Remember back in 2009, when Techdirt reported that Rupert Murdoch hated Google so much he had decided to block the search engine from indexing his titles, even though this would inevitably cut down their visibility and online traffic? He obviously thought that he would put this upstart technology in its place, showing that mighty media moguls don't need this Internet thing in order to flourish just like they did 50 years ago. According to this story in paidContent, it seems that strategy hasn't worked out too well:

In the next few weeks, paidContent understands The Times' website will begin showing articles' first two sentences to search engines, in a marketing exercise designed to attract new subscribers.

The limited free preview does not alter News International's belief that it should continue charging for The Times (visitors will be invited to subscribe to read full articles). But it does suggest that, having signed up 130,751 digital subscribers since mid-2010, the publisher is having to look in new places to maintain customer acquisition momentum.

This shows that Murdoch has finally realized that being left out of Google is the online equivalent of not being listed in telephone directories in earlier times. It also suggests that attempts to gain subscribers for the online edition in other ways are not going so swimmingly, which must raise questions over the long-term viability of the paywalled approach for this title.

Murdoch's move comes at an interesting time for the newspaper industry in Germany. As we discussed recently, a law currently being considered there would require snippets to be licensed and paid for on the basis that search engines are gaining a benefit from even these short extracts. By allowing his title to be indexed and short excerpts to be displayed for free, Murdoch is essentially admitting that the marketing value of snippets to him outweighs any nominal loss due to Google's supposed free-riding -- as Techdirt suggested -- thus undermining the supposed justification for the German proposal.

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While journalists are expected to follow a certain set of standards or code of ethics, that's not always the case. Every now and again, someone breaks the rules and gets away with it -- if only temporarily, since they usually get caught in the end. One famous example is former U.S. journalist Stephen Glass, who had fabricated many articles while he was working for the magazine The New Republic in the 1990s. (Apparently, he's now fighting for the right to practice law in California, after he was denied a license in 2007 on moral grounds.) Here are a few more examples of bad journalism.

• Jonah Lehrer, who had blogged for Wired for several years and was recently hired (and then fired) by The New Yorker, reportedly fabricated quotes and recycled or outright plagiarized parts of articles. While Wired had initially agreed to keep Lehrer on as a features writer, after carefully examining a number of his posts, the magazine just recently decided to end its relationship with him due to his failure to "meet WIRED editorial standards" or to "follow basic good journalism practices." [url]
• Ryan Holiday, marketing director at American Apparel, calls himself a "media manipulator." He wrote a book called "Trust Me, I'm Lying" on how to exploit the media by lying. Even worse, he used Help a Reporter Out (HARO) and pretended to be an expert on pretty much everything -- by lying, of course -- and managed to fool reporters from MSNBC, ABC News, CBS, The New York Times, and more. He claims it was all part of an experiment. [url]
• Margaret Wente has been accused of plagiarism -- copying the words of another Canadian columnist for her own article in 2009 about genetically modified foods in Africa. She has responded to the allegations, but her employers have also disciplined her (without revealing the details of her punishment and obviously not firing her). [url]
• Poynter.org has a wrap-up of the year's journalistic failings (so far) -- which it calls Journalism's Summer of Sin -- and it prescribes some measures for news organizations to prevent (and deal with) plagiarism and fabrication. The year isn't over, though, so place your bets on how many more journalistic fumbles will occur before 2013. [url]

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

Email is one of those parts of the internet that have been around for quite some time, and is considered a (if not, the) core piece of how many people communicate. But, if you actually look at the history of email, it's quite amazing how much it's changed over time -- bouncing from a server based setup in the early days to a client/server version and these days back up onto the internet as a "cloud computing" service (the buzzword version of server based). Even if we're just looking at the past 15 years or so, from when web-based email services like Rocketmail and Hotmail first hit the scene, it's quite amazing how much they've changed. But also fascinating is how web-based email pre-dated "cloud services" by more than a decade, but in many ways are one of the key "cloud" services out there.
Ah, the bad old days... Hell, just the change from having to load a new page for each click to today's dynamic/AJAXy interfaces changed the way web email worked. But one of the bigger changes in my mind was the massive expansion in storage. Historically, many people were pretty careful to regularly delete all of their emails to avoid hitting the very small storage limits associated with web email accounts. In fact, a decade ago, I remember conversations about how "expensive" storage was, leading the online accounts to have limits of around 25 megs. The world of online email changed on April Fool's Day in 2004 -- with a gigabyte of storage (this was so much larger than anything anyone else was offering that some thought it might be an April Fool's joke). When it was launched, Google said that people shouldn't ever have to worry about deleting emails again -- and, in fact, Gmail originally buried the delete button such that it was difficult to find.

Of course, as with many innovations, user demand quickly grew to match what was available, and having so much storage started to change the way people viewed email -- not as something where you just kept a few things, but one where you could store your entire email history... and more. The leaders in webmail at the time, Microsoft (who had bought Hotmail) and Yahoo (who had bought Rocketmail), responded to Gmail by expanding their storage as well -- and that's only increased time and time again since then. Both Microsoft and Yahoo eventually went to (virtually) unlimited offerings, while Gmail has boosted its free email storage up to ~10 gigs.

