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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

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Monthly Archives

September 27, 2007

A Couple of PoD followups - Expensive!

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Posted by Alan Wexelblat

Comments on my post about CreateSpace led me to look at Another PoD organization, it also features non-exclusive licensing and is more focused on books and a "global marketplace" (whatever that means). It doesn't have the Amazon tie-ins. On the other hand you're not losing 45% of your gross to the Amazon structure either.

lulu claims to distribute through "60,000 retailers, schools and libraries" which sounds impressive but is really a tiny number when spread out even across the English-speaking world, let alone globally. Having a copy of your book in a school or town library isn't likely to do much for your sales or name recognition, either. lulu's manufacturing costs seem (at first glance) to be even higher - 100 copies of a 400-page paperback come in at just under USD 11 per book.

A FoaF did a monetary breakdown of the CreateSpace costing for various media and it comes out to nearly unworkable, especially for books. The price you'd have to charge end customers would put you at a severe disadvantage when compared with standard preprinted publications from known names. What ever happened to PoD being cheaper?

Comments (4) + TrackBacks (0) | Category: IP Use

September 26, 2007

Anyone Have An Opinion on Createspace?

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Posted by Alan Wexelblat

Self-publishing and vanity publishing have been around for almost as long as the book has been with us. Back in the early enthusiastic days of the dot-com bubble there was a lot of talk about print on demand (PoD) being the next great thing. Inventory costs and the Reagan-era tax law changes on inventory depreciation more or less killed the backlist and midlist publishing business.

Amazon brought that back with its winning bet on the long tail but still PoD eludes us. If you want to buy a book, it needs to be there because someone printed it in anticipation that you'd buy it (or download it). Or does it?

Createspace looks like it's out to change that by making book, DVD, CD and video publication on demand possible, and maybe even cheap and convenient enough to appeal. As an Amazon company they're hooked into a big marketing and search machine - if I want to write about intellectual property issues and have people on Amazon find my book when they search, this may be the way. (No I'm not writing a book, I promise.)

In addition, Createspace is prominently featuring a "you keep the rights" slogan on its front page. Of course the devil is in the details, but from my fast skim it appears you keep the essential rights and the company gets rights to reproduce your work because they need to do that after they receive a customer order.

I'm always concerned about what the experience is of the person using a service and it appears that from the customer's point of view, Createspace will be invisible. Just like ordering from any other Amazon merchant, I place an order, pay (including Amazon's commission), and stuff gets downloaded or shipped to me. Could be a nice win, even if it's not earth-shaking.

Comments (82) + TrackBacks (0) | Category: IP Use

September 25, 2007

Apple v Burst, and Bad Reporting

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Posted by Alan Wexelblat

Yes, you read that right. Microsoft settled with Burst some time ago, to the tune of USD 60 million. But that's peanuts next to the nearly half billion that Burst figures its owed from Apple, due to the use of its patented technologies in a little thing called iTunes (and the store, and iPods). If Burst wins big it will be because Apple used the technology in a big way where Microsoft did not.

Robert X Cringely's Pulpit column on this case makes that point that the news reporting on it has... well, sucked. In general the press coverage of IP cases tends to be slanted or just outright wrong as the reporters don't know what they're covering. I'm sometimes guilty of this myself.

In this case, Cringely slams the reporters for both falling victim to the Apple mystique and just plain getting its facts wrong. He has particular harsh words for ars technica (this time in the personage of Justin Berka) for getting Burst's history wrong.

You can read the original linked pieces to see the details but I think Cringely is spot-on. Despite us being into the second decade of the "Internet revolution" we still get mass media reportage that can't tell the Internet from the Web, and that makes basic mistakes I wince over regularly. Ars is usually better than that, but clearly even they mess up now and then.

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

September 21, 2007

NBC Makes Viewers' Lives Harder with Stupid Download Plan

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Posted by Alan Wexelblat

After Apple showed NBC the door in a tiff over prices and DRM, the network took its goods to Amazon and announced plans for its own download service. Now the service, called NBC Direct, is offering some very limited downloads.

They're free, in that you get to watch ads rather than paying cash up-front. They're also limited-time-only. According to David Chartier's piece on ars, the downloads that start in October have a one-week lifetime. From air date, not from download date. I'm not sure why - this makes the downloads strictly worse than what you can do with TiVo. Oh, and the downloads are Windows-only. Eventually you'll be able to sign up for automatic download - anyone want to bet me that the sign-up process will be harder and more complicated than just setting your TiVo to record the shows automatically?

