A couple months back, we discussed CBS's lawsuit against ABC, in which it claimed that the latter's Glass House reality show infringed upon the former's Big Brother copyright in an apparent reality check to anyone that still thought copyright covered specific expression rather than an idea. At the time, we noted that the complaint appeared to reference what is essentially the basis for every horrible reality show ever. Once the judge in the case refused to order an injunction against ABC, CBS then did what it probably should have done in the first place and released a rather funny mock press release announcing a series of new fictitious shows clearly "borrowed" from ABC's line up.

Sadly, the fun may be coming to a close, as The AV Club reports that CBS is dropping the suit:

CBS has dropped its lawsuit over ABC's Big Brother copycat, saying it was no longer interested in pursuing a case against a show no one is watching anyway. "The viewers have spoken and delivered the ultimate form of justice against The Glass House," CBS said in a statement, gloating over the low ratings for a series that likely would have escaped all viewer attention had CBS not made such a huge deal about it in the first place, and which certainly have less to do with "justice" than general apathy about watching another one of these things.

Yes, they managed to avert disaster of Streisand-ic proportions. One wonders if The Glass House's demise might have been even further along at this point had CBS never even brought about the lawsuit to begin with. Either way, the statement from CBS is as snarky as their faux press release, which I'd suggest is the better method for competing compared with suing for demonstrably common reality show tropes. On the other hand, CBS isn't dropping out of the "sue over nonsense" business completely:

Nevertheless, the network also added that it will continue to pursue separate arbitration with the ex-Big Brother producers who allegedly stole "trade secrets" for use on Glass House, such as the top-secret strategy of using cameras to capture the arguments of extroverted strangers forced to share a living space, rather than having pleasant, shy people live comfortably in their own homes and then rendering them in pastels. That was their idea.

Perhaps the next lawsuit we hear will involve ridiculously good-looking police forces solving crimes?

Computers have made it easier and easier for people to create incredible amounts of data -- passing the zettabyte barrier in 2010. The growth of data is actually surpassing our ability to store it, and it's a bit concerning that our ability to store digital information for long periods of time isn't too reliable (just try to access stuff on a 5.25" floppy). Here are just a few interesting links on preserving information for thousands of years.

• Digitally-stored information about nuclear waste needs to be accessible many thousands of years from now. Engraving the info on sapphire discs with platinum is just one proposed solution that could work for future archaeologists -- but in what language should it be written? [url]
• If you thought your burned CDs/DVDs lasted forever, think again. But if you still want to store your data on plastic discs, there's a company (Millenniata) that sells an optical disc engraving technology for writing CDs/DVDs that work with standard CD/DVD readers -- and that claims to last for about 1,000 years (or at least hundreds of years). [url]
• Neanderthals were making cave paintings over 40,800 years ago in Spain. How much of our art will survive the next 40,000 years? [url]

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

Last week we announced an interesting project over at our Step2 crowdsourcing site, in which Darrell West of the Governance Studies program of The Brookings Institution was seeking feedback on a number of different items to include in a possible report on an "innovation agenda" for the next administration. There's been a fantastic ongoing conversation over there, with people voting various items up and down, discussing the different items and many adding their own suggestions as well (some of which have received quite a few votes). It's been really fascinating to watch, but it's not over yet. If you just checked it out last week when it was announced, you've likely missed many of the ongoing discussions and additional items from other users. Go check it out.

Some of the more interesting discussions, from my perspective, aren't necessarily those that are based on ideological differences, but those that focus on just what makes sense to be in an innovation agenda. Does it need to be clearly measurable? If you can't determine if something succeeds, does that belong? I think these are good and useful questions. We'd love for you to join in as well with your own thoughts. If you already have a Techdirt account, it works on Step2 as well, so no need to create a new one. If you don't have an account... well, it's quick and easy to set one up.

We had just covered the shameful Russian court ruling that sentenced members of the punk band Pussy Riot to two years in prison over their political music/speech at an Orthodox church. Aside from being a simply horrific example of the Russian government coming down hard against free political speech, this move was also curious in that it essentially took a moderately-known punk band and turned them into The West's next great martyrs. Several high profile musical artists have already kept the story going, including Madonna, Bjork, and Paul McCartney, in the tradition of The Streisand Effect.

And now, as is being reported in several places, we learn that famed chess champion Garry Kasparov's name can be added to the list of high-profile figures involved. He details in The Wall Street Journal his own arrest outside of the courthouse the day of Pussy Riot's sentencing. It should be noted that Kasparov is the leader of the United Civil Front in Russia and Chairman of the Human Rights Foundation here in The States, and that he's been a critic of Vladimir Putin in the past, but none of that appears to excuse his arrest.

The crowds outside the court building made entry nearly impossible, so I stood in a doorway and took questions from journalists. Suddenly, I was dragged away by a group of police—in fact carried away with one policeman on each arm and leg.

