Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Pop talks about the music business, then and now, and how he has come to understand and be happy with his place in it. For him, music is a passion and a joy and likely never will be a sensible business proposition. He does suggest that others who want to be in the business get a good entertainment lawyer, though, so they don't have to wait as many decades as he did to see the royalty checks finally come in.
Our friends at the John Marshall Law School in Chicago sent me an announcement for their 6th Annual Symposium that is taking place in a couple weeks. The theme this time is "Art Meets Law: The Intersection of Art and Intellectual Property" and features filmmaker and political critic Michael Moore as a keynote speaker.
The event will take place at the School, 315 S. Plymouth Ct., Chicago, on October 24th. The Symposium will be a day-long event (8:30-4:30) with Mr Moore's keynote scheduled for lunchtime. Contact Christine Kraly (Public Affairs Director) at 312-427-2737 ext. 171 or email@example.com if your'e interested in attending.
As Masnick notes, there's not much new in here. He frames it as Google trying to "appease" Hollywood and notes that the studios have done a shit-poor job at managing how their content ranks in search results. Apparently SEO still stands for Somebody Else Ownsit at the big studios.
Google's proposal to help with this is to include DMCA takedown notices in its rankings - at its crudest form, such a policy would cause sites for which Google gets notices to be lowered in the rankings. Unfortunately, the obvious consequent of this is just to encourage a further barrage of bogus takedown notices. Since the costs are low and the effect significant, Google may be setting up perverse incentives that allow its search results to be distorted by anyone with an active enough legal department.
Compare and contrast with the latest DMCA policies from github, the popular online repository for source code and development projects. Github is creating a policy that encourages discussion and limits effects: it will notify people before takedowns happen, and it will limit blocked material to things that are specifically identified, which is very important in a coding world where people branch, build on top of, and reuse entire source trees. To use a physical analogy, github's policy is like cutting down one or a few trees that specifically need removal, rather than clearcutting whole stands.
The thing that I notice in common between Google's and github's approaches, is that both organizations are working toward more transparency. Each has evolving policies, and each is taking different steps to keep people aware but in general they seem to share the value that knowledge of what's going on is important to all parties. That is something I'd like to see emulated everywhere.
The bad is that there's a limited number of spaces to be had and a limited number of subscriptions that any one person is going to want. You will likely be able to pay for quite a few subscription for the cost of a yearly cable bill but I suspect we'll see rapid consolidation in this market - there should be one place to go to pay for your Big Bang Theory AND your Game of Thrones. The logical next step is for someone (and my money is on Amazon right now) to aggregate these offerings.
The devil, as always, will be in the details - what is in the offering and is it going to be enough that people don't have to buy multi-hundred-dollar cable subscriptions to get the HBO shows they want? And most importantly, when will ESPN follow suit?
The reason has much to do with students' stubbornness and innovation and with the antique models textbook publishers have been using. The answer for both sides may be electronic texts, which can be kept down in price so students may be willing to buy them and for which there is no used market so publishers can keep forcing students to buy new copies every year.
The idea is to eliminate a simplification that is being abused. Form 18 provided a "bare bones" complaint structure in which plaintiffs in patent infringement cases could just state that the defendant was infringing a patent. Under the new rules, the plaintiff will need to describe how the defendant is committing infringement. For a standard patent case this change doesn't affect things much, since most patent cases describe specific acts of infringement. However, patent trolls currently may file massive numbers of suits, each simply claiming that some infringement happened, without providing specific descriptions. The troll is most interested in getting settlements as quickly as possible, so files the most bare-bones and quickest cases possible. If the troll is required to investigate the companies it wants to sue in order to provide a specific description for each suit then the cost of mass suing goes way up and there's less incentive to shotgun lawsuits around.
(Thanks to Greg Aharonian of PATNEWS for the initial pointer.)
Like, yes, it's true you could have learned that Adobe was doing this if you (a) thought Adobe were total slime and (b) were willing to look on Adobe's Web site for documents showing exactly how slimy their policies are.
The question at hand was whether her job as a professor included the creation and sale of artwork, or whether that sale was part of a separate profession (for tax purposes). This case directly speaks to visual arts, but is likely applicable to others who do this sort of thing - writing fiction while working as a copyeditor, selling portraits while working as a staff photographer and so on.
Music Business for 21st Century Independent Artists
Dave Kusek, who used to teach music business at the Berklee Music School here in Boston, has teamed up with music marketer/manager Rick Barker to create a video training series for new artists looking to make it outside the major label system. They're advertising it as a "free video series" (I got one of their ads) and it looks interesting. My guess is there's some hook to help pay for the work Kusek and Barker have done - if you try this thing, write and tell us how it went.
If you do want to submit a comment, there are many sites that will help you do that. Here's one from The Nation, which is urging people to get their comments in before the September 15th deadline for public comment.
