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

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

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

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

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

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

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

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

from the not-wise dept

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

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

from the wow dept

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

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Remix Culture Is About The Culture As Much As The Remix

from the killing-culture dept

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

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

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

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

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

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

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

from the first-amendment? dept

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

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

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

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

from the hoarding-mentality dept

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

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

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PayPal Suspends Payments In India?

from the that-seems-rather-big dept

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

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

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

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Italy Blocks The Pirate Bay Yet Again

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

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

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

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

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How Patents Harm Biotech Innovation

from the scaring-people-off dept

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

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

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

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

from the truth-in-advertising dept

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

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

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

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

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

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

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

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

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

from the parody-as-free-speech dept

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

Nigel,

Re: your letter of 4 February 2010 regarding

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

I write to clear up some misconceptions.

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

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

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

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

and her self promoting web page at

http://www.oliviamunn.com/

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

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

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

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

Travis Corcoran, President
Heavy Ink

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Comcast CEO Argues Rules Will Protect Customers In Merger, While Comcast Lawyers Argue Rules Are Unconstitutional

from the how-it-works dept

Earlier, we had a story about NBC Universal boss Jeff Zucker being caught lying in his Congressional testimony on the Comcast/NBC merger. And a bunch of folks have now been sending in the news of Al Franken blatantly calling Comcast boss Brian Roberts for also being less than honest, specifically about the FCC rules to protect consumers:

"In other words, looking to get approval for this merger, you sat there in my office and told me to my face that these rules would protect consumers but your lawyers had just finished arguing in front of the Commission that it would be unconstitutional to apply these rules."

You can see the video here: Of course, this is nothing new for Comcast. It has been playing the same doubletalk game for a while now -- always insisting that it shouldn't be subject to more regulation because the FCC's rules keep it in line... while at the same time fighting the FCC in court and saying that those rules are unconstitutional.

All that said, I have to say that I'm not particularly concerned about Comcast and NBC merging. I'm all for it. If two companies that poorly run are getting together, it's pretty much guaranteed to be a disaster. We've seen this game before, and it was called AOL-Time Warner. While it's difficult to think that anyone could screw up that badly again, if anyone can, it's the folks at NBC Universal.

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Ten Good Reasons To Buy: The Newspaper Edition

from the it-works dept

Recently, Mike posted a concise list of Ten Good Reasons to Buy – one of two essential elements in the Connect with Fans + Reason to Buy strategy that he has been observing and helping to define for some time. These reasons were brainstormed at Midem 2009, so they focus on the music business – but CwF+RtB has potential in all sorts of industries (Techdirt itself employs it).

So, with the New York Times going metered and rejecting a proposed membership model that would have been much more CwF+RtB-ish, I thought it might be worth looking at Mike’s list from the perspective of newspaper publishing. Though some of the ideas are more suited to musicians, it still qualifies as Ten Good Reasons to Buy.

(It should be stated from the outset that I believe advertising will continue to be the primary source of revenue for newspapers, and that I think paywalls and meters are doomed to fail. See my recent post here on Techdirt and my extensive ramblings on good.is for more on why. That being said, if newspapers use CwF+RtB in truly innovative ways, they might just turn the whole industry on its head. Stranger things have happened.)

“1. Access: Access to the actual content creators is a real scarcity and one that can often be used to make money in ways that make fans quite happy.”

Sometimes newspapers do this backwards. When fundraisers and events and the like seek media sponsors, newspapers will request a hosting spot for one of their writers or editors as a condition for the sponsorship. In other words, the content creators buy access to the fans.

This isn't always how it goes though – it depends on the event in question and the profile of the staff. In some cases the newspaper seeks sponsorship for their talent, and throws in event appearances and panel discussions to sweeten the deal. But in all cases, the main purpose of the whole shebang is to sell more subscriptions.

