Over the last few years, Techdirt has been reporting on a steady stream of victories for open access. Along the way publishers have tried various counter-attacks, which all proved dismal failures. But there are signs that they have changed tack, and come up with a more subtle -- and increasingly successful -- approach.

Here, for example, is a fascinating analysis by Mike Taylor of what he calls "The progressive erosion of the RCUK open access policy". The RCUK is Research Councils UK, the umbrella group for the UK's seven Research Councils that hand out grants to academics. A year ago, RCUK released its draft policy on open access. As Taylor says:

it was excellent. It did not accept non-commercial clauses (on either Gold or Green OA), and allowed Green-OA embargoes of no more that six months (with a twelve-month exception for two humanities councils). "It is anticipated that the revised policy will be adopted in summer 2012"

A crucial issue here is the distinction between "Gold" open access, which takes place through journals, and "Green" open access, which uses online repositories. Here's how Wikipedia defines the two terms:

Green OA Self Archiving Authors publish in any journal and then self-archive a version of the article for free public use in their institutional repository, in a central repository (such as PubMed Central), or on some other OA website. What is deposited is the peer-reviewed postprint -- either the author's refereed, revised final draft or the publisher's version of record. Green OA journal publishers endorse immediate OA self-archiving by their authors.

and

Gold OA Publishing Authors publish in an open access journal that provides immediate OA to all of its articles on the publisher's website. (Hybrid open access journals provide Gold OA only for those individual articles for which their authors (or their author's institution or funder) pay an OA publishing fee.)

As Taylor noted above, the original RCUK policy did not accept non-commercial clauses for either kind, limited Green OA embargoes to six months (Gold OA would have no embargoes), and would start in summer 2012. Here's what happened afterwards:

July 2012: actual policy released. Weakened to allow publishers to impose non-commercial clauses on Green OA. (They didn't tell anyone they'd made this change, as far as I ever saw. I discovered it for myself.) "The policy applies to all research papers whose work was funded by RCUK being submitted for publication from 1 April 2013"

November 2012: RCUK announce that they will only fund APCs ["author processing charges" -- fees paid by authors' academic institutions so that articles can be released free of charge] for 45% of articles as Gold OA.

January 2013: RCUK announce that they "will not enforce" embargo periods.

February 2013: In response to House of Lords enquiry, RCUK clarifies "that it will gradually phase in its open access policy over a five year implementation phase". BIS [UK Government's Department for Business, Innovation & Skills] and RCUK both endorse embargo-period "decision tree" that allows embargoes of up to two years.

As Taylor puts it bluntly:

At every single step of the way, the RCUK policy has been weakened. From being the best and most progressive in the world, it's now considerably weaker than policies already in action elsewhere in the world, and hardly represents an increment on their 2006 policy.

And he asks:

Can anyone doubt that the nobbling of a truly progressive policy was the result of lobbying by a truly regressive publishing industry? It's been a tragedy to watch this policy erode away from something dramatic to almost nothing. Once more, it's publishers versus everyone else.

This seems to be the publishers' new strategy against open access: not to fight it directly, but to use constant lobbying to inflict a kind of death by a thousand cuts -- slicing off a provision here, lengthening an embargo there, pushing implementation further and further into the future -- until the final result is almost no different from the status quo.

Disturbingly, there are signs this has may be happening in the US, too. As Michael Eisen points out on his blog, the recent statement from the White House on public access to publicly-funded research has one retrogressive element that may presage worse to come:

When the NIH policy was announced, people like me who believe that publicly funded works should be immediately freely available looked at the 12 month embargo period as a kind of opening bid -- a concession to publishers that was necessary to get the policy off the ground, but which would ultimately disappear.

But now the White House has taken the 12 months embargo period and reified it. Year long delays are no longer an experiment by one agency. They are, in effect, the law of the land.

Moreover:

Clearly the publishers got what they wanted out of the White House. And do you really think it’s going to stop there? They have established their ability to corrupt policy making, and will continue to exploit it. I predict that as these policies are implemented in different agencies, that they will be heavily tilted towards what the publishers want. There will be no central archives – just links out to publishers websites. And there will be pressure to increase -- not decrease -- embargo periods.

Just as they have already done in the UK.

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So, as the deluge of hate towards Instagram got louder and louder concerning its terms of service change, the company has now come out and said that it will change the terms and, of course, that it never meant them to be read the way people were interpreting them, and that it plans to adjust the terms so that people aren't so damn angry at them. On the question of "advertising on Instagram" they note:

From the start, Instagram was created to become a business. Advertising is one of many ways that Instagram can become a self-sustaining business, but not the only one. Our intention in updating the terms was to communicate that we'd like to experiment with innovative advertising that feels appropriate on Instagram. Instead it was interpreted by many that we were going to sell your photos to others without any compensation. This is not true and it is our mistake that this language is confusing. To be clear: it is not our intention to sell your photos. We are working on updated language in the terms to make sure this is clear.

