We hear it all the time, whenever anyone talks about an industry being "destroyed" by new technologies: "how do we save x industry?" where "x" can stand for "recording" or "news" or "movies" or whatever. We saw it just recently when a professor wanted to "save" the newspaper industry by changing copyright law in ridiculous ways. It's also why we jokingly called our last event "Techdirt Saves* Journalism." The whole concept of "saving" an industry is so preposterous, which is why we wanted to mock it with the title of our event. I was reminded of this when reading this recap of the Association for Education in Journalism and Mass Communication (AEJMC) event, where Dan Gillmor was quoted saying:

"I'm not even slightly interested in saving the industry."

And it got me thinking about understanding the mindset of "saving" an industry more deeply. The truth is, whenever anyone seriously (not mockingly) refers to "saving" an industry, invariably, they're really talking about saving a few legacy companies in that industry from whatever disruptive innovation is shaking things up. It's never actually about "saving an industry," because the "industry" almost never actually needs to be saved. The industry may be in the process of being changed (often radically), but that's not the same thing as needing saving.

What's telling is that, through all of this, you almost never hear start-ups talking about asking for help trying to "save the industry" that they're in. That's because they know "the industry" is just fine, and in all of the upheaval there's really tremendous opportunity. So, anytime anyone talks seriously about "saving" any particular industry, challenge them on what they really mean, and see if they're actually just talking about saving a few companies, rather than saving an actual "industry."Permalink | Comments | Email This Story

Just about a year ago, we wrote about how actress Felicia Day had turned her web production, The Guild into a big success, by building a community of fans, connecting with them, and then coming up with some interesting ways to make money from that, including a unique sponsorship deal with Microsoft. Reader tuna points us to a Fast Company profile that updates us on how the last year has gone, and it sounds like things have only improved over time.

One of the keys to the success is that she chose the sponsorship deal with Microsoft, in large part because it let her retain creative control over the project -- allowing it to remain authentic and true to what her fans wanted and expected.

As buzz built, Day and her company, Knights of Good Productions, signed with ICM new-media head George Ruiz. "At one point, there were 25 different offers on the table," Ruiz says, "including from some major studios and networks and even a director with several $100 million films."

Day turned down every one. "She said, 'George, don't make me take this deal!' " he says. So by the time Microsoft came calling, the agent had a new approach: The Guild is not for sale, but you can license it.

The Seattle-based behemoth bit. Microsoft pays an undisclosed fee to debut each season exclusively on the company's Xbox Live, MSN, and Zune platforms (season four debuted in mid-July). "There is a common perception about Microsoft," says Day. "Especially when we first signed with them, the fans had reservations." But she was impressed that it got what she was doing and didn't want to interfere. "Microsoft doesn't even give me notes [on scripts]!"

This is a key point that often gets lost in business model discussions. When we talk about different offerings, it's amazing how much people discount the importance of authenticity as a scarcity. We see it all the time with companies who want to sponsor something, and then have tremendous level of control -- losing all of the authenticity and, with it, much of the value (and, eventually, audience). It's nice to see a situation where a company (in this case, Microsoft) properly recognized when not to get too involved.Permalink | Comments | Email This Story

Recently, we'd been discussing how the concert business for (non-arena) musicians was still doing well for some, but that everyone was getting more and more frustrated about fees and services charges added to ticket prices. We also wrote about how the band The Pixies went direct to fans with concert ticket sales, avoiding some of the annoying middlemen. It looks like more artists are starting to wake up and take notice.

Singer Joe Pug, who you may recall took part in our CwF+RtB experiment last year, and has been experimenting with more fan friendly business models for a while, is trying to do the same with a new $10 Tour. The idea is that all of the shows (with a couple of specific exceptions) on his next tour will cost only $10 -- and he's testing out selling at least some of the tickets directly with no fees at all, and if that goes well, will try to do so for other shows.

There is some precedent here. Corey Smith, who we've written about many times in the past, has used $5 tickets to many of his shows to help him build up his fanbase. In that case, the story went that this helped him connect with many more fans because at $5, it was easy for an existing fan to convince friends to go (or even pay for them to go), leading to many more people getting to see Corey live.

Still, what's most interesting to me is that more and more artists, like Joe, are recognizing how much people hate some aspects of the concert-going experience (mainly dealing with the middlemen who lump on all those fees) and realize that there's a really good way to better connect with fans: which is to cut out that middleman:

A few months back I bought tickets for a concert- which shall remain nameless- only to get manhandled by service charges and by their Newspeak cousins, "convenience fees". The actual price was nearly double the face of the ticket. Half of my money was going to the band I loved, the other half to horse-thieves. Reining in ticket fees has been notoriously difficult, even for artists of great influence. But in a small step, we negotiated to do SOME of the tickets directly through our website. We're going to try this for the Chicago show on 10/16. The first 50 tickets will be available exclusively at my website with zero fees. The amount charged to your credit card will be exactly 10 bucks per ticket. If all goes well we hope to roll out the no-fee ticketing for entire tours.
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You know what they always say: when there's a news article written about you, the facts are always wrong. Of course, in most cases, that's bad, and the fact checking you try to do afterwards is a bit useless. However, in some cases, you would think it would be good. Such as if you were a bank robber, and they had the description about you all wrong. Unfortunately, vanity sometimes gets the better of some people, and apparently a bank robber in Germany contacted the press and the police to correct the "errors" in their reporting on the crime, noting that they got "his age, height, mode of escape and accent wrong." Of course, emailing that info made it easy to track him down, and a few hours later he was in custody. Perhaps that's the trick in capturing overly vain bank robbers. Just get them to do their own fact checking by inserting errors into the police reports...Permalink | Comments | Email This Story

