In discussions about artists like Amanda Palmer using Kickstarter, plenty of people continue to insist that their success was made possible by their traditional industry backgrounds. We've already gone over lots of reasons why this is silly, most notably the fact that such artists do a lot of work and certainly don't coast on anything. But it also usually ignores the artists themselves, who more often than not clearly say that they are going it alone because traditional structures were holding them back. The fact that creators who have received some amount of benefit from labels/studios/publishers decide to move on anyway, and then see their careers grow, doesn't say less about platforms like Kickstarter, it says even more.

This sentiment is not limited to music, or to independent creators. Kickstarter is getting a lot of attention, and that's bound to attract bigger and bigger names. The latest, sent in by jtomic, is a feature film called The Canyons which involves some pretty serious Hollywood talent. The script is written by Bret Easton Ellis (author of American Psycho) and directed by Paul Schrader (as in, the guy who wrote Taxi Driver and the screenplay for Raging Bull). Ellis, Schrader and the producer are putting up a bunch of the money themselves and turning to Kickstarter for the rest—all because they want to escape the confines of Hollywood:

The film is a collaborative effort stewarded by former Lionsgate producer Braxton Pope as a response to the changing landscape of the film industry. Pope, Ellis and Schrader are partly financing the film themselves through Pope’s new company Sodium Fox in order to maintain complete creative control of the distinct source material. According to Schrader, “We all experienced the frustrations of financing and institutional censorship. But now, with advances in digital photography and distribution, we can tell a story in the manner we choose. Movies are changing and we’re changing with it.”

They expand on this in the video, which includes some excellent comments from all three creators. Pope talks about how the Hollywood process encourages "groupthink" and makes it hard for a film to stay true to the artists' vision. Schrader and Ellis both compare the current revolution in film to that of a hundred years ago when the medium was in its infancy, and are clearly excited about the prospect of making a film without notes from meddlesome studio execs.

There are some pretty cool funding tiers too, many of which are unsurprisingly sold out. The cast itself is being largely crowdsourced through an online audition platform, netting undiscovered talent from around the world, and anyone who pledges at least $10 gets to vote on finalists. For $500, Ellis and Pope offered to watch your short film and share their honest reactions (with links) to their followers on Twitter & Facebook (all 10 slots for that one are already sold out). For $1,500 they'll do the same with a feature-length film. For $5,000, Ellis reviews your novel (again, sold out) or Schrader gives you notes on your script (a few left at time of writing). One lucky backer has already snagged the single $10,000 "De Niro's Money Package", which comes with a money clip autographed by Robert De Niro and given to Schrader on the set of Taxi Driver.

So there can be absolutely no doubt that these guys are using their momentum from the traditional Hollywood system to make this project possible—but I'm at a loss as to how that says anything good about Hollywood. I doubt any of these creators had any real need to finance a film themselves, but they saw a growing opportunity to go directly to their fans and make movies the way they really want to make them, and they jumped on it. That's not coasting on the past—it's embracing the future.

Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the scene, and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of English and visual art, librarians, makers of open course ware, poets, and dance archivists--have identified fair use as a necessary tool for them to use to achieve their missions. They have turned to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counter-takedown notices and explain why their uses are fair. Remixers have also gone before the Copyright Office to protest the way that the DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer and Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice, such as lawyers and web developers, have built their fair use expertise to serve their clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use. Between the scholars, the creators, artists, and organizations, fair use is emerging out of a twilight existence where, for decades, it had lived. During those decades, many professionals and especially professionals in the corporate media environment—whether broadcast journalism, cable documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their rights to be able to improve their work, lower their costs and start or grow new businesses. Some want to expand the sphere of freedom of expression, so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and long-range effect on markets and policy.

The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S. and world-wide, critiquing the most stifling, confining features of copyright practice today. That discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly toward ownership rights, in a way that prejudices the health and growth of culture. This broader discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the public domain; and civil disobedience.

Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster” it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a range of tweaks to pull back the extent of copyright protection, such as limiting copyright length and dropping protection against the preparation of derivative work, so that less licensing is needed. Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.

