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AUTHORS

Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Aaron Swartz
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Alan Wexelblat
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About this weblog
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.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

May 28, 2015

May 26, 2015

CAFC Yer Still Doin' It Wrong

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Posted by Alan Wexelblat

SCOTUS has reversed and remanded CAFC yet again. In a 6-2 ruling (Breyer recused) the Supreme Court has held that even if you think a patent is invalid you have to behave as if it is, as regards induced infringement.

Specifically, the courts seem to agree that Cisco (in this case) induced customers to infringe Commil's patent through giving them equipment to use where that equipment itself was infringing. The case is a little tricky because it's dealing with the intersection of patent validity (where peoples' mental states are not considered) and direct versus indirect infringement, which does implicate peoples' beliefs and mental states.

I'm (still) not a patent lawyer, but on first reading I think SCOTUS got it right.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

Hi, I Still Exist

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Posted by Alan Wexelblat

Due to a series of personal setbacks I've rather let blogging fall off my priority list. Sorry about that. I will try to pick it up more. I've been doing this a long time and I remain dismayed by the trench warfare that the Copyright Wars have been in. But there's still news and I'll find some things to say about it.

Comments (0) + TrackBacks (0) | Category: Announcements

April 7, 2015

3C is Fair Parody

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Posted by Alan Wexelblat

Techdirt pointed me to a nice ruling that came down recently in New York (reported here in The Hollywood Reporter) in which U.S. District Judge Loretta Preska accepted a parody play as fair use.

The play, 3C, is a direct parody of the popular TV sitcom "Three's Company" and was running off Broadway for a couple months. Then it got a cease-and-desist order from DLT Enterainment, which owns the rights to the original TV series. The play's author, David Adjmi, argued that his play was commentary on the "ways the television show presented and reinforced stereotypes about gender, age and sexual orientation" as well as the social times in which the comedy series played (sexual liberation, exploitation of that sexuality, etc).

Judge Preska agreed that 3C copied many elements of Three's Company directly, but felt that the transformative nature of the parody was, when taken as a whole, sufficient to outweigh any claims of IP infringement.

Comments (0) + TrackBacks (0) | Category: IP Use

March 26, 2015

March 19, 2015

Patreon Buys Subbable

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Posted by Alan Wexelblat

If you're a Subbable supporter you've probably gotten several emails on this already - make sure they didn't go into your spam folder or something.

It's interesting to me to see consolidation happening in this space. The two entities had almost identical models, except Patreon doesn't support one-time payments. As AFP said, this is about ongoing support. Subbable began as a way for the Vlog brothers (see here in case you missed it) to fund their Crash Course series of videos. As that grew so did the business side of Subbable and what I think we're seeing here is another example of the "I don't want to have to run a small business just to create my art" realization. It's interesting to me as someone who once dabbled with the idea of becoming an independent consultant. Basically I loved the work I did and wanted to be my own boss.

Except I discovered that my boss was an ass who wanted me to pay attention to things like drumming up new clients and billing old ones and negotiating contracts and taking care of office supplies and and and. At the end of the day I found I was spending less time on the work I wanted to do and much more on the work necessary to do the work. So I went back to being a salaried wage slave. Nowadays I'd probably employ one of the many entities that exist to do all this (inaptly named) overhead.

Patreon fits into that role and I will be interested to see how they manage their growth. Patronage of this sort is strongly encouraged by tight interactions between the supporters and the people asking for support. If any intermediary - Patreon or otherwise - starts putting a big impersonal face on things then that risks the closeness.

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March 8, 2015

March 6, 2015

Who Made That Music?

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Posted by Alan Wexelblat

I'm really pleased that The Wrecking Crew film is finally going to see the light of day. I backed this film on Kickstarter and I've been reading along as the producers have struggled to get together enough money to manage the various licenses that were involved. I quote from one of their updates:

With over 140 songs that were licensed, each license has multiple parties involved and we are painstakingly going through each license to make sure we haven't made any mistakes.

