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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.

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May 31, 2012

Legitmix Enters Beta, Model Unchanged

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Posted by Alan Wexelblat

Last December I took a look at the artist alpha of Legitmix. The company (which appears to be in Ottawa) aims to change the way mixes and rights payments are handled.

As things stand now, the person (usually DJ/producer) who produces a track that incorporates material from others is theoretically responsible for obtaining the licenses to all the source material. What Legitmix aims to do is shift that work to the end consumer. Instead of distributing a raw MP3 file of your mix, you'd distribute a Legitmix digital package that listeners would unpack and then obtain all the permissions for before they could listen.

In December I laid out the variety of objections this raises in practice - versioning, orphaned works, uncooperative license owners, etc. It's a great idea in theory but in practice I couldn't see how it would work at scale. A couple days ago, Neal Mc - who identifies himself as "Legitmix Customer Support Guru" invited me to re-look at the site, which I've now done. Having looked I see about the same thing as before.

The site, now in beta, claims to have something like 20 million songs. That sounds like a lot but doesn't address the question of samples from performances, from movies, from speeches, and all the other source materials that go into a typical DJ mix. Maybe Legitmix can get everyone on-board and signed up. Maybe they can figure out some way to handle orphan works - there's no mention of those on the site. Maybe they really can get a "track" identified in under a minute as Neal's comment claims, but how long would it take them to handle this hour-long Glitch Mob set I'm listening to?

Sorry, Neal, but it looks like you still have all the same problems you had six months ago.

Comments (3) + TrackBacks (0) | Category: IP Use

May 30, 2012

May 29, 2012

Freehadists, the New Boss, and Another Point of View

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Posted by Alan Wexelblat

David Lowery is not happy with the state of digital music. In this post, derived from his talk at SF Music Tech Summit, he goes into great detail on why he thinks the current model of music making and distribution sucks, and is a worse deal for musicians than the previous system (the old boss).

The post is long on opinions, much of it personal. Lowery has a tech background himself, and has worked as a musician, sound engineer, singer, songwriter, promoter and producer. He founded Cracker and before that Camper Van Beethoven. He is an active participant in, where he has placed recordings of most of the live shows he and his groups have ever done. He's also worked in finance/economics, and wrote code for the company that became Groupon. Through these experiences he knows a lot about technology and how the nets work. He's also had his share of spats with the big music establishment, including ongoing lawsuits against two of them. He doesn't have the academic throw-weight of, say, a Drew WIlson, but he's painting the picture he sees and reasons from.

That picture is not good, in his view. As he sees it,

[W]hat we artists were promised has not really panned out. Yes in many ways we have more freedom. Artistically this is certainly true. But the music business never transformed into the vibrant marketplace where small stakeholders could compete with multinational conglomerates on an even playing field.

He also has some nasty words for entities we tend to think better of, claiming "Google date rapes the spirit of the law while keeping to the letter." He's got a lot of bile for the Future of Music Coalition, and particularly the EFF:
[I]t is nigh impossible for me to pursue my craft without enriching Apple, Amazon, Facebook and Google. Further the new boss through it’s [sic] surrogates like Electronic Frontier Foundation seems to be waging a cynical PR campaign that equates the unauthorized use of other people’s property (artist’s songs) with freedom.

Since I just blogged about the EFF's latest project in conjunction with Google, let me jump to his objection there. The problem he has with is that they post the infringing links in the DMCA takedown notices. As he notes, the URL has disappeared from Google but if you want to find it, you can find it right there on Chilling Effects' Web site.

That's true, but seems to be missing the point. Lowery is tech-savvy enough to know that there's a world of difference between a link appearing in Google search results and appearing on a form copy on a different site. People may find it (and it'll be interesting to see what happens when Google starts including crawls of the Chilling Effects site in its search results) but the alternative seems to be a 1984-esque regime in which one might or might know that some content might or might not have been taken down but we can't tell you what it is, never mind giving you the chance to contest it. Because we know DMCA takedown notices are never sent out maliciously, or in error.

But OK, let's jump back to Lowery's main point, which is that what we have today isn't working for musicians. He says that due to the ease of sharing illegal copies of recordings, "the 99% of the music business has been impoverished." He asserts that artists are spending less on recording now because they have less to spend, that more artists are touring and playing more shows, but for fewer people. Yes, there are a few stand-out success stories like OK Go, but they're the exception, not the majority rule.

