We recently noted that, in the same week that Dan Bull had his new single hit the music charts because he promoted it via The Pirate Bay, BPI had convinced a court to order UK ISPs to start blocking TPB. Earlier this year, Dan had already written a song, Bye, Bye BPI, for that organization's initial attempt to block The Pirate Bay, and we asked Dan to share his thoughts on TPB officially being blocked in the UK.

The Pirate Bay would seem an odd primary target for the British record industry's hit list. After all, it doesn't host any infringing content, but serves as a hub for people who want to share their own files directly. Sites like YouTube receive stratospherically higher amounts of traffic, and host hundreds of thousands of infringing videos. Perhaps it is not the infringement itself then, but The Pirate Bay's notoriously defiant defense of its modus operandi that has made it a target. Or maybe it's an underlying acknowledgement that to prevent infringement in any meaningful way would require the impossible feat of blocking every site on the internet that contains a hyperlink.

Despite the industry's readiness to insist that copyright infringement threatens the future of musicians - especially those who are lesser known - there are plenty of examples where the opposite is true. In fact, every musician I know utilizes filesharing in some form or another. Let me tell you how filesharing has allowed me to turn my creative ambitions into something real.

I use a program called Cubase to compose my music. Initially I bought a legitimate copy for several hundred pounds. It was buggy and regularly crashed. Eventually it stopped working altogether. Rather than buying a replacement, I downloaded a cracked version via The Pirate Bay. It was far more stable. I also downloaded some industry standard plugins which would have cost thousands of pounds. I was unemployed, so the choice wasn't between downloading or purchasing. It was between downloading or nothing.

Using this cracked software I produced an album about overcoming self-destructive thoughts and coping with Asperger syndrome. A while after publishing the album I was contacted by a young man who I'll call Rupert. Rupert suffered the same problems, and was preparing to take his own life. After listening to the album, he realized that he wasn't alone, and chose to face his problems. This music, he said, saved his life. If the British Phonographic Industry had gotten their way sooner, my album wouldn't exist, Rupert wouldn't have heard it, and perhaps his story might have taken a turn for the worse.

Another example of how filesharing and creativity go hand in hand is The Promo Bay - The Pirate Bay's launchpad for unsigned artists. Thousands of musicians have applied, eager for their work to be given the spotlight that traditional, industry-sanctioned channels will never allow. Now, thanks to the High Court ruling, no aspiring musician will be able to use The Promo Bay to gain exposure in the UK. Once again, the British Phonographic Industry is throttling any channel of distribution which doesn't allow them the cut to which they believe they are entitled. I'd like to see what the BPI's head, Geoff Taylor, has to say to George Barnett, the unsigned British songwriter whose fanbase skyrocketed after being featured on The Promo Bay. The only thing that the BPI has done for George is to entirely prohibit his primary means of exposure. A few months ago I asked The Pirate Bay if I could help to manage The Promo Bay for them. They reluctantly refused, telling me that if I worked with them in any official capacity, I may be regarded as a co-conspirator, meaning that if I ever wanted to visit the USA I could be detained on criminal charges. Yes - helping to promote unsigned music on a popular website meant that I could be kept prisoner in a foreign country for supposedly conspiring to help kill the music industry. If ridiculous situations like the above are allowed to happen, then perhaps killing the music industry wouldn't be such a bad thing...

Having said that, it's laughably easy to circumvent the block enforced by the courts; it takes a single click. This is as difficult as it will ever be, unless the internet is policed and regulated so much that it ceases to function at all. Preventing internet filesharing is impossible because - quite simply - the internet IS filesharing.

Scientific American photography blogger Alex Wild recently wrote about his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild's attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what's appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.

Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant:

There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:

The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.

But Wild's work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren't covered by copyright, and that's not just a legal nuance, it's a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn't mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don't get perpetual credit or payment. Knowledge cannot be owned.

What was copied from the photograph was simply the knowledge of what the ant looks like, and indeed the photo contained very little beyond that to begin with. It's a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph's subject, which Wild didn't create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that's no reason to feel hard done by.

