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

Reader don cox alerts us to an appeals court ruling that tosses out a trademark on a circular towel. The backstory is a bit involved and actually involves actor Woody Harrelson and filmmaker Bobby Farrelly of the Farrelly Brothers, but the key point is that this guy, Clemens Franek, started selling round beach towels, and received a trademark from the USPTO for "configuration of a round beach towel." As the court amusingly notes, Franek came up with this idea the same year as Huey Lewis had the hit song Hip to be Square. However, many years later, Franek saw that Target and Walmart will selling round beach towels made by another company, Jay Franco & Sons, and sued the two retailers. Jay Franco, in response, sued to get Franek's trademark tossed out. The lower court ditched the trademark and now the appeals court agreed. You can see the decision here:



The main problem? Trademarks are only supposed to apply to non-functional designs. Things like logo or a slogan don't serve any direct purpose on the product. Unfortunately, a circular beach towel serves a purpose, and much of Franek's advertising focused on the functional benefits of a round towel (something about moving with the sun). Basically, they suggest he could have tried to secure a design patent on this, but not a trademark, because that would limit anyone's ability to improve upon the round towel:

To put things another way, a trademark holder cannot
block innovation by appropriating designs that undergird
further improvements. Patent holders can do this,
but a patent's life is short; trademarks can last forever,
so granting trademark holders this power could permanently
stifle product development. If we found Franek's
trademark nonfunctional, then inventors seeking to
build an improved round beach towel would be out of
luck. They'd have to license Franek's mark or quell their
inventiveness. That result does not jibe with the purposes
of patent or trademark law.

Furthermore, the court points out that the practical reality here is that he was trying to limit the use of such a basic design element as a circle:


Franek wants a trademark on the circle. Granting a
producer the exclusive use of a basic element of design
(shape, material, color, and so forth) impoverishes other
designers' palettes
Permalink | Comments | Email This Story

Reader don cox alerts us to an appeals court ruling that tosses out a trademark on a circular towel. The backstory is a bit involved and actually involves actor Woody Harrelson and filmmaker Bobby Farrelly of the Farrelly Brothers, but the key point is that this guy, Clemens Franek, started selling round beach towels, and received a trademark from the USPTO for "configuration of a round beach towel." As the court amusingly notes, Franek came up with this idea the same year as Huey Lewis had the hit song Hip to be Square. However, many years later, Franek saw that Target and Walmart will selling round beach towels made by another company, Jay Franco & Sons, and sued the two retailers. Jay Franco, in response, sued to get Franek's trademark tossed out. The lower court ditched the trademark and now the appeals court agreed. You can see the decision here:



The main problem? Trademarks are only supposed to apply to non-functional designs. Things like logo or a slogan don't serve any direct purpose on the product. Unfortunately, a circular beach towel serves a purpose, and much of Franek's advertising focused on the functional benefits of a round towel (something about moving with the sun). Basically, they suggest he could have tried to secure a design patent on this, but not a trademark, because that would limit anyone's ability to improve upon the round towel:

To put things another way, a trademark holder cannot
block innovation by appropriating designs that undergird
further improvements. Patent holders can do this,
but a patent's life is short; trademarks can last forever,
so granting trademark holders this power could permanently
stifle product development. If we found Franek's
trademark nonfunctional, then inventors seeking to
build an improved round beach towel would be out of
luck. They'd have to license Franek's mark or quell their
inventiveness. That result does not jibe with the purposes
of patent or trademark law.

Furthermore, the court points out that the practical reality here is that he was trying to limit the use of such a basic design element as a circle:


Franek wants a trademark on the circle. Granting a
producer the exclusive use of a basic element of design
(shape, material, color, and so forth) impoverishes other
designers' palettes
Permalink | Comments | Email This Story

The UK has really been quite aggressive in installing CCTV surveillance cameras all over, trying to spot trouble before it escalates, but apparently they're not very good at it sometimes. Glyn Moody points us to the story of the police spotting a man, who had been previously convicted of assault, walking along with his fiancee. Via the CCTV footage, police determined that the guy, Stephen McAleer, was carrying a knife, and a few weeks later, the police showed up at his house in order to arrest him, tossing him in jail for three months. The only problem? It turns out that the "knife" was really a rose that he had bought for his fiancee. Apparently, it took three months a trial to get this all sorted out. Don't you feel safer now?Permalink | Comments | Email This Story