Lowery admits that much of his information is anecdotal, but his anecdotes are collected from a pretty wide range of sources. He's not just taking one point and generalizing it out to the whole universe. He says that the reduction in time/money spent recording is the most telling trend:

[T]he only explanation for why artists are spending much less time recording is the obvious one [- they have less money to spend]. Occam’s razor. Every other explanation adds assumptions."

In addition to skewering a few of our favorite cows, he also hits on a couple of points I've made in other Copyfight posts: artists need to get paid, and that includes the large and often invisible team behind the guy in the spotlight. Digital downloads are not returning large amounts to artists. Gatekeeper companies, particularly Apple, are taking a big chunk of the dollars spent through them - in some cases a bigger chunk than a standard label would have taken. Tech companies are astonishingly hypocritical in the cavalier way they treat copyrights and the covetous way they treat their own patents. There's no doubt in my mind that the current state of affairs in digital music isn't great, and that we desperately need sustainable business models and fair methods of compensation. I'm just not willing to buy that the plural of anecdotes is evidence, and therefore illegal copying is the cause of all these problems.

As I mentioned, the column is quite long and I'm obviously cherry-picking a few points here. Go read the whole thing and see if I've summarized him fairly.

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

May 28, 2012

Twain on Creativity

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Posted by Alan Wexelblat

Apropos of the ongoing discussion of what it takes to create, today's Quotation of the Day blog entry is worth quoting:

"It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a photograph, or a telephone or any other important thing--and the last man gets the credit and we forget the others. He added his little mite--that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that."

- Mark Twain, from a letter to Helen Keller.

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

May 25, 2012

LP Responds on Creation, Avengers, Kurtz

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Posted by Alan Wexelblat

Copyfight commenter Jim Keefe pointed me to "Comforting the Comfortable," a Ludic Live blog response by Leonard Pierce to Kurtz's Avengers creation piece. LP, as he authors his pieces, has something to say about nearly every point Kurtz raised.

Unfortunately, he starts off by bashing Kurtz - whose work he admits not to knowing - for being successful. That sort of personal attack isn't helpful and detracts from the important objections LP is raising. So let's skip forward to the substance.

First, LP notes that the question at hand is whether people who enjoyed the Avengers movie would be willing to donate something like the price of a ticket to the Hero Initiative. This non-profit exists to "create a financial safety net for comic creators". Far too often, people in creative endeavors need help - the finances of writing, acting, drawing, or doing comics aren't always lucrative and sometimes people need help with medical bills or just plain old money for groceries. LP notes that this effort to get people to give money in association with seeing Avengers will benefit many people in the comics business, whereas Kurtz's post was narrowly focused on the Avengers' creators and Jack Kirby.

Getting to the heart of the creative issue, LP notes that Kurtz seems to be shooting a strawman of his own creation. Nobody is asserting "that Kirby and Kirby alone be compensated for his work on the characters." And in fact the more modern Marvel writers and artists who've worked on these characters over the decades since Kirby stopped working on them will not be seeing big payouts from the movie either. Most will probably receive nothing - though movie companies notoriously keep their payout sheets extremely close to their accountants' chests. Who actually makes money from a given movie can be hard to fathom, as the IRS itself has complained from time to time.

Still, take it as given that more people than Kirby have worked on Avengers and more people than Kirby who did such work aren't going to share in the movie's success. Thus, Kurtz's focus on Kirby is misplaced at best, and misleading about the important questions of authorship/ownership and benefits.

Finally, LP points out that issues of creators' rights are still present, still important, and still relevant for discussion. Kurtz's column contained more than a little disdain and, frankly, name-calling which I had omitted in trying to focus on the Copyfight-relevant parts, but LP doesn't hesitate to shoot back, and probably deservedly so.

Moral issues and intellectual property rights have always been oddly entangled, particularly in the US which does not formally recognize artists' moral rights in creations. Calling on Marvel to voluntarily recognize what would be thought of as moral rights is always going to rub some people the wrong way, but is a common feature of charitable efforts.

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

AFP Kickstarter Funding Report, Part 2

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Posted by Alan Wexelblat

As a follow-up to her previous "Where is the Kickstarter Money Going" post, Amanda Palmer has put up part two, answering questions related to the theme, and hitting several points I think are good for the ongoing discussion of what does this model take.

This post is much more Q&A than the first, but the answers still come in Palmer's unique voice, which makes it fun to read. I'll cherry-pick a few highlights, but recommend it highly to anyone who cares about these models.