Suddenly, with significantly more storage, new opportunities opened up. Email could become more of a combined task list/timeline for your life. There was no real reason to ever get rid of anything -- and that included being able to store attachments and important files, as more and more people discovered. Rather than just being about email, web-based email really did become the very first truly useful "cloud" service, letting people go way beyond the restrictions of older client/server email systems.

Historically, when computing resources become abundant, it becomes natural for people to "waste" them, and, as such, discover completely new and unexpected uses, and that's absolutely been true of email with such massive storage and the availability of access from anywhere. While "cloud computing" is a more recent term, webmail programs really became a key part of a cloud strategy long before that term came about, and part of that was because of the amount of storage available. Combine "virtually" unlimited storage with a communications interface and you can start to build in more integrated features -- including things like document viewing, storage and creation. Email starts to fulfill its potential as more than just a communication tool to a central life manager.

With lots of companies now pushing cloud services, it still seems like web-based email, the original cloud service, really has the leg up on being the true interface for "the cloud" upon which many other useful cloud services will be built.

We've discussed, repeatedly, the incredible lack of transparency from the USTR regarding the TPP negotiations. Back in June, we noted that 130 Congressional Representatives all got together to send USTR Ron Kirk a letter, noting their concerns. At the end of August, Kirk replied (pdf) with his standard talking points. He insists that meeting with people is "transparency," even if they can't see the document. He insists that Congress has access to the TPP, even though the USTR locks out key staffers, and doesn't let the elected officials take notes or make copies. He insists that the document needs to be classified because it's the way things have always been done (which is generally a sign of someone not having much of a real argument).

Either way, Rep. Zoe Lofgren is unimpressed. She's now sent Kirk a letter, responding to Kirk's request for "suggestions" on how to improve transparency with some rather simple and straightforward ideas (pdf and embedded below), meaning that it's unlikely the USTR will pay much attention to them. You can read the full version at that link, but here's my summarized version, with commentary:

1. USTR should make the US positions (not those of other countries) open to the public. She doesn't even say the full text needs to be open, but merely summaries of the US's position. It's hard to see any reasonable argument against this. Since the USTR is negotiating on behalf of the American public (in theory, though the reality often seems so different), it seems ridiculous that the USTR would ever not put out at least summaries of its positions on what it's negotiating. Contrary to Kirk's claims, this does not weaken the US's negotiating ability at all. Quite the opposite, it strengthens it by making it subject to public scrutiny and input, while also highlighting to the world our resolve in coming up with a proposal that the public will accept.
2. Any IP section within TPP must have strong support for flexible "limitations and exceptions" for things like fair use and the public domain. While the USTR has shown a willingness to include some text on limitations and exceptions, the most recent leak raises questions since it appears to be rather inflexible and goes much further than is reasonable.
3. USTR should create more representative "trade advisory committees," which it consults on these issues. As it stands, the ITACs (International Trade Advisory Committee) is heavily, heavily biased in favor of older legacy industries, rather than innovators or the public. Lofgren reasonably suggests that a lot more thought and effort should go into fixing how unbalanced these committees are, since they have tremendous influence over the text.

These three basic changes won't fix all the problems -- not by a long shot -- but they would, at the very least, provide a bit more transparency and involvement, while also guaranteeing that we don't push a solely maximalist agenda in other countries. And, because of that, I fully expect the USTR to ignore all of these suggestions.

The Techdirt Book Club book for September has been The Knockoff Economy: How Imitation Sparks Innovation. Earlier this month, we ran an excerpt about the importance of "tweakers." This second excerpt is actually the final section of the book, published after the "final" chapter, taking all of the concepts in the book, and seeing how they might apply to the music industry. We'll be arranging a time to chat with the authors soon, so stay tuned.

In the final chapter of The Knockoff Economy, we tell the story of the music industry's decline. In a decade-long crisis driven by Napster and the rise of peer-to-peer technologies -- a development which the music industry met with an ineffective strategy based around copyright enforcement -- the revenues of the record labels have fallen by more than 60% since Napster's debut. And yet there was nothing inevitable about this tale of decline. Hollywood, for example, has fared better. To be sure, Hollywood worries a lot about piracy. But while there is plenty of it, especially overseas, piracy has yet to threaten the existence of the major film studios.

Why has the movie industry's fate been different? For one, technology gave them a few years' reprieve. Video files are much larger than music files. As a result they were, until recently, relatively difficult to download and upload. More important, Hollywood learned some lessons from the music industry's straits. Hollywood fought copying, but as a part of a broader overall strategy aimed at capitalizing on the opportunities the Internet offered, while blunting the effect of piracy. We will examine some of the details of Hollywood's thus-far more successful strategy as we consider music's future.

That future is bound to be different from music's past. Copying music is easy and the risk of getting caught minimal, and this is unlikely to change. But easy piracy does not mean the death of creativity in music. Nor does it mean the end of profits from music. Here are some ways that the music industry could adapt--and in some cases already is adapting--that mimic strategies we've seen deployed by other copy-prone creative industries.

Music as an Experience

The most obvious adaptation is changing what the music industry sells from product to performance. As we argued earlier in The Knockoff Economy, products often are easy to copy, but performances are not. One of the reasons chefs remain so creative is that competitors can copy a restaurant’s signature recipe but they cannot so easily copy the quality of the preparation or the restaurant's ambience or service.