It looks like toymaker MGA has decided that if the momentum is turning in its ongoing legal fight with competitor Mattel, it might as well go all in. As you may recall, Mattel had sued MGA over its (extraordinarily successful) Bratz lines of dolls, because the designer who came up with the concept had done so while working at Mattel. This resulted in an amazingly broad ruling against MGA that required it to basically turn over everything having to do with Bratz dolls, including future plans, to Mattel. This made no sense. If Mattel was to get the rights to anything from MGA, it should have only been the original expression if they were actually produced under the Mattel employment contract (a point of dispute). Thankfully, the appeals court realized what a terrible ruling this was, and rejected most of it.

With momentum moving to MGA, the company has now filed headline-grabbing counterclaims against Mattel, concerning revelations, supposedly unearthed during depositions for the case, of widespread and potentially illegal corporate espionage done by Mattel on MGA and many other toy companies, including setting up fake personas so that people working for Mattel could get into toy showcases from competitors that were closely guarded secrets.

While it does make for a good story, it's not entirely clear what this really has to do with the case at hand. Corporate espionage happens all the time, as competitors try to get a leg up on one another. It seems like a bit of a tangent for MGA to even bother to bring this up now. Why not just focus on the key issue of retaining the rights to the lucrative Bratz dolls?Permalink | Comments | Email This Story

While there have been a lot of concerns lately about efforts to misuse "wiretapping" laws that forbid any recordings of people without their knowledge, it appears at least a few courts are recognizing how silly that is. Yet another court has now said that secretly recording a conversation -- in this case with an iPhone -- is okay, assuming there was no crime committed with the recording, and the recording was for a legitimate purpose. As the court noted:

"The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself."

That makes sense. The act of recording alone, shouldn't be a criminal act, as it really depends on what is being done with the recording. And, in an age where not only is recording everything easier, but for some becoming standard, requiring permission to record all audio seems like an outdated concept.Permalink | Comments | Email This Story

If you're unfamiliar with how our Insight Community works, companies use it to get insight and analysis from folks here in the Techdirt community. If you're a registered Techdirt user, then you're also a member of the Insight Community and are free to take part in this discussion. The top results can earn cash rewards, so this is a nice way to make some money for being smart.Enterprise 2.0 has been a catch-all description for the shift towards better collaborative software tools that help groups communicate in real time to increase employee productivity.  As part of this movement, IBM sees a progression away from a world centered on emails using Microsoft Word and Outlook.
Supporting this idea, IBM has a whitepaper entitled: "Collaboration 2.0 -- Taking Collaboration to the Next Level: From the E-mail and Document-centric World of 'Enterprise 1.0' to the People-centric World of Enterprise 2.0".  Register to read it, and IBM would like your feedback on it.
Download the whitepaper here.
Interesting critiques of this whitepaper include, but are not limited to, questions such as:

How can this whitepaper target its audience better?
What specific business communities would benefit most from employing Collaboration 2.0 tools?
How could this whitepaper be improved?  What points could be added? 
Given the recent demise of Google Wave, what lessons can be learned for collaboration software providers?

The type of insights we're looking for will generate useful discussions regarding the capabilities of collaboration tools.  You can also tell us about your experiences using collaboration tools (what you like or don't like about them).  Additionally, you can help us out by sharing this whitepaper with others and aggregating feedback on it.  Ultimately, we're interested in creating an interesting collection of opinions (and factoids) for folks who might be evaluating various online collaboration apps.  We may re-print your submissions as blog posts on other websites, and your insightful aphorisms may be quoted in future publications.    
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We've already seen how music industry execs and lobbyists cynically use "child porn" to their advantage (even, sickeningly, declaring "child porn is great") by lumping it in with copyright infringement in trying to force filters or other third party policing of the internet on politicians and companies. What's amazing is that they don't seem to have any shame at all in doing so. The latest example can be found in the "open letter" put together by a bunch of music industry trade groups (RIAA, A2IM, AFM, AFTRA, ASCAP, BMI, NMPA, SESAC, SoundExchange, the Recording Academy, the California Songwriters Association, the Music Managers Forum, and the Nashville Songwriters Association International) to Verizon and Google asking them to make sure their proposed "framework" for net neutrality still doesn't cover forcing ISPs to be copyright cops. It's no surprise why they sent this letter, but the inclusion of "child porn" with copyright infringement is really ridiculous:

The music community we represent believes it is vital that any Internet policy initiative permit and encourage ISPs and other intermediaries to take measures to deter unlawful activity such as copyright infringement and child pornography.

The industry seems to work overtime to try to link these two concepts together, despite the vast differences between them. It's really an incredibly cynical, exploitative and disgusting move by the recording industry, and people should really start calling them on it.Permalink | Comments | Email This Story

Tim Lee points us to Alex Halderman and Ariel Feldman's latest demonstration of the hackability of e-voting machines: they reprogrammed a Sequoia machine that was used in the 2008 elections to play Pac-Man:



The really important point is that they did this in three afternoons (and remember, these machines are often left totally unguarded, in the open at polling places for days before elections) without breaking any of the "tamper-resistant" seals that are supposed to alert anyone to any foul play. As Halderman noted:

We could have reprogrammed it to steal votes, but that's been done before, and Pac-Man is more fun!