She notes, for example, that this kind of thing doesn't work for acts that are too unknown, too obscure, or aren't working hard enough. She points out that other acts she's worked with through Kickstarter projects have also carefully nurtured their fan bases with things like house concerts, free shows, and generally nurturing that fan base over (as Palmer writes it) "YEARS AND YEARS AND YEARS of connecting" so you can go and ask them for money. Palmer also references the '10,000 hours theory' that anyone who spends ten thousand hours doing something becomes an expert at it, and she notes that by this yardstick she's an expert at connecting with her fans.

She addresses file-sharing, head-on: " i think music should be shared. all the time. by everybody. i think it's pure insanity to make music filesharing illegal." It's no accident that you can get the entire album as a high-quality digital download, with bonus content, for a buck (at least for six more days as I write this). The time it would take you to find it on a torrent of questionable quality is worth more than that. Personally I think a buck is too low, but it certainly upends the economics of illegal copying.

She also talks about being fearless. Artists who perform in front of crowds know this but it may be different for creative types who aren't used to connecting so intimately with their fans. Perhaps a direct-sponsorship model like this really will work best for people who are used to it; certainly musicians have been busking on street corners with their hats out for coins for centuries. Actors and other stage performers used to pass the hat as well. Kickstarter, as Palmer points out, isn't a charity. It's a direct appeal for sponsorship funding.

Palmer also makes the point that she is making great art. It's not cheap and it's something she truly believes in. As I noted last time, I want this kind of model to be sustainable as a business, not a one-off thing. That means the fan base you so carefully cultivate also has to be delighted with what you've made. Doing it on the cheap might mean you hit your Kickstarter goal but will it mean those who fronted the money are happy with what they get at the end?

I think this is something we see in other big successful drives; for example, the Order of the Stick reprint Kickstarter (which I also backed). The comic's author, Rich Burlew, has gone above and beyond in the quality of the materials that drive has produced. Everyone I've shown them to has had the same "oh, wow!" response. Principle: delight your sponsors.

This is different, as Palmer points out, from a product-oriented Kickstarter like the fantastically successful Pebble watch. There, the entire point is production of a product that people expect will be delightful. Fans != consumers. Principle: know what you're making, for whom, and how to delight them.

Finally, I wanted to quote a bit of Palmer-wisdom that I think illustrates why this kind of innovation had to come from creative types, and not from the established businesses (the Copyright Cartel):

the music business for years has seen the fanbase as a bunch of faceless consumers who were going to have to be TRICKED into parting with their cash. whereas i see them as people who love art and want to help. attitude is everything.

Capitalization, such as it is, preserved from the original.

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

May 24, 2012

Google Extends Its Transparency Report to Copyright

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Posted by Alan Wexelblat

Today Google posted on its blog an update to how it talks about transparency. For about two years it has published its Transparency Report in an effort to give people some insight on issues such as search availability, removal of content due to government requests, and even Google's own traffic analyses that indicate when IP packet flow to its servers may be under deliberate disruption. Such disruption can be prima facie evidence that a government or other entity is trying to prohibit people from reaching Google sites or searching Google content.

The new news is that the Transparency Report will now extend to copyright-related issues. They've added a new section on copyright-related removal requests that shows day-by-day removal requests, as well as the reporting organizations and targeted domains. You can drill down to see more detail - particularly full lists of Owners, Reporting Organizations, and Targeted Domains. And if you have the stomach for it you can scan the hundreds of thousands of individual removal requests.

Sadly, it does not appear to be searchable (yet?) so I cannot search to see if someone has requested that, say, material owned by me be removed from any domain. This is important because in the past organizations that didn't actually own copyrights sent takedown notices. Only a copyright holder should be entitled to do that. Like any other 'big data' source the uses to which these data could be put are varied, but lack of search will hamper most efforts.

Google's FAQ on the new section doesn't discuss the searchability issue, but does provide more definition on which takedown requests are included in this report, accuracy estimates, and process steps. They also link to Chilling Effects, the joint project of EFF, Berkman and others, to track copyright takedown activity.

(h/t +Lauren Weinstein for the original pointer)

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

Creation is a Complex Process

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Posted by Alan Wexelblat

Scott Kurtz has a little mini-rant/thought piece up today on Avengers called "Where Credit is Due" about the success of, and authorship/creative forces related to, the Avengers movie. Kurtz is the force behind the "PvP" webcomic. As a web-comic author, Kurz often opines on Web versus print comics and related issues such as syndication.

PvP also deeply embedded within popular modern mass fan culture. One of the main characters in the comic is a total Apple junkie, always buying the latest gadgets on the day they issue. The strip often centers on the gaming magazine business (PVP is a fictional game zine/Web presence) as well as the gaming industry directly. And Kurtz displays a "Joss Whedon is my master now" banner on the site's front page. So he's more than a little bit invested in comic culture and the movie that was written and directed by Whedon.

