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.
Out of the public eye, sure. Still lining the lawyers' pockets, though. Another issue appealed, upheld in part and reversed in part. To be fair to the hired guns they are doing this because it's their jobs. The real fault lies with the warring parties who would rather litigate this sort of thing endlessly than behave like reasonable corporations and negotiate a settlement. Maybe corporations are people, after all, just not very mature ones.
Jim Hines gives us his version of "Publishing 101" in which he takes apart some of the most common criticisms of John Scalzi's big book deal. As Scalzi has pointed out in many past blog entries, publishing at its base is still a business. We may love the authors and books and things that publishing gives us, but the publishers (like the authors) are in this to make a living. Tor, in giving Scalzi such a large deal, is saying "we believe that we will make a lot of money this way." That's a very interesting statement about the future of publishing, and not something about which one ought to make ignorant assumptions. It's possible Tor will be wrong and they (like other today-profitable businesses) will end up losing money or even going out of business. But that's something we have to wait and see, not something you can divine from the entrails of this deal.
If you're Jim Hines, apparently pretty well. Hines reports on the experience of having his Libromancer selected for the cut-price (USD 2) deal. He reports that the result was a surge in sales, a competitive price cut from other retailers, and apparently there's some noticeable pull-through of other things he's written. He sold a good number of the KDD title, but also noticed that sales of his other two books came in with above-average sales volumes. He still doesn't have royalty numbers, so it's not yet clear what the impact on his bank account will be, but it seems pretty clear he's boosted his fan base through this surge in publicity.
The first of the disputes between Apple and Samsung has reached the CAFC. Dubbed "Apple I" because you just know there are going to be more cases appealed up, this is the one where Samsung lost a jury verdict on the order of a billion dollars. The technology at issue is now ancient - four years is forEVER in the world of mobile phones - but if Apple's IP claims are upheld it will strengthen their hand in every other suit still at issue.
Music Business for 21st Century Independent Artists
Dave Kusek, who used to teach music business at the Berklee Music School here in Boston, has teamed up with music marketer/manager Rick Barker to create a video training series for new artists looking to make it outside the major label system. They're advertising it as a "free video series" (I got one of their ads) and it looks interesting. My guess is there's some hook to help pay for the work Kusek and Barker have done - if you try this thing, write and tell us how it went.
An interesting note in a 7th Circuit case, M. Arthur Gensler, Jr. & Assocs., Inc. v. Strabala shows how judges are continuing to apply the standards of physical property to intellectual property. In this case a dispute arose over the authorship (if you will) of a building. The Seventh ruled that "design" is a form of creation of intellectual property creation equivalent to building or selling physical good. As such, it's subject to various regimes of ownership, trademark protection, and so on.
Our friends at ISRI pointed out to me that some mobile companies are now promoting the idea of a "kill switch" that would be under the control of someone other than the user. Such kill switches are supposedly for consumer protection - disabling stolen devices - but end up being a way for manufacturers, phone companies, etc. to keep devices off the second-hand market. Kill switches per se are not bad - they just need to be under the control of the person who purchases the device so they can be legitimately disabled. Like other such technological locks, kill switches are probably under the DMCA umbrella that prevents legitimate disabling or circumvention.
My favorite design podcast, 99% Invisible, did its episode this week on "Duplitecture". That starts out being about the vast cities in China that are conscious re-creations of architecture from elsewhere in the world, and delves into the long history. For us Americans it's worth remembering that many of our most famous building designs (the White House, Jefferson's State House for Virginia) were themselves copies of older building ideas. The podcast's host, Roman Mars, comes out strongly in favor of "mindful iteration" as a valuable form of copy-inventiveness.
Our friends at ISRI sent a note saying that Congress had gotten its act together to pass the bulkily named "Unlocking Consumer Choice and Wireless Competition Act" which includes provisions allowing companies and individuals who recycle and refurbish electronics to unlock them as part of their business.
Mike Masnick's piece on Alice v CLS Bank more or less follows the lines I'd expect. However, he points out that Thomas's opinion, rejecting the Alice patents because of generic computer implementations, doesn't give good guidance because the same argument could be made about any computer program. In essence, Masnick argues, SCOTUS is continuing to pretend that some software is patentable and some is not, while refusing to give examples or guidelines for drawing that distinction.
A reader pointed me to a blog entry over at the Library of Congress discussing animated gifs. The posting describes a little of the ubiquity of these Internet-spawned forms of communication and then asks the question: what about copyright? The answer seems to be that copyright claims don't arise because animated gifs rarely attribute authorship to their creator and because they often use tiny fragments of previously published media in a society where we generally understand the creative reuse of small samples to be fair use. RIAA excepted, of course.
