(I keep thinking I'll blog more regularly and it keeps not happening. Sorry about that.)

About two years ago, the United States joined the UK and the rest of the world in acknowledging that Sherlock Holmes now belonged to the public domain. Of course, the character has been used in a multitude of ways since Doyle stopped writing him and outside the US the character has been available for use for some time.

In an extensive essay for Harper's, Laura Millier looks at the character's journey from private creation of an author to public icon. In the way of many classic fairy-tale characters his story has been told, re-told, elaborated, revised, and expanded in ways that Doyle likely could never have foreseen.

Miller likens this to how fairy tales are revised and modernized - to me it echoes many of the reworks that have been done on Shakespearean characters, many of which were themselves based on existing classical story characters from things like Commedia productions.

The essay is interesting for its coverage of the character and for how the various Baker Street fandoms have developed and repurposed the character and settings. Worth a read.

False endorsement occurs when a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service

The Lanham Act governs most of trademark in the US, and section 43(a) provides the justification above. In effect, I can't claim that you like this blog unless I have your permission to do so.

So when Hasbro toys brought out a hamster with the name "Harris Faulkner" the Emmy-award winning newscaster named Harris Faulkner sued, Her lawyer claims she actually sent the toy company notice back in January and when that didn't get a response this many months down the line they decided to file suit.

More disturbing to me is the allegation that Hasbro designed elements of the toy to resemble Ms Faulkner. This led the newscaster to include claims for unfair competition and violation of her right of publicity. Interestingly, the right of publicity in the US is governed by state laws

I have to ask, though, did someone not notice that Ms. Faulkner is black? How tone-deaf do you have to be not to realize that black people have had to put up with many years of demeaning animal images. Maybe a hamster is better or cuter than some of the overtly racist animal comparisons, but COME ON, people. Pay some attention here.

...is weird, at least to Marian Call. I thought I had covered some of Ms Call's writing in the past but apparently not, so add this to our series of occasional reports from people who've braved the frontiers of Kickstarter and come back to report (see here from the Doubleclicks and here from Amanda Palmer and here from Ferret Steimetz).

Calll's blog entry from earlier this week is intended as a "you should do this" for anyone thinking of doing a Kickstarter. It even includes a template spreadsheet to help you (the prospective project organizer) figure out how much you'll need to raise. Her philosophy is interestingly different from some of the Kickstarters I've backed.

For example, she asserts that people should raise what they can raise, and deliver on that amount, rather than trying to raise what is needed for their vision project and risk not getting funded. I've backed a number of (computer) game projects on Kickstarter that had sizeable budget estimates and when they didn't make those budgets they chose not to make the games rather than produce a smaller and possibly inferior project.

Much of her other advice is quite valuable, notably "do your research and use real numbers rather than guesses" and "run (what if) scenarios". Your project may not get figuratively buried by the next Hurricane Sandy, as happened to one of her projects, but you should have a reasonable plan for what to do if something that really ought to happen ends up not happening.

Another important part of her advice: ask your fans what they want. This is part research and part fan service. If your rewards just happen to be the things that excite your fans then not only are they more likely to pick support levels you want them to pick they're more likely to share that excitement with other fans. If you don't know what your fans want then you're doing a Kickstarter at the wrong time. Yes, it's important to fulfill your dreams and produce that awesome thing that will take the world by storm but if nobody knows about it, nobody gets excited about it... well, there are cheaper vanity presses by far.

She has a full list of recommendations at the end of the blog post that I think are required reading, so I won't reproduce them here, But let me pull out two that - as someone who participates in a number of kickstarters every year - are my particular bugbears. Number one: early and late rewards. ARGH. Think it through, people. Don't make me feel second-class because I didn't back you in the first week and don't annoy me by trying to get me to go back to Kickstarter and change my pledge level because you just added a cool thing.

(For the record, I also hate the airlines' current practice of trying to get me to pay more at check-in time for a "seat upgrade". F that - if I'd wanted that seat I would've bought it when I bought the ticket. OTOH airplanes all seem to fly full these days so maybe I'm the odd one out.)

Number two: for the luvva god, do not make me go through some annoying hoops creating some other account somewhere just to get my pledge fulfillment. As I mentioned, I back a lot of games, and most games have forums for the players and fans to talk about the game. OK, fine, I'll create an account there. But if I have to skip through screens of "buy extra stuff" and then create an account just to give you money... feh, I may just click away. My time is worth something, too.

