To display the most relevant entries to you in priority,
vote for the stories you are interested in
()
and reject those that you are not interested in
()
We've seen all sorts of ridiculous claims by performance rights collection societies trying to
demand performance rights for things that clearly were not intended as "performances." There was
the woman stocking shelves in a store who was singing without paying. There was
the owner of a horse stable who played music to her horses. There
was the attempt to say that your mobile phone ringing with a ringtone was a public performance.
Basically, they're willing to claim just about any music playing is a public performance that
requires yet another fee.
Niall.e points us to a legal issue in Europe, where the Irish High Court has asked the European
Court of Justice to weigh in on a claim by the Irish collection society Phonographic Performance
Ireland Ltd (PPI), which is claiming that music
played in hotel rooms for guests requires a performance fee. Yes, you read that right. PPI is
claiming that since the hotel provides radios and televisions in the guest rooms, they need to pay
a performance right fee on the usage of those devices.
PPI can't honestly believe this is a public performance that deserves a performance right. This is
just a blatant money grab to try to force someone else to pay up. What's next? Auto dealers will
have to pay a performance fee for having radios installed in cars?
In the last few years, there's been a push by some companies to bring back the immensely troubling
"hot news doctrine," that appears to violate everything we know about the First Amendment and
copyright law. Basically, the "hot news doctrine" says that if someone reports on a story, others
are not allowed to report on their reporting for some period of time -- on the theory that it
somehow undermines the incentive to do that original reporting. Last year, we wrote about the
very troubling
implications of allowing the hot news concept to stand. Beyond the free speech implications, it
also has the troubling quality of effectively creating a copyright on facts -- which are quite
clearly not covered by copyright. On top of that, it's not necessary in the slightest. As anyone
who is actually in the online news business knows, getting a scoop gets you traffic -- even if
others report the same thing minutes later. Being first gets you the attention. You don't need to
artificially block others from reporting the news.
Unfortunately, with various publications struggling, some have picked up on the hot news doctrine
as a way to somehow block competition. Tragically, it looks like a court has now adopted the hot
news doctrine in one case. Paul Alan
Levy alerts us to the news that a judge issuing an
injunction against TheFlyOnTheWall.com, a website that would publish summaries of Wall Street
research. The Wall Street firms said this undermined their business model -- and the court agreed.
It passed an injunction saying that TheFlyOnTheWall had to hold off publishing any news about any
Wall Street research report until either 10am (if the report is released early in the morning) or
for two hours after it's released if it comes out during the day.
These totally arbitrary restrictions are highly troubling from a free speech standpoint and seem
effectively random. This seems like yet another case of a company being upset by interference with its business model,
which should be a reason to change the business model -- not run to the courts.
But what's most troubling of all is that now all the publishers who have been salivating over the
hot news doctrine have a legal ruling to point to. Can you imagine how the world would work if you
couldn't blog about or mention a particular piece of news for a few hours because the Associated
Press got to it first? It's hard to see how this could possibly stand up to a First Amendment
analysis, and it's quite troubling that the judge found the way she did.
The entertainment industry always likes to take the digital world and compare it to the physical
world as if the two were the same -- often making claims like unauthorized downloading is "just
like stealing a CD from a store." However, they don't seem to like it when you do that back to them
to prove all the inconsistencies in their arguments. Lee Griffin wrote up a good blog post about
the Digital Economy Bill in the UK, wondering how people would feel if the same rules were applied offline: Would you
appreciate being put under house arrest not because of any court determined guilt, but because of
someone making accusations of copyright infringement against you for something that may or may not
have occurred in your property at the time? Is it even remotely justified to put you under house
arrest, to stop you from going to the library, to work, or to socialise with your friends because
of those accusations alone?
Or how about point 4...how would you feel if the police were stopping you from accessing your local
community centre because a single individual or organisation had threatened the local council in
such a way that it is too much for the council to risk the financial cost of allowng it to continue
functioning for the community? Imagine arriving at your local pub only to find it inaccessible to
you, even though anyone that is visiting from another town can use it freely; not for anything that
you or your town have necessarily done, but because of the implications made by an individual in a
completely unscrutinised manner?
Finally, point 5 would be very interesting. Could you imagine the police coming and turfing you out
of a building you've legitimately bought, and putting it back on the market without paying you a
penny, simply because you knew it was in a good location and could make some money off of the
future sale? Somehow I don't think that's all too likely! Of course, supporters of the DEB
will claim that "this is different!" but they seem to be the same people who will still insist that
infringement is no different than theft. Funny how that works.