By organizing each of these licensing issues, Danny Tedesco and his team (over 18 years) managed to ensure that the musicians involved were compensated and also the lawyers for a major movie distribution house were satisfied that they could pick up this film without risking entanglement in a copyright dispute.

Comments (0) + TrackBacks (0) | Category: IP Use

March 4, 2015

This is More Like Going Steady

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Posted by Alan Wexelblat

So analogizes Amanda Palmer in announcing her new Patreon: Kickstarter is like a date; Patreon is more like going steady.

Palmer is already well experienced with a couple successful Kickstarters, as well as having taken a lot of flak over her success with such fundraisers and how the money was to be used. Each of those was for a specific project, event, tour, album, etc. The Kickstarter funded the target art, and associated materials. However, as many people have discovered, doing a good Kickstarter is a lot like running a small business. If what you want to be doing is making great art/music - and Ms Palmer has a lot of projects she wants to get done - then running a small business might not be the right way to get what you want.

Enter Patreon, a site where people can subscribe at user-set rates, can be in communication with the artists they're supporting, and can get "things" from the creators they're backing. As Palmer says, the creation of a lot of good art requires "ongoing support"; doing one-off asking for every project she has in mind would be an insane amount of overhead. So why not dispense with the overhead and just ask people directly to give what they want for the things Palmer is going to make?

And because she's still Amanda Fucking Palmer she is "planning to release pretty much all [her] artistic content for free." In my mind this is one of the most important parts of the project. When MIT put its course materials online for free it made a statement that the value of MIT wasn't captured by any set of lecture notes; likewise, Palmer is asserting that the value she's providing in return for this patronage is not captured in any song, picture, podcast, or whathaveyou. Her fans get value from knowing that Palmer is out there making more great art, communicating with her, and in the process making the world a better place.

That sounds like airy-fairy stuff on the face of it but as of this writing over 1700 patrons agree with me that it's a real and important dynamic. Two years ago, Palmer asserted that what she was doing was the future of music. I think she's doing it again.

Comments (0) + TrackBacks (0) | Category: Interesting People

February 27, 2015

Counting E-Book Sales is a Dark Art

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Posted by Alan Wexelblat

I swear I'm not entirely going to turn Copyfight into a blog of "people Alan Wexelblat is interested in who do interesting copyright things." It's just that kind of month.

With that said, Ferret Steinmetz has just published his first novel, and he has some clear advice for readers who want to help out: pre-order. Steinmetz used to work as a book buyer for Borders and Waldenbooks; the business has no doubt changed somewhat since he left, but the basics are still probably true. Pre-orders matter because they encourage stores to stock more copies and once the stores have invested in those copies there's incentive to promote the book in order for the store to make its money on the investment.

It's true that a store can usually return unsold copies but stores have still paid costs beyond the per-book price, not least of which is that they can only invest in a certain number of books and if one of them doesn't sell then the store has missed out on potential sales of a different volume. So their incentives remain high and thus it's important to authors that they have a lot of pre-orders in order to convince retail outlets to get on board.

There's also the perennial question of physical versus e-books and as often happens, it comes down to discounts (as we've been discussing for years). Authors get more per e-book copy sold at a given price, but e-book discounts come out of authors' pockets. The complete inability to get reliable data on e-book sales may also hurt, but it's all guesswork right now in the absence of data.

So, e-book sellers, how about publishing these data?

Comments (1) + TrackBacks (0) | Category: IP Markets and Monopolies

February 24, 2015

February 19, 2015

February 18, 2015

What Do You Do When You Discover You're a Copyright Thief?

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Posted by Alan Wexelblat

If you're John Green, you try to make it right. I'm a casual vlogbrothers fan but never thought I'd be writing about them here. However, the video linked above concerns an interesting copyright situation.

In the piece, Green describes how a particular quote - from a book he wrote seven years ago - is widely attributed to him. In fact, he doesn't remember writing that line but then again he doesn't remember writing a lot of the lines. He talks about being on the set of a movie being made from his book and asking the director why something happens, only to be told "because it's in the (your) book."