The men refused to tell me why I was being arrested and shoved me into a police van. When I got up to again ask why I had been detained, things turned violent. I was restrained, choked and struck several times by a group of officers before being driven to the police station with dozens of other protesters. After several hours I was released, but not before they told me I was being criminally investigated for assaulting a police officer who claimed I had bitten him.

Taking Kasparov at his word, it would appear as though the Russian government decided to silence more political speech against the silencing of political speech. This is something that can easily spiral out of control, because, while reports are that Russia in general isn't particularly supportive of what Pussy Riot did, they are far more vehemently against how the Russian government responded. As The Economist notes, recent polling shows the Russian people's compartmentalized views:

Although recent polling by the Levada Centre shows that many question the court’s objectivity and see the hand of the Russian Orthodox Church and the Kremlin in the prosecution, fewer are ready to support Pussy Riot: 51% held negative or hostile views toward the group’s actions, another 20% were neutral or indifferent.

Negative views of Pussy Riot or not, when you begin adding more arrests against speech, particularly of high profile people like Garry Kasparov, the Russian government risks losing the advantage of that ambivalence entirely and becoming the chief bad guy in this entire story (if they aren't already). Unfortunately, from Kasparov's viewpoint inside of Russia, not enough has been done diplomatically from The West as of yet.

Such a brazen step should raise alarms, but the leaders of the Free World are clearly capable of sleeping through any wake-up call. A spokesman for the Obama administration called the sentence "disproportionate," as if the length of the prison term were the only problem with open repression of political speech.

If officials at the U.S. State Department are as "seriously concerned" about free speech in Russia as they say, I suggest they drop their opposition to the Magnitsky Act pending in the Senate. That legislation would bring financial and travel sanctions against the functionaries who enact the Kremlin's agenda of repression. Hit them where it hurts and expose them as the thugs that they are. Those who wish to help should pressure their representatives to pass such measures. If you live in a democracy you have a voice. Do not waste it.

Mike has written in reference to the Magnitsky Act before, but I think it goes without saying that if America wants to be a nation that stands on Free Speech principles, it needs to do so consistently, regardless of any touchy diplomatic issues that may be present. There is simply no excuse for the United States not to come out strongly against what has happened to Pussy Riot and Kasparov. As a country founded on Free Speech principles, we are obligated to uphold those values across diplomatic lines.

Bundling. It works in other industries. Many AAA game titles are released in Collector's Editions, packaging physical goods with the digital product. Nearly every band releasing on vinyl packages a digital download code with the album. DVDs aimed at kids do it all the time, adding stuffed animals or Christmas ornaments to the package as an incentive to buy. Your new razor comes with two "free" refills. Trial size bottles of new healthcare products are bundled with the stuff you usually buy. Facebook gives you a crappy email address you'll never use, free of charge.

But for books, not so much. At least not here in the US. But elsewhere, bundling ebooks with physical copies is showing some promising returns.

The Digital Reader details a trial run by publishing imprint Angry Robot, which hands out a free ebook download for every physical book purchased:

FutureBook yesterday featured a piece on an experiment in the UK between Osprey publishing imprint Angry Robot and independent bookshop Mostly Books to bundle a free electronic edition of an Angry Robot novel with each print copy of it sold. After just two weeks, Osprey’s CEO revealed that the bundling initiative had tripled the publisher’s sales at that store, and plans are in the offing to expand it to other independent bookstores.

It's a clever way to bump up flagging brick-and-mortar sales. Get them in the bookstore before giving them a digital bonus. It plays to the strengths of the indie bookstore: personal interaction and expertise. Even the ebook transaction has a personal touch.

The premise is simple. You buy an Angry Robot book, write down your email address at the till, and receive a free ebook edition of the book you bought, DRM free, by email.

It makes sense. Other publishers have experimented with this, but no one seems ready to make it the rule, rather than the exception. Angry Robot looks at this as win-win: it brings people back into indie bookstores and provides them with the convenience of a easily-transported ebook. Considering the costs are already sunk into the production of the physical product, bundling a digital file adds nothing (or close enough) to the overall cost. So far, the experiment (currently limited to one bookstore) seems to be a success.

At the beginning of July Osprey imprint Angry Robot launched a bundling experiment, Clonefiles, through the independent bookshop Mostly Books. The scheme offered the digital version of Angry Robot novels free to customers when they bought the physical paperback. Two weeks later Osprey chief executive Rebecca Smart told The Bookseller, that the initiative had trebled sales of the publisher’s titles at the trial store. The scheme has been supported in-store with a window display and signs explaining how it works. There is now an intention to roll it out in other independent bookshops.

Sales manager Roland Briscoe points out why this is working so well in this venue:

First and foremost, it allows us to leapfrog the competition in the value stakes. By offering dual-format, we suddenly have a hugely attractive offering that changes the focus from price and 'paper v digital' (for which there will only ever be a single winner, no prizes for guessing who) to added value.