So I don't think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he's still open to other thoughts on the matter:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.

That's a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn't entirely made up. I hope that, on further consideration, he'll realize that this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all.

Last week, I had the chance to chat with the General Counsel of a well known internet company -- not a "giant" one, but one you've almost certainly heard of -- and we got to discussing Twitter's new patent assignment agreement with its employees, and whether or not other tech companies would start offering the same thing. He was a bit skeptical, and pointed out that, even at a company the size of his (big enough to have a full time general counsel, for example) they had applied for exactly zero patents. He said he's tried, but none of the engineers at the company have any interest at all in patenting what they're working on (actually, in talking to someone else later on, I heard that the bigger issue is that some of the employees are thinking about ways to open source their work). Either way, the lawyer noted that, because of that, any patent assignment agreement was something of a waste of time. His company just wasn't interested.

Unfortunately, it appears that not all startups are working that way. With Yahoo's patent fight against Facebook getting so much attention these days (not to mention other big patent fights involving companies like Google, Apple, Microsoft, Oracle and others...), it seems that startups are (rather reluctantly) spending a lot more time (and money) at the Patent Office.

This is, to put it mildly, crazy. The two biggest scarce resources for startups are time and money. Throwing them away on getting patents is a huge waste, and it's main purpose is to act as insurance against failure or against jealousy over extreme success. Basically, most patents are completely useless. But if a company is failing, then perhaps it can sell off its patents. And, if a company is succeeding, then suddenly others will start suing it for patent infringement -- and the hope (rarely realized) is that having at least a few patents in the portfolio means that other practicing entities won't sue for fear of getting sued back (patent trolls are exempt from this, however).

It's really too bad that the state of the patent world today is such that are most innovative companies are basically forced to throw away time and money to apply for patents they never want to use.

One separate aside on this story. The article talks about the Twitter IPA agreement, and later quotes the founders of the startup Everyme as saying they support the IPA, but: "their first three apps were already with the U.S. Patent and Trademark Office by the time IPA was available, though, and they don’t plan to refile them." This sentence makes no sense. The IPA has nothing to do with the USPTO and the patent filing. It's merely a part of the assignment agreement, leaving some portion of control with the inventor. In fact, Twitter -- who does have some patents -- has said that it's using this agreement retroactively with patents that were applied for before the IPA existed. So there's no reason to refile the applications at all. In fact, the IPA is entirely separate from the actual patent application.

More than anywhere else, Japanese researchers seem a bit obsessed with creating robots to do some wacky things. So why not create some sushi robots to eliminate some of the boring, repetitive work in sushi restaurants? Here are just a few examples that point towards a future of fully-automated sushi production.

• The SushiBot can serve up to 3,600 portions of nigiri sushi in an hour. Its manufacturer, Suzumo, also has bots for maki rolls, but disappointingly, these robots still need a human operator to handle the raw fish and some of the other ingredients. [url]
• Yoshiaki Shiraishi was the inventor of the sushi boat conveyor belt -- an idea he borrowed from seeing beer bottles on a conveyor belt. His kaiten-zushi system helped to spread the global consumption of sushi, and it first appeared in 1958 in Japan. [url]
• Sushi-related robots aren't just replacing some human workers; some are carving out completely new jobs for themselves... such as laser-cutting intricate patterns into seaweed. No human would want to do this job by hand in a busy restaurant. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

Reminiscent of the Righthaven cases, where once judges realized what was really happening they quickly started dumping them, it seems that we're reaching the tipping point with porn companies playing the copyright trolling game as well. More and more of the attempts to seek expedited discovery are getting rejected in sternly worded rulings from judges who recognize that the sole purpose of the lawsuit isn't to go to trial, but to get expedited discovery in order to shake people down for cash. The latest such ruling in an increasingly long line comes out of the Eastern District of NY, where judge Gary Brown issued a nice smackdown on copyright trolls. The judge first notes the ridiculousness of relying on IP addresses to identify the individuals, citing a bunch of cases, before noting that an IP address simply does not indicate the "true identity" of the defendant.

