For years, I was involved in a "CD of the month" club -- not from BMG or Columbia House or one of those ancient "buy a bunch of CDs for a penny and we'll keep bugging you for years" offerings, but from a tiny, tiny label in Chicago that released the kind of music I like. It was run by one guy who also would scour the world for similar artists, and then act as their US distributor. The "club" was limited to a small number of customers, who would send over their basic "tastes" and basically this guy would act as their filter, and every few months (it wasn't quite monthly) would send over a big box of CDs of fantastic music that fit my tastes perfectly -- from bands around the world that I'd usually never heard of. It really was a useful service.

I was reminded of this a bit, two years ago, when Topspin's CEO, Ian Rogers, penned an open letter to Guy Hands, the head of (struggling) EMI, suggesting that rather than think of itself as a "record label" focused on promotion and distribution (two things that are easier and cheaper than ever before), it could instead focus on being the smart filter for music listeners today, struggling to find the music they love amidst so much musical abundance in the world. The suggestion was to take some of the key, iconic, bands under the EMI roof, and put them under affinity-based "mini-labels" with other less well known bands, that would appeal to people who liked the more well known band. It seemed like a great idea, which, of course, EMI has not done.

I'm thinking of both of these things now, as I read an open letter written by Bruce Wasila at MusicThinkTank of what letter he would write to all bands on his roster if he ran a record label today -- and it's somewhat similar to what's described above. The label would build up a brand of its own, to bring together a bunch of affinity bands/musicians, and present them together -- thereby acting as an affinity filter. Of course, related to that, he would also shift strategies to give the bands true ownership of both their own works, and a piece of this overarching "venture," -- even allowing them to take their works elsewhere if they're not comfortable with how things proceed.

To be honest, I'm really surprised we haven't seen more of this. To date, there are some small, independent affinity labels, but they haven't really put together much of a comprehensive strategy. On top of that, there are various recommendation engines online, from Last.fm to Pandora and such, but that's not quite the same thing, and don't really take advantage of much more than recommending songs or artists you might like. This concept is about taking that even further, and building a real community of affinity around a group of artists that fans might like. It seems like a powerful idea.Permalink | Comments | Email This Story

Torrentfreak has a somewhat amusing article about how it appears that the Iranian government is running a (well-organized) public warez FTP server with all sorts of infringing software, complete with serial codes, cracks and keygens. As the article notes, Iran's copyright law only protects Iranian copyright holders, and Iran has not signed on to WIPO treaties on copyright that would obligate it to respect others' copyrights.

Of course, for those of you who do participate in such activities, I wouldn't be so fast to jump on an Iranian server for a variety of reasons, not the least of which is that, the Iranian government has been accused in the past of trying to install malware on the computers of those accessing its servers from countries it deems enemies.Permalink | Comments | Email This Story

Sometimes it's fun to dig into the nonsensical conundrums created by today's copyright law. Michael Scott points us to an academic paper exploring the copyright conundrum facing the widow of famed American author Raymond Carver. Apparently, the widow would like to publish a collection of 17 "original" Carver stories. The stories have all been published previously, but in highly edited forms. The Carver estate does not hold the copyrights on those published stories, which belong to the publisher. So now that the widow wants to publish the original version of the stories, the publisher is threatening to sue for copyright infringement.

This isn't a case of just minor editing either. The paper shows how Carver's original editor, Gordon Lish, didn't just "edit" Carver's stories, but seem to have practically rewritten large parts of some of them, often totally removing sections, and frequently changing endings. The paper shows this comparative example of the original Carver ending and the Lish ending to the story What We Talk About When We Talk About Love to make the point:

Carver Ending:

L.D. put the shaving bag under his arm again and once more
picked up the suitcase. "I just want to say one more thing, Maxine.
Listen to me. Remember this," he said. "I love you. I love you no
matter what happens. I love you too, Bea. I love you both." He
stood there at the door and felt his lips begin to tingle as he looked at
them for what, he believed, might be the last time. "Good-bye," he
said.

"You call this love, L.D.?" Maxine said. She let go of Bea's hand.
She made a fist. Then she shook her head and jammed her hands into
her coat pockets. She stared at him and then dropped her eyes to
something on the floor near his shoes.

It came to him with a shock that he would remember this night
and her like this. He was terrified to think that in the years ahead she
might come to resemble a woman he couldn't place, a mute figure in a
long coat, standing in the middle of a lighted room with lower eyes.

"Maxine!" he cried. "Maxine!"

"Is this what love is, L.D.?" she said, fixing her eyes on him. Her
eyes were terrible and deep, and he held them as long as he could.

[end]

Lish Ending:

L.D. put the shaving bag under his arm again and once more
picked up the suitcase.

He said, "I just want to say one more thing."

But then could not think what it possibly could be.

[end]

This is not just an edit. That's a rewrite. So if Carver's widow wants to publish the original stories, is she infringing on the publisher's copyright? Is it fair use? Is it a derivative work? Or... is it something entirely different? To some extent, you could argue that with these massive changes, the actual copyright the publisher holds actually applies in large part to Lish's original creativity, and thus might not even apply to large segments of Carver's work. But, obviously there are areas of overlap that make this a lot more difficult.

The paper goes through a variety of different legal theories and questions this situation tests, and highlights some of the pertinent caselaw. It's all interesting, mainly in showing how unprepared copyright law really is to handle such basic situations as this one. In the end, the paper does make a compelling argument that the widow should be able to publish Carver's original stories by using the four factor test for fair use, noting that the work is transformative, and is really being published as something of a "commentary" on the originally published works (i.e., to show the difference). However, that point is key to the analysis. Along as the work is published specifically to comment on the editorial differences between the two -- rather than setting itself up as a "competitor," there's a much stronger fair use claim. But, as with many fair use claims, it really comes down to a judge deciding how much weight to give the various four factors.

