One of the things we've heard for years, whenever we talk about awesome marketing campaigns and business models that musicians and other artists have put together, is that it's somehow a "shame" that the artists are getting attention for the campaign/business model, rather than the art itself. Even Amanda Palmer expressed some concern about this in a recent blog post:

the weirdest thing right now is that everybody KNOWS about it. i’m now famous for my kickstarter.

which is a little depressing. i wish that i could steal all that enthusiasm and high-fiving i’ve getting from strangers in the street (literally) and re-route it to the album when comes out. i don’t want this album to be remembered as “the kickstarter record.”

i do want this record to explode. and i want this record to explode because it is awesome.

There were definitely similar concerns about things like Radiohead's In Rainbows, where some said it's only known as the "pay what you want album." That said, Palmer immediately points out that she's not too hung up on this, and discusses repeatedly what a "fucking game-changer" Kickstarter is for the music business.

However, it did seem worth focusing in a bit on this point to think about it some more. Is it really that big a problem if people know you for doing something innovative that is indirectly connected to the art? I don't think so. The biggest challenge for many (probably most) artists these days is obscurity. They need ways to stand out from the crowd -- and often that goes beyond the music.

But none of that eclipses the music entirely.

Sure, some people may focus on the business model or the marketing efforts, but that's a fantastic conduit to the music. The only reason I learned about Amanda Palmer in the first place, years ago, was her efforts to get out of her major label recording deal, after the label (Warner Music) took her own videos down as part of their fight with YouTube. And, obviously, she's done lots of other interesting things that matter to the community here as well. Since first learning about her, however, I've become a huge fan of her music as well (and discovered that she puts on a fantastic live show).

Basically, everything that you do as an artist to stand out still leads back to the work. And the best gimmick in the world isn't that effective if the art isn't amazing too.

It's what we've said in the past: no marketing, no gimmick, no trick will "work" if you're not also producing awesome content. Sure, there will always be some people who support you for doing something cool in how you present yourself. But, as our critics always like to remind us, the art itself is still central. And no one's denied that. But we take it for granted that if you're going to make any of these new things work you also have to make good content. And if you make good content, but attract attention for a successful Kickstarter, it's quite likely that a bunch of those people will become true fans of the music (and the artist) as well.

Summary of Parts One and Two: The essential balance of copyright between incentives for creators and the feeding of a rich and unlicensed public domain has been undone by a long series of misguided efforts to save copyright by making its rules both stronger and less enforceable at the same time. The industry’s tactics have backfired, eroding what was left of any moral authority for obeying the law. And that was the chief (and most efficient) mechanism for enforcement all along.

The repeated and retroactive extension of copyright terms, largely at the behest of the Disney Corporation, has had the unintended consequence of creating a nation of felons, both technically and in spirit. According to one provocative study by John Tehranian, we all violate copyright unintentionally many times a day. And to the extent we realize it, we don't care.

To return to the parking analogy, the result of these legal changes has been to paint every curb a red zone—it's now illegal to park anywhere. The result is not perfect enforcement of copyright but its opposite. No one obeys the law or thinks they ought to. Getting caught is more or less a random event, and rational consumers won't change their behavior to avoid it.

The center will not hold. Large media holding companies are becoming desperate, expending their resources not to find new ways of making money but to secure passage of increasingly draconian laws (SOPA) and treaties (ACTA) that give them more, largely unusable new powers. Even if passed, these legal tools will do little to improve legal enforcement. But they are certain to cause dangerous and unintended new harms.

At the same time, the marketing machines of these same companies have convinced us that our right to enjoy content is inherent—the American Way. Once offered, we imagine free content should always be free, even if the rightsholder changes its mind or intended all along to attach conditions to consumption based on time or place or the ability to associate mechanisms, such as advertising, that allowed for indirect revenue generation.

Americans don't understand that subtlety, and rightsholders have given them no reason to try. Public education efforts have been pathetic. Instead of teaching consumers the costs and dangers to the delicately-balanced system from copyright infringement, they emphasize moral and legal prohibitions that are rightly perceived by consumers as petulant, cynical, and amusingly out-of-touch.

These campaigns, for starters, say nothing about the economics of content production and distribution. They are morality tales, narrated by fabulists who pride themselves, in their day jobs, on their mastery of manipulation and misdirection. It's as if Darth Vader sat down with preschoolers to talk about why they shouldn't throw stones at the Death Star because of the potential for property damage.

Consider just a few examples below: YouTube's mandatory copyright "school" for violators and the classic 1992 "Don't Copy that Floppy:"


Clearly, not much has changed over the last twenty years in efforts to change public perceptions and behaviors. The Hollywood that can produce blockbuster movies somehow can't make a PSA that isn't a self-parody.

I think the public can be educated, and should be. Here's where I part company with those who reject copyright altogether. The theory of copyright—limited monopoly in exchange for a rich public domain—is still a good one, and the system created by the English, adapted by early Congresses, had the virtue of being largely self-enforcing and therefore efficient.

