A Moron In A Hurry

November 9, 2006

IP Bounty Hunters

Filed under: Uncategorized — nick @ 1:48 am

The lighter side of IP, via BB:

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November 8, 2006

The Day After

Filed under: Uncategorized — nick @ 8:36 pm

Democrats really have swept the House, and it looks like they’ve taken the Senate too, so they should be congratulated for not flubbing their chance to take power.  But what does the Democrats’ victory mean for the state of IP?  The honorable Mr. Patry looks at who will be the next chair of the IP subcommittee.

October 30, 2006

Making the Long Tail Big

Filed under: Uncategorized — nick @ 6:56 pm

I’ve been fascinated by this whole long tail thing for while now and how a coherent view of online niches interacts with IP.  Here’s Wired on the “meganiche.”

October 28, 2006

Say It Ain’t So Steve-O!

Filed under: Uncategorized — nick @ 12:13 am

Looks like YouTube was DMCA’d by Viacom over clips from The Daily Show and The Colbert Report.  Unfortunately for Colbert, he makes heavy use of his stuff being online, most recently the Green Screen Challenge, so it will be interesting to see if he reacts to Viacom’s recent move.  Colbert is actually all over making his show about more than just watching TV: he has built a sense of community around his persona.  For example, throughout August he campaigned for users to vote for him in a Hungarian bridge naming contest and he ended up winning.  The clip is quite funny, with the Hungarian Ambassador to the US coming on the show to proclaim him the winner, but the clip has been pulled.  While it may have the right to pull these clips off YouTube, to actually do so is so dumb that I fail to grasp how it makes any economic sense for Viacom, especially since it’s too late for it to try and get an equity stake in YouTube.  The last thing Colbert needs is for his fans to turn on him, which is exactly what may happen thanks to Viacom.

October 27, 2006

How Much Is Too Much

Filed under: Uncategorized — nick @ 1:06 pm

A thought:  at what point does downloading too much music go from being an aficionado to be obsessive?  Is 90,000 songs too much?  An interesting anecdote from Wired discusses this.  Purchasing music solely for enlarging one’s library may have bad consequences for art/culture (the work itself becomes worth less), but I’m not sure that this kind of thing is any different than what came before digital music.  Sure, one’s record collection no longer confined to how big their apartment is, but rather how big my hard drive is, or confined by cost, since there’s always p2p and piracy, but are there really that many people who are so obsessive about music now that they wouldn’t have bought the CD or vinyl equivalent of 90,000 songs back in the day?

Assuming that the low costs of owning music (purchasing and storage) are actually enabling people to fulfill unrequited desires of building massive collections that can complement any mood, guest, or situation, what does this mean for the status of the artist?

If you would like, please share how many songs are in your library.  I’m rocking it out with 4754, which gets me 13 days without hearing the same song twice.

October 25, 2006

Follow the COPA Trial

Filed under: Uncategorized — nick @ 12:15 am

Read the play by play from the Child Online Protection Act (COPA) trial (full text) by Rufus Griscom here at Nerve.com.  The outcome will determine the legality of publishing “material harmful to minors.”  Background here and here.

The case is ACLU v. Gonzales, 98-CV-5591.

October 24, 2006

Not Sympatheitc for Studios

Filed under: Uncategorized — nick @ 4:05 am

LAT runs a nice piece on the growing tension between studios and talent in Hollywood, which the paper suggests may even lead to a strike as labor unions, such as the Screen Actors Guild are becoming testy towards studios’ behaviors.  The issue boils down to entertainment contracts, with talent wanting to ensure they get a cut from new technology while the studios are trying to insist that everything new is covered by the old contracts.  One key point seems to be residuals, where artists are paid for every time their work is shown.  For example, the number of times a commercial runs on TV is kept track of and, depending on their deal, those involved in making it get a small check each time it airs.  This is standard, but not yet for online.  Back in February, ABC said that it was applying its homevideo rates to content bought on iTunes, meaning above the line talent would get about about four times less than it would under the rates for regular TV (which is only about 1.2% anyway).  Ask youself, is iTunes or YoutTube like homevideo, or is it something decidedly different?

Entertainment companies taking advantage of artists is nothing new and only gets worse as technology changes.  Back in April, the Allman Brothers and Cheap Trick sued BMG over what their contracts had to say about digital distribution, which was nothing at all since the contracts predated online music.  First off, it turns out that BMG still deducts packaging and other costs tied to CDs, when there are no CDs.  Second, BMG gets 80 cents of every 99 cents spent on iTunes and pays the bands only 4.5 cents because that is the rate for sales, as opposed to 30 cents per song if it were characterized as being licensed to users.  BMG argues that, in fact, these are sales while the artists argue for the licensing scheme.  Funny, though, that Big Content always seems to suggest the license argument when they opt for new DRM.