And that simply highlights the ridiculousness of the situation. It seems that the are compelling educational reasons for publishing the original works, and yet due to the great unknown of how a judge will rule on fair use, it's not clear that the works will actually get published.Permalink | Comments | Email This Story

Reader Murdoch points us to one of Wired's regular "this day in tech" history pieces about how Louis Daguerre revealed all of the "secrets" to making daguerrotypes, which was the basis for photography, in 1839. Rather than a "patent" to lock up the offering, the French government gave Daguerre and his partner, Isidore Niepce, pensions in exchange for freeing the knowledge -- with each receiving the equivalent today of $30,000 per year -- a decent, but hardly huge sum. And with all that information public, suddenly everyone started innovating on the idea and trying to improve it, leading to modern photography.

Also, as you read the details, you could see how it could have even made sense for Daguerre to have freed up the idea anyway, without the government pension:

With a flurry of advance publicity, Daguerre and Arago made the technical details public on Aug. 19. They also described Niepce's earlier processes, heliography and the physautotype, but presented the daguerreotype alone as having a future.

And what a future! Within days, opticians and chemists in Paris sold out of the supplies needed to make cameras and plates. Improvements to the process followed within weeks. Daguerre's instruction manual was translated into a dozen languages within months.

No one wanted to have a portrait painted; everyone wanted a daguerreotype. Studios opened all over Paris. "Daguerreotypomania" spread from Paris to the rest of France, then across the continent, across the channel to England and across the Atlantic to America.

Notice how the freeing of the ideas not only led almost immediately to important improvements, but it also drove all sorts of business opportunities in related scarcities. In theory, even without a pension, you could see how the inventors could have lined up a partnership or investment to help sell the supplies needed to make the cameras and plates -- which quickly became a lucrative business. or, certainly, they could have helped set up or financed the "Daguerreotypomania" studios as well.

It's yet another example of where freeing an idea, rather than limiting it, actually resulted in much greater innovation and much greater economic activity. That's what promoting the progress is supposed to be about, but it's funny how it's the lack of patents that seems to do that more than patents.

Just as a thought exercise, what do you think would have happened if Daguerre had been able to patent the concept instead. Would there have been such a rapid pace of innovation? Would there have been as many sales? Would studios and such a mania happen all over the world? I would bet that all of that would be quite unlikely.Permalink | Comments | Email This Story

Well, well. A few weeks back, we wrote about the story of a guy who had bought some old glass negatives at a garage sale, and recently had them authenticated as being done by Ansel Adams. What interested us was the question of whether or not the guy, Rick Norsigian, could legally sell prints from the negatives. It seemed quite clear that doing so would almost certainly be copyright infringement. Purchasing negatives does not give you the right to print the works, unless you separately buy the associated copyrights. So, at first, I wondered if Ansel Adams' heirs would even let the guy sell prints. Of course, soon after the news came out, the Ansel Adams trust insisted the whole thing was a fraud -- and given some of the recent stories questioning the validity of certain art authentication practices -- perhaps their argument has merit.

Either way, it appears that Norsigian has barged forward with a plan to sell prints from the negatives, and reader Tom sends over the news that the Ansel Adams Publishing Rights Trust is now suing him for it. While I haven't seen the actual lawsuit, the reporting on it notes that it covers: "trademark infringement, false advertising, trademark dilution, unfair competition and other claims." Missing from the list? Copyright. Making a copyright claim would be tantamount to admitting that they believed the images were legit. The Trust does make an argument that could leave it open to a copyright claim down the road, should the negatives be declared from Adams', but it may somewhat undermine their own argument in that:

The lawsuit further says that even if they were Adams' negatives, the prints and posters being created from them aren't the photographer's works, "but are derivative works at best."

"Mr. Adams was fond of likening a negative to a composer's score and the prints to its performance -- each performance differs in subtle ways," the lawsuit said. "The photographic prints and posters offered for sale by defendants ... are not an Ansel Adams 'performance.' "

While derivative works can be infringing, by saying they're "derivative at best," you could make an argument that such prints are fair use transformative works, rather than copies -- though it might not fly.

Either way, I can't see any legal way that Norsigian can sell these prints: if they're not Adams', then calling them Adams' opens himself up to all those charges in the case, with false advertising being a big one. If they actually are Adams' negatives, then he has no copyright on them and again should not be able to sell them.Permalink | Comments | Email This Story

It often seems like big companies tend to win domain dispute rulings over companies that just squat on various domains -- and perhaps that makes sense. So it's a bit of a surprise to find out that Take-Two Interactive has lost its bid to get the domain name bioshock.com, which is currently held by a company that owns hundreds of thousands of domains, Name Administration. The problem? The domain was registered a year before Take-Two filed to register a trademark over Bioshock, for the video game series. Name Administration noted, in its defense, that "bioshock" is not a term that's exclusive to Take-Two, and the arbitration board found no evidence of "bad faith" in using the name.Permalink | Comments | Email This Story

We recently noted that one of the sites sued by Righthaven, the company that buys copyrights from the Las Vegas Review Journal and sues websites that repost parts of its stories, had claimed that the LVRJ gave an implicit license by specifically encouraging people to "share" each of their articles, with quicklinks to 19 different services. It appears that another defendant is taking that argument a step further, and suggesting the LVRJ is engaged in entrapment with these lawsuits after encouraging people to share their content:

"Even if a defendant was to republish an article from the LVRJ.com website directly, he is not only within his rights to do so, but all users of LVRJ.com are encouraged to do just that. The LVRJ.com website offers and invites its users to 'Save and Share' all of its articles no less than 19 times per article. In addition, the LVRJ.com website encourages and invites its users to 'Email This,' 'Save This,' 'Print This' and subscribe to its 'RSS Feeds.' This not only puts the users of LVRJ.com in a quagmire, but it is the opinion of the defendant that LVRJ.com is guilty of entrapment, or at least setting up the users of LVRJ.com for a potential lawsuit. While the LVRJ.com encourages and invites its users to 'Share and Save' articles a total of 23 times per article, LVRJ.com will file a frivolous copyright infringement lawsuit against its users, if they follow LVRJ's directions and invitations to 'Share and Save' articles published on the website."