It is the 20th and 21st century imbalance in copyright, and not copyright itself, that must be fixed. And it can be fixed. There is a way out of this dangerous and increasingly tense cold war between content industries and their customers. Here's a simple three-step solution:

1. If rightsholders want consumers to obey the law and support their preferred business model, they first need to stop making it impossible for consumers to follow the rules. Copyright needs to be weakened, not strengthened.
2. Content industries need to end the stalling and excuses—perhaps understandable in 1998, when I first wrote about digital distribution in "Unleashing the Killer App," but not now, nearly fifteen years later. They need to embrace digital media and new channels fully, even if doing so means tolerating a considerable amount of unauthorized distribution and reuse as working models for profit-generation rapidly evolve.
3. Public education needs to focus not on self-righteous indignation but on collaborating with consumers on finding ways to compensate creators for the value of their work. If consumers understood the economics of content creation and distribution, and given an easy way to cooperate, they'd do it.

Ironically, there's every reason to believe that embracing a relaxed copyright regime and encouraging creative reuse would actually generate more revenue for creators. That, in any case, has been the lesson of every form of new media to be invented in the last hundred years or more.

Each of them was initially resisted and branded as illegal and immoral. Each of them—from the player piano to the photocopier to the VCR to the Internet—has instead offered salvation and riches to those who figure out the new rules for working with them and not against them. (Hint: network effects rule.) Rightsholders consistently confuse each fading media technology with the true value of the content they control. The medium is not the message.

For now, industry apologists—the MPAA, the RIAA, the U.S. Chamber of Commerce and others—are caught in a dangerous cycle of denial and anger. A growing number of consumers refuse to follow the current rules. So they lobby to make the rules stronger and the penalties more severe, amping up the moral rhetoric along the way.

But this only serves to starve the public domain more, undermining the basic principles of copyright. With the system increasingly out of balance, self-enforcement becomes even less likely. The law is impossible to obey, and rarely enforced. So consumers make up their own rules, for better or worse, with expensive and unnecessary casualties piling up on both sides.

Eventually, consumers and creators find the right balance and the most effective forms of compensation, regardless of the industry's efforts to cut off their nose to spite their face.

Then along comes another disruptive technology and a new round of customer innovation, and the cycle starts all over.

Rights holders remain stubbornly parked in the same old spots, afraid that if they move their vehicles at all they'll be doomed to circling the block forever, unable to stop until they permanently run out of gas.

The rest of us, meanwhile, are happily enjoying our flying cars.

Most people will be familiar with Moore's Law, usually stated in the form that processing power doubles every two years (or 18 months in some versions.) But just as important are the equivalent compound gains for storage and connectivity speeds, sometimes known as Kryder's Law and Nielsen's Law respectively.

To see why, consider that the IBM PC XT had a 10 Mbyte hard drive when it was launched in 1983, which meant you couldn't even fit a single song on it. Similarly, the first widely-used modem, the 1981 Hayes Smartmodem, had a maximum speed of 300 baud: to transfer a digitized song using a dial-up connection would have taken around 500 hours.

With those kind of figures, it's easy to see why the recording industry underestimated the threat that file sharing would become once the Internet arrived: based on the past, it was almost inconceivable that people would ever swap music between computers. Of course, once that did start to happen, and the shape of the future became obvious to many, the industry nonetheless wilfully ignored the facts and the trends at every turn, when instead it should have taken the lead in re-inventing media for the Internet age.

That woeful history of refusing to accept the implications of rapidly-advancing technologies makes this prediction, found via Slashdot, even more fateful:

Technologies that will make it possible to expand disk density include heat-assisted magnetic recording (HAMR), which Seagate patented in 2006. Seagate has already said it will be able to produce a 60TB 3.5-in. hard drive by 2016.

Assuming Seagate or someone else delivers, that 60 terabyte hard disk could store around 10 million typical MP3 files. A year ago, Spotify was said to have 15 million tracks, which means that you could store most of today's Spotify on that future Seagate drive. Spotify is likely to grow even larger by 2016, but it probably won't grow as fast as the storage capacity of hard disks, so there will be some point in the not-too-distant future when you can place all of its holdings on a single hard disk: Spotify in a box.

Obviously, few people will choose to do that, but storing your favorite million songs will not only be realistic, it will be cheap -- and even portable. Provided the transfer rate to and from such disks also keeps up with the growth in capacities -- an indispensable technological requirement, otherwise they become impossible to use -- this means that people will be able to move around huge collections of music, without ever touching an Internet connection. That makes all those three-strikes plans moot, since you won't actually need your broadband line in order to swap files with friends. You'll just plug in your portable hard drives to a common computer and exchange stuff directly (as probably already happens with today's terabyte-sized portable disks.)

In an ideal world, we would also see a kind of constant scaling of the intelligence of the recording industry, such that by 2016 it would finally accept that trying to stop sharing -- whether online or off -- is simply pointless. Somehow, though, I think we'll just have to make do with the other variants of Moore's Law.

