Words matter -- just think of the number of times flame wars have broken out in Techdirt's comments over whether you can "steal" music or films. But one phrase that nobody really questions is "orphan work". And yet, as Lydia Pallas Loren points out in a brilliant paper, this is a loaded term with a very particular agenda:

In the metaphor of the romantic author, the works he creates are his children, born of his labor and genius. He is given rights to control, and thus protect, his children. Calling works for which the copyright owner cannot be located "orphans" pulls on that metaphor and triggers the concerns any humane person would have toward abandoned children. These orphans have suffered the tragic loss of their parent. These are works whose parents have been lost or killed. We reflexively begin to believe that orphan works need the kind of protection that society provides to abandoned children.

Although that orphan metaphor sounds innocent enough, Loren believes that it is one of the reasons why it has proved so difficult to pass orphan works legislation:

The perceived evils of the world are multifold and include Dickensian images: bleak orphanages, barren workhouses, and street gangs assembled by Artful Dodger of Oliver Twist, where the unfortunate children are put to work for commercial entities exploiting whatever commercial life is present in the child. These orphan exploiters fail to invest in or care for the children properly, underfeed them, and yet usurp the work-value of the orphan child. This implied narrative of the potential abuse of orphans has impeded the passage of orphan works legislation.

It's a brilliant explanation, and leads Loren to suggest an alternative, provocative metaphor: not "orphan works", but "hostage works":

When viewed as a "hostage work problem" it becomes clear that these works do not need foster parents or protection against inappropriate exploitation -- the end result of an orphan metaphor. Nor do these works need new owners -- the end result of a metaphor of abandoned or neglected property. What these works need are "special forces" that can free them from the constraints placed on them by the combination of the regulatory effects of copyright and the lack of a locatable owner who can grant permission to avoid the consequences of the regulation.

Pursuing that metaphor, she suggests that "special forces" who liberate those hostages should be granted immunity from legal action by any owners of those works that eventually turn up, provided the former meet two criteria:

First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. Why negligence is the right standard and what might constitute negligence is explored more fully below. Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.

That's clever, because it ensures that the "special forces" who liberate the hostage works can't simply imprison them again, but must set them free in the form of open access copies.

It's a wonderful solution employing a thought-provoking metaphor, and I urge you to read the full paper. It provides a full exploration of the legal details of how it might work -- if only people could look beyond the misleading perspective of "orphan works", and see them as "hostage works" instead.

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In the US we have three main music collection societies for performance rights (ASCAP, BMI and SESAC), and then SoundExchange for satellite/online streaming. However, many other countries just have a single collection society, with somewhat monopolistic tendencies. There have been efforts (mostly failed) to create more competition in Europe, mainly by encouraging the organizations to leave their local country and work across Europe. There have been precious few new entrants, however. At least one group is trying to change that -- and they're doing so by embracing the internet and the concepts of free culture. C3S, or the Cultural Commons Collecting Society is trying to enter the market in Europe in a much more culture-friendly manner:

C3S is a collaborative effort to found a new and ground-breaking European collecting society for musical creators to register their works outside of traditional schemes, released under free licences for commercial exploitation. More than just for works published under Creative Commons Licences, C3S is open for other free licences as well.

The new operation wants to encourage free distribution for non-commercial use, and a much more reasonable (and appealing) deal for both musicians and consumers. Just the fact that the organization has to make it clear that members are encouraged to make use of free licensing is an amazing step forward. Compare that to organizations like GEMA that have tried refusing to recognize Creative Commons licenses, and operations like ASCAP, who insist that Creative Commons is threat to musicians, rather than a useful tool. Who knows if C3S will go anywhere, but it's nice to see that it's at least being tried.

There's been a bit of a resurgence in interest for manned spaceflight because the costs of launching vehicles to the edge of space aren't ludicrous anymore, just outrageously expensive. Despite the advances in rocket launching systems, there's always a chance that something could go wrong -- so ejecting escape pods at high altitudes seems like a good idea, right? Only a handful of people have even attempted to skydive from more than a few miles up. By the end of this year, though, a couple brave souls could set some skydiving records and pave the way for a new extreme sport.