But then something surprising happens - a claim is made that the quote in fact does not appear in the book. Curious, Green downloads the illegal torrent of the published work in order to be able to search it. You could write a whole column about how broken that is - the DRM on his own e-book prevents him from searching it - oh, wait, Cory Doctorow has already written that column, many times.

Searching the file, Green comes to realize that he did not in fact write this quote. Further research shows that it was written by a commenter, a fan. Meanwhile, Green's organization has been selling posters using this quote and there are hundreds or thousands of places scattered all over the Internet claiming that this is Green's quote. Probably nothing can be done about those, though the video should serve as an authoritative reference for people who want to argue about it. But something can be done about the appropriation, even though it was inadvertent. In the piece, Green describes how they've gone back and figured out how much likely should be owed to the person who originated it, and how it's been paid. That itself is pretty awesome.

This incident serves as a jumping-off piece for Green to note just how "messed up" our copyright system is, a topic that I'm hoping to hear him go on about at some length through his free online education series, Crash Course. Stay tuned for Crash Course: Intellectual Property.

Comments (0) + TrackBacks (0) | Category: IP Use

February 13, 2015

A Difference between Content and Carrier

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Posted by Alan Wexelblat

I've not talked much about the theory of patent "exhaustion" - mostly because I'm not a lawyer and will probably botch it up, but here goes. Patent exhaustion is somewhat similar to first sale doctrine - it holds that once you've sold a patented item you give up your control over that particular item, and also you implicitly grand the purchaser of the patented item a license to use it as they see fit. The IP Law blog article linked here has more details.

This is relevant background to a case that was decided (overturned in fact) at the CAFC this week. Patent-holder Helferich Patent Licensing had appealed a loss lower down regarding patent exhaustion. The question was whether the fact that Helferich had licensed certain patents to phone makers allowed content providers to use patented techniques for displaying Web pages on those mobile devices. The District court had agreed with defendants (mostly big media organizations like the NY Times and CBS) that patent exhaustion not only covered the individual purchasers of the handsets but also the media companies that were providing content to the phone users.

This week the CAFC disagreed, holding that the District court's summary judgment extended the exhaustion doctrine too far. It's now possible that the defendants could seek Supreme Court review - hoping perhaps that the Supreme Court will continue its efforts to smack down the CAFC - or the case could go back to the District for an actual trial on the merits, after which it could wind right back up in front of the CAFC again.

Comments (1) + TrackBacks (0) | Category: Laws and Regulations

January 30, 2015

Nintendo Rolls Out Terrible Deal for YouTubers

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Posted by Alan Wexelblat

Nintendo has put out a new "Creator's Program" for people who review, comment on, or do "Let's Play" videos using its games on YouTube. The program attempts to restrict 'Tuber's fair use of Nintendo-originated material and give the company large slices of the revenue.

It also includes some perplexing restrictions, such as payments only being in USD and only via PayPal. Why Nintendo can't manage more than that remains a mystery, but that's not really the big deal here. It'll cost you PayPal fees and currency conversion fees, sure.

The big deal is that Nintendo has gone from making aggressive takedown claims to a "thoroughly regressive" (thank you TotalBiscuit) policy on fair use of online media content. By positioning itself as entitled to (a share of) any revenue Nintendo is pushing a stand on ownership that sets it apart from - and I would say far behind - every other major gaming company.

I've noted in the past that there is a wide spectrum of game-related content on YouTube. Dealing with that variety - which includes criticism, game-theory work, comparative explorations along side full-on streams and other less creative forms requires sophistication, not stonewalling and absolutism. Whether or not a video earns money is not the question: the question is whether the use of Nintendo's (or any other company's) copyrighted material in the video meets the Fair Use test.

The company's current approach - which seems to be to pretend there is no such thing - is a terrible idea.

Comments (2) + TrackBacks (0) | Category: IP Markets and Monopolies

January 20, 2015

SCOTUS vs CAFC, Round N+1

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Posted by Alan Wexelblat

I noted last year that the CAFC seems to be hell-bent on interpreting the laws however it damn well pleases, despite Supreme Court decisions to the contrary. Guess what? It's still happening.