Suddenly indies are able to take their traditional strengths - edited and curated choice, personal service and recommends - and stick a 'plus digital' on the end. It is genuinely a game-changer.

Clonefiles allows us to start a conversation with them, and it is amazing how customer have responded. From a slightly-embarrassed "let's all pretend eReaders don't exist" awkwardness, customers have opened up to us about their eReading experience - and in the process are actually telling us what we need to offer to stay relevant - and survive.

Part of what's holding this back from being offered by mainstream publishers is the feeling that bundling leaves money on the table. As Chris Meadows points out, major publishers are still hung up on monetizing every single iteration of a product:

Publishers have long had a problem getting over the mindset that every individual “copy” has to be paid for individually. (I remember, in the good old days when they were allowed to talk to people, the Pendergrasts of Fictionwise and eReader bemoaned the fact that publishers insisted that each different encrypted format of e-book sold in their store had to be sold separately.) And yet, given that Angry Robot’s experiment sold three times as many books as normal, that means they took in as much money as they would have if they’d gotten paid for the normal number of print books, that many e-books, plus the same amount extra.

Judging from the success of this experiment, it could certainly be argued that keeping the products separate is leaving a bit of money on the table as well. Considering the ubiquity of tablets, e-readers and smartphones, it just makes sense to reward someone who's willing to purchase physical items with a convenient copy to take on the move. This sort of bundling becoming more prevalent (especially among major publishing houses) may hinge on the Department of Justice decsions. Meadows points out that one of the stated goals of this settlement is to make this sort of experimentation easier and far more common.

In addition to the insistence that every version be paid in full, this lack of bundling may also be a perception problem, one that views physical purchasers as completely distinct from ebook purchasers. The overlap is probably more pronounced than most publishers realize. The most voracious readers do both. Even if the person buying the physical book has no use for the digital version, they can always hand it off to someone who does, thus introducing these books to new readers. This activity might rub some publishers the wrong way, but Angry Robot not only realizes this sort of thing will happen, but is completely cool with it:

We therefore believe (and I'm sure that we are only echoing the opinion of the majority here) that there is a place for both, and in actual fact having both formats is of benefit to everyone. So our bundling project, Clonefiles, is an attempt to give our readers what they tell us they want - the beautiful physical copy that they can give as a gift, swap with a friend or keep in their collection, together with the convenience of the digital file that they can read on the commute or family holiday.

It's not as if bundling hasn't worked in other artistic arenas. Most, if not all, albums offered on vinyl come with a digital download code for easier portability. Real life CIP: my brother is a bit of an audiophile and buys vinyl whenever possible. All of his bundled digital download codes end up in my hands, introducing me to bands he likes. (And not to sound like the guy who discovers the Rolling Stone's Exile on Main Street in 1985 and won't shut the hell up about it, but have you listened to Neutral Milk Hotel's In the Aeroplane Over the Sea? Amazing.)

Additionally, the bundled ebook could push the on-the-fence reader towards a purchase of an e-reader, turning them into a customer for digital offerings. How many fans have bought multiple copies of the same thing on multiple formats? (Yeah, that's all of us.) I have no doubt this happens with ebooks as well. Experimenting with price points and bundling has the potential to greatly increase a publisher's customer base, and if they can just get over the hang-up of keeping these products separate (although I would imagine royalty payments on different formats complicates the issue), they might find it easier to sell the physical books they'd obviously much rather be selling.

Last, but certainly not least, it pays to remember that people like getting stuff for free. They may never use the digital book, but they like feeling like they've gotten a deal. Simple psychology. More sales will go to the item that offers extra value, even if the bundled component is never used.

While the majors sort it out (with the help of the DOJ), the smaller publishers and bookstores can start reaping the benefits now. Angry Robot's experiment shows that is can work and as it expands its offerings, it should be able to provide better data on what works best for both the publisher and the bookstore. Either way, the readers will come out ahead.

We just wrote about hypocrisy from Russia, condemning the UK over the Julian Assange situation at the same time that it was putting Pussy Riot in jail for political speech. As someone pointed out in our comments, there's plenty of hypocrisy to go around, including with Ecuador, who, at the same time it's granting asylum to Assange, is likely preparing to extradite a blogger who was granted asylum after exposing corruption in Belarus.

The plight of Barankov poses a real test of Ecuador’s commitment to human rights. A former Belarusian army captain, Barankov arrived in Quito in 2008 thanks to the Ecuadorian government’s very liberal immigration laws. He then set up a blog denouncing corruption and other crimes allegedly committed under authoritarian ruler Alexander Lukashenko. Ecuador initially granted him refugee status, but after a state visit by Lukashenko to Quito on June 29, he was arrested and is being held in the capital’s infamous, 19th century prison while the top court hears the case on Belarus’ fresh extradition request. If sent there, according to his partner, Maribel Andrade, he will face charges of treason and could be put to death.