In the end, I think Call's blog post is somewhat mistitled. Kickstarter math isn't so much "weird" as it is "way more complicated than you think from the outside." But that's a pretty wordy title.

In an academic paper posted last year on SSRN, Mark Lemley of Stanford Law looks at the issues surrounding "IP in a World Without Scarcity." This is an academic paper and is a dense 60+ pages of PDF so I'm not going to be able to do justice to Professor Lemley's arguments in a short blog post. But here's what I took from it.

Lemley argues that the purpose of IP, and the laws that create it, is to create scarcity so that creators can profit. The government grants a monopoly so that the creator can prevent others from copying their invention and the creator can reap the financial rewards. If there was no scarcity what would be the incentive to pay for the creative product? If you think this sounds like the music industry since, oh, 1999 or so then you're on the right track.

Lemley points out that we're on the verge of seeing a similar thing happen to many physical objects as happened in the past few decades to purely digital objects. As (home) 3D printing becomes a consumer item, even more radical ideas are taking shape, such as small-scale creation (growing, printing - who knows what verb we'll use; Lemley uses "bioprinting") of biological items (think drugs). So take as given that scarcity is not going to be easy to create in the future - what future does IP have in that world?

Lemley assumes that people are "intrinsically motivated" to create. There's some good evidence for that: if you look at areas and regimes where IP restrictions are weak you find innovation flourishes, both at the individual and the corporate/commercial level. To organize this sort of intrinsic creativity in an era where scarcity is the exception, requires what Lemley calls "post-scarcity economics" and he believes this is one of the greatest tasks of economists in the 21st century, comparable to how post-agrarian economics developed.

Lemley's paper dives into each of these area (disintermediation, 3D printing, robotics) and gives a concise introduction to where we've gotten in the last 5-10 years. His message seems to be that it's not an all-or-nothing situation. Some things get copied a lot and yet people still pay ever more for it. Digital music is a great example of this - illegal copying and sharing are likely at historical highs, but so is the number of dollars spent on music.

It's also the case that the same technologies that make scarcity so hard to enforce also vastly lower the barriers to creative expression in the first place. Making and publishing digital music is easier now precisely because of the technologies and systems (YouTube, the Internet, cheap home computers) that enable copying and sharing.

Lemley is also realistic that those with the current monopoly powers will fight the loss of those powers and likely can delay the (as he sees it) inevitable for some time. In effect, the current IP infrastructure makes it inevitable that any transition away from that infrastructure will have to be gradual.

In the end Lemley is not offering solutions to the problem, though he believes our experiences with the upheavals of the last two decades offer valuable lessons. Among them: you have no right to have the government intervene to protect your monopoly, and we should resist the expansion of IP rights beyond targeting infringers, particularly when that expansion would threaten the growth of new technologies. Too bad the judge in Aereo didn't read this paper.

I finally took time to watch Crash Course's Part 4 on "Patents, Novelty, and Trolls" (previously I mentioned the series starter, and episode 3 on copyright). As the name implies, this episode attempts to teach people about the current state of patent law.

Stan begins by covering the basics of patents - what is eligible. Since this is a beginner course, he simply mentions that natural sequences (genes) are not patent-eligible since Myriad and moves on. Would that the world were so simple. Likewise, the concept of "nonobvious" is kind of easy to describe at a simple level but once you start digging into it the waters quickly get murky. Ditto for the video's treatment of trolls, and Stan acknowledges as much.

The episode covers utility, design, and plant patents. That last one was new to me. I didn't realize you could get a special kind of patent on a grafted plant growth. Apparently very few of these things issue in any given year, but they do exist.

The whole point of creating is affecting other people.

In a short piece on John Scalzi's "Whatever" blog, author, actor, and publisher Felicia Day comments on her new book You’re Never Weird on the Internet (Almost). Scalzi runs these pieces often, inviting authors with newly published works to talk about the big ideas and geneses of their books. Usually those are SFF novels, but sometimes other authors appear. In this case, Ms. Day's book is part humor, part memoir, and part commentary on the technosocial milieu of the early 21st century, as seen from Day's point of view.