Legally, this sounds like a bit of a stretch, but it is quite fascinating to see the range of defenses that sites are coming up with to fight back against Righthaven.Permalink | Comments | Email This Story

Ah, the bizarre laws politicians think up. There has been plenty of concern these days about your "online permanent record," and it's no secret that plenty of prospective employers check out applicants' online presence in reviewing their candidacy for jobs. However, a newly proposed law in Germany will apparently bar employers from checking out non-career focused social networking sites as part of reviewing a candidate, but they can still search on Google. The details:

Although the new law will reportedly prevent potential bosses from checking out a candidate's Facebook page, it will allow them to look at sites that are expressly intended to help people sell themselves to future employers, such as the business-oriented social networking site LinkedIn. Information about the candidate that is generally available on the Internet is also fair game. In other words, employers are allowed to google potential hires. Companies may not be allowed to use information if it is too old or if the candidate has no control over it, however.

This sounds like politicians overreacting to a specific complaint ("oh my! companies will look at my drunken antics on Facebook!") and coming up with a law that makes no sense at all.Permalink | Comments | Email This Story

Already thought those full body scanners at the airports were a bit much when it came to privacy? How about having government officials sitting in a van next to you scanning your car as you drive by with the same basic technology, without you even knowing about it? Jay points us to the news that a version of the same backscatter x-ray scanner technology found in airports has also been sold to the US and other governments to mount on vans to scan nearby vehicles to see what's inside. Apparently, the company has sold 500 of these already. Many of them are used in war zones to scan for things like car bombs, but apparently some of them are in use in the US, letting them see views such as the following on nearby vehicles:





Now, I can see the argument for using such a technology in a war zone, but it seems to open a lot of questions concerning how it's used in the US. Is it an illegal search to scan a car without a warrant? A decade ago, the Supreme Court ruled that using thermal imaging to scan someone's house (say, for potential marijuana growing) was a search, and thus subject to the 4th Amendment requirement for a warrant. I find it difficult to believe that a court would find this technology any different -- so the fact that it's already being used in the US makes me wonder if it's only being used with a warrant... or if we should expect to see a lawsuit on this topic soon.Permalink | Comments | Email This Story

For whatever reason, every few months or so, yet another clueless video game company exec spouts off about how the used video game market is somehow unfair or hurting video game developers. We've seen it again and again and again. However, since a whole bunch of you keep submitting the story that Cory Ledesma from THQ has made the downright laughable claim that the used video game market "cheats" developers, it seemed worth discussing.

This shows a fundamental misunderstanding of the law, basic economics and the customers THQ is failing to serve. On the law, Ledesma and others should familiarize themselves with the First Sale doctrine before making silly statements. On economics, repeated studies have shown that a healthy secondary market for products actually significantly helps the primary market. If you take more than a second and a half to think about it, it's easy to understand why. If there's a healthy secondary market for products, it reduces the risk for the buyers in the primary market. That is, if they buy the product and don't like it, they know they'll be able to resell it and recoup some of their losses. That makes it effectively cheaper for them to buy the primary product, increasing the number of sales. On top of that, the secondary market also helps in markets like video games in acting as a good way to segment the market, and get new buyers into a game or series of games. I'm sure many of the folks who are now buyers in the primary market, at one time purchased an earlier game in a series used. How is it that so many video gaming execs have so much trouble recognizing these basic concepts?Permalink | Comments | Email This Story

You may have noticed that as the field of "intellectual property law" has been getting more and more attention, those who benefit the most from it have done an effective, if misleading, job of convincing people that copyright, patents and trademark are "just like property." That's not true of course, and it's especially misleading when it comes to trademark law, which is designed to prevent consumer confusion, not to provide incentives, like copyright or patent law. But, all too frequently, we see people think that if they can somehow get a registered trademark on a term, it means they can prevent others from using it. Perhaps the most famous case was that of Leo Stoller who got trademarks on a variety of words, such as "stealth," and then started demanding everyone who used those words pay up.

It appears that Stoller is not alone in this game, and this latest example may have taken a misinterpretation of trademark law to another level altogether. Reader Project P1 points us to the news that a guy named Nick Slater was somehow able to secure a trademark on the term "Welcome to Parry Sound." Parry Sound, of course, is a small town in Ontario. Now that Slater has the trademark, he's been invoicing lots of organizations for daring to use the phrase "welcome to Parry Sound," in any way. Thankfully, the various lawyers of those invoiced have all said, clearly, that there's no trademark issue here and not to pay, but Slater isn't giving up. Town residents have been protesting by putting up "Welcome to Parry Sound" signs on their lawn, and one guy set up a "Welcome to Parry Sound" Facebook group.

Slater's response? He sent that guy an invoice as well... and then filed a takedown claim with Facebook which blindly complied.

There is no legitimate trademark claim here, but once again, we're seeing what the concept of "intellectual property" is creating, with people thinking they can own basic things like a town greeting.Permalink | Comments | Email This Story

Earlier this year, we wrote about the attempt by some housing developers to demand a cut of every future sale of the homes they built. This was similar to various attempts around the globe to add a resale right for artists, such that they get a cut every time their artwork is resold. It makes no sense for artists (and actually does serious harm to artists), and it makes even less sense for houses. But how did the folks who came up with this plan defend it? By citing copyright law, of course, saying that it was no different than an author or a musician getting royalties from the sales of their works.

Reader Mark points us to another article about this attempt to contractually create a resale right for homes. This article has a lot more details about the plans, put together by an financial firm called Freehold Capital Partners (which the last article called a Texas company, but is now referred to as a New York company -- which is interesting, given that the last article also noted that Texas law probably prohibited this practice). However, this article notes that the whole plan is prefaced not on actually giving the builders a cut of all future sales, but (of course) to securitize and sell off the potential future revenues to investors. Forget securitizing mortgages, now we're talking about securitizing a bizarre contractual resale right that means you have to pay some random investors any time you sell certain houses. Yikes.

