Recently we wrote about how copyright rules designed for an analog age were causing problems when transposed without modification to the digital world. Here's another example, this time from Australia, where the Brisbane Times' site reports on an increasingly difficult situation in education as a result of outdated copyright approaches:

Schools spend almost [AU]$56 million [US$59 million] a year under a compulsory licence to copy material such as books and journals without permission from the copyright owner. But an unintended consequence of the licence means schools also pay millions for internet material that the website owners never intended to charge for

The problem is that there are strict rules that schools must follow when teachers duplicate material -- rules that were designed for a world where practically every page copied had to be paid for. However, the inflexibilities of the scheme mean that these are now being applied even when teachers print or save freely-available materials from the Internet, or ask students to do the same for homework.

A "best estimate" for the scale of the problem is around $8 million, and as the Internet becomes an increasingly important resource for schools, things are only going to get worse:

These costs were likely to increase as the national broadband network was rolled out and might ''eventually become prohibitive'', [the National Copyright Unit's director] said.

Fortunately, the Australian Law Reform Commission is holding an inquiry into copyright and the digital economy currently, so there is hope that its recommendations will include a radical overhaul of the compulsory licensing system for schools. Given copyright's three-hundred-year-old machinery, it's unlikely to be the only area that requires such action.

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

I'm an unabashed supporter of crowdfunding platforms like Kickstarter and IndieGoGo for certain things (in fact, many things), but I still worry that the early success of some such campaigns has people thinking that those platforms are the solution, rather than one possible solution in a sea of opportunities. Ross Pruden points us to an interesting article by Chris Dorr, in which he suggests that 99% of all filmmakers should crowdfund. Perhaps this is just hyperbole -- and the overall article is a decent one explaining some of the benefits of crowdfunding -- but I want to remind people that just because crowdfunding is a good way for some artists to make money, it doesn't mean that it's the only way to do so. We've been saying for a while that content creators should be prepared to improvise with a variety of business models. There's no one business model that works for all artists all the time. So I get worried when people suggest there's a "single" solution for everyone. Content creators shouldn't get too hung up on thinking they have to crowdfund when it might not be the right way for them to connect to their audience, even if it is a good idea for many artists.

It's getting easier and easier to send stuff into low earth orbit, and more folks seem to be interested in doing it. So not surprisingly, there is a growing number of projects that offer to perform amateur experiments on small satellites. For students, the opportunity to send up experiments into space has been around for at least a couple years (via the Student Spaceflight Experiment Program), but now almost anyone can participate in a space experiment. Here are just a few examples.

• SkyCube is a satellite project on Kickstarter with $1 sponsoring 10 seconds of the mission. For just $6, you can broadcast six 120-character messages from space! [url]
• Whatever you can fit inside a ping pong ball can be sent up to the edge of space (100,000 feet) -- and anyone can make a PongSat. Presumably, though, they won't let you fill your ping pong ball with a combustible propellant and an altimeter trigger.... [url]
• The ArduSat Mission has completed its Kickstarter campaign and put up a list of experiment ideas that could be run on its Arduino-based satellite. Some of the suggestions for experiments/apps aren't too exciting, but there's also a prize of $1,500 for the most innovative experiment or app for the ArduSat -- so someone is bound to come up with a few more ideas. [url]

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

Many years ago (many, many, many years ago) before "podcasting" existed (actually, before iPods existed), we briefly tried to do a "Techdirt online radio show," which had a terrible name I won't repeat here. We ended up doing two or three episodes, I think -- and the only one that was any good accidentally got deleted right after we recorded it. That said, in the intervening years, the whole podcasting thing sprung up and it's all pretty well established now. We've been tossing around the idea of doing a podcast ourselves. I've got some ideas for what I think it should be... but I'm also curious about what people here would like to hear in a podcast. There's no guarantee we'll end up doing exactly what anyone suggests, but we're hoping it provides some ideas. Would you like to just hear me and some of the other contributors talking about the week's news? Or would you want interviews with interesting guests? Something entirely different? Do you prefer longer podcasts or the quick hit types? Let us know what would be most interesting. Thanks!

About a year ago, we wrote about a court ruling that the TSA's naked scanners were legal (they didn't violate the 4th Amendment's restriction on "unreasonable" searches), but that the TSA failed to hold the proper public hearings before buying and deploying them. The TSA appears to have only paid attention to the first part. After a bunch of folks asked why the TSA was ignoring the order for public hearings, now an appeals court has officially weighed in and demanded to know why the TSA has failed to hold public hearings more than a year after that court ruling. The order is pretty straightforward:

ORDERED that the Department of Homeland Security, et al., respond to the petition on or before August 30, 2012.

The TSA has said that it would hold hearings "next year" (or two years after it was ordered to do so). You would think that it wouldn't take the TSA two years to set up basic hearings -- especially while it has continued to roll out a variety of new scanning machines...

We've written a lot about the incredible new ecosystem of independent, self-published ebooks, which in a few short years (with the help of huge success stories like Amanda Hocking and Joe Konrath) has largely eliminated the stigma of what we once called "vanity publishing", to the point that even traditionally published authors are deciding to go it alone.