To provide context, we envision a future where both users and brands alike may promote their photos & accounts to increase engagement and to build a more meaningful following. Let's say a business wanted to promote their account to gain more followers and Instagram was able to feature them in some way. In order to help make a more relevant and useful promotion, it would be helpful to see which of the people you follow also follow this business. In this way, some of the data you produce — like the actions you take (eg, following the account) and your profile photo — might show up if you are following this business.

The language we proposed also raised question about whether your photos can be part of an advertisement. We do not have plans for anything like this and because of that we're going to remove the language that raised the question. Our main goal is to avoid things likes advertising banners you see in other apps that would hurt the Instagram user experience. Instead, we want to create meaningful ways to help you discover new and interesting accounts and content while building a self-sustaining business at the same time.

I'm sure this won't mollify some, but it is more or less what we had assumed they were trying to do in the first place. The blog post similarly notes that they're not claiming copyright on your images, nor are they mucking with your privacy settings.

In the end, we stand by our initial analysis: almost all of the complaints against Instagram's new terms of service were quite similar to complaints made against other terms of service in the past few years when someone got around to reading the details, which are hard to understand because of the annoying legalese that the lawyers want you to put in. Instagram -- and especially its new owners at Facebook -- should have realized ahead of time what was about to happen. They could have cut off an awful lot of this mess if they had posted a similar blog post before the new terms were released, or with the new terms explaining what they were really trying to do and why. When you let people imagine the worst, they will do so.

Jeff Price, who was recently pushed out of TuneCore after building one of the premiere new tools for musicians to take control over their careers, is continuing to think deeply about the state of the music business, as he figures out what's next. He's penned a really fantastic piece that explores how technology and innovation have completely disrupted the old recorded music business hitting on a few key points. I'd recommend reading the whole thing, but I'll highlight a few key snippets. First up, he notes the general shift in the music business from a world where artists were completely at the mercy of gatekeepers to one where that's no longer the case, almost entirely due to technology.

Until recently, the music industry provided artists one path, and one path only, to reach and connect with their fans and monetize their pre-recorded music. Artists had to sign to a record label, transferring ownership of copyrights, relinquishing exclusive artistic control, and giving up most of the revenue from the sale of their recordings. Fans could only buy pre-recorded music in physical form from retail outlets from the limited number of artists that labels chose to anoint. Labels were aware of their unique position and took full advantage of it by gouging both artists and music fans.

He goes on to point out that the reason the labels were able to do this was because of four key factors that only the major labels could really provide:

Four main reasons: barriers to recording, manufacturing, distributing, and marketing music were virtually insurmountable.

However, he notes that all four of these areas have been disrupted by new technology, and that process is continuing, such that the key advantages that the major labels have continued to rely on are slowly disappearing as well:

First, it’s far cheaper to record now than it ever has been before. In addition, the level of expertise needed to record has dropped considerably. With a laptop, some one-time purchases of software and some hours to learn how to use it, a home recording studio can be created for the cost of one day’s recording at a high-end studio.

Second, in the digital world there is no up front cost or risk to manufacture inventory. The music is available in unlimited quantity as a digital file that replicates on demand only after it’s bought or accessed to stream.

Third, music fans have shifted from buying CDs in stores to buying/streaming music on-line. Now an artist, for a nominal fee and the click of a button on a website, gets an unlimited amount of self-replicating inventory with no up front cost into the world’s largest music retail stores (i.e. iTunes is larger than Walmart ever was), all while keeping their copyrights.

Fourth, there is now equal access to music discovery outlets – YouTube, blogs, Slacker, Pandora, Spotify, digital music stores’ discovery features, Twitter, Facebook and other social networking applications are open to everyone, not just the elite few artists signed to labels. The only media outlet not open to everyone is commercial radio, but with that going the way of the 8-Track over the next few years, the last stranglehold of the traditional music industry will be gone.

