One of the most important pieces of research to emerge last year was "Media Piracy in Emerging Economies". A central theme was that much unauthorized copying around the world is driven by attempts to impose Western-level prices everywhere, resulting in media goods that are simply beyond the reach of most people in countries whose economies are still developing.

Here's an interesting story from Costa Rica, where the same effects are playing out in education:

Thousands of students participated in a march in San José on Tuesday, October 9, 2012, protesting for their right to photocopy textbooks for educational purposes. The unrest was caused by President Chinchilla vetoing Bill 17342 (known as the 'Photocopying Law') which seeks to amend Law No 8039 on Procedures for Enforcement of Intellectual Property Rights, on the grounds that it removes protection of the work and intellectual property in the artistic, literary and technological areas.

As the article on infojustice.org notes, that veto was prompted at least in part by lobbying from publishers who charge unrealistically high prices for their textbooks, which then drives students to use photocopies instead.

It's interesting that large numbers of Costa Rican students felt strongly enough about this issue to take to the streets -- rather as thousands of their contemporaries did in Europe over ACTA earlier this year. That's evidence that this isn't simply a case of people wanting to get "something for nothing", as copyright apologists might try to frame it. Rather, this is about a group who depend on unauthorized copies in order to gain access to knowledge that is vital for their studies, but which is otherwise unaffordable thanks to monopoly pricing.

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It would appear that crowdsourcing concerts is suddenly becoming quite popular. Just as we wrote about Andrew Bird crowdsourcing his new South American tour via Songkick, someone points out that Jonathan Coulton (who has experimented with crowdsourcing shows in the past using Eventful), just announced a similar effort via a new ticketing site called BringTheGig. BringTheGig has a slightly different feature set, which is also interesting. The first group of people to pledge to bring a concert to the area (providing enough support to make the show happen) can actually then get their money back if the show itself turns out to be really big. So, this gives incentives for fans to sign up early and to tell all their friends about it.

Here’s how it works. There are 40 funder slots available – basically 40 tickets that go on sale in advance of the rest of them. After two weeks (or sooner), these slots will theoretically be filled, and the rest of the tickets will go on sale. If you are one of these first 40 people, you get your money back if we get more than 160 people to come to the show.

It’s a pretty cool idea I think: get a core of fans to cover what you need to make the show happen, and then incentivize those to spread the word

There are other similar sites, like GigFunder, and Eventful's "Demand It!" feature is still around as well. Songkick's Detour platform also has similar incentives, but through a very different mechanism. Given all this activity, I'm hopeful that we'll start seeing more innovative ways to make live shows more efficient and effective, while also creating new ways for artists to connect with fans and to help fans spread the word about their favorite artists. It seems like a real opportunity that is only just now being explored more deeply.

Robots are moving towards taking over more tasks that are boring and/or unpleasant for people to do. Some folks are concerned that robots will replace too many human jobs, but it'll take some time before robots are cheap enough to really replace a lot of people. Still, it really is just a matter of time before robot costs come down, so we'd better start preparing for the inevitable. Here are just a few robot projects that are trying to play nice with us.

• Baxter is a 6-foot tall, 300-lb robot that is easy to program, costs about $22,000, is designed to work safely next to humans by moving slowly and gently, and could help bring back manufacturing to countries with high standards of living. Unlike other manufacturing robots, Baxter doesn't have to be put in a protective cage and can self-adapt to small changes in its work environment. [url]
• The Last Moment Robot is designed to comfort dying hospital patients -- but it's just an art project for now and not an actual prototype for practical use. Other therapeutic robots have been used in nursing homes, but these comforting robots sound a bit more creepy than calming. At least they're trying, though. [url]
• Would you trust a three-armed robotic barber to shave your head? One guy had his head shaved for charity by a remote-controlled mechanical barber, and he lived to tell the tale. He also looked very nervous during the procedure. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

All day tomorrow, Wednesday, October 24, a bunch of people heavily involved in internet freedom causes -- from the SOPA fight to the Declaration for Internet Freedom to work around cybersecurity and the fight against ACTA/TPP are all teaming up for a giant Reddit AMA (Ask Me Anything -- or, basically, a big Q&A session). I'm included as one of the folks taking part, but there are plenty of much more interesting people involved, including Alexis Ohanian (Reddit, HipMunk, Breadpig), Ben Huh (Cheezburger), Michael Geist (Canadian copyright expert), along with people from EFF, Public Knowledge, Public Citizen, Open Media, ACLU and a bunch of others as well. It's basically going to go all day, starting from 9am ET. So stop by, ask some questions, and talk about internet freedom... Update: The link to the AMA.

We've been covering the absolutely ridiculous lawsuit of educational software firm Jenzabar against documentary filmmakers Long Bow for a few years now. The short version is that Long Bow made a documentary about some of the activists from the Tiananmen Square uprising, that was somewhat critical of them -- including a protest organizer named Ling Chai. Chai later moved to the US and founded an educational software company called Jenzabar. She has regularly played up her history as a Tiananmen Square organizer in getting PR for the company. The filmmakers called into question some of her actions back during the protests, and also set up a webpage, associated with the movie, critical of Chai. Chai sued for defamation -- which was quickly thrown out. However, she also had Jenzabar sue for trademark infringement, because the page about her on Long Bow's site mentioned Jenzabar in the title and in the meta tags.