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We know it's bad for our health, but somehow we just can't get enough of artery-clogging fried foods because they taste so good. If you get tired of dry oven-roasted Thanksgiving turkeys, try deep frying them next time. Deep frying is not only a quicker way to cook a turkey, but it also produces a very moist and juicy bird with super crunchy skin. (However, deep frying whole turkeys is dangerous if not done properly -- take it from William Shatner, who nearly burned down his house trying to deep fry a turkey.) Fried turkey isn't particularly unusual, but there are some pretty crazy, deep fried food ideas out there. Here are a few examples.

• In Austria, McDonald's recently offered a sandwich called the McRibster, which was essentially a McRib that had been breaded and fried. And as if that weren't enough, it also came with bacon and cheese (and some healthier stuff like lettuce and onions). [url]
• Fried butter balls first debuted at the State Fair of Texas in 2009. However, the Iowa State Fair took it to the next level last year with a 2-ounce stick of butter, dipped in cinnamon honey batter, deep fried, and then covered in a sugar glaze. [url]
• Every year, the San Diego County Fair features some interesting deep fried foods. Some examples include: fried Krispy Kreme chicken sandwiches, fried Twinkies, fried avocados, fried brownies, fried Klondike bars, fried frog legs, deep fried Girl Scout cookies, and deep fried Kool-Aid. [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.

We've written a few times that the end goal behind ACTA and TPP is to put in place frameworks by the US and Western Europe for certain things, and then pressure the key developing nations to join in based on the framework that has already been established. That is, let the US and Europe set the rules... and then pressure Brazil, Russia, India and China (BRIC) countries to "join" later, when they can no longer influence the rules. It's not hard to see how the plan is really about looking for ways to stifle those up-and-coming economies. Of course, the end result will actually be the opposite. Since those countries won't be saddled with overly restrictive laws (hopefully), there will be interesting opportunities for businesses.

And, of course, among the BRIC countries, none is seen as important as China. Thus, the real goal behind TPP and ACTA isn't just to set up this framework around things like IP (TPP covers much more), but then to get China to sign on to support that framework. Of course, China, whose leaders are much more savvy than the west likes to give them credit for, have made it pretty clear that they have no interest in signing up for ACTA or TPP.

And yet... the EU Parliament is already trying to put pressure on China to sign on to ACTA. Yes, the same EU Parliament that has been moving closer and closer to rejecting ACTA itself has just passed a resolution to scold China for not signing up :

"regrets that China has not taken part in the negotiations on the Anti-Counterfeiting Trade Agreement (ACTA)"

While the overall resolution covered a number of other trade issues concerning the EU and China -- meaning that those who voted for it may have been focused on other issues, rather than just this one -- there apparently was a vote specific to this line and it passed. MEP Christian Engstrom, who brought this to attention, notes that this should be a warning sign that, despite strong momentum against ACTA in the EU Parliament, it could still pass.

Bloomberg Law has put together a short video about Adam Yauch and the sampling lawsuit filed against the Beastie Boys the day before his death. Though the voiceover guy sounds a little like it's his first time reading the script, the video brings up some interesting tidbits.

One is a 2003 sampling lawsuit brought against the Beasties in which they triumphed: the Ninth Circuit ruled that a flute sample they took from a James Newton song was protected by the de minimis doctrine. Basically the court found the brief sample to be too insubstantial to qualify as copyright infringement. What the video mentions briefly (but doesn't go into in detail) is the fact that, two years later, the infamous Bridgeport ruling in the Sixth Circuit stated that samples are never protected by de minimis and must always be licensed no matter how short or simple they are. In the beginning, some major labels actually opposed that ruling, because they had already released lots of albums with samples on them and were worried about a storm of litigation. But since then, the industry has come to essentially treat Bridgeport as gospel, even though it's only binding in the Sixth Circuit and other rulings (like the Beastie Boys flute sample) have gone the other way. There are some key differences between the rulings, though: the Newton decision was about compositional rights (the Beastie Boys had licensed the sample of the recording) whereas Bridgeport was about sound recording rights.

The video also highlights a quote from Yauch in a 2004 interview with Wired Magazine, when he was asked about unlicensed samples coming back to haunt them. His response? "I think there's a statute of limitations on that stuff." This is a point a few people have brought up (because it seems so completely insane to face a lawsuit over an album that has been hugely popular for over 20 years), but the legal details are a bit more complex. The countdown clock for the statute of limitations on copyright infringement doesn't start ticking until all infringement has ceased—but Paul's Boutique has been selling continuously all these years, and was re-issued for its anniversary in 2009. If this new lawsuit goes to trial (which doesn't seem likely given the way sampling lawsuits normally go these days, but the Beastie Boys have yet to make a statement) then the statute of limitations would likely be used to argue that the Beasties are no longer liable for earlier album sales, but it wouldn't get them off the hook entirely.