I'm not sure who this is aimed at, but I am sure it's an idiotic idea. If NBC was trying to make Apple look like a winner in this dispute they've accomplished that much.

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

"[G]iving away my books is selling the hell out of them."

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Posted by Alan Wexelblat

Cory Doctorow has a few choice words for his SFWA colleagues, presumably trying to educate them a little more about what it means to be {published, found, pirated} online. After the recent DMCA takedown fiasco they seem to need it.

Doctorow freely admits that he has not performed any scientific comparison studies. But drawing on his own experience, the experiences of Baen Books, O'Reilly's experiments, and a couple of academic studies, he makes the case that giving away free ebooks promotes the sale of physical books. He argues that the act of reading a long-form piece such as a novel requires a level of concentration that computers make difficult because they offer distractions and enticements to do other things.

(The fact that this is my third attempt to post this entry, one lost to distraction and one to a crash, has nothing to do with my agreeing with him. Really.)

Doctorow is also writing a biweekly column for the UK Guardian under the heading "Digital rights, digital wrongs". The columns, of which there seem to be three so far (what happened to September 18?) are collected here:

Comments (1) + TrackBacks (0) | Category: Interesting People

September 20, 2007

Tear Down the (Digital Science Publishing) Walls

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Posted by Alan Wexelblat

Dan Saffer has a piqued entry over at his Adaptive Path blog. He's peeved at organizations such as the ACM, which publish content in paid subscription digital libraries. I have a basic sympathy for his point in that I think free access to scientific literature is good for research and innovation, but I think he's shooting at the wrong target.

ACM is ahead of many professional organizations in granting blanket permission-to-copy for scientific uses of everything they publish. ACM authors are free to reuse, revise, and publish personal copies of works, unlike certain other societies that have gone so far as to forbid authors from publishing their own writing on personal Web sites as a condition of acceptance for professional publication.

dan, if you want to rant about something truly awful, go join PLoS in protesting astronomical journal fees.

(Full disclosure: I was an ACM member from 1980 to 2006 and have a handful of papers in ACM publications. I've also served on numerous ACM conference committees and know way too much about budgets and why ACM sometimes charges speakers to come and present their own work.)

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

September 19, 2007

Attributor, Fair Use, and The Opposite of DRM

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Posted by Alan Wexelblat

Last Friday I had a phone conversation with Rich Pearson and Matt Robinson of Attributor, a Redwood City, CA, startup. The nominal reason for the call was that Attributor announced this week that it has signed up Reuters as its second big customer using the company's content-tracking platform. In actuality, we had a wide-ranging conversation on the company's products and philosophy.

People who've been reading me for a while will know that I feel we desperately need new business models - the old dinosaurs aren't going to survive. Attributor wants to make the case that they provide a technology platform on which new models can be built, based on the ability to find out quickly where content is appearing on the Web.

Attributor's own business model is that a content creator signs up with them and identifies content to be tracked - so far they have announced deals with news syndication giants AP and Reuters and are in "closed beta" with 15-20 other content creators, including bloggers. The Attributor platform monitors Web pages and identifies instances of use of the tracked content.

The "secret sauce" (as they put it) has two parts: one is they claim to be able to track billions of Web pages in near-real time; the other is that their idetification algorithms are claimed to be able to identify the amount of content reuse, down to about the paragraph level within a text document.

The first is interesting in that it's a claim about the value of the long tail. Does AP care that its story appears on someone's blog or MySpace page? Does it care as much as it cares when that story appears on your local NBC affiliate's Web site? Maybe, maybe not. One of the arguments Pearson and Robinson made is that their customers care about the "reach" of certain messages. It's one thing to see your stuff show up at all on Digg or Slashdot; it's another thing to know that within a week of that appearance the story was found on 300 other blogs. From just a simple marketing perspective, it would be useful to know which types of content propagate in which ways. Attributor claims that people care about the long tail into time as well - not just the the first 72 hours.

The second point is truly key to discussion around fair use. If we believe that anyone in the Cartel still respects the principles of fair use doctrine, then it makes a huge difference whether I've copied a whole AP story or am just quoting a paragraph in a Copyfight posting. And of course once a "hit" has been found it's simple to analyze the page for the presence of paying ads, giving prima facie evidence of whether someone using a piece of content is making money off that use.

So if the technology works - they claim 99th percentile accuracy in both precision and recall - what can you do with it? Well, one of the services Attributor offers is automated DMCA takedown notices. It's up to the customer to decide to send them, but they're there. This led me immediately to wonder how they plan to avoid fiascos like SFWA created with its spurious takedown notices. To wit, what prevents me from using Attributor to generate improper DMCA notices?

