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Ernest Miller
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

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February 10, 2014

The Gospels of Publishing

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Posted by Alan Wexelblat

Under this title, Jim C. Hines would like to give you a commonsense message:

This whole Us vs. Them thing? It’s bullshit.

Hines is referring to the war of words between those who believe traditional publishing and e-book self-publishing are destined to be arch-nemeses in some kind of cartoon version of reality. Hines, who has been on both sides of the deal himself, believes they are not. It's clear that some people do well in each format, but regardless, the number of people doing well is vanishingly small. And of course Hines reminds us that being a (real) writer is a lot of damned hard work and there are no guarantees of success with either route.

I tend to agree with his notion that the low odds of success, large amount of work required, and high stakes of making wrong choices lead people to a level of passionate partisanship that likely exceeds reason. However, I disagree that the two parties are peaceful co-occupants of the landscape. Publishers have been largely reluctant to embrace upstarts such as online self-publishing and while they may invite some successful self-published authors into their exclusive clubs, they do still tend to project an air of being "the" gatekeepers of what ought to be published. The day I see a major publishing house set up a self-publishing arm (or support someone else's self-publishing enterprise in a major way) then I'll revise my opinion.

Comments (2) + TrackBacks (0) | Category: Counterpoint

November 4, 2013

Who Says Amazon Is Bad For Publishers?

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Posted by Alan Wexelblat

Felix Salmon wishes to call into question this "article of faith". In a blog post this past weekend, he poses the question

what’s the argument which says that Amazon has proved itself to be a mortal, existential threat to the publishing industry?

The picture he paints is one of Amazon as an agent of change, making it vastly easier for people to buy and read books. This ought to be good for publishers who, after all, should be wanting people to buy and read more books.

The big losers in the past couple decades have been bookstores. First the small stores got crushed by big chains and then those chains lost out to Amazon. So if Amazon is carrying so much of the book-selling ball, why is everyone mad at Amazon?

Salmon theorizes that the two biggest factors are Amazon's price aggressiveness and publishers' inherently conservative nature. Both are true, but I think he's missing several key pieces of his story.

For one thing, he notes that Amazon was taking losses on its aggressive price discounting of e-books, but fails to note that publishers only made profit on the retail prices for e-books, not the wholesale. You can argue about whether an e-book should cost sufficiently less to make than a physical book that a discounted price is in order, but it's still true that when Amazon cut its price the publishers took a hit that was out of their control.

Salmon further asserts that, "It’s not like Amazon has disintermediated publishers" - but in fact that's exactly what is happening. There's a massive explosion of self-publishing in the e-book world, driven in large part by programs such as Amazon's CreateSpace. These programs completely take publishers out of the loop, allowing any author to reach their audience not exactly directly but through the Amazon infrastructure, including the site and Kindle devices. If that's not disintermediation, I don't know what is.

Salmon may be looking at the wrong thing, perhaps comparing the dollars. Certainly big-name professional publishing is likely to be much more profitable than self-publishing for the vast majority of authors. But in terms of number of authors published and in terms of number of books produced, self-published e-books are racing past their physical counterparts.

Money aside, I think the biggest threat that Amazon poses to publishers is loss of control. As publishers lose control over pricing, over the selection of the next big thing, over schedules and distribution, etc. they find their existence threatened. If they're not in control of these things, what's the point of having a publisher anyway?

Well, we know that self-publishing is really hard work but that's not something immediately obvious and of course Amazon and others try to make it seem easy. If you can't see any value in publishing through a traditional publisher then you almost certainly can't see any reason to give that publisher a cut of your earnings. And if that idea gets firmly enough entrenched, those publishers are gone. So, yeah, Amazon's bad for publishers (too).

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October 29, 2013

Does Sampling Promote Sales (the Girl Talk example)

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Posted by Alan Wexelblat

I was surprised to realize I had not blogged about Girl Talk back when I was spending lots of time looking at how the infiltration of mash-ups into popular culture was affecting things. So excuse me if I do a little background first.