We won't repeat the discussion here, but we do want to underscore the centrality of performance. Millions of people every year already attend concerts. A greater shift to performance will never replace all the revenues that currently flow from recording. But shifting the business model away from the easily copied product (the song or album) and toward the hard-to-replicate performance (the concert) can help to stabilize the fortunes of musicians.

In many ways, this is simply a return to the reality of the last two centuries of popular music. That point was made with terrific clarity by Mick Jagger in a recent New York Times interview:

"There was a window in the 120 years of the record business where performers made loads and loads of money out of records," Jagger says. "But it was a very small window--say, 15 years between 1975 and 1990."

The past was, and the future is going to be, much more about performance. In this new world, recordings often function as more as ads for concerts than as money-makers themselves. (And sometimes are bundled with concert tickets, as Madonna's latest album was.) As a result, copying looks a lot less fearsome. A copied ad is just as effective--and maybe much more so--than the original.

Music as a Social Network

As the cost of producing and distributing a product falls, basic economics predicts that more of it will be produced and consumed. This axiom certainly applies to music: as digital technologies have slashed the cost of producing and distributing music, we see an unprecedented amount and variety of music on offer. But there's another change. Digital technologies also change how the rewards of the music industry are distributed. In the heyday of the labels, a lot of revenues unsurprisingly went to them. This system produced some very successful stars, but a lot of musicians--even very talented ones--made little or nothing.

This picture is changing. While mega-stars still exist, a larger and more stable musical middle class is emerging--artists who are able, by making recordings, touring, and selling merchandise, to sustain a decent living. Because it costs these artists less to produce music, a viable career is possible at a smaller scale. And this can be done with less reliance on intermediaries like record labels. The same technologies that have made pirating music so easy also facilitate direct communication between musicians and their fans.

Just ask pop singer Colbie Caillat. Caillet's music career began in 2005 when a friend posted several of her home-recorded songs to MySpace. One song, Bubbly, began to get word of mouth among MySpace users, and within a couple of months went viral. Soon Colbie Caillat was the No. 1 unsigned artist on MySpace. Two years after posting Bubbly, Caillet had more than 200,000 MySpace friends, and her songs had been played more than 22 million times. Caillet had built a global fan base while never leaving her Malibu home. In 2007, Universal Records released her debut album, Coco, which peaked at No. 5 on the Billboard charts and reached platinum status.

Or ask rap artists Mac Miller, Wale, and J. Cole. Each of these artists built up a fan base by releasing free material on the Internet and interacting with fans on social media and blogs. And in a space of two months in 2011, each released a debut album that rose high in the charts (Mac Miller’s debut charted at No. 1 and sold 144,000 copies in its first week; Wale debuted at No. 2 the week prior and sold about 164,000 copies in its first week; a month earlier J. Cole’s album debuted at No. 1 and sold 217,000 copies in its first week). Fans could have pirated these albums--and doubtless some of them did. But thousands ponied up the money to buy them, perhaps partly out of appreciation for the free mixtapes that they’d downloaded previously.

Social media and the fan base it enabled made the music careers of Colbie Caillat, Mac Miller, Wale, and J. Cole, and they aren't the only ones. Social media also broke UK stars Lily Allen, Kate Nash, and Arctic Monkeys, among others. This illustrates an important facet of the relationship between music and copying. Music fans love music, and they often want to support those who make the music they love. The Internet turns some fans into pirates. But it also turns fans into promoters. And the same technologies that enable piracy are also restructuring the industry in ways that create an entirely new relationship between creator and listener.

So how is the industry likely to change? There are two trends that are, in our view, the most salient, both of which flow from digital technologies. First is the fragmentation of the audience into smaller and smaller groups, as more music becomes more available and hence the universe of choices far more diverse. Second is the ability of these smaller groups effectively to communicate both with one another and with the artists they like.

What is likely to flow from these changes? These are the conditions -- relatively small groups, able easily to communicate -- under which norms can help to regulate behavior. As we describe in Chapter 3 of The Knockoff Economy, this is precisely what we see in the world of stand-up comedy--there are a few thousand touring comedians, and because they often appear together in the same comedy clubs, they communicate readily. These conditions allow comedians to control copying not by relying on copyright law, but through social norms.

The problem of piracy in music is, of course, very different from the problem in comedy. Stand-up comics worry most about a rival, not a fan, copying their jokes. Still, the reduction of consumer copying of music via norms may be possible, and will become more imaginable if the music industry experiences ever-greater fragmentation and communication. There is already an interesting example of norms playing a substantial role in controlling copying in music. In the culture of jambands, we see the fans themselves taking action to deter pirates. What are jambands? In a fascinating 2006 paper, legal scholar Mark Schultz studied the unique culture of a group of bands that belong to a musical genre, pioneered by the Grateful Dead, characterized by long-form improvisation, extensive touring, recreational drug use, and dedicated fans. Although acts like Phish, Blues Traveler, and the Dave Mathews Band vary in their styles, they are all recognizably inspired by the progenitors of jam music, the Dead. But the Dead's influence is not only musical. Most jambands adhere to a particular relationship with their fans that also was forged by the Dead.

