The fact that Amazon has recanted and said “sorry, we’ll never do it again” is kind of beside the point. They have taught people the object lesson that this is possible. The goods they thought they were buying are in fact a license, and that license can be revoked at any time. If the Bittorrent era has taught us anything it is that consumers, when faced with untenable choices, will take the power into their own hands and circumvent these barriers put in place to stop them. Likewise, when given a fair shake, consumers will gladly pay for digital content. The general industry trend is towards openness, but it strikes me that we need a new consumer compact around expectation of digital goods – one that swings the pendulum back in the consumers’ favor. Otherwise the absolute power of the rights holders will continue to corrupt them, absolutely.

Flash forward to 2007. Apple again comes out with a new UI paradigm, together with a visual and gestural language, and they release it as part of a breakthrough consumer device; the first of a series of devices in different form factors which they think will undo the last 20 years and rocket them to dominance of all things digital. But this time, they’ve got an ace up their sleeve: a string of patents. As Wired reported in February, Apple is trying to patent the gestures that make up the iPhone UI – the iPhone’s equivalent of “point and click.” In fact, if Apple’s efforts succeed, I think they will be shooting themselves in the foot. Why? Because if we are, en masse, to move to a new user interface paradigm, beyond point and click, we are going to have to have some consistency. If “pinching” means “shrink” on one device and “close” on another device, this would be a disaster from a user experience standpoint, and could turn potential users off in a big way.

In fact, we don’t have to imagine for too long because some of new breed of “iPhone killer” devices now hitting the streets exhibit this very problem. I was just looking at a touch UI device manufactured by an un-named Korean company (that also coincidentally manufactured my fridge which now is on the blink after only 3 years of ownership – not that I hold a grudge). The problem with this device was that it was replicating a non-touch UI (a UI controlled by a four-way rocker switch) with a touch-screen overlaid on top. It wasn’t quite as bad as the Prada phone that I wrote up last year, but it was close. For example, instead of scrolling by simply flicking your finger up and down, it required you to (repeatedly) press soft buttons at the bottom of the screen labeled with up and down arrows. I haven’t actually had the chance to test out the Nokia “touch” Series-60 device, but when I read this article in News.com with accompanying spy shot, my blood chilled. A scroll bar? Menu buttons on the bottom? Could it be that Nokia is falling into the same trap – trying to replicate a button-based UI with a touch screen overlaid on top? I sincerely hope not — indeed, I think Nokia has enough UI expertise to understand that touch needs a new visual gestural language.

But this brings us back to Apple and their patents. I am not a lawyer, but I don’t believe patenting gestures is a good idea. It seems like there’s plenty of prior art – take a look at Jeff Hann’s talk at TED on gesture-based UI as an example – but the main thing is: in order for us to move into this brave new world of touch, I would argue that gestures need to be royalty free, and companies need to know that if they implement commonly used gestures they will not be sued. If anything, we need standardization of gestures so that users can have some kind of consistency between touch-based platforms. The people behind Interactivegestures.com are moving in this direction, but it’s unclear to me what the intellectual property around these gestures (if any) is. What is the way forward to ensure that gestural and touch-based UI can flourish and isn’t hobbled by intellectual property disputes before it’s even properly off the ground? We briefly “touched” on this issue during a discussion on the future of mobile user experience at Over the Air led by UIQ’s David Mery and Idean’s Mikko-Pekka Hanski, but this topic alone needs more discussion. At risk may be the very future of human computer interaction.

Meanwhile, here in the UK, the BBC are doing their own soul searching around DRM. The BBC Trust, which is a kind of watch-dog organization that sits on top of BBC, has launched an online “consultation” regarding its use of DRM in the on-demand services it plans to launch shortly over the Internet (branded iPlayer). They want to know how long users of this server should be able to save content on their PCs for later playback. They also want to know how important it is to be able to support multiple OSs. The current plan is for the player to support only … you guessed it … Windows DRM format (currently not available on Macs let alone Linux). As a Mac user (despite what the Guardian says, they just work better) I was appalled when I heard this, but even if you’re a PC user, think about this: I can go buy a Tivo or get a Sky+ box and download shows and save them for as long as I want. Furthermore, I can download most television shows without DRM protection over the Internet for free. My view, which I made my thoughts quite clear in my response to their “consultation”: do not DRM encode the content at all. Forget about trying to limit the way people can use the content once they’ve downloaded it. It comes down to this: the BBC is publicly funded and if they are launching a major content-over-Internet push (which I applaud) then they need to make that content available to anyone in the UK – not just Windows PC owners and (in my opinion) they need to release it without DRM encoding of any kind.

If you live in the UK, I strongly urge you to participate in this consultation and make your voice heard by the BBC Trust.

It was interesting to then read today that Jobs, who has been so instrumental in making DRM part of our everyday lives, is now coming out in favor of a DRM-free world. Maybe he’s suffering some remorse from having opened the DRM box. DRM is a kind of regressive technology adds a level of complexity on top of systems and usage which adds no value while simultaneously holding back innovation. Unfortunately, it’s not at all clear to me that DRM can be stuffed back into its box, despite Jobs’s admirable change of heart. Will 2007 be the year that DRM died?

Anything can happen.

I still want one, though.