The case has gone on for over 3 years now, with an initial ruling against Jenzabar, saying that there was no trademark issue because there was no likelihood of confusion. Jenzabar, however, continued to pour money into the case, appealing the ruling, and claiming that they should still win based on the obsolete theory of initial interest confusion, which suggests there can be trademark infringement even if someone is only misled initially, and quickly realizes the situation. In this case, Jenzabar argued -- somewhat ridiculously -- that initial interest confusion might apply to someone doing a Google search on Jenzabar, and then go to the Long Bow page, believing that it was associated with the company, only to discover, upon loading, that it was not. If such a theory were valid, it would be a huge tool for trademark bullies to take down all sorts of critical commentary about their companies or products.

Thankfully, the appeals court has now affirmed the initial ruling, saying that there is no trademark infringement issue here at all. Unfortunately, it chose to do so somewhat narrowly, lending credence to some of the troubling theories raised by Jenzabar. That is, rather than just recognizing that this case is a clear attempt to abuse trademark law to stifle critical speech, the court decided to go through a full "five factors" test to determine if something is trademark infringement via initial interest confusion.

There are serious problems with the court going this route. The folks over at the Digital Media Law Project (who filed an amicus brief in the case) have highlighted some of the concerns:

But by choosing to approach the trademark infringement question in the way that it did, the court perpetuated certain problems that we flagged in our brief. Applying the standard infringement factors to critical speech forces to the court to come to some awkward conclusions about how the factors should apply, and leaves open some potentially odd results in future cases. This analytic tension in applying a likelihood of confusion analysis to critical speech permeates the majority’s analysis. Some highlights follow below:

Similarity of the parties' goods: This is a classic factor in trademark infringement analysis, and when applied to two market rivals using similar marks to sell their goods it makes a great deal of sense: the more similar the goods are, the more likely a consumer may be confused looking at those goods. But here the application makes no sense whatsoever.

The court here notes (quite correctly) that Jenzabar sells educational software systems and Long Bow makes documentary films. Those two fields are unrelated, and thus the court held that this factor favors Long Bow. That is convenient for Long Bow, but in this context it is irrelevant. Consumers looking at critical speech are not any more likely to be confused as to the origin of the speech because it comes from a market competitor. To hold this as relevant is to say that Reed Elsevier or the New York Times would be more successful in attacking critical speech on trademark grounds, because those publishing criticism usually do so at media and publishing companies.

Paul Levy, from Public Citizen, who represented Long Bow in the case, raises a few other concerns about the ruling, including that this decision to go through the detailed factors test will allow trademark bullies and others pursuing SLAPP-type litigation to increase the time and expense for those they are suing -- a clear concern for Long Bow in this case:

Long Bow Group burned though more than $250,000 in legal fees on preliminary motions and discovery, and veered close to bankruptcy before it found public interest lawyers who were willing to assume responsibility for the litigation; the Appeals Court upheld summary judgment after a review of a joint appendix more than 2700 pages long. Unlike other recent decisions that dismissed claims of “initial interest confusion” out of hand, such as because the Internet critic was not benefitting financially, or because “momentary confusion [is] dispelled the moment the Internet user reaches [underlying] site,” the Appeals Court conducted a lengthy analysis of the summary judgment record to reach that conclusion. To be sure, many of the undisputed facts on which the court relied are likely to be found in most cases where a critic’s page about a trademark holder has appeared prominently in the search results. In the end, the only evidence Jenzabar had was the search result itself, and the Appeals Court properly ruled that this is simply not enough to avoid summary judgment. Yet if avoidance of a trial depends on a painstaking analysis of a detailed summary judgment record—and if future abusive trademark litigants can avoid early summary judgment by arguing that they hope to compile a better record through extensive (and expensive) discovery—there will be many Internet critics who will find the cost of a legal defense too great a barrier to continued exercise of their free speech rights.

This is a huge concern. Levy also notes that, if Jenzabar appeals (and all indications are that it will do so), he will seek to get the higher court to affirm on the grounds that "the theory of initial interest confusion is itself a bankrupt doctrine."

Levy raises one other problem with the ruling. We had talked about how Jenzabar had found an "expert witness" who argued that Google relied on keyword metatags to determine search rankings, in an effort to prove that Long Bow's use of "jenzabar" in its metatags impacted Google results. There was, however, a big problem with this claim: Google has stated publicly for years that it does not use keyword metatags. When this was pointed out, Jenzabar insisted that public statements from Google employees to this point were hearsay. Unfortunately, the court still seemed willing to entertain the testimony:

Another aspect of the decision that may take litigation in this area a step backward is the apparent acceptance of a confusing expert’s affidavit as being sufficient to create an issue about whether inclusion of a trademark in a keyword meta tag can raise the search ranking of a page containing that meta tag.  The Appeals Court acknowledged official statements by Google, cited by the Ninth Circuit and the McCarthy treatise, to the effect that search engines no longer take account of the keyword meta tag, but if a wealthy litigant can avoid summary judgment by hiring an expert witness who is willing to say whatever he needs to say to get paid (and we thought that the expert very carefully tiptoed around the issue of the impact of keyword meta tags, rather than addressing them directly), the social utility of the truth as a bar to litigation is substantially reduced.

In the end, while it's clearly a good thing that the summary judgment against Jenzabar was upheld, there are some problems with the ruling. Given the expectation that the case will be appealed, hopefully the Supreme Judicial Court will correct some of these flaws.