Some people offer suggestions to improve the efficiency of licensing, which today is messy, clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or compulsory) licensing schemes, such those that allow today for the retransmission of TV signals by cable and satellite systems. Others have suggested new voluntary digital platforms through which users could make “micro-payments,” tiny payments for each individual access to copyrighted material offered commercially. Legal scholar William Fisher has proposed a voluntary collective administration system, akin to those that today enable public performances and broadcasts of music, and to collect licensing payments through Internet service providers and distribute them to copyright owners and artists whose material is used online. Some copyright owners, including the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.

The ideas and projects all respond to the real problem that copyright law now fits ever more poorly the way people are actually making culture. They may well take some time to become useful, though. The big stumbling block both to fundamental copyright reform and to licensing reform is that large copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on what they would like to do. They do not know what business models will be most relevant in a few years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to them than change that might have unanticipated downsides. As major stakeholders in any legislative reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until their interests shift with shifting business models. As major actors in licensing, they will collaborate on new methods of licensing when they understand how emerging business models favor their interests.

Another part of this broad copyright critique is a range of efforts to expand copyright-free and copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such as open source software (collaboratively created and freely offered software), open source (free and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely available curriculum materials) offer such alternative zones. The various Creative Commons licenses contribute to this alternative zone by offering a way for creators to give their work away more easily, although with conditions, by labelling it appropriately.

These efforts have indeed created significant copyright-light zones, as well as creating enormous enthusiasm for a more flexible copyright policy. They work well for people who want to give their work away and share it without economic reward. A pool of noncommercial works now exists, but it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News Corp will continue to copyright their holdings and treat them as assets. The existence of copyright- light zones, however large, does not address the frequent need that people have to access mass commercial culture to make new cultural expression.

Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the Yes Men, Adbusters magazine and others—position themselves on the margins of official culture, and see themselves as reclaiming culture one image or gesture at a time. They also see themselves as challenging the terms of long and strong copyright. Ironically, many times the uses they make of copyrighted material are actually completely legal fair uses.

This broad and diverse discourse calling for changes in long and strong copyright thus has many faces and approaches, each with opportunities and limitations. They add up to a broad public awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair use more useable stand out because they can be done now, by people in many walks of life; they can be publicized and celebrated, thus spreading the word; and because using this right expands its range of uses.

Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics. Some regard it as hopelessly compromised because of technologies such as encryption, which override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too much of the status quo, and that another copyright-free world is possible. One way that concern is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to accomplish our goals.

In fact, under the current interpretation, fair use does apply in a wide variety of situations. They range from making copies of TV programs on our DVRs to creating digitally annotated critical texts to making an archive of the worst music videos ever to making relevant curriculum digitally available to students. Fair use has evolved, having different functions at different moments in U.S. history. Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore copyright to its constitutional purpose, and the transformativeness standard assists in creating that value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open; vigorous exercise will not break fair use.

Fair use will continue to be important, no matter what the success of other aspects of long and strong copyright protests and proposals. Even if we could wave a magic wand and execute reform of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair use would still be an important tool to free up recent culture for referencing in new work. Even if licensing were much easier than it is today, it would never address all the needs people have for use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the copyrighted material existing outside those zones without permission or payment would still remain. Sometimes people need to use materials that the copyright owner simply will not license to them. Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be fun, although some culture jammers are actually just employing their fair use rights without knowing it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals or pirates, and don’t want to.

Reclaiming fair use plays a particular and powerful role in the broader range of activities that evidence the poor fit between today's copyright policy and today's creative practices. In a world where the public domain has shrunk drastically, it creates a highly valuable, contextually defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy—not merely protection for owners but the nurturing of creativity, learning, expression. Asserting fair use rights and defending the rights of others to use them is a crucial part of constructing saner copyright policy.

When it comes to ACTA and TPP, China is the elephant in the room -- or maybe that should be the dragon in the room. For without China's participation, these treaties designed to reduce counterfeiting will have little effect. And despite rather desperate optimism on the part of some that China will rush to sign up, its comments so far suggest otherwise.

A crucial factor here is China's own copyright framework, since this will inevitably color its perception of the terms of any treaty that it might sign. That makes the outcome of a planned third revision of its copyright laws highly pertinent to the fate of treaties like ACTA and TPP. A paper reviewing the current proposals, written by Hong Xue, Director of the Institute for Internet Policy & Law at Beijing Normal University, provides some valuable insights into the likely evolution of China's copyright law. Unfortunately, the signs are not good:

the Draft fails to review several misconceptions, such as "the more the better" (more copyright protection and enforcement, the better economic growth and social development), "one size fits all" and "modeling on US law" (on draconic enforcement rather than general and robust limitations and exceptions). It is unfortunately that China, the largest country by both population and Internet users, despite its fast-growing economy, seems keeping on the old track and missing the opportunities to revamp its Copyright Law in the new century.

