The incredibly popular UK BBC TV show Top Gear has been involved in a legal fight with publisher HarperCollins over the plans to publish a book revealing the identity of "The Stig," the always secretive test driver who appears in the show unidentified in a racing suit and helmet. The BBC spent its (publicly-funded) money to try to prevent such a revelation, but the UK courts have pointed out the basic free speech rights involved, and allowed racecar driver Ben Collins to admit that he's The Stig and have his autobiography published. Of course, in watching this battle unfold, I was confused as to why the BBC was going after HarperCollins, rather than targeting Ben Collins directly (and, by the way, I'm assuming the "Collins" in both names is a coincidence). Either way, as HarperCollins notes, this does appear to be a victory for free speech. In the meantime, if the BBC is really so upset that "the mystery" is gone, why not just get a new once-again secret Stig? In fact, the BBC has actually done exactly that in the past, dumping Perry McCarthy as the original Stig after his identity was revealed.Permalink | Comments | Email This Story

It still amazes me when lawsuits actually get filed against sites for things that people write in the comments. Section 230 case law is really well established on this, and you would think lawyers would know better. But, such lawsuits still get filed, and they get dismissed just as quickly. In this particular case, a TV news anchor who was arrested during a drug bust (though, later, not indicted) got upset about her (former) employer writing an article about her arrest, where some people wrote things she didn't like in the comments. So, she sued her former employer for "allowing unfiltered online comments which contained false information." Of course, allowing unfiltered comments is not, by itself, illegal, and the court made that clear:

Miles does not allege that the defendants wrote or revised the false comments. In fact, she alleges that the comments were not filtered by the defendants. Furthermore, she complains that the defendants merely allowed the comments, and there is no indication or allegation that the defendants encouraged defamatory comments on their website. As a result, the Court finds that the defendants are immune from liability for the allegedly defamatory third-party comments published on its website pursuant to the Communications Decency Act.
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Reader Mike sent over a story from Investors.com claiming that eBay was now banning Google Checkout from eBay. That struck me as odd, because we had written about eBay banning Google Checkout more than four years ago, and weren't aware that anything had changed. And, in fact, that's the case. Ebay is pointing out that the new announcement has nothing to do with Google, which has always been banned. Instead, what it means is that other third party payment offerings, which had previously been allowed, will no longer be offered. That seems unfortunate, as eBay used to be quite open about letting others play nicely in its sandbox, but recently has become more and more controlling.Permalink | Comments | Email This Story

With US Copyright Group (really DC law firm Dunlap, Grubb and Weaver) filing tens of thousands of lawsuits against individuals accused of file sharing certain movies, there's been something of a scramble for some of those accused to find legal help. While the EFF put together a list of lawyers interested in helping those accused, one of them, Graham Syfert, has realized that many of those accused really can't afford a lawyer for their defense, and so he's put together some worksheets to help those who wish to defend themselves, pro se, against USCG. Apparently, he was trying to charge $99 for the worksheets, but after TorrentFreak raised questions about the price, he's dropped it to $9.99. As Syfert told TorrentFreak:

"My dream would be to have 10,000-20,000 people file all three documents to the lawyers and severely cripple the entire process and show them that you shouldn't be allowed to join so many defendants."

That seems a bit unlikely but for those accused of sharing a movie, and without the means for full legal representation, at least there's some alternative.Permalink | Comments | Email This Story

A couple months back, we discussed the growing trend of some content creators to require some sort of promotion in exchange for "free" content -- such as "tweet about our album and you can download a song." Apparently, such practices are becoming more common place, with a whole company being built around the concept. However, just like I wrote when we first discussed this, these sorts of requirements seem like fake word of mouth marketing, unlikely to drive any sort of sustained interest. That's because you're requiring people to promote you just to get your content, rather than giving them the content and having it be awesome enough that they actually want to tell their friends about it. It basically gets the equation backwards, and in the process, seems to suggest that the content in question really isn't that good. After all, if you have to force people to promote you before you'll give them content for free, it sounds like you don't think they'd want to promote you after they got it. I can see why people would jump on this kind of bandwagon, but I think that those who do should consider the possible negative signals it gives off.Permalink | Comments | Email This Story

We recently highlighted a part of one of Paul Graham's recent essays that told the story of how Yahoo missed the paid search opportunity, by fearing that it would cannibalize all the revenue coming in from its "portal" business. As we noted, it was a great example of why big companies so rarely notice disruptive innovation, even when it's handed to them. Ali Partovi picked up on the same part of Graham's essay, and wrote a similar story about why Microsoft also failed to see the opportunity in paid search, despite the fact that Partovi and others were pushing for it, both from the outside, and then inside (after Microsoft bought his company, LinkExchange):

From 1997 to 2000, we visited Yahoo more than a dozen times to pitch the Keywords idea: pay-for-placement, keyword-targeted text ads on the side of search results. Despite repeated rejection, we pitched every member of Yahoo's executive team multiple times, each time finding new ways to present the concept and new data to support how profitable and huge the opportunity might be, all in vain....

In late 1998, Microsoft bought LinkExchange for $265 million, telling us they liked the "Keywords" vision. As Microsoft employees, we continued pitching the Keywords deal not only to Yahoo, but also to the up-and-coming Google. I wasn't surprised to find that these companies were wary of partnering with Microsoft. My greater surprise was the seemingly insurmountable resistance we faced within Microsoft itself.

After almost two years of fighting bureaucratic obstacles, we finally got the green light to launch "Keywords" as an MSN Search feature in 2000. It started growing rapidly, and the MSN Ad Sales division feared (correctly) that it would cannibalize banner ad revenue. They therefore decided (incorrectly) to shut down Keywords after a few months. If Yahoo's demise stemmed in part from being ambivalent about technology, perhaps Microsoft's error stemmed in part from being ambivalent about ad sales: we couldn't get the senior execs interested enough to intervene.

Both cases highlight the same basic point: the claim that big companies will automatically recognize a disruptive innovation and "copy it" is wishful thinking in many cases. Time and time and time again we see stories more like the ones above, where truly disruptive innovation isn't just ignored, it's actively blocked at big legacy companies who fear it cannibalizing an existing business, rather than recognizing the opportunity.