And then there is Mr. Yankovic.  In June, Weird Al was asked whether he made more money from sales of CDs or mp3s and the answer was decisive: CDs net him way more money.  Since making those comments his new album, Straight Outta Lynwood, debuted at #10 on the BillBoard 200.  This is the first time he has cracked the BillBoard top 10 and has less to do with his music somehow being better (I’ll argue its not as good as the old) than that he’s tapping into what can be done online with free downloads and video.  Weird Al has himself credited the Internet for the success of his new album.  Only upon going this route did he make the top 10.  Seems counter-intuitive: pursue the format that doesn’t make as much money and yet end up with the biggest hit of your career.

Whether it be with movies or music, there is a clear whiff of greed coming off Big Content as it lumbers into the online marketplace.  It always drops the “we’re just protecting the artist” card, but Hollywood and the labels have shown that they themselves may be the biggest danger to most artists.  Plus, the kind of free promotion that Weird Al used (no DRM, free sharing and downloads, videos on YouTube) to break the top 10 are exactly the kinds of things the studios and the RIAA consider stealing and blame for destroying the entertainment business.

I’d bet $20 that the above the line talent gets screwed in their deal with the studios, putting the studios in the unenviable position of both seeking to monopolize their power through copyright and monopolizing the ability to screw artists.

October 22, 2006

What Hath the iPod Wrought?

Filed under: Uncategorized — nick @ 4:58 pm

WaPo runs two articles on digital music in light of the upcoming 5th anniversary of the iPod.  One discusses the disaster of different digital formats and DRM that characterizes most digital music offerings.  The other, a look at the way music has changed since the iPod debutedQuote of the day, from Yahoo! Music director of product management, Ian Rogers:

I feel for anybody spending $10,000 to fill up an iPod today… It’s like spending $10,000 on eight-track tapes in 1978: You’re going to be super-bummed come 1990.

October 20, 2006

Wag the Tail

Filed under: Uncategorized — nick @ 1:23 am

Ars hails Universal’s announcement that the 3,000 out of print tracks it released in February have been downloaded more than 250,000 times since,as an example of the long tail in action. I’m a bit of a copyleftist and don’t necessarily see this as a good thing. Yes, hooray for consumer choice and all those dying to get their hands on music by Eddie & the Hot Rods. Hiss for the hit to the public domain.

Here’s the problem with the long tail. Out of all the copyrighted material that Universal (or any other Big Content player) controls, only a fraction of it is valuable, and an even lesser percentage of the old stuff. The ‘short tail’ world made these materials generally worthless and, especially if copyright renewal were mandatory, made it more likely that the material would pass into the public domain. Would Universal complain about Eddie & the Hot Rods going into the public domain? No, but think about the Beatles. Remember how we dealt with Mickey? In the long tail world, all of these obscure materials can actually make money for their owners rather than toil away the years locked up because they’re not worthy of shelf space. Obscure works may not rake in much individually, but a company would enjoy a comfy cushion with a large enough library of them. Thus, the odds are good that Big Content is not only going to work harder in lengthening copyright terms, but also crack down on public archives, all thanks to Anderson’s neat little use of a picture (read his thoughts on Universal’s announcement here).

Recall the ominous warning of The New Yorker’s review of The Long Tail:

In recent years, eBay has sharply increased its commission rates; Amazon has admitted charging its customers different prices for the same goods; and Apple Computer has stubbornly refused to make its iTunes service compatible with portable music players other than iPods. Has the New Economy really moved past the familiar “winner take all” dynamic? That depends on whether you’re looking at the long tail—or at who’s wagging it.

It is probably the best critique of the book and the idea, unless you are of the Lee Gomes persuasion and like numbers.

I thought Anderson’s original article was smart, but was dissapointed with the book (does an Amazon rank of #147 qualify as being in the long tail yet?) because I was hungry for more. What does a coherent understanding of the long tail mean? Is such a view of online commerce an unquestionable good? Will access to the darkest corners of Big Content’s libraries make us more likely to accept it being wrapped in DRM? Anderson fails to address these questions, focusing more on the fact that the long tail represents a huge money machine for those with enough stuff to peddle.

Maybe a better title for this post would have been “If You Meet Chris Anderson on the Road, Don’t Drink His Kool-Aid.”