In this column he's responding to the idea that the Avengers were, originally, thought up in large part by Jack Kirby creation, and as. Kurtz says:

[I]n many comic book industry circles, there’s a lot of hand-wringing going on about how all that money is being generated by Jack Kirby’s creations and none of it is going to his estate.

The problem, as Kurtz lays it out, is that a great many hands have steered the Avengers ship, as well as the stories of its constituent member characters, since Kirby's days. It has been over three decades since Kirby last worked on these characters and Kurtz points out that the images and styles used in the movies are much more based off the most recent incarnations of the characters. Notably, the comic-book version of Nick Fury that is in new stories today was specifically modeled off of the visual appearance of Samuel L Jackson, the actor who then went on to play Fury in the movies.

This raises a difficult question. There is no doubt that a character called "Nick Fury" was co-invented by Kirby and Stan Lee. But the Kirby/Lee character was significantly different from the modern Fury. And it's not like the modern Fury was all that recent, either - the look was launched a decade ago. So who "created" this Nick Fury, and who should take part in the character's lucrative movie success?

Kurtz also thinks that those complaining about how Marvel is distributing the Avengers' windfall are living in the past. He argues that, like the Fury character, the comics industry has revamped itself. The abuses that were perpetrated against people like Kirby and other original creators in the 20th century are, he says, "a battle we’ve already won." Things are better now, and ire against Marvel is misdirected.

Like Kurtz I'm not a lawyer and I haven't yet read beyond the press accounts of the case. I point out this column because I think the case of the Avengers shows just how complicated creative processes are. Sometimes it's easy to say "yep, that person created that thing" and sometimes it's a whole heck of a lot more complicated.

Comments (5) + TrackBacks (0) | Category: Big Thoughts

May 23, 2012

May 22, 2012

AFP on "Where Is All the Money Going?"

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Posted by Alan Wexelblat

Amanda Palmer posted a long (and, as is her way, rambling) blog entry/Kickstarter update addressing the question of "Where All This Kickstarter Money Is Going."

It's short on detail and long on concept, but it's still worth reading as it rattles off the very long list of people and things and responsibilities involved in making a major multi-faceted project come together. As I wrote back in April when I signed up for the Kickstarter, this particular vision of music's future isn't just about a band, an album, a tour. It's about bringing together dozens of creative people each contributing to a multi-faceted, multi-experience endeavor. And that kind of thing doesn't come cheap, even when many (most?) of the people involved are your friends and colleagues who share your vision and dedication.

Everyone needs to eat and artists need to get paid. If I have any criticism of AFP's approach here it's that she's very dedicated to pointing out that even if the Kickstarter clears a million bucks she's not going to get rich off it. That is important, especially when you're asking people up-front to give money and trust they're going to get something worthwhile down the road. As Palmer says, "...paying now for value later is what historically would’ve been a label’s primary purpose."

Since we (the Kickstarter backers) are taking that role, it's important we feel we're getting value for our invested dollars. Fine and good. But I'm very interested in this as a sustainable business model. If Palmer is right and the project looks only to break even then that's not good enough. The Kickstarter becomes an event, not a repeatable model. In my opinion, Palmer and the people who work on this (her band, her artists, etc.) should be making money this way, because art needs to be sustained, not just one-off events, and right now we don't have a better way to sustain art than to compensate directly the creative people involved.

Comments (11) + TrackBacks (0) | Category: Interesting People

May 21, 2012

Drew Wilson and the Science of File Sharing

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Posted by Alan Wexelblat

We've been here before, but never so comprehensively: actual real science indicates that the Cartel's claims about both file sharing and the legal responses to it are bunk. Hokum. Bad science. Bad conclusions drawn from bad research that was slanted toward a foregone conclusion.

What Drew Wilson over at ZeroPaid has done in this past month is lay out in painstaking extensive detail just exactly what's wrong with the Cartel's propaganda-masquerading-as-science. The link above takes you to his conclusion piece and from there you can link back to the individual stories. It's a lot of reading, particularly if you want to read the original research - there are links to every published paper on which the analysis draws.

In science jargon what Wilson is doing is a meta-analysis. He's bringing together disparate research work over a period of time that examines multiple aspects of a single topic. Meta-analyses and meta-studies are in the news a lot these days as they tend to throw into question long-held assumptions such as the need/safety of hormone replacement therapy or PSA testing. Meta-analyses are also a good way to shed light on situations where there are conflicts of opinion and each side can bring some facts to support its claims.

