Understanding What's Scarce And What's Not...

from the sell-the-experience dept

A bunch of folks sent over Jeff Jarvis' recent blog post entitled stop selling scarcity, which I actually think is slightly misleading. If you read the details, he's actually saying that you should very much sell scarcities -- but that you should avoid pretending that you're selling a scarcity when you're really selling something that it infinitely available:

If you are selling a scarcity -- an inventory -- of any nonphysical goods today, stop, turn around, and start selling value -- outcomes -- instead. Or you're screwed. Apply this rule to many enterprises: advertising, media, content, information, education, consultation, and to some extent, performance.

I have to admit, while I get what he's saying, I'm not sure it's particularly useful to most people, because they've always thought they were selling "outcomes" in the first place. I think that a similar post by filmmaker Ross Pruden may actually be a lot more useful, in that he talks about selling experiences, which is something that's scarce:

You think you sell a movie--you do not.
You think you sell a book--you do not.
You think you sell a song--you do not.

You sell an experience, something communicated, something elusive and ephemeral. Something mystical and transformative and inspiring. All these abstract things simply come in the shape of a movie, a book, or a song.

Never before has it been possible to strip away these experiences from the product... until now, the Digital Age.

The Digital Age lets us duplicate products infinitely. And, for the first time in human history, creators are not deprived of their original copy.

From that he points out the simple problem that many folks who were used to the old way are facing:

...now we can read a novel without buying a book.
...now we can watch a movie without buying a movie ticket.
...now we can listen to a song without buying a record.

From there, he lists out a bunch of different scarcities that come up with you separate the experience from the physical product, and notes that this is how things have always worked in reality, it's just that conceptually we merged the experience with the scarce physical product, which is why it's often so difficult to separate them conceptually now that they've become untied in reality.

The key to the Digital Age is to recognize that many existing products already embed intangibles, which is why those products are still being bought. However, once those tangibles stop being offered, or a competitor offers better intangibles, the customer will go elsewhere.

Creators can sustain. They will sustain. The market wants to sustain creators. Yet only the ones who realize that they don't sell products, but experiences. Only those creators are the ones worthy of survival in the Digital Age.

This is a great point, and more eloquent than my own post from a few years back on how every "product" was really a mix of scarce and infinite goods. To understand what the technology allows, and how to embrace it in a way that's sustainable, you need to be able to break out the components, and properly figure out what's really scarce, and what isn't.

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Photographer Thrilled That Apple Using His Photo As Default iPad Background, Despite No Official Agreement

from the see,-it's-not-so-bad... dept

In my experience, there is a group of photographers who are even more extreme in their copyright views than groups like the RIAA and MPAA. It's certainly not all (or, perhaps, even most) professional photographers who are like this, but there is a group of very, very adamant photographers who absolutely freak out about any use of their works without compensation. They even get upset if they feel that another photographer isn't getting enough compensation for every single use of a photograph. Since they tend to be independent, they don't have the clout of a large organization like the RIAA, but they make up for it in aggressiveness. We've see it in the discussions that have compared microstock photo websites to drug dealers and even in response to our recent post about a misguided takedown of a guy who was promoting stock photo images on his blog -- where some photographers were quick to call us idiots. Yes, how dare we suggest that such a use of stock photography is fair use, despite legal precedent suggesting a decent chance that such a blog was legal. Since their response doesn't go beyond calling us all "idiots," it's difficult to judge the reason, other than they just don't like it.

Given all that, I found this story about the photographer, Richard Misrach, whose photograph was chosen by Apple to be the default wallpaper for the iPad, quite interesting. That's because, while he's been talking to Apple for a while, the company only came to him days before the launch to ask to use the image, and no agreement had been worked out by the time the product launched with the photo there. But unlike some, Misrach didn't freak out. He still thinks it's cool, and knows that it'll work out:

"The funny thing is that I don't even have a contract with them yet, so they must have decided on it at the eleventh hour," Misrach says. "I'm sure they'll send me one quickly now. But I'm very happy, I'm sure it's fine, and the terms are good."