Earlier this week, reader Jorvay sent over the news of how food giant Nestle had massively
overreacted to an (admittedly disgusting) anti-Nestle video put together by Greenpeace and posted
to YouTube. The thing was, this video was getting no attention. It had less than 1,000
views... but someone who should have known better at Nestle filed a bogus copyright claim to take down the video. There is no copyright
issue in the video at all, so it was a bogus takedown. Even if there had been a legit
reason for the takedown, doing so only drew much more attention to the issue, and the
video quickly went back up on Vimeo, where it started getting even more views, a lot of which came
because of the takedown.
Okay, bad enough, right? I was going to post that story, but before I had the chance, Nestle
decided to make things worse.
Because of all this new attention, a bunch of anti-Nestle people went to Nestle's Facebook group,
and started posting messages that were certainly anti-Nestle. Now, there are lots of ways
to respond to such things. The one thing you don't want to do is respond the way Nestle's
"moderator" did. First, they threatened to delete comments from anyone using a modified Nestle's logo,
claiming that this infringed on trademarks (which is an interesting claim, but unlikely to hold up
in court, where countless times the use of a logo in protest has been upheld). This resulted in
some pointed responses from group members, such as "It's not OK for people to use altered versions
of your logos, but it's OK for you to alter the face of Indonesian rainforests? Wow!"
Nestle then didn't do itself any favors by having its moderator respond sarcastically ("Oh
please...it's like we're censoring everything to allow only positive comments") and then go with
the foot stomping
response as well ("it's our page, we set the rules, it was ever thus.")
Eventually, Nestle admitted that it was wrong and apologized, promising that the moderator would be
a lot friendlier. However, by then the damage had been done. An issue that very, very few people
would have noticed turned into a huge ordeal thanks to repeated mistakes in handling them. The
company attempted to stifle speech with both bogus copyright and trademark claims, and then when
called on it failed to realize that it was only making things worse.
The more of ACTA that leaks, the worse it seems. KEI has the details on another portion of ACTA
that had not leaked yet, which focuses on setting up new institutions that would manage ACTA after it was implemented.
Basically, it would be an ongoing organization tasked with continuing to update ACTA's rules --
sort of a parallel organization to WIPO, which already exists, but which has recently committed the
mortal sin of actually listening to consumer rights groups. The scary part is that this
group would be allowed to amend ACTA provisions on the fly. And, while this new organization can
"extend invitations" to governments, it's still being debated what non-governmental organizations
will be able to take part. KEI notes that the "USTR has told members of Congress it is their
intention to marginalize the participation by consumer interest organizations in the new forum,"
though does not provide a citation for this point.
Either way, it seems like the goal here is to create an extra-governmental body that effectively
controls copyright law around the globe, with little input from the actual governments or the
people they represent. And, of course, if the folks involved in ACTA negotiations are any
indication of who will be involved in this group, you can assume that they will be strong
supporters of the viewpoint of the legacy industries: that intellectual property law is designed
solely to protect those industry's business models, and not to promote the wider progress of
culture and the economy.
I had pointed this out in a comment yesterday, but with
so many press reports suggesting that Viacom's filing found some sort of "smoking gun" in the
YouTube emails concerning founders talking about "stealing" videos, it's worth pointing out that
Viacom appears to have taken these quotes totally out of context. Thankfully, TechCrunch is putting
some of them right back into context and noticing that Viacom is clearly misrepresenting what YouTube's founders were talking about.
The key quote that Viacom (and many in the press) are highlighting is the following: In a July
29,2005 email about competing video websites, YouTube co-founder Steve Chen wrote to YouTube
co-founders Chad Hurley and Jawed Karim, "steal it!", and Chad Hurley responded: "hmm, steal the
movies?" That looks damning, right? Except the context shows that they weren't talking about
copyright infringement of big name Hollywood content at all. They were talking about looking at
other viral video sites that were popular on the fringes at the time -- usually showing
random silly homemade videos that went viral and putting those videos on YouTube.
Furthermore, when you see the full discussion, you can see that in the context, they were
joking about taking that content. Really, they were discussing what kind of site they
wanted YouTube to be: should it be for more serious videos, or should they focus on those kinds of
traffic-getting viral videos. In fact, in the context of the discussion, they play up the fact that
their content is user-generated, rather than pulled from outside sources: SUBJECT:
Re:http://www.filecabi.net/
Jul 29, 2005 1:05 AM, Steve Chen wrote:
steal it!
