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<title>Techdirt. Stories about &quot;sony&quot;</title>
<description>Easily digestible tech news...</description>
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<image><title>Techdirt. Stories about &quot;sony&quot;</title><url>http://www.techdirt.com/images/td-88x31.gif</url><link>http://www.techdirt.com/</link></image>
<item>
<pubDate>Wed, 12 Jun 2013 05:02:25 PDT</pubDate>
<title>Sony At E3: Look How Unlike Microsoft We Are!</title>
<dc:creator>Timothy Geigner</dc:creator>
<link>http://www.techdirt.com/articles/20130611/03400323403/sony-e3-look-how-unlike-microsoft-we-are.shtml</link>
<guid>http://www.techdirt.com/articles/20130611/03400323403/sony-e3-look-how-unlike-microsoft-we-are.shtml</guid>
<description><![CDATA[ <p>
It has been no secret that Microsoft's handling of the <a href="http://www.techdirt.com/articles/20130524/06445123204/xbox-one-release-tons-questions-very-few-answers.shtml">launch</a> of their Xbox One console has been controversial at best and a complete debacle at worst. As rumors of mandatory internet connections and fees for playing used games made the unsteady transition to reality, dedicated fans of other consoles mobilized to make sure their voices were heard. Most substantial was the fanbase of the Sony Playstation, who made their <a href="http://www.techdirt.com/articles/20130529/09221323238/reports-xbox-ones-handling-used-games-mobilizes-playstation-fans.shtml">wishes</a> for a more traditional and open PS4 known. I had mentioned in that post that Sony in particular had a real opportunity on their hands, assuming they were willing to both stick up for their customers and take the issues against Microsoft head-on.
<br /><br />
Well, to some extent, that's exactly what they did at this year's E3 convention, going out of their way to <a href="http://www.usatoday.com/story/tech/gaming/2013/06/10/sony-playstation-used-games/2410589/">point out all the ways in which they are not doing things</a> the Xbox-way.
<blockquote>
<i>During their Electronic Entertainment Expo press event, Sony Computer Entertainment of America president and CEO Jack Tretton says its PS4 will not restrict used games, nor will it require an online connection.</i>
<br /><br />
<i>Tretton specifically noted the PS4 "won't stop working if you haven't authenticated within 24 hours," a jab at the Xbox One and its requirement to perform online checks of consoles.</i></blockquote>
Now, to be sure, this isn't a completely unambiguous stance in favor of its customers, but credit Sony for doing what many of our commenters thought they wouldn't: seeing an opportunity in sticking up for customers and running with it. Having said that, there are still many questions surrounding whether or not the Playstation platform will simply be agnostic with used games, leaving that decision instead up to the game developers and publishers. It might seem a better thing for Sony to simply say they won't allow the kind of used game pocket-picking that MIcrosoft is codifying, but that might be a bit too much to ask. After all, Sony needs developers for their platform, too. Besides, as long as it isn't Sony acting in an anti-consumer way, developers that might wish to be restrictive on used games can be judged on their own individual merits. In other words, we'll actually get to see what the market impact of anti-consumer behavior on used games is.
<br /><br />
And if some of the reaction I've seen thus far is any indication, such as Sony Entertainment <a href="http://kotaku.com/by-the-time-you-read-this-wikipedia-will-probably-chan-512509206">now being listed on Wikipedia's list</a> of "burn centers in the United States" after they torched Microsoft at E3, developers might begin rethinking their plans.
<br /><br />
</p><br /><br /><a href="http://www.techdirt.com/articles/20130611/03400323403/sony-e3-look-how-unlike-microsoft-we-are.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130611/03400323403/sony-e3-look-how-unlike-microsoft-we-are.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130611/03400323403/sony-e3-look-how-unlike-microsoft-we-are.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>no-connection-required</slash:department>
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<pubDate>Wed, 29 May 2013 12:33:00 PDT</pubDate>
<title>Reports Of Xbox One's Handling Of Used Games Mobilizes Playstation Fans</title>
<dc:creator>Timothy Geigner</dc:creator>
<link>http://www.techdirt.com/articles/20130529/09221323238/reports-xbox-ones-handling-used-games-mobilizes-playstation-fans.shtml</link>
<guid>http://www.techdirt.com/articles/20130529/09221323238/reports-xbox-ones-handling-used-games-mobilizes-playstation-fans.shtml</guid>
<description><![CDATA[ <p>
We recently discussed the somewhat mishandled release <a href="http://www.techdirt.com/articles/20130524/06445123204/xbox-one-release-tons-questions-very-few-answers.shtml">announcement</a> for Microsoft's new gaming machine, the Xbox One. While a big part of the problem was a lack of firm answers to gamers' questions, it's clear that something is going to change in how the new Xbox handles used games. The rumors vary, but we know that the used games market that has existed for the past several decades is going to be altered to come under stricter control of Microsoft directly. Reception of this news has been cold, but it isn't just Xbox fans reacting.
<br /><br />
No, the ultimate effect of Microsoft's actions may end up being a highly mobilized Playstation fandom and a massive opportunity for Sony if they want to grab it. You see, <i>famousmortimer</i> of the popular gaming message board, NeoGAF, <a href="http://www.neogaf.com/forum/showthread.php?t=568033">decided to bring the wants of the customer to Sony's attention</a> through a simple Twitter hashtag, <i>#PS4NoDRM</i>.
<blockquote>
<i>I can say, for sure, that the past week's PR nightmare for MS has not been lost on Sony and they, in fact, do have a used game 'solution' working and have been going back and forth for months on whether to use it. This past week is pushing them strongly into "Yeah, let's not use that."</i>
</blockquote>
He then suggests that readers politely tweet several high-ranking Sony executives, indicating that they want a free and open used game market, and including the aforementioned hashtag. While he later went on to say that he didn't expect any of this to become much of a movement, that's exactly what it became. Not only did something like 14,000 tweets with the hashtag go out across Twitter, it has become big enough that <a href="http://kotaku.com/ps4nodrm-the-next-gen-twitter-campaign-thats-got-son-510143287">even the mainstream press is reporting</a> on it.