In the area of limitations and exceptions, the latest draft makes things worse than today's rules:

According to the [current] Copyright Law, anyone may use a work for personal study, research and appreciation. The Draft, however, restrict the scope of private use to "making one copy of a work for personal study and research." It is annoying to exclude from the private use personal "appreciation", which is inherently hard to distinct from personal study and research, particularly on the Internet. It is even more worrisome to restrict private use to reproduction of a work. Under the Copyright Law, use of a work may include reproduction, translation, adaptation (such as remix or sampling), as far as the use is private. The Draft, however, only allows for reproduction and restricts to one copy.

That's crazy at a time when more and more people are using digital content in new ways that include precisely these things like remixing, sampling and adapting.

There's also bad news on the DRM front, which seems closely modeled on the US DMCA:

The biggest defect in this regard is that the Draft fails to address whether technological measures may be circumvented for the specified circumstances of limitations and exceptions to rights. For example, it is unclear under the Draft whether a user may circumvent a copy-protection measure on a work so as to make a single copy of work for personal study or research.

That's clearly a crucial issue. If circumvention is not allowed, then once again DRM can effectively take away what few rights users are granted in this area.

Finally, China also appears to be following the US in bringing in harsher copyright enforcement and disproportionate damages:

Copyright enforcement is tremendously enhanced under the Draft. Regarding civil remedies, damages could be several times of licensing fees if right holder’s actual loss and infringer’s illegal gains cannot be determined.

All-in-all, it looks like China has learned nothing from the West's mistakes. Instead, it seems to have taken the misguided view that if the West did it, China must do the same to "catch up". As the paper quoted above emphasizes, this is only a draft, and can still be modified. But based on what it already contains and the fact that organizing resistance against new laws in China is not the easiest of tasks, it looks increasingly likely that China too will be entering a period of copyright maximalism, with all the negative consequences for the Chinese public -- and possibly the world -- that this implies.

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The weather is warming up, and backyard barbecues are getting dusted off. What's easier to grill than a good old hot dog? Absolutely nothing. Here are just a few links to get you in the mood for some delicious dogs.

• The Brits have outdone themselves with a new culinary creation: Pizza Hut UK has created a hot dog stuffed pizza crust. American ingenuity just isn't what it used to be. [url]
• If you're really into hot dogs with plentiful toppings, just check out some MLB ballparks. Warning: if you don't like hot dogs, this is a slideshow of more than 20 hot dogs smothered in condiments that'll probably make you sick. [url]
• The Physicians Committee for Responsible Medicine is trying to get people to stop eating hot dogs... with scary billboards that suggest hot dogs are deadly. Some of the billboard ads look like parodies of anti-smoking campaigns, so it's difficult to take them too seriously (though the National Hot Dog & Sausage Council isn't laughing). [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

As the mobile phone moves closer to the center of daily life in many parts of the world, combining phone, computer, camera, diary, music player, and much else all in one, it becomes a concentrated store of the digital DNA that defines us -- who we talk to, what we search for, who we meet, what we listen to. However convenient that may be for us as users, it's also extremely dangerous if it falls into the wrong hands.

Unfortunately, in the UK, it looks like London's police force must now join the list of "wrong hands":

The Metropolitan Police has implemented a system to extract mobile phone data from suspects held in custody.

The data includes call history, texts and contacts, and the BBC has learned that it will be retained regardless of whether any charges are brought.

If a crime has been committed, there is an argument that extracting the data in this way in order to secure a conviction might be justified if carried out with appropriate authorization. But clearly, keeping all that highly personal data as a matter of course, even if no charges are brought, is a breach of privacy and human rights.

It's also pretty pointless. After all, anyone who uses their phone for nefarious purposes will make sure that they can render the contents irrevocably inaccessible with just a couple of clicks - apps that let you do this are likely to proliferate in the wake of this latest development. So most of the data gathered by the police will be that of law-abiding citizens, who don't feel the need to take this precaution.