So now my only question is whether or not they get a cease and desist from NAMCO.Permalink | Comments | Email This Story

Last year, when a workprint of the movie Wolverine leaked, we pointed out that the studio producing the film, 20th Century Fox, could have responded in a way that would have built up a lot more fans, by saying something along the lines of:

Hey Wolverine fans! We know that you're all looking forward to the release of the movie next month. We're excited too! By now you may have heard that an early totally unfinished version has been leaked online. It's missing a whole bunch of stuff -- including some amazing special effects -- and honestly, this version isn't a finished product at all. We think you'll get a much better overall experience by waiting for the full finished product, but we certainly understand that some of you just can't wait (trust us, we feel the same way!). If that's the case, please, feel free to check it out, but please remember that this isn't even close to the final version. If anything, think of this as a "behind-the-scenes" peek of just what a movie looks like before all the real "movie magic" gets put in there. If you do check it out, we hope you'll join us May 1st to check out the finalized version as well on the big screen the way we intended for you to see this awesome movie. It's just a month away!

Instead, they went ballistic, and got the FBI involved and made a big stink about how awful this was. In the end, however, some studies suggested that the leak and all the attention around the leak actually resulted in helping the movie at the box office. The movie did much better at the box office than better reviewed movies that matched multiple characteristics, including having loyal fanbases. There was at least some evidence that perhaps all the publicity around the leak got more people interested in seeing the movie -- even if Fox did little to position themselves to take advantage of that -- as we suggested.

Still, that makes 20th Century Fox's response to the latest film leak even odder. TorrentFreak points out that the Twilight-spoof film Vampires Suck was leaked a few weeks ago -- and perhaps because of the publicity around the Wolverine leak, this time the company is trying to threaten everyone and issue takedowns quietly, instead of going public with their displeasure. But, of course, that hasn't stopped the movie from being available, and TorrentFreak notes over 100,000 downloads of the movie. However, by staying quiet publicly about the leak, it seems like Fox doesn't even get the beneficial publicity. This response seems to make even less sense than the response to Wolverine.Permalink | Comments | Email This Story

As Righthaven continues to file lawsuits, it seems that various lawyers who are concerned about copyright, free speech and chilling effects online have been rushing to help defend some of those sued. I can't recall a situation (even with US Copyright Group) where lawyers have been so eager to take on a company filing copyright infringement claims. Of course, the really interesting part is how some of the lawyers are testing out a variety of defenses to the lawsuits, some which seem to have a much better chance of passing judicial muster than others.

For example, some are claiming that Righthaven has no standing to sue, since it waits until after it's found the infringement to "buy" the copyright to the article in question from Stephens Media/Las Vegas Review-Journal. Others have argued that the lack of any actual damages should get the lawsuits dismissed. Still others have challenged the jurisdiction.

One interesting argument, based on an earlier ruling on the legality of Google's cache, makes the reposting of these articles "fair use." Unfortunately, the fact pattern in that case does appear to be a bit different. It not only involved a guy suing over the Google cache, but that guy also first requested that Google scan his pages, then made the request to visit the cache himself. Still, in that case, Google argued that without a robots.txt blocking them from caching the article, the guy had given implicit permission:

"Even if Google could be viewed as having made or distributed these copies of Field's works, Field impliedly granted Google permission to do so. Field displayed his site on the Internet without including any label, including those that are industry standard, to instruct Google not to present 'cached' links to the pages containing his works," Google attorneys argued.

And, in that case, the judge agreed. So, with Righthaven, these lawyers are claiming the same basic thing. They're saying that the LVRJ gave an implicit license for a similar cache-with-link by putting the content up for free and by failing to limit the ability to copy & paste the text via technical means. On top of that, they point out that the LVRJ explicitly encourages people to "share" the articles on its site (something the LVRJ still does -- including quick links to share it with 19 different services).

This does raise some tricky issues. If Google's cache is, in fact, legal and not infringement, then how is just reposting a story with a link back infringing? But, if reposting a story is found to be fair use, you're about to hear a collective gasp of horror from some online content producers who don't want people copying their stuff. Because of that general conflict, I'm beginning to wonder if some of the Righthaven lawsuits are about to become a lot more important than we initially expected -- and whether or not Google might have a very strong interest in supporting some of the cases against Righthaven.Permalink | Comments | Email This Story

MTGlass points us to David Post's analysis of "the high cost of copyright," in reference to an article about the inability to make available a treasure trove of classic jazz recordings that the National Jazz Museum just acquired. The problem, of course, is copyright. The museum wants to make all the works available, and jazz afficianados, like Post, are eager to hear the music, but copyright law makes it almost impossible:

Mr. Schoenberg said the museum planned to make as much as possible of the Savory collection publicly available at its Harlem home and eventually online. But the copyright status of the recorded material is complicated, which could inhibit plans to share the music. While the museum has title to Mr. Savory’s discs as physical objects, the same cannot be said of the music on the discs.

"The short answer is that ownership is unclear," said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. "There was never any arrangement for distribution of copies" in contracts between performers and radio stations in the 1930s, she explained, "because it was never envisioned that there would be such a distribution, so somewhere between the radio station and the band is where the ownership would lay."

At 70 years' remove, however, the bands, and even some of the radio networks that broadcast the performances, no longer exist, and tracking down all the heirs of the individual musicians who played in the orchestras is nearly impossible.