For years we've argued over and over again that stricter enforcement does nothing to slow down or stop infringement. Often it does the opposite -- either by making more people aware of the possibilities to infringe, or driving people further underground. The industry insists that it needs stricter enforcement on a bizarre and widely discredited theory that such strong enforcement is effective as an "education" technique. You hear this all the time from entertainment industry execs. They're so bought into their infatuation with copyright, that they think the only possible reason why people don't respect the law is that they haven't been "educated" enough about it -- and what better way to "educate" than to crack down hard?

Except, it never works. It never has and it never will. Increasing enforcement has never -- not once -- been shown to be an effective long term solution to stopping infringement. It does appear to have short-term effects, as it makes people scatter from actions that are easily trackable, but within a few months (six seems to be about the consensus), file sharing activity tends to find a new path and get back to the same trajectory it was on before.

We've now got some more data to support this. A few years back, Sweden passed a very draconian and aggressive enforcement law known as IPRED (Intellectual Property Rights Enforcement Directive), which had the result of a temporary blip in file sharing that disappeared pretty quickly. And now, a new research report has come out showing that just as many 15 to 25-year-olds share unauthorized content online as did so at the time IPRED became law. In fact, a larger percentage of that age group share "heavily," rather than in smaller amounts.

“We can safely say that the repressive legal developments in this field have very weak support in informal social control mechanisms of society”, says Mans Svensson, Ph.D. in judicial sociology, one of the researchers doing the study. “The social pressure is close to non-existent.”

So why is it that we keep seeing countries pass these kinds of laws? And why do entertainment industry lobbyists keep pushing for them when they're so woefully ineffective in doing anything positive?

Okay, here's a bit of a two-fer. With all of the attention that Amanda Palmer has been getting for her massively successful Kickstarter campaign, we had some commenters here questioning whether or not she would freak out if people then shared her music. Thankfully, in her latest update about the project she answers that and many other questions from some folks who are still a little confused about what's going on. But, for this post, let's focus on the simple question of "piracy" -- since it's one that comes up often enough around here:

i think music should be shared. all the time. by everybody. i think it’s pure insanity to make music filesharing illegal.
and with that said, i have, for years, encouraged my fans to burn, download and share all of my music with each other and with strangers.
and i will never stop doing that. all that sharing eventually comes back to me in all forms of income and goodwill.

This actually reminded me that, a few weeks earlier, famed music producer Steve Albini did an AMA on Reddit, in which he was asked a similar question, to which he responded:

I reject the term "piracy." It's people listening to music and sharing it with other people, and it's good for musicians because it widens the audience for music. The record industry doesn't like trading music because they see it as lost sales, but that's nonsense. Sales have declined because physical discs are no longer the distribution medium for mass-appeal pop music, and expecting people to treat files as physical objects to be inventoried and bought individually is absurd.

The downtrend in sales has hurt the recording business, obviously, but not us specifically because we never relied on the mainstream record industry for our clientele. Bands are always going to want to record themselves, and there will always be a market among serious music fans for well-made record albums. I'll point to the success of the Chicago label Numero Group as an example.

There won't ever be a mass-market record industry again, and that's fine with me because that industry didn't operate for the benefit of the musicians or the audience, the only classes of people I care about.

Free distribution of music has created a huge growth in the audience for live music performance, where most bands spend most of their time and energy anyway. Ticket prices have risen to the point that even club-level touring bands can earn a middle-class income if they keep their shit together, and every band now has access to a world-wide audience at no cost of acquisition. That's fantastic.

Additionally, places poorly-served by the old-school record business (small or isolate towns, third-world and non-english-speaking countries) now have access to everything instead of a small sampling of music controlled by a hidebound local industry. When my band toured Eastern Europe a couple of years ago we had full houses despite having sold literally no records in most of those countries. Thank you internets.

Considering that Amanda actually linked to Albini's fantabulous rant about what happens when you sign a major label deal from many years ago (nearly two decades) in her previous blog post about where all the money is going, it doesn't surprise me to find out that she's still on the same wavelength as Albini today.

The key point that both Palmer and Albini recognize is that it's not about the "sharing" or "piracy" or whatever you want to call it. It's about what you do with it. Both recognize that if you play your cards right, things can be absolutely fantastic for musicians these days, because not only can they have more control over their own destinies by taking charge of their careers, the biggest challenge is obscurity not piracy. And, in fact, file sharing (not "piracy" if it's supported by the artists themselves) can help alleviate that problem, help them build up larger audiences around the globe -- at no cost -- and then do something with that fanbase later.

I keep seeing critics complain that Amanda's Kickstarter campaign only is useful to someone like Amanda because she "had a big fanbase" already. That ignores (completely) how she built up that fanbase. And part of that is making sure as many people as possible could and did hear her music. In that context, fighting against "piracy" seems to be fighting against an artist's own best interests...

While there have been some claims that Google has supported CISPA (whereas the company does not appear to have taken an official position), at least one top person at Google is not at all pleased with the bill. Vint Cerf apparently blasted Congress about CISPA, noting that the bill went way too far.