The UK has really been quite aggressive in installing CCTV surveillance cameras all over, trying to spot trouble before it escalates, but apparently they're not very good at it sometimes. Glyn Moody points us to the story of the police spotting a man, who had been previously convicted of assault, walking along with his fiancee. Via the CCTV footage, police determined that the guy, Stephen McAleer, was carrying a knife, and a few weeks later, the police showed up at his house in order to arrest him, tossing him in jail for three months. The only problem? It turns out that the "knife" was really a rose that he had bought for his fiancee. Apparently, it took three months and then a trial to get this all sorted out. Don't you feel safer now?Permalink | Comments | Email This Story

I'm not a big fan of award shows and can't remember the last time I watched one, so it's no surprise that I missed the Emmy's this past weekend. However, in an age where mocking the hosts of these shows for doing a terrible job is considered common practice, apparently a lot of people were impressed by some of Jimmy Fallon's work hosting the show. Too bad NBC can't let people see why. Staci Kramer, over at PaidContent notes that the opening musical sequence (a play on the TV show Glee with Fallon and various other TV personalities singing a Springsteen song) got a really good response online... but NBC can't post it online due to "restrictions." That is, NBC didn't secure the rights to repost the song online, losing out on any potential benefits from helping make the video go viral.

Of course, it's not clear who's "at fault" here, but either way NBC ends up looking clueless (yet again!). It had to know that there would be value in getting such things online, and while the license holders might not have wanted to license it, NBC should have made the point that if it wasn't put online legally by NBC, surely plenty of others would put it online elsewhere for all to see, without NBC or the rightsholders getting any direct benefit. It's really a tremendous "head-in-the-sand" approach to dealing with these issues. Anyone who says they can license music for the show on TV, but not online, is missing the point, and NBC's inability to explain this to them coherently is a negotiating blunder. And, because of that, others get all the benefit of the viral content, and NBC looks clueless online.Permalink | Comments | Email This Story

I'm not a big fan of award shows and can't remember the last time I watched one, so it's no surprise that I missed the Emmy's this past weekend. However, in an age where mocking the hosts of these shows for doing a terrible job is considered common practice, apparently a lot of people were impressed by some of Jimmy Fallon's work hosting the show. Too bad NBC can't let people see why. Staci Kramer, over at PaidContent notes that the opening musical sequence (a play on the TV show Glee with Fallon and various other TV personalities singing a Springsteen song) got a really good response online... but NBC can't post it online due to "restrictions." That is, NBC didn't secure the rights to repost the song online, losing out on any potential benefits from helping make the video go viral.

Of course, it's not clear who's "at fault" here, but either way NBC ends up looking clueless (yet again!). It had to know that there would be value in getting such things online, and while the license holders might not have wanted to license it, NBC should have made the point that if it wasn't put online legally by NBC, surely plenty of others would put it online elsewhere for all to see, without NBC or the rightsholders getting any direct benefit. It's really a tremendous "head-in-the-sand" approach to dealing with these issues. Anyone who says they can license music for the show on TV, but not online, is missing the point, and NBC's inability to explain this to them coherently is a negotiating blunder. And, because of that, others get all the benefit of the viral content, and NBC looks clueless online.Permalink | Comments | Email This Story

It appears that a class action lawsuit has been filed against Facebook for the horrible, horrible act of letting kids like ads. As TechCrunch explains:

On Facebook, you can "like" any status update or post in your stream, but you can also "like" ads. When you do so, it can appear as a status update to all your friends if that ad is linked to a Facebook page, thus turning the "like" button into a social endorsement...

The class action lawyers claim that in the case of teenagers, Facebook is "misappropriating the names and pictures of minors for profit." Facebook might say that it is in its terms of service, that's how the site works. But the lawsuit hinges on a loophole in California law which requires parental consent in order to obtain a minor's consent for using their name or likeness for an advertisement, And Facebook doesn't do that.

This seems like a clear "unintended consequences" situation. Politicians pass a law to "protect the children" from being exploited in advertisements, but it also has the potential to get in the way of really harmless activity, such as a kid clicking a "like" button on his Facebook profile.


Permalink | Comments | Email This Story

It appears that a class action lawsuit has been filed against Facebook for the horrible, horrible act of letting kids like ads. As TechCrunch explains:

On Facebook, you can "like" any status update or post in your stream, but you can also "like" ads. When you do so, it can appear as a status update to all your friends if that ad is linked to a Facebook page, thus turning the "like" button into a social endorsement...

The class action lawyers claim that in the case of teenagers, Facebook is "misappropriating the names and pictures of minors for profit." Facebook might say that it is in its terms of service, that's how the site works. But the lawsuit hinges on a loophole in California law which requires parental consent in order to obtain a minor's consent for using their name or likeness for an advertisement, And Facebook doesn't do that.