A European reader wrote to tell me that in the EU, there is in inter-library loan possible for e-books. Is that also true in the US? Yet another way e-books are inferior to their physical older brothers I guess.
Or so claims Ian Sample in the Guardian. He describes how what started as a hoax - create a program that would write a nonsense paper and get it published in academe - has turned into over 100 papers that have had to be retracted. The root of the evil as usual is money: journals charge exorbitant fees to universities for journals in which those same universities pressure researchers to publish. We've talked about this before; until "publish or perish" changes, this sort of scam, rip-off, and gigantic waste of time is going to be the order of the day.
Bucking the latest wave of "the blog is dead" thought posts, LinkedIn is extending the ability to write long-form texts to all users. Originally, this ability was limited to selected "thought leaders" picked by some arcane internal formula. Now anyone will be able to do it. I don't think this is hugely significant, but it is interesting that LinkedIn is taking this move, because it has lots of data on what its users like and want to read. Clearly users are reading those thought leader posts as well as external blog posts that users can already link, and the company wants to keep capturing that Web traffic.
And this is why I don't gamble on horses or the stock market: I'd said the odds of the Supreme Court granting cert in this case were slim, but here we go. I haven't seen an arguments schedule but I'd expect this to be calendared for Spring. Aereo did not oppose the cert, which makes some sense since they're getting dragged into court everywhere, but it's a truism that the Supreme Court rarely takes cases just to uphold verdicts. There's a good chance the justices want to revise the case on which Aereo is building its business, which could end them once and for all.
Via Mike Masnick, news that the MPAA has joined the W3C. Of course the Web consortium is free to accept money from whomever it pleases, but if you think this is somehow unconnected to the recent attempt to jam DRM deep into the core of HTML then you're more naive than I expected.
Via Cory at Boingboing, news from the EFF that their reading of the current TPP draft indicates it would eliminate artists' termination rights. We looked at termination rights back in 2011 when some of the biggest names in music from the 70s were organizing to get their album rights back. My bet is that the Cartel is seeing its perpetual money machine slipping away and is scrambling around for any way they can find to undo the agreement they made in the 1970s, when nobody thought an album would be worth anything 35 years after it was recorded.
Aereo sent me a copy of a statement from its CEO, Chet Kanojia, in which Kanojia explains the company's decision not to oppose broadcasters' request for certatori before the US Supreme Court. Essentially, they'd rather not have to fight this out district by district, Circuit by Circuit. While I sympathize with this desire it's important to keep in mind that SCOTUS denies the vast majority of cert petitions. In situations like these where there is only one Circuit decision and every other district has aligned with that decision I think it's extremely unlikely that this petition is going to be granted unless there are four Justices that want to revisit Cablevision.
Contributory Cybersquatting Not Viable in Trademark
Or so seems to say the 9th Circuit in Petronas v. GoDaddy.com. Petronas sued GoDaddy for its role in registering and helping maintain two domain names that included the string "petronas" and that directed people to porn sites. Petronas alleged that the registrar contributed to the infringement on trademark that these domains created. I've read the cited statute and it doesn't seem to provide any cause of action for contributory parties, so I'm inclined to agree with the court here. But other courts may decide otherwise or this may get appealed and the 9th has a terrible track record when their decisions are subject to SCOTUS review.
Interesting review in the New Yorker this week, covering Professor Anita Elberse's book Blockbusters. I have not read the book itself, but the review describes Elberse as a long-tail skeptic. In particular, the question is whether the long tail, as popularized by Chris Anderson, will supplant the blockbuster/swing-for-the-fences model of success in businesses such as books and movies. Elberse argues that although Net-based models enable more choices, "the vast majority of the revenue remains in the head" - that is, the big-name mega-million hits that characterized books, movies, records, etc for most of the last century. If anyone reads the book and has an opinion please let us know.
Under that catchy title, PBS Digital's "The Idea Channel" poses the question - what makes pop music popular, and how should all this stuff be priced anyway. In a fast-paced ten minutes they focus on the role of radio, with its implicit payola and surprising reach, in making a musical act popular. A popular act's songs may appear in movies/commercials/etc but first they gotta get there and becoming "pop" is a black art at best.
The latest update from 99% Invisible is out, and at the start they report on their Kickstarter progress. As I mentioned last time, their stretch goal was "provide healthcare for employees" - like we expect businesses to do - and apparently that goal got blown away. Interestingly, Roman Mars reports that many of the supporters upped their pledge in response to this goal. Obviously (public) radio listeners and Kickstarter backers are an atypical slice of the general population, but I think it bodes well if people buy into the idea that supporting new businesses means supporting all the things a new business needs to do. They are currently working on building out a larger base of supporters, as they have lined up a challenge goal whereby getting 10,000 backers at any level will get them a specific donation from a sponsor.