And don't think these works are going into the public domain any time soon either. As we recently noted, sound recordings are locked away for much longer than other copyrighted works due to some quirks in copyright law.

Post uses this as an example of the "high cost of copyright," pointing out that many people who first encounter copyright understand the supposed benefits of the monopoly privilege, but it's more difficult to understand the "cost," side. Of course, I'd argue that this is more a problem of the fact that people have been taught to believe that copyright is designed to "protect the creator," rather than the much more accurate fact that it's supposed to provide for the public. The fact that copyright law is quite clearly getting in the way of this, the intended purpose of the law, suggests that such restrictions are not, in fact, legal. This is a clear case where such a copyright restriction is not "promoting the progress," at all, and in fact hindering our access to important cultural works -- perhaps forever.Permalink | Comments | Email This Story

You may remember last year when model Liskula Cohen went to court to get Google to hand over the name of a blogger who was mean to her, calling her a skank. Of course, in doing so, it brought a lot more attention to the blog which almost no one had read before. In fact, it seems clear that a hell of a lot more people now associate "Liskula Cohen" with "skank" due to her legal actions, than the blog. Eventually a court said Google should unmask the anonymous blogger -- which it did. The outed blogger, Rosemary Port, then claimed she was going to sue Google for $15 million for exposing her identity -- though I haven't heard whether or not any lawsuit was ever actually filed. Almost every legal expert noted that the case had almost no chance of succeeding. Still, it did raise some questions about how far Google should go to protect anonymous users of its site. The company's terms of service do make it clear that they can and will reveal people if necessary, but that doesn't mean it shouldn't fight for its users in many cases.

Either way, it looks like we're getting something of a repeat -- as another woman, this time a former model and actress, and now a consultant named Carla Franklin -- has gone to court to get Google to hand over the names of some YouTube users who posted some videos of her, and referred to her as a "whore." She's claiming that the comments hurt her job prospects -- though, one might imagine that going to court over someone being a jerk to you online might also hurt your job prospects.

Obviously, it's no fun to have people say mean things about you online. But, in weighing the pros and cons, at some point you have to wonder if just ignoring it makes a lot more sense than ramping up the legal response -- which is only guaranteed to get the whole situation a lot more attention (and cost a lot more money). Perhaps Ms. Franklin should take the advice that she was giving in one of the videos that she's upset was uploaded. According to various news reports (the video itself has now been taken down), in the video she advised people "Don't take things so seriously." Sometimes, that's good advice.Permalink | Comments | Email This Story

It's time for some morons in a hurry to start ordering some pizza -- but perhaps not a pizza pizza pizza. Michael Scott points us to the news that lawyers for pizza giant Little Caesars are threatening a Michigan restaurant with a trademark infringement claim, because it has an item on its menu called "Pizza Pizza Pizza." For years, Little Caesar's has used the slogan "Pizza Pizza." However, it's difficult to see how anyone goes into the Pronto! Restaurant, and sees the menu item "Pizza Pizza Pizza" and thinks, "gee, I must be getting a Little Caesar's pizza with 50% more pizza!"

One aside, by the way. It's really amazing how often reporters mix up and interchange different types of intellectual property law. In the first paragraph, the reporter claims that the complaint is about "copyright," when the quote from Little Casear's (held off until the final paragraph) shows that it's clearly about trademark law. I can understand some confusion if it's never actually made clear, but this involves an article where the lawyer specifically notes that it's a trademark issue, and the reporter calls it a copyright issue in the opening... and doesn't put the quote in with the details until the very end. That just seems like really bad reporting.Permalink | Comments | Email This Story

A year ago, at the Congressional Internet Caucus' State of the Net West event, I was pleasantly surprised to hear Rep. Zoe Lofgren make the suggestion that an area that antitrust regulators should really be looking at is how copyright law is abused for anti-competitive reasons. Now, Glyn Moody points us to a new paper from Sean Flynn (who's been active in trying to get ACTA negotiators to answer questions) about how antitrust laws could be useful in stopping abuses of intellectual property law and improving access to knowledge. I'm not convinced this will actually work, but it's an interesting area that seems worth exploring.Permalink | Comments | Email This Story

We've had plenty of stories over the years about how the whole barriers between "work" and "life" continue to blur, and that's causing problems in some areas. Two years ago, we noted that some employees were upset to have to sign documents making it clear that checking email on Blackberries would not count towards overtime work. Last year, we questioned if paying employees hourly wages still made sense in many cases because of situations like this. The issue has come up again, as a Chicago police officer is suing for overtime for use of his Blackberry during off-hours. Obviously, there are some jobs where paying hourly could make sense, but if it's a job that's going to require a Blackberry and regularly checking in, it seems like it shouldn't be paid hourly, but as an exempt employee that gets paid a straight salary.Permalink | Comments | Email This Story

Earlier this year, we wrote about the odd decision of Warner Bros. studio to personally sue Marc Toberoff, the lawyer who successfully represented the heirs of the creators of Superman to win back some of their copyright, by using copyright's termination rules. Toberoff is making a career of this, and has been helping numerous other content creators start the process of reclaiming rights using the termination process -- which makes him somewhat... disliked in the entertainment industry. Still, to sue him personally seemed quite extreme. As we noted at the time, the lawsuit seemed to be based on the idea that Toberoff is a jerk and a savvy business person. As we noted at the time, that doesn't appear to be illegal.