That POV starts as an awkward fangirl looking in from the outside and goes to... well, she still claims to be awkward, insider looking out at a large fan base and around her at other people who are what passes for stars these days. And in this blog entry she looks inward, and shares what motivates her. Which, generally, is other people.

That is, Ms Day explains, what it's all about. It's about creating something you can give to others, about creating a thing that has an impact on others, about making something that exists so that others can repurpose it.

Two months ago, advertising agency Ogilvy did a study of videos posted on peoples' Facebook pages and concluded that "73% of the most popular videos on Facebook had been ripped from other websites."

There's a whole side issue here I don't have time to write about, relating to how Facebook has make itself as much of a walled garden as it can, thereby training people that they can't just link to other content, they have to put content into Facebook itself. That they follow this training with other peoples' (video) content isn't hugely surprising. But onward.

Today the company announced that it would begin limited roll-out of a "video matching" technology that would alert creators when matched content was found in a Facebook upload. That seems like a fair first step to me, but it leaves open a lot of questions.

First (OK, I have to go there) why is Facebook still encouraging people to upload videos rather than link to them? Second, what is the success rate of this matching technology, and what's its false positive rate? Third, does the technology have any idea of the difference between a clip (which might be argued to be fair use) and a full-on copy or very long grab, which are much more likely to be illegal copies? Fourth, why is this only being made available to "a small group of partners"? Some pigs are more equal than others, I guess.

On the third point, the BBC story claims that, "...the tool will be able to detect when small portions of stolen content are used in another video without permission." Which is exactly and entirely the wrong way to go about this. Small portions are exactly the kind of thing that are important to use for educational, critique, and other fair uses. If Facebook is going to waste peoples' times chasing after this sort of minima then resources are going to be diverted from the most damaging instances of bucket copying.

They say that the first step is admitting you have a problem. Awesome, step one complete. Now about that effective response...

In the United States we are used to an IP regime where the state grants the IP rights (usually limited monopolies) but does not itself own IP. That's not universally true, though. Many other countries rest control of local IP with the government and control its use and export. Two of those countries are Bolivia and Ecuador.

This matters because, as Lisa M. Hamilton reports for Harper's, these countries control the germ plasm (i.e. the biological IP) for quinoa. It's possible that quinoa is just another flash-in-the-pan fad-of-the-month food. But it's also possible that this crop, which contains a variety of nutrients and is the only known plant to have a whole protein, is an important resource in the fight against world hunger and a possible way to stave off the crop depradation

In order to do that, though, it would need to be adapted to grow at something other than the high, cold, barren conditions where it now thrives. If you could get hold of the best seeds this would not be a huge problem. Even in the days before GMOs the Andean potato was taken (by Spanish conquistadors) and crossed with other plant species to get something that now grows pretty much everywhere in the world. Today, though, the best seeds are locked up in the national reserves of Bolivia, which is well aware of the value of its intellectual property, and has no intention of sharing it.

That seems so unfair but consider the history of the potato and that Bolivia is one of the poorest countries in the world right now. The country and its peasant farmers saw not a penny in compensation for the potato so why should it now give away what might be its last and most valuable crop? It is, as the Bolivians say, about food sovereignty. In the end, science may trump sovereignty, as there are wild plants outside Bolivia that share many of the desirable traits of quinoa. Scientists working with those may be able to do an end run around the seed blockade and cross-breed those related wild plants with domesticated crops to get the desirable traits. Or maybe the whole thing will become moot, as no grain is likely to be a significant displacement for current corn and wheat in time to deal with the shifts of climate change.

To me it's like watching a train wreck in slow-motion. There's no perfect outcome here - the best I can hope for is everyone to have a change of heart and the Bolivians manage to negotiate some kind of licensing for their plant IP that helps lift their peasantry out of grinding poverty and gives the world more healthy feeding options.

This is the titular plea of a Sunday Review column written by David Byrne. Byrne argues that these days should be a golden age for music, with more music being made and people growing used to paid services such as Spotify, which Byrne credits with "sav[ing] a record industry that piracy had gutted." But at the same time, tales of artists receiving paltry payouts from these services abounds.

A couple years ago, I raised just this issue: is the compensation that artists get from streaming services enough? Byrne's update is a variety of "not so fast there." He argues that:

...ways have been found to siphon off a greater percentage than ever of the money that customers and music fans pay for recorded music.