• Felix Baumgartner is planning a free fall jump from an altitude of about 120,000 feet (~23 miles up). If it all works out, he'll break the sound barrier, traveling over 700 miles per hour. [url]
• Michel Fournier has attempted to skydive from about 25 miles up, but he seems to have run into a series of problems. Fournier is in his 60s, so he doesn't have too many more years left to cross this goal off his bucket list. [url]
• Air Force Captain Joseph Kittinger holds the current record for high altitude skydiving -- at 102,800 feet -- from a jump he made in 1960. The Cold War really encouraged some crazy stunts.... [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

News that Harvard University is the latest to join the growing revolt against the exorbitant pricing of academic journals caused something of a stir recently -- although it has been pointed out that its case would be stronger if it followed its own advice and made the Harvard Business Review open access, or at least cheaper.

But here's an area where Harvard, together with MIT, is being more pro-active in helping to make knowledge more widely available online:

EdX is a joint partnership between The Massachusetts Institute of Technology (MIT) and Harvard University to offer online learning to millions of people around the world. EdX will offer Harvard and MIT classes online for free. Through this partnership, the institutions aim to extend their collective reach to build a global community of online learners and to improve education for everyone.

EdX will build on both universities’ experience in offering online instructional content. The technological platform recently established by MITx, which will serve as the foundation for the new learning system, was designed to offer online versions of MIT courses featuring video lesson segments, embedded quizzes, immediate feedback, student-ranked questions and answers, online laboratories and student-paced learning. Certificates of mastery will be available for those who are motivated and able to demonstrate their knowledge of the course material.

MIT's MITx platform already offers some MIT courses online, and is open source:

EdX will release its learning platform as open-source software so it can be used by other universities and organizations that wish to host the platform themselves. Because the learning technology will be available as open-source software, other universities and individuals will be able to help edX improve and add features to the technology.

The hope is that other universities will join with Harvard and MIT to make EdX one of the primary platforms for online learning. Interestingly, it will also be used to research how people learn using digital technology -- and how it can be deployed more effectively:

MIT and Harvard will use the jointly operated edX platform to research how students learn and how technologies can facilitate effective teaching both on-campus and online. The edX platform will enable the study of which teaching methods and tools are most successful. The findings of this research will be used to inform how faculty use technology in their teaching, which will enhance the experience for students on campus and for the millions expected to take advantage of these new online offerings.

This looks like an important move for online learning, not least because of the scale of the financial support:

The initiative will be overseen by a not-for-profit organization based in Cambridge, Mass., to be owned and governed equally by the two universities. MIT and Harvard have committed to a combined $60 million ($30 million each) in institutional support, grants and philanthropy to launch the collaboration.

Those funds and the projects they will catalyze could boost efforts to make university courses more widely available, complementing the growing success of open access in opening up published materials.

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We keep hearing that these new business models and platforms really can't handle "big" projects. While part of the charm and power of these platforms is that they can fund smaller "long tail" projects that might never otherwise see the light of day, there's no reason that they can't do bigger projects as well. A few weeks ago, we told you about the Kickstarter campaign for the Pebble e-watch, which was the fastest growing Kickstarter project ever, surpassing $1 million in just 28 hours, and hitting $4.5 million by the time we got our post out.

Last week, the project surpassed $10 million and still had over a week to go. However, the folks behind the project had decided to cap the total number of watches that could be pre-sold via Kickstarter at a mere 85,000. So once that number was hit, they set the Kickstarter to show all the items sold out. While I could see some folks who were waiting towards the end get a little annoyed (thankfully, I got my order in a few days earlier), projects like this should at least open some eyes to the fact that Kickstarter is not just for small stuff. While some have argued that something like Kickstarter could never fund a Martin Scorcese film, remember Kickstarter is just three years old. If Scorcese set up an interesting project with cool tiers, I wouldn't be surprised to see it funded to massive levels.

Nearly a year ago, we wrote about a somewhat "obscure" lawsuit concerning fair use at universities. We've been noting that, up in Canada, the courts and upcoming legislation are potentially clearing the field for universities to declare "fair dealing" on the use of works—but they are bizarrely failing to do so. In the US, however, Georgia State did assert its fair use rights over certain educational uses, leading to a complex situation in the courts. Georgia State was sued by some publishers, because of the use of "e-reserves" (content posted on websites for students to download). The university claimed fair use. The publishers (who had the lawsuit funded by the American Association of Publishers and the Copyright Clearance Center -- who helps collect fees for these kinds of things) argued that an older ruling about print shops not being able to print out coursepacks without clearing everything applied.