However, there is an interesting parallel here with the similarly unjustified retention of a suspect's DNA, even if no charges were brought, that took place routinely in the UK from 2004. The European Court of Human Rights deemed this a breach of Article 8 of the European Convention on Human Rights, which provides a "Right to respect for private and family life", and the UK government was forced to change its approach. The same logic would seem to apply in the case of the digital DNA held on our mobile phones. Let's hope the UK police consider this before rolling out their disproportionate plans.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

With the official blockade of access to The Pirate Bay in the UK, combined with the UK Pirate Party's decision to set up a proxy for users, it appears that the UK Pirate Party's website is rocketing up the traffic charts. Given the growing success of The Pirate Party in parts of Europe, it makes you wonder if each of these bans isn't turning into the best (free) advertising The Pirate Party could ever get.

While many people assume that The Pirate Bay and the Pirate Party are connected, they are entirely separate (and the people behind them don't always agree with or support each other). However, they certainly do agree on a few key points, and when TPB comes under attack under questionable circumstances, the Pirate Parties seem quite willing to step up and help.

It will be interesting, then, to see if the negative reaction to the censorship plan in the UK actually turns into useful action in the polling place. The Pirate Party in the UK isn't seen as being as strong as elsewhere, but perhaps this situation gives the Party a chance to make itself and its polices more well known and understood in the UK.

I heard about this story last week, but it took a while to sort through all of the details. There were reports out there that the romance author Adele Dubois had been sent a DMCA takedown. Most of the reports were a bit vague, and then the Washington Post had a very confused writeup that bounced back and forth between copyright and trademark, without bothering to mention that you cannot use a DMCA notice for trademark issues (and also pointing much more of a finger at Google than was warranted).

I've now been able to see the full DMCA notice (which is not yet up on ChillingEffects, but should be soon -- though I've included it below) and talk to a few people around this, and it appears that someone associated with Sony did, in fact, issue a DMCA takedown to Google, leading to a blog post by Adele Dubois being taken offline. Google has since reinstated the post, after reviewing the counternotice, so you can read it here, though depending on your workplace, it may be marginally not safe for work (think erotic romance novel graphics and prose).

The DMCA takedown notice details are extremely sparse. It notes that the "copyright owner" is "XL SONY" and that the "Copyright work description" is "ADELE + EXITOS." It then lists out two URLs. One for "Location of the copyrighted work" and one for "Location of infringing material." It's not clear what the difference is here, but the first one takes you to a sales page for a totally different (and unrelated) romance book, whose author runs the blog where the Adele Dubois post was. The author of that book, Marianne Stephens, notes that she holds all the copyright on that particular book, and isn't clear why it's in the DMCA notice. The second link (location of infringing material) is the link listed above. The only connection that seems to be made is the fact that the famous singer Adele is on Sony, and the author of the blog post (and the erotic romance novel it talks about) has the pen name Adele Dubois (a name she's used since well before the singer Adele became a professional singer). Either way, there's no copyright in just the name Adele. The word Exitos seems totally irrelevant to anything.

Google, as it does in these situations, reverted the blog post to "private," and then upon reviewing the counternotice turned the blog post back on. It's not entirely clear from the notice who actually sent the takedown. It's possible that it was an overaggressive representative of Sony. What does seem clear is that whoever sent it was just doing some sort of quick automated takedown effort without any real review -- even though the takedown notice says:

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In the Washington Post article, the author suggests that Google should have gotten "to the bottom of this" before taking the content down. While that would be nice, the problem is not so much with Google as with the law itself, the DMCA. Because of the way the DMCA is structured, companies that don't take down content first and review the details later face significant liability if the content turns out to be infringing. The law basically says, if you want immunity from liability, you have to first pull the content offline. So Google followed that procedure. As we've noted, this part of the DMCA potentially violates the First Amendment, but has yet to be tested in court.

That said, you can see why it's so frustrating to the recipient. It's not at all clear from the notice that Google's Blogger passed on to the blog owners the information on who really issued the takedown, or even what, exactly, they were claiming. The bizarre link to the totally unrelated book doesn't help matters, but only serves to confuse them further. Combine that with the threat that this can lead to a "strike" against an account and you can see why some recipients of notices like this get pretty worried.