Not surprisingly, Toberoff agrees, and he's filed to dismiss the lawsuit under California's anti-SLAPP law (one of the most comprehensive anti-SLAPP state laws), claiming that the entire lawsuit is just an attempt to shut him up. Matthew Belloni, at the link above, isn't convinced this is a real SLAPP situation, but notes that it could make the case a lot more interesting, as Warner Bros., will likely have to prove its case much faster than planned. And, if Toberoff wins, he could also win legal fees and open up a stronger case for Toberoff to file a countersuit for "malicious prosecution." If this goes according to Toberoff's plan, Warner Bros. might regret this particular lawsuit even more than they regret losing some of the rights to Superman...Permalink | Comments | Email This Story

One of the key elements of things like copyright and patent laws, are that they are really attempts to eliminate certain forms of competition. That's always struck me as an odd idea, since it's competition that leads to greater innovation -- as has been shown over and over again in the economic research. So this following study shouldn't surprise anyone, but Glyn Moody points us to a new study that shows that groups who are put in greater and greater competitive situations, come up with more creative solutions to challenges they're given.

This should be common sense, of course. However, what strikes me is why people think it actually makes sense to limit competition in the creative industries, where you would think that greater competition, leading to greater creativity, would be a good thing? Already, we're seeing that smart creative types have realized that they need to "compete with free" and they do so in increasingly creative ways. Shouldn't we be encouraging that kind of creativity from the creative community?Permalink | Comments | Email This Story

Following Google and Verizon's announced framework for net neutrality (a framework that has no real meaning), the FCC announced that it was no longer holding closed door meetings with industry lobbyists, as they were not fostering the "robust framework to preserve the openness and freedom of the internet." No matter for those lobbyists. They'll just gather elsewhere, without the FCC and continue to hash out plans.

I'm reminded of Adam Smith's famous quote:

"People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices."

But, really, I'm trying to figure out what the purpose of these meetings really could be. After all, these companies coming to some form of an agreement doesn't mean a damn thing if the FCC decides to push forward with its own plans. So, the idea must be that some sort of voluntary industry agreement could mean that the FCC won't make certain rules official, but again that seems backwards. The industry shouldn't be colluding to set up rules -- especially without anyone representing consumers' interests (remember them?). Rather than all these industry lobbyists hashing out some sort of agreement that might not mean anything, shouldn't we just focus on making sure there's enough competition in the market that keeps the most egregious possible actions unthinkable by these companies? Is that so much to ask for?Permalink | Comments | Email This Story

We've seen all sorts of really bizarre and downright dangerous plans to change copyright law to favor newspapers, but a new one, posted at Henry Blodget's Business Insider may be the most ridiculous of all. It starts off with a bunch of really bad assumptions, and then suggests special copyright protections for publications against aggregators, including that no one could repost (even fair use reposting) any content from a daily publication for 24-hours or a week for weekly publications:

A first suggestion would be to provide newspaper and other journalistic content special protection, so that no part of any story from any daily periodical could be reposted in an online aggregator, or used online for any use other than commentary on the article, for 24 hours; similarly, no part of any story from any weekly publication could be reposted in an online aggregator or for any use purpose other than commentary, for one week.

This comes from a Wharton operations professor, Eric Clemons, and a lawyer, Nehal Madhani. There are all sorts of problems with this, starting that the whole assumption that "aggregators" are somehow the problem. We're still trying to figure out what's wrong with aggregators. Clemons and Madhani insist that Google is somehow a problem:

Using aggregators like Google and others, I can access essentially in real time the lead paragraphs of almost any story from the New York Times, the Washington Post, or indeed any other major news service.

Okay, that leaves out some rather important details. First, those newspapers can very easily block Google News via the magic of robots.txt. Second, if the only value you, as a publisher, provide, is the lead paragraph, then you're not providing much value and you deserve to go out of business. Third, and most importantly, the whole point of this is that Google News sends those sites tons of traffic. This is why "search engine optimization" is such a huge field today -- because most sites want that traffic. To argue that the same traffic is somehow damaging is ridiculous.

But Clemons and Madhani ignore all of that. Instead, they claim that Google News and similar aggregators are why "print media publications are dying." Except they provide no evidence for that statement, because there is none. Revenue from those publications has been in decline for many years -- well before Google and the internet existed. The biggest problem many of the bigger publications faced was taking on ridiculous debt loads. On top of that, most of them failed to provide value to their community, as competitors stepped in to serve those communities. That's not about aggregators.

The proposal also makes a few other whoppers:

The net is a pretty robust institution by now, and if we were suddenly not able to access articles from the Post (Washington or New York) until they were 24 hours old the net would, indeed, survive. In contrast, big city newspapers are dying from the east coast to the west, and without that change to reuse of newspapers' content, it actually is not clear that investigative journalism as we know it will survive much longer.

This is hogwash, frankly. There is plenty of new investigative journalism going on, done by institutions who are putting in place smarter business models. Telling aggregators they can't point people to news for 24 hours (or a week in some cases) is just ridiculous and would do a hell of a lot more harm by effectively hiding stories.

Of course, the most ironic of all of this is that this little bit of pure linkbait is published on BusinessInsider, which is famous for republishing huge chunks of articles from other sources with no commentary whatsoever, and just a link back to the original.Permalink | Comments | Email This Story

With the latest round of ACTA negotiations going on this week in Washington DC, following pressure from various public interest groups, a hasty lunch was organized that was apparently quite informal. Attendees from the event have been posting their notes, and there are a few interesting tidbits. James Love notes that US negotiators don't seem to realize or care that ACTA goes against US law, as they note that the US will just ignore the parts that don't mesh with current law. Other countries are probably out of luck though:

The U.S. negotiators at the ACTA meeting have, over the past year or so, been remarkably indifferent to the fact that the US positon in the negotiation runs counter to about a dozen U.S. statutes where remedicies are now limited by statute, contrary to the plain language of the ACTA text advanced by the U.S. government.