The answer is "not a whole lot." Attributor have some identity-checking capability, as do most online Web companies. And they provide linkbacks so that takedown notice targets can see what content specifically is claimed to be infringing as well as who generated the notice. But the DMCA remains a blunt, clumsy instrument and Attributor isn't going to fix that. Pearson and Robinson want to focus more on the notion of "multiple remedies". If I know who's using my content in what quantity how often for what purpose I have much more information to go into a business negotiation. They believe their customers are more forward-thinking and interested in new revenue opportunities more than locking down use.

Speaking of lockdowns, what about DRM? Attributor paints itself as "the opposite of DRM" and on this point I agree. The fundamental notion of DRM is control over action by people with content - it's necessarily a preemptive strategy since you can't attach DRM to content post facto. The fundamental notion of Attributor is "know what's going on then decide what to do". By providing visibility into how, where, and when content gets used, they believe they can open up opportunities for new product development, such as use-based licensing.

Will this really happen? Magic 8-ball says "ask again later". It's quite clear we need new tools and new ways of thinking about managing digital content, but I don't see any guaranteed winners this early in the game.

Comments (1) + TrackBacks (0) | Category: Tech

September 18, 2007

"Steal It, Steal Some More"

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Posted by Alan Wexelblat

Trent Reznor has some choice, and not-particularly-friendly-to-the-label words for his live concert fans. Now posted on YouTube for all to see, Trent notes that the price of CDs hasn't come down and that means they're "still ripping us off."

I dunno if this means he's not getting his cut of the CD shares or he feels his $1 out of the retail price isn't significant enough to care about. Or maybe he's just out to piss people off and get some publicity.

Comments (5) + TrackBacks (0) | Category: Interesting People

September 11, 2007

Record Exec States Obvious Truth, Greeted with Shock

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Posted by Alan Wexelblat

In a NY Times Sunday magazine article (that I won't link to because it's locked up behind a 'premium' wall) Rick Rubin finally admitted publicly what copyfighters have been saying for 8 or more years: the record industry's current business model is dead. *yawn*

So why is this getting all kinds of press coverage? Well, Rubin himself is pretty well known in the industry for a string of successes as a studio producer (e.g. Beastie Boys), a career-reviver (Johnny Cash), a record-label founder (Def Jam) and was recently named co-chairman of Columbia Records. He's also known to some as the producer of the infamous 12 Songs CD by Neil Diamond that contained Sony's rootkit.

As reported by many bloggers, Rubin's comments to the Times were unusually straightforward. He labeled the current business model "done" and the record companies as "dinosaurs." Yes, Rick, we know. Here, go listen to MC Lars already.

Sandoval's piece for CNET, and a similar analysis by Nate Anderson for ars, highlight Rubin's plan for subscription access to music anytime, anywhere. Sandoval mocks the concept, noting that prior attempts at this "jukebox in the sky" have failed. Anderson further notes that Rubin still doesn't understand the notion of grass-roots buzz, since he apparently feels that Columbia can hire college kids to create buzz. What they're missing is that there is already a free cloud out there, whose mission is to let you get to your content any time anywhere that you have a live net connection. Google, anyone?

I freely admit that I've drunk the Kool Aid here. I hate the idea that Google's going to claim to own content I've uploaded to them and that it's going to index that content and sell it to marketers. I'm not a huge fan of getting ads with my email. But I loathe attachments and their virus potential more. I hate the proliferation of memory sticks and ipods and not being able to figure out which bit of my stuff is on which box. If people want to send me documents I tell them to put it on Google docs and share it with me. I store a fair amount of my own stuff up in the cloud - it's gigs of free storage and I can get it anywhere, independent of the device I use to access the cloud. The infrastructure could trivially handle my music collection and stream it, too. It's just a matter of negotiating the right fee structures to pay for the storage and bandwidth costs.

Anderson is right that DRM issues would still need to be worked out, but I don't regard those as insurmountable. The base line here is that the music business has to compete with free and I don't think anyone has done a better job to date than Google at monetizing "free" email, storage, and downloading. Of course it's not really free but since I'm not forking out large numbers of visible dollars and since they've put a lot of effort into making the experience as easy as they can figure out it registers as free.

For much of the past few years of the Copyright Wars I've been arguing that the Cartel should look at the bottled water business for ideas on how to sell a product at a premium price when that product has to compete with free alternatives. Since they don't seem capable of that, maybe they'll be able to recognize that free is always relative and pick a form of free that is already showing tremendous success.