Furthermore, the report in Time notes that Ecuador has a history of not respecting the basic privacy and human rights of its citizens and journalists:

Indeed, the hospitality that Ecuador extends to Assange is withheld from Ecuadorians who may try to emulate his online whistle-blowing tactics. Since Assange entered the embassy, Ecuador’s government has scrapped the need for a warrant to investigate private Internet Protocol addresses. Additionally, for the second time in 18 months, on July 31 government officials and police seized the computers of the newsmagazine Vanguardia, which has been critical of the Correa Administration. The charge: that the publication had violated labor laws. As a result, Vanguardia only managed to go to print this week with the help of donated computers.

Kinda makes you wonder if there are any reasonable governments out there.

With the Apple/Samsung case finishing up, James Allworth, over at HBR, has an excellent post wondering why it matters if one company copies from another? A few years ago, we wrote about a book that pointed out that copying and then innovating on the copies is a perfectly reasonable and important business strategy. Allworth points to a new book (one I've been looking forward to for a while) by Chris Sprigman and Kal Raustiala (who we've quoted numerous times) called The Knockoff Economy: How Imitation Sparks Innovation.

He then takes the lessons of that book and applies it to the Apple/Samsung fight, noting that even if we assume they were imitating each other, that seems to have only encouraged further innovation, not less:

If you go back to the mid-1990s, there was their famous "look and feel" lawsuit against Microsoft. Apple's case there was eerily similar to the one they're running today: "we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it's impossible for us to keep innovating." Apple ended up losing the case.

But it's what happened next that's really fascinating.

Apple didn't stop innovating at all. Instead: they came out with the iMac. Then OS X ("Redmond, start your photocopiers"). Then the iPod. Then the iPhone. And now, most recently, the iPad. Given the underlying reason that Apple has been bringing these cases to court was to enable them to continue to innovate, it's hard not to ask: if copying stops innovation, why didn't Apple stop innovating last time they were copied? Being copied didn't stop or slow their ability to innovate at all. If anything, it only seemed to accelerate it. Apple wasn't able to rest on its laurels; to return to profitability, and to take the mantle they hold today of one of the technology industry's largest companies, they had to innovate as fast as they could.

It's the same story we've been explaining for years. History and tons of studies have shown over and over and over again that competition drives innovation, because innovation is an ongoing process. Thus, when others can copy you, that actually accelerates innovation by giving the original incentives to stay ahead in the marketplace, and develop the next great thing. Research has also shown that it's not as easy as you think to "just copy" because you only see the superficial aspects to copy, rather than having the deeper understanding of what works and what doesn't that a market leader often gains.

In fact, when you understand that, you realize that patents can actually slow down innovation by letting a company rest on its laurels, and not have to continue to rapidly innovate. Other companies can't build on what they did first, and so they don't have the same incentives to continue to advance the market forward. And the Apple/Samsung fight in the market appears to support that.

If Apple ends up winning this case against Samsung — and either stops Samsung from releasing their phones and tablets to the market, or charges them a hefty license fee to do so — does anyone really believe that the market will suddenly become more innovative, or that devices will suddenly become more affordable? Similarly, if Samsung wins, do you really believe that Apple will suddenly slow its aggressive development of the iPhone and iPad? It's certainly not what happened last time they lost one of these cases.

Now, if you're with me so far, then I don't think it's a leap to suggest that having these companies duke it out in court over "who might have copied who" is counterproductive. All these lawsuits flying around suggest that everyone is already copying each other, anyway. A better solution? Let's have these companies solely focused on duking it out in the marketplace — where consumers, not courtrooms, make the decisions about innovation. In such a world, the best defense against copying isn't lawsuits, but rather, to innovate at such a rate that your competition can't copy you fast enough. That, to me, sounds like an ideal situation not just for consumers — but for the real innovators, too.

Exactly.

For years, despite being the defendant in tons of patent suits, and despite having a decent patent portfolio of its own, Google had never gone on the offensive with its patents against others. With the purchase of Motorola Mobility, it inherited an ongoing court case against Apple, which was unceremoniously dumped by Judge Posner. However, now there's news that Motorola Mobility has gone to the ITC to seek an injunction against Apple for the iPhone, iPad and some of its computers as well. Filing at the ITC can only lead to an injunction, rather than monetary damages, but the threat of an injunction is pretty big no matter what, and can often force a company to pay up.

What's disappointing here is that, even though this is coming from the Motorola side of things, as far as I can tell, it's the first time that Google itself could be described as a patent aggressor. For a company that had been coming out vocally about just how broken the patent system was, and which seemed to be fighting the good fight on stopping such abuses of patents to block competition, this is disappointing.

