a favor by pushing it out the door.

But consumers are a fickle lot. And what's makes sense from a strategic or historical perspective isn't necessarily right from the point of view of the guy forking over the dough for your new wonder-product. Never mind that Microsoft may, in fact, be "right" in concluding that we no longer need cut, copy, and paste on our mobile devices. Customers, after all, are always right, even if their choices make them look like circus clowns who do their makeup in the dark. It's their mistake to make and their shame to live down. Even if the vendor believes otherwise, it's not the smartest business strategy to call them idiots and make fun of their smudged face paint.

Casting off a legacy

In fairness to Microsoft, I somewhat understand where the company is coming from. Previous versions of its mobile OS suffered from what I like to call Shrunken Windows Syndrome. Instead of being built from the ground up as truly mobile-enabled solutions, they seemed to be pared-down versions of Microsoft's flagship desktop OS products. Microsoft's philosophy seemed to be that if it worked on a PC, it would work on a smartphone or a PDA, too. I used a number of Windows CE and Mobile devices over the years, and I never got used to navigating a full-on Start menu, complete with cascading sub-menus, with a stylus or thumb keyboard. It was as if Microsoft never actually used its own mobile products out in the field, and never listened to users who complained bitterly that its design philosophy simply didn't work out there.

With Windows Phone 7 Series, Microsoft seems to have finally gotten the mobile message. It's built from the ground up as a modern, competitive, lean and efficient mobile OS. I suspect the cut-and-paste omission is the company's way of overcompensating for years of heavy Windows legacy on its mobile products, a hackneyed way to break with its past.

Memo to Redmond: There are other ways to accomplish this.

It's only temporary

If Long Zheng's reporting is accurate (and it often is), I'd wager that v7.1 will have copy and paste...that is, if Microsoft doesn't cave to the firestorm earlier and release it as an on-the-fly fix. Either way, the only way Microsoft will ever gain traction in the mobile OS market is by listening to both customers and prospective customers and integrating their suggestions -- well, the value-added ones, at least -- into successive generations of their product.

This is a gaffe Microsoft simply can't afford. Its mobile OS is in the fight of its life as Microsoft battles the Apple/Google/RIM juggernaut on one hand and its own declining mobile market share on the other. Beyond the numbers, there's the risk that the market has already given up on Microsoft succeeding as a mobile vendor. That psychological factor (something Palm knows all too well) is something Microsoft needs to fix by reinstating cut-and-paste support. Now wouldn't be soon enough.

Carmi Levy is a Canadian-based independent technology analyst and journalist still trying to live down his past life leading help desks and managing projects for large financial services organizations. He comments extensively in a wide range of media, and works closely with clients to help them leverage technology and social media tools and processes to drive their business.

By Tim Conneally, Betanews

Google has rolled out a significant update to the Google Maps application for Android 1.6+ devices, which includes a new search results page, support for multiple accounts, a new Latitude homescreen widget, and a new Maps live wallpaper for 2.1 devices.

Previously, when you performed a search in Maps, you would have to choose a result from a list of markers on the map. When you clicked the marker, it would open a page with three tabs: Address, Details, and Reviews. Under the Address tab, there were options to Show the result on the map, get directions to it, call it, look at it in Street View, or add it as a contact. The other two tabs contain exactly what you'd expect, details and reviews. If you wanted to pick a different listing, you'd have to go back to the map view and pick a different marker.

Now, Google has completely eliminated the tabs, turned all the actions from the "Address" tab into buttons, included digested versions of the other tabs on the first page, and included the ability to "Buzz" about the location you have picked.

Additionally, you no longer have to navigate back to the map to check out other nearby results. You can simply swipe across the page to leaf through all the results.

The Latitude widget that accompanies the 4.1 update lets users view their nearby Latitude friends at all times from their home screen, the Maps live wallpaper, probably the coolest bonus feature, lets 2.1 users turn their entire homescreen background into a live animated map.

The update is available now from the Android Market

By Scott M. Fulton, III, Betanews

In the first series of comprehensive performance tests comparing Microsoft's Internet Explorer 9 technical preview, released yesterday, to stable Web browsers in current use today, Betanews confirmed superb speed gains by the IE9 chassis in specific categories. Not everything in the new IE9 was faster than IE8, but in the computational department, the development team's Chakra JavaScript engine shows much-needed gains.

In anticipation of IE9, Betanews has been developing a radically improved set of performance tests to complement (and, in a few categories, replace) those we've used in recent months. Our objective is to determine not just how much faster IE9 is, but how much better and more efficient it will be, in computing data, in rendering on-screen objects, and in adapting to varying workloads.