So if only a trickle of pennies is making its way back to the artists, maybe we ought to be pointing a finger at something other than the streaming services. Unfortunately, contracts and non-disclosure agreements are keeping all this shrouded in mystery from the general public.

No problem, you think, Byrne isn't the general public. He's a recording artist, producer, composer, and copyright holder. Surely someone who makes and owns the music ought to be able to get information on how revenue is distributed, right? Nope.

Byrne, having been told that royalty calculations were "...disclosed [] only to copyright owners" went to his own distributor, and hit a wall when they told him "You can’t see the deal, but you could have your lawyer call our lawyer and we might answer some questions.”

Byrne also reports on his frustrations trying to get simple answers to questions like "What's the general split of ad revenue on YouTube?" Byrne again credits Spotify for trying to make things clearer and notes that its data show that 70% of what listeners pay Spotify goes to the labels that hold the rights, and who often demand advance payments even before music starts to stream. What Sony, BMG, et al do with their 70% so that only pennies trickle into artists' bank accounts remains a mystery.

Certainly what they are not doing is managing the physical processes they used to manage. Disks, packaging, transport, distribution, inventory control, etc. are all valuable services when you're selling physical goods and in the days of vinyl and then CDs the labels handled these things and paid out money for each of them. In the era of electronic distribution all those things that previous were costs instead go into the labels' profit margins. In addition, the money that labels get from streaming services is mixed with all the other sources of profit (or loss) from the labels' other businesses, cranked through some arcane formula and only then will the label decide how much it gives to the artist. Your record might stream more on Spotify than mine but that's no guarantee you'll see more revenue at the end.

Recall that a few months ago we were just discussing how e-book sales calculations are a black art. Profits from streaming are even moreso, and it's not likely to change because it's in everyone's interest - except the artist of course - to keep it this way. So remember this next time you read a complaint about how meager the money is coming from streaming services. Not only is not the streaming service's fault, the service might even not be able (legally) to talk about why it's not their fault.

I mentioned some months ago that I backed the Kickstarter for The Wrecking Crew and this weekend I finally got to sit down and watch the film. If you're a music nut like me then this film is a must-see. It's frankly thrilling to see the bass that did the line we know from the Peter Gunn Theme and the horn from the Pink Panther theme.

Of most interest to Copyfight are the discussions of ownership and compensation. The Wrecking Crew were studio musicians. They were the sounds on all those Beach Boys records, Nancy (and Frank) Sinatra records, Sonny & Cher records, The Mamas & The Papas - the list goes on. Members of the Crew were heard on every Record of the Year for over two decades. But their names rarely appeared - the producers would pay the Crew union rates (or sometimes less) and the names on the cover would be the names of the band.

There was a big to-do when the public found out that The Monkees didn't play their own instruments on their first hit record, but few people know the degree to which this crew of studio musicians went from artist to artist, album to album, playing and oftentimes inventing sounds that would become iconic for a generation.

The Crew took these gigs because they were (in their own words) just the lucky ones whose phones rang and who could be available that day. There was a long line of musicians hungry for those studio gigs. Once established, though, studio musicians could find themselves with great steady work - one recounts years of making more money than the President of the US. So what if your name never appears on the album?

It's a struggle we see playing out over and over today - creators struggle to get noticed, but as long as the money's good and the work is steady, how much does it matter whose name is on the front? Today we have thousands upon thousands of creators (writers, photographers, musicians) who can self-publish or who have tremendous freedom to put their moniker on whatever they do, but who in turn struggle to get the kind of income that would let them go on creating great works.

...or so opines Stan Muller in Crash Course - Copyright, Part 3. In his thought experiment he goes through a day of what we'd consider pretty normal activities - retweeting, taking and posting a video at a friend's birthday party - and a couple unusual activities like getting a tattoo made from his own sketch of a copyrighted work. (Long-time readers may recall we talked about copyright and tattoos back in 2011 and one of my predecessors here noted a case as early as 2005).

Stan points out that not only does this set of pretty mundane things put him on the hook for millions in statutory liability claims, it also puts him (or at least his tattoo) at risk of being impounded or destroyed. If that seems more than a bit silly to you then your'e in good company.

The episode deals with a number of exceptions and limitations to statutory copyright boundaries, including fair use and first sale, spending most of its time on Fair Use components, uses, and defenses.

I should also note that Crash Course in general is free and draws support from subscribers through Patreon.