This time (in a case called Teva Pharmaceuticals v Sandoz) the Supreme Court has once again rejected the CAFC's practice of conducting de novo reviews of cases that appear before it. In this case, Teva had its patent upheld as valid by a lower court in its suit against Sandoz. But when the case reached the CAFC the higher court decided to reopen the claims construction argument and reversed, finding the patent invalid.

Except you can't do that. One of the core principles of the hierarchical structure of US courts is that lower courts find on facts and then interpret the law in light of those facts. An appeal against a lower court verdict has to make a claim that the law was incorrectly interpreted or applied, or there has been some kind of procedural error. The Supreme Court has rejected this behavior by the CAFC before and now they've reversed again, reminding the CAFC that they have to play by the same rules as everyone else.

However, as I noted last time this happened, there doesn't seem to be any means to enforce this dictate by the Supreme Court. Sad.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

January 12, 2015

January 7, 2015

A Smaller Piece of a Much Bigger Market

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Posted by Alan Wexelblat

News outlets this week (here on Forbes) are reporting that Toyota is "giving away" its patents on hydrogen-fueled cars.

That's not entirely true - it's making available royalty-free use of a wide swath of its worldwide patent portfolio related to the hydrogen fuel systems for the next five years. That's still a big deal, as there are well over 5,000 patents in there covering everything from the fuel cell itself to how you build systems to refuel them. And that last is the big deal, I think.

Toyota faced a classic monopolist dilemma: being the first mover and having a consistent investment strategy had given them a big IP portfolio. They could easily charge a lot for access to these patents, but to do that there would first have to be demand. Right now the hydrogen car market is smaller than minuscule. Toyota has no doubt calculated that if it wants payback on the millions it has so far invested in developing this IP there needs to be an active market, with competitors making vehicles, making fuel cells, and making refueling systems for the cars Toyota wants to make and sell.

This sort of market is a chicken-and-egg problem: nobody wants to buy a car they can't refuel, but why would someone invest in creating fueling systems if there aren't cars on the road that will use those systems? Hydrogen cars aren't like full-electrics that have been adapted to plug into existing household electrical systems. They require some kind of fueling station that can safely store and transfer the potentially volatile hydrogen. Fuel cells themselves are well-proven and safe system, but they're nohow household items (yet). But if someone - well, everyone - with an innovative bent can get free access to the refueling IP then it's much more likely someone's going to figure out how to jump-start this.

And then Toyota gets to sell those thousands of cars it needs to sell, getting in the end a much smaller piece of a market it now can monopolize but making the marketplace so much bigger.

This story reminds me of a point I haven't thought about for years, which is that we need a more elaborated patent system. Right now we have a one-duration, one-size-fits-nobody patent monopoly. Why can't there be different kinds of patents with different levels of protection, different allowances, and different durations? Creative Commons has shown you can construct interesting and useful copyright notices based on separating out what you want to do with your copyrighted content. I think it should be possible to do something similar with patents, but I'm not smart enough to think through all the details.

Comments (0) + TrackBacks (0) | Category: IP Use

January 6, 2015

January 2, 2015

Cory Doctorow Would Like You to Know About Downpour

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Posted by Alan Wexelblat

Over at Boingboing, Cory has a New Year's paean to downpour.com, a company that is competing with market-dominating Audible. Notably, downpour is pursuing a DRM-free business model, in stark contrast to Audible's insistence that it has to slap DRM on everything.

Doctorow would also like you to remember he considers DRM "an existential threat to humanity", an eyebrow-raising bit of hyperbole. That said, DRM is far and away the worst thing about digital audiobooks, serving as both a way to lock you out of your own books and a way to maintain Audible's near-total monopoly on the marketplace. DRM also prevents authors from doing things with their own works that they judge to be in their own best interest, such as posting free samples. There are very good reasons to pursue DRM-free business models and to patronize those businesses that follow such models.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

December 29, 2014

Too Many Words, Not Enough Readers

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Posted by Alan Wexelblat

According to a story this week in the NY Times, we're having a glut of (mostly self-published) works and the oversupply is hurting. Mostly it's hurting the authors, who are seeing drops in income. After a couple of years where it looked like (if you worked hard enough) self-publishing could actually bring in good income, the sheer number of titles and the commensurate explosion in free e-publications is starting to hurt.