Betanews estimates that the IE9 chassis on Windows 7 offers 9.32 times better raw computational performance than IE8 on Windows 7, on the same machine. That's a welcome number due in large part to vastly improved scores in the widely respected SunSpider battery, as well as high scores in a new set of variable-workload computational tests produced by Betanews. Specifically on the SunSpider, the IE9 preview scored a 44.77 on Betanews' relative performance index, compared to 5.59 for IE8. Our index is based on cumulative relative performance in each category of the test battery, compared against the score posted by an old, slow Web browser: IE7 on Vista SP2. This means, yes, IE9 (thus far) offers almost 45 times the computational speed of IE7 on the older operating system -- easily the single largest surge we've seen between generations.

A recent dev build of Google Chrome 5 on Windows 7 scored a 69.83 on that same SunSpider index, followed closely by the first stable version of Opera 10.5 with 68.64.

As Microsoft embraces HTML 5, it's also managing to eke out some marginal speed gains in the rendering department, although it must be noted that the IE9 chassis is running in an almost feature-less window with very minimal overhead. As of now, the IE9 preview offers 23% better rendering performance (CSS, DHTML, support for the Canvas element in HTML 5) than IE8.

Looking for the good

What Microsoft did yesterday was give outside developers, for the first time, direct access to just the engine of its next-generation Web browser, long before the functionality and usability features are attached to it. The reason, the Internet Explorer 9 product team says, is to elicit real-world feedback so that the product can be fine-tuned.

That describes exactly what we intend to do. Over the last few weeks, Betanews has been compiling a suite of next-generation browser tests, having taken into account the feedback we've received from both our readers and browser manufacturers, Microsoft included. As rapidly as browsers have evolved in just the past year, it's become clear to us that when we compare brands, at one level, we truly are comparing apples to apple trees, or lawnmowers to bulldozers. When we concentrate on the prowess or power angle, with all the adrenaline-rushing metaphors and superlatives, we sometimes forget that sometimes, what the world really wants is an efficient lawnmower.

Last year, IE General Manager Dean Hachamovitch asked me to take a closer, fairer look at Internet Explorer. Specifically, he said that there were architectural efficiencies to be found in the product line, if only we took the time to look for them.

How I opted to respond to that challenge was to focus on one under-appreciated aspect of the Web browser that will become more important as its components are transported to six-core desktop systems on one end, and Snapdragon handsets and netbooks on the other: scalability. Specifically, I started exploring whether there was a way to effectively measure how well a browser handles increasing workloads, of ever higher orders of magnitude.

Mozilla helped to begin making scalability an issue with its introduction of the TraceMonkey JavaScript engine in Firefox. Tracers make problems that appear complex in coding simpler for their processing engines to execute, by pre-processing instructions ahead of time, converting and optimizing long sequences into easily digestible, assembly language-like instructions. Theoretically, the simpler and longer the sequences, the easier the digestive process should become.

So in this new era, it becomes necessary to test the efficiency of a browser's capability to digest those long sequences, to make harder problems simpler for themselves. This is the scalability element which will represent 30% of the score in our revised Relative Performance Index.

Yesterday, Dean Hachamovitch played down the importance of just-in-time compiling as a factor in improving browser efficiency, promoting instead the option of moving the interpreter to a background process. But doing that alone, as we're discovering now, may not effectively combat what has historically been IE's biggest problem as a Web apps platform: the ability to fall off a cliff (see: "stack overflow") when problems get especially difficult. On new tests involving sorting algorithms, for instance, where recursion easily becomes thousands of layers deep, IE8 can spin off into a coma. So far, we have not seen the comatose effect in the IE9 tech preview, which could be the first sign of very good news for Web app developers.

What I was surprised to discover in crafting this new set of tests was that IE was not alone. Chrome can fall off a cliff too, just several orders of magnitude later (after 10 million iterations, for example, rather than 100,000). As the problem gets more and more complex, the gap between Chrome or Safari or the new Opera's performance and that of IE becomes wider and wider...and wider. And that's a problem because you could arbitrarily choose some point out in space, where Chrome is a thousand times faster than IE rather than, say, ten. Wait long enough and you might get 10,000.

And that, as IE proponents assert, would not be fair. It's actually the reason we chose not to include Google's V8 benchmark battery in our tests: because there does not appear to be a real-world correlation between the hundreds of times greater performance the V8 battery can report over IE, and the differences we see in ordinary use.

So the goal of our scalability tests is to recognize that smaller engines can still be efficient in what they do, even when they offer lesser horsepower. Maybe IE can't run a 10-million-iteration test. But the difference between its performance in 100,000 iterations and in 10,000 can be compared to Chrome's difference between 10 million iterations and 1 million. That factor may still be meaningful.

In the very first report of browsers' scalability compared to IE7 in Vista SP2, the IE9 tech preview in Windows 7 scored a 6.57 compared to IE8's score of 1.13. That means, we believe IE9's new "Chakra" interpreter offers 581.4% greater efficiency than IE8 at speeding up when workloads increase. Betanews is applying these new tests to the latest stable browsers from the other Top Five browser makers; and yes, Ross Perot fans, we'll have the charts ready when the numbers come in.