Touring is central to the jamband culture, and most allow fans to record their live performances. Many even encourage fans to share the live recordings they make. Some bands even set up special "tapers" sections at live shows, and occasionally even allow fans to make recordings directly from the soundboard. And many jambands also set rules whereby some recordings--the band's studio albums, and some special live recordings intended for commercial distribution--cannot be freely shared. The Grateful Dead's statement on taping is a typical example of these rules:

The Grateful Dead and our managing organizations have long encouraged the purely non-commercial exchange of music taped at our concerts and those of our individual members. That a new medium of distribution has arisen--digital audio files being traded over the Internet--does not change our policy in this regard. Our stipulations regarding digital distribution are merely extensions of those long-standing principles and they are as follows:

No commercial gain may be sought by websites offering digital files of our music, whether through advertising, exploiting databases compiled from their traffic, or any other means.

All participants in such digital exchange acknowledge and respect the copyrights of the performers, writers and publishers of the music. This notice should be clearly posted on all sites engaged in this activity.

We reserve the ability to withdraw our sanction of noncommercial digital music should circumstances arise that compromise our ability to protect and steward the integrity of our work.

Schultz documents how jambands and their fans interact on the basis of a strong and long-standing norms system. The fans are often very invested in the bands that they follow, and they believe that because the bands give them freedom to record live shows and to share those recordings, they are valued as community members and treated fairly. And in return, fans largely adhere to the rules and discourage others from violating them.

While the jamband ethos is unlikely to take over all forms of music, it may spread beyond its original home. And the changes in the industry we noted earlier may make this more likely. Digital technologies allow for smaller, more closely knit fan groups, and easier communication between bands and their fans. Facebook provides a virtual way for fans to interact, and of course live concerts allow a real-world version to develop. The jamband experience suggests that bands cannot simply set rules and demand compliance; Schultz argues that the fans must feel that they are getting something in return. For jambands, it is wide access to recordings of live shows. Given the likely importance of live performance in the future, this may be a workable strategy for a range of musical genres.

Norms are not a panacea for pervasive copying. The casual fan who treats music as a disposable pleasure is unlikely to respect the norms of any particular musical community. So for some types of music, norms are unlikely to have much effect. The pop music of the moment, for example, is unlikely to create the kind of enduring community that can form and sustain a norms system. And the very improvisation that is at the heart of jambands--the jam--makes copying generally less harmful, since no single performance is quite like another. Still, there is no reason to believe that a successful norms system is limited solely to jambands.

All Roads Should Lead to Your Content

For years, the record labels had a business model that was consistent and single-minded: (1) bundle together a dozen songs on a CD, (2) ship the discs out to retailers, and (3) collect money. The labels' business became even simpler following the shift from LPs to CDs--it was at that time that the labels killed off the singles market. Why ship CD singles when, for virtually the same cost, you could ship an album and charge at least three times the price?

But it turns out that by killing the single, the record labels made the Internet piracy problem, when it arrived, even worse. One of the major attractions of filesharing was that it brought back singles. Consumers wanted the one or two songs on the album that they liked, and not the ten they didn't.

What we learn from this is unsurprising. Consumers like choice, and new technologies frequently offer more choice than the old. In this case, Hollywood's very different, more profitable, and more piracy-resistant approach is instructive. The movie industry has long managed releases according to a series of "windows." Films are first released at the box office--and at a premium price. Then, after a few months, films are released to the DVD sales and rental market. Shortly after that, they are available via video-on-demand, pay-per-view, and on airlines. And later still, the films are released to pay-TV cable channels like HBO and Starz. And then, finally, they go to basic cable and broadcast channels.

This system gives consumers a wide variety of ways to watch movies. And different ways of watching movies appeal to different types of consumers. For those with willingness to pay, there is the new release in the theater. And for those willing to wait, there is video rental, pay-TV, and commercial television.

Hollywood's release windows system was conceived long before the Internet arrived. For our purposes, however, the system matters because it functions as a powerful anti-piracy tool. Hollywood did not attempt to enforce a one-size-fits-all business model. Instead, it realized that different consumers would have different willingness to pay, and so it developed a distribution model that gave consumers more choice.

In sum, like the recording industry, Hollywood views copying--especially in its growing markets abroad, such as China--as a grave threat. But unlike the recording industry, Hollywood has responded, at least so far, in ways that effectively blunt piracy's impact. It focuses on the experience--watching a movie in a theater is different and, for many people, better than watching a pirated copy on a computer monitor. It focuses on quality, both in the theater (new digital projection and 3-D technologies) and for the home viewer (high-resolution Blu-Ray). It offers multiple ways for viewers to access content. What Hollywood does is not precisely the same as any of the other industries that we've studied. But Hollywood has taken a page out of several of their playbooks.

Summing Up

Today, copying is a fact of life in the music world. Yet music is not dying. Even without any changes, music is vibrantly creative today. From a consumer point of view, life has never been better: more musical choices, more easily obtained, than ever before.

Still, the music industry can change further to better survive a world of easy copying. Rely more on the live show, an experience that cannot be copied. Attempt to woo customers away from piracy by emphasizing the quality of the legitimate product. Create (or bolster) social norms about copying. And diversify the ways in which consumers can access music. The result will be a very different music industry. But it will be a world with a lot of great music.

For years and years we've argued that there still is a role for labels -- even major labels, if they are able to do more reasonable deals that embrace new opportunities, rather than shun them. In fact, we've pointed to many different examples of pop stars on major labels doing creative things to connect with fans and give them a reason to buy. Nothing in that says that major labels have no place any more. What we have noted is that the overall market has changed and there are a lot more options. We've also noted that, historically, being used to their gatekeeper position, the major labels have treated many artists badly, signing them to questionable contracts, where very, very few of them end up making out well.