Though Hocking and Konrath were some of the first names to get some serious attention with their impressive ebook sales, today there are lots of other examples. An anonymous submission points us to a blog dedicated to tracking self-published ebook success stories, which has put together a list of over 170 independent authors who have sold more than 50,000 ebooks, including 33 who have sold more than 200,000. Hocking and Konrath still make the top ten, but they have plenty of company:

Barbara Freethy - over 2 million ebooks sold (April 2012)
Amanda Hocking - 1,500,000 ebooks sold (December 2011)
John Locke- more than 1,100,000 eBooks sold in five months
Gemma Halliday - over 1 million self-published ebooks sold (March 2012)
Michael Prescott - more than 800,000 self-published ebooks sold (Dec 2011)
J.A. Konrath - more than 800,000 ebooks sold (April 2012)
Bella Andre - more than 700,000 books sold (May 2012)
Darcie Chan - 641,000 ebooks sold (May 2012)
Chris Culver - over 550,000 (Dec 2011)
Heather Killough-Walden - over 500,000 books sold (Dec 2011)

The post also points out some encouraging statistics from Amazon:

Kindle Direct Publishing has quickly taken on astonishing scale – more than a thousand KDP authors now each sell more than a thousand copies a month, some have already reached hundreds of thousands of sales, and two have already joined the Kindle Million Club.

Under the old system, many of these authors would likely still be sending out manuscripts, hoping for the lucky convergence of circumstances that puts it in the right pile in front of the right reader when they're in the right mood. There's still some disdain for self-publishing in some circles—but with the open playing field that has been created, the increasing number of authors flocking to it, and a growing roster of success stories, it won't be long before that too starts to change.

While the latest attempt to pass a cybersecurity bill may be on ice for now, it'll be back... and with it there will be a lot more hyperbole about how urgent this is because of various massive "losses" already happening due to cybersecurity problems. Of course, nearly all of the numbers and claims you hear will be 100% bogus.

For years, we've highlighted stories about how the claims of "losses" from the entertainment industry due to infringement are completely fictitious. In the past, we've seen Julian Sanchez go on a hunt to find the origin of some of the numbers being thrown around, and come up with evidence that they're based on nothing. For example, claims of $200 billion in losses due to counterfeiting... came from a 1993 Forbes article that just makes that claim with no citation and no backing info. But it became gospel among those arguing there was as problem.

With Congress and the President continuing to insist that we need a cybersecurity bill, politicians have been tossing around all sorts of questionable numbers. Just a few weeks ago, we noted that General Keith Alexander, the head of the NSA, had tossed out some numbers and claimed that cybersecurity was the "greatest transfer of wealth in history." Considering that we're living through the aftermath of a financial meltdown that involved a massive transfer of wealth, I find the original claim difficult to believe. Plus, as we noted, he seemed to only cite studies from McAfee and Symantec, two companies who have a massive vested interest in keeping the cybersecurity FUD going, because it helps them sell stuff.

Thankfully, the folks over at Pro Publica decided to take a much closer look at the numbers politicians are relying on in support of the massive "harm" that is already being caused by online security issues... and discovered that the numbers are completely and totally bogus. In fact, the full story (which is fascinating) parallels (very closely) the story with "piracy" stats from the industry.

One popular number is "$1 trillion" in losses due to cybersecurity breaches. That number gets thrown around a lot by politicians (and many in the press who merely parrot such numbers unquestioningly, even as that gives those politicians more cover to claim that there's a reputable source supporting the number). Yet, the Pro Publica report highlights that, not only is this number bogus, but the (quite well respected) researchers who put together the original report for McAfee did not use that number and, more importantly, many of them spoke out publicly with surprise that McAfee put out a press release with such a number -- which they thought was questionable and not supported by their data.

In fact, there were a number of methodological problems, including that the data was based on a self-reported "average" amount of the "worth of sensitive information stored in offshore computer systems." Who knows if the respondents are being accurate, first of all, but even more to the point, the "worth" of such information is a highly subjective number. People can find something "worthwhile" without paying for it, but by focusing on the "worth," they obscure the fact that the market price may be quite different than what people think something is worth. And, what people think something is worth has zero impact on any actual losses. But, from a very small number, McAfee just sprinkled some magic pixie dust on the already questionable number, and proceeded to extrapolate, massively:

“The companies surveyed estimated they lost a combined $4.6 billion worth of intellectual property last year alone, and spent approximately $600 million repairing damage from data breaches,” the release said. “Based on these numbers, McAfee projects that companies worldwide lost more than $1 trillion last year.” The release contained a quote from McAfee’s then-president and chief executive David DeWalt, in which he repeated the $1 trillion estimate. The headline of the news release was “Businesses Lose More than $1 Trillion in Intellectual Property Due to Data Theft and Cybercrime.”

The trillion-dollar estimate was picked up by the media, including Bloomberg and CNET, which expressed no skepticism.