This seems like a clear "unintended consequences" situation. Politicians pass a law to "protect the children" from being exploited in advertisements, but it also has the potential to get in the way of really harmless activity, such as a kid clicking a "like" button on his Facebook profile.


Permalink | Comments | Email This Story

A few weeks ago, we noted, with some disappointment, that the politicians who had been pushing for a much needed federal shield law for journalism, Senators Chuck Schumer and Dianne Feinstein, were taking the politically expedient route of adding a specific amendment designed to keep Wikileaks out of the bill's protections. Apparently, a bunch of newspaper folks have apparently stepped forward to support this move. Douglas Lee, at The First Amendment Center has an opinion piece calling those people out for sacrificing their overall principles just to get the shield law approved. The whole thing is a great read, but a few key snippets:

It doesn't seem all that long ago that representatives of the newspaper industry would have recoiled from working with Congress to deny legal protection to anyone who leaked confidential or classified documents. Today, however, they seem happy to be doing so.

Lee the goes on to quote various industry reps distancing themselves from Wikileaks and putting it down as "not journalism." He also quotes them admitting that they feel they have to throw Wikileaks under the bus, or the law won't get passed, and then calls them out on the impact of that decision, hinting at the fact that at least some of this might be due to traditional journalists simply not liking new upstarts that are changing the game -- like Wikileaks.

As comforting as it might be to "real" journalists to incorporate editorial oversight into a shield law and to use it to distinguish further between the "us" who are entitled to the law's protections and the "them" who are not, at least two dangers exist in that approach.

First, does anyone -- including the most mainstream of traditional journalists -- really think it a good idea that Congress and judges define, analyze and evaluate what is appropriate "editorial oversight"? For decades, news organizations have struggled to resist those efforts in libel cases and, so far, those struggles have succeeded. If those same organizations now invite legislators and judges into their newsrooms to see how worthy their reporters are of protection under a shield law, they shouldn't be surprised if the legislators and judges decide to stay.

Second, is the free flow of information really served if the act's protections are denied to those who don't have or practice editorial oversight? As Schumer acknowledged in his statement, the act already contains language that would limit or deny protection to those who provide or publish classified military secrets. Specifically exempting WikiLeaks and other organizations that might otherwise qualify for protection under the act in at least some cases seems designed not to enhance the free flow of information but to channel that information to mainstream sources.

It is the nature of politics today to compromise principles to get things through, but this move certainly seems unfortunate -- and one that I imagine many news organizations will regret down the road.Permalink | Comments | Email This Story

A few weeks ago, we noted, with some disappointment, that the politicians who had been pushing for a much needed federal shield law for journalism, Senators Chuck Schumer and Dianne Feinstein, were taking the politically expedient route of adding a specific amendment designed to keep Wikileaks out of the bill's protections. Apparently, a bunch of newspaper folks have apparently stepped forward to support this move. Douglas Lee, at The First Amendment Center has an opinion piece calling those people out for sacrificing their overall principles just to get the shield law approved. The whole thing is a great read, but a few key snippets:

It doesn't seem all that long ago that representatives of the newspaper industry would have recoiled from working with Congress to deny legal protection to anyone who leaked confidential or classified documents. Today, however, they seem happy to be doing so.

Lee the goes on to quote various industry reps distancing themselves from Wikileaks and putting it down as "not journalism." He also quotes them admitting that they feel they have to throw Wikileaks under the bus, or the law won't get passed, and then calls them out on the impact of that decision, hinting at the fact that at least some of this might be due to traditional journalists simply not liking new upstarts that are changing the game -- like Wikileaks.

As comforting as it might be to "real" journalists to incorporate editorial oversight into a shield law and to use it to distinguish further between the "us" who are entitled to the law's protections and the "them" who are not, at least two dangers exist in that approach.

First, does anyone -- including the most mainstream of traditional journalists -- really think it a good idea that Congress and judges define, analyze and evaluate what is appropriate "editorial oversight"? For decades, news organizations have struggled to resist those efforts in libel cases and, so far, those struggles have succeeded. If those same organizations now invite legislators and judges into their newsrooms to see how worthy their reporters are of protection under a shield law, they shouldn't be surprised if the legislators and judges decide to stay.