The Aereo copyright fight continues. As you may recall, Aereo is a startup that is trying to let people stream free over-the-air broadcasting over the internet. To stay within the framework of copyright law, they've set up the most inefficient system possible, in which each subscriber gets his or her own antenna, connected to a streaming device. From a technical standpoint, this is insane. But, from the legal standpoint, it's required. Aereo won the first round, as the district court refused to grant an injunction. That fight quickly jumped to the appeals court, where Aereo has filed its main brief, which basically says "Cablevison, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision, Cablevision..."

If you don't follow this stuff closely, a few years back, there was a ruling in the same appeals court, that found that Cablevision's remote DVR system was basically legal. As we noted at the time, it was the right decision, though for ridiculously convoluted reasons, which really showed just how ill-prepared copyright law is for modern technology and innovation. That ruling, however, is a key one that Aereo is relying on to argue that its remote streaming system is legal. So its 90+ page filing is basically page after page of Aereo trying to explain why it's just like Cablevision.

For the most part, I find its arguments compelling -- as they also clearly highlight how the broadcasters are basically looking to have a veto on innovations they don't like, and why that doesn't serve the public interest. They highlight that the broadcasters argument seems to be that copyright law is designed to protect them, rather than the public interest. Aereo points out that they're mistaken in this claim.

While Appellants imply that the sole purpose of the Copyright Act is to protect content owners, the Act was instead intended to strike the proper balance between copyright owners, on the one hand, and public access to information on the other.... Congress expressly and deliberately exempted “private” performances from copyright protection. Further, consumers have a right of access to local over-the-air broadcast television. There is no basis in law to confine that use to a home-based antenna or equipment, to fully time-shifted copies (whether on VCR, DVR, or RS-DVR), or to only non-Internet related deployment. Indeed, contrary to what may be the view of certain Appellants and amici, copyright laws were never intended to be used to confine consumers to outdated technology. The reality is that the networks fought VCRs, and they fought remote DVRs, and they lost in both cases. This is simply another attempt to preserve the status quo as a business matter without regard to fundamental copyright principles.

There is, also, a somewhat amusing response to the claims made by the broadcasters that Aereo should be found guilty for doing everything possible to avail itself of the specifics in the Cablevision case. They argue -- as we've seen some commenters on our posts argue -- that Aereo's specific technical decisions show that it was somehow intending to avoid the spirit of the law... by complying with the letter of it. Basically, they're complaining that Aereo may be jumping through a legal loophole they hadn't noticed. However, as Aereo points out, this argument really should work in Aereo's own favor, as the networks are basically admitting, flat out, that Aereo was doing everything it possibly could to live within the confines of the law:

Finally, both Appellants and amici argue that the Aereo technology is an “artifice” or some clever attempt to get around copyright law. Essentially, Appellants are arguing that Aereo carefully designed its system to comply with Cablevision. There is considerable irony in Appellants’ suggestion that Aereo is somehow culpable because it carefully designed its system to comply with copyright law.

Of course, it's interesting to note that one of the amici briefs on the other side came from Cablevision itself. This is a pretty cynical and obnoxious move from Cablevision. Having already won its legal fight that made the remote DVR legal, it knows that Aereo is actually potentially competitive. So rather than cheering another innovator on, following down the road it paved, Cablevision cynically jumps in to protect its turf and pretend that the ruling it fought so hard for doesn't apply to Aereo. I've included Cablevision's ridiculous brief below as well, in which it argues that it has a "direct interest in the proper interpretation" of the decision in its own case. That's hogwash. Cablevision's position here is solely to abuse copyright law and an important decision on its own behalf to now crush a competitor.

Oh, and in checking in on the docket on the case, I should mention that the silly amicus brief we talked about from former Register of Copyrights, Ralph Oman, in which he argued that new technologies should be illegal until Congress gives explicit approval, was amusingly rejected by the court for failing to comply with filing requirements. The court noted that it had given Oman "due notice" and he had not fixed the problems with his filing. However, after this rejection, he was able to refile yesterday...

Either way, this case really seems to be bringing out the crazy, crazy anti-innovation, anti-competition arguments from the pro-copyright crowd.

We've expressed concerns in the past about the crappy job that the USPTO does in approving patents, when it's clear that, the majority of times that the USPTO is asked to go back and double check its work, it is forced to admit it was wrong. This happens quite frequently in high profile patents used in lawsuits as well. And while some judges are willing to wait for the USPTO to admit its errors, too often the courts just rush through, assuming that the patent must be perfectly valid. Given all that, it's worth noting that the USPTO has now issued a non-final rejection of all claims in Apple's infamously ridiculous "rubberbanding" patent, over the ability for a page to "bounce back" if you scroll to the edge. The key claim in the patent was rejected for failing both standards for patentability. That is, the court found it to be both obvious and not new. Of course, if they had asked anyone who knew anything about programming, they could have told you that ages ago.

It is important, of course, to note that this is a "non-final" rejection -- and even "final rejections" often are not really "final." Apple can, and will, go back to the USPTO and plead its case, and it's not uncommon for "non-final" rejections to go back in the other direction eventually. Of course, all that really does show is how arbitrary and silly the patent system is, in which we award many millions of dollars to patent holders based on the whims of a small group of patent examiners who can't keep their story straight. Either way, this patent was one of the ones that the jury had ruled Samsung infringed upon, so the judge in the case may need to revisit that part of the ruling.