In Wilson's meta-analysis he draws on studies ranging over the years 2004-2011. By taking studies from different periods of time, the analysis also helps guard against short-term trends. As we noted when LimeWire was shut down a couple years ago, significant events can produce sudden blips in long-term data trends. A meta-analysis should help avoid over-reliance on these blips.

Without stealing too much thunder from Wilson's work I wanted to quote what I think is the most important conclusion that can be drawn from this research:

[L]osses due to file-sharing are statistically indistinguishable from zero.

That's right. All of this pain and fear and expense and suffering - a great deal of which is still ongoing, and our best wishes to Mr Tenenbaum - was and is unneeded. It's a stupid pointless painful jihad and it's time to call an end.

(h/t Cory and Boingboing for the original pointer.)

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

May 17, 2012

May 16, 2012

Elsevier Loses a Big Name, Publicly

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Posted by Alan Wexelblat

Elsevier took another shot to the face today, with the very public resignation of an associate editor of its journal Genomics.

Winston Hide, the now-former editor, is a teacher at Harvard School of Public Health, and his resignation reasoning centered around his feeling that Elsevier's high-priced model was not compatible with the needs of people in developing countries. Hide, who is South African, has some direct experience with trying to do research on the continent where, he says:

The vast majority of biomedical scientists in Africa attempt to perform globally competitive research without up-to-date access to the wealth of biomedical literature taken for granted at western institutions.

Hide now plans to devote his time to promotion of open-access journals. He also notes that being on the editorial board of a prestigious journal is an important career position and resigning may in fact impede his career advancement. I still believe that the one true way to break the lock that for-profit publishers have on this business is for the tenure- and promotion-review boards of major institutions to change their processes, and I'm not seeing any movement yet in that direction. But it's still early, and academe is slow to change.

P.S. The Cost of Knowledge petition is up over 11,500 signatories now. Just sayin'...

(h/t Donna Wentworth and Peter Suber of the Harvard Open Access Project for the original pointer. The Berkman Center hosts the HOAP as well as this blog but there is no direct affiliation.)

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

May 14, 2012

How The Harvard Book Store is Reinventing Retail Bookselling

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Posted by Alan Wexelblat

Writing for Forbes last week, Phil Johnson profiles the modern-day re-creation of the venerable Harvard Book Store. When I moved to Cambridge in the pre-Web days it boasted more bookstores (and ice cream parlors) per square meter than any other place on earth. Awesome stuff. But over the years they've been dying out, like small independent and big chain bookstores everywhere. When the biggest of the lot went under it seemed like confirmation that nothing could compete with Amazon and other online offerings.

But lo, Harvard Book Store is back, under the direction of Jeff Mayersohn, who previously worked in high tech - Sonus Networks and BBN are both on his profile. And Mayersohn knows that Harvard Book Store has to be able to take on the Amazon challenge and win. So far, so good. Forbes reports "double digit sales growth month by month over the last year."

How's he doing it? Innovation and service. Innovation: he's using print-on-demand technology to satisfy customers' instant-gratification desires. "The Espresso Book Machine" as it's called has a built-in inventory of 5,000,000 titles and can be used for custom publishing. The output is high quality, and if you know what you want in advance you can even order your POD book on-line.

Service: you can get your POD book delivered locally by pedal-truck or bicycle, which appeals to the Cambridge-area green-conscious buyers. Know your customer is an ancient sales adage that Mayersohn has taken to heart. And if you go into the store you get:

fanatical attention to customer service with an unrivaled staff of passionate and educated booksellers.

I might have mentioned that idea a few times recently.

Quick adaptation, a multi-pronged sales strategy, and an eye for winning details. Maybe it really does take a technophile to save a brick-and-mortar establishment. Are any other sellers out there paying attention?

(h/t Emily L for the original pointer.)

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

May 10, 2012

"The Mongoliad" As Business Model

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Posted by Alan Wexelblat

I recently got to hear Neal Stephenson talk at MIT. As usual, he was a pleasure*, and the talk ranged over a wide variety of topics, from why America is in a massive idea deficit to why we should all stand up more and sit down less. What he didn't really discuss, to my disappointment, was the Mongoliad. Fortunately, Mark Teppo's "Big Idea" post in Scalzi's Whatever gives a little hint of what's going on here.