In the end, both Microsoft and Yahoo failed to jump into keyword search in any serious way until long after Google established it as a giant business. At that point, both tried to play catch-up, with Yahoo buying Overture and Microsoft rebuilding its product -- and as we've also seen over and over again, by waiting that long, it was too late. The two companies still haven't come anywhere close to catching up in market share, even if the technology is considered to be about equal at this point.

So the fear of some big company coming out and just "copying" you is generally overblown. If your idea is really disruptive, they probably won't recognize it, and by the time they do, you'll have a big head start, and their attempts to copy what you did will prove a lot more difficult than they expected.Permalink | Comments | Email This Story

We've noted a variety of creative defenses being tested in response to lawsuits from Righthaven. One attempt was to claim that Righthaven had no standing, because it did not hold the copyright when the actual infringement occurred. That's because the way Righthaven works is it searches for copies of parts of articles from the Las Vegas Review-Journal (or the new newspapers who just signed up) and only then buys the copyright in question for the purpose of suing.

While it may have been a novel theory to say that you can't sue in such situations, there was little legal basis for that claim, and a judge has rejected it as a reason to dismiss. The judge did say that the issue could be explored further at trial, but the defendant in this case clearly read the writing on the wall and quickly settled the case, realizing that it's cheaper to settle than to fight. That, of course, is exactly what Righthaven's whole business model is predicated on.Permalink | Comments | Email This Story

You may remember a story from last year about a convicted murderer in Germany trying to use a law that was designed to protect an individual's name and likeness from unwanted publicity, to demand Wikipedia remove all information about him, such as his murder conviction. Apparently, some US politicians think something similar is a good idea. Thomas O'Toole points us to a report of an Ohio state senator who has proposed a bill that would allow repeat offenders the ability to "delete their record" from public view, which (stunningly) might also require newspapers to remove all old articles about their arrests and convictions:

Under threat of a $250,000 fine, the bill would require individuals, newspapers and other news media to delete stories from the Internet and their archives about the arrests and convictions of those who win expungement orders.

If a party knowingly released information about a sealed conviction, they would face a $500,000 fine. The damages would double to $1 million if the banned information was available on the Internet.

As the article notes, this almost certainly violates the First Amendment and the concept of prior restraint. The state senator in question, Shirley Smith, claims that people are misinterpreting the bill, and it was not intended to apply to news stories (even though, as written, it certainly appears to do exactly that). Smith says that language requiring "business organizations" to not publish such information is actually targeted at former employers of individuals, saying they cannot disclose a conviction to potential new employers. The idea behind the bill is to make it easier for ex-convicts to get jobs. Of course, it's still difficult to see how disclosing factual information like that should ever be considered illegal.Permalink | Comments | Email This Story

Get ready to hear all sorts of stories from record labels about how India is "anti-music" and a problem. That's because the Copyright Board in India just drastically changed the royalty structure for playing music on FM radios. Rather than a set hourly rate of approximately $25.60 - $35.50/hour (1200 to 1600 rupees), it's now saying that stations should just pay 2% of their net advertising. That turns out to be a massive change -- perhaps a drop of about 90% to the record labels, since the current hourly rates represent about 18% of net advertising revenue. Of course, as the article points out, the 18% rate was much higher than most of the rest of the world and crippling to radio stations. But, in the world we live in, the record labels will never accept the idea that they don't always deserve greater and greater rights to money.Permalink | Comments | Email This Story

I already wrote about Larry Downes blog post suggesting that Paul Allen's patent lawsuits might actually be an attempt to expose problems with the patent system, but I wanted to discuss a different point Downes raised earlier in the post, in discussing the problems of the patent system. Obviously, we've discussed many ways in which the patent system today fails to do what it's supposed to do, and a big part of the problem is the fact that the USPTO seems to approve a ton of crappy patents. This isn't because the examiners aren't trying hard, but just because the very nature of the system, and its inherent lack of scalability, mean the incentives are always going to lead to approvals of bad patents.

But what does this mean in practice? Downes highlights the problem this causes in a very simple way: it's the USPTO outsourcing the patent review process to unskilled juries:

The result has been the creation of a shadow patent examination process through litigation. The grant of a patent is no longer the final step, in other words. The de facto examination really takes place when the holder tries to enforce the patent against an alleged infringer, and the defendant claims invalidity of the patent as a defense. When such cases go to trial, which they rarely do, a jury of laymen are then tasked with doing the work avoided by the patent examiner.

In effect, the patent office has outsourced its job to the judiciary and in particular to a jury of non-experts. If nothing else, that is a feature of the modern system that absolutely no one is happy with, or in any event that no one can justify.

This is a pretty big problem when you think about it. Already, there are concerns that the supposed patent examiner "experts" often don't have enough expertise to judge the non-obviousness of certain inventions. To then shift the burden to inherently unskilled non-experts to make that decision, even with advocates for both sides fighting it out in front of them, seems to go against the very idea that patents are supposed to only be allowed if they are non-obvious to those of ordinary skill in the art. Asking those not skilled in the art to make that judgment seems like a mistake.Permalink | Comments | Email This Story

Last week, a story caught my eye, about a website being ordered to pay $11 million for failing to respond to a lawsuit claiming libel. The story caught my attention for a few reasons: first, I'm always interested in libel lawsuits involving blogs and second... the name of the site that was sued was TheDirt.com, which... er... seemed close enough to Techdirt.com that I had to pause for a second and make sure it wasn't us. Anyway, after all that, it didn't seem like the ruling was interesting enough for a post... until some other details came out.

The lawsuit itself came from a Cincinnati Bengals cheerleader/high school English teacher named Sarah Jones, who was upset that the site in question apparently posted a picture of her and reported that she had an affair with a player and had contracted two venereal diseases. Assuming there's no truth to the rumors, it sounded like a straightforward libel case -- though from all the reporting, it's not clear if the site owners themselves wrote the content, or if it was written by a user -- in which case the site might have Section 230 protections (potentially depending on how involved they were in encouraging such content).

So why is the case suddenly interesting? Well, perhaps because it now appears that Ms. Jones' lawyers sued the wrong company. Oops. The lawsuit was filed against Los Angeles-based Dirty World Entertainment Recordings, which runs the website TheDirt.com. Problem is that the site that contained the content in question was TheDirty.com, and that's run by a Scottsdale-based company called Dirty World LLC who had no indication that there was a lawsuit going on at all. Oops indeed. At least no one sued us.

