We recently wrote about the fact that Michael Jackson copied the bass line for his famous song Billy Jean from Hall & Oates, who then admitted to having copied it themselves. Now, reader gort-o-matic points us to another legendary musician with a similar story. Bruce Springsteen, in his keynote address at SXSW, talked about how he copied riffs from his favorite bands, and encouraged young artists to do the same. (You can hear the relevant highlights at that link, or the entire keynote here)

For me, it was The Animals. ... "We Gotta Get Out Of This Place" had a great bass riff, you know it had that—[plays riff on guitar]—and that was just a clock, a clock marking time. [sings the first few lines] That's every song I've ever written. "Badlands", "Prove It All Night", "Darkness" was filled with Animals. Youngsters, watch this one. I'll tell you how it's done right now. I took "Don't Let Me Be Misunderstood" [hums and strums the Animals riff, then transitions into his song Badlands]—It's the same fucking riff man. Listen up youngsters: this is how successful theft is accomplished.

Okay, so he calls it "theft" which it really isn't, but I'm less bothered by that when artists are using it as a playful term for copying than when they use it to try to give false emotional resonance to infringement. The point remains the same: artists (and I don't think anyone can argue that the The Boss is not a bona fide artist) copy and build upon the work of others. Michael Jackson and Bruce Springsteen are high-profile examples, but they are just a drop in the bucket. Every artist, big and small, does the same thing. It's not being unoriginal, it's just how art works.

As the administration continues to be ridiculously secretive about negotiations on the Trans Pacific Partnership (TPP) agreement, it seems that even various state governments are growing concerned about the process. The Maine state legislature issued a joint resolution demanding that the administration be much more open in how it negotiates international trade agreements. The resolution states that it strongly supports good international agreements, but that they need to be open and transparent. It notes that the lack of transparency has meant that trade negotiations have come to agreements against states' own interests and that the negotiators do not consult the states, despite the massive impact these agreements have on state economies. Then it specifically calls out the TPP, and says that the administration must improve the process. Here's just a few of the lines from the resolution, though you can read the whole thing at the link above.

WHEREAS, existing trade agreements have effects that extend significantly beyond the bounds of traditional trade matters, such as tariffs and quotas, and can undermine Maine's regulatory authority and constitutionally guaranteed authority to protect the public health, safety and welfare; and

WHEREAS, a succession of federal trade negotiators from both political parties over the years has failed to operate in a transparent manner and failed to meaningfully consult with states on the far-reaching impact of trade agreements on state and local laws, even when binding the State of Maine to the terms of these agreements; and

WHEREAS, the negative effect of existing trade agreements on Maine's regulatory authority and constitutionally guaranteed authority to protect the public health, safety and welfare has occurred in part because United States trade policy has been formulated and implemented in a process that lacks transparency, fails to properly recognize the principles of state sovereignty and lacks any meaningful opportunity for congressional review and acceptance; and

WHEREAS, the United States Trade Representative is currently negotiating the terms of a proposed Trans-Pacific Partnership Agreement, which will have a significant effect upon the citizens and commerce of the State of Maine; and

WHEREAS, there is a current opportunity for improving the process by which significant foreign trade policy agreements such as the Trans-Pacific Partnership Agreement are negotiated; now, therefore, be it

RESOLVED: That We, your Memorialists, respectfully urge and request the President of the United States and the Congress of the United States to improve the process by which United States trade agreements are developed and implemented in order to encourage meaningful transparency and appropriately acknowledge the vital role of state sovereignty and afford more meaningful opportunity for congressional review and acceptance

When even the state governments are complaining about the lack of transparency in trade negotiations that impact them, can the USTR really continue to pretend that there are no problems with the way it goes about these negotiations?

It appears that the UK Parliament is asking for thoughts from the public on six key policy questions around intellectual property. You can be assured that the large lobbying organizations will make their voices heard, but it would be great if others in the UK, who have a more modern and nuanced view of what's happening around intellectual property issues, would make their voices heard as well:

1) What should the objective of IP policy be?

2) How well co-ordinated is the development of IP policy across government? Is IP policy functioning effectively on a cross-departmental basis? What changes to the machinery of government do you believe would deliver better IP policy outcomes?

3) There have been numerous attempts to update the IP framework in the light of changes brought about by the digital environment. How successful have these been and what lessons can be learnt from these for policy developments?

4) How effective is the Intellectual Property Office and what should its priorities be?

