Big Brother In Your Garbage Cans

from the rfid-me dept

Reader Stan alerted us to a recent report out of Cleveland, where the city will apparently be placing RFID chips in recycling bins to monitor whether or not you've been a good little earth saver lately. The way it works, apparently, is that the system will monitor whether or not you bring your recycling bin to the curb, and if you haven't in a while, "a trash supervisor will sort through the trash for recyclables" on the assumption that if you're not recycling, you're probably throwing stuff out. After checking those trash cans for recyclables, if more than 10 percent recyclable material is found, a $100 fine could be assessed to the home owner.

Not surprisingly, the reasoning for this has a lot more to do with money than saving the earth's resources:

Recycling is good for the environment and the city's bottom line, officials said. Cleveland pays $30 a ton to dump garbage in landfills, but earns $26 a ton for recyclables.

While perhaps it's a good thing to see something "good" like recycling line up with a way for the city to earn extra money, it still seems pretty intrusive to monitor how often people recycle.

Leave a Comment..

Iron Maiden, Connects With Fans, And The Fans Buy

from the well,-look-at-that dept

There really isn't that much specifically new about what the band Iron Maiden has done, but as this NY Times article shows, the band figured out ages ago, that really connecting with fans is a useful trait in having those fans continue to support you. The article notes that the band was never really able to rely on radio airplay, since its songs were not acceptible radio fare, either in length or content. So, instead, it focused on really building up its relationship directly with fans, in part through relentless touring:

A lack of radio exposure may have created challenges, but these prepared Iron Maiden for the digital era, when the industry's traditional business model has broken down. Now, a hot radio single is more likely to send listeners to the Internet in search of a free, pirated copy than into the record stores.

Because Iron Maiden's songs do not fit the mold of a radio single -- three of them, on the newest release, are more than nine minutes long -- the band does not suffer as much from this problem.

The article notes that, with the album's latest release, sales of the actual CD are pretty high (it entered the charts at number one in many countries around the globe -- oddly, including Saudi Arabia -- and number four in the US), while unauthorized downloads are pretty low. Of course, there is a potential alternative explanation: the band's fans may come from a somewhat "older" generation (the band's members themselves are all in their fifties). The fact that authorized downloads are pretty low may support this claim, though an exec from the band's label says it might be that fans really want the physical CD for the artwork, lyrics and such.

Of course, what strikes me as amusing about all of this is that the band is on EMI internationally, and Universal Music in the US -- and the exec from EMI quoted in the article makes it sound like it's a no brainer that fans want to buy high quality physical goods from a band that really connects with their fans. It's nice to see EMI finally recognize that simple fact, but it does sort of make you wonder: why haven't they been able to do that with other acts as well?

Still, the advice from the band's manager definitely is pretty straightforward and dead on:

"Invest in the long term. Apply an image. Give the fans what they want. Tour and keep touring. Play the festival circuit. Embrace new technology. Be innovative. Be honest. Be original. Write good songs."

3 Comments | Leave a Comment..

Juror Has To Write Essay As Punishment For Commenting On Case Via Facebook

from the write-this-100-times-on-the-blackboard dept

We've written many, many times about how technology is invading the courtroom in ways that courts still aren't entirely prepared to handle. Social networking sites are definitely becoming an issue. There was the juror who Twittered during a trial, and almost led to a retrial. There was the juror who sent a MySpace message to the defendant. But, of course, the social network that pops up all the time with juries is Facebook. There was the case where jurors became Facebook friends with each other, and another where a juror asked her friends on Facebook, whether she should go with guilty/not guilty. In a lot of cases, these users are just using Facebook/Twitter/MySpace the way they normally would -- as an informal way of communication. But that doesn't mean judges have to like it.

In the latest such story, a woman who joked on Facebook that she was "gonna be fun to tell the defendant they're GUILTY," wasn't just kicked off the jury, but ordered to write a five-page essay on "the constitutional right to a fair trial," and ordered to pay $250.

Perhaps most interesting of all, however, is how this all came to light. Apparently, the 17-year-old son of the lawyer for the defendant found the comment on Facebook, told his father, who brought it to the court's attention. Kids these days...