Back in April, we wrote about how the Obama administration, for the astounding sixth time, had used the Espionage Act -- which is supposed to be used against spies -- to bring criminal charges against a former government employee-turned-whistleblower. All other Presidents prior to Obama put together had used the Espionage Act in this manner three times. Yes, the Obama administration has doubled all previous such uses. Last year, lots of attention was paid to the case of Thomas Drake, which ended in a weak plea bargain, after much of the government's case fell apart. This year, the attention was on this latest case, against former CIA agent, John Kiriakou, who blew the whistle on how the CIA tortured people via waterboarding.

In a sane society, such whistleblowing would receive a hero's welcome, and the people involved in torture would be in jail. President Obama has said that waterboarding is torture, as has Attorney General Eric Holder, who runs the DOJ. Given that, combined with Obama's repeated insistence that his administration must encourage whistleblowing, you would think that the administration, led by the DOJ, would celebrate a CIA agent who exposes such practices, and seek to punish those who carried them out.

Instead, we have the reverse. This morning, Kiriakou plead guilty, though to a much lesser charge -- that of "revealing an undercover operative's identity." Similar to the Drake case, they found narrow grounds for a guilty plea. The plea document and the associated "statement of facts" are embedded below for your horror. They tell... uh... a very one-sided view of the story, leaving out all the pesky little details about torture. Kiriakou was more or less forced into taking the deal after a judge had ridiculously ruled that you didn't have to intend to harm the US to be guilty under the Espionage Act. How is it possibly espionage against a country if you don't intend to harm that country?

The whole proceeding (and all of these other cases) have seriously called into question the Obama administration's supposed support of whistleblowers. It's clear that was a horrible joke played on the public when Obama insisted he wanted to encourage whistleblowing. Before these latest events, Bloomberg had an absolutely scathing story and editorial about the administrations abuse of power under the Espionage Act to beat down any whistleblowers.

As the Government Accountability Project notes, the tragedy in all of this is that Kiriakou goes to jail, while the actual torturer, remains free. They note that this plea lets the case be over, and makes sure that Kiriakou will be out of jail in 2.5 years -- and will get to see his children grow up. But the whole claim of "outing" is ridiculous:

"Outing" is quotes because the charge is not that Kiriakou's actions resulted in a public disclosure of the name, but that through a Kevin Bacon-style chain of causation, GITMO torture victims learned the name of one of their possible torturers. Regardless, how does outing a torturer hurt the national security of the U.S.? It's like arguing that outing a Nazi guarding a concentration camp would hurt the national security of Germany.

They further note that the CIA agent "outed," Thomas Fletcher, was widely known to reporters well before Kiriakou mentioned his name to reporters. As GAP notes:

An effectively-forced plea from John Kiriakou will be the tragic bookend to the torture narrative: Kiriakou will be going to jail, while Fletcher happily enjoys retirement in Vienna VA, safe with protection from "the most transparent administration in history."

Oh, and not just that, but:

The only person to be criminal prosecuted, and now likely jailed, as a result of the Bush-era torture regime is John Kiriakou, who refused to participate in torture, helped expose the program, and said on national television that torture was wrong.

Shameful. Oh, and as an aside to folks here who have spent time following the Megaupload case, the guy who headed up this case for the DOJ, Neil MacBride... is the same guy who's heading up the Megaupload prosecution.

We've been documenting a rather troubling trend in the UK of criminalizing comments that are insulting or in bad taste. Thankfully, some people are speaking out against such things, including comedian Rowan Atkinson -- best-known internationally as Mr. Bean, but famous in the UK for characters (especially Edmund Blackadder) built on caustic wit and elaborate insults. Atkinson has stepped up and argued for the freedom to insult each other in the UK.

He criticised the "new intolerance" as he called for part of it the Public Order Act to be repealed, saying it was having a "chilling effect on free expression and free protest".

Mr Atkinson said: "The clear problem of the outlawing of insult is that too many things can be interpreted as such. Criticism, ridicule, sarcasm, merely stating an alternative point of view to the orthodoxy, can be interpreted as insult."

These statements came as part of a campaign to roll back laws that have allowed this to happen, with a former government official, David Davis, pointing out the key thing -- you have no right not to be offended:

"The simple truth is that in a free society, there is no right not to be offended. For centuries, freedom of speech has been a vital part of British life, and repealing this law will reinstate that right."

There's been plenty of talk about software patents, and tons of discussions from people suggesting that perhaps the "solution" to problems with the patent system are to simply carve out software (and business method) patents, and make those unpatentable. There are plenty of reasonable arguments for why "software" should not be patentable (I tend to find the arguments that you can't patent math, and that software is really math, the most compelling). However, I'd like to argue that while software patents are a large part of the problem, focusing solely on carving out software patents does not address the real problems of the patent system -- and, in fact, could serve to paper over the real problem by solving for a "symptom" (i.e., an awful lot of "software" patent trolling cases).

I do think that the problems with patents may appear to be more pronounced with software, in part because today's software patents really are broadly claiming functions, when they're supposed to be claiming specific methods. Also, given the fact that most people in the software world didn't even believe you could really patent software (until the State Street case), it meant you had very few "software" patents on the books for common things. This allowed people to get patents on things and claim, incorrectly, that there was no prior art, even if these things had been done for years. Add all of this together and you have the perfect recipe for a lot of trolling.