Amusingly, the folks at TheDirt.com are amusingly asking if they should sue for libel right back, considering all the press coverage claiming (falsely) that they had libeled Ms. Jones. Oh, and as for TheDirty.com, it's also asking the AP for an apology for falsely reporting that it had lost the lawsuit when it hadn't even been served. Quite a dirty mess. Separately, I have to imagine that Jones' lawyer, Eric Deters, now regrets his statement to the AP:

"If they would have just taken it down, this all would have been over," Deters said. "They just kind of mocked the whole court system."

Might have helped if you sued the right company.Permalink | Comments | Email This Story

With the latest version of the totally unnecessary and ridiculously dangerous fashion copyright bill likely to become law, despite a near total lack of justification for it, combined with significant evidence of the harm it will do, it might make you ask how the hell does a law like this get passed, and why does someone like Senator Chuck Schumer come up with something quite this badly thought out? Thankfully, law professors Kal Raustiala and Chris Sprigman -- who have been pointing out the problems with Schumer's weird infatuation over fashion copyright for years -- have a basic explanation for how such bad laws get passed. Basically, it's a form of regulatory capture. A very small group of players are likely to benefit at the expense of the overall market and consumers -- but that small group are a lot more focused on the issue than everyone hurt by it:

When a large group favors a policy change, it is expensive to organize that group to seek it. And often each member of a very large group will experience only small individual benefits from the policy -- so no member has the incentive to invest in change. Apathy reigns. Conversely, a small group can usually organize cheaply. And because the group is small, each individual member is likely to realize a much larger benefit from the sought-after change. As a result, the small group is properly motivated. In short, the committed minority can often beat the disorganized majority.

They then note that this is quite common in copyright law:

That scenario explains how a lot of law is made, and intellectual property law is no exception. The problem is most acute with copyright. Producers of copyrighted works -- film studios, record labels, commercial publishing companies -- are few in number and stand to gain significantly from more powerful protections (and therefore have ample incentive to spend money seeking policy change). The result is that Congress hears, loudly and often, from those who favor stronger protection. Congress does not hear nearly as often from those who take the opposite view. Who is that? Well, just about every consumer who has to pay more for a book or a song because stronger property rights prevent competition from low-cost copyists that would otherwise exist. We all pay a little hidden tax every time copyright law expands.

It's even worse than that, actually. In many cases, there are plenty of us willing to speak up about the harm caused by greater protectionism, and the vast amounts of actual evidence and research showing how these policies are inherently going to do more harm than good -- but very few people in Congress listen. Why? Because the industry has done a rather impressive targeted PR job of branding anyone who actually presents evidence and facts about the harm done by copyright law as simply supporting "piracy," which then gets lumped in with all sorts of other awful things. It's really a shame.

Raustiala and Sprigman also point out that this is actually a repeat action. A small group of fashion designers colluded to stop competition during the 1930s, and that only ended when the Supreme Court broke it up for antitrust reasons -- leading those involved to insist that the industry would surely fail without the ability to collude against competition. Of course, the opposite happened. But the new bill effectively brings back the antitrust activity of a few fashion designers -- but this time with Congressional approval. What a sad state of affairs.Permalink | Comments | Email This Story

We recently wrote about how TV producer Steven Levitan was publicly complaining that content creators deserve a cut of any IPO proceeds that Hulu gets, if it does go public. We pointed out what a ridiculous sense of entitlement was involved in such a sentiment, but rather than back down, Levitan is apparently only just beginning. The Hollywood Reporter interviewed him about his views on this, and he simply kept on repeating the same ridiculous concept that as a content producer he somehow deserves the money that Hulu makes. He also complains that TV companies should either keep shows offline under the false belief that TV shows are less likely to be pirated (no, stop laughing, he's serious) and that if they must go online, they should include all of the commercials seen on TV. Because, apparently, recognizing that you're dealing with people watching shows under very different circumstances and in very different ways apparently has not occurred to Levitan.

The more he argues, the deeper a hole Levitan seems to dig in his reasoning. He complains that if we don't figure out a way to make his shows profitable, the only thing left to watch will be "sneezing pandas." This is a version of the movie industry's "$200 million myth." It's the "well, it costs me $x to make this, so if we can't make that back, no one else could possibly make quality content for less." It's incredibly elitist and wrong. Not only is there good content made for less money out there (beyond the sneezing pandas), but if there's really demand for his shows (and there appears to be), then there are smart business models you can pursue that don't involve pissing off your fans or demanding an equity pay out from a company you didn't actually invest in.

Of course, the Hollywood Reporter doesn't help when it asks silly questions like:

Rupert Murdoch also has been an advocate of content creators getting paid for use of copyrighted content online. Has he reached out?

This assumes, falsely, that folks who are working on things like Hulu or who support alternative business models don't want to get content creators paid. Look, we all want content creators to get paid, we just think they should do it with smart business models, rather than by restricting content, pissing off fans and running to the government for greater protectionism.

In the meantime, since Levitan still seems to think he deserves a cut of Hulu's eventual IPO take, I have to ask if he also thinks he deserves a cut from every TV sold, or from whatever money TV companies raise from the capital markets?Permalink | Comments | Email This Story

A bunch of folks have been sending over the news that filmmaker Simon Klose was attempting to raise $25,000 in order to hire a professional editor to edit down over 200 hours of footage Simon had filmed of The Pirate Bay's founders over the period of the last couple of years. In his intro pitch, he pointed out that some thought it was strange that he was making a movie about an organization that many in the movie industry hated. But, Simon, of course, points out that such a response is silly. The industry and the market have changed, and there are new avenues to raising funds -- such as directly via a platform like Kickstarter. What's really impressive though is that it only took three days to raise the funds, and there are still over three more weeks to go, and the amount raised keeps going up.

In an interview about the fundraising process, Klose points out that it's not at all surprising that people who support things like The Pirate Bay would support his film, because he was offering them something they actually wanted to support:

I think it's natural that you support stuff you believe in. The people who support our movie obviously don't believe in the services that the movie and record industries are offering them. To me it's much more ironic that the corporations are claiming that the system used to be just and beneficial to artists before the internet came around. It never was.