<blockquote>
<i>The campaign has reached dozens of news sites including <a href="http://www.nbcnews.com/technology/playstation-fans-flock-twitter-protest-drm-6C10094985">NBC News</a>. Even now, people are tweeting messages with the hashtag in hopes of getting Sony's attention.</i>
<br /><br />
<i>"It's much larger than I ever imagined," Dodd told me this afternoon. "Honestly thought the post would go about 2 pages." As of right now, the NeoGAF thread has 105 pages and 467,690 pageviews.</i>
</blockquote>
Several Sony executives have replied with encouraging tweets, suggesting that, at the very least, they're seriously listening. And listen they should, because that isn't just the sound of gamers typing on their keyboards ringing over the Twitterverse. It's opportunity. <i>Real </i>opportunity.
<br /><br />
Imagine what happens if Sony issues an official response to this campaign. Imagine further that this response acknowledges the fans, thanks them for all of their interest, and firmly states that, on its system, the used game market will go on unhindered. Let's say that a company that has an unfortunate reputation on consumer rights flips the script completely in the gaming arena and positions itself as the consumer's choice compared to Microsoft. What would the market's reaction be? It would be huge.
<br /><br />
Finally, if you believe that used games don't harm game sales, but rather spur them along by creating added value, then this should represent the easiest no-lose choice in the gaming business's history. Now let's see if Sony hears opportunity knocking through those corporate walls.
</p><br /><br /><a href="http://www.techdirt.com/articles/20130529/09221323238/reports-xbox-ones-handling-used-games-mobilizes-playstation-fans.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130529/09221323238/reports-xbox-ones-handling-used-games-mobilizes-playstation-fans.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130529/09221323238/reports-xbox-ones-handling-used-games-mobilizes-playstation-fans.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>opportunity-is-knocking</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20130529/09221323238</wfw:commentRss>
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<pubDate>Thu, 28 Mar 2013 09:59:01 PDT</pubDate>
<title>Surprise: Sony Decides Not To Sue Over Copycat Game; Says Legal Action Wouldn't Be Beneficial</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20130324/22501222441/game-looked-like-rip-off-sony-isnt-suing-over-it.shtml</link>
<guid>http://www.techdirt.com/articles/20130324/22501222441/game-looked-like-rip-off-sony-isnt-suing-over-it.shtml</guid>
<description><![CDATA[ All too often, when it comes to copying one another, companies seem to feel that they <i>have</i> to sue.  In fact, there are times when we see copyright and patent holders bizarrely claim that not suing is <a href="http://www.techdirt.com/articles/20130326/18291922473/intellectual-ventures-ramping-up-lawsuits.shtml">not an option</a>.  So here's a bit of a surprise.  A. Yeh points us to a story of a Korean company, Netmarble, who produced a game called <i>Everybody Cha Cha Cha</i>, which some claimed was a pretty close copy of a Sony min-game called <i>Everybody's Stress Buster</i>.  To be clear, the two games do seem pretty similar... but also seem to use pretty standard driving game mechanics found in tons of games throughout the history of video games.  You can see the two in <a href="http://www.youtube.com/watch?v=o1UI5tuPI20&#038;feature=player_embedded" target="_blank">this video</a>.
<center>
<iframe width="420" height="315" src="http://www.youtube.com/embed/o1UI5tuPI20" frameborder="0" allowfullscreen></iframe>
</center>
Stress Buster is on top, Cha Cha Cha on the bottom.  Sony did initially cry foul at this copying, leading NetMarble to (amusingly) claim that Sony was trying to piggyback on <i>its</i> success.  Of course, after that NetMarble then started adding a bunch of other features to its game to further distinguish it from the Sony game.  Oh look, competition spurring innovation.
<br /><br />
Either way, in the end, Sony decided <b>not</b> to pursue any sort of legal response.  While it still uses some slightly menacing language about how this doesn't mean they've settled, Sony admits that any "prolonged controversy" over this wouldn't be beneficial for the mobile game development community.
<blockquote><i>
According to <a href="http://www.etnews.com/news/contents/game/2737993_1489.html" target="_blank"><em>ET News</em></a> and <a href="http://www.thisisgame.com/board/view.php?category=102&#038;id=1480591" target="_blank"><em>This Is Game</em></a>, Sony told the Korean media that it did not want to "hamper" the mobile gaming industry in Korea.
<br /><br />
A Sony spokesperson is quoted by <em>This Is Game</em> as saying, "We were concerned that any prolonged controversy such as this is not beneficial for both the local and the international mobile game development community. Internally, we decided not to pursue any legal action as long as no additional problems arise. Some may think it's because we've settled with Netmarble already, but we are simply choosing not to pursue legal action in a broader view/sense. This does not mean we have settled with Netmarble."
</i></blockquote>
That's a fairly enlightened view, actually.  It's one that we've suggested in the past, though.  Even as it may be frustrating and annoying to have someone copy you, going legal in response often is <i>not</i> the best strategic response.  We've urged companies to recognize that fact, and kudos to Sony for holding back on releasing the legal hounds upon realizing the cost-benefit analysis meant it wouldn't be helpful (and would possibly be harmful to the wider community).<br /><br /><a href="http://www.techdirt.com/articles/20130324/22501222441/game-looked-like-rip-off-sony-isnt-suing-over-it.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130324/22501222441/game-looked-like-rip-off-sony-isnt-suing-over-it.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130324/22501222441/game-looked-like-rip-off-sony-isnt-suing-over-it.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>you-don't-have-to-sue</slash:department>
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<pubDate>Fri, 4 Jan 2013 04:28:08 PST</pubDate>
<title>Sony Patent Application Takes On Used Game Sales, Piracy With Embedded RFID Chips In Game Discs</title>
<dc:creator>Tim Cushing</dc:creator>
<link>http://www.techdirt.com/articles/20130103/11044521571/sony-patent-application-takes-used-game-sales-piracy-with-embedded-rfid-chips-game-discs.shtml</link>
<guid>http://www.techdirt.com/articles/20130103/11044521571/sony-patent-application-takes-used-game-sales-piracy-with-embedded-rfid-chips-game-discs.shtml</guid>
<description><![CDATA[ As has been covered here before, many game developers and publishers are actively <a href="http://www.techdirt.com/articles/20100824/11142810761.shtml" target="_blank">searching for ways</a> to scuttle the used game market. Efforts to date have usually included some sort of online requirement (which doubles as DRM) or withholding additional content from secondhand purchasers through the use of <a href="http://www.techdirt.com/articles/20100511/1032029379.shtml" target="_blank">one-time download codes</a>.<br />
<br />
The argument that used game sales are adversely affecting the profitability of games would seem to be debunked with each year of record-breaking sales, but somehow major publishers are <a href="http://www.techdirt.com/articles/20090403/0212534367.shtml" target="_blank">still able to convince themselves</a> that no one should be allowed to purchase games for anything less than the full retail price. Also ignored is the fact that money made from trade-ins is often put toward the purchase of new games -- and that the secondary market <a href="http://www.techdirt.com/articles/20050728/0216218.shtml" target="_blank">gives new purchases additional value</a>, as they can be traded in down the road.<br />
<br />
Ars Technica reports that <a href="http://arstechnica.com/gaming/2013/01/examining-sonys-internet-free-method-for-blocking-used-game-sales/" target="_blank">Sony seems to have found a way to prevent secondhand sales without having to rely on one-time codes or any sort of online component that could potentially be circumvented</a>. Sony&#39;s patent application details the deployment of embedded RFID chips as a weapon against secondhand sales.