However, there are reasons to be worried that patent trolling is likely to increase on the hardware side as well. And, if we're serious about fixing the patent system, focusing solely on software patents is a dangerous path. It's a way to fight the symptoms, not the disease -- and, in doing so, it would allow policymakers to claim that they had fixed the problem, leaving significant problems in the underlying system in place.

We recently noted that economics Nobel Prize winner, Eric Maskin, told the NY Times that in industries that have "highly sequential innovation," that it "may be better for society to scrap patents altogether." And that applies increasingly to hardware inventions as well. While, traditionally, hardware inventions involved significantly more R&D and capital expenditure to make them possible, that's less and less the case today. Hardware production is becoming increasingly lean as well. There are a growing number of fabrication facilities that will help you make pretty much whatever you want, and prices are getting more reasonable while speed and quality are improving. Combine that with the rise of 3D printing and many (though certainly not all) types of hardware projects can become "lean" like a typical software company's projects.

Add to that one other key component: the rise of crowdfunding. One thing that we've noticed about patent trolling in the software field is that the lawsuits seems to come right after your company gets a lot of attention. And... there's been an influx of high profile "hardware startups" that have made their debut via things like Kickstarter. Many of the most successful crowdfunding projects have come from design/hardware firms -- opening them up to accusations by trolls. And, just like software startups who ignore trying to patent their own work, these design/hardware firms often do the same.

In a recent interview on Jerry Brito's Surprisingly Free podcast, Dan Provost, the guy behind two very successful design/hardware Kickstarter campaigns, talks about why his "accidental" startup didn't bother to file for patents, noting that it was just too expensive and the benefit of a patent on their products was minimal. At the same time, however, he did admit that they had already seen copycats of their two key products (the Glif iPhone mounting system and the Cosmonaut tablet stylus -- which I have and use all the time), but that it hadn't really impacted their business. I'd actually argue that Provost downplays some of the reasoning here. People who bought into Studio Neat's successful Kickstarter projects didn't just do so because they wanted to get the products in question (though that is a part of it), but also because they wanted to support Dan and his partner, Tom Gerhardt, in coming up with more awesome design products. When you see a copycat to a product you support via crowdfunding, people seem to rally around the original, rather than rush to the copycat.

It seems like basic social mores support the originator, rather than the pure copycat.

But that won't stop patent trolls from entering the space, and looking for "weapons" that they can use to effectively set up a patent tax on hardware innovations as well. Especially as we see more of these kinds of lean hardware startups, it seems inevitable that patent trolls will increasingly enter the space with broad patents designed to let lawyers cash in on the success of true innovators. So instead of just papering over the problems by carving out "software patents," how about we look closely at the real problems with the patent system and look to come up with real solutions that apply across the board. That means things like an independent invention defense, a better system for determining obviousness, actually getting input from those skilled in the art and (finally) stop all patent appeals cases from going through a single court that is subject to judicial capture by the patent bar.

Otherwise, we're just going to have to go back in a few years and deal with another bunch of patent trolling problems in hardware as well.

Contrary to what you may have been hearing lately, Trent Reznor still thinks there's a big future in "do it yourself" efforts for musicians these days (and he expects to do it again at some point). And, no, he doesn't think that bands need a label. Nor did he go back to a major label because they wrote some huge check. It appears that there have been a lot of bogus stories floating around in response to the news that Trent Reznor signed a "major label" deal with Columbia Records (part of Sony Music) for his new band, How To Destroy Angels. As we pointed out at the time, there's nothing wrong with signing a major label deal, if you know what you're doing, why you're doing it -- and especially if you have some leverage. We fully expected that Reznor, given his earlier statements about the major labels, went into this situation with eyes wide open.

And, indeed, Reznor has now shared (exclusively, with Techdirt) that this is exactly the situation.

Last week, there was some press coverage over some comments that Reznor made, in an interview with David Byrne, that some have interpreted to mean that he felt you needed a major label to be successful today.

Seeing that story spread, Trent Reznor and his manager, Jim Guerinot, asked if I'd be interested in hearing the full story, rather than the "latest scandal" version. Reznor, Guerinot and I had a very long conversation late last week covering a variety of topics, which would be impossible to cover in a single post, but let's get to the highlights. First off, as expected, Reznor's deal is not the same sort of record deal a nobody off the street would sign these days. Guerinot made that clear:

It's a licensing arrangement. The deal that Trent is able to do at this stage of the game is different than what he would have been able to do at 19 years old coming into his first arrangement.... There are always different levels of accommodation and leverage that you're able to do. For Trent, fortunately, at this stage of the game, he's able to license it and continue to own his masters... and, really, that's the most relevant thing about the deal.

Guerinot went on to talk about how the real crime of most major label deals (and even some indie deals) is that the artists never get their masters back. They knew that any deal Reznor made would include him retaining the masters:

The toughest thing is when an artist takes an advance, pays back the advance, and doesn't own his masters. That's always been -- and I've argued this with my friends who run major labels -- that is the single greatest difficulty and why so many artists don't trust labels. At the end of the day, artists have paid 50% of every video that gets made -- it's recouped against an artist account. But they didn't benefit from the YouTube deal. They didn't benefit from the creation of Vevo, despite the fact that it's their money that went to creating that.