TorrentFreak is reporting that the four founders of The Pirate Bay have been acquitted of criminal charges in a Belgian court. This is not entirely surprising since the charges arose from the period 2011-2013, during which at least one of the four was already in jail and the site itself had been sold to another entity. In essence, this is the court saying that they believed the defendants' stories of non-involvement during that period. Other legal troubles are unaffected by this decision.

The Supreme Court has denied a cert petition in the Oracle vs Google fight over Java. This is a victory for Oracle, as it won in the CAFC and that decision now stands. It is probably also a loss for everyone else and may well be a significant blow to Java as Oracle is now free to charge everyone for use of the (buggy, security-hole-ridden) language.

Google still has a fair use defense it can try but if there is not a team of engineers inside Google hard at work producing a Java-free version of Android I'll eat my hat. The decision to extend copyright protection to programming APIs is threatening to nearly everything that modern programming is about. Even Microsoft and Apple at their most monopolistic never tried to claim that they should be paid by people who wanted to interoperate with them.

All that said, I wouldn't read too much into this event. The denial of certatori happens a lot - some years well over 80% of petitions are denied - and there's rarely any explanation given. Court watchers love to speculate about these things - my personal theory is that SCOTUS didn't see a compelling reason to enlarge its ongoing fight with the CAFC - but all you can say for sure is that Google and its amici failed to make a case compelling enough that four justices agreed that it should go on the Court's docket. Who knows what they'll say the next time around.

The EFF has a nice piece up about "European Copyright Madness". At issue is a UK High Court decision that effectively says people aren't allowed to rip (mix, burn!) their own CDs. Uh, yeah. Guys, we fought this fight last century and the anti-ripping forces lost.

Jeremy Malcom, the column's author, points out that the root cause is the European Copyright Directive, which the High Court might have interpreted correctly but in so doing have revealed its broken-ness. Broken in the sense that it's detached from reality. It deals with hypotheticals, such as "hypothetically, you might buy a copy of the same CD to play in your car that you already own to play in your house." A quick glance around my personal household (two adults, two music-loving kids, two cars) says that this logic means we would buy six copies of every CD.

That is... an interesting conclusion. And I'm with Malcom in pointing out that if your process produces nonsense conclusions then there may be something wrong with the premises you're using at the start. In this case, it's the premise of economic harm and the idea that the value I'm paying for in buying music is somehow localized to one device that plays back that music.

Yeah, not so much.

Amazon is going to change the allocation formula for its KDP Select program.

I've talked about KDP Select before and I'm not impressed with it. Its fundamental problem is that it's a giant pile of authors competing for a fixed amount of money. Amazon decides how big that pile is and how many authors get to compete for it.

I'm tempted to make some Hunger Games reference here, because I think there's already a natural mechanism for pitting authors against each other - it's called "the marketplace." Whether it's a store shelf, a quick-hit rack in the airport, or an electronic catalog every author is already in competition with every other. Some wag once quipped that Isaac Asimov's biggest competitor was Isaac Asimov because he'd been so prolific and his books stayed in print. The result was several shelf-feet (back when that was a meaningful measure) of Asimov books. So be it - that's the system we like in this country.

But that existing marketplace doesn't place any caps on the size of the buying pool. If I want to splurge and spend $100 or hunt for a $10 bargain that's my choice. If I'm enticed to make more or bigger purchases then that expands the amount of money that can flow to authors. The intermediaries (booksellers, publishers, etc.) may take their cut but they don't impose arbitrary caps.

Enter Amazon, everyone else move over and give this gorilla some room. I've railed about Amazon's policies enough in the past - I'm not going to repeat that. This particular move has the effect of rewarding one kind of book-writing over all others and gods help us we do not need more worthless bloat in our literature. That itself would be reason enough to dislike this move.

Finally, I want to pull-quote the end of Peter Wayner's piece:

It’s easy for writers to feel powerless as the one dominant company shifts gears on short notice—and, ultimately, it seems like they are.

Nobody says you have to participate in KDP Select, but if you do you should understand the deal you're making with this particular devil

(ETA: as I was writing this, someone sent me a link to John Scalzi's blog entry on the topic and what he says mirrors a lot of what I planned to write. But I wrote my piece anyway because a blog entry that just says "What he said" is kind of dull.)

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