5) UK IP policy sits within European and supranational agreements. How should the UK government co-ordinate its policy at an international level and what should it do to promote IP abroad to encourage economic growth? Do you have examples of good and poor practice in this area?

6) Protecting, and enforcement of, the IP framework often sits in very different departments to those that develop IP policy and those that have responsibility for the industries most affected. What impact does this have and how can it be improved?

If you do decide to respond, obviously take time to carefully detail your position and back it up with facts and analysis, rather than any sort of emotional response. The details of how to respond to the request can be found in the official announcement (pdf) of this inquiry. It's worth noting that the group organizing this does appear to come at these questions from an already biased position -- in that the person collecting these responses works for "the Alliance Against IP Theft." So, you're already dealing with someone who falsely defines infringement as theft. That's all the more reason to be careful, thorough and detailed in any response.

Hamburgers are one of America's best-known foods, and McDonald's has popularized this kind of fast food all over the world. (The Economist even publishes its Big Mac Index to compare national economies according to the price of McD's iconic burgers.) Here are just a few more interesting tidbits with all-beef patties, special sauce, lettuce, cheese, pickles, onions -- all on a sesame seed bun.

• McDonald's stopped using pink slime in its burgers since about August of 2011. It's interesting that no one seemed to notice any difference in taste over the last few months.... [url]
• Happy Meal toys cost extra in San Francisco, due to a city law aimed at preventing kids from eating unhealthy fast foods. Outlaw toys and only outlaws will have toys? [url]
• Japanese folks who love burgers will be able to order a Big Mac from their car's navigation system. Next: autonomous vehicles will pick up your food and deliver it to you. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

After Sarbanes-Oxley came into effect, it made it exceptionally more difficult for startups to go public. The additional expense of going public was prohibitive for all but some of the very, very biggest success stories. Clearly, in the late '90s it was too easy to go public, but Sarbanes-Oxley went too far in the other direction. There are some efforts underway today to carve out some reasonable exceptions for successful, growing startups that will allow them to go public without taking on the full expense of SOX compliance, but the other thing that happened was that the industry just routed around the limitations, often setting up private secondary markets/exchanges for pre-IPO shares. In many ways, this is a worse situation from a public policy situation, because it limits these markets to just those well-connected enough to access them, rather than to the wider public.

Of course, I've also wondered how these were legal, as they often appeared to be offering up shares outside of the basic rules of equity offerings under the SEC. It appears that the SEC has finally noticed this as well:

Securities regulators took enforcement action against an online trading platform and two private funds offering Facebook shares on Wednesday, the first action in a year-long probe into the lightly regulated world of private company-share trading.

The Securities and Exchange Commission charged SharesPost, which matches buyers and sellers of private shares, and its CEO Greg Brogger with failing to register as a broker-dealer before offering the securities.

The SEC also brought charges against two private funds and their managers for allegedly misleading investors about hidden fees in Facebook stock offerings.

Of course, this is all going after the symptoms of the larger problem, rather than dealing with the actual problem, created by excessive SOX rules. Allow for a more reasonable setup for successful companies to actually access the public markets, and there's no more demand for these private offerings.

We recently covered a plan, hatched at SXSW, to crowdfund a billboard in Lamar Smith's home district, with the statement "Don't Mess With The Internet" on it -- in response to Smith's sponsorship of a series of anti-internet bills, most notably, SOPA. First the good news: the crowdfunding campaign reached its $15,000 goal, so it was funded.

However, it's worth noting that the folks over at the Austinist blog have mocked the plan, insisting that it infringes on Texas' trademark on "Don't Mess With Texas" (also the Austinist article seems to go back and forth between trademark and copyright, not recognizing that the two are different). Texas' Department of Transportation (DOT) holds a trademark on the phrase as part of its anti-littering efforts. I had actually thought about this earlier, as we've written about how the state of Texas has been overly aggressive with the trademark, such as going after book authors who have used the title.

Of course, there's a big problem here if Texas does decide to challenge this particular billboard: trademark law covers use in commerce. The billboard in question is not selling anything, is not used in commerce and is pretty clearly protected political speech. The Austinist blog seems to assume, incorrectly, that a trademark is a blanket rule that blocks any such use by anyone ever. That's wrong. It wouldn't surprise me to see Texas still complain and maybe even file a lawsuit, but I can't see how it has any chance of winning at all. In fact, if it did go down that path, the state of Texas might quickly learn that you "don't mess with the internet."