Jul 29, 2005 1 :25 AM, Chad Hurley wrote:
hmm, steal the movies?
Jul 29, 2005 1 :33 AM, Steve Chen wrote:
haha ya.
or something.
just something to watch out for. check out their alexa ranking.
-s
Jul 29, 2005 7:45 AM, Chad Hurley wrote:
hmm, i know they are getting a lot of traffic... but it’s because they are a
stupidvideos.com-type of site. they might make enough money to pay hosing bills, but sites like
this and big-boys.com will never go public. I would really like to build something more valuable
and more useful. actually build something that people will talk about and changes the way people
use video on the internet.
Jul 29 2005 6:51 AM, Steve Chen wrote:
right, i understand those goals but, at the same time, we have to keep in mind that we need to
attract traffic. how much traffic will we get from the personal videos? remember, the only reason
why our traffic surged was due to a video of this type. i’m not really disagreeing with you
but i also think we shouldn’t be so high & mighty and think we’re better than these
guys. viral videos will tend to be THOSE type of videos.
-s
Jul 29 2005 6:56 AM, Steve Chen Wrote:
another thing. still a fundamental difference between us and most of those other sites. we do have
a community and it’s ALL user generated content.
-s Not quite the discussion that Viacom implies. In fact, the more you look at the full
context of almost every quote that Viacom and the press are playing up, the more and more Viacom's
entire argument crumbles.
Ah, leave it to The Onion to successfully encapsulate the state of the recording industry with a report that is basically as accurate
as most of the reports that come out of the RIAA these days: The Recording Industry Association
of America announced Tuesday that the combined revenue brought in by Warner, Sony, EMI, Universal,
and countless independent music labels in 2009 totaled $18. "The music industry is back," RIAA
representative Doug Fowley said. "Not only was Kenny Chesney's Greatest Hits CD purchased at a
Knoxville, TN Borders for $12.99, but we also had two songs downloaded through iTunes, and our
ringtone sales reached three." Fowley added that as long as no one returns or exchanges the CD, the
music industry would continue to be a vital and creative force in American culture.
David Herron alerts us to the news that it's
finally occurred to the brain trust at Universal Music that, perhaps, CD prices were too high.
They've introduced a "new pricing structure," which effectively means they've lowered
the suggested retail prices on many CDs to between $6 and $10. Amusingly, the article quotes an
anonymous person at a competitor who doesn't like this at all: "Why does Universal feel the
need to get below $10?" Uh, perhaps because the market is shrinking because people find it too
expensive otherwise. Either way, this move seems like way too little, way too late. Doing this in
the late 90s might have been a start, but this isn't going to get people who have stopped buying
CDs back into a plastic disc fix.
Last summer, we wrote about some reports that EA was going to require a constant internet
connection for Command & Conquer 4. At the time, many people argued that this was
a bad, bad idea and would backfire greatly. Given EA's serious problems with bad DRM
pissing off customers, you would think that EA would tread carefully here. In fact, late last year,
EA gave some signs that it
was moving away from annoying and draconian DRM.
On top of that, we all saw what happened when Ubisoft tried to require an online connection as a
form of DRM. The game was cracked within hours of release --
and then the DRM servers
crashed and were offline and slow for quite sometime -- pissing off all sorts of legitimate
customers.
Given all of this, you would think that EA would know better than to move forward with plans to
include this same form of DRM with C&C4. No such luck. Brian was the first of a few of you to send
in the news that EA appears to be sticking with the plan. While that news report seems to indicate this is a new
thing, it's not. It was announced last summer -- but it's really unfortunate that EA hasn't yet
seen the strategic error in moving forward in this manner.
There have been plenty of efforts to try to curb "cyberbullying," often through laws that try to
make it illegal to be a
jerk. Unfortunately, the concept of cyberbullying is so vague that this creates
tremendous problems and unintended consequences. And, on the whole, it seemed unlikely that any
such law could withstand First Amendment scrutiny. However, it appears that the First Amendment
isn't always the First Amendment we thought it was.
A California appeals court has ruled that cyberbullying threats are not protected free speech. Now, you can
understand why people might like this conceptually. No one likes a bully. But making it against the
law to bully is incredibly risky, and almost certainly leads to a very different kind of
bullying.
In this particular case, a kid set up a website about himself, and his fellow students posted
comments mocking him. It was cruel, though you would think that the simple response would be to
take down those comments. Instead, the family went to the police -- who said that the comments "did
not meet the criteria for criminal prosecution and were protected speech." The family followed by
suing six students and their parents for hate crimes, defamation and intentional
infliction of emotional distress.