<blockquote>
<i>A newly published patent application filed by Sony outlines a content protection system that would use small RFID chips embedded on game discs to prevent used games from being played on its systems, all without requiring an online connection. Filed in September and still awaiting approval from the US Patent Office, <a href="http://www.freepatentsonline.com/y2013/0007892.html" target="_blank">the patent application</a> for an "electronic content processing system, electronic content processing method, package of electronic content, and use permission apparatus" describes a system "that reliably restricts the use of electronic content dealt in the second-hand markets."</i><br />
<br />
<i>The used-game blocking method described in the patent involves a "radiofrequency tag" and a type of programmable ROM chip that are paired with each game disc and can communicate wirelessly with the game system. The tag and chip can be used to store "unique information" about each console the game has been played on. Thus, when the game is used on a second system, the unique information stored on the disc can be compared to the information stored inside the new hardware, and in turn checked against "use permission" data stored on the EEPROM chip itself. As described in the patent, this "unique information" could be a system identifier or some sort of unique user ID that is somewhat portable between systems.</i></blockquote>
As Ars Technica points out, this could double as an anti-piracy device, ruling out off-the-shelf media for copying. In addition, the patent mentions using the RFID tag to "decrypt content" on the disc, which could be used to lock up certain content until its paid for. In theory, this would allow secondhand sales, but allow the publisher to charge purchasers a fee to unlock the full game.<br />
<br />
Two concerns pop up immediately. There's a possibility that the still-theoretical RFID system would make games unplayable if lent to others or taken to a friend's house and played on their system. This seems a bit extreme, but publishers, who are actively seeking to destroy the secondhand market, very likely wouldn't mind if these two options were taken off the table. This leads to the second concern: creating discs that are "locked" to a certain system would seem to violate the right of first sale. This means reselling or lending the game would no longer be an option, both of which are currently permitted by law. (Although <a href="http://www.techdirt.com/articles/20121029/02292920865/supreme-court-will-decide-if-you-actually-own-what-youve-bought.shtml" target="_blank">under debate</a> at the moment...) As Ars Technica points out, though, there are ways publishers and developers can skirt this issue:
<blockquote>
<i>While this kind of resale-blocking technology would seemingly run afoul of the first sale doctrine codified into US law, legal experts seem unsure about whether that doctrine would be enough to overcome the end-user license agreements common to video game sales. After all, the practice of restricting game resale is already taking root through the wide adoption of digital distribution, which prevents players from reselling downloadable games in almost all cases.</i></blockquote>
If this patent is granted and results in any of the above scenarios, we'll have finally reached the point where physical items are just as ethereal (in terms of rights granted to the purchaser) as the "licenses" currently being sold under the name "ebook," "digital download" and "mp3." This would be great news for overreaching copyright holders, not so much for the rest of the public which is being asked to shell out larger amounts for AAA titles with each console generation.<br />
<br />
It seems unlikely that Sony would pursue this hardline against used sales, but it's not like it hasn't run up <a href="http://www.techdirt.com/articles/20110522/15562714383/open-letter-to-sony-ceo-howard-stringer.shtml" target="_blank">a string of bad decisions</a> in the recent past. Not only that, but the additional "anti-piracy" features of the system, combined with curbing secondhand sales it receives nothing from, may be just too irresistible to turn down.
<br /><center><div id="DV-viewer-550851-sony-rfid-patent" class="DV-container"></div>
<script src="//s3.amazonaws.com/s3.documentcloud.org/viewer/loader.js"></script>
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<noscript>
  <a href="http://s3.documentcloud.org/documents/550851/sony-rfid-patent.pdf">Sony RFID Patent (PDF)</a>
  <br />
  <a href="http://s3.documentcloud.org/documents/550851/sony-rfid-patent.txt">Sony RFID Patent (Text)</a>
</noscript></center><br /><br /><a href="http://www.techdirt.com/articles/20130103/11044521571/sony-patent-application-takes-used-game-sales-piracy-with-embedded-rfid-chips-game-discs.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20130103/11044521571/sony-patent-application-takes-used-game-sales-piracy-with-embedded-rfid-chips-game-discs.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20130103/11044521571/sony-patent-application-takes-used-game-sales-piracy-with-embedded-rfid-chips-game-discs.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>Sony-obviously-feels-it's-not-hated-enough-already</slash:department>
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<pubDate>Thu, 13 Dec 2012 23:57:15 PST</pubDate>
<title>Sony's New German Ebookstore Features Thousands Of DRM-Free Books</title>
<dc:creator>Tim Cushing</dc:creator>
<link>http://www.techdirt.com/articles/20121212/14130321366/sonys-new-german-ebookstore-features-thousands-drm-free-books.shtml</link>
<guid>http://www.techdirt.com/articles/20121212/14130321366/sonys-new-german-ebookstore-features-thousands-drm-free-books.shtml</guid>
<description><![CDATA[ DRM is becoming less and less prevalent these days as more companies are realizing that the backlash from crippling the purchases of paying customers far outweighs any perceived prevention of infringement. It&#39;s not a wholesale conversion, but new DRM-free converts are appearing more frequently, including some surprising holdouts.<br />
<br />
The Digital Reader brings us the news that Sony, of all companies, <a href="http://www.the-digital-reader.com/2012/12/12/sony-launches-german-ebookstore-with-drm-free-ebooks/" target="_blank">is opening its own ebookstore in Germany, bringing with it a large selection of DRM-free books</a>.&nbsp;
<blockquote>
<i>The press release mentions that not all of the Epub ebooks sold by Sony come with the onerous Adobe DE DRM. Some of the ebooks, numbering in the &ldquo;thousands&rdquo;, use digital watermarks instead.</i><br />
<br />
<i>Apparently several German publishers have decided to go with this low-hassle security, including Bastei Luebbe Verlag, which publishes novels by Ken Follett, Andreas Eschbach, and Dan Brown (it is not clear that any of these authors&rsquo; novels are DRM free).</i></blockquote>
Rather than inject malignant coding that often fails to distinguish between paying customers and file sharers, these German publishers are opting for digital watermarking, which generally works as well as nastier forms of DRM but without the negative side effects. Booxtream is handling the watermarking for Sony, having <a href="http://www.the-digital-reader.com/2012/03/28/pottermore-drm-is-hacked-provided-by-booxstream/" target="_blank">proved its worth to publishers by providing this service</a> to one of the biggest ebook storefronts of all time, Pottermore.<br />
<br />
So, what convinced Sony to go DRM-free on thousands of titles? Perhaps it was observing Booxtream&#39;s success in deterring piracy without having to resort <a href="http://www.techdirt.com/articles/20110623/13155514828/six-years-later-jk-rowling-realizes-ebooks-are-good-idea-she-cuts-out-middleman.shtml" target="_blank">to draconian measures</a>.