On Friday, the ruling came out, and it's a somewhat astounding 350 pages, as district court Judge Orinda Evans spent the time to meticulously go through every count of infringement in great detail to determine whether or not the university infringed. The summary version is that the publishers only won on 5 out of 99 counts. That certainly doesn't look very good for the publishers. However, digging into the details is where it gets interesting. I'd recommend reading both NY Law School's James Grimmelmann's analysis and Duke University's Kevin Smith's analysis.

There's a lot to dig into, but the quick summary is that it's mostly good, but there are still some significant problems with the ruling. Let's call out some highlights:

• A bunch of the specific claims didn't even reach a fair use analysis because the judge rejected them for failure to prove they held the copyrights in question! This may seem like a basic point, but US law is pretty clear that the burden is on the plaintiff to prove they own the copyright (though, this is something that the US is trying to change under the leaked draft of the Trans Pacific Partnership agreement). The failure of the publishers to even be able to show they held the copyright is a pretty stunning flop.
• Another batch of claimed infringements were dropped on the basis of de minimis copying because they were never downloaded by any students. This is an interesting interpretation of de minimis, though I'm not convinced it would hold up at a higher level if the case gets that far. James Grimmelmann's summary explains what happened here:

  The court dismisses these from the lawsuit as de minimis, explaining that these uses by the University, while technical implicating the copyright owners’ exclusive rights, don’t affect the incentives for authors to create. This puts more teeth in the de minimis doctrine in copyright: it goes beyond the view that de minimis means “not substantially similar.” It also strengthens the argument that “internal use” copies never used to reach an to an audience that reads them for their content don’t infringe. Think, for example, of the HathiTrust’s archive of scans from Google Books.

• When it gets to the rest, Judge Evans dutifully does the standard 4-factor "fair use" test on each and every case rather than broad brushing across the batch. While the four factor test is supposed to be used in fair use cases, I do always worry when judges view the fair use test entirely as a "formula." The law is pretty clear that while the four factor test should be considered, it need not be the only thing that is considered -- here, however, the judge just lines up each claim and runs it through the test.
• Even more worrisome, is that the judge seems to get excessively formulaic in applying parts of the test. Specifically, the third factor, on the amount copied, leads the judge to come up with her own hard and fast rules, based on... well... that's not entirely clear. Here's what the judge decided:

  Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.

  While there are some benefits to having a specific "rule," I'm not sure how this particular rule really matches with the intent and reasoning behind the fair use doctrine. If you copy two whole chapters in a book with 50 chapters, suddenly that goes against this factor, despite, percentage-wise, being less than copying 10% from a book with less than 10 chapters? Why the odd distinction?
• The "good" news on this point, at least, is that while she created her own rules for the third factor, she flat out rejected the ridiculous "Classroom Guidelines" that had been set up in 1976 between the publishing industry and "certain representatives of the education establishment." Basically these were rules that, if followed, meant the publishers wouldn't sue. However, the judge finds them somewhat silly, and with no basis in the law, including things like the claim that a professor can only claim fair use if they use a work for one semester (requiring them to license it for future use).
• Also troubling is the interpretation on the fourth factor -- "the effect on the market," -- which is often considered the most important factor (even if some reject this claim). Some courts have argued that this factor often depends on whether the copyright holder is offering a license for the work or not -- and Judge Evans buys into that argument here. Basically, the result on this factor depends, almost entirely, on whether or not the publisher is offering a license for the work. Again, Grimmelmann points out that there's good and bad here. This does, at the very least, suggest that libraries can make use of orphan works, since there won't be any active licenses available for those works. But, more troubling, is that it doesn't look at wider market factors, including alternatives to licensing (i.e., not obtaining the work, or obtaining it through other means, such as by photocopying). You shouldn't automatically assume that if a publisher offers a license, not licensing it automatically means the publisher loses out on revenue. But the judge seems to make exactly that assumption here.
• On the other two factors, the judge reasonably says that the fair use factors clearly favor fair use: the "purpose" of the use being for "nonprofit, educational purposes of teaching and scholarship," and the nature of the works being "informational." That's good, and is applied across the board.