Now, there's no doubt at all that the comments were over the line and incredibly mean. However, it
looks like there was a perfectly reasonable process outside of the courts to handle this.
Apparently, the father of one kid who made some of the worst comments made his son apologize,
grounded him and took away his internet access. It seems that wasn't enough. Those who were sued
filed an anti-SLAPP motion under California's anti-SLAPP law (one of the strongest in the country),
but the judges said that the text was not protected free speech and thus did not fall under the
anti-SLAPP provisions. One of the kids, while admitting his own conduct was over the line, said he
was just joking around, and trying to top others in responding to the website. The judges, clearly,
did not find the joking to be funny. Indeed, it was not funny, but that doesn't mean you should
lose your free speech rights.
One judge dissented and argued strongly that not only was this a mistake, but it would have serious
First Amendment consequences: I share with the majority the view that R.R.'s post, like many
that preceded and followed it, was vulgar, nasty, offensive, and disgusting. But, as Justice Harlan
wrote in Cohen v. California... although --the immediate consequence of [free speech rights] may
often appear to be only verbal tumult, discord, and even offensive utterance[,] . . . [w]e cannot
lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of
individual distasteful abuse of a privilege, these fundamental societal values [of freedom of
speech] are truly implicated.
In concluding that the post was not in connection with an issue of public interest, the majority
fails to follow relevant precedent and ignores the substantial evidence that D.C. was a person in
the public eye. The majority also creates a broad and groundless exception to the protections of
the anti-SLAPP statute, holding that for purposes of the statute, jokes do not constitute
communications in connection with issues of public interest.... That is not the law. It also
notes that while the "threats" in questions did seem incredibly distasteful, in context with all
the other comments, it seems obvious that they were not real threats: Reading the sequence of
posts from beginning to end, no reasonable person would foresee that any of it would be taken as a
serious threat of violence. No reasonable person would believe that (at least) four people were
sincerely threatening to take D.C.'s life. Taken together, all of the posts amount to nothing but a
lot of adolescent sex-obsessed hyperbolic derision, sarcasm, and repulsive foolishness In
fact, the judge notes that the kid who set up the website didn't seem bothered by the comments, and
was apparently more traumatized by his father filing this lawsuit. Maybe the kid should
sue his father?
Here's one more point concerning the motions filed in the YouTube case
by Google and Viacom. We had mentioned in our analysis that Google highlights the details of
Viacom's rather large "stealth marketing" campaign to upload videos to YouTube, but Eric Goldman
points out that the practices Google uncovered certainly sound
like they cross the line of what the FTC says is legitimate: YouTube also scored points for
its descriptions of Viacom's stealth marketing practices. Although these facts only help YouTube's
legal posture a little, the lawsuit's discovery process has unveiled some non-public information
about Viacom’s practices that should be interesting to the FTC and state attorney generals.
Viacom's alleged stealth marketing practices are aggressive--close to the permissible line, if not
over it. As a result, they might be exactly the kind of consumer misdirection and inauthentic
online content that the FTC has been railing against, and we know the FTC is looking for test cases
in this area. So, a lawsuit that began as Viacom v. YouTube might morph into FTC v. Viacom. This is
one of the known risks of picking a fight--once started, you can't control where it goes.
Indeed, Google presents rather detailed evidence of the lengths Viacom went through to fool users
into thinking that clips were uploaded by people other than Viacom. Among Viacom's actions:
Hiring "an army of third-party marketing agents to upload clips on its behalf"
Having the uploads come from names that are made to look like random users
Using non-Viacom email addresses to sign up for accounts -- with the company admitting that
it wanted to use email addresses that "can't be traced" back to the company.
Leaving Viacom offices to go elsewhere to do the uploads (such as Kinkos) to avoid connecting
the uploads to Viacom.
Altering the footage of videos to make them appear unauthorized: "so users feel they have
found something unique."
While certainly helping Google make the point that it's ridiculous to expect it to know which
videos were legit and which were infringing, these also seem to certainly violate the spirit of the
FTC's recent guidelines on
questionable "stealth" marketing practices. As Goldman notes, if the FTC is looking for a high
profile test case, they may have just been handed a ton of useful evidence.
While one of ACTA's biggest supporters, Rep. Howard Berman, is now pushing for laws to stop
companies aiding in China's
censorship, he might want to consider that a better plan would be to back down on ACTA. If ACTA
passes, it seems quite likely that China would then use it as justification for its own "great
firewall" censorship program. Already, we're seeing that China is looking
to use plans for internet filters in Australia to its own advantage by comparing that system to
its own -- and you can bet China would be thrilled to be able to use a US-backed concept
to support its continued censorship.