If anyone has gotten the streaming sports thing right in the past, it's been NCAA Basketball. I've actually pointed to them as an example in the past of how the rest of the sporting world should embrace streaming their games and advertise the hell out of the experience. Rather than locking down access to viewership, like the MLB, NBA, NFL, and NHL, the NCAA Basektball Tournament got it right, partnering with broadcasters to stream the games to their sites free of charge, with all the advertising one would expect on television. It was a wonderful method for ensuring that one of my monitors at work had their games on. It made it certain that I'd be that weird guy staring at images on his phone while taking the train home from work. It confused my neighbors as to how I could somehow simultaneously grill steaks on my deck while announcers went ballistic over last second hail mary shots as time ran out on the clock. I was engaged (sorry Mom and Dad, I mean engaged to the game).

And now they've taken that all away from me. To be fair, they're still streaming the games. And they promise that the streams will work across multiple platforms (computer, iPad, iPhone, Android devices, etc.). And it only costs $4.99 for the entire tournament.

But that's where the lie in all this is. It's not just $4.99 to watch the tournament on every device other than my television (where it's FREE!). There are serious mental transactions to consider here. Like most red-blooded Americans, I'm in an NCAA office bracket. Something like half the games in the tournament take place during work hours across the country. Most of us don't have televisions at our desks, in our cubicles, wherever. Watching at work is kind of the whole point here, with all the ducking and dodging from our bosses we have to do as a result. Now, we can argue all we want whether watching the tourney at work is productive or a good idea, but from the NCAA's standpoint, they shouldn't care at all. They should want people to watch. Asking them to pay $4.99 to do all of this is a massive fail, particularly since all of those same advertisements that were in place remain.

So...they're charging for something that used to be free...without adding any benefit. I watched the games on their feeds the past couple of years. This year, not so much. The obvious question is does the money they're making from the $4.99/subscriber outweigh the eyeballs that are no longer watching the advertising because of that cost. Maybe those in the comments can change my mind, but I'm fairly certain there's more folks like me out there than people buying the "package".

This is pretty big. Last month, we wrote about a This American Life episode that focused on the Foxconn factories where Apple products are made, based on a one-man show by Mike Daisey. I wrote about a few key points in the episode -- including some of the more interesting claims from those who were used to "fact check" his story. Apparently, that fact check did not go nearly far enough. Marketplace reporter Rob Schmitz, who is quite familiar with the factories in China, found large parts of the story questionable, and did some followup reporting, finding Daisey's translator and discovering that things Daisey said turned out not to be true. He then confronted Daisey with Ira Glass from TAL, and got Daisey to admit that he fabricated parts of the story, though he still appears to be in denial about how bad this looks:

I stand by my work. My show is a theatrical piece whose goal is to create a human connection between our gorgeous devices and the brutal circumstances from which they emerge. It uses a combination of fact, memoir, and dramatic license to tell its story, and I believe it does so with integrity. Certainly, the comprehensive investigations undertaken by The New York Times and a number of labor rights groups to document conditions in electronics manufacturing would seem to bear this out.

What I do is not journalism. The tools of the theater are not the same as the tools of journalism. For this reason, I regret that I allowed THIS AMERICAN LIFE to air an excerpt from my monologue. THIS AMERICAN LIFE is essentially a journalistic - not a theatrical - enterprise, and as such it operates under a different set of rules and expectations. But this is my only regret. I am proud that my work seems to have sparked a growing storm of attention and concern over the often appalling conditions under which many of the high-tech products we love so much are assembled in China.

The problem, of course, is that it now appears that many of the things he was claiming weren't actually true of the plants he wrote about. There was one story that recounted events that did happen, but at a different plant 1,000 miles away, and which Daisey did not witness at all.

In the meantime, This American Life has retracted the entire show (link is down as of right now), and apparently plans to air a new show today that details what happened and has a detailed apology from Ira Glass (who just recently on the show was telling listeners to go see Daisey's full one man show).

It is true that Daisey is a storyteller, not a reporter, and that's fine in the right context. But once it got to the point that journalistic outfits were reporting on his story -- or even letting him repeat it on the air, he had every responsibility to be clear about the parts that were simply fabricated.