Cerf, who is an "Internet evangelist" (Vice President) at Google, had some particularly harsh words for the Cybersecurity and Intelligence Protection Act (CISPA), saying it wasn't specific enough on how shared information between government and corporations would be used.

It's good to see more and more internet experts speaking out about why the bill is so bad. It's too bad that Google hasn't taken an official position on CISPA yet.

There have been plenty of studies showing how -- especially in developing nations -- patents for pharmaceuticals serve to keep important drugs (which are cheap to manufacture) out of reach of the patients who need them most. In large part, because of this, various world bodies have accepted the idea that nations may decide to ignore patents in the interest of public health and safety. And that appears to work and be helpful. For example, we were just discussing how such generic copies were helpful in massively reducing the price of key drugs in India. And, no, this did not mean that the original manufacturer was unable to profit. This was on a drug where the company (Bayer) had made many times over its investment around the globe already, yet was still pricing the drug at over $5,000, while the generics were coming in at between $100 and $200.

There have been so many studies on this that you'd have to be either ignorant or deceitful to suggest that such a plan was a problem.

So I'm trying to figure out which adjective should apply to the USPTO, who recently gave a talk to a WIPO committee on the issue of patents and health, in which they argued that such efforts actually did more harm than good, and the way to keep people safe in developing countries was to increase patent protection:

There is no easy solution to these problems. Reducing patent protection is not likely to solve these thorny issues.... To the contrary, the lack of effective patent protection can be one of the many factors which prevent the appropriate medicines from reaching the neediest patients in DC and LDCs. Weakening the patent rights granted to pharmaceutical researchers and manufacturers in certain markets not only removes or reduces the incentive to develop new medicines, but also reduces the incentives for innovative medicine developers to invest in those countries and harness their innovation to solving the public health challenges that disproportionately affect developing countries, and are not being solved in other ways.

This statement is hogwash. First of all, there's nothing stopping these companies from profiting greatly in the developed world with these drugs, as they do already. And the idea that they wouldn't, say, invest in India if they could only get $100 per drug rather than $5,000... well, who cares? Considering how much more of these drugs they'd sell at those lower prices, there would still be plenty of profit to go around. Apparently, the folks at the USPTO have never learned a thing about price elasticity. Second, if a big pharma is too stupid to know how to provide drugs (which are relatively cheap to manufacture) at a reasonable cost for a profit, it seems pretty freaking natural that other companies are willing to step in and offer generics. So, really, why should anyone care if, say, Bayer decides to ignore India because it wants $5,000 for pills that others are willing to sell at $120? We're talking about the health and safety of the public, not Bayer.

Weakening patent protection for innovative medicines is not a productive approach to improving availability of health care, because many other factors other than patents more directly affect the availability of medicines.

The proof of the weakness of that argument is that although most medicines on the World Health Organization’s List of Essential Medicines are not protected by patents, their availability in many markets is still limited. This is particularly true in DC/LDCs. Many other factors affect the availability of all medicines, patented or not.

This is a nice bit of sleight of hand, confusing correlation with causation. No one says that a lack of patents means that such drugs are automatically made available in every market. But it takes a truly demented view of the world to take that fact and assume that such drugs would be more widely available if only those non-patented drugs were in fact covered by patent.

From there, the USPTO proposed a study to show how wonderful patents are in getting drugs to poor countries, to "restore balance to the discussion by evaluating the role of patent protection in providing incentives for research and development...." Funny how they were just talking about drugs that were off-patent not being available... but now they ignore that and it's all about new drug development. But, more seriously, I find it absolutely hilarious that the USPTO wants to talk about "restoring balance." This is an organization that has always pushed for "more patents" at pretty much any cost. The whole software industry is facing a massive crisis of gridlocked development over bogus patents. If we're going to start "restoring balance" to the patent system, let's start at home.

This kind of stuff is really sickening, because it's basically the USPTO saying that poor people around the globe should suffer and die if helping them doesn't produce enough profits for big pharmaceutical conglomerates. I don't know how people taking that position can sleep at night.

The more you dig into Google's new copyright transparency reports the more eye-catching info you find. Julian Sanchez, for example, has noticed the rather interesting timing of massive explosions in Hollywood studios using Google's DMCA takedown system for search... in correlation with key elements of the fight to get SOPA passed. For example, there's a really big spike in DMCA takedowns for search the week of November 14th.

Hmmm... what happened that week? Oh, that's right: the House Judiciary Committee hearings about SOPA, where part of the "evidence" for why SOPA was needed was the MPAA's anti-piracy boss Michael O'Leary insisting that doing Google searches on certain movies led you to links to pages where you could download unauthorized copies. He was wrong, actually -- as our own tests showed, they took you to legal versions. But isn't it interesting to see that, for example, the very first search takedown that Lionsgate sent to Google happened on November 15th? Similarly, it's interesting to see that right after the SOPA blackouts made it clear that SOPA was going to die... there's another new "burst" of takedown filings. Twentieth Century Fox appears not to have used the system at all until January 30th of this year -- or a week or so after SOPA was officially declared dead. How about Paramount Pictures, one of the more vocal supporters of SOPA? It filed just one search takedown prior to the whole SOPA debate. But about a month after SOPA was declared dead, suddenly Paramount started using the tool. NBC Universal certainly had been a regular user of the system all along -- but right after SOPA died, its usage clearly trended upwards -- whereas prior to that, its usage looked pretty flat.