There might be a lot more opportunities here. Why just panels and events? What about workshops, custom reports and analysis, even one-on-one attention? The thing to remember here is that the fans in question, or at least the most profitable ones, are business fans. Businesspeople read newspapers because the information and expertise has direct and immediate value to them. Connect finance writers with traders, legal writers with law firms, tech writers with software developers – with some creativity, there could be money to be made.

I can think of some ideas outside the business sphere too, but I have gone on for too long already and I'm only on Reason #1.

“2. Attention: One of the most important scarcities in the digital age. Attention is incredibly scarce, and if you've got it, you can do a lot with it.”

This one is simple: active, vibrant comment sections where writers, columnists and editors regularly participate. Many newspapers see some of the trash that inevitably turns up in every comment section and go sour on the whole affair, allowing their columnists to shutter their comments when they should be requiring them (and paying them if necessary) to get involved. They will quickly realize that online communities become self-moderating once rational, intelligent debate is established and readers know they have the writers’ attention.

So far this isn't a reason to buy – at least not for the readers themselves. Advertisers are another story. An engaged community of readers is worth a lot more than the impressions they bring to a website – savvy advertisers will want their ideas, not just their eyes. See Techdirt's IT Innovation blog for a prime example of this.

“3. Authenticity: This one also includes ‘trust.’ The ability to be authentic carries tremendous weight and is quite scarce at times. But if you can provide something that is authentic and valuable, it's often a very strong reason to buy.”

Authenticity is what everyone already touts as the strength of newspapers and the reason that people will consent to pay for their content. But newspapers are far from perfect, and in a world where transparency is becoming as important as trust, their reticence about sources and methods is starting to seem old-fashioned. If newspapers continue to resist the linking culture, and continue to leave out details that could easily be added in appendices and footnotes online where space is unlimited, they risk being left behind. Moreover, if big names leak too much talent to more innovative startups, they could quickly lose authenticity (and surely someone will say they've jumped the shark.)

So I guess what I’m saying is: yes, without authenticity none of these other RtBs matter in the slightest – so don’t go sacrificing it now.

“4. Exclusivity: Many people value having something that very few (or perhaps no) others have.”

This is essentially what has allowed the WSJ paywall to succeed where so many others have failed. At the business level, and especially in finance, exclusive information has significant value, and the paywall created a certain sense of exclusivity. Ultimately the flimsiness of that exclusivity could be what brings it down – but what about something truly exclusive? Custom news aggregators for businesses have been showing some success – what about exclusive news aggregators managed by a team of the newspaper's respected editors? That's just one idea of many.

Outside the business world this is a tougher nut to crack. Financial news gets more valuable with exclusivity, but most news is the opposite: a big portion of its value comes from sharing it. Nonetheless, there may be certain forms of exclusivity that avid readers will pay for. It will come down to individual newspapers knowing their strengths and their audiences, and seeing ways to offer them something they want. If anyone has any creative ideas, I'd love to hear them.

“5. (New) Creation: The ability to create something new is a scarcity. This often confuses people, because a digital good once created is no longer scarce -- but the ability to create it is still very much a scarcity.”

Most newspapers understand that gathering information and creating content is what they do, so there's not much to say here. Newspapers that are drastically cutting back reporting staff and ramping up the wire content should remember that, while distributed reporting makes a lot of sense in many situations, every publication needs to continue creating something new that has value, or all is lost.

“6. Tangibility: The granddad of scarcities: physical products.”

News on paper is the core physical product at the moment, but that’s not going to be around forever. I suspect that some newspapers will transform into news magazines, since the market for glossy, full-colour formats with good photography and long-form journalism will likely outlive the market for cheap newsprint broadsheets. A nice physical product has always been important to magazines, and people are willing to pay for it; newspapers are designed to be as cheap and disposable as possible, which is why the internet renders them obsolete. This shift to a magazine format might actually make sense for some newspapers, if they can establish a role for themselves as what Devin Coldewey calls the delayed media.

All that being said, the money from selling the physical product has never carried the weight of newspapers or magazines, and it’s certainly not going to start now.