Who Knew There Was An Institute of Scrap Recycling Industries?
And more relevantly to this blog, who knew that the Institute of Scrap Recycling Industries had a position on unlocking devices? I knew neither until I got a press release this morning from Mark Carpenter at ISRI. The release states that the organization - which includes a large number of electronics refurbishers as well as component recyclers - believes that allowing consumers to unlock their devices is an important step to keeping more electronics out of landfill. As a result their organization will join in the lobbying to get changes to US copyright laws that currently prohibit or restrict unlocking electronic devices. My opinion is that as we move toward an "Internet of things" this is going to become an increasingly important fight.
The next time some wise-guy tries to tell you how easy self-publishing is, just refer them to this here blog entry by Ursula Vernon, who has apparently spent far too many hours hassling with the idiotic mechanics of self-publishing files, formats, and software.
Mike Schroeder at Aereo sent me another blurb. Usually he's announcing a new city they're marketing to, or another platform app - Android was added just this week. This time it appears that Judge Gorton issued a ruling in Hearst Stations v Aereo denying the Hearst empire's request to shut Aereo down while the trial ground on. A preliminary injunction would have been granted if the judge felt that Hearst was sufficiently likely to win at trial or if failing to do so would have caused a significant or irreparable harm. Aereo is far from in the clear, but they can continue to do business for now.
I confess I don't know or follow trademark law at all closely so I was interested to read this promotional piece sent to me by Leading-Edge Law Group: a list of (their) seven big highlights in the past year of trademark law. It's an interesting area but a lot of what they list here look like lower-court decisions that might or might not stand up in higher court rulings. Stay tuned.
Under the startlingly mis-named "How I Failed", Tim O'Reilly looks back at how the company has been built and where things could have been better. Don't get me wrong - I believe failure is a necessity as is understanding and learning from our failures. But this essay is about so much more, including impassioned and valuable arguments about the harm that DRM does. As he says, "[L]ocking books up in proprietary file formats is a path toward a digital dark age."
With that tag line, Kevin Spacey stakes out his view of how television has been good and how it can get better. His James MacTaggart Memorial Lecture is well worth watching for an insider's view of how creative people in television can and should behave. As someone who has made the transition from the Old Vic to traditional television and movies and now to a major online-only dramatic series he's seen a lot and is very articulate in putting it together. And I can't resist quoting this line: "We (meaning himself and Netflix) have learned the lesson the music industry didn't learn - give people what they want, when they want it, in the form they want it in at a reasonable price and they'll more likely pay for it rather than steal it."
A Copyfight reader sent me a pointer to a new film called Fire in the Blood that is about the global AIDS epidemic and the use of patent systems to control the drugs used to treat the disease. I've watched the preview and it's pretty clear that the film has a strong advocacy point of view, and makes some pretty impressive claims about malice and conspiracies. Anyone seen this yet and have an opinion?
I started watching tested.com's segment on their Comicon robot just because it's inherently cool. I found that the video is laced with Copyfight goodness, as the builders talk about the value of Arduino, open-source, and how they liberally copied and improved on ideas from other special effects shops, puppeteers, and robot labs.
In its appeal of a district court finding, Fox network has lost another round in its fight against Dish. Dish was sued because of its "PrimeTime Anytime" and "AutoHop" products, which gave customers control over DVR recording schedules and the ability to skip commercials embedded in network broadcasts. The Ninth held that "[a]lthough Fox established a prima facie case of direct infringement by Dish customers, Dish met its burden of demonstrating that it was likely to succeed on its affirmative defense that its customers' copying was a fair use."
The Verge has a cute story on how two people - elderly, church-going retirees who gave up musical careers - have come to be the voices most often heard in places like airports, subway stations, and other public transport facilities.
The team at NPR's Planet Money took a look at this question for standard headache remedies (asprin, etc) that are long out of patent protection and found that even though cheap generic versions are often shelved side-by-side with the more expensive brand-name versions, brand names still thrive. These are drugs that are long past, or never had, patent protection, so the question of why sales of non-generics still thrive. The answer isn't easy to figure - it has something to do with convenience, something to do with image, and something to do with lack of information. What it does highlight, though, is that monopolistic practices aren't the only route to success in a competitive marketplace.