And, of course, Klose fully intends to release the movie via The Pirate Bay (as well as by DVD). When asked about how he feels about people file sharing his movie, he notes:

Filesharing is great marketing, I don't mind people marketing my work.
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We were a bit worried late last year when the USPTO announced plans to speed up the review process for so-called "green tech patents." Speeding up the review process of a system notorious for granting bad, innovation-hindering patents doesn't seem wise for an emerging market. The USPTO said it would cap the trial period to just 3,000 patents to keep it from getting overwhelmed. However, it turns out that the USPTO needn't have worried. They haven't even gotten halfway to the cap yet. To date, only 1,477 requests have been made for the accelerated review program. Apparently this has lots of lawyers scratching their heads, wondering if the program is too expensive or what. Of course, there is another possibility as well: the really innovative folks working on greentech breakthroughs are focused on actually innovating, rather than worrying about the patent office. But, perhaps that's just wishful thinking...Permalink | Comments | Email This Story

Earlier this year, as part of a discussion about Nick Carr's most recent book we pointed to some reports that noted Carr appeared to misrepresent the scientific research to support his point. It appears that others are finding more examples of this as well. There was a little web-hubbub that I ignored earlier this year when Carr declared that links in documents were bad, and he was shifting all his links to the end. This was apparently based on some research, Carr claimed, that showed links in text are really distracting. Personally, I found that premise to be laughable, as I think after my second week online I stopped being distracted by links and quickly learned to use them effectively.

Still, without having a chance to dig into the research, I didn't have much to say on the subject. However, Scott Rosenberg is digging in and finding that, once again, it appears that Carr is conveniently misrepresenting the studies he relies on to support his anti-link thesis. The problem is that the study seems to show that poorly used and explained links distract people, but that hardly condemns all in-text links. Basically, the key study involved two groups looking at a piece of text, one that had a "next" link at the bottom, and the other that had three "links" randomly inserted into the text, with each of those three links doing the same thing as the "next" button (and there was no "back" button). In other words, as Rosenberg notes:

What the researchers did was to muck up a perfectly good story with meaningless links. Of course the readers of this version had a rougher time than the control group, who got to read a much more sensibly organized version. All this study proved was something we already knew: that badly executed hypertext can indeed ruin the process of reading. So, of course, can badly executed narrative structure, or grammar, or punctuation.

In fact, Rosenberg notes, another study that Carr looked at also focused on "next" links, rather than how actual linking tends to work online. I'm sure that Carr really believes in his thesis, but it seems quite problematic that when anyone looks at the evidence he relies on, it doesn't seem to say what he claims it says. In the meantime, I'm guessing that many people's feeling towards links reflects Rosenberg's statement:

Maybe in the early days of the Web, when they were newfangled, people felt compelled to click -- like primitives suddenly encountering TV and jabbing their fingers at the channel selector, wondering what will magically appear next.

I think we all passed through that phase quickly. If your experience matches mine, then today, your eyes pass over a link. Most often you ignore it. Sometimes, you hover your mouse pointer to see where it goes. Every now and then, you click the link open in a new tab to read when you're done. And very rarely, you might actually stop what you're reading and read the linked text. If you do, it's usually a sign that you've lost interest in the original article anyway. Which can happen just as easily in a magazine or newspaper -- where, instead of clicking a link, we just turn the page.
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I recently wrote about Flattr and how it's a different take on micropayments that seems more interesting to me (though I'm still not convinced it'll get big enough to make a difference). In that post, I also noted a competitor, Kachingle. Apparently, another company is about to enter the space, named Twixa, but it has a slight twist on the concept. Rather than asking users of a site to click a button to pay with their own money, the "ThankThis" offering from Twixa gets a sponsor to pay the money. Basically, any time you clicked the "Thank This" button (which looks similar to the Flattr button), rather than some of your money going to the site, a sponsor's money goes to the site. Of course, it also puts up a simple ad, which is how the sponsor finds this worthwhile. In some ways it's almost a direct play on the fact that some sites ask people to click on their ads to get cost-per-click cash from advertisers -- even though that's often frowned upon as a form of "click fraud." In this case, however, it's encouraged with the participation of sponsors. I'm still not convinced that enough people would really click to make a difference, but it is quite interesting to see how this space is evolving.Permalink | Comments | Email This Story

We recently wrote about a somewhat surprising ruling by the appeals court in the DC circuit saying that long-term use of a GPS to track someone without a warrant violated the 4th Amendment. What was surprising about this is that, while state courts had ruled similarly, the federal courts had almost universally ruled that such tracking was legal. While that case will almost certainly be appealed and seems to have a decent likelihood of ending up before the Supreme Court, it's apparently already impacting some rulings elsewhere. Chris Soghoian notes that a federal magistrate judge recently rejected the governments' request for historical cell site data from Sprint, because the government failed to show probable cause (as required under the 4th Amendment):



What's notable is that the judge admits to having approved similar requests in the past, but refuses to do so this time, as a result of that recent ruling, and noting that the reasoning highlighted that technology is changing the way many view things concerning privacy and surveillance:

The decision in Maynard is just one of several rulings in recent years reflecting a growing
recognition, at least in some courts, that technology has progressed to the point where a person
who wishes to partake in the social, cultural, and political affairs of our society has no realistic
choice but to expose to others, if not to the public as a whole, a broad range of conduct and
communications that would previously have been deemed unquestionably private....

As a result of such decisions, I believe that magistrate judges presented with ex parte
requests for authority to deploy various forms of warrantless location-tracking must carefully re-
examine the constitutionality of such investigative techniques, and that it is no longer enough to
dismiss the need for such analysis by relying on cases such as Knotts or, as discussed below,
Smith v. Maryland.... For the reasons discussed below, I now conclude that the Fourth Amendment
prohibits as an unreasonable search and seizure the order the government now seeks in the absence of a showing of "probable cause, supported by Oath or affirmation[.]"