At the lunch meeting the U.S. negotiators explained the reason for this -- they said it was obvious that regardless of what the ACTA provisions say, the U.S. can ignore the provisions in cases where there are statutory exceptions. "It is not necessary to say that in the ACTA text" I was told. "It's obvious."

At the lunch there was discussion among the Australian, Japan, US and Singapore negotiators over this issue. Some delegates pointed out that the U.S. had spent a lot of time talking about the fact that this was an executive agreement, and therefore "could not" change U.S. law. Therefore, they argued, it was understood that ACTA would grandfather in any inconsistency between U.S. law and ACTA. People were not so sure how this worked for other countries in the negotiations -- including those where the ACTA provisions would clearly require changes in national laws, if taken seriously. Some delegates indicated that it was hard to understand what ACTA meant, at this point, given the many brackets in the text, and a lack of understanding about how the "general" and "high level" provisions of the ACTA would apply to a country's actual laws. Other delegates said the issue of exceptions to ACTA obligations, while important, had not really been addressed in the negotiations.

Yes, it appears we're negotiating an agreement where the US isn't too concerned with the fact that it goes against key points in US law because we'll just ignore the parts we don't like. But, you can bet that we'll put massive pressure on any other country that tries to do the same. And, when there's any discussion of improving US law, we'll be told we can't, because of our "international obligations" under ACTA.

As for that last point about how "it's hard to understand what ACTA meant" at this point, Michael Palmedo from American University sent over his notes from the meeting, which I've published below with permission. The key scary point in his notes was that the top European negotiator, Luc Devigne, doesn't seem to realize or care that this is supposed to be an "anti-counterfeiting" agreement, but insists it's an "intellectual property agreement." Perhaps they should rename it, then. Here was the key part:

Luc Devigne (Head EU Negotiator) is gung ho that patents will be in. He
thinks that medicines have been addressed and therefore medicines are
not an issue. He asked more than once how you could have an 'IP
Enforcement' treaty and not include patents - and dismissed suggestions
that ACTA was specifically an 'Anti-Counterfeiting' treaty rather than
a broader enforcement treaty.

When you compare both of these points from Palmedo and Love, what you come up with are negotiators who are negotiating an agreement without much concern for what the agreement is supposed to be about or what it will actually do. That's downright scary.

Anyway, we've included Palmedo's full notes after the jump, so click on through if you want to read the differing views on patents, safeguards and key issues like access to medicine.Permalink | Comments | Email This Story

Just a few weeks ago, we wrote about an economist who tried to apply the whole CwF+RtB concept to the porn industry. Apparently, some porn execs have been doing exactly the same thing. Private Media Group is a publicly traded, multi-million dollar porn company, that has been a leader in porn in Europe for many, many years. The company just went through a management shakeup, bringing back an old CEO, Berth Milton (the son of the company's founder). In discussing his initial plans, he said that the internet "turned into the worst thing that's ever happened to the adult business." But, if you read between the lines, he isn't saying that it's the internet that's the problem, but that the internet pulled the rug out from old business models. He immediately followed it up by saying:

But there are also plenty of opportunities. There are ways of making money from non-paying traffic and that's what Private is going to do. I can't reveal anything more about our strategy, but we're going to be more and more free, which will help us recruit paid subscribers.

That was just a few weeks ago... but he's now moving forward with those plans, and is saying that he wants to embrace "pirates," in a new interview with NewTeeVee:

"We will be extremely happy the more people are pirating our content and the more they look at it."

Why? Well, it looks like Milton has come to the same conclusion as many others in terms of content business models: set the infinite goods free, and look for ways to sell the scarce. He realizes that fighting unauthorized access is a losing battle, noting that he just has to "look at my own kids, because that's the best way to know where the market is going. It doesn't matter if I tell them that it is illegal to download. As soon as they close the door to their room, they download." As NewTeeVee explains:

In short, Private wants to go from making money with porn to monetize actual sexual experiences. It recently teamed up with a San Francisco-based swingers club to shoot a movie, and it wants to turn some of the lessons learned into a business, connecting people involved in alternative sexual lifestyles through exclusive websites. This will first be tested in Europe, where Private is already in negotiations with a swingers community site as well as a hotel property, but Private could eventually import it into the U.S. as well.

Milton also expressed optimism that advertisers will eventually start to embrace adult traffic, and said Private would offer adult toys and other additional products for sale. Private will make 95 to 99 percent of its revenue in these areas in five years, he predicted, adding that DVDs will be dead by then.




He makes some key points in the interview that really apply to so many other industries as well. He admits that, in the short term, this is a challenge and that "our easy way of getting revenue will disappear," but in the long term, it's a huge opportunity, because: "there's never been so many people watching adult content." He points out that the focus is on making money from "things you can't copy." Unlike execs in so many other content industries, it seems like Milton really recognizes why this is an opportunity, rather than a threat. It's amazing that so few entertainment industry execs have figured out the same thing.Permalink | Comments | Email This Story

Nearly five years ago, we wondered what would happen when the generation that grew up with the internet and social media started running for office. The idea was that when you're kids, you often do silly things that you regret later in life. In the past, those things fade away as memories. However, these days, many of them are now recorded for posterity and easily findable on a search engine. We've wondered if this will lead more people to brush off youthful indiscretions, but there's another possibility as well. Perhaps it will become more standard for kids to change their names as they reach adulthood. That, at least, is the suggestion made by Eric Schmidt in discussing how society hasn't yet come to grips with a world in which so much data is recorded and available. Of course, it's a pretty simple database mapping to link one to the other, so I do wonder whether or not that really makes a difference for other than the most basic of searches.