Comments (2) + TrackBacks (0) | Category: Big Thoughts

Did Amazon "Beat" Apple in the Tiff Over NBC Shows?

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Posted by Alan Wexelblat

Meh, maybe. This story is far from over, but I liked the Motley Fool's writeup by Rick Aristotle Munarriz.

Let's step back a moment for context. As usual, there's a good coverage piece on ars technica, this time by Jacqui Cheng. Anyone who has followed iTunes for a while knows that they've been pretty firm in sticking to a uniform, fixed, and relatively low price-point for downloaded material. This has irked various parts of the Cartel, which would like to get more money for popular content. Considering the prices people pay for ringtones and pay-per-view movies it probably seems pretty logical to them that people would pay more for iTunes-sold content.

For much of last month, NBC and Apple bickered semi-publicly over issues of pricing and incidentally whether Apple would be willing to deploy more DRM. NBC threatened to take its marbles and go home when its contract expired in December. Then Apple decided to call NBC's bluff and said "take a hike, now." No NBC shows on iTunes for the fall line-up.

Oops. Probably what was supposed to happen was that NBC would continue to get revenue and connect with show fans through iTunes until its own ad-supported digital download service (currently called Hulu) launched next year. Not wanting to be stranded, NBC struck a quick deal with Amazon, which is currently offering individual shows at $1.99 and "bundles" at $34.99.

So did Amazon win by scooping up iTunes' cast-offs? Probably not. For one thing, Amazon is now competing against itself again because these downloads and bundles cost more than the comparable DVDs Amazon sells. Sales of one are going to hurt the other. For another thing, Hulu is still coming, which means Amazon is either going to be stranded with orphan content or is going to have to compete with an apparently free service that has the marketing might of NBC behind it.

Munarriz also points out that one of the unsung big winners here could be TiVo, which has a deal with Amazon to download purchases and rentals directly. TiVo owners can now order NBC shows with their remote controls, without having to engage the PC. Is this enough of a benefit in user experience to make a difference? I doubt it, but it may serve as a model for future deals that will drive more content into this platform. It's all about marketing, right? And this is a good marketing point for TiVo in appealing to people (like me) who are still considering a DVR purchase.

As I said, the story is probably not over. Both NBC and Apple are going to lose money this way and neither is likely to sit still for that. If NBC stays off iTunes and makes its own service work then that could embolden other Cartel members who'd like to break free of the iTunes lockdown to try going out on their own. TiVo or another aggregator could also win big as there's virtually no downside to NBC or whoever doing deals that let people download to a DVR rather than a PC, so long as they get the pricing and DRM structures they want.

Comments (5) + TrackBacks (0) | Category: IP Markets and Monopolies

September 5, 2007

September 4, 2007

SFWA Shoots DMCA Shotgun, Hits Self and Innocents Too

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Posted by Alan Wexelblat

Cory Doctorow (himself an SF author), reports in his boingboing blog that the Science Fiction and Fantasy Writers of America (SFWA) has begun to send takedown notices to sites that post unauthorized copies of SFnal works.

Problem 1: SFWA isn't the copyright holder in any of these works. It's a trade union of writers and sometimes acts on their behalf. It's not clear to me that SFWA has DMCA takedown rights here.

Problem 2: SFWA's list was hastily constructed and either not checked or poorly checked. As a result the target site,, was told to take down a much wider variety of works than intended. This included Cory's own Creative Commons-licensed book, a teacher's bibliography, and other innocent bystanders.

Michael Capobianco, the President of SFWA, wrote an apology both to Doctorow and to scribd, attempting to correct the error. That may or may not be enough to mollify the injured, who technically have a legal recourse in suing SFWA for spurious takedown notices. Doctorow points out that such notices also make it harder for the entities (usually estates, publishers or agents) that have the legal authority to enforce copyrights to get their takedown notices respected. If sites think that SFWA is an enforcement authority they may not be willing to accept the word of people they've never heard of, who happen to have actual authority. Doctorow notes that his own agent also represents the estate of noted author Philip K. Dick and his agent has to be responsible for sending out DMCA notes on behalf of that estate. It's certainly conceivable that a legitimate copyright holder could sue SFWA for making life more difficult.

I'm with Cory in thinking that SFWA should have known better and should have been way more careful when it acted, rather than taking a shotgun approach. The union has been remarkably hostile to the public domain, a trend I find disappointing and distressing.

Comments (1) + TrackBacks (0) | Category: IP Abuse