October 18, 2006

A Defense of Blawgs

Filed under: Uncategorized — nick @ 1:08 am

Findlaw’s Julie Hilden defends a lawyer’s right to blog, in light of New York’s proposal to equate blogs with ads and regulate them as such, and argues that such a rule 1) is against the First Amendment, 2) is elitist, 3) would mean that everything a lawyer writes or says is then also an ad, and 4) would make the market for lawyer services worse by depriving potential clients of info about a lawyers ability beyond their resume.

If we want the best arguments to win in court, why shouldn’t we let the best bloggers win clients, too? State bars should affirmatively encourage legal blogs, rather than chilling them by regulating them as if they were no more significant than a banner on the back of a bus.

If you feel strongly about this, Likelihood of Confusion has pointed out that comments on the proposed rulemaking in New York can be sent, by November 15, to:

Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004

October 17, 2006

Boycotts v. Sucks

Filed under: Uncategorized — nick @ 5:06 pm

WIPO has decided that the site Boycottwalmart.com is not confusingly similar to Walmart.com and thus rejected Walmart’s bid to kill the site.  The WIPO panel said:

The Complainant has argued that formulating a domain name by adding a derogatory term to a trade mark always results in a domain name that must be seen as confusingly similar to the trade mark… A domain name which combines a disparaging or critical term with a trademark may well be confusingly similar to the trademark, but not always. This panel considers that confusing similarity will be established where those persons who are mostly likely to want to access a complainant’s website will be confused as to whether the complainant is the owner and operator of the website to which the disputed domain name resolves.

For those keeping score at home, that means that adding ‘boycott’ to a recognized URL is ok, but adding ‘sucks’ may not be, highlighting the problem of arbitration where panels are not bound to follow precendent.  Techdirt has a good look at this.

October 15, 2006

Wikipod: Neat Idea Inviting Trouble

Filed under: Uncategorized — nick @ 4:36 pm

BoingBoing links to a new program called Wikipod that allows a user to download Wikipedia onto their iPod.  It’s a great idea and many will find it valuable, but there’s a problem in the name.  Profit Pod, Tight Pod, Podcast Ready (maker of myPodder software), and Spodradio, among others, have been sent cease and desist letters for their use of “pod” in their names, possibly in an effort by Apple to strengthen its tradmark claim to the term “podcast” itself.  Whatever the merits of these trademark claims or Apple’s motivation, it should only be a matter of time before Wikipod finds itself the recipient of a C-n-D from the Apple legal department.

September 22, 2006

Is Pod a Generic Term?

Filed under: Uncategorized — nick @ 6:43 pm

Those crazy Apple people are at it again, this time sending a cease and desist letter to the Podcast Ready people over their use of the word “pod.”  It seems pretty clear that a “podcast” is a generic term for downloadable radio-style segments, despite the fact that the term is derived from iPod’s name.  In fact, nothing about the word “pod” really seems all that distinctive, but rather it’s the use of the “i” ( as in iMac, iBook, iTunes, iSight, etic.) that makes Apple’s mark strong.  But no, Apple’s lawyers are fretting about other people using the word “pod” in their names and on their products to the point where they are essentially claiming that using the word “podcast” infringes Apple’s trademark rights to the iPod.  Pox on Apple.  If they keep this up someone will fire up an iWasBulliedByApple website (or at least until Apple sends them a letter).

September 14, 2006

NY to Outlaw Lawyer Blogs

Filed under: Uncategorized — nick @ 7:33 pm

Looks like NY is in the process of changing its ethics laws so that a blog would be considered advertising, which is strictly regulated by the state.  Under the changes, any communication made by a lawyer about a lawyer would be considered an advertisement.  While its understandable to view a blog as an advertisement, one question is whether there is a real problem this law is trying to solve.  How many blawgs might confuse or misleas consumers versus how much would we be hurt if the costs of writing to a blawg becomes to high?  It recalls a NYT article about lawyers’ disproportionate share of the blogosphere.

August 22, 2006

Solving Link Rot With NYTimes.com

Filed under: Uncategorized — nick @ 1:56 pm

This seems infinitely useful.  This site has made it possible to link to NYT articles on your blog and ensure that access to the full article is always permitted.  It really is annoying to follow a link and find out that the original source is unreadable without some sort of subscription or paying a $5 fee.  According to Backend.Userland.com, this goes along with a new NYT policy that allows links from blogs even after their free view is over, which is immeasurably sensible.

July 19, 2006

YouTube or YouScrewed?