This was not a "typical" deal. So why do this particular deal? A few key reasons -- some of which (perhaps ironically) came about because of his previous success. Reznor pointed out that he has a huge fan base... for Nine Inch Nails. He was worried that those fans are the only ones who would pay attention -- and that they'd not necessarily appreciate How to Destroy Angels or (worse!) think that it's "just a side project with my wife." He specifically worried that NIN fans would say "this isn't what we want to hear," and that would then limit their ability to reach a wider audience. However, he thinks that HTDA is amazing and deserves to reach an audience way beyond his existing fans. In the end, it came down to figuring out what the band's goals were and they decided that they wanted to aim big, and try to reach as many fans as possible. And they weren't convinced they could do that on their own. Reznor explains:

The main reason I do what I do is I want to do something that matters. I want to be able to create art that reaches the maximum amount of people on my terms.... That was a key component... That was why we wound up considering, and ultimately going with, a label, and not just a label, but a major label, for How to Destroy Angels. Because it came down to us -- us being the band now -- sitting around and identifying what our goals were. And the top priority wasn't to make money. It was to try to reach the most amount of people, and try to reach the most amount of people effectively, that doesn't feel like it's coming completely from my backyard. Because I don't want this project, ultimately, to just be dismissed as "side project" or... (*loud sigh*) "patronizing affair with Trent and his wife." Sounds terrible, you know?

There really is something fascinating about the fact that, in some ways, his massive success and following because of NIN almost forced him back into a major label to try to get away from that same pigeon hole.

And, contrary to some of the buzz, they insist that the deal wasn't about someone writing a big check. They note that all of the advance money is either going into the recording or directly to marketing, and not into the band members' pockets.

Beyond the fact that Reznor and Guerinot could negotiate a much better deal, they also pointed out that a hell of a lot has changed at the major labels these days -- as those labels have been seriously humbled. They noted that it's been six years since Reznor was last signed to a major and plenty has happened since then. Guerinot pointed this out:

My experience as a manager who works with a label is that, what's happened with major labels over the past six years, with the attrition of business, and the lopping off of the top end of the business, and the bringing in a lot of younger people... we're just dealing with a lot of people with enthusiasm and excitement and ideas. It seems that the next wave of personnel that has come through these doors, does not have a sense of entitlement and position and stature. They feel like they have to justify their existence. And I've just been really excited working with them.

Reznor echoed similar feelings:

After thinking about it for a while, we thought some sort of label might have a benefit for us [in getting the word out beyond NIN's fans], or some sort of team that's able to work this thing, and present it like some of the other bands we'd like to be mentioned in the same breath as, it might infiltrate the consciousness of people through the same means.

So why go to a major label rather than just bringing in a team of your own or perhaps working with an indie label. Reznor offered up a few reasons, with part of it being that he didn't feel like "setting up his own label," even if it was just a temporary one for this release. Separately, they felt that -- given the specific goals with HTDA (again, to become as widely known as possible) -- the best people for that probably are still at the labels. They admit that it's opened up some useful doors, such as some artists to work with on remixes that they probably wouldn't have been able to get to otherwise. Also, as has been suggested repeatedly, they really wanted help internationally, and doing it themselves was really difficult. They noted how their UK distributor had gone bankrupt and taken all of their money not too long ago, and they didn't want to have to deal with that kind of thing again. Reznor, again, on the decision:

It didn't need to be a major label, but we have a good relationship with Mark Williams, who's our A&R guy at Columbia... and he introduced us to the team at Columbia, and the lean and mean system that they have there. That coupled with what seemed like a reasonable deal, felt like, 'hey, let's try it.' We're not locked to it indefinitely. Let's just see how it goes.

But does that mean that the new internet world is no good? Or that DIY doesn't make sense? Not at all. In fact, I think they spent more time in the conversation focusing on all the awesome things that can be done online today that weren't possible when Reznor was starting out. They think that, for many, many, many musicians today, there are amazing new opportunities to use these online tools to do amazing things, with or without a label. He did point out that the challenges facing artists today have certainly changed. In fact, echoing the exact sentiment we heard at our artists & entrepreneurs working group, the toughest thing today is the lack of an easy road map, a "logical progression" to a music career -- but there are still a lot more opportunities. Reznor again:

What I think is great right now, is that it is the wild west. As frustrating and worrisome as it can feel to hear that we're 'in-between business models' -- which we've been hearing for at least ten years now. So, okay, all the old rules go out the window, let's press reset, let's look at what assets we have now that one didn't have before. That's what the good news is. This is what David Byrne focuses on his book. The stranglehold of distribution, the cost of making records, all of that has changed....

My advice today, to established acts and new-coming acts, is the same advice I'd give to myself: pause for a minute, and really think about 'what is your goal? where do you see yourself?' When I was coming up, things weren't disrupted, and there was a logical progression.... As a 22-year-old kid in Cleveland, it seemed to me that just playing out in bars, hoping someone noticed your band, and then offered you a record contract, while that's possible, I didn't know anybody, and didn't know anybody who knew anybody that that had ever happened to. The strategy, then, was let's work on getting a band, and something that means something, music that matters, music that I feel proud of, and a vibe and name and 'brand' of this thing, and then try to reach maybe some small labels that had music in the same vein of what I liked. It didn't work exactly that way, but that type of archetype of a plan led me to focus my energies on the thing that did start, and that fuse got lit, and it wound up happening.

If I were that person today, there's a hell of a lot of things that didn't exist then, that exist now. Like, YouTube. Like the ability to self-publish. Like the ability to reach everyone in the world from your bedroom, if they're interested. And I'd focus my efforts on what seems like a logical way to do that, that maintains integrity. If my goal is to compete with Rihanna on the pop charts, I'd think that requires going through a major label system with a powerful manager. That game....