In the end, this looks like yet another of an all too common phenomenon (and one we've dealt with ourselves). Companies file automated or questionable (or insanely vague) DMCA notices all the time, and the structure of the law encourages companies who receive them to pull the content offline immediately and sort out the mess later.

It's no secret that Google's music locker service is struggling, but the company still seems committed to making it a success. To do so, they'll need to do big things, and break through the barriers that the record industry places in their path. Music columnist Wayne Rosso reports that an unnamed source told him Google is making bold overtures in that direction, and has offered at least one major record label a $1-billion contract for blanket worldwide rights to their entire catalog (thanks to Colin for sending this in). It's still unconfirmed, but it echos something Glyn wrote last year (which Rosso also refers to) about the possibility of Google or a consortium of internet companies simply buying out the record industry (and noting that Larry Page, Serge Brin and Eric Schmidt could afford to do so with their personal fortunes).

Rosso's source, however, isn't exactly sanguine about the idea:

What, one may ask, is Google thinking? “Who knows,” said the source. “It really doesn’t matter because they would screw it up anyway (referring to the fact that Google’s music service has been less than dazzling). Evidently they have a big content group and they have to have something to do to justify their existence.”

So how have the labels responded? “They’re just shrugging and stringing Google along, trying to keep milking cash out of them”, says the source. “They want the money but on the other hand they hate Google. It really sticks in their craw that Google continues to present links to pirated content at the top of their search results.”

I think that, if true, this says something much different. Google is not trying to "justify" anything—they know that there is tremendous opportunity in the field of online music services if only the labels will loosen the reins a bit. And they are willing to bet billions on that belief. The problem with online music offerings is that the people who design them simply don't think the same way the recording industry does. They want to make cool, useful, engaging services full of both common sense features and innovative ones, deployed on multiple platforms all over the world, fully leveraging the technology that is available—but licensing restrictions interfere with every single step of that process. Design and development are inextricably linked with tedious contract negotiations and the fear of lawsuits. It's extremely difficult to get a good product as a result—and if you do, the labels clamp down to see where they can extract more money from it. If Google is trying to buy blanket licenses with no restrictions at a high price tag, it's because they want to escape that cycle. They want a clear and open playing field on which to build services the way they want to build them, without having to beg the labels for permission at every turn. In a market that has only scratched the surface of the economic possibilities of digital music, such a playing field would be well worth the money.

You may have heard about a little IPO for some random tech company today. Something to do with books and faces. While we didn't plan to talk about it much (because it's getting covered to death everywhere else), we did want to comment on one thing that we've discussed for many, many years (going all the way back to 1999 and the first month we published in blog format). IPOs that have a big "pop" on the first day are often hyped up in the press as having a "good" IPO. And, the fact that Facebook spent the first few hours after opening trading right around its IPO price is being described in the press as if it was a bad thing:

"It's a total disaster because the stock is trading right at the IPO price," said Francis Gaskins, editor of IPOdesktop.com in Marina del Rey. "They didn't want that in a million years."

I guess this depends on who the "they" is in that latter sentence, but if we were dealing with a rational world, having the trades be right around the IPO price is actually a good thing, which suggests that the underwriters properly priced the IPO to what the market price is. Having a massive pop means that the company actually left money on the table -- often a lot of it.

In case you're unfamiliar with how IPOs work, basically what happens is the underwriters "buy" all the equity that's going on the market from the company, and then put it on the open market. So, that IPO price shows exactly how much Facebook gets. All of the trading after that is between other entities. So, for example, with Facebook, it got $38 per share last night from the underwriters. If, today, the stock had been trading at (just for example's sake) $80, it would have meant that Facebook effectively sold its shares for half price on what the market would bear. That would be more of a disaster, because it would suggest that Facebook missed out on a lot of money.

Of course, the banks often like to underprice things a bit, because that creates more buzz and more trades (and they can get more money that way too). But, from Facebook's standpoint, it should be happy that the trading remains around the opening price. Of course, going forward, the company should want the stock price to go up, because that means when it taps back into the market it can get more for whatever equity it sells. But an initial day pop, for all the hype and press it generates, is not something that should be celebrated. It shows that a company got shafted.