Now, remember, this $1 trillion number is just in the press release. It's not in the report at all. And the report's researchers were just as baffled (and even more concerned) about this:

Among [the study's researchers] was Ross Anderson, a security engineering professor at University of Cambridge, who told ProPublica that he did not know about the $1 trillion estimate before it was announced. “I would have objected at the time had I known about it,” he said. “The intellectual quality of this ($1 trillion number) is below abysmal.”

.... The company’s method did not meet the standards of the Purdue researchers whom it had engaged to analyze the survey responses and help write the report. In phone interviews and emails to ProPublica, associate professor Jackie Rees Ulmer said she was disconcerted when, a few days before the report’s unveiling, she received a draft of the news release that contained the $1 trillion figure. “I expressed my concern with the number as we did not generate it,” Rees Ulmer said in an email. She added that although she couldn’t recall the particulars of the phone conversation in which she made her concerns known, “It is almost certainly the case that I would have told them the number was unsupportable.”

...The news stories got the worried attention of some of the report’s contributors because McAfee was connecting their names to an estimate they had no previous knowledge of and were skeptical about. One of the contributors, Augusto Paes de Barros, a Brazilian security consultant, blogged a week after the news release that although he was glad to have been involved in the report, “I could not find any data in that report that could lead into that number.... I’d like to see how they found this number.”

I don't know about you, but when a super well respected security researcher tells you that the basis of a particular claim is based on a number whose "intellectual quality ... is below abysmal," that's the point at which you should probably stop using the number. But, instead, politicians and the press continue to parrot the line over and over again.

The slightly smaller number, from Symantec, is still equally questionable. They go with $250 billion... but the number has almost no support. It does come from a real Symantec report, but not from Symatec employees. Instead, they hired another firm to magically come up with the number, and it sounds like magic would have been equally as effective as what was eventually done. It raised concerns from actual experts in the field:

“Far from being broadly-based estimates of losses across the population, the cyber-crime estimates that we have appear to be largely the answers of a handful of people extrapolated to the whole population.”

Furthermore, even if we take these numbers at face value, the original reports on both of them say these numbers represent the value of the attacks in question, and not what was actually "lost" or how much it cost to deal with. However, when a politician quotes them, they almost always do so by at least suggesting that these made up "values" are very real "losses" to companies. In other words, the numbers (shocker, shocker) are being twisted by cybersecurity law supporters. For example, just recently, Senator Collins said that General Alexander "believes American companies have lost about $250 billion a year," but that's not true. Already, we know the number is suspect -- but even if we accepted the number, it only represents the "value" that various companies have put on things harmed by security issues, not any sense of actual losses. Claiming that these are losses isn't just misleading, it's wrong.

We've argued for years that actual data should inform the debate on these things -- but that data needs to be accurate and supportable. Unfortunately, with cybersecurity threats, the claims that are being thrown around have no basis in reality. If politicians really want to discuss the "threat" of cybersecurity, the least they can do is get some accurate research on the scope of the problem. Trusting a number from a McAfee press release is not credible and it's certainly no basis for passing a law that wipes out privacy rights of the public.

Google users have long noticed the search page's "doodles", where Google redesigns their logo as an homage to something having to do with that day's history (Yes! I managed to link to a Techdirt story from two-thousand-and-freaking-two! Beat that, other Techdirt writers!). Often times these are nods to the birthdays of famous or important artists, scientists, or other historical figures and holidays. And if you have spent the past week or so living on Earth and aren't a rock, you can probably guess what these past days' doodles have been about.

But, as reader Jason writes in to note, the big Goog is apparently chilly on actually, you know, mentioning what the drawings are for when you roll over the image:

"The image url reference[d] the "opening ceremony" of something. But the tooltip for the image, which any seasoned Google user knows will tell you what's up with the logo that day, simply reads, "Hooray for sports!"

The two theories Jason came up with are that the search giant is afraid to even mention the sporting event in question for fear of reprisal by the committee that oversees said sporting event, or it's a sly poke in the eye at their overly aggressive sue-happy nature. Lord knows if the-games-that-shall-not-be-named are willing to go after gyro shops, a more prominent target like Google would seem to be a no-brainer. Now, it would seem to me that a prominent page like Google's home search page featuring the Olym...games-that-shall-not-be-named would be a great source of publicity for the sporting event, but thanks to the chilling effect created through lawsuit happy committees, that publicity is lost.

Over the last few days, it became clear that the big Cybersecurity Act in the Senate almost certainly didn't have the votes to pass. However, with all the negotiating and horse trading going on, there was still the possibility on some sort of "deal." Unfortunately, it seemed like the push for a deal also meant a push towards weakening the privacy protections. In the end, there was no deal, and no Cybersecurity Act this time around, as the vote in the Senate failed to reach the 60 vote threshold necessary for cloture (basically to continue moving the bill forward).

This certainly doesn't mean that any cybersecurity legislation is dead. There likely will be other attempts to get something through -- either something much less complex in this lame duck session, or (more likely) a bigger effort next year. The bill failed, in part, because some businesses were worried about it creating too many regulations for them. I still think it should have failed for failing to explain why it was actually needed. The good news, however, is that this latest version of the bill definitely took privacy concerns more seriously -- and the support for the Franken/Paul amendment would have made privacy safeguards even stronger. Hopefully this means that when the next attempt at cybersecurity comes through, that the baseline will include strong privacy safeguards. I'll have some more thoughts later on what Congress should do if it really wants to pass a cybersecurity bill, but for now, this version of the bill is dead.