Filed under: Uncategorized — nick @ 9:55 am

I never realized this before reading this post on Wired, but YouTube’s Terms & Conditions grants it the right to use and distribute (royalty free of course) any material you upload to the site however it wishes.  Also, it seems as if MySpace is in the process of changing its terms of use.  Any time I see somthing like this, something that I’m sure someone would have noticed and mentioned before, I turn to the Wayback Machine to double check for any hanky panky.  What does it say when a company blocks the Wayback Machine from keeping tabs on companies making sneaky changes to their Terms & Conditions?

If anyone knows whether YouTube’s terms have been changed recently or have always been this way, please let me know.

July 8, 2006

Copying in Music Not All Bad

Filed under: Uncategorized — nick @ 4:18 pm

Wired has an article on the booming musical instrument business and the Gibson lawsuit.  In late 2005, the Sixth Circuit held that Gibson competitor PRS Guitars could market and sell guitars that imitated the distinctive Gibson look.  As to consumer confusion, one of Gibson’s attorney’s even admitted at oral argument that “You’d have to be an idiot not to know which guitar you’re buying.”  The article suggests that the decision is good for instrument makers, if not music in general, since most musicians start out emulating thier favorite stars.  A prime example of the theory that less stringent IP laws can actually improve a market and create more wealth, and with numbers that appear to back it up.

July 5, 2006

Stealing Coke’s Secret Formula

Filed under: Uncategorized — nick @ 7:49 pm

Three people have been charged with stealing classified documents from Coca-Cola and trying to sell them to rival Pepsi Co., though it remains unclear whether documents contained the secret formula for Coke Classic or for a new product being developed.  Pepsi contacted Coke and the FBI after the perps offered to sell it the information.

What a potential coup it would have been for a soda company, especially Pepsi, to get its hands on such a vaunted secret.  It would have put Pepsi in a difficult position because the Coke recipe is one of the primo examples of the definition of a trade secret, but regardless, Pepsi should be commended for its upstanding behavior (disclosure: I’m a die-hard member of the Generation Next).

One thing that caught my attention is that the group’s point man asked to be addressed as “Dirk.”  It seems worth asking whether adopting a porn name gives credibility to an anonymous person peddling in secrets or whether it is a sign of amateurishness (Deep Throat being the exception).  I guess the process works, since a porn star and an informant both have something stashed away that they’re looking to share.

July 3, 2006

Christians and the Media

Filed under: Uncategorized — nick @ 10:35 pm

Two developments in the culture war that deserve mention.

A few weeks ago CBS was fined $3.3 million by the FCC for an episode of Without a Trace feating a flashback to an afterschool orgy (without any nudity).  The Parents Television council manufactured all but 2 of the over 4,000 complaints the FCC recieved.  The really sad part is that the episode originally aired months earlier, drawing no complaints, and the complaints that the rerun drew were not submitted until weeks after, once the PTC hosted the clip on its website and asked visitors to generate complaints.  CBS has, not surprisingly, challenged the FCC’s fine by declaring the complaints invalid since none were written by people who actually saw the show.

Ars lays out the whole story, while Copyfight questions the FCC’s latest attempt at censorship, both of which are worth reading.

Best of all, the PTC originally hosted a clip of the scene on its website (courtesy of the Wayback Machine), but has since taken it down and altered the page.  I can’t help but wonder if CBS threatened to sue for copyright infringement – I mean, people have been sued for less – and perhaps that would be an effective strategy against future manufactured PTC complaints.

The second part of this story involves outrage that the movie Facing the Giants, a Christian-themed movie, recieved a PG rating rather than GAccording to its website, the movie:

Follows the story of a football coach at a Christian high school who uses his faith in God to guide and strengthen the decisions he makes at home and on the field with his players.

The website also offers several testimonials, from college football coaches to NFL players, attesting to the power of Christianity in football.  This time Rep. Roy Blunt is leading the crusade in accusing the MPAA of giving the movie a PG rating because of its religiosity.  The MPAA denies this, duh, but Blunt trumps this as a further sign that the MPAA ratings process is a bunch of bunk.

Shit.  No one complained when Radio was rated PG and I can’t imagine this movie being any more tame that that.  It’s football!  And football involves at least a modicum of violence.  Little Giants: PG.  Remember the Titans: PG.  Rudy: PG.  Come to think of it, has any football movie ever been G rated?