6 Comments | Leave a Comment..

Betcha Loses Its Big Bet: Court Now Says It's Illegal Gambling

from the betcha-knew-that dept

Back in 2007, we wrote about a startup that was trying to sneak its way through anti-online gambling laws by trying to squeeze through a loophole. The site, called Betcha, would let people bet each other on various things, but which let bettors renege on any bet if they lost. Of course, doing so would give you negative feedback on your profile. However, the site argued that because anyone could bail out of a bet, it wasn't illegal gambling. Authorities in Washington State (who have one of the strictest anti-online gambling laws around) disagreed. A district court said the site was illegal... but an appeals court reversed, saying that the presence of the renege button mean there was "nothing risked" and thus, it did not meet the definition of gambling.

Like the ups-and-downs of gambling, however, the next roll of the dice hasn't been kind to Betcha. Eric Goldman is reporting that the state Supreme Court has reversed again and found the site guilty of illegal gambling by a unanimous 9-0 vote:

The court's opinion makes it clear that expansive anti-gambling laws leave almost no room for entrepreneurial yet legal Internet gambling enterprises. Here, Betcha is tripped up by the definition of "bookmaking," defined as "accepting bets, upon the outcome of future contingent events, as a business or in which the bettor is charged a fee or "vigorish" for the opportunity to place a bet." This strikes at Betcha's model of charging the parties to communicate with each other regarding betting. The court is not swayed by Betcha's formalist argument that because the loser could renege on the bet, the wager did not meet the statutory definitions for gambling. The court says the bookmaking definition applies whether the bets are made for money or not.

12 Comments | Leave a Comment..

Misguided Insult To Misguided Injury: HP Sues To Stop Mark Hurd From Taking New Job

from the what-a-waste dept

The most credible explanation I've seen so far as to why HP fired Mark Hurd last month, even after it determined that he had not actually engaged in sexual harassment, was that the Mark Hurd help lead the investigation into the board over the infamous pretexting scandal, and that the whole story about the supposed harassment and fudged expense reports were just an excuse to get rid of a CEO the board didn't like -- even as he was performing tremendously well.

If that explanation is actually true, it also helps explain the news that HP is now going to sue Hurd for accepting his new job as President at Oracle. As HP's lawyers absolutely must know, California has a law that the courts have interpreted quite broadly, that says noncompete agreements are not enforceable, because you cannot deny a person the right to earn a living. HP is (weakly) trying to get around this by claiming the job shift would violate "confidentiality agreements" and trade secrets, but there's almost no chance a court buys that. The lawsuit seems like a non-starter. In fact, the only reason for filing the lawsuit really seems to be an absolute pest. It's an incredibly childish move by a company that should know better.

14 Comments | Leave a Comment..

EU Parliament Rejects ACTA: Will It Matter?

from the let's-wait-and-see dept

A bunch of folks have been letting us know that a majority of European Members of Parliament have signed a declaration against ACTA, making it official EU policy. The document has them rejecting not just the anti-transparency involved in ACTA negotiations, but the content of ACTA as well. This is, of course, the same EU Parliament that condemned the secrecy by an overwhelming vote earlier this year, but this appears to be a step further. Of course, it's the EU Commission that's handling the negotiations, so I'm not entirely sure whether or not this is actually meaningful. Perhaps those who know a bit more about EU politics can chime in and let us know. It certainly seems like a bad thing for ACTA supporters, but I do wonder if various governments will (or can?) just ignore the EU Parliament on this one...

8 Comments | Leave a Comment..

Rupert Murdoch's Paywall Disaster: Readers, Advertisers, Journalists & Publicists All Hate It

from the and-it's-working-for-who-exactly? dept

We had already seen the early indications that Rupert Murdoch's paywalls from The Times and The Sunday Times in the UK were a dismal failure, but as more information gets leaked about how the paywalls are working out, it's looking worse and worse. Beyond the fact that not too many people are signing up to pay, the move has upset advertisers who don't want to advertise to such a small audience:

Faced with a collapse in traffic to thetimes.co.uk, some advertisers have simply abandoned the site. Rob Lynam, head of press trading at the media agency MEC, whose clients include Lloyds Banking Group, Orange, Morrisons and Chanel, says, "We are just not advertising on it. If there's no traffic on there, there's no point in advertising on there." Lynam says he has been told by News International insiders that traffic to The Times site has fallen by 90 per cent since the introduction of charges.