By Tim Conneally, Betanews

Though you might come to Betanews expecting an article with either performance testing and graphs or inflammatory diatribes, we're not above a good unboxing; especially when it's a brand new piece of hardware that we intend to thoroughly test (or just very seriously play with.)

Today, we're fortunate enough to have received a new TiVo Premiere, the first TiVo DVR with an HD interface designed especially to unite content from multiple sources under a single experience. They call it "The One Box."

Have a look!

Click the TiVo logo above for the Grand Premiere Unboxing Slideshow!

By Tim Conneally, Betanews

Yesterday, an updated version of Google's Nexus One Android smartphone was released, compatible with AT&T and Rogers Canada's 3G networks. Today, Sprint is letting everyone know that it is getting the device too.

This means that all four major wireless carriers have secured a spot for the Nexus One this year. Google sells versions of the device optimized for T-Mobile and AT&T's wireless networks, and a version for Verizon's network is still expected some time in the Spring, but the operator has not put out any further notices about its availability.

Likewise, Sprint today isn't disclosing exactly when Google will start selling a Sprint-compatible Nexus One, nor is it disclosing any pricing plans associated with the device. Today's announcement is simply a confirmation that one is on the way "soon."

Google has not updated its online store to reflect Sprint's announcement.

By Tim Conneally, Betanews

Sprint is making the bold first move into 4G smartphone market next week, a Wall Street Journal report said today, when the company is expected to show off the WiMAX-enabled HTC Supersonic.

The Supersonic has been a pretty big blip on the Android community's radar for several months, after a whole list of HTC device names was uncovered in a leaked Sense UI ROM last December. Since that time, a few more details have been discovered, and a few blurry spy camera shots and renders have surfaced; but as far as official specs go, there are none. It looks to have the same massive 4.3" screen that the HD2 has, run on the Android platform, and possibly contain a Snapdragon processor.

Sprint is the only major mobile network operator with a higher-speed "4G" network immediately available to consumers, but it is currently only accessible through USB dongles and portable hotspots like the Sierra Wireless Overdrive, and these are still only available in about 10 markets nationwide.

There are nearly 30 WiMAX networks active in the U.S. now under the Clear brand (a joint venture of Sprint and Clearwire,) and this year Clearwire expects to complete 80 more cities including major markets Chicago, Philadelphia, New York, Boston, Seattle and Washington D.C.

Since Betanews is headquartered in Baltimore, we've been using Sprint's WiMAX network since it first launched in 2008. I ran a quick test this morning to see how well the WiMAX connection holds up against my smartphones' 3G connections, and the performance was actually only marginally better.

Using the FCC's Ookla network tester three times for each network, Sprint 4G averaged 5.35Mbps/.30Mbps with 130ms latency, Verizon 3G averaged 1.61Mbps/.65Mbps with 122ms latency, and T-Mobile 3G averaged .5Mbps/.45Mbps with 215ms latency. Unfortunately, I didn't have a device handy to test AT&T's speeds in the area this morning.

We will be meeting with both Sprint and HTC at CTIA next week and will be able to give you a crystal clear look at the device if it does, in fact, show up.

By Scott M. Fulton, III, Betanews

Usually the purpose of a virtual private network is to establish a secure, tunneled route between two points in an IP network. Is the idea that such a network could be secured using two encryption layers rather than one, and without the need for a user to log in first, worthy of a patent? These were questions central to the latest Tyler, Texas patent infringement case for Microsoft to lose: VPN technology provider VirnetX was awarded $105.75 million yesterday, in a case closely followed by the Seattle P.I.'s Nick Eaton.

It's clear from a reading of VirnetX's key patent on VPN technology, issued in 2002, that it is an attempt to go one step further with the VPN concept. The firm calls its system Tunneled Agile Routing Protocol (TARP). Here, the communications between VPN hosts are encrypted at one level, but then the routing information is hidden behind a second level. The intent is to hide not only what's being talked about or shared over a VPN, but who is sharing it, and what route it's taking to get there.

"Each TARP packet's true destination is concealed behind a layer of encryption generated using a link key," reads a portion of the summary from US Patent #6,502,135. "The link key is the encryption key used for encrypted communication between the hops intervening between an originating TARP terminal and a destination TARP terminal. Each TARP router can remove the outer layer of encryption to reveal the destination router for each TARP packet. To identify the link key needed to decrypt the outer layer of encryption of a TARP packet, a receiving TARP or routing terminal may identify the transmitting terminal by the sender/receiver IP numbers in the cleartext IP header. Once the outer layer of encryption is removed, the TARP router determines the final destination."

Microsoft implemented its own interpretation of VPN technology for Office Communicator, the endpoint for the company's bold Unified Communications project -- its effort to render the phone networks, and PBXes that support them, obsolete. To make the Internet work more like a phone, people using a telephone console need to be able to pick up the receiver and dial. They shouldn't have to go to some dialog box and log in. Avoiding that option is what UC tries to do, and is one of the acts for which VirnetX cried foul.