You may remember the ridiculous Thomas Drake case, in which the US government went after a former NSA employee under the Espionage Act, threatening him with decades in jail. However, as the details showed, Drake was really being targeted not for leaking information, but as a vindictive response for talking to Congressional staffers about what he saw as abuse and waste by the NSA. Jane Meyer, in the New Yorker, wrote a wonderfully detailed account of the case last year. It highlighted how the charges seemed pretty trumped up, claiming that having a certain document on his home computer was illegal, even though the clear target of the investigation was whether he had leaked info to the press.

Drake's story intertwines with that of a Congressional staffer named Diane Roark, who plays a role in his story. A snippet from that New Yorker piece:

Not long after Binney quit the N.S.A., he says, he confided his concerns about the secret surveillance program to Diane Roark, a staff member on the House Permanent Select Committee on Intelligence, which oversees the agency. Roark, who has flowing gray hair and large, wide-set eyes, looks like a waifish poet. But in her intelligence-committee job, which she held for seventeen years, she modeled herself on Machiavelli’s maxim that it is better to be feared than loved. Within the N.S.A.’s upper ranks she was widely resented. A former top N.S.A. official says of her, “In meetings, she would just say, ‘You’re lying.’ ”

Roark agrees that she distrusted the N.S.A.’s managers. “I asked very tough questions, because they were trying to hide stuff,” she says. “For instance, I wasn’t supposed to know about the warrantless surveillance. They were all determined that no one else was going to tell them what to do.”

While Roark was not charged in the same process that resulted in charges against Drake, there was a search conducted, and computers taken. She's now sued the US government, seeking the return (many years later) of the computers seized, as well as findings that the feds actions were unconstitutional.

Plaintiff asks that the Court find unconstitutional the following Government actions and claims:

the Government's activities and assertions... that infringe on citizen speech and communications under the First Amendment to the Constitution and on property rights under the Fourth, Fifth and Sixth Amendments.

the manner in which the Government investigated, managed and prolonged her case. Plaintiff contends that the actions taken against her constitute retaliation for her whistleblower activities and execution of her Congressional oversight responsibilities that revealed inefficenicy, contract fraud, the persistent waste of billions of dollars on a single ill-conceived program that was never built, plus illegal and unconstitutional operations.

To be honest, these kinds of lawsuits rarely get very far, but it should be interesting to watch either way...

Another day, another article written on behalf of the disrupted, bemoaning the way things are, romanticizing the way things were and recoiling in horror from the touch of the "masses." This one's a particular treat, though, seeing as it's written by Ewan Morrison, the author whose ACTA "expertise" resulted in the "Most Clueless Column Ever." This article's headline is just as shocking: "There will be no more professional writers in the future." Morrison, sees the direness of his particular situation and has boldly taken it upon himself to speak for the entirety of professional writers, rather than just writers in his particular situation. This is never a good idea. 

By his own account, Morrison is also being driven out of business by the ominously feudal economics of 21st-century literature, "pushed into the position where I have to join the digital masses," he says, the cash advances he once received from publishers slashed so deep he is virtually working for free.

Morrison fails to specify how many dollars separate "virtually" from "actually," but one is left to imagine that the number is distressingly low. If you're looking to sell books, there are many ways to sell books. If you're looking for one particular way to sell books and that's no longer breaking even, then the problem isn't the rest of the world. The problem is the method that no longer works. 

And this phrase: "...where I have to join the digital masses." Heaven forfend! How awful. Just the sheer thought of having to mix with general population... [Pause briefly to prevent eyes from rolling completely out of their sockets.] Get over yourself.

Now, in articles bemoaning the current state of art, media, content, whatever, it's only a matter of time before the ebook-bashing starts. In this case, we only have to wait until the fourth paragraph.

And not only them: From the heights of the literary pantheon to the lowest trenches of hackery, where contributors to digital "content farms" are paid as little as 10 cents for every 1,000 times readers click on their submissions, writers of every stature are experiencing the same pressure. Authors are losing income as sales shift to heavily discounted, royalty-poor and easily pirated ebooks. Journalists are suffering pay cuts and job losses as advertising revenue withers. Floods of amateurs willing to work for nothing are chasing freelance writers out of the trade. And all are scrambling to salvage their livelihoods as the revolutionary doctrine of "free culture" obliterates old definitions of copyright.

Ebooks: "heavily discounted, royalty-poor and easily pirated." Weird. That doesn't sound like ebooks to me. The ebooks I'm familiar with have better royalty rates at lower price points and any "discounting" is done by the author, usually to increase sales (and royalties) rather than as some sort fiscally self-destructive "cry for help".

"Easily pirated?" Name another form of digital media that isn't. If you know you're going to be competing with free, it kind of makes sense to not charge trade paperback prices for something that fits on a micro-SD card with room to spare.