About a week after its bizarre attempt to make the Xbox One as gamer-hostile as possible and in the face of a slew of criticism from all sides Microsoft has publicly climbed down from the ledge and said it now sees reason. In a news post on the Xbox.com site, the company announced a reversal of its previous policies requiring always-on Internet and doing away with its obstacles to used games - at least, used games with discs. Since gaming discs are going the way of the dodo that's not a huge change. The status of region-locking is less clear - the posting says you can "take your Xbox One anywhere you want" but the region lock was based on the company's hosted service Xbox Live not offering certain titles in certain countries. That appears still to be in place, in which case EU regulators may want to have a word with Redmond. Again.
Microsoft seems to be all about the DRM with its latest entry into the consumer market. It is now confirmed (here reddit dissects the official Xbox Twitter feed) that only 21 countries will be able to use the console on launch. Notably this "region coding" splits up the EU - most countries are in but some are out - and it also excludes Poland, the development home of The Witcher game series, a title Microsoft touted in its E3 launch presentation. Yes, that's right, the developers of this Xbox launch title will not be able to play the game they developed. I generally find it wise to assume that Microsoft are not stupid, but whatever their plan is, it's eluding me here. Sony was quick to announce that its competitive product, the PS4, would not be region-locked.
This isn't really a core Copyfight story but it's too good to pass up: Fuzz Hogan for Zocalo explaining why CNN can't tell good stories, yet has rising profits year over year. We've been hammering at the idea that old business models are disintegrating and media giants need to evolve to survive and guess what? CNN has done just that. It's set up a system that gets it a nice chunk of change by producing crap, but crap that gets used and reused and paid for. Good stories are nice but if they don't bring in the money they won't happen.
There's a great big glob of information officially released by MSFT about its next-gen console, dubbed Xbox One. The nanny features are extensive, particularly for gaming. Your console has to be able to verify legitimacy with home base at least daily or you get locked out of all your games. If you sign into your Xbox Live account from any other console it checks once per hour. So no rooting, no hacked games, and no games that aren't MSFT-approved. The definition of what's "approved" changes whenever MSFT decides it should and if it doesn't like what you're doing, it'll remotely brick your hardware for gaming. And gods help you if Microsoft's authentication servers happen to hiccup when your box phones home to authenticate.
Amazon Strikes Another Deal That Is Good for Amazon
While I'm waiting for the dust to settle and clarifications to be clarified I suggest you read John Scalzi's "Instant Thoughts" blog post on Amazon's new "Kindle Worlds". Scalzi points out what immediately occurred to me, which is that this is a very good deal for Amazon and probably not such a good deal for other participants. It's also nice that he notes the public domain as an alternative.
This has been well-covered elsewhere. I just wanted to point out - thanks to Ken White at Popehat - that the Judge clearly understood how Prenda were taking advantage of the horrible state of copyright law in the US. "[Prenda] discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs [...] So now, copyright laws originally designed to compensate starving artists allow, starving attorneys in this electronic-media era to plunder the citizenry."
I got a press release from Aereo today indicating that they are going to launch in Boston in mid-May. Significantly, this is outside the Second Circuit, where Aereo recently won its appeal. If I was a betting man I would bet that this will be an invitation for the broadcasters to file a new round of lawsuits in hopes of finding a friendlier ruling and creating a variance in opinions that could pressure the Supreme Court to revisit the 2nd's decision.
Patent "Monetization" Entities... Which is to Say, Trolls
A study report out of UC Hastings College of the Law reports that "patent monetization entities" - called "trolls" in the headline - filed 56% of patent lawsuits last year, more than double the percentage of five years ago. Hear that, Apple? You get cracking now! On a more serious note, the study also looked at public notification systems and determined that they are woefully inadequate. People and companies are not able to find out when patents are being asserted in lawsuits, which deprives them of the chance to avoid infringement.
David Post, writing at Volokh Conspiracy on the Kirtsaeng decision, is worth quoting entirely: The Court – in a utterly brilliant opinion by Justice Breyer, a minor classic of the “here are all the reasons why my arguments are better than yours” school of opinion-writing — rejected Wiley’s argument and refused to impose the geographical restriction Wiley sought.
Why TV Ad Revenue Goes Up and Internet Ad Revenue Goes Down
This is pretty far off the nominal Copyfight beat but I could not resist pointing to Felix Salmon's column on "Content economics." It's a very good look at why Net advertising is not the same as/does not replace TV advertising and why broadcast TV can keep raising its prices even as its viewership shrinks. Hint: it's all about the fragmentation.
Dear Gamers Workshop, Welcome To Social Media Hell
As I mentioned yesterday, GW has acquired a whole new set of un-friends. Today they hit the bigtime, with a front-page linked article on io9, a very popular site for SF/F/gaming/movie genre fans. Apparently they're also getting thrashed on Twitter. Dear GW, back down now. Apologize. You need to stem this tide. Every minute you let this go on your name becomes more mud. If this goes on for a week it'll take you a year to wash the stink off. The entire Northeastern US is sitting at home under a blizzard and has nothing to do all weekend except talk about how shitty you have been to one of our friends.