In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper

There are a number of issues specific to the claims of the plaintiff, K-Beech in this case, including its failure to register the copyrights in question, and a weak attempt at lumping in a trademark claim after this came to light. However, what becomes clear pretty quickly is that the judge isn't buying any of this, and sees that it's really just an attempt to use the courts to shake people down. It starts off with the discovery request going far beyond what's necessary to take a case to trial:

However, not all the information sought is required to advance the claim. For example, in addition to names and addresses, plaintiffs seek both the home telephone numbers and email addresses of the putative John Does... information which is clearly not required to proceed with this action. In particular, obtaining the home telephone numbers seems calculated to further plaintiffs’ settlement strategies, discussed above, rather than advancing their claims by allowing them to effect service.

But the larger point is that the court recognizes these kinds of copyright trolling lawsuits as "abusive litigation tactics." While the court notes that it can and should encourage settlements, it also notes that the rules say those settlements should be "just" and it's not clear that's what's happening here:

Our federal court system provides litigants with some of the finest tools available to assist in resolving disputes; the courts should not, however, permit those tools to be used as a bludgeon.

The court then goes on to agree with many other courts in noting that lumping a bunch of defendants together in the same lawsuit is improper joinder, and agrees to only allow discovery on the very first IP address named in each of the lawsuits being considered.

On the whole, there isn't that much different about this ruling from a bunch of other recent rulings, but it's another one to add to the pile, and it gets clearer and clearer every day that the courts are now aware of how trolls are abusing the system, and less and less likely to allow such abuse.

Neelie Kroes gave a keynote speech at this year's re:publica conference in Berlin (disclosure: I spoke there too) that brought together many of the themes she has touched on recently -- the open Web, copyright licensing, the potential of open data, and the need to provide enhanced Internet safety for children. Interesting and important as all those are, they pale into insignificance beside the following comment she made:

We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the Internet. This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject. We are now likely to be in a world without SOPA and without ACTA. Now we need to find solutions to make the Internet a place of freedom, openness, and innovation fit for all citizens, not just for the techno avant-garde.

Coming from one of the most senior members of the European Commission, which is still desperately trying to push ACTA through the European Parliament, that's an extraordinary statement; the question is: what does it really mean?

Some have suggested that this is an attempt to lull ACTA opponents into a false sense of security so as to allow the European Commission to work behind the scenes for ratification. But that seems unlikely: important though the re:publica conference is, such a statement from an EU commissioner there is hardly enough to trick many ACTA opponents into giving up.

Others would like to believe that the European Commission has finally come to its senses and recognized that the opposition to ACTA is too deep and wide to be overcome, and have accepted its inevitable defeat. Again, that is not really credible given the continuing attempts by the European Commission to persuade European politicians to support the referral of ACTA to the European Court of Justice, and to delay the vote in the European Parliament.

What it may indicate is a growing split in the European Commission between the pragmatists like Kroes, who have accepted that ACTA is doomed, even if they are not really very happy with that outcome, and the hardliners led by the commissioner handling the negotiations, Karel De Gucht, who are still fighting a rearguard action.

That fits with what we know about Neelie Kroes. For example, as Techdirt reported, she has come out in favor of copyright reform and against Internet disconnections -- two views that are probably not shared by all her European Commission colleagues. With her latest frank acknowledgement of ACTA's dwindling chances of being ratified, it would seem that, once again, Kroes is in the vanguard of accepting the reality of the digital world, rather than stubbornly fighting it to the bitter end.

Assuming that there is indeed a growing rift within the European Commission, that in itself is significant, because it represents a departure from the earlier position of presenting a unified front. Given that the European Parliament is also divided between the more realistic socialists, liberals and greens on the one hand, and the more recalcitrant conservatives on the other, it looks like a huge fault line is developing right through the European political machine. Against that background, it would seem increasingly unlikely that ACTA will now be ratified by Europe.