The economic trajectory of writing today is "a classic race to the bottom," according to Morrison, who has become a leading voice of the growing counter-revolution – writers fighting fiercely to preserve the traditional ways. "It looks like a lot of fun for the consumer. You get all this stuff for very, very cheap," he says. But the result will be the destruction of vital institutions that have supported "the highest achievements in culture in the past 60 years."

Well, let me know how that fight turns out, Morrison. "Preserving traditional ways" certainly sounds like just the sort of technobabble needed to turn a generation raised on free social media, free cloud services, free news, free-to-play online games and free music into paying customers. If I were a betting man, I'd be putting my money on the "destruction of vital institutions." Of course, this "destruction" seems a lot less harrowing when you get a more objective definition of the word "vital."

Many will cheer, Morrison admits, including the more than one million new authors who have outflanked traditional gatekeepers by “publishing” their work in Amazon’s online Kindle store. “All these people I’m sure are very happy to hear they’re demolishing the publishing business by creating a multiplicity of cheap choices for the reader,” Morrison says. “I beg to differ.”

Of course you beg to differ, Morrison. This is competition. This is no longer a one-way funnel from publishers to book stores with gatekeepers on either end. This is a tsunami of change, covering how media is consumed, distributed and created. I wouldn't expect you to be thrilled, but I'd at least expect you to realize that you can't drag the past into the future. It's impossible. You can make angry statements and point fingers and fiercely guard what's left of your chosen field, or you can direct some of that energy towards moving forward and making the most of the new tools and services available.

But Morrison's not interested in that. In a companion piece for the Guardian, Morrison paints an even bleaker picture. Citing the explosive growth of ebooks and the long tail phenomenon, he reaches the conclusion that the death of the professional author is a foregone conclusion. All that's left is to wait for the body to cool. Between piracy and ultra-low prices, there's no hope for the creative world (writers, musicians, filmmakers, photographers, etc.). He gives it about a "generation" before being an artist of any type will be unsustainable.

But... he has a solution (or rather, the "only" solution):

The only solution ultimately is a political one. As we grow increasingly disillusioned with quick-fix consumerism, we may want to consider an option which exists in many non-digital industries: quite simply, demanding that writers get paid a living wage for their work. Do we respect the art and craft of writing enough to make such demands? If we do not, we will have returned to the garret, only this time, the writer will not be alone in his or her cold little room, and will be writing to and for a computer screen, trying to get hits on their site that will draw the attention of the new culture lords – the service providers and the advertisers.

Really? This is a "solution?" 

He offers no further details, leaving this "political" solution open to interpretation. Does Morrison mean that artists should be supported by some sort of monthly stipend? Just fill out a form listing your occupation as "writer" or whatever and mail it in to the Department of Social Services or other relevant governing body and wait for your "artfare" check to show up once a month?

Or is he suggesting some sort of bailout for publishing houses, record labels and any other part of the creative industry that's currently struggling? If so, good luck. Here in America, at least, most of the general public was against bailing out domestic manufacturers of automobiles, a physical product that's much more useful than a song, a book or a photograph. It's not impossible to get this sort of thing done if you're connected to the right politicians, but it's not going to make a large portion of your potential audience very happy. 

A bailout situation also lends itself to recurring transfusions of public money because, in most cases, it's just a stay of execution. The public didn't care whether or not GM had the opportunity to crank out another vehicle because they had plenty of other options. Don't delude yourself into thinking the same doesn't apply here. All those "millions" willing to do your job on the cheap will plug any holes you leave behind, Ewan.

It's one thing to thing to try and push anti-piracy legislation through and hope that this will somehow increase sales. It's quite another to require the public to make up the difference via taxation. We already have enough discussions about using tax dollars (via the NEA) to fund art that some find offensive. Imagine doing this on a massive scale like the one Morrison suggests. Discussions would go far beyond shoving crufixes into jars of urine and cover just about every iteration in the creative industry.

If you think that public money will flow uncontested, then you obviously don't know a thing about politicians. The minute the wind starts blowing unfavorably, you'll all be stuck writing safe, boring beach novels or risk having your funding yanked. 

Whatever Morrison's actual plan is, it's still going to boil down to the same thing: artifically propping up the remnants of an industry at the public's expense. This may get applause when preaching to the converted, but the people you really need on your side -- the consumers? All they'll see is someone yelling about how the world owes them a living.

Ima Fish alerts us to the news that Madonna is being sued for copyright infringement over samples in the hit song "Vogue." That song, you may recall, came out in 1990. So you might think that it's a bit late to claim copyright infringement. Why did it take so long? The copyright holder, VMG Salsoul, claims that Madonna and collaborator Shep Pettibone, used samples of its song, "Chicago Bus Stop (Ooh, I Love It)(Love Break)" and then hid them in Vogue. Yes. Hid them. Here's Chicago Bus Stop: And here's Vogue: If you said the two sound nothing alike, you win. Salsoul claims that Pettibone intentionally "hid" the samples:

The portions of "Love Break, which have been copied into Vogue and all its various "mixes," remixes," videos, YouTube versions, etc. are numerous but intentionally hidden. The horn and strings in Vogue are intentionally sampled from "Love Break" throughout.