An acquaintance who's trying to shift from "having a day job" to "making a real living as a musician" sent me a link to Cashmusic. This is a new non-profit organization that bills itself as building "open source tools for musicians". The artists still need to do a fair bit of heavy lifting, but as a non-profit they may be well positioned to help get funding streams for creative types flowing. They did a Kickstarter to get some funding and today they announced their open beta. I'm not a music-maker but if you are and have a chance to try them out please write in with your experiences.
A colleague of mine posted a link to this set of Flikr images by user b_carruthers. The set is called "Similarities" and shows pairs of images that are visually similar - some on purpose and some by accident. It's a good reminder that our laws about creative originality rarely line up with how actual artists actually create.
Following Canada's lead, it appears that the UK is set to introduce a number of important private exceptions to copyright restrictions that will help regular private users, users with various disabilities, educators, and so on. Michael Geist has the whole list in his blog. The overall idea seems to be a recognition that activities people do for certain reasons, such as individual back-up, classroom teaching, etc. are not inherently violations of the commercial marketplace's enforceable copyright restrictions. These exceptions don't touch on commerce; instead, they appear to add a hefty amount of sanity to recognizing that peoples' everyday activities are not theft.
Instagram Isn't Owning, Just Granting Itself License
An astute reader pointed out that I had misinterpreted the new Instagram Terms of Service. As they've hastily tried to clarify, they don't claim "ownership" of your pictures, they just (and here I'm quoting the ToS) require you to: "grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service..." Got that? It's a subtle distinction - owning versus getting to use however they want - apparently too subtle for me. And remember, still no way to opt out except closing your Instagram account.
Tobias Buckell, At Length, on His Kickstarter Experience
It seems wrong to write so few words in response to a 5,000 word heartfelt experience report, but really I have not much to add except, "Go read this!" Buckell is what we used to call a mid-list author and his Kickstarter story is really important to understanding how someone who has some fans but isn't A Very Big Name can use a lot of hard work and new (self)publishing models to change their career. (h/t John Scalzi's "Whatever" blog for the original pointer)
Guy Kawasaki, a man with more than a few books to his name, did a piece on Minnesota Public Radio on self publishing. He lists five benefits and three drawbacks, all of which we've touched on to some degree. In his Google+ posting highlighting the show he called attention to the extensive comment (currently first on the list) left by a woman who has used self-publishing to turn around completely her experiences as a romance-novel author. It's a good reminder that you can't easily lump together all the different segments of publishing and get a unified picture. Romance is not textbooks is not reference books is not SF/F, and so on.
Independent e-book publisher Fictionwise is ceasing operations. They blame the demise on backing the wrong technological (format) horse. Fortunately for Fictionwise's readers, their accounts won't go away entirely. Fictionwise has arranged to transfer readers to B&N's Nook Library infrastructure. As one of my friends pointed out, though, this FAQ is conspicuously silent on the question of DRM, which Nook has and Fictionwise did not.
In a completely un-shocking move, Judge Koh has agreed to hear motions and arguments on the question of whether the foreman in the well-publicized Apple/Samsung trial improperly influenced jury deliberations. Unless I'm mis-remembering, about 48 hours after the verdict was returned SCOTUSblog said this would happen. The guy may even have lied during voir dire which might be grounds for a whole new trial, not just nullification of the verdict.
This is Happening Right Now: Amazon DRM-nukes a Customer
This link is going viral in the spaces I inhabit right now. Short form: an innocent woman has her account closed and her (paid-for) collection of Kindle e-books nuked with no warning and no explanation by Amazon UK. This is, as the blurb says, DRM gone insane. I did tell you that e-books suck, right? As I write, the link has appeared on popular blogs including our friends at Boingboing and people are starting to post copies of the WTF letters they've written to Amazon. I anticipate we'll see an apology and retraction by tomorrow AM, which will be great for the individual woman but still leave all the rest of you e-book readers hanging by the same thread.
A Copyfight reader responded to yesterday's story about Bowman v Monsanto to say that he believes SCOTUS will reverse in this case. The reason is that unlike Circuit courts, which can disagree with each other on a matter that SCOTUS must then settle, the Court of Appeals for the Federal Circuit (CAFC) is the binding decision body for patent matters. Its decisions have precedential weight; therefore, if SCOTUS simply wanted to affirm that CAFC was right in this case there was no reason to grant cert. Since they took the case, ipso facto, one is led to believe they intend to reverse. That may still not happen since only 4 Justices' votes are needed to grant cert and 5 votes are needed for a majority, but it's the way this reader is betting.