Still, I often find these discussions by adults to be a bit condescending towards kids. Yes, kids do all sorts of silly things, some of which they may regret later, it's not as if everything they do is regrettable. On top of that, I tend to believe kids are a lot smarter than many adults make them out to be. While there may be many things that make adults cringe, I would bet a lot more kids understand what they should avoid doing online than adults give them credit for.Permalink | Comments | Email This Story

Reader ScaredOfTheMan points us to the news that a chair designer is suing Disney for allegedly using one of "his" chairs in the movie Alice in Wonderland. He's demanding a $50,000 "decoration fee." We've pointed out the ridiculous lengths filmmakers must go to these days -- with lawyers scouring every part of a film to make sure no intellectual property is used without a license, but at some point you have to just ask what these people are thinking. Imagine if every chair in every movie required a "decoration fee." And if we're doing chairs, then tables must be included as well. And couches. And doors. Don't forget the windows. Wall paper on the walls? Did you pay the designer? Welcome to the logical conclusion of permission culture run amok.Permalink | Comments | Email This Story

What is it with old, out of touch and just downright wrong music industry folks slamming things they just don't understand? Following U2 manager Paul McGuinness' recent rant, rocker John Mellencamp has announced that "the Internet is the most dangerous thing invented since the atomic bomb," and that "It's destroyed the music business. It's going to destroy the movie business." Funny. If it's the atomic bomb, it seems that living here in the nuclear winter is actually quite nice. After all, more new music is being released than ever before in history, more artists are making money from their music, and the overall industry (if you don't just look at direct music sales) appears to be continually growing.

That's a funny sort of "destroyed" industry, and a funny sort of atomic bomb. The music industry appears to be absolutely thriving. It's true that the selling music business may be having some trouble, but that's not the music industry. So why does the press simply take the obviously false claims of folks like John Mellencamp and repeat them? Aren't journalists supposed to point out when people say things that are false?

Either way, this isn't the first time Mellencamp has made this sorts of claims. Last year, he wrote an article about the mythical good old days of the music industry, where apparently his success came from the ground up -- as compared to today... when it's all top down. Of course, that made us scratch our heads, because Mellencamp was a major label artist, who benefited tremendously from major label (i.e., top down) promotions. And that was fine. Because there was no bottom up option in those days for most artists. Yet, today, we hear about totally independent artists building successful bottom up careers all the time. So, once again, it seems like Mellencamp has a view of the industry that might sound good from where he's sitting, but don't seem to reflect reality.Permalink | Comments | Email This Story

As a whole bunch of you have been submitting, apparently Apple yanked Grooveshark's iPhone app after receiving a complaint from Universal Music, one of the record labels who has sued Grooveshark, and is claiming that it has not properly licensed the music. Grooveshark has argued for years that what it's doing is legal, but multiple record labels have disagreed. Still, Apple wants to keep the major record labels happy, so bye-bye Grooveshark. Perhaps they should explore creating a web app and putting it on something like the OpenAppMkt, since that's outside of Apple's control...Permalink | Comments | Email This Story

We've been following the lawsuits filed by Righthaven for a few months now. If you haven't been following the story, this is the company, funded by the owner of the Las Vegas Review-Journal, that is suing a bunch of sites (over 100, and increasing rapidly) for reposting content from the LVRJ. In many cases, the lawsuits hit message boards, where the site owners have clear DMCA protections. Also, Righthaven does not issue any DMCA takedown notices -- it just goes straight to suing. Joe Mullin has a story about Righthaven that includes a few more details, including the fact that about 30% of those sued have settled -- but for amounts ranging from $2,185 to $5,000 -- well below the $75,000 demanded. And, none of the settlements have resulted in anyone turning over their domain, as demanded. So, if we assume 30 of the lawsuits have paid $5,000 (we'll take the upper bound), that's $150,000 over the course of about 4 or 5 months. Take away the "cost" of buying the copyrights, and filing the lawsuits (a few hundred bucks) and this hasn't been a hugely lucrative business. Some of the sites that haven't settled are gearing up to fight this in court (we've heard from a bunch), and suddenly whatever Righthaven earned seems to go negative fast if it has to spend time in a courtroom.

But, even more ridiculous are the laughable claims from Steve Gibson, the guy behind Righthaven, and Mark Hineuber, the general counsel for the parent company of the LVRJ. Hineuber is claiming:

"My hope," says Hinueber, "is we will raise awareness of copyright laws, and have more links back to our site, and have less of our material infringed on the Internet."

Yeah, right. Suing people linking to you is going to get more links? Considering that some of the examples of sites being sued included one that posted just 4 paragraphs of a 34-paragraph article... with a link, it seems that these lawsuits are almost guaranteed to lead to less linking.