<blockquote>
<i>According to Huub van der Pol, the founder of Booxtream&rsquo;s parent company iContact, the official release of the Harry Potter ebooks saw a decrease in piracy of the series.</i><br />
<br />
<i>Once the titles were available legally, and were easy to use, pirates saw little reason to post copies of the ebooks online.</i></blockquote>
As Hoffelder points out, you can&#39;t make that same claim about DRM-loaded ebooks. In nearly every case, the DRM is discarded easily by enterprising file sharers, or just as often by consumers, who strip their purchases of this handicap in order to move them to other devices -- or simply to make sure the publisher, bookstore or the DRM itself doesn&#39;t suddenly decide to render their purchases unavailable or useless. Some customers may download the pirated version even if they&#39;ve purchased it, just to have an easily portable version unhampered by DRM. Why punish your paying customers in order to temporarily annoy/entertain infringers?<br />
<br />
The other key to Booxtream and Pottermore&#39;s success is the simplest one to solve: make the book(s) available for sale at reasonable prices and with as few limitations as possible. Do this, and your "piracy problem" will <a href="http://www.techdirt.com/articles/20120507/04142118804/ebook-sales-harry-potter-lead-to-increased-physical-sales-as-well.shtml" target="_blank">very possibly solve itself</a>.&nbsp;<br /><br /><a href="http://www.techdirt.com/articles/20121212/14130321366/sonys-new-german-ebookstore-features-thousands-drm-free-books.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121212/14130321366/sonys-new-german-ebookstore-features-thousands-drm-free-books.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121212/14130321366/sonys-new-german-ebookstore-features-thousands-drm-free-books.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>in-other-news,-Sony-sells-e-readers</slash:department>
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<pubDate>Thu, 13 Dec 2012 16:35:33 PST</pubDate>
<title>Live By The Patent, Die By The Patent: Apple Loses Patent Lawsuit Over Sony &#038;  Nokia Patents</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121213/12173921379/live-patent-die-patent-apple-loses-patent-lawsuit-over-sony-nokia-patents.shtml</link>
<guid>http://www.techdirt.com/articles/20121213/12173921379/live-patent-die-patent-apple-loses-patent-lawsuit-over-sony-nokia-patents.shtml</guid>
<description><![CDATA[ We've argued before that it often seems that operating companies that decide to go down the path of suing others for patent infringement are really just opening themselves up to being hit with similar patent lawsuits themselves.  It's a complete waste of time and money (all of which could be going towards actual innovation).  With Apple launching patent nuclear wars all over the place, now it's been getting hit back with suits from others.  The latest is that Apple has <a href="http://www.reuters.com/article/2012/12/13/us-apple-patents-verdict-idUSBRE8BC15020121213?feedType=RSS&#038;feedName=technologyNews&#038;utm_source=dlvr.it&#038;utm_medium=twitter&#038;dlvrit=56505" target="_blank">lost a patent dispute with MobileMedia</a>, a company that Sony and Nokia dumped some patents into for the sake of <strike>shaking down</strike> getting "licensing" revenue from other companies.  The whole thing is silly, and Apple, Sony, Nokia, Samsung, HTC, Motorola, Microsoft and everyone else would be better served by not having to fight off all these silly lawsuits, but by being focused on making better products and competing in the marketplace.<br /><br /><a href="http://www.techdirt.com/articles/20121213/12173921379/live-patent-die-patent-apple-loses-patent-lawsuit-over-sony-nokia-patents.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121213/12173921379/live-patent-die-patent-apple-loses-patent-lawsuit-over-sony-nokia-patents.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121213/12173921379/live-patent-die-patent-apple-loses-patent-lawsuit-over-sony-nokia-patents.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>but-of-course</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121213/12173921379</wfw:commentRss>
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<pubDate>Tue, 13 Nov 2012 07:30:16 PST</pubDate>
<title>You Can Take The Company Out Of The DRM Business, But You Can't Take The DRM Business Out Of The Company</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20121112/02205621012/you-can-take-company-out-drm-business-you-cant-take-drm-business-out-company.shtml</link>
<guid>http://www.techdirt.com/articles/20121112/02205621012/you-can-take-company-out-drm-business-you-cant-take-drm-business-out-company.shtml</guid>
<description><![CDATA[ Rovi is the company that used to be called Macrovision.  It got its start as the annoying DRM for VCRs and expanded into all kinds of DRM over the years.  In 2008, it bought GemStar-TV Guide and was then in the TV Guide producing business as well.  While it eventually sold off the DRM/software parts of its business, apparently it just can't help doing what DRM companies know how to do best: breaking other technology.  As reported <a href="http://entertainment.slashdot.org/story/12/11/11/0233244/sony-dvr-useless-after-rovi-stops-tv-guide-onscreen?utm_source=slashdot&#038;utm_medium=twitter" target="_blank">on Slashdot</a>, Rovi has announced that it's shutting off its TV Guide OnScreen service between now and April 13 of the next year.  Apparently a number of devices, including two key Sony DVRs, <a href="https://forum.sel.sony.com/viewtopic.php?f=34&#038;t=15646&#038;p=42468#p42468" target="_blank">will no longer work</a> once the service is shut off.  Not surprisingly, this is upsetting many owners of those devices:
<blockquote><i>
When other companies decide to stop supporting something, they don't make older systems useless.  Worse, Sony never came out with another DVR in the U.S. market.  Why do we have to rent them?  How do we get Sony or Rovi to provide at least a software patch to set the clock so the DVR can at least retain 1980s VCR functionality? Sony admits there is no fix.  <a href="http://www.avsforum.com/t/537711/sony-dhg-hdd250-500-official-thread">A thread on AVS forums</a> has a bunch of information on TV Guide OnScreen. The TV stations who broadcast the data have been ordered by Rovi to disconnect the data inserters and ship them back.