Sometimes the lede is just so perfect I can't improve on it. Therefore: The Pirate Bay has made an important change to its infrastructure. The world’s most famous BitTorrent site has switched its entire operation to the cloud. From now on The Pirate Bay will serve its users from several cloud hosting providers scattered around the world. The move will cut costs, ensure better uptime, and make the site virtually invulnerable to police raids — all while keeping user data secure. (h/t +Rob Malda for the original pointer)
Cory Doctorow's announcement that he is direct-selling the (professionally done) audiobook version of his recent Pirate Cinema reminds us that one of the big problems with mainstream online retail outlets (*cough*Amazon*cough*iTunes*cough*Audible*cough*) is that they all refuse to carry DRM-free titles. Even though the publisher (in this case Random House Audio) is perfectly willing to make the high-quality title and wants it sold, the retailers are blocking it. Get a freaking clue, already, guys.
Observant e-book buyers have mailed to let me know that some of the effects of the e-book price-fixing settlement are starting to be seen. When you buy e-books now in some online stores (notably Amazon) you can see text stating that the book's price is "set by the publisher" or "sold by $publishername." Other e-books, from companies that signed the settlement, are starting to come down in price as well. If you see something interesting in this space do drop me a note.
WIRED offers up an amusing Wargames-themed info-graphic mapping the current patent war between Apple and various proxies for Google (Motorola and Samsung primarily). Click on a country to get a pithy summary of what each player has going in the current situation, but realize that the main event has yet to start. And when it does we are all going to be sadder and sorrier.
Julie Hilden has a nice primer up on Justia's IP Law blog on how fair use cases can be reasoned. Using the case of Monge v Maya, in which a panel of the 9th Circuit just overturned a previous decision, Hilden traces the classic four-factor test that is intended to guide courts in determining if a use of copyrighted works is fair. In this case - concerning stolen wedding photos - Hilden walks through how two of the three judges found the factors to weigh against Maya. The fact that the decision was not unanimous, though, shows that these factors are broad and general enough to be subject to different interpretations and weighting and I would expect Maya to ask for an en banc re-hearing.
According to Dan Rowinski in the latest ReadWriteWeb/Mobile posting, the reason why Apple has embarked on a world-wide patent war is because they're losing the marketing war, badly. Specifically, it appears that the Apple share of the smartphone market has dropped to just under 17% while Android devices (across all makers) accounts for just over 68%. Samsung, the latest Apple target, accounts for 44% of Android devices. If you can't beat 'em, sue 'em - where have we heard this before?
A new update notice from Google's "Inside Search." is getting notice in the copyfight community. The notice describes a new change in Google's ranking algorithms that will cause pages with "valid copyright removal notices" to appear lower in the rankings. It's an interesting step, and given that it's based on validated notices it's certainly better than basing anything on filed notices. Still, the notice-and-takedown process is far from perfect, particularly for people who want to contest notices, and I hope Google keeps a close eye on how this one plays out.
Research Project on Growing Book Challenges in the US
In this case a "book challenge" is an attempt to have a book or other reading material removed from publicly accessible spaces, usually library shelves or school curricula. The good folk at the Comic Book Legal Defense Fund sent out a press release calling attention to a project by the Missourian titled "Unfit to Read?" The project notes that some challenges have been successful and that both the number and success rate of challenges appears to be on the rise; it then examines reasons for these trends, with some examples and supporting graphics.
On his personal blog, Lauren Weinstein catalogs the history of this current #NBCfail. His focus is on the Streisand Effect but I was taken by the NBC network attitude that American audiences are "too stupid". We're too stupid to install TORbutton, too stupid to watch sporting events without editing and commentary, and too stupid to figure out and get away from the ongoing scam that is pay-one-price-for-shit-you-don't-want cable subscriptions. Yeah, right. I'm reminded of Amanda Palmer's observation that the entire big-label music industry is built on the premise that people have to be tricked into parting with their cash. Can you imagine if television was built, instead, on the idea that there are millions of passionate fans out there who will pay money to get what they want, when they want it, how they want it? That would be cool.
Suddenly, it seems, stories about the end of cable television are everywhere. Today's entry from ReadWriteWeb asks how we will watch television in the future. That's actually an interesting question, since I don't expect cable TV to die and vanish overnight. There will be a transition period, which I expect to last most of this decade. Cord-cutting for an individual or household is sudden (we just dropped our cable subscription today, for example) but national trends are slower. There's still time for cable and network execs to realize that people will watch television, but it needs to be served Internet-style, which means much more on demand, much more a la carte, and much better integrated into other digital offerings such as Web sites, social media, and new offerings that are only now in the incubator stages. I will probably not blog a lot more of these general high-level stories but readers with items of specific interest should feel free to keep sending them to me.