Now, yes, this is a bit different, since there is a contract on the way, but he doesn't know what the terms are, and he doesn't seem to care that much, recognizing that this is good no matter what. And the same thing is true of blogs, like the one we discussed above, whose sole purpose was to promote stock images and direct people back to the site to purchase the rights to those images.

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Facebook Sends Lots Of Traffic To News Sites... Will They Start Demanding To Be Paid?

from the just-wait-and-see... dept

With a new report coming out suggesting that Facebook sends more traffic to news sites than Google News, folks like Mathew Ingram are asking if Rupert Murdoch, the AP and others will be complaining about Facebook "stealing" their traffic and demanding to get paid. Given their reactions to Google, it does seem like a reasonable question. Or will that only happen when Facebook is making much more money from its other lines of business, and those news execs get jealous?

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Norwegian Supreme Court Explores Whether Private Companies Should Get Access To IP Info

from the legal-questions dept

TorrentFreak alerts us to an interesting case happening in Norway right now. Apparently, the most expensive movie ever produced in Norway was (shocking, I know) found on the internet soon after it was released. The filmmakers got very, very upset about this and "launched an investigation." After figuring out what they believed to be the IP address of the first uploader, they went to the police, who basically said they weren't interested in getting involved. So instead, the fillmmakers filed a civil suit and attempted to get the name of the account associated with the IP address at the time of the first upload. But, at least in Norway, it's something of an open legal question as to whether or not a private company/individual can get such info, as it has the potential to violate data privacy rules.

Oddly, the court made its decision last May, but kept the verdict secret from the public. I guess I'm not that familiar with Norwegian law, but I find it odd that a verdict can be kept secret. Either way, whichever party lost (and no one knows who) appealed, and the Norwegian Supreme Court is apparently looking over the case.

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AT&T Claims Sling Made Changes To Get On The iPhone; Sling Has No Clue What AT&T Is Talking About

from the say-what-now? dept

We noted in the past how odd it was that AT&T blocked something like the place-shifting Sling Player from the iPhone, but allowed place-shifting streaming TV apps from partners like MLB.com. So it was worth highlighting that, recently, AT&T changed its mind and began allowing Sling, though in the announcement, it claimed that Sling worked with AT&T to make changes to the app to make it okay. Apparently, no one ran that bit of PR by Sling, who quickly spoke up to say it simply wasn't true:

"We didn't change anything... AT&T never discussed any specific requirements with us."

Perhaps what actually "changed" was the fact that the FCC has become interested in AT&T blocking apps in anti-competitive ways... Funny that AT&T didn't mention that part.

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Webinar On Data Center Productivity For ITInnovation.com

from the be-productive dept

This post is part of the IT Innovation series, sponsored by Sun & Intel. Read more at ITInnovation.com. Of course, the content of this post consists entirely of the thoughts and opinions of the author.

As part of our ITInnovation.com website, we're hosting a webinar on data center productivity, on Wednesday, February 10th, at 9am PT/12pm ET, that should be a good discussion for those of you in the IT world. I'll be moderating, and we'll have short presentations from Chris Peters of Intel, talking about matching data center productivity to business productivity, and from Michael Rowan of Viridity Software, discussing productivity measurement from an energy management perspective (an increasingly important part of the equation). Following this we'll have a further discussion on these and related issues, including Q&A from attendees. You can sign up to attend here.

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The New Middleclass Musicians: I Fight Dragons

from the yet-another-example dept

Obviously, we've been covering various stories of content creators who are making use of new methods and new ideas to build a successful business model in a very changed world. We get lots of content creators contacting us about what they're doing -- but so many are doing cool things these days that just what they're doing is becoming less interesting than the details of how well they're working. So it's great to see Ariel Hyatt, over at Music Think Tank, provide a fascinating interview with Brian Mazzaferri, of the band I Fight Dragons. While I think the interview leans a little too much towards the concept of 1,000 True Fans (which I believe gets people way too focused on the "number" rather than the concept of true fans and how to build them), there is plenty of interesting information provided.