On top of that, various PR people and publicists are keeping their sources away from Times reporters, preferring to provide access to news organizations where the story might actually get seen by people, rather than locked up behind Murdoch's paywall:

Publicists have told me that clients are increasingly reluctant to give interviews or stories to The Times, on the grounds that they would not be made freely available via search engines.

Oh yeah, and because of all of that, journalists at the papers aren't very happy either. None of this should be a surprise, of course. Many folks, including us, warned that this would happen. Murdoch and his supporters keep trying to spin a happy story about the paywall, and are expected to release some official data soon, but the feedback coming out already suggests that rather than "saving" his newspapers, this action may have sped up the troubles they face.

39 Comments | Leave a Comment..

Raids Across Europe Targeting File Sharing Sites

from the mole-wacking dept

Well, here we go again. Despite a near total lack of these kinds of activities helping anyone, apparently there's just been a European-wide set of raids on various file sharing operations. It's happening in at least 14 countries, with police showing up at various hosting firms, and trying to take down various private groups.

I'm sure we'll hear the entertainment industry and/or law enforcement make some silly claim about how this represents a "significant blow" against file sharing. But, of course, the people saying that are the only people who actually believe it. Most people involved in file sharing via these sites will just move on somewhere else.

28 Comments | Leave a Comment..

Glee Cast Members Claim They're Being Stiffed On Royalties From Glee CD

from the sing-a-song-of-copyright dept

AdamR alerts us to the news that a bunch of castmembers from the hit TV show Glee are apparently quite upset that they're not seeing royalties from the super successful CD from the TV show.

After their latest record, "Glee: The Music -- Journey to Regionals" landed at No. 1 on the Billboard 200 chart in June, star Mark Salling said he'd seen "not a dime" of royalty payments from label Sony Music.

Co-star Corey Montieth told Toby Knapp's DC 99.5 radio show: "I got 400 bucks from it going No. 1. But you know what, that's OK, because if I'm patient, and if this thing does really well, maybe I'll see another 400 bucks."

... "The 'Glee' cast is furious because they feel they were misled by Sony," a source said. "They have all complained to Ryan that they want a bigger share of the royalties."

Well, that's how RIAA accounting works. Though, amusingly, the article notes that this is leading castmembers to make sure not to sign directly with Sony for recording deals, choosing to work with competitors instead (of course, with the major labels, they all cut deals like this). Either way, with the cast suddenly learning about music royalties, it makes you wonder if the show will stop ignoring them.

26 Comments | Leave a Comment..

Finally: People Speaking Up About How Censoring Craigslist Helps 'Pimps, Child Traffickers & Other Abusive Scumbags'

from the preach-it dept

We've been saying for years that the political granstanding efforts against Craigslist do the exact opposite of their intended purpose. They certainly don't stop prostitution or child trafficking. They just drive it further underground. Craigslist has become a very useful tool for monitoring, tracking and cracking down on such illegal activities. However, every time I mention it, some people get upset that I "just don't understand" the horrors of child trafficking etc. Well, it's true that I certainly have no experience with it, but I don't think that changes my analysis of the situation... and it appears that others are starting to notice as well. Danah Boyd has written an excellent article explaining in direct terms "how censoring Craigslist helps pimps, child traffickers and other abusive scumbags."

The problem with this logic is that it fails to account for three important differences: 1) most ISPs have a fundamental business -- if not moral -- interest in helping protect people; 2) the visibility of illicit activities online makes it much easier to get at, and help, those who are being victimized; and 3) a one-stop-shop is more helpful for law enforcement than for criminals. In short, Craigslist is not a pimp, but a public perch from which law enforcement can watch without being seen.

She goes into detail on all three points. It's an incredibly eloquent defense of Craigslist that should be required reading for all of the politicians, reporters and so-called "public interest groups" that have been running the media campaign against Craigslist, without understanding these basic points. I'd love to see any of the attorneys general who have been grandstanding actually try to respond to this. I doubt any of them will.