Back in 2010 Girl Talk (aka Greg Gillis) put out a huge mash-up album called "All Day". By huge, I mean "oh my god did he sample everything under the sun". The album was released for free - you can get it from the illegal-art site or just stream it on YouTube - and Girl Talk didn't go around trying to get permission to use the almost-400 samples that made up the album, claiming that his work was fair use. The album was followed in 2011 by a Kickstarter-funded film called "Girl Walk" that told a story in dance set to the tracks of the album.

This brings us to a paper (abstract here on SSRN) with the title "Fair Use, Girl Talk, and Digital Sampling" by W. Michael Schuster II. The paper purports to show that sales of the songs sampled by Girl Talk increased in the year after the album's release when compared to sales the year before. That's an important argument if true, as it would lend support to the thesis that sampling brings attention, which brings sales and therefore copyright regimes should be relaxed to allow more sampling.

Much as I'd like to see support for that hypothesis, I don't think this paper provides it. As Stewart Baker (another Girl Talk fan) blogged, "Schuster achieves his results by playing with the sample, dropping nine songs from a sample of about 200 because they completely wreck his argument".

Schuster argues that he is justified in dropping these songs from the data set because they were hits before Girl Talk used them and we know that hit songs tend to have (often steep) declines in sales after their popularity peak is gone. That's likely true, and Schuster is far from the first author to clean up a data set for publication. However, when your cleaning involves removing only those data points that end up refuting your conclusion the work becomes suspect.

We need more scholarship in this area, and not to draw strong conclusions from any single study.

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October 21, 2013

Will Piracy Data Tell Us Anything?

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Posted by Alan Wexelblat

I think the answer is "probably yes, but people will read it the way they want."

Specifically, EFF Deeplinks blog posted about piracydata.org. The item, written by Maira Sutton and Parker Higgins, gives us the "see, tolja so" point of view. Headlined "Movie Watchers Can't Get What They Want" it pushes the idea that a significant cause of people downloading/watching movie content through illegal means is because they don't have access to legal means of getting these movies.

In the past I've written sympathetically about this point of view: when people appear at your (virtual) door waving cash and saying "take our money, please" it's not generally a good business practice to turn them away. Not only do you lose that immediate cash, but you build an expectation in peoples' minds that they won't be able to buy things honestly so their only alternatives are illegal ones.

So Jerry Brito, Eli Dourado, and Matt Sherman have created a site that mashes up TorrentFreak data on BitTorrent activity with a service that checks for availability of content on legitimate streaming services. The result is a weekly chart with convenient checks and x's for Streaming, digital rental, and digital purchase. So far the chart has a lot of red marks, as popular films are not appearing on streaming services pretty much at all, and sporadically on the other two options. This leads Sutton and Higgins to finger-wag at Hollywood, and I have some sympathy for that. Rapid release of popular features on streaming services would likely capture some of this revenue stream.

But... and there's always a but, that's not the whole picture. For example, the latest data (ending Oct 14, 2013) is captioned, "only 46% of the most-pirated movies have been available legally in some digital form." That use of 'only' is interesting, because I could write a sentence using the same data that says, "Nearly half the most-pirated movies are available in some digital form." I suspect that is exactly how the Cartel would spin these data.

Furthermore, that spin exposes a salient fact: there's not just one revenue stream here. If people are pirating movies they could get in some digital form then it's worth asking why. Maybe it's because they've been conditioned to believe that they won't be able to get it legally so they don't bother to look. Maybe it's because they would rather stream than purchase. Maybe if a streaming option was available it would not capture the audience that is getting the movie over Bittorrent but instead would cannibalize the audience that is now purchasing digital copies.

Bottom line, the data on this chart are too weak and vague to tell us anything meaningful. Attempting to draw strong conclusions from it as the EFF seem to want to do is a mistake.

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September 24, 2013

Things That Make You Go Hmm, Small Bookstore Version

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Posted by Alan Wexelblat

Nate Hoffelder has a provocatively titled blog post up today challenging the "everybody knows" wisdom that Amazon is killing independent bookstores. He claims that there are more than ever, and in particular that the industry has rebounded from a low point in 2009, presumably caused by the Great Recession, which took quite a toll on all kinds of independent and small businesses.