Authors are also pissed at Amazon (again) because of its USD 9.99 all-you-can-read Kindle Unlimited program. Authors are seeing much less return from the program, and some are quitting it. The double-edged sword here is that as the glut increases it's harder to get noticed. Without the exposure that Kindle Unlimited provides it may be harder for new authors to get noticed in the clamor and build the fan base that could sustain them. But publishing through Kindle Unlimited means much less income even if authors do get noticed. Furthermore, the "everyone draws from the same pot" model means that everyone who plays the Kindle Unlimited game is competing against everyone else. Rather than more readership increasing the pool of money, more readership just means more votes distributed across the same size pot and as more authors play (or more authors chop up their novels into shorter works) it means an increasing number of competitors for a fixed-size pool.

As John Scalzi once again comments, authors and readers would do well to remember that Amazon is not your friend. It's a business with its own goals and motives and if treating your book as a loss leader to sell more Kindles or more whatever is part of its plan then you're going to eat that loss so Amazon can increase its profits.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

December 17, 2014

December 6, 2014

December 2, 2014

November 25, 2014

Pomplamoose is Still Making It

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Posted by Alan Wexelblat

That's "making it" as a band, as opposed to having "made it" as a band. The quirky indie duo have a story up on Medium that talks about what the real finances are for an indie act that doesn't have the backing of a major label. Yes, you can sell over 1100 tickets at the Fillmore but that money goes right into paying back the $24,000+ in credit-card debt you've taken on up-front to make the show happen.

I hope I'm not spoiling anything (though you should read the full story) if I tell you that the band didn't make money on this tour. However, they seem to be OK on that account, looking at the tour as an investment. Remember the Doubleclick's advice on being successful included having a solid fan base. What Pomplamoose did on this tour was in part an investment in building that fan base and creating the kind of shows to which people who are already fans would want to bring their friends. From such shared experiences, fan bases grow.

I want to quote a couple paragraphs from their story because it encapsulates so much of what I've been hoping would come to pass:

We’re entering a new era in history: the space between “starving artist” and “rich and famous” is beginning to collapse. YouTube has signed up over a million partners (people who agree to run ads over their videos to make money from their content). The “creative class” is no longer emerging: it’s here, now.

We, the creative class, are finding ways to make a living making music, drawing webcomics, writing articles, coding games, recording podcasts. Most people don’t know our names or faces. We are not on magazine covers at the grocery store. We are not rich, and we are not famous.

We are the mom and pop corner store version of “the dream.” If Lady Gaga is McDonald’s, we’re Betty’s Diner. And we’re open 24/7.

Comments (0) + TrackBacks (0) | Category: Interesting People

November 20, 2014

Why Make the Secondary Market?

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Posted by Alan Wexelblat

In its "What the Lebron?" episode this month, the Planet Money bloggers ask this secondary-market question in regard to "sneakerheads" who buy and (re)sell Nike sneakers, primarily on eBay.

The sneakers, which retail for USD 200-300 a pair, often resell for three times that much and in rare cases ten or twenty times that much. There's a whole mini-industry of people who camp out in lines (and pay people to camp for or with them) in order to get the latest releases at stores like Footlocker on Saturday mornings as soon as the latest models go on sale. And there are secondaries, companies that have come along to track these markets and provide data services to sneakerheads.

The Planet Money researchers, like many sneakerheads, come to believe that Nike promotes this secondary market. Even though the company could theoretically make more money by pricing the shoes higher at retail, they don't. Nike won't comment, of course, but the company does institute policies that create scarcity as well as promoting demand and collectability by doing things like one-off models with popular culture figures like Kanye West. On this blog we've spent years discussing how manufacturers and content owners go to great lengths to control or crush the secondary markets. So why is Nike acting differently?