In terms of other physical products, I don’t see any reason why newspapers couldn't sell more merchandise, though I’m not sure how to go about it in a way that would bring in significant revenue. Lots of newspapers sell things like photo prints and keepsake copies, but so far it hasn’t proven to be that lucrative. On the other hand, those initiatives are often old and mechanical, and some may not have had fresh marketing treatment in years – who knows what they might be overlooking?

And if all else fails, the New York Times can just become an authorized Apple retailer.

“7. Time (saving or making): People will pay if you can save them time (or give them extra time in some manner).”

Time is especially valuable in business. As far as saving time goes, there might be a market for rapid fact-sheets and summarized reports that supplement the newspaper’s core editorial. Though difficult to sell by themselves, if combined with some level of exclusivity this could be a great revenue stream: customized reports, similar to the aggregator model I mentioned earlier. Some business publications do sell reports, but more often than not these are of the annual reference tome variety, a format that today is about as useful as a phone book. If there is money to be made, it will come from more rapid and direct business services.

“8. Convenience: If you make things more convenient, many people will buy, even if free options are available. That's one reason why iTunes has done so well.”

This is what a lot of people in the industry are banking on with the iPad and other tablets, but if they seriously believe the iTunes store will work for newspapers just like it does for music and movies, they are in for a rude awakening. Apple is selling music to people who are used to paying much more for CDs, and they still face stiff competition and had to remove DRM to satisfy their customers. Newspapers have an audience that is accustomed to getting the news for free, sharing it openly on social networks, blogging about it, linking to it and generally enjoying it without restriction. Moreover, while the digital alternatives to iTunes for music and movies are torrents or peer-to-peer programs, the alternatives to iTunes for newspapers will be countless news websites that are equally convenient and which stay free to soak up all the advertising revenue. Very few people, if any, are loyal to a newspaper the way legions of fans are loyal to a favourite recording artist. Convenience is still an important part of delivering the news, but that’s because readers already expect it.

It should be noted separately that the concept of Convenience also ties in with the custom business services I propose under Time and Exclusivity.

“9. Belonging: Never underestimate just how important a sense of belonging to a group or a tribe is – and being able to provide that in an authentic manner can be a true scarcity.”

A sense of belonging stems from the attention I discussed earlier. I talked a lot about comment sections, but those aren't the only form of audience engagement: Twitter is an extremely valuable tool, and I've often wondered if good old fashioned forums might have some potential on news websites.

But I think the real goldmine could be participatory journalism: there are a lot of citizens out there who want to get involved in the reporting process, and the concept is gaining steam, with YouTube and CNN getting on board, among others. So, why aren't there more people out there training citizen journalists? I bet newspapers, especially at the community level, would have an easy time finding groups and clubs that would pay for reporting workshops and seminars. Or they could try something like the PPF Group in the Czech Republic: opening hyperlocal newspaper-cafés where editorial staff will interact with the public (and partnering with Google in the process.)

And yes, I know that's an NYT link. It's ironic on two levels.

“10. Patronage: Definitely depends on the situation, but there are some people who just want to support an artist, no matter what. And that presents a scarcity.”

Out of curiosity I searched “newspaper patronage”, and I found this highly amusing editorial in an 1878 edition of a New Brunswick newspaper from the Google News archives (don't you just hate the way Google is destroying our culture?).

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UK Whistleblowers Highlight The Dangers Of Widespread Police Surveillance/Database

from the that-does-not-look-good dept

We've had numerous stories concerning some rather concerning trends in law enforcement, including the use of things like redlight cameras to increase revenue, not make things safer, as well as the fact that more data can often make it harder for law enforcement to keep people safe. Finally, we've had a bunch of posts on the fact that government databases will almost always be abused.

It looks like all of this is coming together in the UK (way ahead of the US), and the end result is something of a disaster. In the past, we'd already seen widespread expansion of UK camera-surveillance programs, even as there was evidence they weren't working. Add to that, the facts show that the increase in data was causing police to miss important clues, while other police were clearly abusing the system -- and you create quite a volatile situation.