His charts are based on data from the American Bookseller's Association which shows a small but steady growth in membership over the years 2009-2012 both in number of companies represented and in locations these businesses occupy. He then hypothesizes that much of the pre-Recession collapse of independent bookstores was due to the proliferation and growth of chain stores. Now that these chains are themselves collapsing, space may be opening up for indies to grow again.

Physical stores still can do a wide variety of things that Amazon cannot, obviously including physical presence like author signings, but also providing expert advice and superior scanning/browsing. Chain stores could do these things and offered economies of scale that independents often could not match. Amazon almost certainly beats lots of indies on prices on many titles, and has an unmatched breadth of offering. This is particularly true for small and self-published authors who simply lack the distribution machinery to get their volumes into indie stores - if they have a printed version at all, which most do not.

Independent bookstores are not sitting still, that's for sure. Many are offering print-on-demand option, and some will even sell you e-readers, though I regard that as a suicidal move. Bookstores are also well-positioned to be community hubs - what Ray Oldenburg meant by "third places".

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August 30, 2013

3D Printing And the Value of Authenticity

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Posted by Alan Wexelblat

There is an interesting exchange going on between Felix Salmon at Reuters and Izabella Kaminska at FT Alphaville over the likelihood that cheap 3D reproduction technologies will disrupt art markets.

Kaminska posted the kick-off piece about three days ago (as I write this); then came Salmon's blog entry and just yesterday Kaminska responded. (warning: FT Alphaville requires free registration in order to be able to read the bodies of articles.)

The core question revolves around what happens when there is no obviously distinguishable difference between an original and a reproduction: will the value of originals collapse? Kaminska argues that they will. Salmon's counterpoint is that improvements in reproduction technology in the past have not caused collapses, so why should this one? In addition, he notes that even without technology there are many clever forgers operating today, whose works cannot be distinguished from originals by non-experts. These copies are not valued as highly as the originals, nor does their existence cause the value of the original to go down.

Why? Salmon ascribes the value of the originals to "[t]he invisible aura of authenticity" and gives examples of how people value authentic items, even when the copy is indistinguishable. He further believes that art may well move into a mode more like the music industry has adopted, where the (unique) quality of experience has become the thing promoted, and the (easily duplicated) art object becomes secondary.

Kaminska's response is to argue that in a world of perfect copies authenticity cannot be determined - you might be able to carbon-date a Van Gogh, but pixels don't have that ability. To the extent that art becomes digital/digitized it loses many of the markers available now for establishing authenticity. She further denies that art is like music in that although there are lots of performative art works, a significant aspect of art is the presentation, which includes selection and curation of shows, galleries, etc.

There's a lot more to the argument and I encourage you to read the originals. My personal feeling at the moment is that it will not be either/or, it will be both/and. But what do I know.

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July 8, 2013

Pandora is Not Happy at David Lowery

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Posted by Alan Wexelblat

Last month I covered another column by Dave Lowery in which he complained again about the small amount of money that plays of his music on Pandora were getting him. At the time I noted there were some problems with his arguments, not least of which was that he was blaming Pandora for a rate structure that it hadn't set up.

That same day (and I'm sorry it's taken me this long to blog it) Pandora's Tim Westergren took to the company's blog to respond at length. He sees his purpose as setting the record straight, responding both to deliberate misinformation (which he blames on the RIAA) and to understandable but misguided outrage from other working musicians such as Lowery.

He points out that people like Lowery are mistakenly comparing "plays" on Pandora - which are a single person listening - to "plays" on broadcast radio that reach many thousands of listeners or "plays" on a subscription station such as XM which also reach many listeners. If Pandora pays a sliver of the amount paid by XM it does so based on streaming to a proportionally smaller sliver of audience. Oh, and by the way, broadcast radio pays nothing per play. So this is not even close to an apples-to-apples comparison even though everyone uses the word "plays" as though they all meant the same thing.

Westergren also points out that while it has sought to get a rate comparable to other forms of radio it feels it has been targeted by organizations specifically trying to get Pandora (and only Pandora) to pay more. Whatever the rate is set, the argument goes, Pandora should pay rates that establish a level playing field among Pandora and other streaming Internet services.