</i></blockquote>
Quite a legacy MacROVIsion has, huh?<br /><br /><a href="http://www.techdirt.com/articles/20121112/02205621012/you-can-take-company-out-drm-business-you-cant-take-drm-business-out-company.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121112/02205621012/you-can-take-company-out-drm-business-you-cant-take-drm-business-out-company.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121112/02205621012/you-can-take-company-out-drm-business-you-cant-take-drm-business-out-company.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>but-of-course</slash:department>
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<pubDate>Thu, 25 Oct 2012 20:27:10 PDT</pubDate>
<title>The 'Final' Sony PS3 Hack</title>
<dc:creator>Timothy Geigner</dc:creator>
<link>http://www.techdirt.com/articles/20121025/12413220829/final-sony-ps3-hack.shtml</link>
<guid>http://www.techdirt.com/articles/20121025/12413220829/final-sony-ps3-hack.shtml</guid>
<description><![CDATA[ Sony's awesome <a href="http://www.techdirt.com/blog/?tag=george+hotz">freakout</a> over folks "hacking" their PS3 product to return the functionality they originally advertised, but then retroactively <a href="http://www.techdirt.com/articles/20100331/0128358800.shtml">took away</a>, has been a long and often times <a href="http://www.techdirt.com/articles/20110209/11331813028/fake-sony-ps3-vp-tricked-into-tweeting-ps3-security-key.shtml">hilarious</a> saga. That said, all that freaking out occurred when the PS3 was still in its prime. Now that the console, while still the latest generation of Sony gaming console on the market, is clearly in its twilight years, it will be interesting to see how they react to what <a href="http://nakedsecurity.sophos.com/2012/10/25/sony-ps3-hacked-for-good-master-keys-revealed/?utm_source=feedburner&#038;utm_medium=feed&#038;utm_campaign=Feed%3A+nakedsecurity+(Naked+Security+-+Sophos)">Sophos is reporting -- the Playstation 3</a> being "hacked for good".
<blockquote>
<i>The PS3 has been hacked before, but Sony was able to inhibit the hack with an update to its own firmware. This is much like the history of jailbreaking on Apple's iOS, where hackers typically uncover a security vulnerability and exploit it, whereupon Apple patches the hole and suppresses the jailbreak.</i></blockquote>
<blockquote>
<i>But the latest PS3 break is being dubbed unpatchable and the final hack. That's because this hack isn't giving you an exploit to use against a programming hole. It's giving you Sony's so-called LV0 (level zero) cryptographic keys.</i></blockquote>
If true, the war is over and Sony lost. Hacker collective, the Three Musketeers, reportedly figured this all out some time ago, but now the LV0 keys have been leaked and it's open season on jailbreaking your PS3 (assuming you're technical enough to implement it). And, while it would be very easy to sit back and comment gleefully on the wonderful spirit of curiosity that propels this kind of work, and to likewise point out the futility of stopping people from tinkering with the products they legally bought, I find a different point more compelling.<br />
<br />
Quite simply, this war that Sony lost <i>did not need to be fought</i>. They advertised a feature and it was only the subsequent and unilateral removal of that feature, which many customers very much wanted, that created all of this controversy. Without that removal, how much litigation money does Sony save? Without being anti-consumer, how much ill-will do they avoid? And all of that to fight a battle that, not only did they lose, but that they <i>had</i> to know they were overwhelmingly likely to lose over the long haul. Sophos touches on this point in hoping for a different approach in the future.
<blockquote>
<i>Let's hope, when the PS4 comes out, that Sony will give up on trying to lock out jailbreakers permanently, and instead provide a way for those who want to run alternative software to do so in official safety.</i></blockquote>
<blockquote>
<i>When King Cnut famously ordered the tide back and failed, he wasn't an arrogant absolute ruler trying to show off. He knew he would fail, and thereby demonstrated that to hold back the tide was impossible - and, in any case, unnecessary - even for a king.</i></blockquote>
Once I got done snickering at the name King Cnut, I found the analogy perfectly fitting. Hopefully Sony will avoid this war entirely the next go around, though with their track record, I won't be holding my breath.<br /><br /><a href="http://www.techdirt.com/articles/20121025/12413220829/final-sony-ps3-hack.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121025/12413220829/final-sony-ps3-hack.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121025/12413220829/final-sony-ps3-hack.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>our-hardware-our-rules</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20121025/12413220829</wfw:commentRss>
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<pubDate>Tue, 9 Oct 2012 13:40:00 PDT</pubDate>
<title>Sony Sues Actor For Trademark Infringement For Looking Too Much Like Himself In Another Commercial</title>
<dc:creator>Zachary Knight</dc:creator>
<link>http://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml</link>
<guid>http://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml</guid>
<description><![CDATA[ Just when you thought trademark law couldn't get any stranger, we have a new story that takes it to a whole new level. Most often, trademark law is applied to logos and names of goods and services, yet there is still some untested ground. This is where Sony comes in. Several years ago, in an effort to rebrand its floundering Playstation 3 brand, Sony created a fictional Vice President of the Playstation brand named Kevin Butler. This character and the ads he starred in became a gaming sensation and brought the Playstation 3 back into the limelight. Here is a sample of these advertisements.<br />
<center>
<iframe allowfullscreen="" frameborder="0" height="315" src="http://www.youtube.com/embed/OQdiEN7wa5E" width="560"></iframe></center>
Such success never lasts, and earlier this year, the contract Sony had with Kevin Butler actor, Jerry Lambert, expired and he has moved on to other contracts. One of these new advertisement contracts is with Bridgestone Tires. Unfortunately, Lambert has starred in one ad that now has Sony up in arms. This ad features Jerry Lambert starring as an unnamed Bridgestone engineer along side two other actors portrayed playing a Nintendo Wii. This ad has resulted in Sony going over the edge, so to speak. The <a href="http://kotaku.com/5949709/kevin-butler-actor-being-sued-for-creating-confusion-and-causing-damage-to-sony" target="_blank">entertainment and electronic giant is now suing Bridgestone and Wildcat Creek</a>, the corporation set up to manage Lambert's advertising career, for a variety of reasons, one of which is trademark infringement. You can view the <a href="http://www.gonintendo.com/?mode=viewstory&amp;id=184686" target="_blank">original Bridgestone commercial</a> at GoNintendo.