It comes down to "cool." Nike went through a bad stretch where its name was associated with sweat shop labor and its shoes were disrespected despite having named celebrity endorsements. The secondary market has helped to turn that around. Nowadays Nike is cool again, Nike products are desirable again, and while it might be the case that Nike would make more money on a given Saturday from a few people, it would likely not have developed a devoted following of people willing to buy over a hundred pairs of sneakers, willing to camp outside a store for days leading up to a new release, and willing to tweet, instagram, snapchat, whatsapp, and (if they're old enough) facebook the latest Nike releases.

Money can buy you publicity, but it can't buy you that kind of tastemaking army of social sellers. In the end, despite the secondary market, the vast majority of Nike sneakers are bought to be worn. When Nike is cool, everyone wants to have them on their feet

Comments (0) + TrackBacks (0) | Category: IP Use

November 19, 2014

Lexi Alexander vs the Copyright Cartel

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Posted by Alan Wexelblat

Lexi Alexander, an actor, director, and producer, has very few kind words for the copyright maximalists who dominate Hollywood.

In her post yesterday titled "5 Reasons Why I am Pro File-Sharing and Copyright Reform" she lays out her case for exactly why the system is as screwed up as it is. Mostly it comes down to fear.

If Ms Alexander's personal experiences are generally true, then people in Hollywood behave just like the rest of us, torrenting and sharing the good stuff. Unlike regular people, though, Hollywood folk spend a lot of effort maintaining a public facade of "piracy is theft/evil." That facade has two major lies in it: first, that the Cartel's copyright stance is to protect the little guys (gaffers and grips); and second that innovation and technology are always a threat to be extinguished rather than opportunities to be embraced. Long-time readers of this blog know I've been arguing pretty much exactly that for the last decade.

Alexander doesn't let free-riders off the hook, either. Sharing and free exchange are there in part because people who share more, spend more as well. Not treating your customers like criminals is not altruism - it's enlightened self-interest for companies that want to build long-term relationships with people who will be buying their products for years to come.

(h/t Boingboing where I saw this first and also has a link to her Torrentfreak interview)

Comments (0) + TrackBacks (0) | Category: Interesting People

November 13, 2014

Digital Homicide Studio v Fair Use

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Posted by Alan Wexelblat

Ken White (aka Popehat) has a nice piece up this week with more detail on the (false) claims by indie game developer Digital Homicide against game reviewer/critic Jim Sterling.

I mentioned earlier this week that DH were abusing the over-generous YouTube takedown provisions and White chronicles what he calls DH's "shame spiral" and the "utter bollocks" they fed him when he inquired what their justifications were.

Comments (0) + TrackBacks (0) | Category: IP Abuse

November 11, 2014

The Art of Asking for "The Art of Asking"

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Posted by Alan Wexelblat

Once upon a time, Amanda Palmer did a Kickstarter. That succeeded wildly, and turned into tours and various forms of art and music and eventually a TED talk on "The Art of Asking". Through it all, AFP has relentlessly pushed her vision of a world in which people pay for art they love.

To push that vision she's had to hone and refine her arguments, answering challenges from people who want to know what happens to a million Kickstartered dollars, and ignorance-to-hostility from traditional media types who seriously Do Not Get It. One thing you can do when you have well-honed and tested ideas is put them down in book form, and so now we have The Art of Asking, or How I Learned to Stop Worrying and Let People Help, the book.

Unfortunately, this book is out from Hachette which, you may recall, is involved in a protracted slugfest with Amazon. One side effect of that fight is that Hachette authors' books aren't as easy to find or buy on Amazon as others. So what's an author to do?

If you're Amanda Fucking Palmer, you ask for what you need. In this case, that's publicity. Word of mouth. Information to shed light on the darkness cast by the Amazon/Hachette dispute. Palmer sent a mail to her list asking people to help publicize the book and get the word out. People frequent book stores, which can carry the book. People visit Web sites, including amandapalmer.net which currently features all the info you need to get the book in physical and electronic forms.