There's also a good bit to read about Westergren's ongoing notion of what Pandora's mission is: founded by artists in order to be for artists. That includes playing and promoting artists who aren't getting exposure elsewhere, and Westergren talks about his commitment to various aspects of this mission. To me, though, this is beside the point: what matters is that Pandora appears to be the target of a singling out, and a deliberate distortion of the situation. That needs to stop, now.

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June 4, 2013

Solutions to Patent Trolling in Existing Laws

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Posted by Alan Wexelblat

Under the dramatic headline "How To Make War on Patent Trolls" Tim Wu has an article in The New Yorker advocating remedies for patent trolling. Wu outlines the well-known problems of NPEs trolling and advocates some solutions that I haven't seen tried yet. Like all novel legal theories we won't know whether they hold up until they're tested in court, but I have doubts.

Wu suggests the use of consumer-protection laws, specifically targeting unfair or deceptive practices. The definition of "unfair" varies wildly since all states and the Feds have such laws. Wu notes also that some NPEs have misrepresented "...the strength of their patents, the extent of other settlements, and their actual willingness to litigate." I'm not sure what it means to misrepresent the "strength" of a patent - presumably Wu is referring to the scope of valid claims or the applicability of the claims to the supposed infringement. Certainly deliberate misrepresentation should be treated as fraud, but I'm not sure how hard it would be to prove deliberate misrepresentation.

Settlements and willingness to litigate, though, are clearly outside the bounds of these laws. I recommend the Planet Money podcast from last week on the patent being asserted against podcasting in which Zoe Chase gives a good view of the "game" played around all civil legal actions. Knowing whether or not someone else will carry through on a threat to sue is a standard feature of this sort of brinksmanship everywhere, not just patents.

Wu then suggests using unfair-competition laws against NPEs who aggregate patents. The idea that assembling a patent portfolio might be a Sherman Act violation when that portfolio is used to stop people from operating a business is certainly a novel theory. I know even less about antitrust law than I do about IP law, but I'm inherently dubious. On the other hand, the RICO laws have been used in ways far beyond their original targets so perhaps the courts will see fit to extend the scope of the Sherman or Clayton Acts in this way.

Wu also suggests that the FTC get into the act, through its power to manage competition and prevent monopolies. Section 5, which Wu points to, seems to target unfair or deceptive practices. This is interesting in that it might be a way to rule out an entire style of business practices. As we've discussed in the past, the use of patents for offensive versus defensive purposes is a matter of the owner's choice; however, the FTC has the power to rule that certain offensive uses of patents are sufficiently anticompetitive as to be illegal. I would be very interested to see the FTC hold hearings on this and air some expert opinions. Right now they're gathering comments and who knows what will follow. That said, any move by the Feds to change how patents are able to be used would almost certainly be challenged in the courts in cases that would drag on for years.

Unfortunately, although Wu notes that patents have been issued with "extreme leniency" (which is quite some understatement) he doesn't advocate for the kinds of changes necessary to prevent patent offal in the first place. Whether or not you like Wu's suggested remedies they are just that - remedies. Far better to fix the problem than clean up the mess afterward.

The place where I agree with Wu most strongly is where he argues that the reasons arrayed against these arguments are not reasons for inaction. Instead they call for proceeding with caution. Patent practices - both issuance and use - are in severe need of reform to keep up with new business practices and changing technology.

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May 13, 2013

Software Patent Pro/Con in the WSJ

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Posted by Alan Wexelblat

Sunday's Wall Street Journal carried a pro/con pair of opinions on software patenting.

The 'yes' side was written by Martin Goetz, himself an inventor and entrepreneur. So far as anyone can tell, Goetz holds the first-ever software patent. The 'no' side was written by Brian J. Love, an IP law professor from Santa Clara University School of Law. So far as I can tell, Professor Love does not actually litigate or make patent applications, so this is sort of a mismatch of real-world practitioner versus theorist. I guess it won't surprise many readers that I consider the real-world practitioner to have the stronger arguments.

In particular, Goetz makes the singular point that "software and hardware are interchangeable" and that it's an implementation decision which bits of an invention go in software versus which bits go in hardware. This remains the key point I have yet to see anti-software patent people argue clearly against.