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

We recently wrote about Paulo Coelho convincing his publisher, Harper Collins, to run an experiment, in which they offered up nearly all of his ebooks for just $0.99 (the one exception being his most famous book, The Alchemist). In the comments, we had an interesting discussion, in which someone suggested that even dropping the price by 90% would mean it was unlikely that he got 10x more sales to make up the difference. Others pointed to similar experiments -- such as those by Valve, in which dropping prices by large amounts increased sales by much, much larger percentages.

Paulo himself contacted us to share some of the initial results -- pointing out that, according to Amazon, the sales of a bunch of his books increased between about 4,000% and 6,500%. Yes, that's multi-thousands of percent increases. I would think that more than made up for the difference in price... While the screenshot just shows the top books, he noted that a similar pattern was seen on basically all of his books.

One hopes that this will send book publishers running to their nearest economics text or professor, so that they can be taught about price elasticity, and why lowering prices can often make you more money.

Following the massive success of her Kickstarter experiment, we asked Amanda Palmer if she wanted to write a quick guest post about why she thought the offering was so successful. Here's what came back, including a bonus bit from Sean Francis, who has helped Amanda for years on the tech/social side of things.

There's a great story about how bamboo grows. A farmer plants a bamboo shoot underground, and waters and tends it for about three years. Nothing grows that's visible, but the farmer trots out there, tending to this invisible thing with a certain amount of faith that things are going to work out. When the bamboo finally appears above ground, it can shoot up to thirty feet in a month. This is like my kickstarter campaign. The numbers aren't shocking to me, not at all. I set the goal for the kickstarter at $100,000 hoping we'd make it quickly, and hoping we'd surpass it by a long-shot.

I've been tending this bamboo forest of fans for years and years, ever since leaving roadrunner records in 2009. Every person I talk to at a signing, every exchange I have online (sometimes dozens a day), every random music video or art gallery link sent to me by a fan that i curiously follow, every strange bed I've crashed on...all of that real human connecting has led to this moment, where I came back around, asking for direct help with a record. Asking EVERYBODY. Asking my poor fans to give a dollar, or if nothing else, to spread the link; asking my rich fans to loan me money at whatever level they can afford to miss it for a while.

And they help because they know I'm good for it. Because they KNOW me.

I've seen people complaining that this is easy for me to do because I got my start on a major label. It's totally true that the label helped me and my band get known. But after that, the future was up to me. It bought me nothing but a headstart, and I used it. I could have stopped working hard and connecting in 2009. If I'd done that, and then popped up out of nowhere in 2012 to kickstart a solo record in 2012, my album would probably get funded to the tune of $10k...if I was lucky. There are huge ex-major label artists (pointless to name names) who have tried the crowd-funding method and failed dramatically, mostly because they didn't have the online relationship with their fans to rely on. And vice versa: plenty of young upstarts with a small but devoted fanbase have kicked ass using crowdfunding, because they've taken a hands-on approach online and at shows, and have been close and connected with their fans ALL THIS TIME, while nobody was caring or watching.

I tweet all day. I share my life. My REAL life. The ugly things, the hard things. I monitor my blog religiously. I read the comments. I ask for advice. I answer questions. I fix problems. I take fans at their word when they see me at a show and tell me their vinyl arrived broken in the mail. I don't try to hide behind a veil of fame. I don't want to be anything more than totally human. I make mistakes, get called out, and apologize. I share my process. I ask for help SHAMELESSLY. I sleep at my fans houses. I eat with them. I read the books they write. I see their plays and dance performances, online and in real life. I back their own crowdfunding projects. I get rides home with them. I'm the kind of person they WANT to help, because they know me well enough, after years of connecting, to know WHO I ACTUALLY AM. They don't just get a photoshopped snapshot of my every time I have an album to promote. They see the three-dimensional person, in motion, in real-time. Living and working.

There is no marketing trick. There is human connection, and you can't fake it. It takes time and effort and, most importantly: you have to actually LIKE it, otherwise you'll be miserable.