Yes, it's typical for companies, as they get bigger, older and less innovative, to start becoming patent aggressors, but Google had kept away from doing so for a long time, and certainly appeared, publicly, to have no interest in going down this road. Combined with the company's recent decision to cave on copyright issues as well, it seems that Google is taking some dangerous steps around copyright and patent law -- both of which may go against its own long-term best interests.

Someone suggested to me recently that Pussy Riot is to Russia what Julian Assange is to the US. The parallels are not exact -- especially given the accusations that were leveled in Sweden against Assange are not, on their face, political (and those who insist they know what happened between Assange and the two accusers should admit they have no idea what really happened, because only those three individuals truly do). That said, it does seem clear that there is a separate factor at work in the Assange mess, and it involves significant political pressure from the US, who it has been claimed have a sealed indictment ready for Assange, who for a variety of reasons they feel will be easier to get from the Swedes than the Brits.

So it seems positively bizarre that on the very same day that Pussy Riot was sentenced to jail, Russia warned the UK against "violating fundamental diplomatic principles" in its pursuit of Assange to ship him off to Sweden. Honestly, if you had to pick one of those two cases to be sympathetic to, it seems that the Pussy Riot case is a much more clear-cut one of absolutely egregious behavior on the part of a prosecution. For Russia to complain about the treatment of Assange -- on the very day that Pussy Riot was found guilty and sentenced -- seems especially rich.

Both cases may involve significant levels of political tinkering against those who have embarrassed certain governments, but it's also pretty clearly taken away any moral high ground for the countries involved in speaking out against one another.

We've been following the Surfthechannel/Scopelight case since early on, and there have always been serious questions about it. More than three years ago, we were wondering why a private, Hollywood-financed anti-piracy operation called FACT wasn't just able to take part in the raid of Anton Vickerman's house, but also got to take the computers that were seized. A private party should never be able to get the computers of those that they're accusing in a criminal case. Soon after Vickerman was declared guilty, we discussed some anonymous courtroom notes that suggested extremely serious oddities with how the case was conducted -- including (again) FACT more or less running the show, and having trouble keeping important data.

Following Vickerman's sentencing last week, even more info came out about the case that raises incredibly important questions about its validity. Tim Lee over at Ars Technica has gone through the issue in great detail, highlighting how FACT didn't just take part in the raid, but it financed the government agency that did the investigation and then financed and ran the criminal prosecution against Vickerman.

Lee explains that this is an oddity/antiquity of UK law, in which private parties are actually allowed to bring criminal charges against other private parties, rather than (as in the US) needing the government to decide to bring charges. In fact, in this case, government prosecutors expressly refused to bring charges noting that they didn't think there was a case -- information that was kept from Vickerman. From the Crown Prosecution Service:

I understand from [Northumbria Detective Constable] Watkin that there have been no other successful prosecutions that he is aware of where we could point to this type of website being classified as amounting to "making available... by electronic transmission," the legal standard needed to find Vickerman guilty of copyright infringement. At present it appears uncertain if in fact what the suspect has done does infringe this particular legislation. Certainly on the evidence thus far provided it is impossible for me to determine if this is the case and therefore I cannot advise any prosecution on the evidence presented.

The CPS found the whole thing bizarre:

His 'crime' is to make it easier for others to find what is already there. This begs the rather obvious question of why he is being pursued rather than those who actually breach the copyright by displaying the material.

And yet, FACT went through with the case, because of an oddity in UK law that lets a private party pursue a criminal charge if they're willing to finance it. And FACT was more than willing to finance nearly ever aspect of this case, apparently. It did the original "investigation" in which it apparently recorded a key meeting. The two sides dispute what was said in that meeting... but FACT can't seem to find the recording (of course). The report also explains how FACT funded the Bedfordshire Trading Standards Financial Investigations Unit (BTSFIU), officially a government agency, but one that was directly funded by FACT to be its own private police force, and which apparently took the job gleefully.

Of course, you would think that some of this info would get out before a judge, but the judge seemed equally unconcerned with the law, as focused as he was on Vickerman apparently being arrogant. Even more bizarre, the judge didn't seem at all concerned about precedents that went the other way. For example, the TV-Links case, which was quite similar, ended up with an acquittal, so you might think that any reference to it would be in Vickerman's favor. Not in this judge's mind:

TV-Links had already engaged in a similar operation but you believed you could do better. You pressed on knowing that TV Links had been taken down following the intervention of FACT on the basis that what it had been doing was unlawful

Yes, you read that right. Even though TV Links was found to be lawful, in this judge's mind, the fact that it had been taken down by FACT (the same group prosecuting this case), should have been evidence to Vickerman that STC was illegal. Think about that for a second. It's almost mind-blowingly ridiculous. The mere accusation that another site was illegal, even though that later turned out to not be true was enough evidence for this judge that STC's actions were illegal. How does a judge who thinks that way keep his job?