The reality today is that you don't need to go that route if you don't want to. That doesn't mean that there is no need for major labels at all -- even if some will confuse those two statements. It just means if you want to be a successful musician, it's now a choice, rather than a requirement. In short: major labels can and do play a role in helping some artists. Historically, I think they've done a pretty bad job of it (mostly representing their own interests much more than the artists'), but that doesn't mean they don't do certain things well. And for artists who need those certain things -- with radio play being a big one -- it may be reasonable to do a deal with a major, though, preferably with eyes wide open and (if possible) on their own terms, rather than the labels'. The point of what I've said all along is that you can now succeed without the labels if you want to. But for those who wish to use the labels, that should be an option to. It's just that the rise of alternatives should mean that the labels become more willing to change their terms to be less artist-unfriendly. It also likely means that we'll see more overall competition and that many artists will find alternatives appealing. As such, the majors will be forced to adjust over time, even doing more reasonable deals.

I bring up all of this again, because there's a lot of attention this week over the news that Trent Reznor has signed some sort of deal with Columbia Records (owned by Sony Music) for his new(ish) band, How to Destroy Angels, leading a bunch of people to claim that he's "abandoning the DIY" market. You can see everything there is to know in the statement Reznor released last week, which doesn't go into many details, but it certainly hints at the idea that this is not a standard-issue major label deal:

Regarding our decision to sign with Columbia, we've really spent a long time thinking about things and it makes sense for a lot of reasons, including a chance to work with our old friend Mark Williams. There's a much more granular and rambling answer I could give (and likely will in an interview someplace) but it really comes down to us experimenting and trying new things to see what best serves our needs. Complete independent releasing has its great points but also comes with shortcomings.

I'll be interested to hear about the details eventually, because that certainly hints to there being much more to this than just "signing with a major." And there's nothing I disagree with in what he says. Being completely independent does have its great points, but it also makes certain things much more difficult. I don't think anyone's denied that. Of course there are also well known shortcomings when working with a major label. So, it's a case of tradeoffs, and when you have someone in a position to negotiate a more favorable deal that can hopefully minimize the bad side of a label deal, and get the good part, that seems like a perfectly reasonable strategy for those who want it. I think that Reznor likely would have been fine staying indie for this release, but depending on what he's doing, there may be perfectly reasonable arguments for doing this deal.

I know that there are some people who think that everyone absolutely should go indie, but I've never said any such thing, nor do I believe it. I think that going indie is now a much more viable option than it's been in the past, but going to a major label certainly does not preclude being innovative. In many ways, I think of it similarly to the way I view startups as well. It's less and less necessary to raise venture capital to do a startup -- but that doesn't mean that raising venture capital is necessarily a bad thing. There are certain opportunities that really require it. If you go in with your eyes wide open and can negotiate a favorable deal that lets you do what you need to do, more power to you. In the long run, I think that there are much bigger opportunities in focusing on better connecting with your fans, and historically major labels have sometimes made that more difficult. But if an artist sees good reason to work with a major, there's nothing inherently wrong with it.

These days, it often feels like anyone who does anything even remotely innovative feels the need to rush down to the patent office, because that's what you always hear. There's so much talk about why everyone "needs" to patent stuff, that everyone starts to believe it. So it's somewhat refreshing to find someone who created something that really does appear to be useful, and has said that he has no interest in patenting it. The guy is a hospital psych tech -- and came up with his invention a few years ago, after a fellow psych tech in the hospital was strangled to death by a mentally ill patient, who did so by grabbing the lanyard all staff members are required to wear, which holds their "alarm button" in case of emergency. Not surprisingly, this and a few similar incidents, had staff members at the hospital quite wary of wearing the lanyards, even though they were required. So Mike Jarschke came up with a new lanyard design, which has three "breakaway" points that will snap if the lanyard is pulled too hard. The hospital tested it out, and now they've been issuing the new lanyards to staff. After all that, he had no interest in getting a patent.

Jarschke didn't bother to patent his invention. There are other things more important than money.

"When we get safety for this hospital, that's going to be way better than money for me," he said.

Of course, watch now as someone else tries to get a patent on it. Either way, this actually reminds me of some research we pointed to a few years ago, showing that the vast majority of inventions occur not because of the direct profit motive of selling a product on the market, but rather because someone is trying to solve a need for themselves. We see this over and over again, and it seems odd to have a patent system that covers those cases. It goes against every reasonable defense of the patent system. After all, the patent system is really only supposed to be an incentive to create a product that wouldn't exist but for the patent system being there to prop it up. And yet, patents are still granted on those kinds of inventions all the time. It's nice to see that at least some people don't see the need to go that far.

We were just talking about how the "internet bloc" of voters may be an important new constituent for politicians to be aware of -- and I've been wondering if there's evidence that the bloc does not, in fact, fall into typical partisan classifications. Alex Howard conveniently points us to the news that Popvox, one of a number of excellent sites for discussing proposed Congressional legislation, has put out a blog post and infographic about the top 50 bills, by interest on Popvox, for the 112th Congress.