It seems that whistleblowers are beginning to speak up about the end result of all of this in the UK, and it's not pretty at all. Basically, police are regularly abusing database systems to find questionable reasons to arrest people, just to boost either revenue or their own "stats" on arrests:

So fixated had officers become on their pursuit of arrests and ticket quotas that, until recently, the most successful vied for a prize known as the Bang It Out Cup. The officer with fewest results received the booby prize of an Underperforming Pig.

This target culture has allegedly led to unethical practices during roadside stops, according to concerned police sources. Some officers, they say, trawl through drivers' personal data on police databases to find any reason to arrest. Alternatively, they "wind up" motorists who, in their frustration, become abusive and are then arrested for a public-order offence.

"In short, officers do not have a complete understanding of the law, use flawed databases to justify immediate seizures, fail to adequately research and evidence the basis of their belief and almost certainly knowingly seize vehicles just to satisfy service and personal performance targets," one said.

These are the sorts of unintended consequences that people need to be aware of as this sort of surveillance society becomes prevalent elsewhere. Meanwhile, the stories of police trolling through the big database to find reasons to arrest people should (hopefully) quiet those who claim "if you've done nothing wrong, you've got nothing to worry about." If only that were true.

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No, Copyright Has Never Been About Protecting Labor

from the let's-get-rid-of-this-myth dept

Ugh. So, we recently wrote about Matthew Yglesias' quite accurate economic explanation for why the price of music was going to get pushed to zero, no matter what the industry said or what happened with copyright law. Andrew Sullivan spotted it, and also a response from a guy named Sonny Bunch who apparently has decided to totally reinterpret the history of copyright law in a post he entitled Piracy. Is. Stealing.:

No! False! The purpose of intellectual property law has very little to do with Matt Yglesias being able to enjoy a wide variety of new music. The purpose of intellectual property law is to protect the intellectual property created by artists so they are rewarded for their efforts. The purpose of intellectual property law is to punish people who steal that which isn't theirs.

Yes, copyright was created in part because there were concerns that authors wouldn't bother creating new work if they were consistently stolen from, leading to Yglesias's oddly solipsistic reading of intellectual property law. But, more importantly, copyright law evolved because we think that artists, writers, musicians, and others have a right to profit from their labors. It's a crazy idea, I know.

Also, Yglesias's cute little bit about the marginal distribution cost being zero ignores the fact that the production cost of music is far from zero -- leaving aside the artists (who Yglesias clearly doesn't care about being paid for their work), there are studio technicians who mix the music, producers who craft the songs, and all sorts of other people involved with the creation of music. I suppose they shouldn't be paid either? That we should just rob them of their labor too?

First, on the title, let's get serious. Every time someone claims "piracy is stealing" it suddenly becomes that much more difficult to take them seriously, because it shows they've put no thought into their argument and are parroting specious arguments that have nothing to do with reality. Stealing means taking something away. Making a copy of something means there's two such things, not one, and nothing is missing. It's not stealing, and even the Supreme Court knows this:

Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

But that's old hat. What's really problematic is the claim that copyright law was designed to "protect" the creator. False. Copyright law has one purpose and one purpose only: and it's to promote the progress of science and the useful arts. Yes, the method for doing that included some limited protection but only for the sake of promoting the progress. If it is not promoting the progress, then the protection should not be allowed.

But Bunch goes on and makes a "sweat of the brow" argument or the "labor theory" of copyright that has been rejected over and over and over again. Not only has it been rejected, but it has been soundly rejected in clear language -- again, by the Supreme Court:

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme."... It is, rather, "the essence of copyright," ... and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts."

And if the Supreme Court isn't enough for Bunch, how's about Congress:

"The enactment of copyright legislation by Congress under the terms of the Constitution is not based on any natural right that the author has in his writings... but on the grounds that the welfare of the public will be served and progress of science and useful arts will be promoted.... Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given."

Everyone is allowed to have their own opinion on copyright law. But not their own facts.