In his column, Doctorow points the finger at DRM as a force that will continue to shape things long after the present debate is settled. In particular, Audible (Amazon) has locked up all the e-books (90% of the e-book market) with the willing accommodation of the publishers. Hachette therefore cannot ask its readers to move their e-books off Amazon's infrastructure (store, Kindle, reader apps, Audible) without entirely re-purchasing their e-book library. It can't even (legally) offer a tool to help users do that because that would be circumventing DRM which, say it with me, is technically illegal.
The fact that Hachette (along with all the other big publishers) has been a huge proponent of DRM since Day 1 is an irony to be savored, though we readers will end up paying for it in the end.
Hasbro is, of course, the giant toy-making conglomerate and Shapeways is advertising itself as "fast and affordable" 3D printing - a marketplace for people to make, buy, and sell 3D-printed products that range from jewelry to complex devices to, well, toys.
Last month the two companies put together a joint-venture site, superfanart.com which they are trying to position as the "app store" of 3D fan art/toy making. The site has a submission and approval process (like most app stores) for 3D printed designs and has a revenue-split model, again like most app stores. According to the article it's about 10% to Hasbro for licensing, about 20% to the artist, and about 60% to Shapeways for costs of materials and manufacturing. The initial launch included the "My Little Ponies" intellectual property line; now they've added "Transformers"-inspired fan material.
That's a much lower percentage than you get for a pure software app, but in my mind the actual number is less important than the concept. Someone else might come along with a better deal to lure artists to its site, and Hasbro could just as easily license to multiple manufacturers. Some might offer the company a higher percentage for a limited or exclusive license. Et cetera - I'm sure you can think of other interesting permutations.
The other interesting thing is that this appears to be a true effort by a big-name holder of properties to embrace the fan community. Hasbro controls a number of things that people will be wanting to make fan art from and if there are legitimate ways to do that, it's a far better situation than corporations screaming "piracy" and suing everyone in sight.
An interesting note in a 7th Circuit case, M. Arthur Gensler, Jr. & Assocs., Inc. v. Strabala shows how judges are continuing to apply the standards of physical property to intellectual property. In this case a dispute arose over the authorship (if you will) of a building. The Seventh ruled that "design" is a form of creation of intellectual property creation equivalent to building or selling physical good. As such, it's subject to various regimes of ownership, trademark protection, and so on.
The rest of Scalzi's entry dissects Amazon't continuing use of bad/biased math, not to mention hyperbole in its arguments. He argues that this is another ham-fisted move by Amazon which has been remarkably inept at the PR side of this dispute. They may be trying to fight too many battles at once, as you can see from the news headlines: "Dispute Erupts Between Amazon and Disney" for example.
Our friends at ISRI pointed out to me that some mobile companies are now promoting the idea of a "kill switch" that would be under the control of someone other than the user. Such kill switches are supposedly for consumer protection - disabling stolen devices - but end up being a way for manufacturers, phone companies, etc. to keep devices off the second-hand market. Kill switches per se are not bad - they just need to be under the control of the person who purchases the device so they can be legitimately disabled. Like other such technological locks, kill switches are probably under the DMCA umbrella that prevents legitimate disabling or circumvention.
Amazon appears to be making a numerically based claim, in two forms. First, it is arguing for a 35 (author) / 35 (publisher) / 30 (Amazon) revenue split. It points out that 30% is what Apple and its co-conspirators wanted Amazon to take. Second, it argues that its data show a price point of USD 9.99 is better for an e-book in that it leads to more copies being sold. The number of additional copies sold is high enough to more than make up for the revenue lost on each individual sale.
This is pretty transparently an effort to recruit authors to Amazon's side. Big-house authors generally get around 20 or 25% on e-book sales and Amazon would much rather have authors complaining to Hachette about "why am I not getting 35%" than complaining to readers that Amazon is making it hard to get the authors' books.
Amazon’s assumptions don’t include, for example, that publishers and authors might have a legitimate reason for not wanting the gulf between eBook and physical hardcover pricing to be so large that brick and mortar retailers suffer, narrowing the number of venues into which books can sell. Killing off Amazon’s competitors is good for Amazon; there’s rather less of an argument that it’s good for anyone else.
Furthermore, their math about selling more copies might be true for Amazon itself, but there's no evidence that it holds up for any other retailer. Making Amazon prices so cheap that other outlets can't afford to match them is, again, good for Amazon but not necessarily good for anyone else, including those authors Amazon is trying so hard to influence.
My favorite design podcast, 99% Invisible, did its episode this week on "Duplitecture". That starts out being about the vast cities in China that are conscious re-creations of architecture from elsewhere in the world, and delves into the long history. For us Americans it's worth remembering that many of our most famous building designs (the White House, Jefferson's State House for Virginia) were themselves copies of older building ideas. The podcast's host, Roman Mars, comes out strongly in favor of "mindful iteration" as a valuable form of copy-inventiveness.