I imagine that it will surprise approximately none of you that SOPA was the most popular bill on the site (PIPA came in fifth). And while there may be something interesting to talk about in terms of which bills were most popular, something else struck me that seems a lot more remarkable: look at how many of the top bills had overwhelming support for or against the bill. Nearly all of the bills had a viewpoint that was very strongly in favor of the bill or opposed to the bills. Looking down the list, you have to get to the 7th bill, before you even have one where the majority viewpoint wasn't over 90% (and even on that bill, it's 88%). You don't get any real "split" opinion until bill number 9, HR 3, or the "No Taxpayer Funding for Abortion" bill that hits on a high profile issue that is usually split down partisan lines -- and you can see the for/against are much closer: 56% for, 44% opposed. But that's a rare case. If we set the cutoff on "in strong agreement" and "contested" at bills where you had over 70% on one side or the other, of the top 50 bills, only 11 fall into the contested category. Meanwhile, 20 of the top 50 bills had over 90% agreement, including each of the top 6 bills. This makes me wonder if sites like these are helping to expose what "the internet bloc" really feels about certain issues. Of course, there are some caveats that should be made clear. It's entirely possible that these votes are skewed, and not a representative sample. For example, if someone who was strongly in favor of, or strongly opposed to, one of these bills points a lot of others to the Popvox bill page, you could see how it would likely lead to getting a lot of votes in one direction. But you would then think that communities on the flip side would also send people to the same bill page to vote the other side.

Either way, it does seem clear that these folks -- who are quite likely more internet savvy and engaged on political issues -- have pretty strong feelings on these topics, and the views aren't in dispute, but strongly agreed upon by a large segment of those internet savvy folks. It seems like an opportunity for a politician to recognize this and really start focusing on supporting what the "internet bloc" has to say...

Internet contrarian Evgeny Morozov has built something of a career out of being the online curmudgeon du jour when it comes to being skeptical about those who see benefits and opportunity on the internet today. So it comes as little surprise that he's now turned his "hype deflater ray" on Kickstarter, in an article for Slate that tries to bash Kickstarter for not funding every possible movie. I'm not joking. That's about the extent of the critique. He cites a study that finds that certain types of movies do well on Kickstarter (and other similar platforms), while others don't. Uh. Yeah.

...this revolution has a few mitigating circumstances. First, Kickstarter might produce many new documentaries, but the odds are that those documentaries will be of a very particular kind (this critique also applies to other sites in this field like indiegogo.com, sponsume.com, crowdfunder.co.uk, pledgie.com). They are likely to be campaign and issue-driven films in the tradition of Super Size Me or An Inconvenient Truth. Their directors seek social change and tap into an online public that shares the documentary's activist agenda. A documentary exploring the causes of World War I probably stands to receive less—if any—online funding than a documentary exploring the causes of climate change.

I see. And does the "old" system of Hollywood regularly make documentaries exploring the causes of World War I? I'm really not sure I understand how this is a criticism at all. Unless a platform can fund any and all types of movies, it's not really that big of a deal? Under those conditions, nothing is particularly good. Basically, what this paragraph seems to argue is that, "gee, Kickstarter is good at funding projects that lots of people want to see, but not so good at funding projects that people aren't as interested in." I'm not sure that's a critique. It seems to be the purpose of the site itself.

Second, some films require significant startup costs (think drama-documentaries or history movies) or involve considerable legal risks that may be hard to price and account for. Say you are making a film that includes an undercover investigation of the oil industry. When you have the BBC's lawyers backing you up, you'll probably take many more risks than when you are relying on crowdfunding. But if Kickstarter is your platform of choice, you'll probably forgo venturing into the thorny legal issues altogether.

I'm curious to know if there's any actual evidence to support this argument. One could just as easily claim that when your project has the backing of a big corporation with liability-averse lawyers, you're a lot less likely to be allowed to take risks, than when you rely on crowdfunding. I don't know which is true (though having spent too much time around movie industry lawyers, I'm pretty sure my statement is a hell of a lot more accurate than Morozov's), but where is the actual data to support this bizarre claim?

There are further complaints that seem equally silly. For example, Morozov points out that someone raised money on Kickstarter to help get his film on physical screens in movie theaters -- and that's somehow proof that Kickstarter isn't that special, since the "old" way of showing a movie is still involved. I'm at a loss as to how any of this is mutually exclusive. There is nothing inherent to Kickstarter that says if you use it, you can only do things online. What's wrong with using it to show a film in theaters?

All in all, this seems a lot like Morozov set up what he thinks Kickstarter should be about -- and then knocked that down. In the logical fallacy world, that's known as a strawman.

We've written several times before about the prevalence of recording devices and the protection citizens deserve in being allowed to film public servants doing their public duties. Some police departments seem to get it better than others, such as the DCPD policy for not confiscating cell phone cameras or deleting footage. Other departments, such as those in my hometown of Chicago, seem to think they can just take your property without a warrant as a way to stave off criticism of their poor behavior. But sometimes we get an example of why this debate is so important, when an officer of the law goes to the egregious lengths of killing a citizen and then his fellow officers attempt to cover up the evidence.

Tom Landry writes in about one such extreme example, featuring Texas police pumping 41 bullets at a man, having a police dog attack him, when the officer's stated and still ridiculous reasons for doing so were pure fabrication. Then, a fellow officer confiscated a witness's camera and deleted footage of the aftermath of the incident. Michael Allen Vincent, a man who allegedly had several traffic incidents with police in the past, had led policeman Patrick Tuter on a high speed chase before pulling over into a cul de sac. That's when Tuter ordered Vincent out of the car, before discharging his weapon 41 times, for reasons we'll get into later. As you might expect, all the noise attracted the attention of neighbors.