The judge also does not seem to understand the nature of the internet or links, or how user generated content works. He seems to think that before anyone can post a link to a website, the owner of that website should need to contact a copyright holder to find out if the posting of that link and the underlying content it points to are legal. Seriously:

When it was suggested in cross examination that it was obvious that the films that you were posting links to were to links to recent films and that you were helping people to link to copyright infringing films, you insisted that you couldn’t know if it was infringing copyright, that the studious might have granted right holder licences to the films of which you had no knowledge. That was certainly true and bound to be true if you didn’t bother to check with the copyright owners and check you most certainly didn’t.

The judge also takes a movie studio exec at face value, when she tells the court that "piracy" means fewer blockbuster movies -- despite the fact that approximately four times as many movies were made last year than were made 15 years ago. Actual facts don't appear to be this judge's strong suit. He also uses the fact that since the movie industry pays taxes, if it struggles, fewer taxes are paid. But, if that's a crime, then any industry that is declining suddenly can implicate any upstart competition for those same reasons.

The whole thing is both bizarre and scary.

One hopes that, given these rather horrifying details, conflicts of interest and inconsistencies, it will be possible to revisit much of this on appeal.

A few months ago, we pointed to a video by ReasonTV, which noted that the over-enforcement of copyright law today had become this generation's Prohibition. While that might be slight (or significant) hyperbole, law professor Donald Harris has put together a fantastic paper that compares the two situations and finds an awful lot of similarities. Harris was recently on Jerry Brito's Surprisingly Free podcast to discuss the paper, and it was a very interesting and thoughtful discussion. It won't surprise many to recognize the obvious parallels between the situations:

Alcohol Prohibition during the 1920s and 1930s provide an historical example of the dangers of attempting to enforce a public policy that is inconsistent with society’s values and attitudes. Alcohol Prohibition failed because the people effectively nullified the law through widespread civil disobedience. There, as here, increased enforcement efforts failed. Prohibition teaches that it is impossible to enforce broad social norms that are inconsistent with widespread human behavior. This is consistent with compliance theory, which posits that societal compliance with laws will occur only when society believes the laws are just and legitimate.

In the end, Harris appears to come down in favor of a similar solution to the way that Prohibition ended: legalizing the activity in question (and regulating it). For example, he suggests that clearly-defined non-commercial file sharing could be legalized. I'm not sure that I agree completely with the argument, but it's still quite an interesting paper to read and podcast to listen to, so check them out.

Guitarist Chris Randall, formerly of Sister Machine Gun (and founder of Positron Records, along with running plug-in creator Audio Damage) has an epic post detailing his thoughts about the music business (and the recording industry) and the monumental changes it has gone through over the last decade. He pointedly declares that his post (in PDF form, due to limitations of his site) is not a manifiesto. Randall calls it "more of a mission statement, really," and it does exactly that, with many stops along the way.

The underlying current of the piece is that music (along with other forms of art) cannot honestly be discussed in terms of monetary value. The sale price of an mp3 or an album has very little to do with how the fans value the music. No one talks up how much they spent on something when discussing their connection with a band or singer. Instead, they talk about more ethereal concepts, like where they were when they first heard a certain track or who turned them on to a certain band. Randall gives a personal example, as seen through the artist's eyes:

The funny thing about music is that people can tie a certain song to a specific event in their life that occurred when they heard that song; the two become inseparable... I first noticed it in 2004, on the last real tour I did as a performing artist. The first day of the tour, I was in the audience waiting for the opening band to go on, and someone came up to me and said “it’s so cool you’re here! The first time I heard you was...” and then went on to describe a particular life experience that was occurring when he first heard a song I wrote. There were over sixty shows on that tour, and a night didn’t go by that I didn’t hear that speech, or a variation of it, at least once. It quickly became a running joke, The First Time I Heard You, and soon after that it became a conversation I dreaded. It was a heart-rending thing to hear, night after night, because I thought they were saying “you used to make things I liked. Now you don’t, but I’m here out of nostalgia.” It took an epiphany to realize that the First Time I Heard You conversation is is meant as a sincere form of flattery. “You are an ARTIST. You created something that MADE ME FEEL. This is IMPORTANT and I need to TELL YOU so you know that we have a CONNECTION.”

This led Randall to the following conclusion:

That epiphany, and a realization that the act of creation can and should be entirely decoupled from the business of commerce, is what I want to talk about. In fact, let's boil it down to a pithy aphorism: the coin of this realm is reputation, and our imagination is an ATM.