Thankfully, plenty of folks are realizing how sketchy this is, and various states have specifically outlawed the practice. The article quotes some developers whining about how much nicer it is to be able to get a big chunk of money from these kinds of deals, but given that the chunk of money comes from a rather questionable process, they shouldn't have relied on it too much in the first place.Permalink | Comments | Email This Story

What is it with aging rock-n-rollers complaining about the "internet" these days? It's kind of amusing how these rockers, who always tried to present such a rebellious persona, are now acting just like the older generation they mocked. Everything new is evil and bad, huh? We already covered John Mellencamp's recent anti-internet diatribe, where he referred to it as an atomic bomb for the music industry (he meant the recording industry, but apparently doesn't realize it), and now Hypebot points us to the news that Fleetwood Mac star Stevie Nicks is bashing the internet as well, in a very similar manner:

"The Internet has destroyed rock. Children no longer develop social graces. They don't hang out anymore," she complains. "I'm financially stable. I'm okay. But what about the kids trying to make it in this business? If you're not an established band, if you don't have a hit single, they're gonna drop you. There are a lot of people out there as talented as we were, but they can't sustain being in a rock 'n' roll band for long without success. We were able to, but we're going to die out."

First of all, I'm not quite sure what rock and roll and "social graces" have to do with one another. But the rest of her comment reveals an amusing misunderstanding of what is actually happening with "the kids trying to make it in this business today." You see, many of them are realizing they don't need a major label to become successful any more, and they celebrate when they get dropped from a label, because it means they can take control over their own business models and actually do things that make fans happy, rather than piss them off. And many of those things involve using the internet to help create, promote and distribute works, while also building up a strong, loyal and committed fan base. The internet hasn't destroyed rock at all. It's destroying the old gatekeeper system that kept so many out before.

Nicks' mistake is to think that you still need a major record label behind you to be a success. Like other aging rockers, it appears she's a bit out of touch with what's actually going on in the music world.Permalink | Comments | Email This Story

Perhaps I'm strange, but I have to admit that I've never even considered sending a text message while driving. I will admit to reading a text message while sitting at a traffic light, but that's about the extent of it. Still, with more and more people seemingly unable to resist the temptation, is the best thing to do to fret and complain about this trend, or to try to come up with a technological solution? Is there a technological solution that would let people text safely? I'm not entirely sure, but it does seem a bit surprising that we haven't even heard of the equivalent of the "hands free" kit for texting. There are, of course, plenty of voice recognition offerings out there, but the quality still suffers (and most people still want to check over the results to make sure they work). I could see attempts at "augmented reality" where the screen on the phone shows what's happening on the road, but your focus would still be off. So, are there any technological solutions? My guess is that we're going to wait until we really get autonomous driving vehicles that have an "autopilot" mode before we reach a stage where any sort of texting while driving is safe.Permalink | Comments | Email This Story

Earlier this year, we pointed to a video presentation by Johanna Blakley about why the fashion industry has thrived without copyright. The argument certainly wasn't new -- as we've been discussing (for nearly a decade) that industry as a model of an industry that innovates creatively without copyright. However, it certainly was timely, as the fashion industry (with a campaign led by someone who has been caught copying others' designs) has been able to get a new bill for fashion copyrights introduced, and the buzz in DC is that this time it might actually pass.

So what does Blakley have to say about the new bill? Well, she's put together a wonderfully written, if depressing, look at why this law simply is not needed, and how it will almost certainly harm the industry and many fashion designers:

It's worrisome to think about the frivolous litigation that such legislation could introduce (that's not exactly what our over-taxed court system needs right now) as well as the ethical problems associated with conferring an arbitrary right of ownership to any Joe Blow who decides to lay claim to a certain combination of design features which used to belong to the public domain.

Right now, designers pore over vintage magazines and patterns and visit museum archives in order to find inspiration for the next season's look, cherry picking design elements that feel fresh and in line with the current zeitgeist. It's a refreshingly open process unhindered by legal consultations. Those archives could become battlefields where litigants try to find evidence to support their assertion that a design is or is not unique. The geeky librarian in me is worried that some powerful people may attempt to limit access to particularly rich collections of design history and some unscrupulous types may destroy or hide rare materials that prove that their new design isn't as unique as they claim.

The scope of items that the bill intends to protect is larger than you probably think. It's not just ornate red carpet gowns: it also includes coats, gloves, shoes, hats, purses, wallets, duffel bags, suitcases, tote bags, belts, eyeglass frames and underwear. I can only imagine the lengths to which some companies with deep pockets will go to lay claim to an exclusive right to an iconic popular design.

The sad thing is that just about everyone will suffer (well, except for lawyers). Consumers will pay higher prices (someone has to pay those legal fees) and they won't have the same access to the plethora of knock-offs that allow them to participate in global fashion trends without paying aristocratic prices. Designers who can't afford legal counsel will worry about being accused of copying and they probably won't be able to sue if someone copies them because, well, litigation is expensive.

The real travesty in all of this is how there is a total lack of evidence that this new copyright is needed. No one has shown a single shred of evidence to support this. It's the same point that we've made over and over again when it comes to copyright law. If you are going to demand government granted monopoly protections, shouldn't there be a relatively high burden to prove the need for one? Instead, we seem to be going in the other direction. Those seeking such protections demand them, claim they're necessary, and argue that it's somehow "unfair" if they don't have such protections. Blakley points out how unnecessary this new copyright is, quite nicely:

But just because copying is legal doesn't mean it's acceptable. In order to succeed, designers have to develop a signature style -- a look that everyone will instantly recognize as theirs. Designers who have reputations as innovators don't want to be accused of copying, so they have a strong incentive to come up with something new every season that's unique to them and their signature style.
There are several reasons why the fast fashion giants like H&M, Zara, Forever 21 and Topshop haven't destroyed the business of high-end designers. One obvious reason is that the customer who shops for the $19.99 version of a Chanel skirt is quite simply not the same customer who buys clothing in a Chanel boutique. That's one reason that so many A-list designers -- including Karl Lagerfeld and Vera Wang -- have decided to knock themselves off and create lines for lower-end retailers like Target and Kohl's. Far from cannibalizing their own product sales, these designers realized that they could expand their clientele and their brand by marketing a variety of products at vastly different price-points.