Nature, the highly respected journal, that is. If you are interested in a quick peek behind the scenes at how editors for big publications balance and swing with the authors trying to get published, I recommend Friday's blog post from Action Potential, one of the blogs at nature.com. It talks about how two similar papers came to be published separately despite similarities while a third paper, also similar, did not get published (there).
I talk a lot about the need for new business models that are realistic and sustainable in the digital-centric 21st century. Sadly, we're also in need of some serious updating of government policies and practices, too. David Kravets had a nice piece on WIRED yesterday profiling Judge Sofaer, a man of long judicial and prosecutorial experience. Sofaer has joined EFF in fighting the US DOJ's seizure of innocent peoples' content just because that content happened to be hosted on a Megaupload server. In the piece Sofaer notes that there are reasonable, well-tested procedures for handling things like seizures and criminal evidence that simply aren't being applied to digital cases.
I've been enjoying my subscription to Justia's Intellectual Property Summaries e-newsletter so I thought I'd pass on that pointer. Justia publishes a variety of newsletters including editorial stuff, opinion summaries by various (US) jurisdictions, and by practice area, including of course Intellectual Property as well as more specialized summaries related to Patents, Copyrights, and Trademarks. The summaries are brief, generally well explained, and contain links to the fuller case material if something piques your interest.
Katrina Kaiser has an interesting Q&A with Lino and Mario Bocchini up on EFF Deeplinks. The siblings are in a multi-year fight with the major Brazilian newspaper Folha de São Paulo over their parody site Falha de São Paulo. "Folha" = newspaper, but "Falha" = fail and the paper didn't like being satirized as a failure, nor having its political biases highlighted. The Boccinis are trying to get their domain back, which has been locked down by court order since September 2010.
Somehow I missed this when it went up a couple weeks ago: David Post of Volokh Conspiracy writes about the Supreme Court's decision to review Kirtsaeng v John Wiley. He calls the law involved "baffling" and "baroque" and provides good background on first-sale doctrine and the cases that have led us to the present (broken) situation.
A quick follow-up to yesterday's long discourse on why Twitter's IPA is doomed. Part of the analysis of why is my differing opinion on how good engineers think. Today I direct your attention to "Why I joined Microsoft" by James Whittaker. He's been at MS, left for Google, and has now gone back. In the blog he explains why, including his view that MS is where he can "find work [to] be passionate about." Oh, and it "has the right collection of IP, product segment leadership and technical assets to be a disruptor." That is the calculus of a senior developer who's been in several environments and has his choice of where to work next. If you want to fashion an intellectual property agreement that is going to change the game, you need to understand the people whom you expect to sign that agreement.
In today's installment of his "The Big Idea" series, John Scalzi notes that e-books give some authors an opportunity to update older works that they couldn't otherwise revise. When nobody's willing to print an updated edition (it's much cheaper just to reprint), you can still make changes you feel are important for the electronic edition.
In today's installment of his "The Big Idea" series, John Scalzi notes that e-books give some authors an opportunity to update older works that they couldn't otherwise revise. When nobody's willing to print an updated edition (it's much cheaper just to reprint), you can still make changes you feel are important for the electronic edition.
On his blog "Whatever" John Scalzi declares he's tired of his readers griping about the prices of e-books. On the one hand I sympathize with him - it's not like authors have any say in what you get charged for an e-book. And he's right in that having an e-book reader doesn't make you a special snowflake. On the other hand, the fact that a large number of readers are complaining is probably an early warning sign and the response probably should be "Here's who to complain to" rather than "Shut up." I seem to recall a time not too long ago when lots of people complained about the then sky-high prices of audio CDs...
Neil Gaiman blogged last night about the first few titles of his "Neil Gaiman Presents" audiobook line being available. I wrote about this effort this effort back in September when it was first announced. One new-to-me tidbit from the latest post is that Gaiman is not just selecting the titles but is also picking people he thinks will make good readers. An interesting twist, and a natural for audio books.
Over at The Big Questions blog, my friend Steve Landsburg (who is himself no slouch at economic math) gives a shout-out to MathOverflow on the occasion of its second year. MathOverflow, and its companion site MathStackExchange, are breaking new ground in public collaboration and shared teaching/learning of mathematics from college level up to the newest theoretical advances. As Landsburg points out, these sites enable problems that might have taken months of work by an isolated individual to be solved in hours. They make this work by a careful combination of openness (anyone can join in) and restriction (MathOverflow really is for experts and active researchers), a model that I think can be replicated in many other fields.