10 Comments | Leave a Comment..

Forget Product Placement; Get Ready For Product Anti-Placement

from the sneaky-bastards dept

By now you're certainly familiar with the concept of product placement, and the fact that it's been growing and growing and growing these days. Well, how about a counter-clockwise twist on the concept? ChurchHatesTucker points us to the rumors making the rounds that some luxury brand companies are experimenting with product anti-placement. That is, they're sending their competitors' products to celebrities who they think will create a negative association with the brand. The example used in the article is that rather infamous reality TV star Snooki:

Allegedly, the anxious folks at these various luxury houses are all aggressively gifting our gal Snookums with free bags. No surprise, right? But here's the shocker: They are not sending her their own bags. They are sending her each other's bags! Competitors' bags!

Call it what you will -- "preemptive product placement"? "unbranding"? -- either way, it's brilliant, and it makes total sense. As much as one might adore Miss Snickerdoodle, her ability to inspire dress-alikes among her fans is questionable. The bottom line? Nobody in fashion wants to co-brand with Snooki.

As CHT notes, one of these days, this is going to create quite the fascinating trademark question. If Louis Vuitton is sending out Prada purses to anti-celebrities, could you make an argument for trademark infringement? I wouldn't put it past one of the luxury brands to try to come up with a novel legal theory to try...

23 Comments | Leave a Comment..

Righthaven Sues Senate Candidate Sharron Angle

from the copyrighter-in-training? dept

After Righthaven kicked off its mass lawsuits against various websites for reposting some parts of Las Vegas Review Journal articles, some folks wondered if Righthaven would sue US Senate candidate Sharron Angle, since she appeared to be reposting parts of some LVRJ stories on the campaign website. And, it took a little while, but late last week, Sharron Angle was, in fact, sued for copyright infringement over posting those LVRJ articles. Apparently, with Angle, Righthaven is claiming two separate copyrights, and demanding $150,000 -- twice its normal request for $75,000.

Of course, what's really ironic here is that Sharron Angle is the candidate we talked about back in July -- claiming copyright infringement by Senator Harry Reid, who she's challenging in the election, after Reid set up a clone site of Angle's old website, which had some content Angle wanted to distance herself from. And when confronted on this issue, Angle insisted she would sue, though as far as I can tell, no lawsuit was ever actually filed.

So, it's not as if Angle is any sort of champion for smarter copyright lawsuits. I've seen some people think that, because of this lawsuit by Righthaven, if she gets elected, perhaps she'll speak up for better copyright laws, but that seems unlikely. Still, it is somewhat ironic that she was claiming copyright infringement by Reid, while at the very same time, taking chunks of the LVRJ -- especially since Righthaven's lawsuits were already ongoing at that point. I would imagine that Angle's words at the time might come back to haunt her here:

"Well your website is like you, it's your intellectual property," Angle said. "So they can't use something that's yours, intellectual property, unless they pay you for it or get your permission... And he didn't ask me for it, and he didn't pay me for it."

Still, with a lawsuit against someone so high profile, perhaps it will get more people paying attention to just how ridiculous Righthaven's lawsuits have become.

9 Comments | Leave a Comment..

Craigslist Shuts Down Adult Services; Says It's Being Censored

from the without-a-lawsuit-too dept

Last month, we noted that the dangerously misguided media campaign against Craigslist's adult services section had ramped up, and it didn't take long for various state attorneys general to grandstand against the site with a press conference and "letter" sent to the site, demanding that the adult service section be shut down. This, despite the fact that previous grandstanding attempts had resulted in not one, but two separate settlements with various state AGs, and Craigslist had lived up to the terms of both settlements.

While some had threatened, no actual lawsuit had been filed against Craigslist for this section -- and for a damn good reason: Craigslist is, without a doubt, protected from liability due to Section 230. Furthermore, Craigslist seems to go out of its way to help law enforcement use the site as a tool to crack down on prostitution. Shutting that down won't stop the prostitution. It'll just drive it to sites that don't work as closely with law enforcement.

And that may now be happening. Late Friday, people started noticing that Craigslist had blocked the Adult Services section and replaced it with just a line that said boldly "censored."