In the past, China has justified its internet censorship by saying things along the lines of,
"well, you in the US have laws against obscenity online, and what we're doing is passing laws
against the type of content we feel does not belong online either." But something like ACTA could
make the case much stronger for the Chinese. That's because ACTA and China's censorship have a lot in common, in that
they're both plans that involve vague secondary liability aspects applied to ISPs. That
is, China's Great Firewall works by the government telling ISPs that they might get in trouble if
anyone says anything "bad" online, and are given just vague rules about how to stop the bad. Thus,
the ISPs respond by being overly aggressive in their enforcement. Similarly, ACTA hints at vague
secondary liability safe harbors needed for an ISP not to get blamed for copyright infringement --
and, as we've seen, when such vague rules were implemented in South Korea, service providers start
getting overly aggressive
in banning things as well.
So if Howard Berman really wants to crack down on Chinese censorship online, perhaps he shouldn't
be working so hard towards giving them more justification for China's actions.
Patent system supporters regularly point (slightly misleadingly) to the claim that the patent
system gives patent holders the right to exclude others from using their inventions. And, thus,
most lawsuits we see around patents revolve around cases involving a company manufacturing a
product that includes a patented invention. But what about a lawsuit for a company that
deliberately chose not to license or use a patented technology, because it was too
expensive?
Welcome to today's world.
A few years back, there was a lot of attention paid to videos from a company called SawStop that
made a pretty cool product that protected your fingers from a table saw. You may have seen the
videos: The company tried to license the invention to various table saw makers, but after
evaluating the technology, many were not convinced how well it worked and felt that the cost was
way too high (both for themselves, and for consumers). In fact, some appeared to fear that if they
did adopt this technology and then someone still got hurt, they were asking for a big lawsuit for
promoting this technology as a safety feature.
But what about the other way around? Could someone be so bold as to actually sue for using a table
saw that did not have this technology?
ChurchHatesTucker alerts us
to the story of a lawsuit in Boston that involved a guy whose hand was damaged in a table saw
accident while using a table saw from Ryobi. The guy's complaint was that Ryobi should have included this technology and that it should be required
to protect hands. And, amazingly, the jury sided with the guy.
Yes, you read that right. The jury effectively claimed that any table saw maker is liable for
injuries if it does not license this technology and build it into its table saws.
That, of course, conflicts with that basic "exclusivity" part of patent law -- and would
effectively mean that SawStop has now been given total defacto control over who can be allowed to
sell table saws in the US. That clearly is not what the law was intended to do. The government
should never require companies to have to purchase a patent license for a technology they don't
believe the market wants. And, in this case, the ruling has resulted in numerous other lawsuits
against other table saw makers -- and a near guarantee that the price of table saws will go way up.
Old saws can't be retrofitted, and table saw makers need to totally change their manufacturing
process and greatly increase costs to offer this technology.
This seems blatantly wrong. If the government is going to require companies to use a patented
technology, it seems that the only reasonable solution is to remove the patent on it and allow
competition in the market place.
We've already written up an analysis of the motions for
summary judgment in the Viacom/Google YouTube lawsuit, suggesting that Google's arguments seem
stronger. It still seems unlikely that either motion will persuade the judge to skip a trial
altogether, but the motions are certainly a bit of a preview of what to expect at any trial. Most
of the analysis out there sort of reiterates the talking points in the two motions, but Eric
Goldman highlighted an important point that got me thinking in that time is working
against Viacom here, as YouTube becomes more and more entrenched as a useful platform by the
day: Perhaps more importantly, the intervening time has been good to YouTube as a business
and as a brand. In this sense, compare Grokster to YouTube. At the time of the Grokster cases, it
was still very much an open question whether Grokster would ever evolve into a tool where
legitimate activity dominated. While we might still have had that same question about YouTube in
2006, by 2010 YouTube has answered that question resoundingly. YouTube's business practices have
matured, everyone has had positive legitimate experiences with YouTube (even behind-the-curve
judges), and it's clear that major legitimate players have adopted YouTube as a platform for their
legitimate activities. For example, YouTube's brief makes the point that all of the 2008
presidential candidates published YouTube videos as part of their campaign. I'm guessing no 2004
presidential candidates used Grokster for campaign purposes.