Well, that was fast. We recently wrote about a UK pub called The Hobbit that was threatened with legal action by the Saul Zaentz Company (SZC), which owns certain trademarks associated with the franchise. Perhaps because of the immediate backlash (which included public condemnation by Stephen Fry and Ian McKellan, both of whom are starring in the upcoming film adaptation of The Hobbit), producer Paul Zaentz told the BBC that he is prepared to offer the pub an inexpensive license:

"When it's an established business, we like to get the company to acknowledge they are using our trademarks, stop selling infringing articles and then we will grant them a licence for a nominal fee - approximately $100 a year."

"We asked to them to contact us and amicably resolve this and are open to any suggestions they have. I'd be glad to raise a pint with them the next time I'm over."

Frankly, it sounds like Zaentz is just trying to smooth over the PR nightmare he was facing. It's hard to amicably resolve a dispute with someone who is already threatening you with legal action. Friendly negotiations come before threats, not after. Why didn't Zaentz just offer them the license in the first place? His description of the process is basically "meet all of our demands, then we'll talk."

All the coverage of this story mentions trademarks and copyrights in passing, without ever being clear about what rights were supposedly violated. Either way, it's entirely possible that SZC does have a valid legal claim here, on at least some of the things the pub was doing—but if they want to pursue those claims, then they have to face the backlash from people who think they are being petty. They can't just make it all okay by offering to have a beer together, while their lawyers still lurk in the wings.

A few months ago, in writing about a fascinating interview between Jack Abramoff and Larry Lessig, we talked about Abramoff's admission that the best way to "buy" a Congressional staffer was to merely let them know that they had a lobbying job waiting for them "whenever they wanted it." He noted that, after that, those staffers basically worked for Abramoff more than working for their own elected official. He did also note that it was often much more effective to do this with staffers rather than the elected officials themselves, but clearly it happens all the time with elected officials too.

Republic Report has looked up the details on some former elected officials who became lobbyists and noted that, on average, they got a boost in salaries of 1,452%. Also of note: they can negotiate these deals while still in office and don't have to tell anyone about them or even reveal what their salaries are. That can lead to clear conflicts of interest that are mostly ignored by the public and the press:

For example, former Senator Judd Gregg (R-NH) spent his last year in office fighting reforms to bring greater transparency to the derivatives marketplace. Almost as soon as he left office, he joined the board of a derivatives trading company and became an "advisor" to Goldman Sachs. Risky derivative trading exacerbated the financial crisis of 2008, yet we’re stuck under the laws written in part by Gregg. How much has he made from the deal? Were his actions in office influenced by relationships with his future employers?

There's definitely a lot of fluctuation in how much these former Congressional Reps and Senators make as lobbyists, but it's clearly a lot more than they were making previously. Here are just a few examples (the article has many more), including our old buddy Chris Dodd:

Former Congressman Billy Tauzin (R-LA) made $19,359,927 as a lobbyist for pharmaceutical companies between 2006 and 2010. Tauzin retired from Congress in 2005, shortly after leading the passage of President Bush’s prescription drug expansion. He was recruited to lead PhRMA, a lobbying association for Pfizer, Bayer, and other top drug companies. During the health reform debate, the former congressman helped his association block a proposal to allow Medicare to negotiate for drug prices, a major concession that extended the policies enacted in Tauzin’s original Medicare drug-purchasing scheme. Tauzin left PhRMA in late 2010. He was paid over $11 million in his last year at the trade group. Comparing Tauzin’s salary during his last year as congressman and his last year as head of PhRMA, his salary went up 7110%.

Former Senator Chris Dodd (D-CT) makes approximately $1.5 million a year as the chief lobbyist for the movie industry. Dodd, who retired from the Senate after 2010, was hired by the Motion Picture Association of America, the lobbying association that represents major studios like Warner Bros. and Universal Studios. Although the MPAA would not confirm with Republic Report Dodd’s exact salary, media accounts point to $1.5 million, a slightly higher figure than the previous MPAA head, former Secretary of Agriculture Dan Glickman. Dodd received about a 762% raise after moving from public office to lobbying.

Former Congressman Steve Largent (R-OK) has made at least $8,815,741 over the years as a lobbyist for a coalition of cell phone companies and related wireless industry interests. Republic Report analyzed disclosures from CTIA-The Wireless Association, the trade group Largent leads. CTIA counts wireless companies like AT&T, HTC, and Motorola as members. Largent left Congress in 2002, when his pay was about $150,000 as a public official. His move to the CTIA trade association, where he earns slightly more than $1.5 million a year according to the latest disclosure form, raised his salary by 912%.