Craigslist is, indeed, making quite a statement here. They were pressured to shut down a section on no actual legal basis, in a manner that won't help anyone stop prostitution or exploitation of young women. All it does is give a few politically-minded state attorneys general a headline and a campaign bullet point, falsely claiming that they helped "fight prostitution."

In the meantime, people are pointing out that the ads from the adult services section are already migrating elsewhere on the site and there are lots of other sites ready to pick up the slack -- many of which have been much more explicit than anything on Craigslist ever was. Perhaps most ridiculous of all is that the Attorney General who has lead the grandstanding crusade against Craigslist, Richard Blumenthal from Connecticut still isn't happy, claiming that he's worried this is just a publicity stunt (which is kind of funny, seeing as pretty much everything Blumenthal has had to say about this case has been a publicity stunt.

104 Comments | Leave a Comment..

Texas Attorney General 'Investigating' Google, With Little Basis In Reality

from the not-this-again dept

I'm beginning to think we need a series of posts on "State Attorneys General Gone Wild." We've discussed the insider's view from Topix' Chris Tolles about how state attorneys general grandstand against tech sites, despite having absolutely no legal basis. We've seen it happen over and over and over and over and over again (most recently with Craigslist -- a favorite target).

Late Friday, the news broke that Texas' AG was "investigating" Google for antitrust violations, using the trio of companies that have been mentioned for a while now -- Foundem, MyTriggers and TradeComet -- who have all been making a stink about how Google is somehow violating antitrust laws because those three sites don't like their rankings in Google. All three claim that they're competitors to Google, and Google is somehow trying to hold them down. This is, frankly, ridiculous. As has been explained over and over again, rankings are an opinion, protected by free speech rights. And, furthermore, if Google was really trying to keep competitors down, wouldn't it actually focus on players that actually matter in the space? Besides, if you look on Google, you can easily find highly ranked links to all sorts of Google competitors. It's also worth mentioning, of course, that all three of these companies have some sort of connection to Microsoft.

So, once again, we have some silly grandstanding, and it's not at all clear what Texas has to do with any of this. None of the companies are based in Texas, and Google's not breaking any laws here. It seems like just more grandstanding by a state AG against Google. It'll be interesting to see what happens, because unlike sites like Topix and Craigslist, Google might actually have enough clout to not just give in and settle.

Meanwhile, Danny Sullivan does a nice job summarizing the ridiculousness of this (that's the link above):

My view is the arguments are generally absurd. None of these companies are large enough to pose any threat to Google, to the degree it would be compelled to take such stupid action. Moreover, if Google's going to act to block a competitor, I'd expect it to pick bigger targets -- say like Microsoft.

And for the legal view, we turn to Eric Goldman who sums it up with the title "Are You Kidding Me???":

I'm always amazed by people who forget that Google's organic search and ad ordering are editorial processes fully protected by the First Amendment. Part of this myopia is Google's own fault. It has so successfully sold itself as a technology platform that we forget about the editorial processes embedded in its core business. As a result of those judgments, any legal challenges to Google's search practices runs squarely into serious First Amendment considerations.

I'm also intrigued by the potential role of 47 USC 230(c)(2), a federal law which basically insulates websites' filtering decisions from any state law causes of action (except state wiretapping laws and possibly state IP claims). The interplay between 230(c)(2) and antitrust claims is hardly clear, but it's possible that the Texas AG's efforts are completely preempted by the federal statute.

Goldman also wonders what the actual result would be if Texas AG Greg Abbott "succeeds" in forcing Google to change its ranking process: "Let's assume Texas can actually establish a case against Google's algorithms. Then what? Will Greg Abbott start telling Google how it should run its search engine? It's hard to imagine that the cure will be better than the disease."

Finally, and in a way that no one else can, the folks over at Groklaw has an astoundingly detailed look at how ridiculous this claim is.