Goetz is, I think, one-sided in claiming purely that patents are effective protection for innovations. Here Love is on more solid ground as we have ample real-world examples of patents (software and otherwise) being used to stifle innovation and that the rapid pace of technological innovation is not suited for the more leisurely and extended protection that patents offer. Goetz might, I think, agree in principle but as a pragmatist he points out that there are no other means available. Both men agree that the system is flawed and needs fixing.

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February 20, 2013

WIRED, 3D Printing, and Patent FUD

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Posted by Alan Wexelblat

WIRED published a piece this week by Joseph Flaherty under the inflammatory headline, "How Big Business is Stymying Makers’ High-Res, Colorful Innovations". A more appropriate title would be "Patents appear to be working in the 3D printing field like they work in most other manufacturing fields." That, however, wouldn't sell more ad space.

Flaherty's issue appears to be that there are patents covering aspects of 3D printing and therefore companies are not inventing things de novo without constraint. This is hardly a shock - every business of the last couple centuries has been born into a world where patents existed and some of those patents were even relevant to the new field of business. Indeed, the point of a patent is that you've introduced some innovation or improvement, often by improving upon existing related processes. Much of homebrew 3D printing is innovating and improving on the areas of 2D printing and process manufacturing that have existed for decades. To find that there are relevant patents is far less surprising than it would be if there were no patents.

Furthermore, although the last few years have seen a surge of companies, models, and innovations in 3D printing, the ideas and technologies go back quite a ways. Again, older technologies are often covered by patents, upon which new inventors improve. The specific 10 patents that Flaherty highlights seem pretty normal to me, despite how much he wants to hype things up for this story.

What do you do in such an environment? Well, you do what businesses have always done - you deal with the existing intellectual property. You can license it, innovate around it, show that your machine or process doesn't infringe the specific claims of the patent, file a patent on your improvement that cites the existing patent as recognized prior art, and so on. Bringing 3D printing to every home that wants one is a laudable goal but it's no more likely to be "stymied" by patenting than any other home-use machine, though Flaherty seems fond of hyperbolic descriptives like "fortresses of patents".

In fact, Flaherty seems to hyperventilate over companies doing exactly what I describe. He notes that patent #5,387,380 is held by MIT, which licensed it to a company that... hold your breath, it's scary! ... innovated on it and filed its own patents on its innovations. By the way, MIT doesn't sign exclusive licensing agreements - anyone else who wants to go license that patent from MIT and innovate on it is free to do so. He also seems unhappy that the current crop of 3D-printing companies like 3D Systems and Makerbot are themselves applying for patents.

This is just silly FUD. Patents in 3D printing aren't special - they have all the same strengths and weaknesses as patenting in other industries. It's just that home 3D printing is hot right now and sexy and ... well, that sells more ad space.

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February 14, 2013

When the Tip Jar Offends

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Posted by Alan Wexelblat

I recently blogged about NoiseTrade which, among other things, provides a PayPal-linked "tip jar" for artists who are willing to give away downloadable music in hopes fans will pay something for value received. In today's blog entry titled "Blogonomics, Maria Popova edition", Felix Salmon takes a hard look at the use of a virtual tip jar by blogger Maria Popova (of Brainpickings).

Salmon notes that the tip jar and accompanying text give the impression that the blogger needs the tip revenue to support her hard work. However, a slightly deeper look reveals that not only does she have another "day job" that provides income, she heavily uses affiliate links both on her blog and on social media like Twitter. Her actual income from these links isn't known, of course, but given her popularity and standard conversion rates it's possible to generate estimates. Given that these estimates appear relatively large, it's a fair question to ask whether the tip jar on her blog is actually necessary, in the sense of "I will not have money if you don't leave a tip here."

That's a very different situation from the musicians of NoiseTrade, or even Amanda Palmer's famous Kickstarter. In those cases it's clear that the funding provided by the sponsoring individuals is all there is. It's a level of transparency that may be necessary for this kind of model to work. Palmer's problems with her Kickstarter included complaints about its size - to which she provided a breakdown of how the funds were to be used. It's natural for people to think "hey, you have $VERYLARGEAMOUNT, why do you need it?" and it may be incumbent on those who are asking for public donations to include a publicity/transparency plan in their campaigns.

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January 8, 2013

How The