On the whole, the publishers certainly won't be happy that they lost on so many claims in the case. And there are some good points on fair use in there -- but as described above, many of the statements by the judge are a bit worrisome, and could lead to problems for future fair use claims in situations where a fresh analysis might seem like it should be fair use.

All that said, it seems highly likely that the publishers are going to appeal this, and we could be bouncing around the court system for years before any of this is finalized.

Five years ago, we wrote about a fascinating writeup by the keyboard player for the band The Counting Crows, in which he discussed his views on piracy and the music industry. While we didn't fully agree with what he was saying, his viewpoint was definitely worth reading. He was worried about the industry collapsing, but at the same time admitted that the band really made their money on live shows anyway, so getting more music out to the world helped increase ticket sales. He was a proponent of DRM however, and blamed the industry for putting out CDs that had no DRM as being part of the downfall of music sales, and later claimed that it was a three way struggle between the music industry, the tech industry and consumers over how the music industry of the future would be shaped. Of course, that seemed a little extreme to us. You can craft solutions that really benefit everyone, by using the technology to provide a better solution for consumers that makes them more willing to pay the artists.

And, in fact, it appears that The Counting Crows may be coming around to that view themselves. The band -- no longer signed to a major label -- released an album a few weeks ago, but also quickly followed it up by releasing a bunch of songs, liner notes and artwork for free via BitTorrent which you can find here. The band's manager, Aaron Ray, seems to recognize the importance of using free to connect with a larger audience. According to Dave Thier's article at Forbes:

For him, The Counting Crows is an ideal band for this project — they have massive name recognition and a well-known live show, but they aren’t seen as relevant in 2012. The deal gives old fans a low-barrier way to reconnect with the music, and BitTorrent’s massive install base pushes them farther into markets where record labels have little to no penetration, like Eastern Europe and Southeast Asia.

“The recorded music business is shrinking like crazy,” Ray says. “Recorded music is basically free – why are we beating around the bush? Counting Crows came off their label and embraced this new theology. It’s the best way. BitTorrent has the most installs, people come there for a reason. We need to be where the people are.”

What's unclear from the article is if they're also using the free promotion to drive people to buy other things (the album, live tickets, merch, etc.). It's always great to see bands embracing what the tech enables, but I definitely would like to see it paired closely with smart business models, rather than just "give it away and pray" that it helps the existing business model.

Still, in the meantime, we're being told across the globe that the only purpose for BitTorrent is "piracy," even as we see more and more artists using it to their advantage. That seems like a pretty big disconnect.

Recently, I responded to an editorial by CISPA author Mike Rogers in the Detroit News, wherein he took some blatant China fearmongering and targeted it at Michigan's specific industry concerns to rouse the local rabble in CISPA's favor. Now Rep. Ruppersberger—the other driving force behind the bill—is applying the same tactic in Maryland, with an editorial in the Baltimore Sun that focuses on the supposed cyber-threat to the life sciences industry:

Here in Maryland, for example, our growing life sciences sector has generated one-third of all job gains over the last 10 years. It's now supporting more than $9.6 billion in salaries for Maryland families and contributes nearly $500 million to incomes and sales tax revenues each year.

The 500 bioscience companies in Maryland are developing ground-breaking therapies for diseases like muscular dystrophy, inventing state-of-the-art medical devices and testing cutting-edge vaccines. These innovations are valuable and worth protecting. Indeed, just like designer handbags or secret family recipes, many want to imitate — and even duplicate — such successes.

For decades, countries like China have been using every means possible to steal the ideas of American corporations. Today, thousands of highly trained Chinese, Russian and Iranian hackers are pilfering our trade secrets by breaking into the computer networks of U.S. corporations. And we're leaving the door unlocked for them.