The lawsuit notes that, prior to working on Vogue with Madonna, Pettibone had, in fact, worked for Salsoul, doing remixes -- and had remixed that exact song. However, the fact that it took 22 years for Salsoul to even notice certainly raises significant questions about whether this is copyright infringement. One of the issues looked at in determining fair use, of course, is whether or not the work is transformative. You would think, if the original copyright holder didn't recognize its own sample, found in one of the most popular songs of the 90s, that's a pretty good indication that it's "transformative." It certainly isn't a substitute for the original.

Of course, the law around copyright and sampling is a complete mess, thanks to some incredibly questionable rulings, such as the Bridgeport ruling in the Sixth Circuit that claimed "get a license or do not sample." That case did not look at the fair use issues at all, and had various other problems, but these issues rarely come up in court, even in other circuits, because people (on all sides) are afraid of how it will come out. This case, for what it's worth, is not in the 6th Circuit.

There are also questions about the statute of limitations -- and that's another area where copyright law is a mess, but it certainly seems like that would not stop this particular lawsuit, based on a variety of factors.

Either way, the fact that it took so long for the copyright holder to even notice seems like it should be evidence enough to dump this lawsuit in the first place, though that's unlikely to happen.

Forbes has an article about how lawyers representing Richard Brandson's Virgin property have sent a letter to "I Am Not A Virgin," a small jeans company in NYC, complaining about its attempt to register the trademark on its name in the US. The Forbes report falsely states that it's a copyright issue (seriously, don't people check these things?) and also seems to miss that the letter is about a planned opposition to a trademark registration. Peter Heron, I Am Not A Virgin's founder, put together an amusing video reading the letter and questioning Branson's claims: My favorite bit is him asking if Branson thinks that people walking by "Extra Virgin Olive Oil" in the store are likely to be confused by it. In fact, you could argue that the likelihood of confusion (or dilution, since that's in play too) is extremely minimal here. Hell, the entire name of the company is claiming that it's not a "virgin," though I'd imagine that's a reference to the more common definition of the word, rather than Branson's widespread brand. Considering that one way companies often avoid tradmeark issues is to clearly state that they are "not affiliated" with a particular trademark, how much stronger of a not affiliated statement would Heron need than having the very brand claim it's not the other brand?

To be fair, the letter itself is much more on the friendly side of the spectrum, when it comes to legal nastygrams. It doesn't take a completely hardline stance, tries to express a common viewpoint (applauding the support for "the planet" and entrepreneurs), and even makes some (kinda silly) suggestions for alternate names ("I Am Not Chaste," "I Am Not Pure" -- to which Heron suggests "how about 'I Am Not Made By Richard Branson'). But, it doesn't go to Jack Daniels' level of friendliness, in making it clear that no change will lead the company to officially seek to have Heron's trademark (which he's had for 3.5 years) revoked by the USPTO.

It's also clear that Heron is milking this for all its worth as a marketing strategy (which is a pretty reasonable strategy, given the situation). But that raises more questions about why Virgin/Branson even went down this road in the first place. They had to know that they were just asking for a public shaming.

[UPDATE: Some comments (namely Steve Mosby's and David Hewson's) have pointed out that there is more to this story than simply the post by Stephen Leather I used as the basis for this one. While other accounts of this event differ slightly, the overview remains pretty much the same. However, there is a glaring omission from Leather's post that is mentioned in others. David Hewson's take on the event, as well as Mosby's, mention that Leather admitted to using sock puppets to comment in forums to drum up business for himself. This, in and of itself, would be unpleasant enough. But there appears to be evidence that Leather's sock puppetry goes beyond simple PR and into harassment of other writers, including writing one-star reviews on Amazon and setting up Twitter accounts in their names in order to, for lack of a better term, screw with them. This obviously goes far beyond shady PR tactics. 

While I believe that the points raised by Stephen Leather's post, as presented on his blog, are still valid, these other issues call Leather's character into question. I based this post solely on Leather's take which, in retrospect, was unwise. This gives the appearance that I (along with Techdirt) approve of these other actions or have simply chosen to disregard them. This is not the case. I was unaware of these aspects until they were raised in the comments, and that is no one's fault by my own.

I would encourage you to read the other postings to more fully round out this picture of Stephen Leather. Again, I feel the points he raised were valid but I do not want to give the impression of implicit approval of his other actions.]

There's something about disruption that stirs up a certain amount of animosity in those on the receiving end. It sometime seems to be almost a "fight-or-flight" response, brought on by those whose "sure thing" has become about as fiscally wise as "buying a home" or "selling the farm to buy Facebook shares."

E-book mystery writer Stephen Leather got to experience this phenomenon in person while visiting the three-day Harrogate Crime Writing Festival, with the dual purpose of rubbing elbows with other authors and adding some background for his upcoming e-book called Inspector Zhang Goes to Harrogate.

The "fun" began when Leather, at the behest of another author, appeared on a panel whose very name stacked the deck against him: "Wanted for Murder: the e-book." As pretty much the sole representative of e-publishing, Leather was outnumbered four-to-one, joining a publisher, another writer (with few e-book sales), an agent and a bookseller. Even with this huge advantage, the old guard couldn't keep itself from deploying mockery, ignorance and condescension when addressing Leather's comments.