In other words, you could certainly make a reasonable case that the studios went to Congress to complain about how they couldn't get rid of search results they don't like from Google... when they hadn't even tried to use the tools available which appear to do the job they wanted.

There certainly may be other factors, but it's possible that the studios had been holding back on using the tools as a way of providing extra "evidence" of a problem that had to be addressed by law. Again, as Sanchez points out:

How about before you break the Internet, you try USING THE F***ING TOOLS YOU ALREADY HAVE?

A reasonable question, but don't expect a reasonable answer.

The UK Publisher's Association seems to be making sure it appears as out of touch and obsolete as possible these days. This is the same group that, a few months ago, announced that fair use would put a "chokehold on innovation" despite the fact that we've got plenty of experience with fair use in the US, and see no such chokehold due to it. The latest is that the Publisher's Association has apparently decided to go on the offensive (and I mean that in multiple ways), attacking all who call for more reasonable copyright laws -- including the British Library -- as defending "tawdry theft":

[PA chief executive Richard Mollet] attacked organisations such as the Open Rights Group, research councils and the British Library, who he said all to varying degrees wish to erode copyright, and the tactics of lobby groups, who have "the temerity to appropriate the language of freedom of expression as a cloak for their tawdry theft". He said it was "a grotesque attempt to draw moral equivalence between stealing someone's work and the struggle for political representation".

That's pretty funny, since it appears that he (and many others on his side) are the ones who are actually "appropriating" language in a ridiculous way -- such as referring to things like the public domain, open access and fair use as "stealing" or "tawdry theft." The thing is, Mollet is coming down on the wrong side of history. People are growing up today with the internet understand the importance of unfettered communication and openness, and they don't buy the mythical story that locking up works is good for anyone. All the Publishers' Association is doing here is guaranteeing that they're seen as obsolete and out of touch for the entire next generation.

But, really, when you stoop so low as to accuse the British Library of supporting theft, you would think that someone, somewhere, would point out to Mollet how ridiculous he looks. However, it does reveal the publisher's true belief: things like libraries are apparently evil copyright abusers. Incredible.

Okay, we had expected the TV networks to possibly take legal action against DISH Networks for its new Auto Hopper technology, which allows DISH subscribers who use the Hopper feature (which records all prime time shows from the four major networks) to autoskip commercials, if they watch shows in the days after they originally air. It wasn't a surprise that the TV networks didn't like this at all, but could they really make a legal argument that skipping commercials was against the law? We've all heard the story of former Turner Broadcasting exec Jamie Kellner claiming that not watching commercials was "theft," but do the networks actually think there's a legal basis for such claims?

It appears they do. Though, the legal arguments are insane.

As you may have heard by now, Fox, CBS and NBC Universal have all sued DISH in California. At about the same time, DISH itself filed for declaratory judgment in New York against those three, and ABC, who hasn't yet filed suit, but perhaps will shortly. I would imagine that all of the cases will be consolidated in one of the courts.

What's scary, however, is that the TV networks appear to be using this lawsuit to claim that skipping commercials is copyright infringement. I haven't yet seen the NBC filing, but the Fox and CBS filings both make this same basic argument. Update: NBC filing is added below, and is nearly identical to the CBS filing, down to the very same lawyers. Fox first argues that merely recording the entire prime time lineup is making "bootleg" copies of the videos. That's a rather stunning claim, and a direct challenge to the Supreme Court's ruling in the Betamax case, which made it clear that time-shifting is legal. The networks are claiming that this is not the same thing, because the "copies" aren't being made by the user, but by DISH itself for use by the user. Beyond being a meaningless distinction, it's also not true. As the Cablevision case concerning a "remote DVR" offered by the service provider showed, if the actions are at the request of the consumer, then it's the consumer making the call. With the DISH offering, the subscriber is still the one pushing the button and asking the DVR to record the shows. Is it really that different that it takes one button rather than punching in a few shows? That would be extraordinary -- but these filings are full of such extraordinary claims.

Where the filings go really off the wall is in basically saying that skipping commercials is infringement. They do this in the sections on "inducement," wherein they suggest that, even if DISH doesn't directly infringe, it is is inducing infringement by offering the auto commercial skip feature to users. From the CBS filing:

Users of the Hopper's PrimeTime AnyTime feature who record Plaintiff's prime-time shows and use the Hopper's Auto Hop feature to automatically skip commercials otherwise contained in those recordings infringe Plaintiffs' exclusive reproduction rights under section 106 of the Copyright Act,

But this makes no sense. Recording the show for later viewing is already deemed legal. So the only difference here is the intent of the user to watch later to skip commercials. Thus, CBS seems to be saying that merely wanting to avoid commercials is, itself, direct copyright infringement. And, given that Auto Hop doesn't work until the day after the shows air, does that mean that it's legal to record the shows if you intend to watch them the same day... but the second your intention is to watch them later, it's copyright infringement? That makes no sense and has absolutely no basis in the law. And, uh, what happens if you record it with the intent to watch the next day and skip commercials... but then watch it the same day with the commercials? The allegation above says merely recording the shows with intent to skip commercials is infringement, even if you don't actually skip the commercials! That makes no sense.