We're entering the era of the social artist. It's getting increasingly harder to hide in a garret and lower your songs down in a bucket to the crowd waiting below, wrapped in a cloak of sexy mystery above. That was the 90s. Where an artist could be as anti-social as they wanted, and rack up cred left and right for shoe-gazing and detaching. It's over. The ivory tower of the mysterious artist has crumbled. If you're painfully shy and antisocial and hate tweeting and blogging and connecting and touring...and you really just want to write and sing music and be left alone, you can still succeed...if your music is BRILLIANT. But you better have a damn clever boyfriend, girlfriend or friend-manager to fight your battle for you and lift the megaphone in your name, because no longer will a huge, magical company scoop you up and do all the heavy lifting (or if they do, they'll charge you 100% of your income for the service).

I got asked today on Twitter: "why is an artist your size using kickstarter? shouldn't you leave crowdfunding to the peple who need it?"

I answered: all artists at every level (even the Gagas and Madonnas) have to somehow raise capital for their work, whatEVER level it's at. some artists go to labels/companies for the capital to fund albums & tours. Now artists (at any level) can go direct to their fans. The end.

The basic tenets of success in music are still true: have good songs, touch people, work hard. But as far as getting around from place to place... musicians are no longer traveling by limo with one-way glass protecting them from view. Now we're all going on foot, door to door, in the open sunshine... with the internet as our magical, time-space defeating sidewalk.

love,
amanda
@amandapalmer

ALSO:

Here's is a note from Sean Francis (@indecisean) , who's been working with me behind the scenes for over 5 years, helping me run my blog, socials, mailing list and general net-land:

The internet's been synonymous to Wild West'ian outlaws and lawlessness for so long, I think people forget that it's also got another REALLY appealing attribute: it's a giant safety net. And if you spend time nurturing and engaging the people holding that net, you KNOW you're going to get caught.

For several years, I've watched and aided, as Amanda's interwoven strategies predicated on those two things - pioneering and connection.

As new media has emerged, we've looked at how it'd be advantageous to her career, and in what ways it could be potentially beneficial to the fanbase... and as she's toured, written, recorded, and Twitter'd away, we were privately (and sometimes publicly) playing with puzzle pieces which are culminating in the release of this new album.

To get this right, Team AFP have spent hours on the phone and sent literally hundreds of emails, every week (sometimes daily)…and with the launch of our Kickstarter this past Monday, the public is seeing what several years of work can do.

When Amanda fell or misstepped in the process of trying to get this right, her net was there. And now that she's ready to do this on her terms, they still are.

Maybe it's a small collection of fans in some people's eyes - but it's a SOLID one - that believe in art and connection. And I'm watching it grow in size by the minute... not just monetarily, either.

While you were sleeping, Amanda Palmer built an army.

As the still ongoing legal feud between Google and the Authors Guild has continued, Google is trying a new tactic: accurately asking the court why the Authors Guild should be appointed as the representative of all authors? Google pointed out that the Authors Guild -- somewhat notorious for its luddite view of the world -- is trying to turn the lawsuit into a class action, but that most authors don't mind Google scanning their books and making it easier for people to find them:

To prove this point, Google commissioned a survey of more than 800 authors about their opinions regarding the project. The majority of respondents, 58%, said they approved of Google scanning their books, while 28% were neutral and 14% objected. Almost three out of four respondents, 74%, said they don't believe that Google's scans would affect them financially, while 19% say they have or would benefit and 8% said they have or would be harmed.

Of course, the judge pointed out that there could be advantages to having the Authors Guild declared as the stand-in for all authors. For example, if Google actually wins, then that would make life easier for Google. However, Google's lawyer responded that the company wants the right result, not the most expedient.

“Wouldn’t Google be delighted that this is a class action if I find it’s fair use?,” Judge Chin asked Thursday.

“No,” Ms. Durie said. “We care institutionally whether the law is being applied correctly. The correct application is not to certify a class.”

Of course, the Authors Guild has a rather different take on all of this, insisting that "millions of authors" have been harmed by Google helping people find their books. I'm not quite sure how that makes much sense, but it appears that if the Authors Guild had its way, libraries would pay extra to build card catalogs, since, you know, that's making use of the works without a license.