We've covered plenty of copyright trolling operations, and the Copyright Enforcement Group is one of the earliest to show up in the US, though there are few details as to who is actually behind it. We recently have been in contact with someone on the receiving end of a shakedown threat letter from CEG for their Lindsay Lohan fan page. The person who ran the site was, not surprisingly, a Lindsay Lohan fan, and tried to use the site to "promote the good things in Lindsay's life" rather than the typical schadenfreude surrounding Lohan these days. It was, in other words, the kind of site that Lindsay Lohan herself might appreciate. But it no longer exists, thanks to copyright trolling.

Like most fan sites, this one had some graphics, and the company that holds the copyright on those graphics, AKM Images, apparently hired CEG to start demanding cash from people, including the operator of this Lindsay Lohan fansite. Upon receiving the email, the owner of the site completely deleted it out of fear. However, he also saw that, according to Google analytics, the page that had the images had a grand total of nine pageviews from six unique visitors (and the operator of the site notes that one or two of the visits likely came from his own computer). In other words, even if the images were "infringing," you could make a pretty strong argument for either fair use or de minimis use.

The threat letter, of course, makes no mention of the details or possible defenses. It just says that each image requires a "settlement" fee of $500, and if you total up the 17 images (sent across two separate demand letters) that were hosted on the site, the owner is expected to pay $8,500.

It does seem likely that this individual did, in fact, post images without a license, though this is quite common across the internet. You could see a pretty strong fair use/de minimis use claim here, in that the site was non-commercial, was designed to help promote Lohan and was basically just a fan expressing appreciation. But, these days, expressing appreciation of someone famous can get you threat letters like this one (we've included one of the two threat letters below).

While there is, perhaps, an argument that the site infringed, the "harm" on the copyright holder is non-existent (there is no way this person would have paid to license such images). If I were a part of Lindsay Lohan's "publicity" team, at the very least I would probably look into paying off this settlement and supporting the site operator. In the meantime, it seems like actions like this could do a lot of harm to celebrities, as copyright trolls try to "crackdown" on fan sites, not only forcing many of those sites closed, but pissing off some of the celebs' biggest fans.

Just as we've seen the DOJ come out and scold police for taking away people's rights by arresting people photographing or videotaping police, we have two separate stories (found via PetaPixel) of photographers who were arrested by police for taking photos of public protests, both of whom had their cases dropped due to videotaped evidence from others that was posted to YouTube.

The two cases were unrelated, but have a similar fact pattern (and one not particularly different than previous stories we've seen). One case, in Seattle, involved a photographer named Joshua Garland, who started photographing recent protests in downtown Seattle, and was arrested and charged with third degree assault supposedly for "grabbing a police officer's hand and twisting his arm." Garland's lawyer, Andrea Robertson, went on YouTube and was able to piece together videos of the incident, which she then showed to prosecutors, saying that the video footage made it clear "there was absolutely no way that the officer's account of events is what actually happened." Because of that, police dropped the charges.

Meanwhile, dealing with a similar issue in New York, photographer Alexander Arbuckle actually went to trial, where, once again someone else's YouTube footage helped exonerate him (and show that the police appeared to lie). In this case, he was charged with "disorderly conduct" (which we see a lot in cases where police arrest photographers for photographing or videotaping them. The police officer claimed, under oath in court, that Arbuckle was in the street and blocking traffic, leading to the arrest.

Thankfully (or, if you're the police, unfortunately), there was a lot of evidence contradicting that statement. This included Arbuckle's own photos, which were taken from the sidewalk, and (more importantly) a Ustream video from a guy named Tim Pool "showed that not only was Arbuckle on the sidewalk, so were all the other protestors." As the Village Voice notes, "the only thing blocking traffic on 13th Street that night was the police themselves." Here's the video, with the key section being from 31:50 until about 35:00.
As Petapixel points out, this certainly suggests that the police lied under oath.

Oh, and a bit of irony: Arbuckle was at that protest to try to document the cops' side of the story, saying that he felt the media had been unfair in covering the police, portraying them as aggressors, when he didn't believe that was true. Yeah.

Either way, this highlights a couple of related points:

1. Police across the country continue to arrest photographers on completely bogus charges -- despite courts (and the Justice Department) making it clear that this is legal activity. In at least some cases, it appears that they are then willing to lie about it in court.
2. Similarly, this demonstrates the importance of being able to photograph and film police while on duty, to provide evidence when there is wrongdoing. That the "wrongdoing" involved incorrectly arresting other photographers only serves to make this point even stronger.