Nice to see some judges recognizing this, though it remains to be seen how many others will agree... and how the Supreme Court reacts to all of this.Permalink | Comments | Email This Story

A few weeks back, we noted that a bunch of tech and broadband companies were back to "negotiating" around net neutrality, leading us to highlight Adam Smith's famous quote that "people of the same trade" seldom meet together except to create "a conspiracy against the public, or in some contrivance to raise prices." Now comes the news that those involved -- including Verizon, AT&T, Skype, Microsoft, NCTA and "others" have "reached an agreement," which might be "stricter" than the Googrizon "framework," but which probably doesn't really apply to wireless networks.

I'm still at a loss as to how this actually matters. The companies can agree to whatever they want, and none of it makes a difference if Congress acts (or the courts say that the FCC is allowed to act). I guess the idea is to think that an "industry agreement" will stave off legislation, which perhaps might work for some time, but still reeks of collusion without consumer input or review.Permalink | Comments | Email This Story

Brandon was the first of a few of you to send over the news of how the band Arcade Fire's latest "music video" is actually an experiment in more interactive HTML 5 experiences. The idea is that you're supposed to put in the address of where you grew up, and the "video" (which actually involves a bunch of different windows, rather than a single "video" window) builds the street you grew up on into the video itself via Google maps satellite view and Google Street View. Honestly, the implementation is just so-so (didn't actually work for where I grew up, so I tried where I live now -- which is on a hill -- which looks funny since the guy in the video is running on totally flat ground). Still, the overall experience is neat in at least getting people to think about the possibilities for both HTML 5, as well as adding much more customization into content. It also might finally get people to realize that videos don't need to just sit in a single box... While I doubt many musicians are going to do the same thing, hopefully it does inspire others to start thinking (literally) out of the video box, and about more interesting opportunities.Permalink | Comments | Email This Story

It's no secret that US Commerce Secretary Gary Locke is quite confused over intellectual property issues. There has yet to be a case where he's actually questioned a highly biased or debunked industry study on the issue, and he seems to enjoy celebrating with the entertainment industry, even as the government has debunked the studies he relies on. But it's really sad that he doesn't even seem to consider the other side at all. His latest move is to side with the RIAA and effectively warn ISPs that they need to become copyright cops for the entertainment industry establishment.

As you go through the text of his speech at Belmont College in Nashville (where I once spoke as well), it's really quite stunning how either uninformed Locke is or how purposely misleading he is. Neither speaks well for him:

Congressman Jim Cooper has made intellectual property protection a top priority of his as a co-sponsor of the pending Performance Rights Act. He is an outstanding senior member of congress who is committed to ensuring that the voices of Nashville are heard in Washington.

Except that the Performance Rights Act is not really about "intellectual property," at all. It's about the RIAA trying to squeeze more cash out of radio stations, despite the fact that in an open market, they know damn well that they get so much value out of radio that they constantly feel the need to pay radio stations under the table for the promotion. In other words, the Performance Rights tax is really an attempt to get radio stations to pay the record labels for the right to promote the music the RIAA wants to promote. It's a huge wealth transfer, and Locke should be ashamed of supporting such a policy that does little to actually help musicians, but plenty to help the middlemen.

Governor Bredesen has been at the forefront of protecting individual property as well in Tennessee. In November 2008, he signed into law a Campus Piracy Bill that requires public and private colleges and universities in the state to ensure that computers connected to their campus network are not being used for illegal file-sharing.

Only problem? An analysis of this law showed that it would actually cost Tennessee taxpayers over $10 million with absolutely no evidence that it would help musicians at all. Gary Locke is apparently all in favor of faith-based legislating on copyright law. That's scary.

Worldwide and certainly in the United States, consumers are spending less on recorded music in all formats. Recorded music revenues are down by almost half over the last decade.

Note that Locke conveniently ignores the fact that if you look beyond recorded music, overall spending on music and music related products has gone way up and (more importantly), much more of that money goes directly to artists, rather than to the middlemen. After talking about the Nashville floods -- which were indeed quite devastating -- Locke seems to compare them to file sharing:

But there are other problems that we have within our power to solve. And one of them is the rampant piracy of music, and of intellectual property, that are the lifeblood of this region's economy.

And I think it's important to lay down a marker about how the Obama administration views this issue. As Vice President Biden has said on more than one occasion, "Piracy is flat, unadulterated theft," and it should be dealt with accordingly.

Is it worth reminding people that Biden once was famous for his plagiarism of a law review article while he was in law school? Or is that just a cheap shot. Biden begged off that "mistake" by saying it wasn't "malevolent," so it should be forgiven. And yet, oddly, he doesn't seem to take that same stance towards people sharing the music they love.

This isn't just an issue of right and wrong. This is a fundamental issue of America's economic competitiveness.

Which is why you would think that Locke would actually be interested in all of the research showing that there's greater economic benefit with weaker copyright laws. Wouldn't you? Odd that he is not.

As the president has said before, America's "single greatest asset is the innovation and ingenuity and creativity of the American people. It is central to our prosperity and it will only become more so in this century."

Indeed. But no one should confuse copyright law with innovation, ingenuity and creativity. The two are not the same and, the research has shown, not even correlated.

Our founding fathers understood this as well as anyone, which is why they put in place a set of rules and laws to reward and protect the ideas and inventions of the artists, engineers and scientists who create them.

With clear limitations and statements of concern that such laws might be abused. Locke ignores that copyright law today looks nothing like it did when the founding fathers put it in the Constitution -- and that the concerns they raised have been totally ignored.

But this copyright and patent framework needs to evolve to meet the evolving challenges of the 21st century.

Hey, one thing we agree on... though I'm guessing that his form of "change" looks nothing like what it should actually be.

Recently, I've had a chance to read letters from award-winning writers and artists whose livelihoods have been destroyed by music piracy. One letter that stuck out for me was a guy who said the songwriting royalties he had depended on to "be a golden parachute to fund his retirement had turned out to be a lead balloon."

Well, there's your problem. Copyright was never supposed to be about welfare or a pension. Copyright has always been about providing the incentive to create in order to more freely share works with the world and -- eventually -- to increase the public domain. That Locke appears to think that copyright is supposed to be a musician's pension and welfare program is especially troubling. It suggests he doesn't even know what copyright law is.

To take just one area that I know is important to this group, in our government-wide strategy, we endorsed and affirmatively encouraged the private sector -- including content owners and Internet service providers -- to work collaboratively to combat intellectual property infringement online.