CBLDF (the Comic Book Legal Defense Fund) sent out an announcement saying that they have taken over the intellectual property - including design, merchandising, and promotion - rights around the Comics Code Authority Seal of Approval. This is mostly a free-speech and intellectual freedom story, as the rights were assigned from a defunct entity with little controversy. Still, it's important to remember that intellectual property can be wholly hijacked by the same governments that provide protections like patents and copyrights. If you're not familiar with the CCA Seal story, CBLDF have a very nice summary up on their site.
A quick follow-up to my rant yesterday about the epically bad plan to allow one-sided seizures (hijackings) of domain names: TorrentFreak notes that the US Government just shut down 84,000 sites 'by mistake'. So, yeah, we should definitely pass a law saying that this is our policy for how to deal with illegal copying. Idiots.
As part of my music listening I came across Sunday Girl, covering the old Laura Branigan song "Self Control." And there on her MySpace page is an open invitation - want to remix? Here, have a free download of the a capella version. Like so many other artists out there, her biggest problem isn't worry that someone will do something bad with her music; it's worrying that nobody will notice her music in the first place. If you want to get noticed in music today, get yourself remixed.
In Which Dear Fred Shows Himself A Hopeless Optimist
The Copyright Clearance Center recently posted a podcast containing its interview with the EFF's Fred Von Lohmann in which (they claim) he expresses confident that that in 5 - 10 years, the kinks in copyright law will all be worked out. Considering that it took 12 years to go from smashing Napster to... um, smashing all of Napster's imitators I'm not so confident.
A nice piece on EFF Deeplinks yesterday by Tim Jones noting how the IFPI caused Blogger to delete six music blogs. Included in the killing was the blog "I Rock Cleveland" whose author had meticulously followed all the rules for getting permission to post or link to the music he discussed. As Cory points out on boingboing the message here is "Don't bother following the rules; even if you jump through all our hoops we'll still nuke you on a whim."
I suppose it all depends on where your priorities lie. If you're China then you're much more interested in suppressing dissent than in respecting international IP treaties you've signed. Thus you ignore the billions in counterfeited (pirated) goods made in your country. And you steal code from CYBERsitter for your Great Wall of Censorship.
One would think that the authors' positions in publishing, being better than the artists' positions in the recording industry, would lead to somewhat better incomes. No such luck. Rob Beschizza at boingboing pointed to Lynn Viehl's posting of her latest royalty statement. Significantly, this is a book that's been on best-seller lists and stocked well in stores. Ms Viehl calculates that one such book per year would probably leave her qualifying for food stamps.
Earlier this week the Times Magazine online published an extensive piece on Pandora, a service I've used for several years and started paying the premium for a year or so ago. Surprisingly, it looks like Pandora might actually turn a profit this year, due in large part to a popular iPhone app. This despite 50% of their revenue going to copyright fees.
Interesting AP piece on Geoffrey Raymond's art form: he paints a large picture of a public figure (e.g. Barack Obama or Lehman Brothers' ex-CEO Richard Fuld) then takes that picture out into the public and invites people to annotate it. Most people seem to sign their names or leave text comments. You can read his blog at "The Year of Magical Painting" and if you click through the portfolio link and ask Picasa for an enlarged image you can even read some of the comments.
Linked to me by a friend: 25 Places to Read Free Books Online. It's not a comprehensive list by any means; for example, they left off Baen's Free Library, which is an excellent SF resource. That said, I think it's excellent someone can compile a list of 25 such places, referencing many thousands of titles.
Back at the start of June, I was interviewed for a story that has finally appeared in Infotech and Telecom News. The story is mostly pull quotes from people talking about the MPAA's recent wins against Web sites that post links to copyrighted material. The article author wrongly states that I'm still associated with MIT, but at least the quotations are accurate.
A friend pointed me to a new search tool, compfight, that allows you to search for pictures posted to the Web photo hosting site flikr. The cool part is that you can check a box that lets you search for Creative Commons-licensed photos.
I just got a pointer to Kevin Kelly's blog "Street Use" that is dedicated to reporting on different ways people are using technology. I'm sure the Cartel isn't happy about things like "Phone Mining" (scroll down to Dec 19th).
A friend linked me to Brian Dettmer's "Book Autopsies". Apparently these works of art have been shown in the (US) National Gallery of Art. I love these images and really I can't see much difference between this - which we call "art" - and the use of pre-existing visual or auditory media in a mashup that gets called "piracy". Same point as Lethem made in his essay early this year.