In hearings last July (which Eaton also covered closely), Microsoft defended itself by asserting that the whole point of a VPN is to establish both secure and anonymous communications between points, so the idea that VirnetX was somehow inventing the addition of anonymity was absurd. If you doubt that a VPN is supposed to be anonymous, counsel argued, just look it up in a glossary. Which the judge did, and that got into a wholly separate argument over the quality of glossaries, resulting in the judge in the case issuing his own glossary for the jury to interpret as fact.

An excerpt from Judge Leonard Davis' opinion last July shows the extent of the argument over how deeply a glossary may define a concept, especially if that concept may be proof of "prior art" that could invalidate a patent (PDF available here, from SeattlePI.com): "Microsoft cites the portion of the 'FreeS/WAN' glossary definition for 'virtual private networks' that states, 'IPSEC [Internet Protocol Security] is not the only technique available for building VPNs, but it is the only method defined by RFCs [Request for Comments, Internet documents??"some of which are informative while others are standards] and supported by many vendors. VPNs [virtual private networks] are by no means the only thing you can do with IPSEC, but they may be the most important application for many users.'...Microsoft points out that IPSEC is the only method defined by RFCs and supported by many vendors. Microsoft argues that this narrow language shows that the 'FreeS/WAN' glossary does not identify Secure Sockets Layer ('SSL') or Transport Layer Security ('TLS') as methods for building 'virtual private networks.' Microsoft then argues that VirnetX's proposed construction is overly broad because it allows for a network using SSL and TLS. However, Microsoft's cited excerpt is an ancillary portion of the 'virtual private network' definition and is set apart in a different paragraph from the primary portion of the definition...Also, Microsoft selectively asserts that IPSEC is the only method defined by RFCs and supported by many vendors and ignores that its cited excerpt states that, 'IPSEC is not the only technique available for building VPNs.' Thus, Microsoft's cited excerpt does not support that the 'FreeS/WAN' glossary restricts 'virtual private network' to IPSEC."

If Microsoft could have proved that VirnetX's contribution to VPN architecture was so obvious that it would still be covered by a published glossary definition of the term, then it might have persuaded the jury that no patent should have been issued in the first place. But that assertive defense became problematic (at best) last summer when it was revealed that Microsoft itself attempted to patent the same technology, in an application that was denied by the US Patent Office. The basis of the denial was prior art -- specifically, the pre-existence of patents issued to VirnetX.

As the jury no doubt heard from plaintiff's counsel, if Microsoft didn't know about the existence of VirnetX's patents before, it did when it received its rejection notice. No haggling over glossary definitions could save the case at that point. In a statement, Microsoft continued to assert the invalidity of VirnetX's patents, and will begin the long and arduous process of appealing to overturn the verdict.

By Tim Conneally, Betanews

Motorola's Droid has been by far the most popular Android smartphone to hit the U.S. market, selling at a faster pace than the first generation iPhone, and making up, by some accounts, at least 15% of all Android phones in use.

It was the first handset to launch with Android 2.0, a significantly redesigned version of Google's mobile operating system, and it was the first Android device on Verizon, making it a popular choice for the wireless provider's huge subscriber base.

Though it remains a very strong consumer device, the Droid's popularity in the tech community was quickly overshadowed by Google's Nexus One, which was launched only three months after it. The Nexus One became Google's first attempt at directly selling smartphones, and the first handset with Android 2.1. 2.1 was only a minor platform upgrade, with no new features as substantial as those brought by 2.0, but it included full multi-touch support and tweaked the UI with eye-catching animated wallpapers and became an object of desire for Android enthusiasts.

This week, just two months after 2.1 debuted in the Nexus One, Verizon will begin pushing it as an over-the-air update to the Motorola Droid.

The foremost feature will be the addition of multi-touch to the browser and photo gallery. The Droid supports multi-touch, but only recently got pinch-to-zoom in Google Maps. It will also natively support voice-to-text entry, include a new 3D gallery application, a new weather and news app with a related widget, and the famous animated wallpapers.

Android Central reports that Verizon approved the update today, and that it will roll out to 250,000 Droids at a time starting at 12:00pm Thursday, March 18.

By Scott M. Fulton, III, Betanews

Download Microsoft Internet Explorer 9 Platform Preview via Fileforum now.

[Today's delay in Betanews bringing you Internet Explorer 9 news was brought to you as a public service by the Cable Modem: Your Best Friend When It's Crunch Time. Remember, where there's smoke, there's a Comcast cable modem. Smell one today.]

It is perhaps the unlikeliest scenario any technologist could imagine as recently as two years ago: Microsoft evangelizing developers to embrace Web standards by helping it to build its Web browser. Although one of the first browsers to be distributed for free, Internet Explorer has never been open source. Historically, it's always been ready when it's ready; its value proposition has been to the consumer who prefers convenience over adaptability; and when the fact that it was dirt slow was pointed out, the response typically was, the consumer isn't going to care.