16 Comments | Leave a Comment..

And, Of Course, ACTA Leaks: Some Good, Plenty Of Bad

from the this-is-not-a-good-idea dept

I imagine it will come as little surprise to anyone, but over the weekend, the latest draft of ACTA leaked. You can read it in wiki format over here. While it is "cleaned up" a lot from the last version, and appears close to being done, there are still some pretty big areas of disagreement. Specifically, the EU is still holding out for ACTA to cover patents as well as copyrights and trademarks, while the US doesn't want patents included for a variety of reasons. Also, as expected, the US has dropped explicit secondary liability language, but includes plenty of other vague language about anti-circumvention and "cooperative efforts within the business community," that you should be worried about. The "cooperative efforts" is code words for "ISPs should become entertainment industry cops." It's not direct secondary liability, but there's enough wiggle room there that it won't take long for the entertainment industry and its "friends" to start pointing out that ISPs that don't kick people off the internet, or don't hand over names of people, aren't making those "cooperative efforts." Just wait and see. In the meantime, considering the amount of research that has come out this year alone suggesting that neither counterfeiting nor copyright infringement are the big problems they're made out to be, why hasn't anyone asked the participating countries to explain why ACTA is needed in the face of this new evidence?

7 Comments | Leave a Comment..

Lessons In Smart Trademark Management: Free Licensing Of The Mark From Twitter

from the a-good-way-to-do-things dept

A year and a half ago, we noted how nice it was to see Twitter's rather laissez-faire attitude towards trademarks, where it seemed to have no problem with third parties making use of Twitter-related terms in their own names -- such as TwitPic, Stocktwits, Tweetdeck and many others. So, at first I was a bit surprised to see a report claiming that Twitter might be cracking down on those who use such names. The truth, however, actually demonstrates how many companies should respond to many trademarked situations.

First off, it's worth pointing out, as people always do, that one of the oddities of trademark law is the idea that a trademark holder has to prevent others from using the mark without permission, or they run the risk of losing the mark. That leads to lots of nasty cease and desist letters from lawyers, and people defending them claiming they "have to" do this. But that is not so at all. First off, they only have to do that for cases where there is a likelihood of confusion, so they can certainly leave many other cases alone. But, more importantly, there's another option out there, which very few trademark holders embrace: they can just give a free license out.

The story about Twitter is really just that the company has filed for a trademark on TWEET, which is perfectly reasonable. Just because you're getting a trademark, it doesn't mean you're going to stop others from doing things (and, the TechCrunch post seems confused by a different trademark on Tweet -- but trademarks are specific to areas of use, so it's possible to have multiple trademarks on the same term in totally different areas of use). And, in fact, Twitter made a statement pointing out that it does, in fact, freely license its marks:

"We freely license "Tweet" for ecosystem partners who are using it correctly as part of accessing the Twitter API. That said, "Tweet" means something specific and we aim to protect that meaning. More on this can be found here: http://support.twitter.com/forums/26257/entries/77641."

This seems like not just a perfectly reasonable trademark policy, but a smart one for encouraging others to help promote you and feel comfortable working with you as a partner. It's really surprising how quickly most other companies go for the legal nastygram, rather than "freely license" trademarks in cases where the use is clearly promoting the brand.

15 Comments | Leave a Comment..

Did Activision Violate Arnold Schwarzenegger's Publicity Rights With Austrian Accented Thor?

from the i'll-be-baaaaack dept

Ah, the fun never stops with the still ambiguous world of publicity rights, a relatively recent, but growing field of "intellectual property" that has all sorts of problems. THREsq points us to a legal analysis of whether or not California Governor Arnold Schwarzenegger would have a publicity rights claim over the character "Thor," found in Starcraft II. It's hard to argue that the character isn't based on Ahhh-nold, as it has his accent and repeats (sometimes paraphrased) famous Arnold lines from various movies:

In some ways, this is not all that different than the recent complaint from Michael Jackson's estate over the "zombie" Michael Jackson found in the game Plants vs. Zombies. Of course, to make this even more interesting, Schwarzenegger is still leading the legal fight against violent video games in California, so it seems even more amusing that his "voice" appears in a new video game.

That said, there's no indication that Schwarzenegger is actually upset by this -- and he apparently has not complained about other attempts to mimic his voice, such as with the Simpson's character McBane. So, at this point, the post above appears to be idle speculation on how a publicity rights claim might play out. However, it seems like a sad commentary on the state of publicity rights law that it's even worth considering whether such a creative choice by the gamemakers might break the law.