[Mitchell] Wallace and his wife were asleep when the gunshots began, but they quickly made it to the porch to see Allen's passenger being pulled from the truck and a police dog jumping into the cab. The German shepherd bit Allen in the neck and jaw area and dragged him out of the truck and onto the pavement, Wallace said. Police officers pulled the dog off, flipped Allen on his stomach and handcuffed him before checking his pulse. Autopsy results are pending on the cause of Allen's death.

Wallace took cellphone pictures and video after the shooting stopped, but he said Mesquite police confiscated the phone and deleted the video and pictures. The phone was returned four days later, he said.

First, I have a few complicated theories on what the cause of death may have been. Most of them involve an officer shooting at an unarmed suspect 41 times, having to reload at least once mind you, and/or a large dog dragging someone out of a car by the neck. Secondly, this confiscation of the camera and the deletion of footage is a blatant violation of the 1st and 4th amendments, as the article notes.

The law states that police need a court order to confiscate a camera unless it was used in a commission of a crime. The only exception is if there are exigent circumstances, such as a strong belief that the witness will destroy the photos, therefore destroying evidence. Under no circumstances do police have the right to delete footage.

Already a Texas Public Information Act request has been filed for a copy of the investigation into the seizure of the cell phone and deletion of footage.

Now, lest you think that this man somehow deserved to have 41 bullets fired at him before being attacked by a police dog, it turns out that Officer Tuter's stated reason for reacting so violently, that suspect Vincent had "backed his truck into the patrol car" (seriously?), was a complete fabrication as found out by his own dash camera. Tuter has since been suspended.

So, in the same story, we have police deleting footage from a witness illegally, while the illegal actions of an officer are only discovered because of camera footage. The juxtaposition perfectly highlights why the confiscation of cameras and deletion of potential evidence is such a horrendous violation of the public trust. I can think of no more clear way to demonstrate the need for strong protections for the public filming their civil servants.

Piracy is usually the scapegoat trotted out by various declining industries and pointed at angrily for supposedly single-handedly destroying them. Generally, it's content creators and various gatekeepers (mostly the latter) doing most of the pointing (and lobbying). In the normal scheme of things, the gatekeepers are all on the same side, united against filesharers. That's the status quo.

For the first time in memory, one entity has accused another in the same field (politics) of using piracy as a weapon. In this strange case, conservative filmmakers are accusing Obama supporters of uploading the full version of their documentary, "2016: Obama's America," to YouTube in order to harm box office sales.

The film, the second-highest-grossing political documentary in U.S. box-office history, has made $32 million domestically since opening in mid July but took in only $938,000 during the recent weekend for a per-screen average of $771, down 27 percent from $1,060 per screen in the previous weekend, according to BoxOfficeMojo. Overall, the movie's box-office dropped 53 percent in the most recent weekend compared with the previous one, its largest decline since opening 10 weeks ago.

While such a drop isn't unusual for a movie during the course of a week -- especially when the theater count dropped from 1,876 to 1,216 -- filmmakers nevertheless say box-office results were artificially depressed for two reasons: a disinformation campaign spreading the false rumor that Fox News Channel would be showing the movie in its entirety Sunday and a pirated version of the film showing up on YouTube this weekend.

The filmmakers contacted the FBI about the possible piracy and the user who uploaded the full film has taken it offline. In addition, mass emailings announced the (fake) news that Fox News would be showing the movie for free last Sunday. Many bloggers and websites ran with the story, but most have issued retractions.

The whole situation is a bit odd. Obama's official website issued a post criticizing the film and one of its creators, Dinesh D'Souza, saying he has a “long history of attempting to add a veneer of intellectual respectability to fringe theories, conspiratorial fear-mongering and flat-out falsehoods.” One wouldn't normally expect the President (or at least, a high-ranking spokesperson) to respond to a clearly political documentary. Perhaps the fact that "2016: Obama's America" is now the second-highest grossing political documentary added a bit of pressure.

However, while it's clear that some sort of misinformation campaign took place, it's a stretch to lay the dropoff in ticket sales on the "dirty tricks" of Obama supporters. It's fairly common for movies to experience large dropoffs in ticket sales from week-to-week. It's also fairly common for movies to get pirated. The other argument against a "concerted effort" to tank box office receipts is the timing. "2016:Obama's America" has been in the theaters 10 weeks and is due for a DVD release in October. As Zac Gille at Alt Film Guide asks: "Why now? Why not two months ago?"

“The reports of the movie appearing on Fox before the election are completely untrue," Dinesh D’Souza declared, "and we strongly suspect that they are the result of dirty tricks by our opponents who spread this rumor in order to confuse the general public and keep them from going to their local theaters."

If so, what an idiotic waste of time on the part of D’Souza’s and 2016 Obama’s America‘s "opponents." After all, the 2016 movie is fast on its way out.

So, why on earth would anyone in his/her right (or left, as the case may be) mind want to keep people "from going to their local theaters" to watch a movie that so few moviegoers care about at this stage? If an organized anti-2016 Obama’s America effort truly exists, then those guys have arrived on the scene a little too late. They should have acted five weeks ago, when the 2016 movie began its initially popular expansion.