<blockquote>
<i>Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he's become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony's intellectual property, creates confusion in the market and causes damage to Sony.</i></blockquote>
This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.<br />
<br />
Thankfully, the Hollywood Reporter has <a href="http://www.hollywoodreporter.com/thr-esq/sony-sues-kevin-butler-playstation-jerry-lambert-377151" target="_blank">provided some further clarifications on the matter</a>. Here we learn a bit more about the exclusivity clause in Lambert's contract.
<blockquote>
<i>According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an "exclusivity clause" that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.</i></blockquote>
This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert's work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.<br />
<br />
Next is the claim of trademark infringement.
<blockquote>
<i>According to the lawsuit, "With the intent of unfairly capitalizing on the consumer goodwill generated by 'Kevin Butler,' Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial."</i></blockquote>
Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&amp;D department.<br />
<br />
These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.
<blockquote>
<i>"Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer," say the defendant. "Bridgestone denies that 'Kevin Butler' appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial."
<br /><br />
Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on "Kevin Butler," that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.</i></blockquote>
This is certainly not the first time something like this has happened. Many years ago, Wendy's had a very successful advertising campaign starring <a href="http://www.nytimes.com/1987/08/12/obituaries/clara-peller-the-actress-in-where-s-the-beef-tv-ad.html" target="_blank">Clara Peller</a> as a little old lady asking a generic fast food chain the famous question, "Where's the beef?" She lost her job with Wendy's after she starred in a Prego commercial uttering the phrase: "I found it. I really found it."<br />
<br />
What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert's career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?<br /><br /><a href="http://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20121008/16091220646/sony-sues-actor-trademark-infringement-looking-too-much-like-himself-another-commercial.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>if-looks-could-sue</slash:department>
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<pubDate>Wed, 26 Sep 2012 12:06:00 PDT</pubDate>
<title>Once Again: Just Because You Can Go Indie, Doesn't Mean You Need To</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120925/09240120508/once-again-just-because-you-can-go-indie-doesnt-mean-you-need-to.shtml</link>
<guid>http://www.techdirt.com/articles/20120925/09240120508/once-again-just-because-you-can-go-indie-doesnt-mean-you-need-to.shtml</guid>
<description><![CDATA[ For years and years we've argued that there still is <a href="http://www.techdirt.com/articles/20100811/18040910598.shtml">a role</a> for labels -- even <a href="http://www.techdirt.com/articles/20070201/004218/why-i-hope-riaa-succeeds.shtml">major labels</a>, if they are able to do more reasonable deals that embrace new opportunities, rather than shun them.  In fact, we've pointed to <a href="http://www.techdirt.com/articles/20091115/1833556944.shtml">many</a> different <a href="http://www.techdirt.com/articles/20100201/0223487985.shtml">examples</a> of <a href="http://www.techdirt.com/blog/casestudies/articles/20111227/03144517198/cee-lo-green-making-millions-even-if-his-albums-dont-sell.shtml">pop stars</a> on major labels doing creative things to connect with fans and give them a reason to buy.  Nothing in that says that major labels have no place any more.  What we have noted is that the overall market <i>has</i> changed and there are <i>a  lot more options</i>.  We've also noted that, historically, being used to their gatekeeper position, the major labels have treated many artists badly, signing them to questionable contracts, where very, very few of them end up making out well.
<br /><br />
The reality today is that you don't <i>need</i> to go that route <b>if</b> you don't want to.  That doesn't mean that there <i>is no need</i> for major labels at all -- even if some will confuse those two statements.  It just means if you want to be a successful musician, it's now a <i><b>choice</b></i>, rather than a requirement.  In short: major labels can and do play a role in helping <i>some</i> artists.  Historically, I think they've done a pretty bad job of it (mostly representing their own interests much more than the artists'), but that doesn't mean they don't do certain things well.  And for artists who need those certain things -- with radio play being a big one -- it may be reasonable to do a deal with a major, though, preferably with eyes wide open and (if possible) on their own terms, rather than the labels'.  The point of what I've said all along is that you can now succeed without the labels <i>if you want to</i>.  But for those who wish to use the labels, that should be an option to.  It's just that the rise of alternatives should mean that the labels become more willing to change their terms to be less artist-unfriendly.  It also likely means that we'll see more overall competition and that many artists will find alternatives appealing.  As such, the majors will be forced to adjust over time, even doing more reasonable deals.
<br /><br />
I bring up all of this again, because there's a lot of attention this week over the news that <a href="http://www.hypebot.com/hypebot/2012/09/trent-reznor-abandons-diy-and-returns-to-a-major-label.html" target="_blank">Trent Reznor has signed some sort of deal with Columbia Records</a> (owned by Sony Music) for his new(ish) band, How to Destroy Angels, leading a bunch of people to claim that he's "abandoning the DIY" market.  You can see everything there is to know in <a href="https://www.facebook.com/photo.php?fbid=3265399533874&#038;set=a.3265399493873.108202.1833868712&#038;type=1" target="_blank">the statement Reznor released last week</a>, which doesn't go into many details, but it certainly hints at the idea that this is not a standard-issue major label deal:
<blockquote><i>
Regarding our decision to sign with Columbia, we've really spent a long time thinking about things and it makes sense for a lot of reasons, including a chance to work with our old friend Mark Williams. There's a much more granular and rambling answer I could give (and likely will in an interview someplace) but <b>it really comes down to us experimenting and trying new things</b> to see what best serves our needs. Complete independent releasing has its great points but also comes with shortcomings. 