Fox's filing makes similar claims, insisting that DISH is inducing infringement because it "took active steps to encourage its subscribers to use Primetime Anytime to infringe FOX's copyrights." But that's flat out malarkey. It's legal for users to time shift shows. That's established. Yet, these filings seem to want to totally ignore that, and then assume that a user watching a DVR'd s how is automatically infringing on copyright because they might skip commercials.

The argument makes absolutely no sense at all. Effectively, the networks are trying to claim inducement to infringe... but do not (and, indeed, can not) show what or who is actually infringing. Time shifting is legal. Not watching commercials is legal. So, er, where's the copyright infringement, unless you completely throw out the Betamax ruling?

The filings also go down the path of explaining how this disrupts their business model. They honestly seem to be arguing for what some people have amusingly referred to as "felony interference with a business model." They list out all the different ways they get companies and users to pay multiple times for the same content, and use that to suggest this must be illegal, even though DISH has a retransmission license and all the individual parts are legal. I honestly don't understand this argument -- they're just claiming that because they don't like how end users engage with otherwise legal content, it must be illegal. Fox even uses this to claim that DISH's offering is not "enhancing consumer choice." Apparently, in the minds of TV network lawyers, what counts as "consumer choice" is limited to what the TV networks want to count as consumer choice... and any other choices are no choices at all. Or something.

There are a few slight differences in the lawsuits. For example, Fox brings up the fact that DISH also offers the Slingbox to allow users to not just time-shift but also place shift, though fails to explain why that's an issue at all. Fox also includes a breach of contract claim, which also may be difficult to support if all of the other actions prove to be legal.

DISH's declaratory filing gives you a pretty clear sense of that company's argument, pointing out that this is a nice feature that consumers want, that this kind of technology is already widely in use, and that it's not clear how any of this is infringement.

Auto Hop is a more efficient way of achieving what consumers already do with standard DVRs. A 30-second skip feature is already standard on many DVR remote controls. It permits viewers to automatically skip ahead in a recording, at the touch of a button, completely bypassing a typical 30-second television commercial. The remote controls that come with DVRs supplied by Comcast, an NBC affiliate, can be programmed to include this 30-second skip feature. DISH has provided a 30-second skip feature for years. By pressing the 30-second skip button multiple times, a viewer can elect to bypass the full complement of commercials between show segments. Now, DISH allows the customer to opt to use an Auto Hop feature that is just an extension of this 30-second skip function. It avoids the common frustration that occurs when viewers, using the 30-second skip or plain fast-forwarding, overshoot the commercials and fastforward into the television programming content that they really want to watch.

DISH also points out that skipping commercials is not illegal:

DISH's Auto Hop feature promotes consumer autonomy. Viewers have skipped commercials for decades. Viewers commonly use the commercial break as a time to get up and momentarily leave the room. Ever since the advent of the remote control, viewers have changed channels or muted the sound during commercial breaks. And, since the advent of the VCR and DVR, viewers playing back a show have fast-forwarded through commercials. DISH is simply making it easier for viewers to refuse to be a captive audience and to exercise the well-accepted choice to skip a commercial.

I can't see how the networks' argument can stand very much legal scrutiny at all -- but stranger things have happened when copyright cases hit the court. Still, the arguments here are so bizarre, and so unsupportable, you have to believe a judge will reject them quickly.

We just wrote about Google's very cool, new copyright transparency tool, which lets you dig into the details of all the search takedowns that Google gets. As people start to play around with the site, some interesting things are coming to light. Lots of people noticed that the number one copyright holder requesting takedowns from Google search was... Microsoft. While some have suggested this is an attempt by a competitor to worsen Google's search rankings, that's difficult to believe for a variety of reasons. If Microsoft were issuing bogus takedowns, that would certainly come to light pretty quickly.

However, what is interesting is that you can use the new system to play around and notice that Microsoft doesn't always seem to take down from its search engine, Bing, the same links that it orders Google to takedown. As we noted in our original post, there's been plenty of talk suggesting that Google isn't fast enough in taking down things upon DMCA request, but the company claims that they average less than 11 hours -- and considering that they're processing over 1 million takedowns per month (and are checking them by hand), that's pretty impressive. How long does it take Microsoft to take content down?