But complaining about a Christian-themed movie getting a PG rating – the position being that a “Christian” movie should have a G rating almost by definition – is amusing for two reasons.  First, it seems as if it’s just desserts for religious inspired complaints against the FCC.  The FCC is supposed to protect “the public” and not every parent wants to bring their child to a Christian movie.  That’s a fair choice for a parent to make, hence the “Parental Guidance Suggested” label.  Second, it gives a little fodder for the “what rating would the MPAA give the Bible” debate.  Murder, rape, incest, fire and brimstone, mass smotings, and epic battles, all conducted under the watchful eye of a vengeful deity, would probably not recieve a G rating.

Seems to me that the groups that complain most about parents not having the tools to protect their kids aren’t so keen about having the tables turned on them.

June 29, 2006

Obeying a Takedown Letter a Binding Contract

Filed under: Uncategorized — nick @ 12:16 pm

TechDirt reports today on a vexing case out of Pennsylvania dealing with contract, defamation, and website take-down letters.  Apparently, the Pennsylvania Supreme Court of Philadelphia believes that obeying a take-down letter constitutes a binding contract and any reposting of the material constitutes a breach, despite any legal justification for posting the information at issue.

The case deals with Dominic Morgan, a Philadelphia man who had Lasik surgery in 1998 and whose doctors, Herbert Nevyas and Anita Nevyas-Wallace, he later sued for malpractice because he was left legally blind and was awarded only paltry damages.  Still unhappy, Morgan started www.LASIKsucks4u.com on which he wrote about his experience and dissatisfaction with his doctors.  The Nevyas sent Morgan a letter claiming his site was defamatory and demanded that all references to them be removed from the site (if he did, they promised not to sue).  As almost every lawyer would recommend, Morgan immediately removed the material at issue and proceeded to seek advice from a lawyer about the letter.  After determining that the Nevyas’ claim of defamation was weak, Morgan reposted the material and the Nevyas sued.

In April, the court found that

The parties had agreed that in exchange for the Nevyas’ agreement to refrain from  filing a lawsuit against Morgan for Defamation, Morgan would remove all defamatory statements from the site and refrain from doing so in the future. This Court found that Morgan agreed to this, even providing proof to the Nevyases of his agreement and compliance therewith… Essentially the Court found an offer, acceptance, including Morgan’s compliance with the agreement to alter the web site, removing the Nevyas name, and consideration.  Nevyas v. Morgan, No. 946, 2006 Phila. Ct. Com. Pl. LEXIS 203, 3 (PA. 2006).

So Morgan’s act of reposting the alleged defamatory material, though its defamatory nature was never discussed by the court, constituted a breach of contract between Morgan and the Nevyas.

Morgan is being represented by Public Citizen and has just filed his appeal (read here).  The appeal notes that not only did the correspondence between Morgan and the Nevyas not constitute a contract to not criticize the Nevyas, but that finding that it does is an impermissible waiver of Morgan’s free speech rights.  At some level, Morgan’s criticisms are mere accounts of what factually happened to him and as such he has every right to report that info to the public.  A fair and true report would not be defamatory, but the court never bothered to address the issue in basing its decision in contract.

As Public Citizen’s press release regarding the appeal points out, it is common practice for companies to threaten companies and individuals with take-letters in response to legitimate criticism and just as common for the information to be removed to avoid costly litigation.  If abiding by a take-down notice is determined to be a binding agreement, essentially an admission of guilt, such a practice could create numerous problems.  The time it takes for an individual to consult with a lawyer may create an undue delay, creating more severe penalties in the event of a lawsuit.  Further, because of the immediate need to respond to a take-down letter, legal advice might be hurried and less than thorough.  It could lead to information being removed in order to prevent litigation, and because such would create a binding contract, free speech would be greatly infringed upon because, in essence, even a retraction and a correction would be a breach.

The decision could also increase the number of people who flat out reject take-down letters, since they might be less likely to remove the disputed information if they feel that common sense and justice should be on their side.  Being up against a wall like this, more people might feel obligated to fight the take-down request, causing headaches for those sending out the letters, and in a round about kind of way might actually decrease the number of such requests issued.  As of now, it makes sense for companies and people to send out frivolous take-down notices because the costs are low (most people take the stuff down).  If more people fight the letters, costs will escalate, and those that issue such letters might be forced to pick and choose their battles more carefully.  This would not be such a bad result.

Interpreting the situation as one creating a binding contract ignores the strong first amendment argument that would hold this kind of expression as protected.  To make an end run around the first amendment by characterizing this as an offer and acceptance is most troubling, and likely (I would hope) an argument that will be rejected on appeal.

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