It all comes down to what is it that you want to do? I think indie self-publishing and do it yourself is great. I will certainly do it again. But it will be in the context of what I feel is right for me.

Guerinot added some more thoughts to that as well:

The beauty about today is, in the absence of [a major label being interested in a musician], the contemporary way that you can distribute allows you worldwide distribution. You can actually make that happen.... Now, you can be a tree falling in a forest, but there was a point in time where you just couldn't even do that. There was no way for someone to watch your video, buy your record, participate with you, in Australia, if you lived in Southern California. That wasn't available. Now, it's very nice that someone has said to Trent, 'hey, we'd like to do x, y and z on your behalf,' but they just as easily at some point in his career might not do that. I think it's amazing that the world accommodates the ability to do that.

They also took on the idea that the "old way" was ever a great business model. Guerinot explained:

When you look backwards, everyone thinks 'oh, gee, they had the great business model.' I guarantee, if you talk to anyone who was making music in the 60s, they would tell you they did not have a great business model. As you moved into the 70s, 80s and 90s... nobody thought it was a great. Everything looks great in the rear view mirror. And everybody, as you go forward, keeps saying 'oh we need the new music business model.' We might already be in the new music business model! This might be it!... And as a guy who's supposed to help Trent navigate and ultimately get his music to as many people as he can, and honor and respect the way that he does that, it's pretty great right now. I mean, it really is. It's pretty great.

Finally, if there was one theme that ran through the entire discussion, which came up over and over and over again, it was that what was most important to Reznor was finding the path that would hopefully be best for getting fans to enjoy the music. And, while he noted that he really relished the challenge of trying to think through business models and new opportunities, in the end, it was more important to him, personally, to focus on the music at this time. He admits that all the other stuff let him "flex a different muscle in my brain" for the past few years, but he wanted to try to focus on the music for now. He says that it was fun, and had a sense of "wow I can do that!" when stuff succeeded, but he also worried that "I'm really not the best guy at figuring that stuff out," (despite earlier admitting he was "high on arrogance" at his own ability to figure some of this stuff out). And as he got more and more focused on solving that business model riddle, it became more and more engaging for him -- but he worried that, since he became so focused on it, he almost became too focused on that new challenge, rather than on the music.

I found this part of our discussion really interesting (and it included a little tangent discussion about the energy that goes into dealing with trolls...), because he was more or less admitting that all of the new opportunities out there were too enticing, and he wanted to spend more time figuring them out, but that process alone was distracting. Interesting stuff.

Oh, and, as for the recent revelation that Reznor is working with Beats by Dre on a new project, Reznor revealed just a bit of information on that... mostly off the record, but if all goes according to plan, it sounds like it's going to be very, very interesting, and not at all what you're thinking it's about.

In the end, the overall story was pretty much what I expected. For this particular project, with these particular goals, Reznor (and the rest of the band) felt that this deal made sense -- a deal that they were able to negotiate with some leverage, as a licensing deal, where they retain the masters. They get to work with folks who are enthusiastic and different than the "old guard," while still having the ability to market on a massive scale. But none of that changes the excitement that they feel for some of the new stuff and new opportunities that are out there, and they see lots of reasons for bands to keep experimenting. In fact, they used that word over and over again -- that this new deal was also "an experiment" -- no different than the experiments they've done over the past six years with different ways to release music -- and they were upfront that it might fail. "I'll keep you posted," Reznor promised, noting that, "I may have a very different story a year from now." So, stay tuned...

Over the last few weeks, we've been talking about Songkick's new "Detour" feature, which artists are using to set up shows in "off the beaten track" places, where they'd be unlikely to tour normally, but via Songkick, they discover there are enough fans to make it worthwhile. Considering how often we hear from musicians that touring is such a crap shoot on whether or not you'll make money, it's great to see more tools spring up to help take away that risk. There are a few interesting side effects of all of this. First, beyond just taking some of the risk out of touring, it's also helping artists find different fans they can reach via touring. That doesn't mean they drop existing places, but that they can expand their opportunities. But the second, and perhaps more interesting aspect, is the social one -- in which fans have been using Detour to bring in more fans. That's because one of the ways that Detour can be used is to effectively have a competition, in which cities compete to see which one has more fans willing to crowdfund an appearance by an act they love.

The latest to jump into the Detour pool is a pretty big name artist: Andrew Bird was unsure if it would make sense for him to do a South American tour, but is now using Detour to make sure it's financially viable -- and to figure out what cities he should visit on the tour.

"I've been wanting to go to these countries for years because I'm a fan of their rich musical traditions. Songkick Detour seems like a brilliant idea as it gives me a sense of connection to the people before I go there."

There's a competitive element to this. There are twelve cities (in nine countries) competing (the twelve were picked by going through Songkick's data, to see where Bird had lots of fans -- sometimes in surprising places) for six open slots for shows in February of next year. The setup is basically that the first six shows that have fans crowdfund 250 tickets get the open slots for the gigs. It will be interesting to see if fans in the different cities rally to encourage fans to buy in to get the concert.