The next paragraph by Bunch is also wrong and misleading. In talking about basic economics, no one is saying that they don't want people to get paid. If you explained why telephone switching technology was going to make the everyday phone operator obsolete did that mean you didn't want operators to get paid? Of course not. You're just explaining the basic functioning of the market, and what it means. It's got nothing to do with what anyone wants. It's about what's happening.

Furthermore, the claim that any of this means people don't get paid is also pure folly. As we've described in great detail, plenty of business models that don't require copyright are working quite well in the industry.

I'm always quite amazed at people who clearly have no experience with copyright law or the history of copyright law insisting they know all about what it's about.

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USTR Insists Gov't Isn't Keeping ACTA Secret

from the up-is-down,-black-is-white,-you-said-what-now? dept

Stan McCoy, the assistant US trade rep, is apparently the new point man from the USTR office on jaw-dropping political doublespeak about ACTA. You may recall a few days back when McCoy insisted that there was a lot of misrepresentations about ACTA, but failed to clarify any of them. Instead, he started talking about the dangers associated with counterfeiting (something no one denies) and then simply wrapped copyright infringement into that -- even though copyright infringement and counterfeiting are entirely different. Now, McCoy has gone even further. Jamie Love points us to a letter he sent the Financial Times, where McCoy insists that there is great openness about ACTA. He kicks off with another bogus attempt to blur the lines between counterfeiting and copyright:

Intellectual property protection is critical to jobs and exports that depend on innovation and creativity. Trade in counterfeit and pirated products undermines those jobs and exports, exposes consumers to dangerous knock-offs from toothpaste to car parts, and helps fund organised crime.

See the switcharoo in the middle there? He starts of talking about intellectual property... but then in the middle lumps counterfeiting and infringing (which he falsely calls "piracy" even though he's not talking about what's happening off the Somalia coast) together, and then at the end he's really only talking about counterfeiting, but to the untrained observer, they still think he's talking about copyright infringement. That's political bullshitting. And I won't even get into the evidence that raises serious questions about whether his first sentence is true at all, but will mention there's a lot of data that suggests IP actually limits jobs and slows down innovation and creativity. But, at this point, I think McCoy has already established that the USTR is not a fact-based organization.

The ACTA negotiations are one of many international efforts to fight counterfeiting and piracy -- not to "transform" already strong US and European Union copyright laws. Far from keeping them secret, governments participating in these negotiations have sought public comments, released a summary of issues under discussion, and enhanced public engagement.

Okay. Pick your jaws up off the floor. That last sentence is so ridiculous and so false; it's amazing he thought that he could get away with it. Exactly which governments have "sought public comments" on ACTA? The answer? None. Why? Because no government has yet revealed what ACTA is officially. Hell, in the most recent ACTA negotiations, held in Mexico, the government wanted to force the public to sign NDAs just to attend a public meeting, and then had industry representatives mocking public concerns and demanding that a blogger leave the proceedings for live Tweeting the meetings. Yes, "sought public comments" indeed. Does he think that if he says day is night people just believe him? And the idea that the government is "far from keeping [ACTA] secret" is pure hogwash. A comparison of ACTA secrecy to similar negotiations suggest that ACTA is being kept exceptionally secret.

Furthermore, if the laws are already strong, then what's the point of ACTA?

Among other things, the summary states clearly that "ACTA is not intended to interfere with a signatory's ability to respect its citizens' fundamental rights and civil liberties".

Oh, well, if the summary states it, then why didn't you say so in the first place? Obviously there's nothing to worry about at all. Except... it doesn't appear that the actual documents follow what the summary says. Of course, we've only seen the "leaked" documents, but they certainly suggest plans to interfere with fundamental rights and civil liberties on a pretty widespread basis. Supporters of ACTA even talk about "dragging countries in the 21st century" by forcing on them DMCA-type laws and requiring secondary liability that flat out violates basic fundamental rights. The fact that the "summary" says so isn't convincing, Mr. McCoy. It just highlights that you're hiding what the document actually says.