Something seems off about comparing the desire to copy new disease therapies with the desire to make knockoff handbags, but I guess that was just meant to clarify things for anyone who didn't understand why ground-breaking medical research is valuable. Of more concern is his statement that the door is left "unlocked"—a blatant exaggeration that makes it sound like CISPA's data-sharing provisions are the difference between airtight security and no security at all, even though security experts question whether CISPA would have any real impact. He then goes on to do exactly what I criticized Rogers for doing, by focusing in on the one (supposedly) useful and genuine cybersecurity aspect of the bill while ignoring the rest:

Currently, the U.S government can identify malicious computer code that could be an incoming cyber attack on a government or corporate network. But the law won't allow us to share this information with private companies so that they can protect themselves.

That's why House Intelligence Committee Chairman Mike Rogers, a Michigan Republican, and I have crafted the Cyber Intelligence and Sharing Protection Act (H.R. 3523), which the House overwhelmingly passed this month in a bipartisan vote. This common-sense bill will simply allow the federal government and American companies to share suspicious computer code. Despite recent media reports, the bill does not authorize the government to monitor your computer use or read your email, Tweets or Facebook posts. Nor does it authorize the government to shut down websites or require companies to turn over personal information.

This is just a bunch of half-truths, semantics and disingenuous statements. Firstly, while there may be some data sharing the government wants to do that is currently blocked by the law, there are also existing mechanisms that allow some sharing to happen. Rather than carve out specific exceptions to the specific laws that are getting in the way, CISPA creates broad immunity provisions that wipe out all existing privacy concerns.

Secondly, the bill does not "simply" allow what Ruppersberger says it allows. CISPA's definition of the information that can be shared allows for much more than just "suspicious computer code," instead potentially including all sorts of tangential data related to a network attack—which, yes, could include lots of personal information. CISPA also does not limit the government to using this information for merely technical purposes related to cybersecurity—it permits them to dig through whatever data they collect for evidence of certain types of crime. You'll notice that investigating violent crime and child exploitation (both specifically listed in the text of CISPA) are not mentioned anywhere in this editorial.

Thirdly, while both of Ruppersberger's assertions about what the bill "does not authorize" the government to do are technically accurate, only the latter is giving the full story. It's true that CISPA does not permit the government to shut down websites or require information from companies—but as for monitoring people and reading their communications, as I just described, it's a bit more complicated. No, CISPA does not allow the government to go out and monitor whoever they wish, but it does allow them to thoroughly mine whatever data is given to them—data that will undoubtedly include private information.

For good measure, Ruppersberger throws in some more fearmongering about terrorist hackers taking down power grids (even though CISPA doesn't include anything that would let the government put a common sense regulation in place, like, say, don't connect power grids to the internet) before circling back to the talking-point of Maryland's valuable medical research. Like Rogers, he plays up the imminence of the threat, claiming "it wouldn't take years from China to steal it all from us" and in fact "it could happen in mere keystrokes"—as if at any moment someone could just select "U.S. Economy" and press delete.

I have a feeling this won't be the last of these locally-focused editorials from the pro-CISPA camp. I'm rooting for a Las Vegas feature on the need to protect casino secrets, because while it would surely still be inaccurate and misleading, it might at least be interesting.

There was quite a bit of chatter recently about a Torrentfreak article discussing an operation called "Pirate Pay," which was funded by Microsoft, and claimed it could track and shut down unauthorized works being transmitted via BitTorrent. The report claimed that Walt Disney Studios and Sony Pictures were already customers. The description of how it works is as follows:

“We used a number of servers to make a connection to each and every P2P client that distributed this film. Then Pirate Pay sent specific traffic to confuse these clients about the real IP-addresses of other clients and to make them disconnect from each other,” Andrei Klimenko says.

John Pettitt, former VP of engineering at BitTorrent (who we've heard from before in a very different context related to software patents), noted in a mailing to Dave Farber's IP list that what Pirate Pay described didn't sound particularly effective or (more importantly) particularly legal.

Reading the article it sound like they are spoofing traffic to confuse torrent clients and force disconnects. It's not at all clear if this will work against all versions of the protocol (particularly the udp based version). Leaving aside the technical issues it's also unclear if such action is legal. It sounds like a targeted denial of service attack, a major corporation paying for such an attack leaves itself wide open to civil and criminal legal action particularly if they accidentally target the wrong torrent which given the history is highly likely.

Anyone want to take a guess as to how long it will be until a major entertainment company issues one of these misguided attacks on the wrong torrent, leading to an effective denial of service against legitimate content?