So as time goes on, YouTube solidifies a brand as a legitimate part of our information
infrastructure. As we learn that the YouTube story has a happy ending, I suspect judges become less
interested in punishing YouTube for past practices. For this reason (and others), I thought a lot
of Viacom's inducement arguments ran hollow because they ran counter to my brand impressions of
YouTube. I would also note that Viacom appears to be giving up its litigation over activity after
May 2008, so even Viacom seems to be happy with YouTube in its current form. Goldman goes on
to point out that this may bring up some challenges heretofore unfaced in determining how the
"inducement" standard works -- but, to me, it brings up an even more important issue: similar
lawsuits against Napster and Grokster moved faster. Lots of people have commented on the fact that
this particular lawsuit has taken three years from filing just to get to the summary judgment
motions to be filed -- and during that time, Goldman is correct, YouTube has had a chance to
mature, refine its business model, and do many things that we now find to be quite beneficial to
society.
The same thing likely would have happened to both Napster and Grokster, if they had been
given a chance to live. Executives behind each company repeatedly laid out strategies to mature
their business models and to work as partners with the industry. It's just that they never got a
chance to put those into practice because these sorts of lawsuits and rulings from judges forced
them (effectively) out of business. In YouTube's case, the slow pace of this particular lawsuit has
allowed it to firmly establish tons of viable, useful, valuable non-infringing uses -- to the point
that it's a platform used by tons of companies, politicians, individuals and more. If Napster and
Grokster had been given half a chance, they likely would have been able to evolve similarly.
And this is what is so painful about watching all these attempts by the entertainment industry to
kill off any new technology that disrupts an old business model. These lawsuits kill off those
technologies before the natural progression and maturation is allowed -- and because of that, we
all suffer.
Now, some will scoff and claims that Grokster was never going to turn into what YouTube is today,
but you're saying that with the gift of hindsight. A large part of Viacom's motion tries to suggest
that the two companies actually were quite similar -- but even Viacom is now admitting that
YouTube's business model was able to mature and adapt. Considering that we still don't have music
discovery, promotion and distribution tools as convenient as Napster was back in the day, this can
be seen as a real shame. These lawsuits killed off a useful path of exploration for legitimate
business models, and that's not only shameful but a waste of innovative effort. It's only through
the random quirk of a slow court that YouTube may avoid suffering the same fate.
It's been a while now since ICANN announced plans to open up the top level domain
space. While we've questioned for many years the utility of still requiring limited TLDs,
ICANN's plan to open up top level domains appeared to be more of a moneygrab than any real attempt
at openness. That's because to get your own vanity TLD, it was going to cost somewhere between
$100,000 and $500,000. Who would pay that? Apparently consumer electronics firm Canon.
Dark Helmet alerts us to the
news that Canon is
the first company to get its own TLD, appropriately: .canon. And, no, this doesn't mean that
you'll now need to go to http://canon.canon -- but just to http://canon (that is, once it's
launched, which won't be until at least late 2011). Oh, and apparently the cost has now solidified
at $185,000. This really does seem like a pure vanity play. It's not like anyone was having any
trouble finding Canon before, and most browsers (the vast majority of those that are actually used)
will often automatically add the .com if you leave it off anyway.
There might be an argument for some sites, such as social networking sites to go down this
road, so that you can set up profile pages like YourName.Facebook or whatever -- but it's hard to
see the value for companies like Canon.
Michael Scott points us to a
rather surprising (given the source) piece in Ad Age asking if copyright is "the
buggy whip of the digital age." Of course, most regular Techdirt readers will not be surprised
to find that I agree with that statement wholeheartedly. It's a tool for a very different system
that isn't needed. If anything, I'd argue the situation is worse than with buggy whips. At least
with buggy whips, they could just fade away as the automobile grew in importance. Buggy whips
couldn't get in the way of the automakers. Copyright, on the other hand, is regularly used
to stifle and hold back new forms of creativity and to silence expression.