I also find it a little disconcerting that in what appears to be a clear success story, Mazzaferri seems to keep acting as if it hasn't been a success. He talks, repeatedly, about how difficult it is to build up enough true fans to be successful -- especially with a larger band (I Fight Dragons has six members). And yet, then he admits that the band is making enough money so that it's his full-time job. So clearly, the band has built up a strong enough fan base, combined with creative enough business models that it works. And they did this in less than a year! To me, that's really impressive, and it suggests the band has gotten off to a fantastic start. Yet, Mazzaferri keeps insisting that the 1,000 True Fan idea (and, again, I think it's a mistake to focus on the number) only works for a solo artist or a duo, while also admitting that as a band, they've probably only got closer to 500 true fans. It just feels like something is missing. Why is he so down on the concept when it appears to be working?

It's also interesting to see how the band has been making its money. He admits that for them, a lot of it has come from CD sales -- often CD sales done at live shows. He notes that because of the venue choices they've made, they don't make that much on live shows, but it has helped sell more CDs. But it does seem like the band realizes the benefit of offering really valuable scarcities like what we've seen work with other musicians as well -- and, of course, working hard to connect with fans through things like email and Twitter. When asked to break down where the money comes from, Mazzaferri highlights one unique offering that was a huge success for the band:

Making limited-edition, very high-value stuff is awesome. We sold 100 Lifetime Membership USB drives for $100 each (lifetime admission to any IFD show, free digital content for life), and that was a huge $10,000 boon for us.

All that said, it appears that he still thinks the only way to become a success today is to do a deal with a label -- and preferably a major one. I've always said that if bands don't want to really do what's necessary on the business side, there's nothing wrong with working with a label, though I think most musicians who end up signing a standard record deal may end up regretting it. It may speed up the ability to get attention, but it may make it more difficult to actually build a sustainable career. Oddly, he seems to suggest the opposite, noting:

My last big concern about the 1,000 true fans model is longevity. Most of the people using it work through the internet, and everything on the internet has an exponentially shorter shelf-life than it's Real Life corollary.

I just think there's very little data right now on how long an internet music career can last. Most traditional music careers, even people with a hit record, are lucky to last more than a decade, and so traditional music business literature says to make as much as you can while you're hot and save it up for when your career's over.

What's the new model for that? Is the expectation that an internet music career is longer than a traditional one? I suppose one could argue that, but it's a tough sell for me. The internet is fickle, and tastes change. I guess we'll see the truth of that as time goes on too.

The problem is that on a typical record label deal, things don't really work that way for most musicians, either. It may work for the top of the top -- the ones that catch on quickly and become big. But for the majority of bands that sign with a major record label, they fail to really get big enough to matter, and the labels very quickly drop all support and the band becomes yet another unrecouped wonder. That's not a sustainable model at all, and it's certainly not a model of "making as much as you can while you're hot," since many signed bands never actually get hot enough to really make that much money anyway. It seems like a bottom-up approach that relies on building a strong relationship with the fans has a lot more chance of being long-term sustainable than a career fueled by a sudden rush of major label hype, followed by being dropped into the obscurity bin.

While Mazzaferri may not be entirely happy with where the band is today and its prospects as an unsigned act, it still seems like this represents a pretty good example of the new sort of middle class of musician that couldn't have really existed in the same format not so long ago. In the past, the only way you could really get to the point where the band was your full time job was to get a label deal first and have them give you an advance. But by doing creative things like the "lifetime subscription" offering, I Fight Dragons has been able to reach that stage without having to sign a label deal. Now, it may, in fact, make sense for the band to now switch to a major label track, but I can't see anything in the band's experience that suggests that embracing a newer model of connecting with fans directly, and offering unique scarce reasons to buy, can't lead to a sustainable living.

Update: As is pointed out in the comments, just a few days ago, the band did, in fact sign with a major record label. This isn't surprising, given what Mazzaferri was saying in the interview, since he seemed to conclude he needed to do that, despite the evidence to the contrary. I wish them luck, but I've seen so many bands make similar statements when they first sign with a label:

"They were really interested in us from the get-go," singer Brian Mazzaferri tells The A.V. Club. "They're really interested in us keeping our creative control, as opposed to some other people, who were like, 'We really like what you're doing, but how 'bout we take out the chip tune?'"