And for you librarians who are still reading this blog, I suggest your shelves might be enriched with a copy. Just a thought.

Comments (0) + TrackBacks (0) | Category: Interesting People

November 10, 2014

Two Copyright-in-Gaming

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Posted by Alan Wexelblat

TotalBiscuit's occasionally released "Content Patch" video series highlights two items of Copyfight interest this time around.

First, an update by Rockstar games to their popular Grand Theft Auto: San Andreas release has resulted in a number of songs being removed from the game. These are copies of popular tunes that were originally licensed for the game property and were available in-game either as part of the default soundtrack or as character actions, such as listening to the radio. GTA games are often noted for their excellent soundtracks.

I couldn't find any official word on this change, but the likely reason is that something happened with the licensing and since Rockstar doesn't control the copyrights on these tracks it had no choice but to pull them from the game. That's a shame, and it may also involve a legal issue since consumers are having things they paid for taken away from them. I'm not enough of a lawyer to know if that's legal but probably Rockstar's lawyers have already thought of this and it's covered somewhere in their clickwrap licensing.

Obviously this sucks from an experience point of view, and it raises difficult questions about what it means to buy a game when parts of what you've paid money for can be stripped out at the whim of the company to which you gave your cash, or even some third party. This capability has existed for some time, but this is the first time I'm aware of it having such a blatant impact on such a high-visibility title. TB points out that other changes have also hampered the game experience (though they're not that relevant to Copyfight) and that EU laws are different enough from American laws that at least European consumers should be able to get a refund.

Separately, TB points out yet another instance of a developer (in this case an indie) reacting badly and inappropriately to negative reviews. He calls out the company Digital Homicide for putting out a bogus DMCA takedown notice against game reviewer Jim Sterling. Apparently DH did not like Sterling's bad review of their game and is attempting to use the DMCA to censor criticism. Their claim, made through YouTube's internal system, followed a series of tit-for-tat videos in which DH apparently appropriated Sterling's review video more or less wholesale in order to write its response as a set of insulting subtitles overlaid on Sterling's review vid.

Yeah, some people are idiots. Of course, DH are following in well-trod footsteps here, as it's well documented that major companies spam out hundreds of thousands of (often erroneous) takedown claims. And the problem is exacerbated by YouTube's review system which goes well beyond what the DMCA requires and makes it particularly difficult for a content creator to defend their videos and keep those videos from being removed. YouTube's "guilty until proven innocent" approach is certainly making the problem worse by encouraging aggressive over-claiming. In theory making a false DMCA claim is a felony, but I'm not aware of anyone ever being prosecuted for it. Anyone have an example?

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies

November 4, 2014

Molly Crabapple's 14 Rules

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Posted by Alan Wexelblat

Over at Boingboing, Cory is inviting people to write about their creative philosophies. Ms. Crabapple is someone whose writing on classism I admired last year, This piece carries some of the same themes, but laced with astringent advice: get healthcare, don't work for free, don't trust corporations or rich investors trying to sell you on their latest gimmick. And also, be nice, at least to people who are not being dicks to you. Sage words.

Comments (0) + TrackBacks (0) | Category: Culture

November 2, 2014

Should Copyfight Publish Stories to Benefit Charity?

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Posted by Alan Wexelblat

I have had an offer for a third party to write relevant posts for Copyfight, and get paid in the process. I'm curious if anyone reading this has an opinion.

The blog has long had a "sponsor" category for posts, but it's lain dormant. We're tiny and esoteric enough that nobody much cares, and we don't have advertising support. I have a day job that pays well enough I don't need income from blogging but it also means that I have less time to cover the relevant material. I've made some invitations to people to guest-blog but no nibbles.