The article itself, by Judy Shapiro, is really a conference report from an event called "The
Collision of Ideas 2010," put on by the Copyright Clearance Center. It looks like they brought in a
lot of fantastic speakers, highlighting how copyright law doesn't fit well with what content
creators are trying to do, and how it's often being used to actively harm content creators. For
example: Mr. Hoffman, the filmmaker, gave a presentation where he confided how challenging
current copyright laws are for artists. As an example, he gave us detailed insights into the
challenges he had creating his critically acclaimed Sputnik documentary. He explained that half his
budget was spent on copyright fees alone. Most unfairly, he had to pay exorbitant copyright fees to
a network for old news footage they did not even have but which David himself had spent time to
ferret out. David openly concluded that, "it was better to open the floodgates" and let anyone use
his content than constrain its distribution. Unfortunately, Shapiro is getting beaten up in
the comments on that piece by folks who are doing the kneejerk thing of saying "but copyright is
good, because otherwise who will create!" Still, it's good to see that this debate is reaching a
wider and wider audience through conferences like this one and in the pages of AdAge. While you can
always expect the kneejerk response from folks who have always been told that copyright must be
good, the more people examine the actual issues, the more they'll recognize that as a tool, it's
current design is woefully misguided and very much against the principles for which it was
created.
Whatever happened to actually competing in the market place? Copycense points us to a
recent legal battle between Dixie and Huhtamaki over the design of their disposable coffee cups. Seriously. Dixie claimed that
Huhtamaki violated its trade dress because its cups, like Dixie's, included a white band at the
bottom of the cup. After two years in court, the judge, thankfully, didn't see what the big deal
was over both cups having a white strip at the bottom and ruled against Dixie. In part, the judge
noted, Dixie never proved that the white strip was non-functional, which is important, since trade
dress is supposed to be for non-functional design elements: Dixie even provided alternative
designs for Huhtamaki to adopt to differentiate its cup from Dixie's, according to the judge's
order.
"Because Huhtamaki would either incur additional costs or sacrifice design quality if it were
forced to adopt one of Dixie's alternative designs, the court finds that the product feature in
question is functional under the traditional test." Still, just the fact that lawsuits like
this even exist in the first place shows how far gone these things have gone. It's as if every
company feels entitled to having no competition whatsoever, and will sue anyone who offers anything
remotely similar. What a sad state of affairs.
Unfortunately, I can't find who first sent this in, but the site Inieoma recently had an
interesting multi-part "discussion" on
how independent artists are dealing with the issue of "piracy." Some of the parts are quite
interesting. Simon Indelicate has a bit of a bipolar post that does a fantastic job laying out the economic issues of music production and
consumption. He notes that the technology has flipped scarcity and abundance on its head --
entirely separate from the file sharing issue. He is pessimistic about new business models working
for most musicians (about the only point I disagree with him on), but thinks that the overall world
is a better place with the internet and cheaper production of music. Quite a good read.
Then there's an interview of Dan Bull, known around these parts for his musically brilliant open
letters to Lily Allen and
Peter Mandelson. In the
interview, he discusses his views on the music business and things like file sharing. He notes that
he's mainly "against... enforcing backwards laws in order to cling onto an obsolete business
model."
Next up, is an interview with Matt Stockman who is starting up a new record label, called
Sharabang, which plans to give away its music for free to "open up other revenue streams." No
matter what industry you're in, to thrive you must firstly listen to your customers. For Sharabang
Music it's about listening to music lovers, how music is now consumed and adapting to this to offer
genuine choices. What we're actually doing by offering music fans a choice is trying to put the
value back into recorded music by diversifying the product range and offering far more than can
simply be sent over the internet. The whole interview is interesting, as Sharabang is working
hard to come up with interesting scarcities. One cool idea is that every concert of a band on the
label will be filmed with audience participation encouraged. And there will also be limited edition
t-shirts that are tied to a specific event or group, to encourage people to buy more and "wear them
with pride." We keep hearing more and more about companies stepping up to help artists embrace new
business models, so it's great to hear of one more that appears to understand the best way to face
the modern era.
There are some other parts to the discussion as well -- some I agree with and others I disagree
with, but overall there are some great viewpoints and thoughts on this general issue of how
musicians can adapt to a changing world. Perhaps none of it's really all that different from what
we usually discuss around here, but it's still great to see how different people are expressing
their opinions on the issue.
Michael Scott
points us to a very interesting analysis of how to different appeals courts have very different interpretations of our federal anti-hacking law. The Computer
Fraud and Abuse Act was passed by Congress to create criminal sanctions for malicious computer
hacking. The problem, of course, is that whenever you have politicians passing laws about
technology, they may be a bit vague. So, the way hacking was defined was effectively to say that
the perpetrator accessed info "without authorization" or (more troubling) that the activity
"exceeds authorized access." Now, it's pretty obvious what's meant by this. If you're
breaking into parts of a computer system where you don't belong for nefarious purposes, you're
probably violating this law.