Because of this, you no longer are required to deal with a major label. The majors do still dominate radio play, but the piece also digs in (in great detail) as to why Price thinks terrestrial radio is about to be completely destroyed by technology as well (think: once interactive streaming is standard in cars and on phones...). But the major labels haven't done that much to adapt to this pretty massive change to their market. And that's caused them a lot of problems (as seen in their bottom line). Of course, rather than admitting their own failures in adapting, they've basically tried to blame pretty much everyone else. Price highlights the ways in which they've tried to cope:

• Sue music fans for copyright infringement
• Create more onerous agreements between labels and artists requiring them to give up even more of their copyrights, not fewer (the infamous “360deals”) while providing less value.
• Use antiquated royalty accounting systems and provisions to slow down or reduce royalty payments owed.
• Stifle innovation under the guise of “protecting” copyright (As one example, the majors made it a condition that they must own a piece of Spotify in order for Spotify to have access to their music).  
• Killed artist development and long term careers in a mad dash attempt to make money as quickly as possible.  
• Feed the media as much false information as possible (i.e. the entire music industry is dying) in an attempt to discredit, slow down and delegitimize the new emerging industry. 

Of course, almost every one of these moves actually does more to hurt their longterm sustainability than to help it. Basically, every one of these moves has been bad for both consumers and artists -- and that's no way to adapt to the digital era. Price notes that the transformation from the old era to the new digital era is now "complete," as the key things that made the old record labels so powerful is almost entirely whittled away by technology. That doesn't mean that innovation is over, by any means. As is typical in times of disruption, many many artists are still struggling greatly to figure out how the new world works. The rules have changed drastically (with many new ones being written and rewritten on the fly). There are plenty of failures, but a growing number of success stories. And that should only increase as more people learn to harness these new technologies and services, realizing they're not quite as scary have some have made them out to be. But there is a learning curve and it's a painful curve for some.

Either way, it's great to see Jeff lay out all of this in one place, and it shows that he's still thinking about the nature of the industry and where it's heading next. While many from the old industry still look at the future and try to figure out how to hold it back, more and more are realizing that the right play is to move forwards, quickly.

We've been unabashed champions of crowdfunding and platforms like Kickstarter for quite some time now, though we've also tried to temper some of the hype. A little over two years ago, for example, we used the story of the open social network Diaspora as a possible warning for some of the initial excitement about projects. Much of that comes from just knowing what entrepreneurs go through: the initial idea is exciting, but things change over time, and expectations change... and some projects fail. When you're dealing with investors, that's one thing -- they're sort of designed to expect such a thing. But crowdfunding had a different vibe. Because people got so excited in the idea and really (quite literally) bought into it, we worried that as some projects failed, it might lead to a serious backlash.

It may be a coincidence that we highlighted this risk with Diaspora (one of the first Kickstarter projects to go really "big") a couple years ago... but it's possible that our worries are coming true. Last week, I saw a report from Liz Gannes at AllThingsD, which suggested that the Diaspora team was focusing on something completely different, a "collaborative web remixing tool" called Makr.io. The team definitely went through some significant hardships so it's not that surprising that they've shifted gears. Given that story, it's hardly a surprise that they're now officially "handing control of the project over to the community." They claim they'll still be playing an important role, but it seems pretty clear this is an effective withdrawal from the project, which never really caught on the way some people hoped.

And, of course, this isn't just limited to Diaspora. Bloomberg recently had a (well-timed) story highlighting how an awful lot of successful Kickstarter projects, at the very least, don't meet their deadlines to actually make or ship a product. This has turned at least some people off to the service, which (again) is unfortunate.

Of course, these kinds of platforms are only a few years old, and of course they're going to go through growing pains. I hope that, as they continue to grow and find success, at least there's some greater recognition -- and public admission -- of the potential risks involved, so that they don't take people by surprise, and that people understand that as much as they love an idea, execution is the truly hard part. Investing in the idea is great, but there's a risk involved that the end result won't match the snazzy video that the team put together for Kickstarter in the first place.

One of the important things with online services is that users need to feel a certain level of trust with the service providers they use. Otherwise why would they take the leap and use them. It's no surprise that service providers often end up changing the terms of service to keep up with the times, legal changes or changes to the service itself. But, when you make a big change in the terms of service -- one that fundamentally alters what people thought they were signing up for, that's a pretty big problem. A bunch of folks have sent in the news that Kodak has changed their terms of service, such that its "free" photo sharing site (which was formerly Ofoto) is no longer free at all, but will cost users $5/year in additional services (i.e., you have to buy $5 worth of prints/year). If you don't, Kodak will simply delete your albums.

Now, obviously, Kodak is doing this to try to increase its revenue and get those who don't bring in much money off the site. Kodak certainly has every right to try to come up with a better business model. But, in changing the terms of what people had already agreed to, and in doing so, threatening to delete their photos and "treasured memories," it seems that Kodak is absolutely killing any level of trust people might have had with the site. There are tons of competitors out there (many of which do still include free options). Kodak may not mind the free users going elsewhere, but breaking that bond seems like a massively dangerous idea. Those "free" customers still can generate some revenue -- but they won't at all if you piss them off by suddenly charging them for what was previously free or deleting their photos.