Many artists and (especially) artists' "representatives" have argued that the current market for all things artistic is unsustainable, a race for the bottom fueled by cheap technology and piracy. That their efforts have done little to reverse the process hasn't made them any happier and it certainly hasn't made their few, minimal attempts any smarter or any more effective. Randall went through the whole process as an artist, having the "rug yanked out from under him," and joining the chorus of disaffected artists cheering on the destruction of their former employers. This cheering, while admittedly fun, did little to actually change anything. Major labels kept acting like major labels, signing everyone they could talk into a contract. Meanwhile, the internet changed things for those wired into it, with little effect anywhere else:

There was a brief period where it was kind of fun to watch the entire music industry collapse in on itself, like a dying star. Can we get more of Metallica suing people for liking them, please? But Seans Fanning and Parker didn’t make Napster because they were moved by the plight of the working musician. They did it because they could, and the act itself, the act of petulant children bent on destruction, was nothing more than a path to greater things for them, increasing their reputations. The music industry, for its part, was eminently destroyable, as it had created an economy of artificial worth, by virtue of its “throw all the spaghetti at the wall and see which noodles stick” business model.

Napster effectively made music free, and yet, for several years, record labels continued to overspend and overvalue their own music:

That’s fine, and business is business, but the problem is that all those bands think they are special flowers (and the labels are in no small part enablers of this thinking; they spend a lot of time and effort making those artists feel like special flowers), and if their record cost $500,000 to make, then it is worth $500,000... Simple economics: a product’s worth is what someone will pay for it, for the most part, not what it cost to make. Hence the utterly false values ascribed to music today.

Plenty of new services have arrived which seem to push the "value" of music down even further. Lots of criticism has been leveled at Spotify for its "low" payouts. Artists have noticed that streaming services' per-play rates aren't going to be much help if you've sunk thousands of dollars into recording an album. This isn't the listening audience's fault, though. This is still just a matter of artists valuing their art above what the market will actually bear. Randall points out that, if anything, Spotify's per-play rates are too high, if compared to the public's valuation of the music in question:

Something happened to me a little while ago that makes me think the Spotify valuation is high, if we’re using currency as our means of valuation. SomeoneI know, who is in the military, was recently deployed to Iraq. While she was there, a friend of hers gave her a portable hard drive with 250,000 songs on it...

To her, this hard drive was “cool,” and furthermore “a neat present.” That it contained roughly 1/8th of all the commercial music ever recorded by Western civilization didn’t change the fact that, on a visceral level, the worth of it to her was essentially the cost-of-replacement of the physical drive itself, because she could always get another copy. If you want to affix an actual monetary value to music, that value is now, and ever was, a function of two things: the true cost of the medium it is stored on, and how easy that medium is to duplicate. The quarter million dollar fine the U.S. government could theoretically levy as punishment for copying that hard drive reflects the false economy the labels have created, not the actual value of the music itself.

To be clear, I am in no way implying that art doesn’t have intrinsic value. But that value is not quantifiable in dollars. If we extrapolate the cost of that hard drive to the individual songs, we can say that each song cost roughly 4/100th of a cent. While this is about 2/3 of the payment for a typical Spotify stream, the money went to the drive retailer and the manufacturer that made it, and none whatsoever went to any artist, publisher, or label.

So, if it can be argued that the monetary value of music is zero, how does any artist hope to make a living? Randall argues that the first step is to realize that music's power to create emotional experiences is "priceless" (in the good sense of the word) and work from there. The true potential lies in the connection, not the value ascribed to someone's songs by an outside force.

As an artist, if you choose to fight this battle over monetary value, know this: you will lose. That is a foregone conclusion. In fact, you have already lost. All of that nonsense with numbers and who’s getting paid and whether life is fair or not is all inside baseball, and the average person (the one ultimately footing the bills, it must be said) couldn’t give two shits. To them, pieces of art are tied to memories and experiences; they are either trying to recapture the emotions they felt when they first experienced the art in a particular context, or trying to create new emotions to go with new contexts. They are willing to spend a certain amount of money, for altruism’s sake, if it’s convenient.

This is where the artist needs to step in and connect. Not only are they fighting against a zero-dollar valuation, they're also competing for the hearts and minds of potential audience members (and customers) who are blessed with more choices than ever before. Barriers-to-entry are all but gone and the world is filled with people creating because they suddenly find that not only are the tools more powerful, but the options for dissemination are nearly endless. If you can get past the "valuation" issue, you can do great things, and quite possibly, make some money as well. But first you've got to do some letting go.

[I]n my honest assessment, the opportunities are far greater now, and the rewards as ample or perhaps even more so. It’s easy. Just forget about money. Seriously. Let it go. You’re not getting paid? Join the club. Robert Johnson and Scott Joplin were the founding members. Muddy Waters, HP Lovecraft, and Jackson Pollack each got an achievement award. David Crosby gets the Bad Life Decisions Honorable Mention. You’re in good company. You should be proud.