Second, is the free flow of information really served if the act's protections are denied to those who don't have or practice editorial oversight? As Schumer acknowledged in his statement, the act already contains language that would limit or deny protection to those who provide or publish classified military secrets. Specifically exempting WikiLeaks and other organizations that might otherwise qualify for protection under the act in at least some cases seems designed not to enhance the free flow of information but to channel that information to mainstream sources.

It is the nature of politics today to compromise principles to get things through, but this move certainly seems unfortunate -- and one that I imagine many news organizations will regret down the road.Permalink | Comments | Email This Story

We recently discussed the idea of much more open, online-based peer review processes. In the ensuing discussion some claimed that such things might work for subject areas like math, where concepts could be reviewed and tested by others, but might not work as well in other areas. However, a recent experiment by the Shakespeare Quarterly to experiment with a more open, online peer review system apparently worked quite nicely:

Mixing traditional and new methods, the journal posted online four essays not yet accepted for publication, and a core group of experts -- what Ms. Rowe called "our crowd sourcing" -- were invited to post their signed comments on the Web site MediaCommons, a scholarly digital network. Others could add their thoughts as well, after registering with their own names. In the end 41 people made more than 350 comments, many of which elicited responses from the authors. The revised essays were then reviewed by the quarterly's editors, who made the final decision to include them in the printed journal, due out Sept. 17.

Even one of the authors who was quite skeptical of the program as "entirely won over" by the end, noting that the comments were "more extensive and more insightful" than he was used to receiving on his works.Permalink | Comments | Email This Story

We recently discussed the idea of much more open, online-based peer review processes. In the ensuing discussion some claimed that such things might work for subject areas like math, where concepts could be reviewed and tested by others, but might not work as well in other areas. However, a recent experiment by the Shakespeare Quarterly to experiment with a more open, online peer review system apparently worked quite nicely:

Mixing traditional and new methods, the journal posted online four essays not yet accepted for publication, and a core group of experts -- what Ms. Rowe called "our crowd sourcing" -- were invited to post their signed comments on the Web site MediaCommons, a scholarly digital network. Others could add their thoughts as well, after registering with their own names. In the end 41 people made more than 350 comments, many of which elicited responses from the authors. The revised essays were then reviewed by the quarterly's editors, who made the final decision to include them in the printed journal, due out Sept. 17.

Even one of the authors who was quite skeptical of the program as "entirely won over" by the end, noting that the comments were "more extensive and more insightful" than he was used to receiving on his works.Permalink | Comments | Email This Story

Microsoft, who has become a strongly pro-software patent company (despite Bill Gates' old claim that patents would have harmed the software industry in the early days), is finding out (yet again) that such a stance can come back to bite you. We've already covered the somewhat ridiculous lawsuit that Microsoft faced from a small Canadian company, i4i, who claimed a patent (5,787,449) on an XML editing feature. Microsoft lost the lawsuit, and the court issued an injunction against Microsoft and claimed that the feature was worth an astounding $98 per copy where the feature was used. Microsoft appealed the case to CAFC who upheld the lower court ruling. Microsoft then appealed to have the entire CAFC rehear the case, and that got rejected. The only move left is to appeal to the Supreme Court that's exactly what Microsoft has now done.

To be honest, I can't see the Supreme Court actually taking this case. Unlike some of the other patent cases that the Supremes have taken recently, there doesn't seem to be any big constitutional questions here. It's just a silly patent that Microsoft is on the hook for infringing. Perhaps rather than fighting this individual battle, Microsoft will finally realize that it's stance on patents is only going to do it more harm in the long run.Permalink | Comments | Email This Story

Microsoft, who has become a strongly pro-software patent company (despite Bill Gates' old claim that patents would have harmed the software industry in the early days), is finding out (yet again) that such a stance can come back to bite you. We've already covered the somewhat ridiculous lawsuit that Microsoft faced from a small Canadian company, i4i, who claimed a patent (5,787,449) on an XML editing feature. Microsoft lost the lawsuit, and the court issued an injunction against Microsoft and claimed that the feature was worth an astounding $98 per copy where the feature was used. Microsoft appealed the case to CAFC who upheld the lower court ruling. Microsoft then appealed to have the entire CAFC rehear the case, and that got rejected. The only move left is to appeal to the Supreme Court that's exactly what Microsoft has now done.

To be honest, I can't see the Supreme Court actually taking this case. Unlike some of the other patent cases that the Supremes have taken recently, there doesn't seem to be any big constitutional questions here. It's just a silly patent that Microsoft is on the hook for infringing. Perhaps rather than fighting this individual battle, Microsoft will finally realize that it's stance on patents is only going to do it more harm in the long run.Permalink | Comments | Email This Story