One of the cooler features of Facebook's Timeline for businesses is the ability to go back and fill in milestones and events over the years. Some companies have long and very interesting histories, and for them a historical timeline is the perfect opportunity to engage in advertising-as-content. This is clearly what famed luxury brand Burberry was trying to do when they filled out their timeline with vintage advertisements and examples of Burberry's role in fashion and culture—including an image from Casablanca of Humphrey Bogart wearing a Burberry coat. Naturally it wasn't long before they started receiving legal threats from the company that controls Bogart's publicity rights and the trademarks associated with his name—but Burberry is fighting back. PaidContent reports that they have filed for declaratory judgment that their use of the image is not infringing.

As the filing (embedded below) asserts, Burberry's use of the image is legitimate in every way and clearly protected by the First Amendment. The company is simply showcasing a factual, historical example of an important use of the brand, and there is no reasonable alternative way they could convey the same information. Even in terms of copyright, Burberry would have a strong fair use argument—but the company actually obtained the necessary copyright licenses for the image, so that's not even an issue. In terms of trademarks and publicity rights, the infringement claim is even more spurious: the use of the image in no way implies personal endorsement or any commercial connection to Bogart. The only implied endorsement is that a Burberry coat was part of an iconic outfit from an iconic movie—and that's a plain and simple fact that anyone is free to report. Using a single frame from a film to demonstrate that fact is a clear-cut case of free speech, regardless of any rights that may be attached to the image or the celebrities therein.

We've noted before that publicity rights are new and kind of scary. In some ways they make the same kind of sense as trademarks: it's in the best interest of both companies and the consumer that brands can't misrepresent celebrities as endorsing their products when they actually don't, just as we don't want brands unfairly capitalizing on each others' goodwill. But, just like trademarks and every other form of intellectual property, publicity rights are breeding an ownership mentality where people think they can control any and all uses of something. These threats against Burberry are a prime example of that—and hopefully the judge grants them their declaratory judgment and sends a clear message that publicity rights do not supersede freedom of speech.

If there is such a thing as a functioning copyright system, one of its tenets should be that it is quite easy to know if what you're doing is infringement. Of course, as we've discovered over and over again, people infringe unkowingly all the time -- and it's not just because of negligence or ignorance. Often it's because it's simply impossible to figure it out. Take, for example, the quite common practice of uploading a cover of a song to YouTube. This happens all the time. Lots of people record themselves singing popular songs and put them on YouTube. According to Andy Baio, about 12,000 such cover songs are uploaded each day. Justin Bieber became Justin Bieber because of some YouTube videos of him singing someone else's songs.

But is that breaking the law?

Andy Baio dug into that question and discovered that it's almost impossible to determine that. Now, if you're merely recording a cover song for release, there are compulsory/mechanical license fees you can use. This is why you see cover songs on albums all the time. They're not done with "permission," but rather because someone paid the compulsory rate set by the government. The problem, however, is when you add video to the mix. Once you're talking about a video with music, a second license has to be secured: the sync license. And there are no compulsory rates with sync licenses -- meaning that the copyright holder can (and often does) demand exorbitant fees if they even respond to your request at all.

Now, as Baio notes, Google did sign a deal with the National Music Publishers Association to allow publishers to join a program where they get some money in exchange for allowing their songs to be played by others on YouTube. But no one knows whose publishing rights are actually covered by that agreement, meaning that it's effectively useless.

The end result? It's likely that a rather large number of the cover song videos uploaded each day are infringing -- potentially opening up the uploaders to huge statutory fines for violating copyright law. This is a clear sign of where the law is broken. The law clearly wasn't mean for these kinds of situations, and it's easily fixable. Baio makes the point that here's an easy reform to copyright law that would decriminalize a very common behavior:

The real question: Why is it illegal in the first place?

Cover songs on YouTube are, almost universally, non-commercial in nature. They’re created by fans, mostly amateur musicians, with no negative impact on the market value of the original work. (If anything, it increases demand by acting as a free promotional vehicle for the track.)

The best solution is the hardest one: To reform copyright law to legalize the distribution of free, non-commercial cover songs.