One other thought on this. The company's name is "Pirate Pay," which I'm sure the Hollywood folks get a kick out of. However, it's worth asking the question: how much of this activity would actually get anyone to pay? We've noted in the past that the entertainment industry seems much more focused on "stopping piracy" than it is on "getting more people to pay." You can argue that the former leads to the latter but there's little evidence to suggest that's true. Yet there is tremendous evidence that offering compelling services without significant restrictions at a reasonable price does, in fact, get people to pay. It's a tragedy that the industry isn't doing nearly enough of that, but instead seems focused on these harebrained (and potentially illegal) schemes to attack people.

It now seems pretty clear that the German Pirate Party is a legitimate player in that country. A week after its third straight win in local state elections, the German Pirate Party appears to have won a similar percentage of votes in the country's largest region, North Rhine-Westphalia. The estimates are that it will end up with 18 seats on a little under 8% of the vote (Update: more final results are now showing 20 seats, so it's an even larger victory). In Berlin, Saarland and Schleswig-Holstein, the party was able to get similar votes as well, suggesting that this isn't a regional thing and has become a recognizable force -- especially among young people in Germany. The real question now is if it can use this to create some momentum going into the national elections next year.

Separately, it's worth pointing out that this result came about after it was noted a few days ago that the German Pirate Party's website was being censored in state schools, by a filter that claimed that the site was about "illegal drugs". It seems like pretty blatant censorship to block a political party's website -- even if it was "accidental" -- for daring to question the prevailing law enforcement regime around certain banned substances.

We already wrote about EMI's success in bankrupting MP3Tunes via overly aggressive litigation. But, now the company has decided to add insult to bankruptcy with a bizarrely gloating statement provided to News.com's Greg Sandoval.

Since November 2007, EMI Music and EMI Music Publishing have been engaged in a lawsuit with MP3tunes and its principal, Michael Robertson, in connection with Mr. Robertson's facilitation of widespread copyright infringement on MP3tunes.com and Sideload.com. These sites have built their businesses on the unauthorized distribution of music, at the expense of EMI's songwriters and artists.

Here, they're simply lying. The court ruling in the MP3Tunes case stated explicitly: "MP3tunes did not promote infringement." To claim otherwise is to ignore what the court stated flat out.

Now on the eve of trial, and after an ongoing press campaign claiming that MP3tunes would fight to vindicate its 'right' to infringe, Mr. Robertson has filed for bankruptcy protection for MP3tunes in the Southern District of California. After four and a half years of Robertson's bluster and rhetoric, it is apparent to EMI that Robertson has finally realized that his case has no merit.

While Robertson may believe that MP3tunes will be able to escape liability in the upcoming trial through this bankruptcy, Robertson himself is still a named defendant in the case and the Court has already determined that both he and MP3tunes have infringed EMI's copyrights. As such, he is facing personal liability both for infringements that the Court has already determined have occurred and for the further alleged infringements that will be addressed at trial. Accordingly, EMI will continue to pursue its case against Robertson, to ensure that its songwriters and artists are properly compensated for their creative work.

This makes no sense, and is even self-contradictory. As they state above -- and which everyone here knows -- filing for bankruptcy does not get you out of a copyright damages award. Thus, there is no reason whatsoever for the company to file for bankruptcy "to escape liability." That's impossible. The only reason to file for bankruptcy is because the company is out of money from fighting the damn lawsuit. And it's bizarre for EMI to claim that Robertson realized his case has no merit, considering that he mostly won the original lawsuit. Yes, there were a few key points that he lost on, which may turn out to be expensive if he loses on appeal and depending on the damages calculation, but the key elements of the case were won by Robertson and MP3Tunes.

It seems here that EMI is simply insulting Robertson out of spite. In the meantime, Robertson has pointed out that EMI spent $10 million suing him -- or more than the entire cost to build and run MP3Tunes. Remember that some exploration into how much EMI makes from Katy Perry's hugely successful album showed that the label probably ended up with about $8 million? Yeah, so basically it spent more suing Michael Robertson than it got from Katy Perry. Perhaps that money could have been better spent. No wonder the company was taken over by a bank and then sold off in pieces. Its priorities are a complete mess.