Randall points out that he's not trying to make the case that creating art in hopes of making a living is the wrong angle to take. As he says, there are still several creative people collecting paychecks, including session musicians, graphic designers and various positions in the game, computer and television industries. He also makes it very clear that he's not, for lack of a better term, One of Us. [broad emoticon wink at TD regulars]

Neither do I want to come off as a neck-bearded freetard. Nothing could be further from the truth. There are not many groups of people I disdain more than the Doctorow mashup crowd and their inspired thinking that art + art = better art, and everybody has the right, nay, the responsibility to make their own Mickey Mouse movies. If that’s the sort of thing that floats your boat, so be it, but on your head.

Randall offers this alternative plan for struggling artists: the currency of reputation. Build a solid one of those and people will throw money at you. He points out the astounding success of Amanda Palmer's Kickstarter project. Did she need all that she collected to move forward with her career? Very definitely, no. But people showed up in droves and helped her, as Randall puts it, "cash in some of that reputation for real-world money." The same thing for Penny Arcade, who "chose to cash in their reputation that they earned through years of slogging it in the trenches." Your first step as an artist is to start "banking" reputation.

These Reputation Credits, an arbitrary unit of my own devising, are a reflection of how earnest you are in tending your public-facing persona... [I]f you contribute to the human cultural experience, you do earn them, and the more you contribute (or, perhaps, the higher the quality of your contributions) the more you earn. You can then turn these in for real-world dividends that can, for instance, pay the rent or buy sushi.

And how, exactly does on do that? By utilizing these four steps, many of which echo a familiar mantra around these parts:

Make art.
Put it in front of as many people as possible.
Engage the resulting audience.
Repeat.

The more you do this, the better you’ll get at it, the more Rep Credits you’ll have, and the further they’ll go when you need to spend some of them. People want to be entertained. They’ll go all honey badger on some good entertainment. Give it to them, for fuck’s sake, and stop bitching about money. That’ll come in its own good time.

There's a ton of great writing and insight in Randall's wordbomb. (It runs over 4,400 words.) I encourage you to take a look at the whole thing. It's not often a musician will offer up this sort of clearly-laid-out perspective on the last decade+ of the music world.

One of the bizarre things about the patent system is the "presumption of validity," in which a patent officially has to be presumed valid. Conceptually, this makes very little sense. Patents grant a pretty broad monopoly on "inventions" for an extended period of time... based entirely on approximately 18 hours that a patent examiner has to spend looking over the thing. Do we really think that a patent examiner gets things right most of the time? It seems that even the US Patent Office's own data shows that's simply not true. A friend pointed me to the USPTO's recently released data concerning re-exams (pdf and embedded below), which demonstrates in great detail why patents shouldn't be presumed valid. Basically, the data suggests that an awful lot of patents were handled poorly.

The document notes that 92% of re-exam requests are granted -- meaning that nearly all re-examination requests lead to a re-examination by the Patent Office. So, if most patents were well constructed in the first place, you would imagine that most of them would come through the re-examination process unscathed with no changes, right? Only if patent examiners were really bad at their jobs would a large percentage of patents need to be changed or rejected completely on re-exam. Given the "presumption of validity" that grants a monopoly, and the massive dollar amounts that patents sell for and are able to extract in settlements, you'd think that re-examined patents must normally confirm the original diagnosis. Hell, given that information, I'd hope that at least around 95% of patents, having passed the approval process, would be solid enough to survive the re-exam process untouched.

If the number was below 90%, I'd think the system was in trouble and needed some fixing. If it was below 70%, I'd think that we should be declaring the system a failure. If it was below 50%, I'd be questioning the entire basis of the patent system. So what is it?

Would you believe that only 22% of re-examined patents have all claims confirmed? 22%! That means that 78% of all patents that are granted a re-exam had serious problems with their original claims -- and remember, 92% of re-exam requests are granted. All these patents were initially approved and enjoyed the presumption of validity, which would may have cost companies millions (or more). This isn't just a failing grade. This is an epic disaster. It's true that 67% of the re-examined patents still are allowed with "claim changes", and only 11% are completely rejected, but those numbers are little comfort when we're told that we need to presume all of the claims in all patents are perfectly valid.

Now, some might claim that this number is perfectly fine, because only bad patents get re-exam requests. In fact, you could argue that perhaps these numbers show the system is working in that bad patents get re-exam requests and good patents remain valid. But there's little to no evidence to support that. Already, those who dislike patent re-exams are claiming that patent re-exams are abused with too many good patents getting re-examined. So it certainly appears that all sorts of patents get re-examined... and a very large percentage of them appear to turn out to have been mistakenly granted.

This highlights, in pretty stark contrast, just how broken and completely arbitrary the system is. For a system like this to be valid, it should be formalized and repeatable. It needs to be based on objective information, not the random subjective opinions of a particular examiner. Yet the data suggests that's exactly what's happening, meaning that we're handing out hundreds of thousands of monopolies based on the mere whims of patent examiners, who haven't been shown to be even remotely consistent, and who have very little time to actually examine what it is they're granting monopolies over.

How does anyone consider that to be a reasonable system?