And people wonder why the American public feels that Congress is impossibly corrupt.

One of the unresolved problems of copyright is how to deal with huge numbers of orphan works -- creations still in copyright, but whose owners can't be traced to give permissions that may be necessary for re-use. The European Parliament's JURI committee met recently to vote on a new report on possible permitted uses of orphan works, prepared by the Polish Member of the European Parliament, Lidia Geringer de Oedenberg.

As Rick Falkvinge writes, things didn't go too well for those hoping to free up orphan works for modern use:

the copyright industry lobby won key points in the voting procedure with 14 votes against reform and 12 in favor of it, according to the just-published protocol.

End of story, you might think. But Geringer de Oedenberg noted something strange with the voting:

During the vote I was making precise notes as to the balance of votes in favour and against to my crucial amendments.

It came to me as a surprise that for my Compromise Amendments 20 check vote announced by the Chair was 14 to 12 which gives us 26 Members!

Considering that we only have 24 Members in Juri Committee and according to the protocol only 23 were present this result is confusing and calls for clarification.

Similar situation appears on Amendment 71 (Ms. Gallo and Mr. Borys) which pass with the result announced 13 to 12 what gives as 25 Members and my Amendment 32 which fall 13 to 11 -24 Members.

So the question has to be asked: did the copyright industry lobby really win, or was there some miscounting along the line? To avoid the impression of anything improper going on here, it's vital that those votes be taken again. After all, as Falkvinge points out:

The final kicker here is that the 113-per-cent voter turnout happened in the Legal Affairs committee (JURI), which has the responsibility of safeguarding the integrity and trustworthiness of the legal framework as a whole in Europe.

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

Music lawyer Chris Castle has a talent for totally missing the point and then failing to make one of his own. In a recent blog post, he launches an attack on Michael Geist based on a completely incorrect interpretation of a statement he made to a parliamentary committee in 2010. Geist's position will be familiar to regular Techdirt readers:

The truth is that you can compete with free content if you provide value. One of the really exciting things about the Internet is that we’re seeing innovators coming up with all kinds of different ways where they can add value and entice the customer too.

Castle proceeds to tear Geist's statements apart based on a fundamental misunderstanding of the concept of value:

We have heard this trope before. If only the artist provided something of value—besides the music. Because the music is of no value because it is "free"—that is, it has no value because it is widely stolen and has become devalued, so the artist now has to “add value” to the music.

If Castle has heard this before, then he should know that there is a bit more nuance to what free-culture proponents mean when we talk about adding value. Perhaps this is our fault for failing to handhold him through all the basic economic concepts that lead up to this position, and for using "added value" as a convenient shorthand for "additional scarce value". But really, if Castle wasn't so bent on condemning Geist, he could have figured it out for himself: nobody is saying music has no value. That would be a ludicrous claim: people love music, and it has exceptional value, but it is also non-scarce and non-rivalrous, meaning its price inevitably falls to zero. But smart artists can use music to build a brand, and an audience who will pay for other, scarce things—and that doesn't just mean t-shirts. It doesn't even have to mean something tangible and concrete: access, convenience and authenticity are all abstract scarcities that people value a great deal, and all can serve as excellent reasons to buy.

Castle also decries the fact that, supposedly, nobody cares about songwriters when discussing new models for artists. Of course, songwriters have an extremely valuable scarcity at their disposal: their ability to write new songs. That ability has plenty of value to musicians, producers and labels, which is why songwriters can pull impressive rates up-front. Why do they and their children deserve to receive ongoing payments for work that is 20, 50 or even 100 years old? Good songwriters are in high-demand, and they can parlay the success of their last song to get bigger, better commissions and charge higher rates. You don't see architects asking for royalties every time someone walks through the doors of a building they designed—they, like professionals in virtually every other field, know they have to keep working if they want to keep making money.

Next, Castle brings it all back to the supposed "tech oligarchy" and their "monstrous behavior," using some blatant weasel-wording and factual inaccuracies:

Make sure you add something of value, because the music and the songs are valueless, so why should Isohunt or Limewire or Megavideo pay the artist for them. All that subscription and advertising revenue that Megavideo and Google made off of piracy? That compensates these innovators for providing the promotional opportunity because obscurity is the artist’s biggest enemy, right?

Wrong.