Well, you would think that if Microsoft is sending a takedown notice to Google to remove a site from its search engine, that it's almost certainly letting Bing know to remove it too, right? Why wouldn't it. But if you do some digging, you can find sites that Microsoft has ordered taken down from Google, but which are still available via Bing. Here's just one example. If you look through Google's transparency report, there's a specific search takedown request that was filed on May 11, so not too long ago. You can see the full ChillingEffects notice here as well. The takedown was sent, on behalf of Microsoft, by a company called Marketly, who appears to send a large number of takedowns, according to the Google data. In this case, Marketly had sent a takedown to Google demanding the removal of a bunch of URLs from its index concerning a variety of XBox 360 games, including DiRT 2. The 20th URL listed goes to a page on TorrentRoom.

Now, if you take that URL and put it into Google and Bing, you get two very different responses. First, there's Google: Okay. As per the takedown, clearly Google has removed that URL from its index. Now how about Microsoft: Whoops! There it is. Now, it seems pretty reasonable to assume that if Marketly is sending a takedown to Google to get such a link taken out of its search engine, on behalf of Microsoft, that it quite likely is issuing the same kind of takedown to Microsoft's Bing (hell, you'd perhaps think that Microsoft could just pull the link without a takedown). And yet... the site, which Microsoft supposedly wants to disappear, is gone from Google, but found easily on Bing.

This would suggest that, either Marketly and Microsoft decide to leave up certain infringing content on Microsoft's own search engine while taking it down from Google... or that Microsoft certainly isn't that fast at doing removals. And yet, why don't we hear the people who always bitch about Google complaining about Microsoft?

Of course, the data is also revealing some other interesting "issues" with Microsoft's takedowns. Kurt Opsahl, for example, noticed that Microsoft sent Google a takedown, you can view here, which claims that previous takedown notices, also from Microsoft, are in fact, infringing. This one was also sent by "Marketly" and suggests that they don't do much research to make sure the sites are legitimately infringing before issuing takedowns.

This is easily one of the best responses to copyfraud I've ever read. Sure, Jay Leno is a pretty easy target for a roast, but musician Brian Kamerer does a brilliant job of taking him to task over a bogus YouTube takedown. I strongly suggest reading the whole thing, but here's the short version of what happened.

A few years ago, Brian helped a friend, who was running for mayor, create an intentionally silly campaign jingle and commercial, which they uploaded to YouTube. Two years later, they heard from another friend that the video had appeared on the Jay Leno Show as part of a segment about local campaign commercials. They just got a kick out of it, and moved on—until now, another three years later. Brian discovered that the YouTube video had been taken down on a copyright claim... by NBC (most likely as the result of a ContentID match as NBC uploaded old episodes into the system). So Leno mines the internet for material to air on his show—without permission or even the courtesy of letting them know—and then, years later, the network claims ownership of that material and accuses the actual creators and copyright holders of infringement. Brian is unimpressed, to say the least—and even supplies a script for how he imagines things went down:

JAY LENO

Hey remember those loser kids, we played their bit once, remember those guys? Let’s get em.

WRITER

What? Who? Why?

JAY LENO

Those guys, we took their video about three years ago and played it, I loved that song, remember?

WRITER

Oh yeah, sure, I remember those guys. So, what is it you want to do to them?

JAY LENO

I want to have the boys at NBC say that we own the video, so that if they try to watch their video on YouTube, they won’t be able to, and it will look like they stole the video, like Carlos Mencia!

WRITER

Or we could just leave those two nice boys alone. After all, you loved that song, remember?

JAY LENO

You’re fired! Secretary! Get me someone who has the balls to frame these two unknown assholes, so that eventually their work will be blocked on YouTube! And I need fifty more classic cars!

He's kidding of course—he knows that's not how it really happened. The real problem is that the system is broken: the law favors the accuser and permits this kind of copyfraud, giving NBC absolutely no incentive to narrowly target its takedown efforts. But Brian, quite reasonably, points out that he's not interested in excuses—everything that happened revolves around the public face of Jay Leno, and he sees no reason that Leno shouldn't bear the blame.

I know you’re reading this going, “Brian, you don’t understand! It’s not me, it’s just some NBC internet robot that scans YouTube videos and then compares the videos to the vast NBC library and just blocks the YouTube videos that match up, because the robot assumes the video has been stolen. Besides, you don’t own anything on YouTube! Don’t be mad at me, funny man Jay Leno! I liked your video! It’s the robot’s fault. The robot fucked up.”

Don’t hide behind NBC on this one, dude. And don’t blame YouTube. And forget about the robots. I’m not talking to the robot now. I’m talking to you, Jay Leno. Where does the buck stop on The Jay Leno Show, if not with Jay Leno himself? The buck stops with you Jay.

As more people fall victim to copyfraud—including this process whereby a TV network launders your copyrights into their own—and tell the story publicly (and entertainingly) as Brian has done, the aggressive entertainment companies are going to have a harder time recruiting stars as mouthpieces for the anti-piracy cause. Increasingly, they are going to see their own artists rebelling against their bogus takedowns and over-enforcement, as some already are. Combine that kind of pressure with transparency efforts like Google's newly available takedown data, and eventually something's got to give—starting with any remaining shred of public respect for copyright law.