</i></blockquote>
I'll be interested to hear about the details eventually, because that certainly hints to there being much more to this than just "signing with a major."  And there's nothing I disagree with in what he says.  Being completely independent does have its great points, but it also makes certain things much more difficult.  I don't think anyone's denied that.  Of course there are also well known shortcomings when working with a major label.  So, it's a case of tradeoffs, and when you have someone in a position to negotiate a more favorable deal that can hopefully minimize the bad side of a label deal, and get the good part, that seems like a perfectly reasonable strategy <i>for those who want it</i>.  I think that Reznor likely would have been fine staying indie for this release, but depending on what he's doing, there may be perfectly reasonable arguments for doing this deal.
<br /><br />
I know that there are some people who think that everyone absolutely should go indie, but I've never said any such thing, nor do I believe it.  I think that going indie is now a much more viable option than it's been in the past, but going to a major label certainly does not preclude being innovative.   In many ways, I think of it similarly to the way I view startups as well.  It's less and less <i>necessary</i> to raise venture capital to do a startup -- but that doesn't mean that raising venture capital is necessarily a bad thing.  There are certain opportunities that really require it.  If you go in with your eyes wide open and can negotiate a favorable deal that lets you do what you need to do, more power to you.  In the long run, I think that there are much bigger opportunities in focusing on better connecting with your fans, and historically major labels have sometimes made that more difficult.  But if an artist sees good reason to work with a major, there's nothing inherently wrong with it.<br /><br /><a href="http://www.techdirt.com/articles/20120925/09240120508/once-again-just-because-you-can-go-indie-doesnt-mean-you-need-to.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120925/09240120508/once-again-just-because-you-can-go-indie-doesnt-mean-you-need-to.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120925/09240120508/once-again-just-because-you-can-go-indie-doesnt-mean-you-need-to.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>details-matter</slash:department>
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<pubDate>Mon, 13 Aug 2012 14:38:08 PDT</pubDate>
<title>Journey's Producer Sues Sony Over Unpaid Royalties For 21 Classic Songs</title>
<dc:creator>Zachary Knight</dc:creator>
<link>http://www.techdirt.com/articles/20120811/09162919995/journeys-producer-sues-sony-over-unpaid-royalties-21-classic-songs.shtml</link>
<guid>http://www.techdirt.com/articles/20120811/09162919995/journeys-producer-sues-sony-over-unpaid-royalties-21-classic-songs.shtml</guid>
<description><![CDATA[ For years, we have highlighted the great lengths that major labels go through to <a href="http://www.techdirt.com/articles/20120228/17592017904/if-major-labels-are-all-about-helping-artists-why-do-we-keep-seeing-artists-calling-out-their-labels-screwing-them.shtml">avoid paying</a> out royalties to artists. These actions culminated in a number of <a href="http://www.techdirt.com/articles/20120403/04252418347/weird-al-wonders-why-sony-music-never-gave-him-his-white-nerdy-cut-youtubes-equity-payout.shtml">artists</a> suing the label in an attempt to actually be paid the royalties owed to them on music sales. Sony hasn&#39;t been immune to these lawsuits either. In fact, it has just recently <a href="http://www.techdirt.com/articles/20120320/03492318168/how-sony-got-off-easy-with-its-settlement-class-action-lawsuit-underpaid-artists.shtml">settled a lawsuit</a> over iTunes sales. With all these attempts to avoid paying artists and then being forced to by the courts, is it really a surprise to learn that artists aren&#39;t the only ones getting screwed by these labels?<br />
<br />
While most of our stories revolve around the artists who get screwed, there are other people getting screwed in the process as well. One of these people is a music producer by the name of Roy Thomas Baker, a producer for the likes of Queen, Guns N&#39; Roses and Journey. Roy is now <a href="http://www.courthousenews.com/2012/08/09/49153.htm" target="_blank">suing Sony for unpaid royalties on 21 Journey songs</a>.
<blockquote>
<i>Sony was supposed to pay Baker royalties under a producer agreement, according to his 18-page federal lawsuit. But Baker says an audit of Sony&#39;s books revealed that the music company had been underreporting his royalties by more than $475,000 for the period audited.</i><br />
<br />
<i>He says Sony is refusing to release other documents that might uncover additional underreporting since the audit, and he estimates that his royalties may have been underreported by more than $500,000 before the audit using Sony&#39;s incorrect rates.</i></blockquote>
If these allegations against Sony are true, that is quite a lot of money that Sony was not paying out. It really isn&#39;t surprising at all though. We have seen such payment dodging from all throughout the legacy entertainment industries. Publishers, labels, movie studios and game publishers have all used such tricks to avoid paying out money to the people who actually make possible the income they have. All the while claiming that they support the people in the trenches.<br />
<br />
This lawsuit also highlights something we pointed out about that settlement Sony made earlier in the year, that Sony got off way too easily.
<blockquote>
<i>Baker says he opted out of a class action over Sony&#39;s alleged failure to correctly pay artists for downloaded music because the proposed settlement in March "is wholly insufficient to make plaintiff whole."</i></blockquote>
Because no matter how you worked out the split of the $5 million that Sony set aside for settlement, Roy would not have made anything close to the $475,000 he says he is owed. If other artists and producers feel the same way, Sony&#39;s legal team won&#39;t get any rest any time soon.