I hope that's true, and I hope the were "really interested" in letting the band keep creative control, but so many of these stories end up poorly, with the band realizing that, once its signed, it loses pretty much all leverage on these issues. The article also suggests that this will mean the end of the band emailing out free tracks. This would be unfortunate, as it would be a mistake to go against what helped build your fan base.

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Author's Guild Didn't Want To 'Pull An RIAA' But Still Misses The Point

from the it's-a-bit-better dept

Last week, in discussing its attempt to settle its lawsuit with Google over the Google book scanning project, the Authors Guild posted a rather interesting public letter, entitled To RIAA or Not to RIAA, That was the Question. In defending the settlement, it notes that it could have fought the lawsuit to the end, but that it might have lost. In fact, this is why I supported the idea that Google should have fought on, because it seemed like Google had a strong fair use case -- something the Authors Guild admits. Even though the Authors Guild says that it disagrees that the book scanning project was fair use, an awful lot of copyright legal scholars seemed to believe that it was, in fact, fair use.

But the more interesting point is that the Authors Guild noted that even if it did win the lawsuit, that could actually make things worse, and it pointed to the RIAA's Pyrrhic victories over file sharing systems:

Our settlement negotiations went on with full knowledge of what happened to the music industry. The RIAA (the Recording Industry Association of America) won victory after victory, defeating Napster and Grokster with ground-breaking legal rulings. The RIAA also went after countless individuals, chasing down infringement wherever they could track it down.

It didn't work. The infringement just moved elsewhere, in unpredictable ways. Nothing seems to drive innovation among copyright pirates as much as a defeat in the courts. That innovation didn't truly abate until Apple came along with its iPod/iTunes model, making music easily and legally available at a reasonable price. By then, the music industry was devastated.

While I applaud the Authors Guild for recognizing that suing (and even winning) don't help you innovate and can backfire massively in driving innovation underground, it does still feel like the Authors Guild got the wrong message out of this. Despite what it claims above, the "innovation among copyright [infringers]" did not really "abate" with the introduction of the iPod/iTunes. While the Authors Guild is correct that offering a legal solution is better than offering nothing or fighting innovation, it feels like it's overestimating how much of the market transformation its facing is due to infringement vs. how much is due to economic forces that will occur even without infringement in the market.

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Verizon Wireless Blocks 4chan; You Would Think It Would Remember What Happened When AT&T Did That

from the not-wise dept

Last summer, due to a DDOS attack emanating from IP addresses connected to 4chan, AT&T temporarily blocked access to 4chan... without giving a full explanation for why. If you know 4chan, you know why this is a bad idea. It took very little time for the 4chan community to retaliate (and, as you know, no one "retaliates" like 4chan "retaliates"), and only a few days later, when AT&T explained what happened, did 4chan back off. So, now comes the news this weekend that Verizon Wireless is blocking 4chan (this is just Verizon Wireless, not Verizon), and the company seems to be making the same mistake. No clear explanation of why. I'm sure there's a reason that Verizon Wireless can give, but not explaining that immediately seems like a huge mistake. Update: Not surprising, but looks like the same reasoning as AT&T's temporary block last year. Still doesn't explain why the company wasn't upfront in explaining it.

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The Economist Notices That The Patent System Is Hindering Innovation And Needs To Be Fixed

from the wow dept

A whole bunch of you are sending in one of the first mainstream articles I've seen on patents that gets almost (but not quite) everything right. The Economist has a wonderful piece that clearly explains why patents are hindering, rather than helping innovation. It notes the difference between innovation and invention -- and how patents quite often can hinder the former. It discusses how patent thickets get in the way of innovation, and the focus on using patents to force through massive cross-licensing deals simply adds transaction costs and reduces efficiency in the market. The solution to all of this put forth by the Economist is mostly the same thing we've been suggesting for years: bring back a real test for "obviousness" that gets rid of obvious patents -- though, it falls short in not suggesting an independent invention test for obviousness. The only other areas where I'd say the Economist article falls short is (1) simply assuming that patents do work in pharma and biotech -- when there's evidence that's not true, (2) assuming that a ruling in Bilski alone might clear up the obviousness issue and, finally, (3) its parting suggestion that programmers focus on copyright monopolies, rather than patents. Still, it's about as good a piece on this subject as you might expect to see in such a mainstream publication.