But that's not how all courts are interpreting it. The article notes that the Seventh Circuit, in
International Airport Centers, LLC v. Citrin, found that an employee violated this law by deleting
information on his laptop (which would have presented evidence of a breach of contract by the guy),
after he had resigned. Obviously, that's a totally different situation than what the CFAA was
intended to cover, but the court found that once he quit, he was no longer authorized to use the
laptop, and doing so was effectively hacking. That seems like an extreme stretch of the law. But at
least some other courts are following suit: For example, in a case in the U. S. District Court
for the Eastern District of Missouri, the district court relied upon the Citrin decision and held
that, even if employees were authorized to access their employer's computer records, they cannot
use such authorization (and, hence, their access can become "unauthorized"), if they use the
information for their own interests.... The court concluded that the employer sufficiently alleged
that the employees "acted without authorization when they obtained [the employer's] information for
their personal use and in contravention of their fiduciary duty to their employer." Yes, you
read that right. If you use your employer's computer simply to access the company's data for your
personal use, you may be guilty of computer hacking. That's quite clearly not what the law was
intended to cover.
Thankfully, the Ninth Circuit (which all too often comes out with weird decisions) seems to have
gotten this one right: In declining to adopt the Seventh Circuit's interpretation of "without
authorization," the court held that a "person uses a computer 'without authorization'... [only] [1]
when the person has not received permission to use the computer for any purpose (such as when a
hacker accesses someone's computer without any permission), or [2] when the employer has rescinded
to access the computer and the defendant uses the computer anyway."... The Ninth Circuit declined
to hold that the "defendant's authorization to obtain information stored in a company computer is
'exceeded' if the defendant breaches a state law duty of loyalty to an employer" because no such
language was found in the CFAA.... The Ninth Circuit noted that because the CFAA was "primarily a
criminal statute," and because there was ambiguity as to the meaning of the phrase "without
authorization," it would construe any ambiguity against the government.... Obviously, I agree
that this is the proper interpretation of the law -- and stretching the definition of criminal
hacking "without authorization" to things like accessing personal information on an employer's
computer is dangerous. Of course, with the split rulings, it's likely that eventually this will get
to the Supreme Court to sort out, and hopefully they get it right. Or, in the meantime, Congress
could clarify the law -- but chances are they'd just make it worse.
Ah, the patent wars. As you're probably aware, TiVo spent years fighting a big legal battle with
EchoStar/Dish Networks over some patents on DVR technology. TiVo won big, and then immediately
turned its patent lawyers on some other companies including
Verizon. In Verizon's response to TiVo's lawsuit, it went nuclear back, accusing TiVo of violating Verizon's patents on DVR
technology -- including a patent that the world's biggest patent hoarding firm, Intellectual
Ventures, gave Verizon for the purpose of being used against TiVo.
So is it any surprise to hear via Broadband Reports that Verizon is now suing Cablevision, claiming patent infringement on its set top box/DVR
offerings as well? Cablevision and Verizon have had a really nasty battle going for
years on Long Island, with all sorts of dirty tricks being played by both sides. But
patent infringement? Given the odd timing of this lawsuit coming so quickly on the heels of the
counterclaims against TiVo, you have to wonder if Verizon "woke up" to the fact that it could use
these patents against Cablevision, only after provoked by TiVo.
6,367,078: Electronic program-guide system with sideways-surfing
capability
7,561,214: Two-dimensional navigation of multiplexed channels in a digital video
distribution system
6,055,077: Multimedia distribution system using fiber optic lines
5,864,415: Fiber optic network with wavelength-division-multiplexed transmission
to customer premises
6,381,748: Apparatus and methods for network access using a set-top box and
television
The three in bold are found in both lawsuits. Now, to be fair, before looking at the details,
I was guessing that Verizon would also be using the patent it got from IV, but that patent
(5,410,344) appears to be the one patent that Verizon is asserting against TiVo, but
not against Cablevision. I have no idea if this is because nothing Cablevision
does is covered by that patent, or if Verizon has limitations on what it can do with the IV patent.
Still, given the overlap here, the timing, and the fact that many of these patents are pretty old,
you really have to wonder if the lawsuit from TiVo and the scouring of patents for a countersuit
also gave Verizon the idea to sue its arch-nemesis in the Long Island market over the same
issues.
A website that sorts everyday the most relevant information to you.
Vote for the news and Matoumba will learn your tastes and the information that you like the most.
It is all FREE!
Find here the history of the stories you found interesting.
Show this to people who share the same interests as you,
and if they use Matoumba, their own votes will fine recommandations to you.
Recommandations
)
and reject those that you are not interested in
(
)