Ah, the MPAA. Hardly a day goes by when someone there doesn't say something positively ridiculous. The latest is a reaction to the news that a court in the Netherlands has expanded the censorship of The Pirate Bay to a few more ISPs. The MPAA has decided to explain that this kind of censorship is good for consumers:

The UK ruling and indeed other recent ones in Austria, Belgium, Denmark and Finland as well as this one are positive developments that support not only the creative community but also consumers.

It's not entirely clear why they say "the UK ruling," since the post only refers to a ruling from The Netherlands, but it's a strange world when someone is claiming that censoring a website that consumers find useful is "good for consumers." So how do they defend such a ridiculous claim? Well, by getting the story backwards yet again:

The number of sites that offer legitimate creative content continues to increase dramatically. But to fully enable this growing sector to thrive and provide consumers with content when they want it, where they want it and how they want it, it is imperative that the content not be siphoned off and distributed illegally by those seeking to profit from the work and creativity of others.

Hogwash. First of all, if the industry had its way, it would never have to innovate online at all, preferring greatly to live off of the old system of DVDs with crippling DRM. The only reason they were pushed to start innovating online was because of competition from the likes of The Pirate Bay, which finally caused them to agree to license platforms like Netflix, which has shown that it's actually quite easy to compete with The Pirate Bay if the MPAA and its studios would stop demanding ridiculous restrictions on content (and insanely high prices). Offer a good service at a good price, and The Pirate Bay simply can't compete.

The claim that for such services to thrive the content can't be "siphoned off and distributed illegally" is again totally bogus. Netflix competes quite nicely in the US with The Pirate Bay, and if the studios allowed more Netflixes to exist (rather than locking down every competitor with stupid rules like only having 24 hours to watch a movie) there would be plenty of innovation. Furthermore, even if they block The Pirate Bay, it doesn't stop the fact that the content still is and will be available. Claiming that legitimate sites can't compete if there is unauthorized content available means that legitimate sites can't compete at all. Yet we see them compete successfully with unauthorized content all the time.

So why does the MPAA lie?

As always, it's about control. They don't like being pressured by such innovation. They don't like having to adapt and to change. So they attack any new form of innovation and brand it as piracy -- just as they did with the VCR. Of course, amusingly, it's now that same home movie revenue which they fear losing. Yet if the MPAA had had its way 30 years ago, there would be no home movie market from which to lose revenue. Because, just a few short decades ago, the MPAA insisted that such a market would kill Hollywood.

Oh, and as for this point:

The court verdict found that The Pirate Bay is predominantly devoted to illegal activities with more than 90% of all content infringing on copyright.

You know what else had more than 90% infringement in the early days? The VCR. But thankfully courts recognized that it also had substantial non-infringing uses -- as does The Pirate Bay. It's not difficult to see how the industry could have embraced sites like The Pirate Bay to their own advantage, but failing that and having them censored... and then insisting that somehow benefits the public? Sorry, the public isn't going to buy that kind of crap.

Ron Kirk may believe that he's getting away with something in negotiating the TPP agreement without the public knowing what he's doing, but sooner or later he has to realize that the public isn't going to take it. With the recent TPP negotiations in Dallas, there was (of course) a corporate-sponsored "welcome gala." However, it appears that some protestors infiltrated the event and were able to announce that the USTR Ron Kirk and the other US negotiators had won the 2012 Corporate Power Tool Award. A protestor by the name of David Goodwin commandeered the microphone at the event and announced that he was Git Haversall, of the "Texas Corporate Power Partnership", and was giving the award to Ron Kirk because "The TPP agreement is shaping up to be a fantastic way for us to maximize profits, regardless of what the public of this nation—or any other nation—thinks is right."
The protestors actually came very close to giving the plaque to Kirk himself, but security got in the way at the last second. Somewhere around that point, a bunch of protestors apparently started dancing around and chanting "TPP! TPP! TPP!" You can see much of this in the video below:


Apparently the protestors also successfully replaced much of the toilet paper in the public bathrooms in the hotel with special TP-TPP:


I'm generally of mixed opinions on these kinds of protests. However, seeing as we're dealing with Ron Kirk, who seems to go out of his way to avoid the public concerning TPP and only listen to corporate interests, any method of making it clear to him that the public is unhappy seems worthwhile.