No, not wrong. Is Castle really denying that obscurity is the first and most important hurdle for an artist to overcome? It wouldn't matter if people were buying CDs for $100 each—if they haven't heard of you, you aren't going to make any money. Of course, he also glosses over the fact that Megaupload did pay artists—the ones who embraced the service as a way to sell directly to their fans. Meanwhile, those who feared it handed a potential revenue stream to the pirates. Even more amusing is his lumping together of Megavideo and Google, as if they were essentially the same thing despite being so different that there's barely any comparison.

Castle's post is full of statements like "once again" and "we've heard this trope before." Maybe next time he hears it, he should actually make the effort to understand it, instead of wasting his time railing against ridiculous straw-men.

Marco Arment, the creator of the popular read-it-later tool Instapaper, has an excellent blog post discussing copying, innovation, and the best ways to react to competition. Arment discusses a new Instapaper competitor called Readability, which launched last week and received a lot of praise for including custom fonts, something Instapaper lacks:

I could have interpreted this defensively and complacently: “Georgia and Verdana are great, versatile, highly screen-readable fonts! I don’t need to do what competitors do! Newer isn’t always better! My crusty old fonts have some technical advantage that you don’t care about!” And so on.

That would have just made me look stubborn and out of touch, failing to understand (in fact, trying very hard not to understand) why newer fonts could be attractive to customers, and failing to admit that I should have done it first.

Instead, I’m taking this misstep as a wake-up call: I missed an important opportunity that’s necessary for the long-term competitiveness of my product. So I’ve spent most of the last week testing tons of reading fonts, getting feedback from designers I respect, narrowing it down to a handful of great choices, and negotiating with their foundries for inclusion into the next version of Instapaper. And the results in testing so far are awesome. I wish someone had kicked my complacent ass about fonts sooner.

Reacting well to competition requires critical analysis of your own product and its shortcomings, and a complete, open-minded understanding of why people might choose your competitors.

This is someone who understands how innovation and iteration really work. Interestingly, when Readability was announced last year, it had a different focus and was actually going to work in conjunction with Instapaper, but then it morphed into a direct competitor. At the time, other developers tried to shame them for that, but Arment himself was unsurprised and untroubled, saying "this is a very big and increasingly crowded market, and there’s no reason why we can’t respectfully share it."

He never tried to claim that copying was wrong or even unneighborly—not then, and not today. Arment clearly respects his competitors, recognizing what they bring to the table and using it as motivation to improve his own product. That's the mark of a true innovator.

One of the key cases in the Righthaven saga is the case against the Democratic Underground. While it seemed to take a backseat to the Hoehn case, the Democratic Underground case was one of Righthaven's first big overreaches, and was rather important for revealing that the copyright transfer between Stephens Media's Las Vegas Review Journal and Righthaven was a complete sham. On Friday there was another ruling in that case that actually makes two very important points that could be quite helpful in other cases (even if this is only at the district court level). As put forth in the ruling (pdf and embedded below):

THE COURT HEREBY DECLARES AS FOLLOWS:

1. That Counterclaimants Democratic Underground and David Allen have committed no volitional act giving rise to a claim for direct copyright infringement. Counterclaimants neither posted the excerpt nor encouraged the posting. Nor did they have any knowledge of the posting until after this suit was filed. See Religious Tech. Ctr. v. Netcom On-line Commnc’n Servs., 907 F. Supp. 1361 (N.D. Cal. 1995) (direct copyright infringement requires “some element of volition or causation which is lacking where a defendant’s system is merely used to create a copy by a third party”); see also CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544 (4th Cir. 2004) and Cartoon Network LP v. CSC Holdings, Inc,, 536 F.3d 121 (2d Cir. 2008).

2. That the act of posting this five-sentence excerpt of a fifty sentence news article on a political discussion forum is a fair use pursuant to 17 U.S.C. § 107, and that the fair use doctrine provides a complete defense to the claim of copyright infringement from which this suit arose. Judgment on the Counterclaim is accordingly entered in favor of Democratic Underground and against Counter Defendant Stephens Media, LLC.

That first one is the really important one. Righthaven relied heavily on the fact that it could sue sites that had not officially designated a DMCA agent, arguing that if you don't do that, you don't get any of the DMCA safe harbor protections. While you absolutely should designate an agent if you run a blog and allow any commenting on your site, I've always suspected that if it went to court, a site that did not designate an agent wouldn't automatically be liable for postings of its users. That's because it's just common sense that liability should be on the person doing the posting, not the tool used to do so -- even if the owners of the tool didn't designate a DMCA agent.