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Remix Culture Is About The Culture As Much As The Remix

from the killing-culture dept

Over the weekend, I finally got to watch the film Copyright Criminals (after having seen clips and a discussion about the film at the Fair Use Film Screening put on by Public Knowledge back in January). I have to admit, the film was pretty depressing. While it may seem like I pick on lawyers a fair amount, I actually tend to like most lawyers I meet -- but I don't know quite how they did it, but every lawyer who showed up in that film just seemed to ooze smarmy. They appeared to smirk through their interviews, as if they knew what they were saying was ridiculous, and the whole thing was all about getting as much money as possible, rather than having anything to do with fairness or creating art. Meanwhile, the actual content creators -- they seemed pretty much defeated. They had worked on amazingly innovative and cool projects that had nothing to do with "copying", and everything to do with creating beautiful new works of art that people loved. And they got sued and shut down over and over again. It's a shame. But not just because of the art that wasn't created, but the potential to connect culturally through it.

This is a point that often gets overlooked in these discussions -- that art is about more than the creator. We've tangentially discussed this idea in the past, but Julian Sanchez put together a little video last week that does a nice job demonstrating this in about eight minutes:

What he points out is that for culture to matter, it goes beyond the artwork itself, to the people who experience the artwork and then share it with others -- thereby connecting with each other and the artwork itself. And while people sit back and claim that remixing is "stealing" or "lazy" or "not art" at all, that's totally missing the point. Art is not about just the creator. Without the shared experience, it's a lot less valuable -- and what we've done with copyright laws is make it that much more difficult to share that experience through our own eyes and our own cultural views. And if you don't see the shame in that, then you're missing a lot.

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Why Shouldn't Jurors Be Able To Use Technology To Do More Research?

from the yeah,-that's-not-going-to-work dept

We've pointed out in the past that, eventually, the judicial system is going to have to come to terms with the fact that people use technology to research and communicate, rather than trying to pretend it can be stopped. But, it sounds like that's going to take a while. Courts are increasingly looking to ban jurors from using any kind of technology. And yes, before we go through this again, we understand the arguments why courts do this (so no need to keep repeating it in the comments like last time). The question is does this really make sense? The idea that you have no outside influences in making a decision as a jury is an idealistic fantasy anyway. Jurors always make decisions based on their own history and experiences. It's part of what makes a jury a jury. Otherwise, you'd just have one guy who would weigh all the facts in a case and who would always pop out a perfect decision. So, if we can admit that jurors are always bringing outside information (in the form of their own life history and knowledge) into the court room, can't we at least begin to understand why there's an argument for letting smart jurors make use of technology to better understand the issues at play?

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Court Disagrees On Whether Or Not Schools Can Punish Students Over Fake Social Network Pages

from the first-amendment? dept

We were just discussing whether or not a school can punish students for their social networking activity, and now we've got two legal rulings on the subject. Unfortunately, they seem to conflict with each other, despite coming from the same appeals circuit!

Both cases involved students creating fake MySpace profiles of the schools' principals. Both students were punished, but in one case the court said the school went too far ("Public schools are vital institutions, but their reach is not unlimited...") while the other said it was fine ("We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student."). The difference appears to be that in the latter case, the school claimed that the fake profile resulted in disruption in the classroom because "students were talking about the profile rather than paying attention to class."

That seems like a pretty fine line, because now a school will have to do is suggest that students in the school were discussing an activity that took place outside of school to allow the school to punish the student for off-campus speech. From a First Amendment standpoint, that seems pretty difficult to accept -- and certainly seems to go against the principles set forth by the famous Tinker decision concerning free speech rights of students on campus.