Especially to combat repeat infringement.

And there it is. Dear ISPs: become copyright cops. Even though the RIAA admits that it's impossible for them to combat such infringement, we feel that you should magically know how to do so, even though you have no way to know what is infringing and what is not.

None of this is surprising, of course, but it's too bad that no one calls Locke out when he makes such statements.Permalink | Comments | Email This Story

It's no secret that US Commerce Secretary Gary Locke is quite confused over intellectual property issues. There has yet to be a case where he's actually questioned a highly biased or debunked industry study on the issue, and he seems to enjoy celebrating with the entertainment industry, even as the government has debunked the studies he relies on. But it's really sad that he doesn't even seem to consider the other side at all. His latest move is to side with the RIAA and effectively warn ISPs that they need to become copyright cops for the entertainment industry establishment.

As you go through the text of his speech at Belmont College in Nashville (where I once spoke as well), it's really quite stunning how either uninformed Locke is or how purposely misleading he is. Neither speaks well for him:

Congressman Jim Cooper has made intellectual property protection a top priority of his as a co-sponsor of the pending Performance Rights Act. He is an outstanding senior member of congress who is committed to ensuring that the voices of Nashville are heard in Washington.

Except that the Performance Rights Act is not really about "intellectual property," at all. It's about the RIAA trying to squeeze more cash out of radio stations, despite the fact that in an open market, they know damn well that they get so much value out of radio that they constantly feel the need to pay radio stations under the table for the promotion. In other words, the Performance Rights tax is really an attempt to get radio stations to pay the record labels for the right to promote the music the RIAA wants to promote. It's a huge wealth transfer, and Locke should be ashamed of supporting such a policy that does little to actually help musicians, but plenty to help the middlemen.

Governor Bredesen has been at the forefront of protecting individual property as well in Tennessee. In November 2008, he signed into law a Campus Piracy Bill that requires public and private colleges and universities in the state to ensure that computers connected to their campus network are not being used for illegal file-sharing.

Only problem? An analysis of this law showed that it would actually cost Tennessee taxpayers over $10 million with absolutely no evidence that it would help musicians at all. Gary Locke is apparently all in favor of faith-based legislating on copyright law. That's scary.

Worldwide and certainly in the United States, consumers are spending less on recorded music in all formats. Recorded music revenues are down by almost half over the last decade.

Note that Locke conveniently ignores the fact that if you look beyond recorded music, overall spending on music and music related products has gone way up and (more importantly), much more of that money goes directly to artists, rather than to the middlemen. After talking about the Nashville floods -- which were indeed quite devastating -- Locke seems to compare them to file sharing:

But there are other problems that we have within our power to solve. And one of them is the rampant piracy of music, and of intellectual property, that are the lifeblood of this region's economy.

And I think it's important to lay down a marker about how the Obama administration views this issue. As Vice President Biden has said on more than one occasion, "Piracy is flat, unadulterated theft," and it should be dealt with accordingly.

Is it worth reminding people that Biden once was famous for his plagiarism of a law review article while he was in law school? Or is that just a cheap shot. Biden begged off that "mistake" by saying it wasn't "malevolent," so it should be forgiven. And yet, oddly, he doesn't seem to take that same stance towards people sharing the music they love.

This isn't just an issue of right and wrong. This is a fundamental issue of America's economic competitiveness.

Which is why you would think that Locke would actually be interested in all of the research showing that there's greater economic benefit with weaker copyright laws. Wouldn't you? Odd that he is not.

As the president has said before, America's "single greatest asset is the innovation and ingenuity and creativity of the American people. It is central to our prosperity and it will only become more so in this century."

Indeed. But no one should confuse copyright law with innovation, ingenuity and creativity. The two are not the same and, the research has shown, not even correlated.

Our founding fathers understood this as well as anyone, which is why they put in place a set of rules and laws to reward and protect the ideas and inventions of the artists, engineers and scientists who create them.

With clear limitations and statements of concern that such laws might be abused. Locke ignores that copyright law today looks nothing like it did when the founding fathers put it in the Constitution -- and that the concerns they raised have been totally ignored.

But this copyright and patent framework needs to evolve to meet the evolving challenges of the 21st century.

Hey, one thing we agree on... though I'm guessing that his form of "change" looks nothing like what it should actually be.

Recently, I've had a chance to read letters from award-winning writers and artists whose livelihoods have been destroyed by music piracy. One letter that stuck out for me was a guy who said the songwriting royalties he had depended on to "be a golden parachute to fund his retirement had turned out to be a lead balloon."

Well, there's your problem. Copyright was never supposed to be about welfare or a pension. Copyright has always been about providing the incentive to create in order to more freely share works with the world and -- eventually -- to increase the public domain. That Locke appears to think that copyright is supposed to be a musician's pension and welfare program is especially troubling. It suggests he doesn't even know what copyright law is.

To take just one area that I know is important to this group, in our government-wide strategy, we endorsed and affirmatively encouraged the private sector -- including content owners and Internet service providers -- to work collaboratively to combat intellectual property infringement online.

Especially to combat repeat infringement.

And there it is. Dear ISPs: become copyright cops. Even though the RIAA admits that it's impossible for them to combat such infringement, we feel that you should magically know how to do so, even though you have no way to know what is infringing and what is not.

None of this is surprising, of course, but it's too bad that no one calls Locke out when he makes such statements.Permalink | Comments | Email This Story

Via Joe Mullin, we learn the rather unfortunate news that, when asked about Paul Allen's decision to sue lots of big tech companies over questionable patents, Wozniak comes out in favor of "patent trolls" and patent holders suing companies who actually innovate. For someone so beloved by the tech community, these statements seem really unfortunate. He starts out by repeating the myth that patents somehow help out the small guy (ignoring that we're talking about Paul Allen, one of the richest guys on the planet):

I think this lawsuit represents the idea that hey, patents, individual inventors, they don't have the funds to go up against big companies. So he's sorta representing some original investors. And I'm not at all against the idea of patent trolls.