Today, the value proposition started to take shape for IE9, the browser that in an earlier era didn't need a value proposition. Microsoft's strategy, which premiered today at MIX 10, was to seize control of tomorrow's key talking point, HTML 5 compliance and compatibility -- to make HTML 5 identifiable with Internet Explorer. In fact, IE General Manager Dean Hachamovitch's greeting sentence to MIX 10 attendees this morning wasn't without the term "HTML 5."

"When we started looking deeply at HTML 5, we saw that it enabled a whole new class of applications," was Hachamovitch's second sentence. "These applications will stress the browser runtime and hardware, as today's sites just don't. We quickly realized that doing HTML 5 right -- our intent -- was more about designing around what HTML 5 applications will need, rather than a particular set of features. Done right, HTML 5 applications will feel more like real apps than Web pages, and our approach to HTML 5 is to make standard Web patterns that developers already know and use, just run faster and better by taking advantage of PC hardware through Windows."

Developers have always known that Microsoft has always had the capability to leverage its mastery of Windows APIs to build smoother applications. But as other Microsoft applications have weaned themselves off of the old Win32 dependencies, such as rendering using the old GDI and GDI+ libraries, Internet Explorer has fallen further and further behind. In fact, you could make the case that Silverlight gives Web developers opportunities to use the modern rendering libraries that IE should be using now natively.

Soliciting general developers' help in improving IE (some will say for the first time), Microsoft today began distributing the bare-bones chassis of the IE9 Web browser -- no frills, no features, not even bookmarks. Just a rendering engine in a window. With Google Chrome, Apple Safari, and now even Opera having made effective cases for the Web being "the platform," Microsoft desperately needs to resume defining the platform before someone else ends up defining it instead.

But one element of Microsoft's IE message remains the same even today: Those areas where the competitors say they have the advantage, may not be all that important to end users. Case in point: just-in-time compilation, the factor that has catapulted Mozilla Firefox and WebKit-based browsers such as Safari and Chrome into today's speed race.

For example, Hachamovitch did cite the IE9 chassis' speed improvement on the widely accepted SunSpider performance test, created by the originators of the open source WebKit engine. On Microsoft's chart, Opera is the fastest performer on the SunSpider, followed by a Chrome 5 dev build, a Chrome 4 stable build, and the latest Safari 4.0.5, released late last week by Apple (apologies for the fuzzy screenshot of Microsoft's chart). So yes, IE9 comes in fifth, rather than dead last. But the difference isn't that much of a difference, he said:

"It's interesting to note that the gap between IE9 and some of the other browsers to its right is about an eye-blink -- it's about 300 ms. And it took 70 seconds to identify that 300 ms difference."

When it comes to HTML 5, Microsoft wants to be perceived now as leading that standard. But with respect to standards at large, the company's position remains unchanged from last year: As long as Web standards are up in the air, compliance is a foggy term anyway. Today, Hachamovitch implied that if the goal of standards bodies were the same as Microsoft's goal of one language, the fog would be lifted:

"Developers want to use the same HTML, the same script, and the same markup across browsers. That's the goal of standards and interoperability. No need for different code paths for different browsers. That's a key goal for HTML 5. We love HTML 5 so much, we want it to actually work. In IE9, it will. We want the same HTML, the same script, the same markup to just work across browsers. So in IE9, we'll do for the rest of the Web platform what we did for CSS 2.1 in IE8. Now, at the same time, we want to be responsible about the standards that are still emerging, the standards that are in committee, and the standards that are partially implemented, often in different ways across browsers. So to make decisions on this front, we started from data."

As an Acid3 test runs in the background (it's not done yet), Dean Hachamovitch demonstrates how 'standards' support varies between even Firefox and Chrome (lower right) for the same markup.

The IE9 team leader went on to describe an internal tool that measured the script activity on 7,000 active Web sites. The telemetry that it received showed, for instance, that the #1 method in use was indexOf(), on 94% of sites measured. Number 17 on the list, used by 65% of sites, was addEventListener, a method that's key to W3C's advanced event registration model, but not yet supported in IE8.

"Because we started from data, what developers like you really use was our starting point for what to support." As a result, the IE9 chassis passed 578 out of 578 in the CSS3.info selectors test, putting it now on a par with Firefox. That's important, Hachamovitch noted, because developers want that one language -- one CSS, one HTML -- to work with for all browsers across the board.

Meanwhile, the IE9 preview posts a 55% score on the Acid3 standards compliance test -- up from 20% for IE8, and 12% for IE7. The latest stable Firefox, by comparison, scores 94% on this test; and Safari, Chrome, and Opera all score 100%. Could the CSS3.info test be fair, and the Acid3 test unfair?

"Some people use Acid3 as shorthand for standards support. Acid3 is kind of interesting, it exercises about a hundred details of a dozen different technologies. Some of them are under construction, others less so," Hachamovitch said. He added a promise that Acid3 scores will continue to improve "as we make more of the markup that developers actually use, work."