Over and over again, the courts have decided not to give extra protection to the designers who have complained about fast fashion knock-offs because designers have not been able to demonstrate that it has hurt their business.

In fact, the fast fashion industry has actually strengthened the fashion industry overall since it has accelerated the market for global fashion. The big bonus for high-end designers is that their influential designs become influential even faster than before. And because trends are established so quickly, fashionistas who buy the products that top designers sell have an incentive to move on to the next new thing when the masses have settled on the trendy knock-off. By the time the next season comes around, designers must compete all over again for customers hungry for the new designs that best capture the zeitgeist.

Those are just two snippets from an excellent, if disappointing, take on this new law that is nothing less than monopoly rent seeking by a few powerful interests in the fashion industry. It's no surprise that the fashion giants are seeking such protectionist policies. The real shame should be in Senator Chuck Schumer for falling for this over and over again (oh look, fashion industry giants happen to be in his state...), as well as those who co-sponsored the bill: Senators Orrin Hatch, Lindsey Graham, Sheldon Whitehouse, Kirsten Gillibrand, Olympia Snowe, Barbara Boxer, Dianne Feinstein, Ben Cardin, Herb Kohl and Kay Bailey Hutchison. If these are your senators, let them know how much you disapprove of such blatant protectionism that will harm everyone.


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lavi d points us to a report from Jim March, on the Tucson Free Unix Group email list, claiming that he witnessed potentially illegal activity in observing part of the Arizona mail-in vote scanning operation in Maricopa County. He summarizes the issue thusly:

Basically, we caught Maricopa
County elections in a felony today - cross-wiring the central tabulator to a
non-secure laptop owned by Sequoia Voting Systems, complete with cellular
modem card in there and live. And I couldn't get a picture. Need a
micro-cam of some sort to get the proof. See also my affidavit filed with
our attorney today.

Remember: by law, the central tabulator system on what's supposed to be an
isolated local network is completely unpatched - it's not allowed to be
modified in any way since the day it shipped in 2006 or 2007. Even if the
Sequoia tech didn't cross-connect the cellmodem to the Ethernet (and both
appeared to be live), he could have easily "pwned" the "secure" systems with
any number of ancient script-kiddy exploits.

He then includes the affidavit he filed. Basically, he spotted a Sequoia employee hooked into the central tabulator, via an ethernet cable from his own laptop, and he saw that the laptop had an EVDO card from Sprint -- and that, apparently, is a big no-no, as explained. When he asked to take a photograph of this, he was denied and was told that he was being disruptive. Now, there's no suggestion here that anything nefarious was going on, but that this central machine, which is supposed to be kept away from the internet, was exposed in a way that it should not have been. At the very least, this raises serious questions about the security of those machines.Permalink | Comments | Email This Story

Want to know why it would cost $5.9 billion to fill an Olympic-sized swimming pool with printer ink? Perhaps look to our beloved US patent laws. Five years ago, we pointed out that HP was claiming that refill ink cartridges for its printers violated its patents, and that it was building up a team of scientists not to invent anything new -- but to analyze the chemical makeup of competitor's ink to see if they could hit them with a patent infringement lawsuit.

Every so often, we hear another bunch of claims from HP about ink refillers infringing on its patents, and just a few weeks ago, we heard that HP was asking the US ITC to block the import of refill ink cartridges from foreign competitors, claiming patent infringement.

Not to be left out, it looks like HP competitor Lexmark is getting into the game as well, and has also asked the ITC to bar the import of ink refills from 24 companies. Lexmark is also suing those same companies in court, showing once again how the ITC loophole gives companies two bites at the same apple.

Of course, it's fascinating to see Lexmark jump into the patent infringement game on ink refills. After all, it famously tried and failed to use the DMCA and copyright law to stop ink refills. It was right after that when HP started using patent claims, so it looks like it took a bit of time for Lexmark to get together a patent plan.

Of course, would it be nice if, rather than relying on government granted monopolies to block perfectly legitimate competition, these companies actually competed in the marketplace? Or is that too much to ask?Permalink | Comments | Email This Story

Tim O'Reilly points us to a new report out of Japan, noting that it's becoming increasingly popular for people to digitize their own books (a practice called "jisui"). Yes, they're taking books they legally own and scanning them, so that they can store them as ebooks, and read them on various devices such as the iPad. I would have thought this wasn't a popular practice, but at least one study found that 20% of iPad owners in Japan had done so, and another 30% were interested in doing so.

What's interesting is how this is boosting ancillary businesses: specifically there's a strong demand for scanners that make it easier to scan and backup your books. In Japan, digitizing your own books for personal use is apparently legal under that country's copyright law, but some publishers are getting worried about this practice and are considering what to do about it. And, of course, some copyright "experts" are already saying that Japanese copyright law needs to be updated to deal with this.

Or, perhaps, just this once, we shouldn't change copyright law to limit what new technology allows, and recognize that maybe, just maybe, this action is showing what people want, which book publishers haven't been fulfilling.Permalink | Comments | Email This Story

Earlier this year, we noted that two lawyers from Davenport Lyons, who were among the first law firms to dive into the mass automated "pay us or we'll sue" pre-settlement letter business with copyright infringement claims, were facing disciplinary action in the UK for those activities. What seemed odd was why the focus was on Davenport Lyons who had apparently gotten out of the game quite a while back. Instead, the work was picked up by ACS:Law who appeared to be using very similar material to what Davenport Lyons had used -- though, I still don't believe anyone has made the direct connection between the two. Still, it seemed odd that ACS:Law was free to continue its campaigns.