The Mongoliad on offer here is a book - a collaborative work. But what's of interest to Copyfight is the structure and entity that produced this book. To quote Teppo:

[W]e formed a company whose goal was to realize a new paradigm in publishing methodology, and to promulgate an argument that transmedia empires could be built using small, highly agile teams that could shift direction quickly and efficiently based on customer need and reaction. Do more of what the fans like; less of what causes them to make the ‘meh’ noise.

This could be very interesting to watch. We're starting to see several individual names break out of the existing mold - Amanda Palmer obviously, but also look at Rowling's decision on how she wanted the Potter e-books handled. But these are all individuals. The obvious next step up is small groups of creative people, and seeing which parts of what business models scale.

*Though I was sad he utterly flubbed my question on design. He confused design aesthetic with implementation shoddiness. C'est la vie.

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

May 9, 2012

Village Person Terminates Cartel Rights

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Posted by Alan Wexelblat

Way back in August of last year, I noticed that there was a storm brewing over so-called "termination rights" in music recordings. That storm appears to have had a first crash, with former Village People member Victor Willis reclaiming his rights in some of their hit songs.

To review quickly: a feature of the Copyright Act that went into force in 1978 gave record companies 35 years' worth of profits from albums, after which the artists would be allowed to reclaim their rights in the music. Several artists have done so, and the Cartel is fighting them. According to Larry Rohter's NY Times piece linked above, Willis's claim was contested by Scorpio Music and Can’t Stop Productions, who had sued to stop him exercising his termination rights.

As I discussed in the August entry, Scorpio and Can't Stop initially contended that Willis wrote works for hire, meaning that he would have given up all rights. Chief Judge Barry T. Moskowitz of LA's Federal District Court, appeared set to reject that claim so it was withdrawn. Now Willis has back "his share" of ownership in 33 Village People songs.

That "his share" phrase leaves a lot of wiggle room still because the judge has to determine what Willis's share is. There's going to be a lot of unpleasant tangles yet to sort on this one, but it remains significant as the first case to test termination rights and the work-for-hire theory.

(h/t to +Rowan McVey and +Network XXIII News for the original pointer)

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Kindle Sales Dropping Already, Publishers Back Off IPad Apps

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Posted by Alan Wexelblat

Last month I noted that Charles Stross was giving the stand-alone e-reader 2-5 years, whereas I was betting that sales had already peaked and we'd see a decline after the holiday season this year. I might have been too optimistic.

Now comes Jon Mitchell on ReadWriteWeb, reporting that "Kindle Sales Plummet". He claims that sucks but I think he's exaggerating. Anyway, Amazon doesn't exactly report its sales of Kindles, so it takes a little bit of sleuthing to infer this. Mainly the inference comes from E Ink Holdings, which supplies the screens for Kindles, reporting that it had a quarterly loss due to a lack of orders from its biggest customer (aka Amazon).

What makes this double-interesting is that it appears that sales of Kindle Fires are also dropping, too. ISC reported that sales of all Android-based tablets dropped in Q1 2012, including Kindle Fires. This isn't hugely surprising to me, given both Apple's splashy announcements and that fact that Android tablets had a stronger-than-expected holiday season in 2011. It will be interesting to see how that holds up over the next couple of quarters.

At the same time, I'm interested to see that more publishers (of news, this time) are backing away from iPad-as-platform. As an MIT alum I got a notice from Tech Review that they are ditching their iPad app. The reasons are strictly financial - it cost a bundle and made no money - but it's a strong cautionary tale for people and organizations that are thinking about taking the Apple golden handcuffs. TR notes that the Financial Times also made a similar decision recently, and that both TR and FT have moved to a free/open model based off HTML5.

I feel like we're in the very early stages of a chess game - most of the things being moved are pawns, and people are just beginning to consider how they're going to achieve strategic objectives like "control the center of the board". I would not be surprised to see tentative moves and hanging back from most of the major players through the next 6-8 months as everyone waits to see how things shake out and what happens to early risk-takers.

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May 7, 2012

What to Read When Not Here

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Posted by Alan Wexelblat

Copyfight is getting comment-bombed again. I'm cleaning up as fast as I can, but things are sluggish. Apologies in advance.

Meanwhile, let me give you a couple of pointers to things I think are worth reading relative to the past week's stories.

Amanda Palmer wrote a guest post on techdirt about her successful Kickstarter, which is well on its way to being the biggest ever. As I mentioned last week, one of the few elements I see in common among all the new success models is relentless fan service and Amanda addresses that issue head-on. She talks about "all of that real human connecting" and how it has enabled her to do what she's doing now.