Next: Offloading processing to the background and to the GPU... Offloading processing to the background and to the GPU

The architectural development that helped Firefox and others vault from banana-like bars such as those on the left of Microsoft's SunSpider chart, to peanut-like bars like those on the right, was the implementation of just-in-time compilation (JIT) -- a concept first implemented in Java and .NET, re-engineered for JavaScript. Today, Hachamovitch's tactic was to characterize JIT compilers as "JIT-ters," complete with the wimpy sound and unstable connotations, similar to how AMD characterized Intel's introduction of "hyperthreading" five years ago.

"In the beginning, the Web had lots and lots of HTML, and little pieces of script here and there. And an interpreter was good enough for that. Over the years, different browsers have added JIT-ters and different kinds of JIT-ters, many different kinds of JIT-ters. The problem with JIT today is that so much time and energy goes into managing the time and scope that the JIT-ter operates in. Users have to wait if the JIT-ter JITs too much, because the JIT-ter is sitting there compiling the code, and you don't get to run it. And the user has to wait if the JIT-ter JITs too little, because then the JIT-ter did a little bit, and the user is stuck running a slower interpreter."

Something vaguely similar to the phenomenon Hachamovitch described is what we at Betanews have seen in a recent round of high-level browser testing, on IE and other platforms, in preparation for today's release of the IE9 tech preview. JavaScript interepreters, by today's design, are single-threaded. Their ability to run JavaScript very fast depends, to a great extent, on the relative complexity or simplicity of the instructions. JIT compilers produce much simpler machine code, but only in situations where the JavaScript instructions are relatively simple to parse, and not entangled in competing loops with unsightly timeouts. Long stretches of uniform code -- 100,000, one million, even ten million iterations -- are like butter candy to browsers like Chrome, smooth, silky, and easy to digest. But break up those instructions with interruptions (for instance, updates of an on-screen timer at one-second intervals), and what once seemed like butter now processes like rock-filled concrete. And sequences that Chrome could execute in under 30 seconds, all of a sudden, could take (by my estimate) days to execute if left unattended. It's in situations like this where the JIT-ter is jittering, to borrow Dean's phrasing. But about the only place you're going to find someone trying to do 10 million iterations of an algorithm in succession, is at Betanews, where the guy doing the testing is on his sixth cup of coffee and is jittery anyway.

Still, in anticipation of the types of advances Dean described today, we've been working to create a new class of tests that would enable IE9 to shine if it truly does what Dean says it does. Today, he described how IE9 moves the JavaScript interpreter to a background process:

"Compiling in the background puts hardware to use here without having to re-code the site. And the key here is to bring the best technology to the most important language you use, JavaScript."

HTML 5 in large print, SVG in small print

Scalable Vector Graphics (SVG), a W3C standard since 1999, has never been actively supported by Internet Explorer even to this day. During today's demonstration of what he called, on the surface, "HTML 5 applications," Microsoft's Dean Hachamovitch was joined onstage by Windows Division President Steven Sinofsky to jointly demonstrate the IE9 technical preview's new GPU-assisted graphics rendering support, with Sinofsky on the new browser and Hachamovitch playing catch-up with Chrome.

Tucked away in the background of that clever little duel was the fact that IE9 was, for the first time, directly and openly supporting SVG.

It's difficult to see from the screenshot of Microsoft's presentation above, but Sinofsky's IE9 browser at the upper left is rendering 100 simultaneous 3D extrapolations of 2D logos from various browsers, at 64 frames per second. Hachamovitch's Google Chrome, meanwhile, is rendering about 36 simultaneous logos at about 8 fps.

HTML 5 may have had little or nothing to do with this result. The real takeaway from this demo is the following: For years, Web developers have relied on Adobe Flash for vector graphics that are scalable, mainly since it's the only platform that can be plugged into all the major browsers and that can run uniformly within all of them. The reason for that is IE's reluctance to embrace SVG. Well, now that embracing SVG is necessary in order for Microsoft to demonstrate its graphics processing prowess, this could change the ballgame for Web developers, who may soon have at their disposal, at long last, a single open standard for animating Web sites.

Who better to celebrate that news with than the lovable Clippy character we all adored from Office XP? In a demonstration not only of processing prowess but of standards compliance, the two executives enlisted Clippy as the hero in a 3D game of Asteroids, where the targets were multi-colored circles of translucent plastic. Rendered properly, Clippy could hold his own; but stuck in Google Chrome, which doesn't appear to apply relative opacity properly, it looks like Clippy may be in trouble. And it looks like he's writing a letter of distress.

Microsoft has posted links to the tests Sinofsky and Hachamovitch demonstrated on stage, on its special site devoted to the IE9 developers' preview. There you're also likely to find the stunning IE9 video carousel, which HTML 5 has everything to do with. Here, four HD videos of underwater scenes are rendered on translucent screens, that simultaneously travel along an invisible carousel-like path. Of course, you may always have known this kind of rendering power existed in your GPU, but you might never have seen your Web browser go this far to exploit that power.