These efforts remain very experimental, so who knows how well they'll succeed long term, but I love the fact that we're still seeing unique innovations in different aspects of the music business. Obviously, for many artists, touring has become a bigger part of their revenue stream lately -- but it's also one part of the business that many artists complain has extremely high costs and risks. The system has been inefficient for years, allowing the business to bleed musicians. So it's encouraging to see more attempts to improve the efficiency of the concert business -- and doing so in a way that gets more fans connected to bands, and allows acts to find "out of the way" places to play live, while minimizing the risk of doing so.

We already talked about how US officials have been working against a treaty to allow more access to copyrighted works for the disabled, but the latest report from Jamie Love highlights an even more nefarious part of the strategy. To hold the agreement hostage in order to backdoor in certain elements of ACTA/SOPA. This is mainly being led by the EU, but with support from the US. And the main part is putting lots of red tape around any exceptions -- and tying it to more standardized enforcement, which is what ACTA was really all about:

The European Union primarily, but with some backing from the US government, is holding blind people's access hostage in and effort to introduce new global enforcement norms for copyright. If you look at most copyright exceptions in most countries, the system works as follows. If the exception applies, an activity is not considered infringement. If you do something that is not protected by the exception, you are infringing, and all sorts of bad things can happen, depending upon your national laws for infringement, which include both criminal and civil sanctions. That is how the US exceptions work for blind persons, and that's how nearly all national exceptions work for blind persons. But here at WIPO, the EU wants page after page of detailed regulation of anyone who uses an exception. The expanding verbiage of the agreement is almost entirely about introducing ACTA and SOPA like enforcement provisions into this agreement.

We've already seen the EU try to backdoor ACTA provisions in elsewhere, so it should come as little surprise that it would also seek to abuse a treaty to help the disabled to get to the same point as well. Shameful, but not surprising.

Another report on the meetings, from David Hammerstein at the TransAtlantic Consumer Dialogue (TACD) goes into more detail on the EU's moves during the negotiations:

Instead of trying to help one of the world´s most culturally disadvantaged groups the EU´s copyright specialists guided by Commissioner of Internal Market Michel Barnier are busy launching violent preemptive strikes against the possibility of a clear, exception to copyright for the non-profit production and distribution of works formatted for visually impaired persons.

In Geneva this week the EU made one negative proposal after another to block a global agreement that would greatly improve access to culture for the visually impaired. All of them have been rejected by the organizations defending blind and disabled persons rights. Most of them are “copy and paste” proposals from the publishing industry´s wish list. Not one EU proposal this week in Geneva was to facilitate the right to read of disabled persons as guaranteed by international law. Not one member of the EU´s delegation was a human rights or disability expert; all were hard-line copyright apologists.

Basically, they seem to see this as a war, where any exception is seen as "giving in" on copyright. This is insane. This is not about rational minds looking for the proper calibration of the law, or understanding the real impacts of the law. This appears to be about pure copyright religion, where "more" must be better, and any exception, no matter how reasonable, is seen as a sin. Shameful.

In the ongoing case involving Kyle Goodwin trying to get back the content that he backed up via Megaupload and lost as a result of the US taking down the site, the EFF (representing Goodwin) has asked the court to unseal the initial seizure warrants that the US relied on to grab the Megaupload servers from hosting company Carpathia. They point out the number of concerns that New Zealand courts have raised with the legitimacy of the warrants, as well as some basic principles related to the limits on such warrants within the US.

.... these materials will certainly assist him to learn what steps, if any, the government took to inform the court of the scope of its planned seizure and related execution of search warrants. They would also show any plan provided by the government or the court in the warrant materials for minimization to protect innocent users before the seizure or to segregate the data after seizure. Federal judges increasingly impose detailed conditions prior to execution of computer searches.... For example, Judge Kozinski in the Ninth Circuit has observed that if the government refuses to forswear the ability to retain or use data that should have been segregated initially, the judge “should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.” .... Unsealing will allow Mr. Goodwin, as well as the general public, to learn which, if any, such conditions were undertaken in this case.

Similarly, under the Fourth Amendment people have a right to be secure in their “papers” and “effects” against unreasonable searches and seizures. A person's “effects” may be the subject of Fourth Amendment protection even where there is no particular privacy or liberty interest.... A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.... The Fourth Amendment analysis, in turn, requires the Court to determine whether the seizure was “reasonable.” Gaining access to the materials that served as a basis for the government’s seizure of his property can assist Mr. Goodwin and other innocent Megaupload users in determining whether the seizure was unreasonable.

Separately, they note that there is tremendous public interest in revealing these details, and criminal cases should be done as publicly as possible. And, considering how frequently the US government is now seizing websites, the issue is of tremendous importance:

The public also has a strong interest in understanding the government process in executing search warrants on cloud computing servers that contain innocent third-party property. Seizures of domain names, and resulting searches of related servers, are tools the government is using with increasing frequency in criminal copyright enforcement actions. For example, the federal government has reportedly seized more than 800 websites so far under its Operation in our Sites campaign. The government has issued press releases and otherwise sought to publicize its efforts, obviously giving its own perspective on its actions. Legislators, the media, and the public are vigorously debating the very issue of these domain name seizures and related searches, even as a large percentage of Americans continue to use cloud computing services. Access to judicial records would ensure a more accurate and informed public debate, rather than one informed merely by the government’s press releases

Finally, they note that the government has already said it has no more need for the servers in question, so why would it make sense to keep the seizure warrant sealed? It seems difficult to argue with any of these points... but I have a feeling that the US Attorneys are about to try to do exactly that...