She's also emphatic about another point, which you can read on the Kickstarter site: we lead, the media follows. If you're going to be successful in the independent model of the early-21st century then you make the news yourself. You do it by networking, word of mouth, taking things viral, making info in easily accessible places, in easily reposted (unlocked!) forms, etc. One way to look at this is as a failure of traditional media; another way to look at it as an opportunity for new businesses. There should be people out there setting up companies that are devoted to helping people like Palmer do this because, really, you need some kind of management when your sponsor base is over 10,000 and growing.

I thought this bit was particularly apropos:

I've seen people complaining that this is easy for me to do because I got my start on a major label. It's totally true that the label helped me and my band get known. But after that, the future was up to me. It bought me nothing but a headstart, and I used it. I could have stopped working hard and connecting in 2009. If I'd done that, and then popped up out of nowhere in 2012 to kickstart a solo record in 2012, my album would probably get funded to the tune of $10k...if I was lucky. There are huge ex-major label artists (pointless to name names) who have tried the crowd-funding method and failed dramatically, mostly because they didn't have the online relationship with their fans to rely on.

Second, Cory Doctorow posted a piece in The Guardian on "Why the death of DRM would be good news for readers, writers and publishers." That's a real mouthful of a title but it serves its purpose: DRM is bad business and we need to get that message across much more widely and emphatically. Cory's column is reasoned and historical and it covers ground I expect most of my readers know.

I was sadly amused to revisit the column today in preparation for writing this piece and find on the page the notice that "Comments on this page are now closed." I'm trying to formulate a coherent response that is not laughing out loud at the foolishness and backward-thinking-ness of a site that would close comments on a column, let alone close comments on a column that's not even a week old.

Dear Guardian, comments are lifeblood. You want them. You need them. See above, where I spend my time weeding out spam comments? That's because I treasure the real feedback I get from readers. I love that my first tentative query about Createspace is one of the most commented-on pieces on this blog, over four years later. Do you think Amanda Palmer would ever close comments on something she posted? I think not.

Get with the program, Guardian. You're not doing yourselves, your readers, or your writers any favors here.

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May 3, 2012

Amazon is Nobody's Darling Right Now

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Posted by Alan Wexelblat

Consensus seems to be that the willingness of at least some publishers to settle the DOJ lawsuit rather than fight will put Amazon back in the catbird seat. Lots of people are reacting to that; herewith two that came across my screen today.

First, Target isn't going to sell Kindles anymore. The problem isn't the Kindle per se. It's that Amazon has been using physical retailers as its (unpaid) showrooms. Amazon has encouraged people to go shop in physical stores, then price-compare and buy from Amazon - even offering a discount for doing so. That may be a few bucks in consumers' pockets, but it's a big hit to the brick-and-mortar retailers who are losing customers right out of their showrooms.

Target is still a small fraction of Kindle sales, even though it's the biggest non-Amazon seller. So this mostly amounts to a symbolic middle finger to Amazon, since Target will continue to carry iPad and Nook devices. It's worth noting that both Apple and B&N have large physical presences and as such are much more careful about how the online and retail shopping experiences merge.

Second, Mark Glaser of PBS's Mediashift pointed me to a column by Barbara E. Hernandez titled "Can E-Books Succeed Without Amazon?" The heart of the issue seems to be Amazon's KDP Select program, about which I wrote in March. As I intimated then, the program is a hammerlock on an author and buying into it might not be the brightest move for any aspiring writer.

Hernandez paints a picture of Amazon as "heavy-handed" and notes that many authors are opting for smaller publishers who offer more freedom and leave the authors more in control, such as Bookbaby and Smashwords. Harkening back to the first story, Hernandez quotes Smashwords founder Mark Coker as saying

KDP Select [is] using self-published authors as pawns [in] a broader campaign to wage war against retail competitors

That's another bad move on Amazon's part, but they're still the 500 lb gorilla in the room. Authors ignore them at some risk. Let's just hope the gorilla decides to be better-behaved.

(full disclosure: a couple of my author friends have chosen to go with Smashwords, but I have no incentive to promote that alternative. As noted, I don't even own an e-reader yet.)

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May 2, 2012

UK Academics Move to Free Up Taxpayer-Funded Research

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Posted by Alan Wexelblat

The Guardian reports that the UK government has engaged Wikipedia founder Jimmy Wales to help with a project intended to unlock taxpayer-funded research.

One of the little-reported aspects of the current situation in academic research publishing is that much (most?) of the work that is put into these very expensive academic journals is paid for by the taxpayer. In the US there are funding agencies like NIH, CDC and of course ARPA that funnel taxpayer dollars to researchers. In the UK and elsewhere there are similar agencies and grant programs that make this research possible.