Even if it turns out that a few Obama supporters did mount an effort to tank ticket sales, it would be tough to separate any possible impact from the misinformation campaign from the normal sales decline of any theatrical release. If anything, the piracy and misinformation plan backfired as the particularly loud response from the filmmakers can't help but draw more attention to the 10 week old film. Not only that, but uploading the movie to YouTube where it could be watched for free drives more viewers (and potential voters) to the film itself, a side effect the film's (alleged) opponents couldn't possibly have intended. However this turns out, we have a new tactic to add to the piracy pantheon -- piracy as political sabotage.

As Tim Cushing rightly noted earlier this week, the UK's "Free Speech" laws are more about the many things you can't say. As if to back up that view, in the last few days, there's been yet another case of somebody being arrested there for "an offensive Facebook page."

At this point, you might have written off the UK and its laws as a hopeless case, and made a mental note not to say anything rude if you ever go there. If so, you would probably assume that a new statement about social media prosecutions in a post from the UK's Director of Public Prosecutions (DPP), on the official blog of the Crown Prosecution Service (CPS), is just more of the same. Amazingly, it's not.

It relates to yet another, earlier, case where "a homophobic message" was posted to Twitter. Surprisingly, perhaps, given the UK's track record here, the authorities decided not to prosecute the person involved. The new blog post explains this decision, offering a series of eminently sensible reasons why it would have been inappropriate in the circumstances:

This was, in essence, a one-off offensive Twitter message, intended for family and friends, which made its way into the public domain. It was not intended to reach Mr Daley or Mr Waterfield [the subjects of the message], it was not part of a campaign, it was not intended to incite others and Mr Thomas [the sender] removed it reasonably swiftly and has expressed remorse.

Not content with this unexpected outbreak of good sense, the UK's DPP goes on to make some general observations that are equally notable:

This case is one of a growing number involving the use of social media that the CPS has had to consider. There are likely to be many more. The recent increase in the use of social media has been profound. It is estimated that on Twitter alone there are 340 million messages sent daily. And the context in which this interactive social media dialogue takes place is quite different to the context in which other communications take place. Access to social media is ubiquitous and instantaneous. Banter, jokes and offensive comment are commonplace and often spontaneous. Communications intended for a few may reach millions.

Well, indeed. And thus:

To ensure that CPS decision-making in these difficult cases is clear and consistent, I intend to issue guidelines on social media cases for prosecutors. These will assist them in deciding whether criminal charges should be brought in the cases that arise for their consideration. In the first instance, the CPS will draft interim guidelines. There will then be a wide public consultation before final guidelines are published. As part of that process, I intend to hold a series of roundtable meetings with campaigners, media lawyers, academics, social media experts and law enforcement bodies to ensure that the guidelines are as fully informed as possible.

He concludes with words that echo what many people in the UK have been thinking for last few years:

In my view, the time has come for an informed debate about the boundaries of free speech in an age of social media.

Pity it hasn't happened sooner, but better late then never....

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

Despite windowing and regional restrictions being the international sign for "PIRATE ME!" many content providers continue to throw artificial locks on their offerings. Their potential viewers soon discover that "2 weeks out" in TV network time means "3 hours or less" in TorrentTime. If the content providers truly believe that Piracy = Lost Sales, why aren't they doing more to eliminate the gap between the content's debut and its worldwide spread?

It's not as if it's impossible. Another case in point: New Zealand's TV3 is chopping away at the excessive (and arbitrary) delay between Showtime's American debut of Homeland episodes and their availability locally.

TV3 is going to screen the new series of Homeland just four hours after episodes play in the US – with episodes posted to TV3.co.nz's on demand service at midnight on the day of broadcast.

The timing is actually even tighter than that. Here's the breakdown directly from TV3:

Homeland episodes will screen 3 hours 25 minutes after the Pacific Time debuts in the US. That US-NZ gap will be consistent until there's a daylight savings change. The broadcast time in each country won't change.

With ondemand, we can have each ep available from midnight the same night.

As someone in the comments points out, that's roughly the same amount of time it takes for new episodes to show up at, um, "unlicensed" distributors:

4 hours would put it on schedule with me getting it off torrents, so quite viable to watch.

Beating free at its own game often simply means eliminating legacy remnants like exaggerated delays and other restrictions. Even though this move will likely trim down the number of fans looking elsewhere for new episodes, MediaWorks (TV3's parent company) refreshingly claims converting pirates is not the "primary motivation" for this move:

"TV viewing is increasingly a community event, and online communities are global rather than local," spokeswoman Rachel Lorimer told NBR.

"By screening international shows as close to their global premieres as practical, we ensure our audience is part of the global conversation around a big show and, of course, that keeps us relevant. Those are the main motivations.

How often do you hear a spokesperson for a large corporation (content or otherwise) talk about doing what's important for the fans rather than, say, the quarterly financial statements? Many, many content providers refuse to acknowledge that the internet has made "country of origin" a non-factor while also providing an incredibly powerful platform for both distribution and "global conversation."

Lorimer also acknowledges the side benefits of catering to the customers:

"However, positive side effects may well be that our viewers save on their broadband data cap and are less likely to risk illegally downloading TV series. And a win for viewers is a win for us."

Giving viewers what they want when they want it. It's a plan so crazy it might be profitable.