What surprised me was how the audience seemed so set against cheap eBooks. Rather than taking my view that books are best sold at a price that readers find attractive, the general feeling of the audience seemed to be that books were already – as one man said – ‘cheap as chips’ while Norwegians had to pay £40 for one of Jo Nesbo’s books. When I explained that I had sold half a million eBooks last year, most of them for less than a quid, I was surprised to hear a few boos and hisses rather than the applause that I had expected.

Can you feel the hate? This doesn't sound like authors supporting other authors. This sounds like the tortured noises of a large animal backed into a corner by a previously unrecognized aggressor. I's now up against the wall, in an unfamiliar position, and unsure of what move to make next.

It gets simultaneously uglier and stupider from there:

The most surreal moment for me came when the President of the Publisher’s Association, Ursula Mackenzie, was trying to defend their policy of maintaining eBooks at a high price. Basically she was saying that books needed to maintain their value and that 20p and free eBooks needed to be stamped on.

I understand her view, but I’m a big fan of selling eBooks at lower prices providing you can get high volumes of sales. And I’m happy enough to give books away if it helps to bring in new readers.

The old argument about "devaluation" is now in play. No matter how many times it's stated, it's still nothing more than a willful misreading of the situation. Unknown (or unsigned) writers selling cheap e-books doesn't devalue your product. Innovations and the removal of barriers lower the costs associated with your product, especially in regards to the digital version. Publishers seem to think that consumers should pay physical prices for digital items. It's not a matter of "devaluing" anything. It's a matter of publishers overvaluing their goods in order to preserve the margins they're accustomed to.

When faced with this fact, publishers and certain authors start throwing out statements concerning the costs of editing and marketing books as the reason why their e-book prices are unable to square with reality. Publishers also use these same statements to explain why they're "entitled" to the largest cut of the proceeds. Leather had his own thoughts on this, but no one's interested:

Mark turned to the conversation around to the cost of books and how much went to the publisher, and asked Ursula to justify why the publisher’s took the lion’s share. She put forward the old arguments about editing and marketing and I tried to explain that with eBooks, an author with a large fan base can use fans to edit and proof-read. Everyone seemed to think that meant I thought writers could do away with editors, and of course that’s not the case. But not every writer needs a hard edit, some writers need little more than proof-reading and fact-checking and that can be done through fans. And my Jack Nightingale series is edited by a full-time editor on my agent's staff so those books need very little editing by my publisher. Yes, I know that some authors need a lot of editing. But I don't.

No one claims that Author A's strategy in the e-book game will work for Author B, but the publishers seem to think that their strategies and methods will work for all authors and that these associated costs will always exist (at increasing price points), hence the "need" for higher prices.

Leather also discussed piracy in a reasonable fashion, stating that he felt pirates "helped market his books." This was greeted by negativity ("...I thought I was about to be lynched...") and name-calling. Pointing out that DRM doesn't work and negatively affects paying customers was greeted with complete denial by the publisher's representative. When Leather questioned why a writer who sells most of their books through Amazon (not exactly known for leaving much on the negotiating table) would need an agent, agents in attendance began firing off "nasty tweets" about him.

But there's one moment in Leather's post that stands out from all the rest of the petty defensiveness of the panel, and gives an indication that some very fundamental misunderstandings of economics, consumer behavior and basic math might be what's holding back certain publishers and authors from seeing how Leather's strategy might work for them.

So I explain to Ursula – and the audience – that I can write a short story in five days and am happy to sell that at the Amazon minimum of 72p which generates me an income of 25p. At this point Ursula – who runs one of the biggest publishing houses in the UK – asked me “so you’re happy to work for 5p a day, are you?” The audience laughed and clapped, and I was frankly gob-smacked. I couldn’t understand why they hadn’t seen the fallacy in her comment. She was assuming that I spent five days writing a story and then sold one copy. She can’t possibly have believed that, could she? 

She might. Many publishers and authors might. So many of them seemed completely focused on making the largest profit they can from the fewest possible sales. It seems like a good idea, but, as has been shown here before, lowering your prices can increase both sales and your net income. Keeping your prices artificially high in hopes of earning more per sale can cost you more in the long run. Leather isn't selling one copy at 5p. He's selling thousands.

Of course I don’t work for 5p a day. My Inspector Zhang stories sell about five or six hundred copies a month. Each. So one story sells 6,000 copies a year. So over the next ten years it could sell 60,000 copies which means I’d get £15,000, which is £3,000 a day and that’s probably more than she gets paid.

It doesn't get much more condescending than that. Assuming that 72p purchases will never add up to "real" money is keeping a lot of publishers and authors from making as much as they could. There's a hint of snobbishness to that line of thought: that somehow self-publishers who sell at low prices are lesser artists and should be mocked, pitied or ignored.

So be it. When the walls come crashing down around you, I'm sure the gate you've spent so much time maintaining will make all the difference in the world. And while you're admiring the distance between you and these upstart outsiders, these upstart outsiders will be more than happy to be mocked and pitied all the way to the bank.