Copyright law was intended to foster creativity by making it safe for creators to exclusively capitalize on their work for a limited period of time. Cover songs on YouTube don’t threaten that ability, and may actually prevent new works by chilling talent that could go on to do great things.

Seems like a simple enough thing to fix... which is why it's unlikely to actually happen.

You may recall the uproar a few weeks ago when the FBI seized a server used by activists to keep their information anonymized. The server was used by Riseup Networks and May First/People Link. The FBI claimed it needed it as a part of an investigation into bomb threats at the University of Pittsburgh, but it was quite disruptive for lots of legitimate users. And, of course, seizing the server did nothing to stop the bomb threats, which kept coming.

However, the story is now getting more bizarre, as the FBI appears to have simply put the server back in the cabinet without telling anyone -- but the whole thing was caught on video (found via Slashdot).
The feds seem to be getting into a bit of a habit of seizing things through cluelessness and then sheepishly returning them later. Still, the folks who own the server are quite reasonably uncomfortable about using it again:

May First/People Link has removed the server from the facility and is in the process of analyzing it. The server will not be put back into production.

As I'm sure you remember, the House passed CISPA with a few amendments -- some of which may have limited the possible abuses, while at the same time expanding the scope. Right before the bill went up for a vote, the White House stated that it would veto CISPA, if it got to the President's desk. It appears that, even with the amendments, the White House is still not willing to support the bill. White House "Cybersecurity Coordinator" Howard Schmidt appeared on CSPAN reiterating the White House's objections to CISPA, specifically calling out the problematic privacy issues.

That said, the White House is still supporting the Lieberman cybersecurity bill in the Senate, which isn't quite as bad as some of the other proposals, but still has plenty of problems. And, most importantly, still doesn't include any clear explanation for why it's needed. It's bizarre and troubling that no one in the federal government seems willing to provide a real justification for any of these bills others than "oooooh, it's scary out there on the internet!!"

We've talked a lot about the difference between gatekeepers and enablers, and how the latter are becoming more important than the former. Both are types of middlemen, of course. And there have been some reasonable discussions about how enablers can become gatekeepers at times. Indeed, this is something to be aware of, and we should worry about it and speak out when we see evidence of it happening. For example, ebook platforms have become great enablers, allowing lots of new written works to be published, promoted, distributed and sold. In 2002, 250,000 books were published. In 2010 the number was over 3 million -- with much of that being thanks to the easy publishing of ebooks, and the platforms that made it possible to publish a book without a gatekeeper.

But... sometimes those enablers turn into gatekeepers. Witness the news, via Slashdot, that Barnes & Noble removed Linux Format magazine from the Nook store because the magazine dared to publish an article entitled Learn to Hack. It is true that they were using "hack" in the (increasingly less common) definition having to do with breaking into other computers and networks, but the framing of it was mostly around understanding these things to keep yourself secure. Still, do we really want platforms like Barnes & Noble acting as gatekeepers concerning what people can and cannot read?

We recently pointed out that book publishers are fooling themselves by thinking that they must charge super high prices on ebooks. That post seemed to set off some angry folks inside the publishing industry who did the standard thing: talking about all of the overhead that goes into publishing a book. We hear this all the time. But it's meaningless. It's cost-based accounting, rather than value-based accounting.

The consumer doesn't care how much it cost you to make the original.

Nor should they. They only care about the value to them of the single copy they get. And this makes sense for a variety of reasons, both economically and psychologically. This is the point that economists have been making for ages, trying to get people to understand the difference between fixed costs and marginal costs. Fixed costs don't impact pricing. Maginal costs (the cost to produce the copy) do. That's not to say that the fixed costs aren't important -- they are -- but they don't factor into the pricing decision, they factor into the investment decision. That is, you don't take on a project if you don't think you can create a business model that will give a total return on investment over the fixed and marginal costs. But the pricing on the individual item is entirely about the marginal costs. And this is actually a good thing. If you did pricing based on the average cost, including fixed costs, you actually lose the incentive to be more efficient and lower your fixed costs, since you get to just bake them into the price. But the public doesn't care about how much you spent. As far as they're concerned, you may have spent stupidly and inefficiently. They only care about the marginal benefit they get from the copy.