The interviewer, from Bloomberg TV, pushes back pretty quickly, pointing out that Paul Allen is not the inventor and there's no indication that the inventors on these patents would actually get any of the money should Allen succeed. Woz's response is again disappointing, saying that Allen "represents inventors." Nearly everything that Woz talks about comes off as really uninformed about the patent world today. For example, the interviewer notes that dealing with patents has become a "cost of doing business" and Woz seems to think that's a good thing:

Every tech company is very aware that patents are really the heart of our innovation and invention system and (a) that you have to have your own patent position and you gotta be aware that there might be others. And, yes, you might be infringing. It's very awkward, because some patents are so general. It's hard to say how they'll be interpreted. There's a lot of ambiguity in the system.

So, wait, patents are the heart of the system, but there's a ton of ambiguity. Can someone ship Woz a copy of Bessen and Meurer's Patent Failure quickly, so he can learn about the stacks upon stacks of research that have shown that "ambiguity in the system" now costs society a hell of a lot more than any innovation created by it?

Of course, back in Wozniak's autobiography, he talked about how much of a success Apple was without relying patents at the very beginning. Too bad he's now forgotten that.Permalink | Comments | Email This Story

Via Joe Mullin, we learn the rather unfortunate news that, when asked about Paul Allen's decision to sue lots of big tech companies over questionable patents, Wozniak comes out in favor of "patent trolls" and patent holders suing companies who actually innovate. For someone so beloved by the tech community, these statements seem really unfortunate. He starts out by repeating the myth that patents somehow help out the small guy (ignoring that we're talking about Paul Allen, one of the richest guys on the planet):

I think this lawsuit represents the idea that hey, patents, individual inventors, they don't have the funds to go up against big companies. So he's sorta representing some original investors. And I'm not at all against the idea of patent trolls.

The interviewer, from Bloomberg TV, pushes back pretty quickly, pointing out that Paul Allen is not the inventor and there's no indication that the inventors on these patents would actually get any of the money should Allen succeed. Woz's response is again disappointing, saying that Allen "represents inventors." Nearly everything that Woz talks about comes off as really uninformed about the patent world today. For example, the interviewer notes that dealing with patents has become a "cost of doing business" and Woz seems to think that's a good thing:

Every tech company is very aware that patents are really the heart of our innovation and invention system and (a) that you have to have your own patent position and you gotta be aware that there might be others. And, yes, you might be infringing. It's very awkward, because some patents are so general. It's hard to say how they'll be interpreted. There's a lot of ambiguity in the system.

So, wait, patents are the heart of the system, but there's a ton of ambiguity. Can someone ship Woz a copy of Bessen and Meurer's Patent Failure quickly, so he can learn about the stacks upon stacks of research that have shown that "ambiguity in the system" now costs society a hell of a lot more than any innovation created by it?

Of course, back in Wozniak's autobiography, he talked about how much of a success Apple was without relying patents at the very beginning. Too bad he's now forgotten that.Permalink | Comments | Email This Story

What is it with random companies springing up claiming to have legal download offerings that don't pass the laugh test. Remember a year ago, we talked about a company called Bluebeat.com that claimed to be the only site where you could legally buy Beatles MP3s, based on a bit of absolutely ridiculous logic, that it was using "psycho-acoustic simulation" to recreate the tracks, thereby giving it a brand new copyright. That company also got a registration for these "new" works by the Copyright Office, hoping that most people wouldn't notice that the Copyright Office registration process is a pure rubber stamp effort, and conveys no actual legitimacy to a bogus copyright.

Well, it looks like we've got another similar situation, as some mysterious company called ZapTunes is claiming to offer unlimited MP3 downloads for $25/month -- with an initial "free" period, though you have to hand over your credit card details. The whole thing sounds highly questionable, however. The store claims to have licensed the work from all the major labels, including being able to offer Beatles MP3s and AC/DC MP3s -- which have not been offered in MP3 format anywhere.

In the comments on that Hypebot article, some point out that the company appears to just be scraping Last.fm data, as it found a track that one guy had created himself, which only lived on his computer (but which had been "scrobbled" and the info was sent to Last.fm). The company also claims to have raised "about $5 million in funding from various Venture Capitalists," but doesn't seem to name any of them.

Despite the claims from the company that they've secured the necessary licenses for this, it appears not everyone agrees. EMI is apparently already starting the legal process. The whole thing really makes me wonder if these sites honestly think that people will buy their claims when there seems to be little evidence to support them. There are plenty of sites out there that offer up such content in a clearly unauthorized manner -- but at least they're honest about what they do. It seems pretty silly and destined to fail massively to falsely claim the legal rights to music you almost certainly did not license.Permalink | Comments | Email This Story

What is it with random companies springing up claiming to have legal download offerings that don't pass the laugh test. Remember a year ago, we talked about a company called Bluebeat.com that claimed to be the only site where you could legally buy Beatles MP3s, based on a bit of absolutely ridiculous logic, that it was using "psycho-acoustic simulation" to recreate the tracks, thereby giving it a brand new copyright. That company also got a registration for these "new" works by the Copyright Office, hoping that most people wouldn't notice that the Copyright Office registration process is a pure rubber stamp effort, and conveys no actual legitimacy to a bogus copyright.

Well, it looks like we've got another similar situation, as some mysterious company called ZapTunes is claiming to offer unlimited MP3 downloads for $25/month -- with an initial "free" period, though you have to hand over your credit card details. The whole thing sounds highly questionable, however. The store claims to have licensed the work from all the major labels, including being able to offer Beatles MP3s and AC/DC MP3s -- which have not been offered in MP3 format anywhere.

In the comments on that Hypebot article, some point out that the company appears to just be scraping Last.fm data, as it found a track that one guy had created himself, which only lived on his computer (but which had been "scrobbled" and the info was sent to Last.fm). The company also claims to have raised "about $5 million in funding from various Venture Capitalists," but doesn't seem to name any of them.