So the theory would be to have some sponsored stories, mark them clearly as such, and improve the blog's content. I would have editorial control and pick things that appear, so no shovelware. And then, the money. I'm thinking it ought to go to something charitable, and EFF springs to mind as a first choice, but I'd be open to hearing others' thoughts. It likely won't be a substantial amount, but it's good to have a plan.

Comments (1) + TrackBacks (0) | Category: Misc.

October 31, 2014

Eleventh Upholds Case-by-Case Infringement Review Concept

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Posted by Alan Wexelblat

This month the 11th Circuit handed down a copyright decision on professors' rights to make and use copies of material excerpting copyrighted books.

The case involved three big houses (Cambridge U Press, Oxford U Press, and Sage) that sued Georgia State University over a policy that allowed copied excerpt use in class. When the case was originally decided, the judge used a somewhat novel case-by-case examination of the incidents rather than ruling on the policy as a whole. In its review, the 11th largely upheld that approach, which had led the judge to find for the defendants in all but five instances.

The Circuit did rule that the initial decision applied the Fair Use four-factor test incorrectly. The trial judge gave each of the factors equal weight (wrong) and failed to do a holistic analysis of how the factors balanced. This caused the 11th to overturn the verdict and send the case back down. In summary, it's OK for a trial judge to consider incidents individually, but when doing so, the judge still has to apply the fair use tests in the standard way to each incident.

Comments (0) + TrackBacks (0) | Category: Laws and Regulations

October 28, 2014

Everything You Need to Know About Doing a Kickstarter

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Posted by Alan Wexelblat

That is, doing a successful Kickstarter if you're a slightly quirky not-at-all-mainstream artist that has something of a fan base. Under the title "One Weird Trick..." the musical duo called The Doubleclicks gives you all their secrets and advice.

The one weird trick turns out to be "have an audience" because their Kickstarter drew heavily on the existing fan base. This is not surprising - patronage models are something we've talked about extensively and Kickstarter (and Patreon and their ilk) are fun ways for people to give more money to creative folk they already support.

But beyond that, the Doubleclicks have an extensive guide for everything a Kickstarter requires, including setting goals, describing the project, handling rewards and stretch goals, and so on. There's notes here on how to do the hard math, and paying attention to shipping, and who to ask for advice before launch. Basically, the bottom line is that doing a Kickstarter is a great deal like launching a small business - and all of that has to get done before you get to the business of doing the thing you wanted the Kickstarter money for in the first place. The Doubleclicks' advice will get you a long way through that business.

Comments (0) + TrackBacks (0) | Category: Big Thoughts

October 27, 2014

Is Patent Valuation a Leading Indicator of Trolls' Demise?

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Posted by Alan Wexelblat

This is kind of an esoteric idea so let me see if I can unpack it a bit: patents are bought and sold, as well as licensed. Sometimes the patent buyers are people who think they can use the patents to make money not by producing product but by suing others who do produce. These people are generally known as "patent trolls", though I feel compelled to re-remind everyone that there's not a good definition distinguishing a troll from other non-producing entities such as universities.

Generally, people are more likely to pay for something they think they can make more money with. That's supposed to be how markets work and it ought to apply to patents as well. If a patent is good and valid and enforceable then it ought to be worth more. Conversely, if you think you can't make money with a patent you don't buy it, or at least you pay less for it. In this way, the prices people are willing to pay for patent portfolios become an indicator of the likely future revenue to be derived from those patents.

Last week, Reuters put out a piece claiming that tech companies are "winning" against trolls because these IP portfolio prices are falling. The data they use for this conclusion are their own interviews and analyses so it's not necessarily fully rigorous, but worth considering. They also admit that the trend is not universal, so they may also be cherry-picking the data for their story

They argue that the number of suits is dropping, the length of suits is increasing (though note that's only those that don't settle not overall length). and that firms focused on making money through IP are laying off staff and seeing reduced stock prices. All of these are potentially good trends, but none of this addresses the true root of the problem - the stream of crap patents issuing from the USPTO and the EPO. Fixing the problem at its source would do a world of good for solving the troll problem.

Comments (0) + TrackBacks (0) | Category: IP Markets and Monopolies