It's really amazing to me how frequently we see stories like this. It's good that these two cases both got dropped, though crazy that either one existed in the first place, let alone that one of them went all the way to court.

Putting together maps may seem like a simple thing, but it can often have significant consequences, especially involving national identity and nationalistic feelings. And, given the prominence of Google Maps, the company has been no stranger to controversy over some of its mapping choices. Back in 2005, Taiwanese politicians protested Google referring to the island as a province of China. Similarly, there have been complaints about Palestinian territories being labeled as a part of Israel. Of course, given the very well documented disputes about the issues in both regions, it's no surprise that the mapping choices (either way) would likely upset some. Of course, my favorite Google Maps dispute may have been when Nicaragua accidentally invaded Costa Rica and then blamed Google Maps for the mistake, which came close to creating a serious international incident.

The latest such story involves Iran threatening to sue Google for not labeling the Persian Gulf. The article goes through the details, and Google seems to dance around the subject. A spokesperson claims that not every body of water is labeled -- but as the report points out, lots of other bodies of water in the area (including many that are significantly smaller) are labelled. As the article notes, there is at least some dispute over what the body of water is called, suggesting that Google's way of dealing with the controversy this time around is to just not label it at all. Though, clearly, that doesn't seem to have helped.

Of course, what I'm wondering is just what kind of "legal action" Iran thinks it can reasonably take here. I'm sure they can go after Google in an Iranian court, but I can't see how that matters. Google is outside their jurisdiction and the "worst" case scenario is that Google gets blocked. But given Iran's widespread internet censorship, and the expectation that it's about to expand greatly, it's not clear that even that would be a big change. If Iran were to sue somewhere else, what would be the basis? Not liking how a map is labeled doesn't automatically make it illegal.

TorrentFreak alerts us to an interesting new research paper from Robert Hammond, an assistant professor at North Carolina State University, looking at the direct impact on sales when albums are leaked early online. The study is pretty thorough in trying to separate other factors and isolate the actual causal impact. It's a bit of an extrapolation to claim that the study says "file sharing boosts music sales," as I don't think the paper actually goes that far. It seems to suggest, however, that for popular artists, having an album leaked appears to lead to a small, but significant, increase in sales. The impact is not seen for newer or less-well-known artists.

To put this result into context, consider the effect of leaking one month earlier on the sales of an album; that is, predict the effect of leaking one month earlier on the number of additional seeders per leecher, then predict the effect of these additional seeders on the number of additional downloads, then finally predict the effect of these additional downloads on the number of additional sales. This exercise predicts that an album that leaked one month earlier will receive 59.6 additional sales.

The report is interesting in that it uses a different, and perhaps much more revealing, data set. Hammond got the data from a popular private tracker that is well known for pre-release works. He claims, quite reasonably, that this means his results are much more useful than other studies that rely on proxies that may not be as accurate.

That said, the report notes that other that other sources of marketing seem to have a larger impact than file sharing. The study is interesting in that it at least challenges a few other reports that have argued that file sharing leads to fewer sales (and even a report that claims that the entirety of the decline in recorded music sales is due to file sharing). While Hammond mentions this particular study, by economist Stan Liebowitz (a vocal supporter of the entertainment industry's position on file sharing), he notes that the two were studying different things -- one macro and one micro. It's also worth noting that Hammond appears to have had Liebowitz review his study before publishing it (though who knows what he said about it).

I think the results here are interesting, but it still does seem like an area of research that needs a lot more focus, as I would bet there are many additional variables at work here, as we've discussed. We've seen that artists that do a good job connecting with their fans, and giving them a reason to buy, seem to see an increase in sales -- and that's independent of how the content is leaked or released (mostly, since you could argue that having the content available is one way of connecting).

Here's a random story, found via Kottke, highlighting how Pixar came very close to losing a very large portion of Toy Story 2, because someone did an rm * (non geek: "remove all" command). And that's when they realized that their backups hadn't been working for a month. Then, the technical director of the film noted that, because she wanted to see her family and kids, she had been making copies of the entire film and transferring it to her home computer. After a careful trip from the Pixar offices to her home and back, they discovered that, indeed, most of the film was saved:
Now, mostly, this is just an amusing little anecdote, but two things struck me:

1. How in the world do they not have more "official" backups of something as major as Toy Story 2. In the clip they admit that it was potentially 20 to 30 man-years of work that may have been lost. It makes no sense to me that this would include a single backup system.
2. I wonder if the copy, made by technical director Galyn Susman, was outside of corporate policy. You would have to imagine that at a place like Pixar, there were significant concerns about things "getting out," and so the policy likely wouldn't have looked all that kindly on copies being used on home computers.