When Craigslist sued PadMapper and 3taps, we questioned the legal basis for much of the lawsuit, in particular the claim that Craigslist even could sue over copyright, when any copyrightable content is created by the end-users and not Craigslist itself. It appears that someone at Craigslist realized that it was somewhere very close to the Righthaven line in claiming a bare right to sue over someone else's work, and made a tweak, demanding "exclusive" rights.

I first saw this via Slashdot on the Baligu blog, and was trying to go through the legal implications, but thankfully, Tim Lee over at Ars Technica did all the heavy lifting for us in speaking to IP lawyers James Grimmelmann and Mark Lyon who are quite skeptical of this move.

What's odd is that this "change" isn't even to its terms of use, which don't actually claim an exclusive license. Instead, the company has just added text to the posting page saying that you are granting the company such a right:

Clicking "Continue" confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.

The theory, as Lee notes, is probably that by more forcefully claiming exclusive rights, perhaps it can get over the hump and have the right to actually enforce those copyrights -- but that legal theory is speculative at best.

It's kind of interesting, because someone could also potentially argue that this statement contradicts the company's own terms of use since they're different but perhaps more interesting are the wider legal questions raised by this -- including what happens if you, the user, post your classified ad to any other site. Craigslist seems to be claiming that it can go after those other sites (and, um, potentially you, I think...) for reposting "its" work. That's crazy and something that completely goes against Craigslist's standard "user-friendly" approach to everything.

Once again, this is showing how Craigslist's pursuit of these kinds of legal issues really seems to go against what made Craigslist so successful, turning the company into much more of a cranky legal bully. Lots of companies that start out innovative and open, do later change and flip sides on things like this, but Craigslist always seemed like the kind of company that would stay on the right side of the "evil line." It's too bad to see that it seems to be so aggressively diving over to the copyright bully side of the line.

When we talk about cool new business models, one thing we often hear from critics is the attempt to dismiss some of the more creative ideas as mere "gimmicks." I think that severely misses the point. For new business models to work, they need to also reach fans/customers in an effective way. And, sometimes, that means that the business model is part of the marketing campaign. In fact, I'd argue that much of Kickstarter and its success stories is based (in part) on this premise. The business model and the marketing campaign bleed into each other -- which is why it's often useful to have parts of your business model be things that will get people talking about you. It's also why we have a $100 million offer in our (soon to be relaunched!) store. While no one bought it (yet!), it was definitely the item people spoke about the most.

And, of course, none of this has to be purely digital. My friend Tom sent over this great story about Neal Gottlieb, who runs an ice cream business that has some stores and a factory -- most of which involves your everyday ice cream sales. However, he's also got some offerings for some... higher end clientele:

Q: So what's the deal with the $3,333.33 banana split you have on the Napa store's menu? Are you out of your mind?

A: I put it up not really as a joke, but for something fun for people to read while they're waiting in line.

I really hate the most expensive (dot dot dot) when most of the expense is for the serving dish, like the most expensive cocktail that comes in a crystal chalice. We serve the most expensive sundae, but the food cost is one-third of the price. It's three scoops of organic ice cream; a banana, organic of course; and is topped with three syrups made from three extremely rare dessert wines - a 1960s vintage Port, a Chateau D'Yquem and a German Trockenbeerenauslese. It also comes with a cellist who will play anything you want while you eat the sundae.

Ah, yes. Don't forget the cellist. Though, I'd argue that if his complaint about others is the price of the serving dish, there may be a valid complaint when part of the cost is the musical accompaniment. That said, this is not the most expensive item on the menu:

Q: What other expensive ice cream packages do you offer?

A: We offer a trip to Mount Kilimanjaro with a real guide and me. Once we climb the mountain, we will chip away at the glacial ice and carry it back to camp, where we will churn as much ice cream as the customer can eat. The trip includes first-class airfare, five-star accommodations, a $10,000 donation to a nonprofit African environmental charity and a souvenir T-shirt for $60,000 for one and $85,000 for two.

So far we've had no takers.

However, one person has purchased our "100 pints personally delivered." That's when I wear a green tuxedo and deliver the ice cream anywhere in the U.S. for $3,333.33.

The full article has a bunch more details and is well worth the read, so go check it out.

Now, of course, some people will (again) say that this is merely a "gimmick." And perhaps you can dismiss it as that. But I think it goes much deeper. It's showing how the business model itself can be both a part of the marketing and how you connect with fans and customers. In this day and age, part of succeeding is in standing out. Doing the same thing that everyone else does won't get you that far, so why not innovate and be creative on the business model side of things as well? I'm sure Gottlieb makes great ice cream (I've heard good things, though I haven't tried it), and so our usual critics will insist that he absolutely must only focus on that and that alone. But I think most sensible people realize that you can create a great product and do a good job marketing it while also being creative with your business models. And none of those things take away from any other part.

Anyway, should anyone decide to take us up on our $100 million offer, I plan to use some of the money to go to Mount Kilimanjaro with Mr. Gottlieb.