Despite the claims from the company that they've secured the necessary licenses for this, it appears not everyone agrees. EMI is apparently already starting the legal process. The whole thing really makes me wonder if these sites honestly think that people will buy their claims when there seems to be little evidence to support them. There are plenty of sites out there that offer up such content in a clearly unauthorized manner -- but at least they're honest about what they do. It seems pretty silly and destined to fail massively to falsely claim the legal rights to music you almost certainly did not license.Permalink | Comments | Email This Story

A few of you sent over this bizarre story of how famed electric vehicle maker Tesla Motors apparently need to pay a $275,000 fine for lacking a "Certificate of Conformity" from the EPA, needed to comply with the Clean air Act. As is noted in the article, it doesn't seem like Tesla should have to get such documentation in the first place, seeing as it doesn't even have a tailpipe, but such is the nature of regulations being a bit behind the technology times.Permalink | Comments | Email This Story

A few of you sent over this bizarre story of how famed electric vehicle maker Tesla Motors apparently need to pay a $275,000 fine for lacking a "Certificate of Conformity" from the EPA, needed to comply with the Clean air Act. As is noted in the article, it doesn't seem like Tesla should have to get such documentation in the first place, seeing as it doesn't even have a tailpipe, but such is the nature of regulations being a bit behind the technology times.Permalink | Comments | Email This Story

Last week, we briefly mentioned how sad it was that Ticketmaster/Live Nation's boss Irving Azoff seems so confused into thinking that stronger protectionism really is better for content creators. In that post, I mentioned that last year I spoke with a few top Live Nation execs, who appeared to understand the value of treating customers right, and looking for ways to enable CwF+RtB-style business models. They even talked about using companies like Zappos -- a company which has built up incredibly loyal customers though amazing customer service, even if it means taking a big financial hit itself -- as an example to learn from. I have to admit that I was impressed, but realized the company had a huge negative image to overcome -- and that merging with Ticketmaster wasn't going to help. Still, I thought that it would be quite a story if the company really could embrace that kind of thinking and rebuild its reputation.

So far, it doesn't look good. Beyond Azoff's bizarre anti-consumer tweeting, the company's plans seems to be about as tone deaf to consumer concerns as you can imagine. Now, obviously, this is a giant company, and it has Wall Street investment bankers to please, so it has to tell some sort of numbers-based story. But, the story it's telling is basically "we can squeeze more money out of consumers and artists overseas, so we're going to focus on that," which isn't compelling to anyone (artists, fans or investors -- who note that the company hasn't had as much success overseas).

It seems like perhaps there's a tale of two views at Live Nation: one that's actually focused on building out a sustainable business, and the other that appears to have gotten data happy. I'm a big fan of collecting and analyzing as much data as possible, but it's possible to get lost in that data at times, and lose sight of the big picture. So, right now, the data is telling Live Nation that US fans don't want to pay as much, and US artists want a bigger cut. So it wants to focus elsewhere. But, it seems to be forgetting to figure out why that is. Azoff seems to want to blame file sharing, but that's a red herring. Perhaps the company should look at the company's own image and how widely it's hated out there. People pay for Ticketmaster/Live Nation tickets in spite of the company, not because they like the company.

Azoff apparently scolded investors asking him questions about the company's poor performance, blaming them for not "getting the message." This is the same approach the company recently took in trying to explain its ticket fees, saying that the problem was that fans just didn't get what Ticketmaster was doing. Blaming everyone else for just "not getting" you, isn't an approach that's going to win over many people. You need to actually start showing people through actions.

One of the reasons why the company's margins might be so tight in the US is that it has focused on trying to squeeze every last dime out of fans without giving them enough value in return. Zappos isn't the cheapest retailer out there, but people buy from them because they know the experience is worth it. Perhaps Live Nation/Ticketmaster should take a step back from the data and look at ways to actually wow fans and artists with an experience that over-delivers, rather than has them holding their nose every time they have to hand over money. That is, why not focus on actually adding value, rather than looking for every nook and cranny to charge people more.Permalink | Comments | Email This Story

Last week, we briefly mentioned how sad it was that Ticketmaster/Live Nation's boss Irving Azoff seems so confused into thinking that stronger protectionism really is better for content creators. In that post, I mentioned that last year I spoke with a few top Live Nation execs, who appeared to understand the value of treating customers right, and looking for ways to enable CwF+RtB-style business models. They even talked about using companies like Zappos -- a company which has built up incredibly loyal customers though amazing customer service, even if it means taking a big financial hit itself -- as an example to learn from. I have to admit that I was impressed, but realized the company had a huge negative image to overcome -- and that merging with Ticketmaster wasn't going to help. Still, I thought that it would be quite a story if the company really could embrace that kind of thinking and rebuild its reputation.

So far, it doesn't look good. Beyond Azoff's bizarre anti-consumer tweeting, the company's plans seems to be about as tone deaf to consumer concerns as you can imagine. Now, obviously, this is a giant company, and it has Wall Street investment bankers to please, so it has to tell some sort of numbers-based story. But, the story it's telling is basically "we can squeeze more money out of consumers and artists overseas, so we're going to focus on that," which isn't compelling to anyone (artists, fans or investors -- who note that the company hasn't had as much success overseas).

It seems like perhaps there's a tale of two views at Live Nation: one that's actually focused on building out a sustainable business, and the other that appears to have gotten data happy. I'm a big fan of collecting and analyzing as much data as possible, but it's possible to get lost in that data at times, and lose sight of the big picture. So, right now, the data is telling Live Nation that US fans don't want to pay as much, and US artists want a bigger cut. So it wants to focus elsewhere. But, it seems to be forgetting to figure out why that is. Azoff seems to want to blame file sharing, but that's a red herring. Perhaps the company should look at the company's own image and how widely it's hated out there. People pay for Ticketmaster/Live Nation tickets in spite of the company, not because they like the company.

Azoff apparently scolded investors asking him questions about the company's poor performance, blaming them for not "getting the message." This is the same approach the company recently took in trying to explain its ticket fees, saying that the problem was that fans just didn't get what Ticketmaster was doing. Blaming everyone else for just "not getting" you, isn't an approach that's going to win over many people. You need to actually start showing people through actions.

One of the reasons why the company's margins might be so tight in the US is that it has focused on trying to squeeze every last dime out of fans without giving them enough value in return. Zappos isn't the cheapest retailer out there, but people buy from them because they know the experience is worth it. Perhaps Live Nation/Ticketmaster should take a step back from the data and look at ways to actually wow fans and artists with an experience that over-delivers, rather than has them holding their nose every time they have to hand over money. That is, why not focus on actually adding value, rather than looking for every nook and cranny to charge people more.Permalink | Comments | Email This Story