In many ways this is reminiscent of the stupid debate we've had for years, where a lobbyist from NBC Universal kept challenging me to explain how he could keep making $200 million movies. But that's stupid. If you start from the assumption of a high cost, you're not building value, you're just spending budget. All we should care about is how people can make profitable offerings, and there are lots of ways to do that at a variety of price points -- but you should never set the pricing decisions on the fixed costs, because the buyer simply doesn't care.

Even if the industry is having trouble figuring that out, it does appear that more and more individuals are. Mathew Ingram has a post over at GigaOm making this point for books based on an equally interesting discussion by author Chuck Wendig:

An e-book is a digital good. Ephemeral and intangible. Sometimes we don’t even have access to the e-book itself in the form of a file — in the case of Amazon, we’re just “renting” the e-book the same way you rent Taco Bell food. You bought it. It’s inside your device. But if Amazon decides you don’t need it anymore, one snap of the wizard’s fingers and the e-books are poof, gone, siphoned from your reader like gas from a gas-tank. E-books have no supply — if I buy one, it doesn’t reduce how many remain, because theoretically infinite copies remain. No cost to reprint. No cost to remake. It just… sits out there, attempting to be the very embodiment of the Long Tail.

This is what the audience sees and believes.

It matters little what the e-book actually costs.

It only matters what the audience thinks they should cost.

Your costs don't determine the price. The market determines the price, and ignoring what the market thinks is a big mistake.

And, of course, this applies to all sorts of content. As I was writing this, I came across a similar discussion, but on the movie side of things. It's a post by Stacey Parks at the Independent Filmblog, which notes that nobody cares what you spent on your film. She's not talking about end consumers per se (though it applies to them as well), but distributors who buy films. And this actually drives home the overall point: in a functioning market, no buyer -- whether a middleman/wholesaler or an end user -- cares one bit what the total cost of production was. They only care about the marginal benefit to them in relation to the supply. This is just classic economics -- and those who seek to price it outside of what economics suggests is reasonable will discover that people just don't pay. It's not because they don't understand how much money you put into fixed costs. It's because you spending so much on fixed costs is your problem, not the buyer's.

Last month, I wrote about the damage to the public domain caused by the difficulty of accessing older copyright registration records. Since much of the information is not digitized and locked up in books and card catalogs in Washington, countless works that have lapsed into the public domain are treated as if they were still under copyright, since confirming their status is a prohibitive task and the penalty for making a mistake can be severe. This problem, combined with the simple fact that copyright lasts way too long, leads to a huge cultural gap where works are still protected (or presumed to be) but the rightsholder (if one is even apparent) is not making them available.

At the time, the Copyright Office had informally asked for feedback on the idea of creating a "digital card catalog" of raw scans as a stopgap solution, since full digitization is still a major challenge. Now this effort is official: the Office posted two Requests For Information on the Federal Business Opportunities site, seeking outside vendors with the relevant technology and expertise.

The first pertains specifically to the virtual card catalog idea, which would involve raw images of the cards arranged in a virtual hierarchy to match the physical drawers, and currently only seeks to "determine the availability of such software in the marketplace either as an existing product or as a potential development effort". The second deals with the next step, seeking more information on possible crowdsourcing solutions to help complete the records with metadata and searchable text.

It's frankly unfortunate that this is necessary, and it wouldn't be if ever-increasing copyright terms and retroactive extensions hadn't locked up half of creative history. Today, culture has far outpaced copyright law, and the disconnect between the way things work and the way they are "supposed" to work is staggering. Nonetheless, fully digitized records would have a huge impact on society: people would discover that the public domain is a hell of a lot bigger than anyone thought, and all sorts of forgotten works would be discovered—and renewed both culturally and economically by new creative and business energy. Whether or not the Copyright Office can actually accomplish this task is uncertain, but it's nice to see evidence of an ongoing effort.