The piece estimates that "almost half the drugs approved in the United States from 1981 to 2010 would have been rejected under these guidelines". While I am still concerned about overpriced medicines and their consequences, it's still likely that in the absence of some form of protection these medicines would not have been developed. It's possible that the Patent Office will implement less draconian interpretations, but even so I cannot see an easy way out of this thicket.
Our friends at ISRI sent a note saying that Congress had gotten its act together to pass the bulkily named "Unlocking Consumer Choice and Wireless Competition Act" which includes provisions allowing companies and individuals who recycle and refurbish electronics to unlock them as part of their business.
This should serve to remind everyone that while the Internet is perhaps the most amazing commercial platform yet invented, it's also an information access mechanism for schools, for libraries, for communities, and for the public. As such it needs not to have "paid prioritization" and it needs rules that allow us to choose what we get, not the cable companies. The Internet has a public, an educational, and democratic imperatives that are every bit as important as its commercial imperative and don't you forget it.
The Canadian government has been sued by Eli Lilly to the tune of $500 million, based on similar provisions in NAFTA, because the corporation objects to a Canadian Supreme Court ruling rejecting the patent for two of its blockbuster drugs. As a result, Canadian law could be overturned by a ruling made in a secret, private arbitration proceeding.
As before I feel I should note that I am a long-time donor to MSF, but have no other affiliation with the organization.
The show is largely based on a paper published by two economists, Michele Boldrin and David Levine in which they argue against patents from an economists perspective. The very first sentence of the paper states baldly that "there is no empirical evidence that patents serve to increase innovation and productivity." In fact, they argue, the opposite is happening. Innovation and productivity in their view happen most from competition and being the first to be able to get something to market (first mover advantage).
As with many grand theories in economics, the proposed changes would include losers and risks. The losers are individuals and small enterprises who now make money from licensing. In their view such people should just go work for big companies that would pay them to do the same innovative work.
The risks come from things like medicine or nuclear power where the idea of patent protection contributes to companies making billion-dollar investments. Boldrin and Levine argue that it would be more efficient for the government to create a system of incentives whereby multiple companies could compete for the work in return for paybacks that would cover their investment. Given how massively inefficient government contracting can be today I'm highly dubious this would increase efficiency in the IP space.
Their "modest proposal" however, seemed like a good idea, which was just to reduce the terms of patents. Presently patent protection is 20 years, so turn that down to 18 and see if it makes any difference. If you get more productivity with less patent protection you could shorten the term still farther. Eventually either you'd find that less patent protection was not increasing innovation or you'd find that you'd reduced protection to zero while increasing innovation in measurable steps along the way.
We music people know payola when we see it. And what we see in Chairman Wheeler’s proposal doesn't give us any confidence that we won’t end up with an Internet where pay-by-play rules the day. We've heard this song before, and we’re frankly pretty tired of it.
Thousands of us have already told the FCC that losing an open Internet would be disastrous to the music community, and we suppose there's no harm in telling you again. But this time, we really hope you'll listen. We may not be telecom lawyers, but we get this issue pretty clearly. You have the legal authority to prevent discrimination and paid prioritization online. You only need to exercise it.
The thing he's offering is, nominally, is himself making potato salad. Yes, really. He's raising a few bucks to make potato salad. Why, then is he getting tens of thousands? Ferret's answer is, basically, "entertainment." The potato salad concept is silly and as the campaign has grown, more silly and goofy things have been added, like "a bite of the potato salad". Clearly that's not something you'd normally pay three bucks for, but so far over 600 people have thought it was funny enough to do that.
And there's the trick: make your campaign about "how you make the donator feel" and you can be more successful than trying a serious approach, especially if what you're pitching is something potentially desperate or depressing. By making this potato salad silliness feel like fun, it became something people wanted to feel involved with.
The lesson about Kickstarter or Indiegogo or any donation drive is that you get what you give
Therefore, he argues, anyone doing business with them needs to treat it as a business arrangement. If you are an author and Amazon is doing well by you, then that's great - continue doing business with them. If you are a reader and are unhappy that Amazon is making it hard to get certain books then take your business elsewhere. But whatever you do, treat it as a business proposition, not a personal/emotional proposition.
I'm sure there will be plenty of analyses flowing, and lots of people commenting on the implications of this decision. It seems like a small area of the law, but it's possible that this ruling will be used against a wide variety of nascent businesses, despite Breyer's apparent intention that the decision be read narrowly. The decision seems to go to great lengths to say that Aereo is (like) a cable company and thus should be subject to the copyright restrictions. Breyer specifically calls out a position taken by the US Solicitor General
that “[q]uestions involving cloud computing, [remote storage] DVRs, and other novel issues not before the Court, as to which ‘Congress has not plainly marked [the] course,’ should await a case in which they are squarely presented.”
That's a good theory; let's see how it shakes out in practice. My cynical side thinks the Cartel will still see this decision as a green light to go after cloud storage companies in general.