The IE team has always been careful to say that the advances that matter are the ones that users see and feel. Last year, the company advanced the argument that millisecond differences were imperceptible. Which they are, unless they become fruitful and multiply -- and in a Web applications environment, that will happen. The news from Las Vegas today is this: Microsoft is building a Web applications platform. Finally.

By Joe Wilcox, Betanews

Microsoft should make Bill Buxton its front man -- the main spokesperson. Buxton,  principal researcher for Microsoft Research, has style, great enthusiasm and vision. In an alternate universe, Buxton founded  a company like Apple; only better. Buxton is more visionary than Apple CEO Steve Jobs, has better sense of good design (he is a designer, after all) and understands great design in context of the flow of history. Perhaps if Buxton had more ego, he would run a company as successful as Apple, or Microsoft. But humility is part of his appeal.

Buxton stormed the Microsoft MIX10 stage today, bringing along hearth of wisdom and loads of energy. His energy is simply intoxicating. Last year, Buxton kicked off the MIX keynotes. This year he ended them -- and not with enough stage time. The first keynote, yesterday, started with sedate Scott Guthrie, Microsoft corporate vice president, talking Windows Phone 7 Series. Today's keynote began with Internet Explorer 9 team leader Dean Hachamovitch debuting the new browser, which is available as developer preview.

Hachamovitch, like Guthrie, is a competent  speaker. By comparison, Buxton is dynamic, enthralling -- and he tells great stories about great design. Buxton roams the stage like a caged tiger, but his ferociousness is insight. Scattered grey hair and lean build give him a stereotypical mad scientist look, and he rambles like one, too. I look at Buxton and think of Uncle Monty from Lemony Snicket's A Series of Unfortunate Events. "Some of you might say I'm hysterical," Buxton joked today.

Microsoft should have made MIX10 Buxton's birthday bash. He turned 61 last week. Buxton shows that excellence knows no age -- that Baby Boomers have user interface design and user experience (UX) wisdom that tech-savvy Gen Xers and Net Gen-ers need to understand. Today's cutting-edge technologies are descendants of earlier generations' bleeding edge tech. Decades, sometimes centuries, of refinement define many established technologies' UX. Take the design of AAA batteries, for example (mine not Buxton's).

Bill Buxton is principal researcher for Microsoft Research

Buxton's personal mantra reveals something important about his design philosophy. From his Website:

Ultimately, we are deluding ourselves if we think that the products that we design are the 'things' that we sell, rather than the individual, social and cultural experience that they engender, and the value and impact that they have. Design that ignores this is not worthy of the name.

This philosophy defines the differences between his approach to good design and UX from Apple's. Buxton sees good design as an expression of culture and history rather than the personality of a single designer or company. For Apple, good design is about "the things that we sell."

Buxton is an expert about natural user interfaces and their historical context

Good UI design is often about human usage context, and understanding longstanding design interfaces requires some understanding of historical context. Buxton used the example of buttons on a woman's shirt. He called the buttons wrong, because of their placement. But why are they that way? Buxton explained that when buttons were introduced, women didn't dress themselves. The buttons were correctly positioned for the person doing the dressing. Men dressed themselves, so the buttons are on the right, rather than the left.

"Do it naturally," Buxton commanded the MIX10 audience, referring to user interface design. While Microsoft and some other tech companies treat natural user interfaces as something new, Buxton made clear they are something very old. Natural user interfaces are varied, depending on function.

Buxton demonstrates a natural user interface

Buxton asked: "What the heck does natural mean?" One of his answers: "It's the ability to acquire skills." Good natural user interfaces affect the skills that the users have acquired. He answered with another question: "How well does it [the user interface] reflect me, the end user?"

Ultimately, a good natural user interface must address four human skill sets:

• Motor sensory skills
• Cognitive skills
• Social skills
• Emotional skills

Stated differently, good natural user interfaces answer question: "How do people function?" He emphasized that it's not technology that is changing but people. Good user interface design isn't about technology. It's about people. The message is particularly important for MIX's developer audience.

Demonstration of what Buxton calls a "pen and touch" user interface

Sadly, Buxton could only briefly touch on one of the most important natural user interface challenges facing Microsoft and many other technology developers: Mobile devices. Development of applications for mobile must have a "sense of place," understanding changing contexts, he said. Mobile devices are all about usage context.

Buxton joined Microsoft about four years ago, after running his own Toronto-based design firm (Yes, he ran a company in this universe). Before Microsoft, Buxton was perhaps better known for being chief scientist of Alias/Wavefront -- from 1994 to 2002. He is one of Microsoft's best hires in years.

While Buxton talks about putting user interface design in context of human use, its his ability to put UIs in cultural and historical context that makes him so unique among technologists. Microsoft should set up a mentorship program under Buxton and his research team for all product managers. To Microsoft CEO Steve Ballmer I ask: Do you get it?