Ah, baseball. The national pasttime (for every month the NFL isn't playing) is rife with the most wonderful of traditions: Fenway's Green Monster, cheating, Wrigley's ivy, cheating, the divisional rivalries, cheating, the evil empire Yankees, and, of course, cheating.

Yes, it seems that for as long as baseball has been in existence, scandal has followed in its wake. We're finally beginning to emerge from the steroids era, but those of us that love the game are also familiar with the spitballs, corked bats, stolen signs, Pete Rose, and the 1919 Chicago Black Sox scandal. And so it's perhaps with little surprise and a shrug of the shoulders that we receive news from Deadspin that at least one of this year's $1 Million dollar candidates of 2K Sports' MLB2K12 Perfect Game Challenge rigged things in his favor. And there may be more.

For those of you not familiar with the game or the promotion, for the past several years, 2K Sports has paid out $1 Million to the winner of their Perfect Game Challenge. If you can manage to pitch a perfect game against the computer opponent (no hits, walks, or errors in a complete game shutout), you're entered into their bracket to play against the other perfectos, culminating in a championship being awarded on Spike TV. It's a big deal, especially for a game franchise that basically has this contest going for it and nothing else. But, as Deadspin's Owen Good notes, there's a problem:

"Two days ago, I reported on an exploit within MLB 2K12's $1 Million Perfect Game Challenge, in which contestants in the qualifying round of the contest could substitute opposing batters before the game began and still throw an eligible perfect game. I reported very strong evidence indicating that one of the eight finalists 2K Sports is flying to New York this week used the exploit in pitching his perfect game. And that same person has said he believed others in the finalist pool used it too."

That player was William Haff, who insists that his perfect game is legitimate. Ah, it's so simple! Just sub out every good hitter on the other team before the game starts! Face nothing but .200 hitters and we're in the clear.

In the end, I don't know that I can put the blame for this on Haff or any of the other finalists who may have also used this exploit. The blame belongs on the game developers and the ones running the contest. The very idea that 2K Sports would have allowed this in their famous (now infamous?) contest surely caused the kind of stunned embarassement that would result in a heartfelt mea culpa, right? Especially since there was something like 900 other players that threw perfect games, most of which likely were far more legitimate than Haff's substitution-filled no-no. According to 2K Sports...not so much.

"The contest was run properly," 2K Sports said. "We look forward to awarding someone a million dollars on May 10 in New York."

In the end, I'll feel a bit bad for the honest gamers who threw a perfecto and won't get the chance at the money because of dubious actions such as those of William Haff. But mostly I'll chuckle at the fact that 2K Sports' game at least got one part of their baseball simulation correct: cheating. Haff used the exploit that 2K Sports allowed for and explained it away by pointing out there's no rule against it in the contest...much the same way as Jose Canseco could explain his steroid use in the 90's by saying Major League Baseball had no rules against it. And technically, both of them are right.

But they're also both wrong. 

Music reality TV has become a key feeding ground for the major labels lately. Shows like American Idol, the Voice, X Factor and the like seem to be where the labels have been picking up some of their bigger name stars lately -- allowing the shows to help build up an initial following and then picking off the stars with typical record label deals. Except... it appears that some of those musicians are realizing that they don't need the labels any more. Jordis Unga, a singer who has appeared on two reality TV shows (Rock Star: INXS and The Voice), has decided that she doesn't need to sign a label deal. While she didn't win on either show, she did build up quite a following, and she decided that for her debut album, she might as well just hit up Kickstarter, and ask for $33,000. Which she got. In less than a day. In the first day alone her project on Kickstarter raised over $50,000.

Now, perhaps some will complain that she is now beholden to her fans, but that seems a lot better than being beholden to a multinational conglomerate who claims all ownership and control of your work. Others, quite reasonably, will point out that she built up some of this following by being on two prime time network national TV shows. That's absolutely true. No one is saying that the trick to being a successful musician today is to just go on reality TV. But the point is that if you can build up a following -- in any way possible -- the need for a record label diminishes. And there are more and more and more ways to build up that audience today. If the labels aren't worried about these alternatives, they're not paying very much attention.