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Why Does The IEEE Make It So Difficult To Access And Share Research?

from the hoarding-mentality dept

Matt points us to an article by Martin Rowe about the difficulty of accessing and sharing information and research published by the IEEE, which he finds to be a bit of a travesty, since the IEEE should be in the business of promoting technical knowledge. He describes how he found an interesting paper that he wanted to share with his readership, but that the IEEE forbids just reposting their content (a restriction he's fine with). Instead, though, he hoped that the author of the paper would post it publicly (rather than behind the IEEE's paywall) and let him link to it. The author agreed, but since the author wasn't a member of the IEEE, he didn't have a copy of the full paper (this part seems a bit odd -- you would think at some point the author would have a copy of his own paper). So Martin agreed to download a copy for the author of his own paper -- but the IEEE stamps it with Martin's name and says that it can't be used by anyone else.

Of course, you can see what the IEEE is thinking. It wants to hoard the information in order to build up its membership ranks, fearing that if it made that information available, people would be less interested in becoming an IEEE member. I would argue that's rather short-sighted, and there are plenty of other ways the IEEE could make membership more valuable (member-only gathering, access to other members online, discounts on events/publications/etc.) while still making the papers it publishes free. In fact, by freeing up the content, and highlighting those other benefits, it could even make membership more valuable.

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PayPal Suspends Payments In India?

from the that-seems-rather-big dept

After the story a few weeks ago about Paypal suspending the account of Wikileaks, and blocking it from removing money in the account, many people pointed out how risky it is to leave any money in a PayPal account. It seems that situation is getting worse and worse. PayPal has apparently halted personal payments in India, and aren't allowing merchants to remove money from their accounts. And the reasoning is... not particularly clear as to why:

"Personal payments to and from India and transfers to local banks in India have been suspended while we work with our business partners and other stakeholders to address questions they have about the service...."

Apparently, this has been going on for over a week, which has to be seriously frustrating to many merchants, but a seriously good thing for various PayPal competitors.

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Italy Blocks The Pirate Bay Yet Again

from the the-stick-your-head-in-the-sand-approach dept

Well, here we go again. A year and a half ago, an Italian court ordered ISPs to start blocking access to The Pirate Bay. Oddly (and inexplicably) many ISPs redirected all such traffic to a website owned by the IFPI, which seemed highly questionable. Why should a private entity receive that traffic? Either way, it didn't do much good, as the block only drew more attention to The Pirate Bay, leading more visitors to reach the site from Italy than before the block! Not long after that, a court struck down the ban as being unreasonable.

But, of course, this is the entertainment industry we're talking about, and if the courts save it from shooting itself in the foot, it will just keep shooting. So, once again, it is going to get The Pirate Bay a lot more attention by getting a court to require the site be blocked again. Basically, the original ruling saying that Italy couldn't ban foreign sites was overturned by the Italian Supreme Court, and thus, the lower court went back and decided, again, that the site should be blocked.

What I really wonder is if anyone actually thinks this will make a difference?

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How Patents Harm Biotech Innovation

from the scaring-people-off dept

Patent defenders often claim that patents are necessary because top venture capitalists would never invest without patents. And yet, we keep pointing to examples of some of the best venture capitalists in the business who are quite skeptical of patents. For the most part, those have been limited to software patents, but Brad Feld seems to have jumped the hurdle to recognizing it's not just software patents that are the problem, and is digging into the research on how much patents have held back innovation in lots of other fields as well (Brad: if you want a list of more such research, let us know...). He's written up a post about some upcoming research concerning patents in the biotech field, where he explains how patents are hindering innovation in that field as well by scaring off research into certain areas:

Regularly, patent advocates tell me how important patents are for the biotech and life science industries. However, there apparently is academic research in the works that shows that patents actually slow down innovation in biotech. The specific example we discussed was that there is increasing evidence that when a professor or company gets a patent in the field of genetics research, other researchers simply stop doing work in that specific area. As a result, the number of researchers on a particular topic decreases, especially if the patent is broad. It's not hard to theorize that this results in less innovation around this area over time.

I can't wait to see the final results of that study, as it would fit in well with a few other studies that have found similar results.