By Tim Conneally, Betanews

Google's first attempt at directly selling an Android-powered mobile phone is already being called a flop thanks to reports from mobile analytics company Flurry that estimate sales to have been around 135,000 units in the first 74 days on the market (compared to 1.05 million Motorola Droids, 1 million iPhones.)

However, Google's approach to selling the device is vastly different from the more common methods employed by wireless carriers: it has been primarily sold unlocked for $529 directly from Google, or for $179 with a special T-Mobile plan. Since the device was released, there's been a "Coming soon: Spring 2010" section that shows Verizon Wireless and Vodafone as the next US and European carriers.

Today, Google expanded the device's compatibility in a different direction, and rolled out a version compatible with AT&T in the U.S. and Rogers in Canada. It is now the second Android device on AT&T behind the Motorola Backflip. Rogers currently offers a goodly amount of Android devices, including the HTC Dream and Magic (known as the G1 and MyTouch 3G in the U.S.) LG Eve, Samsung Galaxy Spica, and soon the Sony Ericsson Xperia X10.

So instead of a CDMA version as expected, today we've got a device that supports 850/1900/2100 MHz 3G/UMTS bands, and one that supports the 900/AWS/2100 MHz 3G/UMTS bands used by T-Mobile.

Selling the device unlocked is unlikely to greatly expand its popularity, as it still only appeals to a niche audience.

By Tim Conneally, Betanews

The 300+ page National Broadband Plan that the Federal Communications Commission submitted to Congress today contains some logical goals, some ambitious ones, and some that are sure to cause a good deal of conflict between industries.

One of the most contentious issues also happens to be the most important aspect of the broadband plan: the re-allocation of wireless spectrum for the use of mobile broadband.

Last October, FCC Chairman Julius Genachowski said Americans' consumption of mobile broadband has grown so quickly that we are almost at a bottleneck, and that more wireless spectrum is needed for it immediately. The plan, therefore, says that it will increase the 255 MHz - 3.7 GHz spectrum available to "terrestrial broadband services" (a.k.a., non-satellite) by at least 300 MHz in the next five years, and 500 MHz within the next ten.

But where will all of this wireless spectrum come from?

Of the 300 MHz due in the next five years, 120 MHz will be coming from the broadcast television bands.

It's no secret that the radio and television broadcast industry is still sitting on huge chunks of unused wireless spectrum, and the recent transition to digital broadcast freed up a significant amount of spectrum in the 700 MHz band that was auctioned off to mobile network operators in 2008. By re-purposing the wireless spectrum for mobile Internet services, the FCC says it increased its value to about $1.28 per megahertz/pop. Right now, the FCC estimates that the spectrum the broadcast TV industry has is only worth about $0.11 to $0.15 per megahertz/pop.

In short, the spectrum is ten times more valuable for wireless broadband than it is for broadcast television.

This is due to a couple of factors. Firstly, it's because only 10% of the population is estimated to still rely on free over-the-air broadcasts. Secondly, it's because broadcast TV licensing has interference protection built into it, which leaves significant amounts of spectrum intentionally unused.

So to get this extremely valuable wireless spectrum, the FCC is going to try a multi-pronged approach to restructuring the broadcast TV industry:

1. Update the rules on TV service areas, distance separations, and revise the table of spectrum allotments starting at the 6 MHz channel.

2. Fix the licensing framework so two or more broadcast stations can share the 6 MHz channel. (The Commission estimates that two HD video streams or several SD streams can exist within that channel.)

3. Get government approval so broadcasters who have voluntarily consolidated their channels will be able to share the profits of the remaining spectrum that is auctioned off.

If that is not approved, then other methods of restructuring the broadcast industry must be explored, such as by transitioning to a cellular broadcast architecture (smaller, lower power transmitters that cause less interference than the big broadcast towers) or by auctioning off "overlay" licenses where licensees must negotiate directly with broadcast TV stations to clear out the bands.

Some of these alternative methods would be a little more forceful to broadcasters.

"We were pleased by initial indications from FCC members that any spectrum reallocation would be voluntary, and were therefore prepared to move forward in a constructive fashion on that basis," Dennis Wharton, Executive Vice President of the National Association of Broadcasters, said in a statement yesterday evening. "However, we are concerned by reports today that suggest many aspects of the plan may in fact not be as voluntary as originally promised. Moreover, as the nation's only communications service that is free, local and ubiquitous, we would oppose any attempt to impose onerous new spectrum fees on broadcasters."

Now that the value of the wireless spectrum has been clearly proven and outlined, television broadcasters who have faced declining ad revenue and declining viewership could be standing before a huge pile of money. The 700 MHz spectrum block alone garnered more than $19 billion from wireless network operators in 2008 for a little under 100 MHz of spectrum. License holders in the bands to be vacated are holding very strong cards indeed.