Given, then, that the work was paid for by the public it seems a wholly fair question to ask by what rights are the fruits of that work concealed from the public behind expensive paywalls. Wales acknowledges that academic publishers bring value to the process of research publication. However, adding value doesn't equate to having a monopoly lock. Or at least it shouldn't. The effort, dubbed the "Gateway to Research project", has about two years, and currently about UKP 2 million to create an open access environment. They're working with several partners in the UK, including representatives from academia, librarians, and publishers.

There are a number of thorny questions to be hashed out - it's not just as simple as moving research papers from expensive journals to a free Web site. How will research be accessed? How will it be vetted? What processes are necessary for updating or outright retraction of research? What other research materials might be valuable in such a portal - personally I'd like to see the inclusion of things like molecular models, part descriptions, software simulations, data sets, data analysis tools and much more. But can anyone make head or tail of this if it all gets dumped into one portal?

All of these are good and tough questions. Now the next question we want to be asking is: why limit this to just the UK? Where is the US effort?

(h/t Donna Wentworth... yes THAT Donna Wentworth for the pointer)

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May 4 is Coming Again - International Day Against DRM

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Posted by Alan Wexelblat

A couple of Copyfight readers pointed me to Defective By Design's "Day Against DRM" scheduled for May 4th, a subsidiary of the Free Software Foundation.

Last year the event attracted little media attention (see PCWorld's coverage from that day) and, sadly, it appears that little notice will be given again this year.

As the site notes, there has been slow progress on the de-DRM-ing fronts of the past. In particular, much more music is available for download unencumbered now than in the past. But the new fronts that have opened up - particularly ebooks and streaming music/video - remain badly broken and un-free for legal, private uses because of DRM.

DRM is bad business, and bad user experience. Let's get some attention on the need to make it part of the past.

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May 1, 2012

Two Follow-ups on B&N/MSFT and Palmer

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Posted by Alan Wexelblat

Both of the stories behind yesterday's pair of posts are getting more commentary. Here are a couple quickies and thoughts to go with them:

Michael Marotta writes for the Phoenix on Palmer's choice to skip the major-label route. The Phoenix, being Boston's alternative paper, was one of the first media outlets to notice and publicize Palmer and the Dresden Dolls. Thus, she writes them from time to time.

In her letter this time she points out that even though the Kickstarter has blown the roof off its fundraising goal that still only represents a few thousand fans. Any major-label release that sold that few copies would be considered a flop, and the artist would make no money, never mind that a major label couldn't possibly manage to put out the kind of complex multi-pronged project that Palmer is fundraising for.

In response to yesterday's post, Luis Cruz asked the question of how well this model would work for someone who isn't already established with a fan base. It's a fair and unfair question at the same time. The answer is we don't really know - there are thousands of people trying to find their way through Kickstarter, maxing out their credit cards, busking, playing open mic nights, etc. A few will make it via each of these routes but most won't. But they don't have a lot of alternatives - the number of acts that will make it via the major-label last-century model is also minuscule.

Each year we see a few creative types that seem to break out (Jonathan Coulton, Felicia Day, etc.) and each has a unique path to present success. There doesn't seem to be a good general model, but I think we're starting to see certain elements in common. For example, intense fan service, a hawk eye on the business details, and a willingness to roll with the punches and adapt all seem to be necessary ingredients. Palmer's success didn't come overnight - Dresden Dolls formed in 2000 I think - which means she's busted ass for over a decade now. What she's doing now would not have been possible in 2000 but that says more about the Internet age than about Palmer.

On the Microsoft/B&N partnership, the blog entry by Tobias Buckell is typical of the reactions I'm seeing. Buckell's point, which I think is spot-on, is that this is not at all about a Windows 8 Nook. It's about the merging of two software ecosystems and the possibilities that opens up. And also that neither big entity seems to have concrete plans for how that's going to happen. Hell, they couldn't even figure out a real final name for their joint venture. This makes me think the whole thing was rushed and not necessarily well thought-out.

Above I mentioned "rolling with the punches." In particular I think a key element of this is being willing to re-invent one's self-conception. Day moved from doing standard television shows to running her own YouTube channel. Palmer has always had theatrical elements as part of her musical acts, but lately she's added spoken word, poetry, and art/photography. What makes me doubt that the MS/B&N merger will work is that I can't see either company pivoting quickly enough to re-imagine themselves in new ways. But a big bankroll buys you a lot, not least of it time, so I'm not willing to write them off entirely just yet.

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