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Because When MetroPCS Says 'No Contract,' It Actually Means 'Well, Of Course There's A Contract'

from the truth-in-advertising dept

The mobile phone business seems to have a serious problem with taking words that have a pretty clear meaning in English, using them in advertising and marketing promotions -- but meaning something entirely different. For example, various mobile operators claimed "unlimited" broadband, but to them "unlimited" meant "really, quite limited." Well, it seems we've got another situation like that, such as MetroPCS's widespread marketing campaign that loudly proclaimed "No Contract." Well, guess what, it actually meant that there absolutely is a contract, and any customer who signed up for MetroPCS after seeing the "No Contract." advertisement would obviously know that, because in the welcome kit it sent, it pointed users to a URL, and at the bottom of that URL there was another link to a terms of service, and in the terms of service there was another link to "start a service request" which included some boilerplate about how you were agreeing to a contract. And, apparently, this is all very legal.

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Appeals Court Says Internet Content Should Be Held To Standards Of Strictest Jurisdiction

from the pandora's-box-just-opened... dept

One of the issues we've talked about repeatedly over the years is the question of what is the "internet jurisdiction." Since content is available anywhere there's an internet connection, under which laws should it apply. If you think that just because it appears on the internet, anyone's laws apply, then you reach an untenable situation where all online content is controlled by the strictest, most draconian rules out there. That makes little sense. And yet some courts still think this is the appropriate interpretation of the law. In the US it's already troubling enough that the issue of indecency is measured on an amorphous "community standards" basis, but when it comes to the internet, what community applies? As we discussed a few years ago, this raises all sorts of legal questions. Chris points us to a recent ruling in the 11th Circuit Court of appeals on a pornography case, where the court seems to have made a ruling that effectively says all online content should be held to the standards of the strictest communities. Thus, an erotica website targeting a NY subculture should be held to the standards of a southern bible belt rural community? That seems ridiculous, but it's what the court said.

In this case, a guy who produced porn content in California was tried in Tampa, Florida, because investigators downloaded his content there:

The Atlanta-based court rejected arguments by Little's attorneys that applying a local community standard to the Internet violates the First Amendment because doing so means material can be judged according to the standards of the strictest communities.

In other words, the materials might be legal where they were produced and almost everywhere else. But if they violate the standards of one community, they are illegal in that community and the producers may be convicted of a crime.

Of course, the court did say that punishment had to be limited to just looking at how many people in that smaller community accessed the content -- which could limit the punishment given by the court, but it still seems problematic. Other courts, including one in California, have found differently on similar questions, so it seems likely that, at some point, this issue will finally go back to the Supreme Court. Unfortunately, it seems likely that the Supreme Court will focus on what counts as "community standards" rather than whether or not laws against obscenity even make legal sense under the First Amendment.

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Online Comic Book Store Stands Up To Olivia Munn Lawyers Over Parody Comic Book

from the parody-as-free-speech dept

Boing Boing points us to the news that Heavy Ink, an online comic book shop, is pushing back against the lawyers for geeky TV personality Olivia Munn, after those lawyers demanded Heavy Ink destroy all copies of an Olivia Munn parody comic book called the Celebrity Showdown Olivia Munn One Shot #1. Of course, since Heavy Ink is just the retailer, it's not responsible for the content itself anyway, so the original letter was somewhat mistargeted, but even so, Heavy Ink makes the argument that the comic book itself is protected parody:

Nigel,

Re: your letter of 4 February 2010 regarding

http://heavyink.com/comic/13136-Celebrity-Showdown-Olivia-Munn-One-Shot-1

I write to clear up some misconceptions.

First, the item offered for sale is not "our" comic book - it is created by a third party and offered for sale through our website.

I have never heard of Olivia Munn until you brought her to my attention, but a quick web search turns up a Wikipedia article describing her thusly

http://en.wikipedia.org/wiki/Olivia_Munn

Olivia Munn (born Lisa Olivia Munn) is an American actress, model and television personality.

and her self promoting web page at

http://www.oliviamunn.com/

where she displays near topless pictures and links to a cover shot at Maxim magazine.

Given these two websites, it is clear that she is a public figure. As a public figure, the use of her likeness meets the tests for the parody copyright exception set forth in both Campbell v. Acuff-Rose Music, Inc. and the more recent Suntrust v. Houghton Mifflin.

As such, we have no intention of taking down our webpage, destroying any inventory, or refusing to offer the comic for sale.

If you have any further comments you may reach me at this email address,

Travis Corcoran, President
Heavy Ink

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