Gibson keeps claiming that his is not a legal shakedown business, but a technology business. This is pretty laughable too. If they invested in technology beyond "searching Google," they've wasted money here. But even more ridiculous is the claim that this somehow makes business sense:

"Since the advent of the Internet, there has been an ocean of infringements of copyright that have gone unaddressed," Gibson says. "I've also seen that many media companies have been facing financial difficulties. I was inspired to pursue technological solutions and marry them with the available legal machinery."

Actually, no, that's not true. It hasn't gone unaddressed. Lots of companies have tried suing, and so far it's been a dismal failure, costing a lot more money than it ever brought it and calling much more attention to the ability to infringe. To ignore that basic history is pretty laughable.

Amusingly, the article also has the Righthaven folks admitting some "kinks" that need "to be worked out," such as the time it sued the very source for an article (apparently, this has happened more than once). In the one case that we wrote about, after that came to light, Righthaven dropped the lawsuit. I'm guessing that after some more lawyers start fighting back against Righthaven, it's going to discover quite a few more "kinks" in its system.Permalink | Comments | Email This Story

Back in 2003/2004, both the music and the mobile industries became infatuated with ringtones. These short snippets of music were selling for 2.5 times (or more) what a single (full) music file was selling for, and the market was growing rapidly. Of course, some of this was due to incredibly shady practices, such as tricking people into thinking they were buying a single ringtone, when they were really signing up for a monthly subscription. However, from the very beginning of the ringtone revolution, we were amazed at how many folks in the industry talked about ringtones as a savior. As we pointed out in 2004, it wasn't hard to predict that ringtone sales would peak and fall. First of all, it would become increasingly easy to take music that people had from elsewhere (authorized or not) and convert it to a ringtone, and secondly, it wouldn't be all that long until unauthorized ringtones became easy to set up as well.

But the industry has a way of overhyping a fad that's happening "now," and betting it will be its savior.

And, of course, exactly what was predicted way back when is now coming true. The ringtone market has been on the decline for a few years now, as people realized they didn't need to pay exorbitant prices for a tiny snippet of music anymore.

This is why we should think carefully whenever we hear people claiming that "app stores" are the new saviors of various content industries (or, for that matter, the mobile industry). While app stores are a bit more defensible than pure ringtones, it's likely to still face the same basic trajectory, as people realize that apps are just data, and there are increasing opportunities for more open solutions to route around locked-down versions. People seem to think there's some sort of magic in "apps," but they're really just the same sort of digital content that has been hard, economically, to monetize long term. There are ways to do it, but simply assuming that apps alone will be the answer is likely to end in disappointment.Permalink | Comments | Email This Story

There have been a couple of new developments in the saga of the suburban Philadelphia school district, the Lower Merion School District, that was sued by a student, after that student was disciplined (supposedly for eating candy) using photos taken by secretly installed and used webcam spying software. The school initially claimed that it only used the software 42 times, but an investigation founded 58,000 photos were taken -- including hundreds of another student, who has now also sued.

As stories came out about administrators enjoying spying on students -- referring to it as a window into their own "little... soap opera," the FBI got involved. However, the prosecutors are now saying that they won't bring charges, because there is no evidence of criminal intent. That shouldn't impact the various civil lawsuits, of course.

At the same time, Julian Sanchez points us to the news that after all of this, the school district has finally put in place new policies designed "to govern the use and tracking of student laptops and other technology." Seems like, perhaps, that should have been in place a wee bit earlier.Permalink | Comments | Email This Story

Apparently, a mall in California tried to put in place rules that barred people in the mall from approaching those they did not know and talking to them about anything other than shopping in the mall. It specifically disallowed:

"approaching patrons with whom he or she was not previously acquainted for the purpose of communicating with them on a topic unrelated to the business interests."

The goal was to prevent pitches and sermons and such -- and it was even used to make a "citizen's arrest" of a minister who was preaching at the mall. However, a court has rejected this rule, as a violation of free speech rights. Now, my first reaction to this was to wonder why a private corporation could be found violating free speech rights -- as the US Constitution only says that the government may not limit free speech -- private corporations can, indeed, limit speech. However, this was an issue having to do with California law, where the state constitution is a bit broader:

Every person may freely speak, write and publish his or
her sentiments on all subjects, being responsible for the abuse of
this right.

It may seem ridiculous to try to limit speech within a mall, as noted by the following exchange during a deposition in the case:

"If you're going to talk about any other subject (other than the mall) ... then you're prohibited from going up to strangers and speaking to them, is that correct?" he was asked by a Snatchko attorney.

"That's not correct," Farnam testified. "It doesn't prohibit you. It just means you have to come in and fill out the application for third-party access for noncommercial" speech.

What if, the attorney postulated, he is excited about the Super Bowl and says to a stranger, "Hey, hope you're supporting the Patriots," or "Hope you're supporting the Giants this week." Would that violate the rules? he asked.

"You can go in and again fill out a third-party access, if that's what a person chooses to do," said Farnam

As the Sacramento Bee noted in discussing this case:

Weather is a no-no, unless one is intuitive enough to observe how it may be affecting the size of the crowd at the mall. Teenagers who use the common areas for social gatherings, not necessarily limited to contemporaries they already know, are out of luck. Should someone stop you and ask directions to Sutter-Roseville Medical Center, you would be well advised to blow them off, lest your humanitarian instincts lead you astray.

However, in the end, I still find this troubling. If the mall wants to have such a ridiculous policy, with such ridiculous results, why should the government stop them from doing so? I would imagine the mall has other rules for determining who is and who is not allowed to patronize the mall. What's wrong with letting the mall create such a silly policy?Permalink | Comments | Email This Story