Apparently the wheels of the Solicitors Disciplinary Tribunal turns slowly in the UK, but they get there eventually. It's been announced that ACS:Law's Andrew Crossley will now have to face the tribunal (something he's done in the past, though on unrelated issues). Now, when can we expect to see the US versions of this, mainly US Copyright Group, face some sort of disciplinary action in the US?Permalink | Comments | Email This Story

A bit of a surprise, but the NY Times editorial board has come out in favor of making two specific changes to copyright law, in response to two separate issues recently discussed here. Both are in response to the recent NY Times story (that we discussed) concerning the treasure trove of jazz music that the National Jazz Museum has, but cannot make available due to copyright laws. The first problem is that, thanks to quirks in copyright law (including Congress' strong believe in 1909 that sound recordings could not be covered by copyright, as per the Constitution), sound recordings from before 1972 are locked up for much longer due to state laws. The second issue, discussed over and over again, is the concept of "orphan works." The NY Times figures that if we fixed both of those issues by (1) bringing those older sound recordings under federal law and (2) passing a slightly revised orphan works act, it would allow those jazz classics to be heard again.

While it's nice to see the NY Times editorial board concerned about this, it seems like if they were really serious about fixing copyright law, they wouldn't just focus on that one situation, but the overall issues associated with copyright law. But, of course, since the newspaper mistakenly thinks it needs strong copyright laws to survive, that seems unlikely.Permalink | Comments | Email This Story

Back in March, we pointed out how odd it was that the Authors Guild hadn't freaked out about the text-to-speech capabilities of the iPad, which would allow for ebooks to be read aloud. Of course, this was the same feature on the Kindle which caused the Authors Guild to freak out about (with absolutely no legal basis), leading Amazon to make that feature optional.

It appears others are noticing this strange silence on the part of the Authors Guild. David Pogue, over at the NY Times wonders if the Authors Guild just wasn't paying attention:

This is exactly the feature that debuted in the Amazon Kindle and was then removed when publishers screamed bloody murder. But somehow, so far, Apple has gotten away with it, maybe because nobody's even realized this feature is in there.
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We've been following the EFF's patent busting efforts for its list of the 10 worst patents, and it looks like an East Texas jury may have at least partially invalidated one of the patents, 6,411,947, which describes a method for automatically routing emails. As the EFF noted, this patent appeared to cover "basic natural language processing techniques taught in introductory computer science courses."

Things took a more interesting turn when the guy holding the patent, Erich Spangenberg and his hoarding company, Polaris IP, decided to sue Google, Yahoo, Amazon, AOL, IAC and Borders for daring to automate email responses without first paying him. If Spangenberg/Polaris sound familiar, it's because he's become one of the more prolific patent hoarders out there lately, and a couple years ago had to pay out $4 million to Daimler, after he apparently used various shell companies to move some patents around and sue Daimler multiple times over the same patent, even though an earlier settlement had him promising not to assert that patent against the company again. Spangenberg also believes in suing first before contacting a company, and always suing in East Texas, because the juries there like to hand out giant awards.

Spangenberg's legal strategy in this particular lawsuit was also quite questionable, as he demanded that Google hand over information concerning its lobbying efforts on patent reform. What that had to do with whether or not Google infringed on this particular patent was never clearly explained.

Either way, Spangenberg's faith in East Texas juries may have been misplaced this time around:

The jury found three of the patent's claims invalid based on the public use bar, obviousness, and for lacking written description. The jury also found that neither Google nor Yahoo! infringed those claims. Finally, the jury found the entire patent invalid due to improper inventorship.

Separately, per Google's request, the USPTO has already been re-examining the patent. The scorecard on this list of patents is increasingly tilting in the EFF's favor, but it's a statement of how awful the patent system is to note how long this has taken. The EFF announced its patent busting project in 2004. And while the process is on-going to invalidate many of them, it's taking quite a long time -- all the while allowing patent holders to create frivolous lawsuits that waste money that could be spent on actual innovation.Permalink | Comments | Email This Story

As you probably know by now, there's a movie coming out this fall, called Social Network, which is sorta, kinda, maybe an extremely fictionalized version of the story behind Facebook. It was based on a book by Ben Mezrich, which was already a fictionalized account of the founding of Facebook -- based on notes from a disgruntled co-founder, with Mezrich taking significant creative license to fill in lots of blanks. Then, famed writer Aaron Sorkin wrote the script, passing it through a second fictionalized filter. And, not surprisingly, the folks at Facebook are not at all pleased with the movie, which doesn't exactly portray Mark Zuckerberg or Facebook in a very nice light.

Apparently Facebook execs are debating what to do about the movie, and it's almost surprising that they haven't tried to take legal action -- because that's almost what you'd expect these days. Of course, they probably realize that doing so will only get the movie more attention (though, it certainly looks like the movie is going to get plenty of attention already). Yet in an age where "publicity rights" lawsuits are becoming more common and many movie makers feel they need to secure the rights of anyone and any company that shows up in a film, it's actually somewhat surprising that this particular film actually was made.

But given that Facebook execs are trying to figure out what to do about the film and how to respond to it, I'm curious what folks here think. I think I would go with the simplest of all solutions: a single page that explains why the movie is a greatly fictionalized account, and not an accurate depiction of either the company or its employees, past or current, and then just stay quiet otherwise. What else would you suggest?Permalink | Comments | Email This Story

greenbird writes "In light of the RIAA/NAB negotiations to require FM radios in all portable devices Wired's Underwire column has a brilliant idea to "save" the newspaper industry. Require e-reader sellers to give a free parakeet with every e-reader. It goes on to other brilliant plans to save dieing industries such as the Mapmakers and Travel Agents."

Given some of the bizarre rationales for saving certain industries, I don't think any of these satirical suggestions are really any more ridiculous...Permalink | Comments | Email This Story

Three years ago, we wrote about the phenomenon in Brazil of "technobrega" music, and how the musicians involved had embraced piracy to help spread their music, and then capitalize on other business models, including free. Since then, I had been wondering if more established "industry" types would move in and try to lock down the music. Thankfully, reader tuna sends over a more recent article about technobrega, and it appears that technbrega artists are embracing free to an even greater extent than before. Last time we wrote about it, the technobrega artists would rush copies of their (hastily burned) CDs down to street vendors, who would burn and sell copies of it (with none of the money going to the artist -- but they didn't care, because they wanted more people to hear). Now, they're even skipping that middleman and focusing on getting the music online quickly and spread as widely as possible. As Jose Roberto, who runs a technobrega website notes:

"If you don't have an official CD, then what is piracy?"