So, come on, Mr. McCoy. Stop treating concerned citizens like we're idiots and maybe respond to the actual concerns of citizens around the world.

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Springsteen Pissed At ASCAP For Implying He Instigated Lawsuit Against Pub; Demands His Name Removed

from the nice-one,-ASCAP dept

The antics of ASCAP get sadder and sadder with each month. In just the last year alone, the group has claimed that embedding videos from YouTube requires a performance license despite the fact that YouTube already pays them. It's also claimed that ringtones are a public performance as are the 30 second preview clips you hear on iTunes (yes, seriously, they want to be paid for those too). And, of course, every time we post about ASCAP we get people saying that we shouldn't pick on them because they represent the actual songwriters, unlike the RIAA. But the truth is that ASCAP rarely has the best interests of songwriters in mind, especially smaller ones who often get hurt by the way ASCAP determines payouts.

And now it seems that even some of the big acts are getting quite pissed off at ASCAP. One of the key things that ASCAP has done for years, of course, is threaten venues for not paying a license to have music playing in the background. The end result actually harms many artists because venues stop playing music completely and shut down things like open mic nights, which are so critical for many up-and-coming musicians.

Every so often ASCAP goes to the point of suing, and in its latest lawsuit against Connolly's Pub in midtown Manhattan (actually a pretty good place), it named Bruce Springsteen as a plaintiff in the lawsuit, suggesting Springsteen was ripped off. That resulted in headlines, like the one from The Daily News pointing out that Springsteen himself was suing the pub. Of course, it was actually ASCAP, but the whole mess has The Boss so pissed off that he put out a statement slamming ASCAP and saying he wants nothing to do with the lawsuit and ASCAP never should have filed it in the first place:

ASCAP was solely responsible for naming Bruce Springsteen as a plaintiff in the lawsuit. Bruce Springsteen had no knowledge of this lawsuit, was not asked if he would participate as a named plaintiff, and would not have agreed to do so if he had been asked. Upon learning of this lawsuit this morning, Bruce Springsteen's representatives demanded the immediate removal of his name from the lawsuit.

Yup, that ASCAP. All about helping the artists and creators, right? Except when they smear their name in lawsuits they want nothing to be a part of...

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Microsoft Exec Calls For 'Driver's License For The Internet'

from the what-a-bad,-bad-idea dept

It's been nearly ten years since we first heard the idea that there should be some sort of driver's license for the internet, and it's no less ridiculous a concept now than it was then. However, it's still brought up every now and then. The latest, as sent in by Marcus Carab is that Microsoft's chief research and strategy officer, Craig Mundie, is suggesting an internet driver's license and a special WHO for the internet, as a method of fighting back against bad actors online:

Mundie and other experts have said there is a growing need to police the internet to clampdown on fraud, espionage and the spread of viruses.

"People don't understand the scale of criminal activity on the internet. Whether criminal, individual or nation states, the community is growing more sophisticated," the Microsoft executive said.

"We need a kind of World Health Organization for the Internet," he said.

"When there is a pandemic, it organizes the quarantine of cases. We are not allowed to organize the systematic quarantine of machines that are compromised."

He also called for a "driver's license" for internet users.

"If you want to drive a car you have to have a license to say that you are capable of driving a car, the car has to pass a test to say it is fit to drive and you have to have insurance."

These are the kind of ideas people have when they haven't bothered to think through the consequences of what they're saying. It's unlikely any kind of WHO would be particularly effective. We already have various security companies that have a strong profit motive to do the same thing, and they're failing (miserably). Setting up some sort of government agency to do the same thing? That sounds like a bureaucratic mess.

And an internet driver's license is even more ridiculous. Unlike a car, the internet is something that people have to use all the time. No driver's license is going to stop people from getting suckered by scammers. Sure, more education could be helpful, but any sort of requirement that they need to pass a test won't stop people from getting on the internet and doing something stupid. If anything, it will give people a false sense of security online. Yes, there are issues with scammers online, but we're not going to fix them with some bureaucracy and forcing people to take a proficiency test.

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