And that's basically what part 1 of the ruling above states. Even without a designated DMCA agent, the court found that the Democratic Underground site was not liable for direct infringement, because there was no element of "volition or causation" by the site itself. This is pretty important, and hopefully other sites that are sued without having designated an agent will similarly push back on claims that this automatically makes them liable. Good to see common sense applied here.

The second point is also important, noting that a five sentence excerpt of a longer article, with a link back to that article, is fair use. Considering how many newspapers have been trying to claim otherwise, it's nice to see this stated in black and white yet again.

Kudos to Judge Roger Hunt for a simple and to-the-point affirmation of common sense against Righthaven.

Philip Trippenbach, a journalist and game designer who now works in public relations, responded on his blog to a letter from a recent J-school graduate seeking his advice on finding full-time journalism work. This is something a lot of would-be reporters struggle with: the market is in such a state of flux, and legacy news outlets are doing so little hiring, that the "traditional" career paths for journalists have all but disappeared. But as Trippenbach explains in his response, that doesn't mean there are no opportunities -- they are just very different:

Make no mistake: traditional, platform-based journalism is being crushed, and its dust will blow away on the winds of the internet. I know this is a melodramatic way to put it, but it’s an important point to make. Newspaper, television and radio journalists now are all in the position of itinerant bards at the advent of the printing press.

The good news is that there’s never been a better time to be a journalist. The bards have disappeared, but we still sing, and we still spread news. Just so, the digital sphere is growing fast as the blast front of an explosion. Good skills in writing, producing video and audio are more important than ever. They just need to be couched in an understanding of sharing and search – the air and water of the internet. There’s no use writing if your content can’t be shared or found. A mediocre piece optimized for social sharing will beat a piece of beautiful content without links every time. So you need to intuitively understand the answers to two questions:

1. What makes people share stuff? Will they want to share this? How will they share it, when they find it?
2. How do people find stuff? How will people find this? What will they be looking for?

There are those who decry this trend, and fear that social- and SEO-based journalism will ruin the profession and its standards, but that's taking a dim view of things. Though there will be publications that pursue sensationalist headlines over sober coverage, that's no different than the situation in traditional media, where less-reputable outlets do the same thing. Journalism is inevitably a battle for attention, whether it's on the newsstand or in your Twitter feed, and there will always be those who choose the quick-and-dirty route. The challenge for a new generation of journalists is to mesh their values and ethics with the reality of how news spreads in the modern world -- it won't always be easy, but good journalism never is.

In a similar open letter, this time directed at people who currently work in journalism but fear for their future, Terry Heaton takes things a step further by saying it's all about the personal brand:

If you haven’t already done so, now is the time to begin building and refining your personal brand. The good thing about this is that you’re in charge, so you get to pick and choose how and how much you are promoted in the world of personal media. It’s not necessarily the size of the fish in the pond that will succeed tomorrow, although that’s always a nice advantage. What will be important is your niche and how valuable you are within that niche. This will produce value to the people who will want exclusive or first crack at the content you’ll create, regardless of the financial structure available. If aggregation and curation are the filters for media consumption downstream (they are), your place in the queue matters much more than which corporate brand you represent. You control this through the quality of your work and attending to the marketing of yourself. You can’t blame anybody else for success or failure here.

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This is incredibly important for you, because, like it or not, we’re moving to a scenario where you very likely won’t be employed directly by a media company. You’ll work as an independent contractor and sell your work in a variety of ways.

I've never been a huge fan of all the "personal branding" talk, because it seems like marketing lingo for something that should be obvious: a journalist's reputation matters. That has always been the case, as has the fact that many of the most successful journalists are freelancers who trade on that reputation (especially in the world of magazines). The real change is that now journalists have far more tools at their disposal to help establish that reputation, and the barrier to begin doing so is much lower. They can start a blog, they can tweet, they can participate in comments and forums. Of course, so can everyone else, which is why finding a niche is so important.

It's not unlike the situation in music, or books, or video games, or any of the other industries that have been so fundamentally disrupted by the internet: the gatekeepers don't get to call the shots anymore. For both new and established journalists, this means they have to take their careers into their own hands, but it doesn't invalidate every lesson learned in J-school or the newsroom. The media industry is in a state of flux, but many of the things that make a good journalist haven't really changed -- the power and the responsibility have just shifted to the journalists themselves.