So why are the artists so eager to give away their content for free? Because the bigger your reputation, and the more people know who you are and like your songs, the more money you can make with live shows. Quite similar to the history of Jamaican music in the 1950s and 60s, the technobrega musicians and DJs have built up traveling soundsystems. Another way to make money is in dance classes. Apparently, learning the complicated dance steps is a big business. A researcher, Ronaldo Lemos, who has studied the technobrega business, notes that it's doing amazingly well by embracing technology and embracing file sharing:

"The crisis in the music industry is widely talked about... Tecno-brega is an industry that makes millions, but it is a completely different model of business. It doesn't see technology as an enemy but as an opportunity."

And yet, I'm sure, we'll soon hear from folks trying to explain why this could never work anywhere else.Permalink | Comments | Email This Story

If you follow the music business, you probably already know about or follow Ticketmaster boss Irving Azoff's Twitter feed, which he kicked off earlier this month by calling two different reporters "jerks," and generally jousting with some of his critics. He went quiet for a bit, but caused a bit of a stir over the weekend by announcing (sort of) that Ticketmaster had "full disclosure pricing." Considering just how much hatred there is towards Ticketmaster's "service charges," this certainly picked up some attention.

The only problem? While the tickets Azoff pointed to highlighted prices that included fees (amusingly, the fees on the cheapest ticket markup the official ticket price by a whopping 50%) some quickly discovered that this wasn't, at all, what they expected. That's because despite the implication that these prices now showed you full fees, some noticed another $6.50 fee tacked on at the end. After people pointed that out, Azoff again responded by claiming that Ticketmaster simply can't show you all the fees until it knows how many tickets are being bought and what the shipping method is.

A few hours later, Ticketmaster launched a blog, where the first post tries to delve into this by suggesting that the problem isn't the fees, it's that you don't understand the fees. Yeah, really. This is incredibly tone deaf on Ticketmaster's part. People understand fees just fine. As Eliot Van Buskirk at Wired points out "each dollar that comes out of their wallets is identical." No one cares that Ticketmaster has to pay various third parties, such as "promoters, venues, teams, artists" out of those fees.

Years ago, we discussed a nearly identical situation with phone bills, showing how people were incredibly annoyed with massive unexplained fees, and the telcos insisted they were necessary to "recoup costs." But, as we pointed out, in most businesses you recoup the costs in the list price and don't break out fees. Otherwise, we'd have lots of companies doing this sort of crap: Want a pizza pie? It's just $3, but there's a $3.50 "crust fee," a $9.38 "oven fee," a $4.50 "service fee," and a $2.18 "cleanup fee." Plus tax.

That, of course, is ridiculous and would piss people off -- just as telco fees do and just as Ticketmaster's fees do. If Ticketmaster wanted to make people happy it would stop telling people they need to be better educated about fees -- a subject they don't care about -- and just offer straight up, all-in, pricing. If Ticketmaster has to pay a bit more to some third party because of this, well, why not figure out a way to bake that into the overall price. It's called forecasting, and most other businesses predict their cost of goods sold using various forecasting methods, and it seems rather silly that Ticketmaster apparently cannot.Permalink | Comments | Email This Story

You may recall late last year the legal threats that came down after some designers started discussing the possibility that a Demi Moore photo on the cover of W magazine may have been Photoshopped in an odd way. The lawyers came out and threatened those who were talking about it, leading the story to get much more attention (as per usual).

However, it appears that some Hollywood types still haven't quite figured this out. Apparently Jennifer Aniston's representatives are threatening to sue Gawker because the site dared to post an image that it claims is a pre-Photoshopped photo of Aniston, which her people insist are doctored. Either way, Gawker is standing up for its fair use rights, and as this is the story, it seems entirely newsworthy to publish the image in question:



Once again, it looks like an attempt to hide something has only served to turn that into the story itself. You would think that people would recognize this already, so it's a bit surprising that they don't.Permalink | Comments | Email This Story

RIAA President Cary Sherman is really doing a stunning job every time he opens his mouth this week. First, as noted earlier, he may have hurt the RIAA's chances in a Supreme Court case by directly stating the exact opposite of the RIAA's position in that case. Then, he got on stage at a "tech policy" shindig in Aspen Colorado, and said (apparently with a straight face) that "the DMCA isn't working for content people at all." Wow.

Now, this deserves some background. The key parts of the DMCA were almost entirely drafted due to pressures from the RIAA, who wanted this law passed badly. The RIAA has been one of the biggest supporters of the DMCA all along. The one tiny bit they don't like was the part put in at the request of service providers to get them to stop fighting the DMCA: a basic safe harbor that makes it clear that liability should only be applied to individuals or organizations who actually infringe on copyrights, not service providers whose tools are used by third parties. This isn't some revolutionary idea. It's basic common sense application of liability on the party that actually breaks the law. Even that was severely tilted in the RIAA's favor by requiring a notice-and-takedown provision, that almost certainly violates the First Amendment.


But much of the DMCA was an RIAA wishlist of the absurd -- such as the anti-circumvention clause. In fact, for years, tech companies warned about problems with the DMCA. There were a few attempts by Rep. Rick Boucher to reform the DMCA to get rid of the serious problems with it that totally favored the RIAA in often ridiculous ways, but the entertainment industry vigorously fought against these changes.

However, nothing ever came of that, and Boucher hasn't pushed to reform the DMCA in quite a few years at this point. Last I heard, the feeling was that both the technology folks and the entertainment industry folks had decided that reopening the DMCA was a can of worms that was far too dangerous. Tech companies feared losing the safe harbor protections, while the entertainment industry feared losing pretty much anything, such as some of the anti-circumvention clauses.

However, with the entertainment industry having such a "good friend" in Joe Biden, it apparently feels confident enough to try to reopen the DMCA to get rid of the one part it never liked. This is really quite stunning. The DMCA was a bill that was designed for the RIAA. It had one tiny safe harbor, and for Sherman to now attack that is a sickening attempt to twist the DMCA even further in favor of one industry, against everyone's best interests.