24 Comments | Leave a Comment..

MLB Using Trademark To Decapitate Fan Promotion Of The Philly Phanatic On A Flugtag

from the say-that-five-times-fast dept

Major League Baseball is notorious for it's incredibly over aggressive enforcement of copyright and trademark laws, often well-beyond what is reasonable. Reader Mark alerts us to MLB's latest move, which is to demand that a flugtag team from Philadelphia remove the head of the Philly Fanatic that it put on their flugtag for one of Red Bull's regular Flugtag competitions. MLB's defense, I'm sure, is that it has to enforce the trademark and make sure no one else is using it without a license. But that's just silly. First of all, there's only a trademark offense when it's a use in commerce, and a silly competition based on trying to launch homemade, human-powered flying machines that cannot fly, is not quite a use in commerce. But, more to the point, these are fans of the team trying to promote the team and promote their fandom. And MLB is shutting them down. That's not particularly fan friendly. And so, instead of the Philly Phanatic on a Flugtag, it'll be decapitated by a silly trademark claim.

17 Comments | Leave a Comment..

German Court Says YouTube Has To Pay Because A User Uploaded A Musician's Video

from the bizarrely-misguided dept

Just after a court ruling saying that YouTube did not have to rush and takedown videos covered by German collection society GEMA, but warning that YouTube could very well lose during a full trial, it appears that a German court has ordered YouTube to pay up, because some users uploaded videos of singer Sarah Brightman without permission. Google had argued that it can't be held responsible for making sure the content users upload is not infringing, and pointed out that it even asks users to confirm that they have the rights to upload the works they're uploading. However, the court claimed that such a requirement doesn't absolve YouTube from liability.

The company is going to appeal, but I'm trying to figure out how this makes any sense at all. How can Google possibly know upfront whether or not a user has permission to upload content? It makes absolutely no sense.

Of course, the timing on this is quite good for me. I'm hopping a flight to Germany this weekend, to attend the A2N conference where (among other sessions), I'll be having an on-stage talk with Patrick Walker, from YouTube -- where I'll at least be certain to ask about this.

36 Comments | Leave a Comment..

Eminem Wins Appeal Over Universal Music: iTunes Downloads Should Be Accounted Differently Than CD Sales

from the uh-oh-universal dept

Well, well, well. A few years back, we noted that Eminem's publisher was upset about the royalty cut they were getting from sales on iTunes, and they eventually sued both Apple and Universal Music over this (though, I'm still confused why Apple is involved). The issue is a contractual one: as is standard in lots of recording industry deals, musicians make very little money from each album sold. However, when their music is "licensed" for other things -- such as a commercial, movie or video game, they make a much larger percentage. The reasoning, of course, is that there are a lot more "costs" that go into making and selling a CD, which the label is taking on.

But here's where it gets tricky: what is a sale via iTunes? Is that a "sale" like a CD (meaning a small percentage royalty)? Or is it a "license" like for a movie (meaning a much bigger royalty)? Conceptually, you can make a reasonable argument for either side. After all, from the consumers' perspective, it's very much like buying a CD. But... from a technological perspective, it's really a lot more like licensing, since you don't have the same production, physical goods, shipping and distribution costs. A jury originally sided with Universal Music, saying that it's really just like a CD sale, and thus, the lower royalties should apply.

However, the 9th circuit appeals court has just ruled the opposite way, saying that the contract is "unambiguous" that iTunes sales count as a license, for which the higher royalties apply:

This could have a major impact on how much Universal has to pay out to musicians for iTunes sales. Of course, Universal Music is downplaying the ruling, saying that it's unique to Eminem's contract, and that the company plans to fight the ruling. However, Universal Music (and others, potentially) may be in bigger trouble than they care to admit over this ruling. There are other, similar cases underway as well. While I'm sure its more recent contracts are quite specific on this point, for large segments of the back catalog, Universal could be looking at actually having to pay out significantly more in royalties. Of course that assumes they have accurate records somewhere -- which certainly is no given.

45 Comments | Leave a Comment..