The Mythbusters folks wonder if this story was a little over-dramatized, and others have wondered how the technical director would have "multiple terabytes of source material" on her home computer back in 1999. That resulted in an explanation from someone who was there that what was deleted was actually the database containing the master copies of the characters, sets, animation, etc. rather than the movie itself. Of course, once again, that makes you wonder how it is that no one else had a simple backup. You'd think such a thing would be backed up in dozens of places around the globe for safe keeping...

Earlier this year, Poland played a crucial role in igniting street protests that pretty much stopped ACTA in its tracks. That's not the first time it has had a major impact on European tech policy. Half a decade earlier, it derailed a proposed EU software patent directive, which had sought to make software patentable in Europe -- something that Article 52 of the European Patent Convention had appeared to rule out. That led to a later vote in the European Parliament where software patents were decisively rejected.

Unfortunately, that's not the end of the story as far as software patents in Europe are concerned. Despite its name, the European Patent Office is not the patent office for the European Union: it is part of the European Patent Organisation, which is independent of the EU, and is therefore not bound by the EU's policies and decisions. This has enabled it to let in software patents by the back door, using the artificial concept of a "computer-implemented invention (CII)":

A CII is usually defined as an invention that works by using a computer, a computer network or other programmable apparatus. To qualify, the invention also needs to have one or more features which are realised wholly or partly by means of a computer program.

To be patentable, CIIs must fulfil the same basic patentability requirements as inventions in all other fields. These are set out in the European Patent Convention (EPC).

Accordingly, CIIs can be patented if:

They have technical character and solve a technical problem.
They are new.
They involve an inventive technical contribution to the prior art.

Some national patent offices in the EU have tried to hold back the wave of software patents being let through as CIIs by applying stringent conditions for granting them. That has led to a situation where the Polish Patent Office ruled against an application for a software patent that the EPO had approved:

Pursuant to its longstanding practice in the area of so-called software patents, the Polish Patent Office held that the invention was not of a technical character and therefore was not patentable, despite the fact that the European Patent Office had granted a European patent for the same invention. In other words, the Polish Patent Office refused to issue a patent to an applicant already approved by the EPO.

This incompatibility between the rulings of the Polish Patent Office and the EPO led a higher Polish court, the Polish Supreme Administrative Court, to intervene. It has now reviewed the case and issued a revocation of the earlier decision by the Polish Patent Office, implicitly giving precedence to the EPO on the matter. The reasoning of the Polish Supreme Administrative Court seems to be essentially that technology has moved on, and therefore the Polish patent system should take account of that by allowing software patents now, just as the EPO does:

The [upper] court also noted that great technological advances across many industries have been made in recent years, which must have an effect on the practice of the Polish Patent Office. Thus, the Polish Patent Office, while conforming to the provisions of Polish patent law, should change its approach on the subject matter of the technology.

But that's an absurd argument. Software has been around for half a century: the basic ideas underlying it haven't changed, nor have the sound reasons for excluding it from patentability been superseded -- it's just become much more widespread. If anything, that's a further argument against allowing software patents.

To grant software patents now would be like granting patents on written phrases simply because writing has "moved on", and literacy has become more widespread. Clearly that would stifle creativity, since writers would then have to worry about "infringing" on patented elements of their craft, and lawsuits would break out between authors claiming their ideas were "stolen", when in fact they were simply part of their cultural heritage.

Similarly, in the digital world, allowing software patents would mean that programmers would run the risk of "infringing" just for using basic programming building blocks in their creations. And that, of course, is precisely what is starting to happen on a massive scale in jurisdictions that do allow software patents: litigation is making innovation increasingly hard, especially for start-ups without the resources to fight long legal battles, or patent portfolios to use for striking licensing deals.

Given Poland's glorious recent past in defending Europe from dangerous ideas like ACTA and software patents, it's sad to see the country's courts trying to make its own citizens subject to the EPO and its maximalist views that more or less anything is patentable. Perhaps it's time to take to the streets again....

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