Even worse, his rationale for this is just laughable:

"You cannot monitor all the infringements on the Internet. It's simply not possible. We don't have the ability to search all the places infringing content appears, such as cyberlockers like [file-hosting firm] RapidShare."

Read that again. So because the RIAA is unable to monitor, others should be forced to do it for them, or face giant fines. Sherman admits that it's impossible to monitor, but in the same breath demands laws that will punish other companies for failing to do the impossible, while taking all of the responsibility off of the companies he represents. To make such a statement takes such incredible guts that it's amazing the room didn't burst out in laughter.

Of course, what this is really about is that Sherman and the RIAA are posturing for a three strikes law in the US. For two years now, they've tried (and failed) to get ISPs to agree to three strikes in the US. So, Sherman is kicking off a campaign to try to pressure ISPs to agree... or to get politicians to introduce a bill.Permalink | Comments | Email This Story

For years, we've suggested that the fears of various publishers, that Google's book scanning/book search project was somehow a bad thing, were way overblown. We'd seen reports noting that putting your books into Google's book search often helped increase sales, and some enlightened publishers have started to realize the same thing. Yet, to hear some publishers and Google critics talk about it, you would think that the Google book scanning offering was the worst thing ever -- with some comparing Google to the Taliban. Yet, if you take a step back, and realize just how powerful and useful a universal searchable library of books would be, it's difficult to see how that's a bad thing.

But, now we've got a bit more evidence. Michael Scott points us to a new research paper from law professor Hannibal Travis, that tries to look at the actual economic impact of Google's book scanning on publishers, and finds that the falling sky claims from publishers and critics simply isn't supported by the evidence:

First, it finds little
support for the much-discussed hypothesis of the Association of American Publishers and
Google's competitors that the mass digitization of major U.S. libraries will reduce the revenues
and profits of the most-affected publishers. In fact, the revenues of the publishers who believe
themselves to be most aggrieved by GBS, as measured by their willingness to file suit against
Google for copyright infringement, increased at a faster rate after the project began, as compared
to before its commencement. Their profits also increased significantly more on average from
2005 to 2008 than from 2001 to 2004. The increased rate of growth by publishers most affected
by GBS does not disappear when one compares it to the growth of the U.S. economy or to the
growth of retail sales. The continued rise in sales is remarkable when one considers the soaring
sales and prices of other entertainment products that may compete with books.

Second, this Article finds some support for the view that mass digitization and expanded
access to book previews may increase the revenues and profits of the most-affected publishers.
The evidence for this proposition takes the form of large increases in revenues and profits for
publishers affected by GBS who did not opt out of Google's publishing partner agreement for
broader access to previews of works still in copyright.

Third, it seems that GBS may simultaneously vindicate the public interest in expanded
access to the world's cultural heritage and the pecuniary interests of authors and publishers in
recouping the substantial fixed costs of book and periodical production and distribution.
Analyzing this virtuous circle can help us begin to theorize the relationship between the Internet
industry, the producers of cultural products, and the wider public. This relationship is also
visible with other advanced Internet services such as YouTube or DailyMotion, which may
increase viewership of copyrighted works that they may infringe, such as television shows.

Obviously, this seems to go beyond just Google's book search, in showing that greater access can certainly lead to greater revenue and profits for those who embrace it. Definitely another worthwhile paper to read on the subject.Permalink | Comments | Email This Story

There's a NY Times article that appears to have a bunch of cable & TV companies congratulating themselves for beating the internet in getting people to keep paying high monthly premiums to get premium TV channels on their TV, rather than using some of the various internet solutions out there. Like so many awful NY Times "trend" pieces these days, it appears to key off of a single anecdote of one guy who tried to ditch cable, and then went back after a year. How many people are actually going this? No idea. It's not like the reporters at the NY Times tell us. They do tell us that not too many people have dropped cable, but that's hardly surprising. What's much more amusing is the suggestion that the cable and TV companies have somehow "beat" the internet by restricting content:

In part that is because the television business took action to avoid the same fate. Heavyweight distributors and producers have protected their business models by ensuring that some must-see shows and live sporting events cannot legally be seen online.

Legally. Yes. But, just wait until you see what that enables on the less-than-legal side of the internet. As for the fact that people aren't dropping cable yet, this all really sounds like the cable companies not recognizing how trends accelerate. They do, indeed, start slow, and as Clayton Christensen has noted for years, the incumbents don't pay attention early on, because the other solutions just don't seem as good. And... here in the NY Times article we get:

Technology companies are pushing alternatives like Web-connected set-top boxes. But these are still not as easy as signing up for cable or satellite service, particularly for those who want to watch on a big flat-screen TV and not a computer.

Classic innovator's dilemma statement. It's certainly true that, right now, it's not as easy to use these internet services as it is to sign up for cable, but it's getting easier all the time, and sooner or later, someone is going to create a breakthrough service that makes it really easy. We've seen it time and time again. Napster did it for music file sharing after we were told that people didn't want music online. Vonage did it for VoIP after telcos insisted that VoIP quality would never sell. Who knows who it will be, or when, but someone will figure it out, and then we'll see the cable and TV companies freak out, because the cable cutters will shift into high gear.

This is the problem we were discussing recently, where disrupted companies simply don't recognize the speed at which a disruptive offering catches on when it does finally catch on. They think that they're successfully "protecting" their existing business with things like Hulu's subscription plans, but that will cause them to miss the truly disruptive innovation.

At least the NY Times article hints at the growing undercurrent, in noting that the younger generation is four times as likely to go without a cable subscription. That number is just going to grow, and as new offerings come along that make it easier and easier to get what you want, when you want it, without silly restrictions, the idea that the legacy guys "beat" the internet by restricting access to content will seem laughable.

Update: And look... just as this is published, out comes the news that cable TV has suffered its first ever decline in subscribers. Nice work, NY Times, in pitching a whole story based on a single anecdote, about how cable has nothing to fear... just as the numbers come out to show that people are, in fact, cutting back on cable subscriptions. I'm sure stories like this will make the upcoming NY Times paywall that much more valuable.Permalink | Comments | Email This Story