<br /><br />
All in all, these lawsuits are just another indication that the entertainment industry is changing. As more and more artists are able to bypass legacy gatekeepers and only use those enablers that truly add value to their work and make more money in the process, those artists stuck with legacy gatekeepers will wonder why they aren&#39;t making as much money as they feel they should. They will eventually leave those gatekeepers, but in the meantime, we will see a whole lot more actions like this as those artists and other enablers seek to get paid.<br /><br /><a href="http://www.techdirt.com/articles/20120811/09162919995/journeys-producer-sues-sony-over-unpaid-royalties-21-classic-songs.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120811/09162919995/journeys-producer-sues-sony-over-unpaid-royalties-21-classic-songs.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120811/09162919995/journeys-producer-sues-sony-over-unpaid-royalties-21-classic-songs.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>not-just-artists-getting-screwed</slash:department>
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<pubDate>Mon, 30 Jul 2012 09:00:00 PDT</pubDate>
<title>Dear Permission Culture: This Is Why No One Wants To Ask For Your OK</title>
<dc:creator>Tim Cushing</dc:creator>
<link>http://www.techdirt.com/articles/20120727/14251019859/dear-permission-culture-this-is-why-no-one-wants-to-ask-your-ok.shtml</link>
<guid>http://www.techdirt.com/articles/20120727/14251019859/dear-permission-culture-this-is-why-no-one-wants-to-ask-your-ok.shtml</guid>
<description><![CDATA[ "Just ask for permission."<br />
<br />
When it comes to dealing with the "<a href="http://www.techdirt.com/articles/20101227/09520712421/permission-culture-automated-diminishment-fair-use.shtml" target="_blank">permission culture</a>" that goes hand-in-hand with copyright these days, there&#39;s really no way to win. Certain rights holders claim they just want to be asked, but the actual process involved makes it seem like you&#39;d save a ton of time just assuming the answer is "no."<br />
<br />
Hugh Brown (a.k.a. Huge), an Australian recording artist and music business coach, <a href="http://www.huge.id.au/archives/000892.html" target="_blank">experienced this circuitous process firsthand</a> when he attempted to craft a parody of Adam Lambert&#39;s "If I Had You," entitled "If I Had Stew." Parodies are handled a bit differently in Australia, despite recent concessions in Australian fair dealing laws. <a href="http://www.apra-amcos.com.au/musicconsumers/makingrecordingsretailsale/makingaoneoffrecordingforretailsale.aspx" target="_blank">According to APRA</a> (Australasian Performing Rights Association), "lyric changes and parodies of works must [be] cleared directly with the copyright owner."<br />
<br />
"If I Had You" wasn&#39;t written by Lambert, but by Swedish songwriting team Maratone (Max Martin, Shellback and Kritian Lundin). But Huge couldn&#39;t approach Maratone directly as its website indicated that all the trio&#39;s songs were owned by the writer&#39;s respective labels. So he emailed Maratone and sent another form asking RCA/Jive Records for permission to make this recording.<br />
<br />
Huge heard nothing from Sony but did hear back from Maratone... <a href="http://www.huge.id.au/archives/000894.html" target="_blank">who told him to contact Kobalt Music Publishing and clear it with EMI as well</a>. Quick count of players involved: There&#39;s Maratone, the trio of songwriters behind Adam Lambert (who&#39;s likely off sleeping the undisturbed sleep of successful angels). Sony Music. RCA/Jive Records. Kobalt Music Publishing. And EMI. That&#39;s four labels and not a single person willing to discuss clearing Huge&#39;s parody.<br />
<br />
<a href="http://www.huge.id.au/archives/000896.html" target="_blank">A couple of weeks pass and Sony still hasn&#39;t responded</a>. Kobalt UK and EMI Australia have... sort of. The two labels directed Huge to yet another set of forms to fill out, despite him having given them all this information in his initial emails. The new forms aren&#39;t even for requesting permission to record a parody. All they do is assist the labels in compiling a price quote on the as-of-yet unrecorded song. And even if permission is granted, it likely still won&#39;t be enough. EMI only owns <i>one-third</i> of the track in question. Songwriter Savan Kovetchka, an EMI signee, contributed to Lambert&#39;s track, along with Max Martin and Shellback. This means Huge still needs permission from the other two songwriters and some sort of answer from Sony.<br />
<br />
It&#39;s now nearly a month since Huge first made contact and no progress has been made. Sony appears to be ignoring his requests. If anything, he&#39;s <i>further</i> <i>behind&nbsp;</i>than he was 27 days ago, when this whole thing kicked off. The "good" news is that Kobalt Media (representing Kotecha) said "yes," giving Huge one-third of a "permission" -- pending EMI&#39;s approval... and when it comes to getting written permission, one-third of a permission slip is worth approximately one-third of nothing. Huge did the right thing and asked (and asked... and asked) for permission, but despite the ever-growing list of interested parties, it looks as if "permission" might be something they <i>simply can&#39;t give</i>.&nbsp;And then... <a href="http://www.huge.id.au/archives/000897.html" target="_blank">things go completely off the rails</a>.&nbsp;<br />
<br />
Huge opens his last post on the debacle with, "Well, I&#39;m gobsmacked! No wonder the major labels are in so much trouble." Kobalt has given their blessing but EMI begins a long process of royalty-related correspondence so twisted it would make Joseph Heller proud.<br />
<br />
It starts out with a simple request for clarification by EMI.
<blockquote>
<i>What is your main goal for this use?</i><br />
<br />
<i>In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form.&nbsp;Is this principally for release as an mp3 single?</i></blockquote>
Huge responds:
<blockquote>
<i>To be honest, my main intention is to make the song for my own amusement.</i><br />
<br />
<i>If I play it to few people who agree with me that it&#39;s fun and good, then I&#39;ll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.</i><br />
<br />
<i>If it gets any traction on YouTube, then I&#39;ll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.</i></blockquote>
Gauging the market before putting the song up for sale is just common sense and YouTube&#39;s a pretty good place to get quick feedback. But as soon as YouTube is mentioned, EMI fires off a preliminary standard contract for sync rights, showing that its share of any money generated would be 33.34% and a guesstimated one-time fee of $1000.<br />
<br />
Huge forwards EMI his approval letter from Kobalt, which sends the label off on an entirely different tangent.
<blockquote>
<i>I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip.&nbsp;If you want to request approval to record and release this song you will need to get in contact with our copyright department.</i></blockquote>
So, Huge has been talking to the wrong people. He sends a letter back acknowledging the fact that he (obviously) can&#39;t sync the video until <i>after&nbsp;</i>he&#39;s recorded the song. He asks EMI for a contact name in the copyright department and receives this in response:
<blockquote>
<i>Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?</i></blockquote>
This a question that can&#39;t be answered. According to APRA/AMCOS rules, Huge needs to secure permission before he can worry about uploading it to YouTube. He tries again to get EMI to follow his line of thinking: get permission, record, upload.
<blockquote>
<i>That depends on whether I am allowed to use Sony&#39;s backing music or whether I have to completely re-record it myself ... still no word from Sony.</i><br />
<br />
<i>My instinct is to clear everything before I do anything. If I know what it&#39;s all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...</i></blockquote>
EMI takes this clear statement of ducks-in-a-row and it decides that the mechanical license question needs to be clarified before anything else can proceed, except that other stuff (getting permission) also needs to happen first and perhaps simultaneously.
<blockquote>
<i>So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?</i><br />
<br />
<i>If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.</i></blockquote>
At this stage, Huge is still waiting for permission from two more writers. EMI, however, only seems to be concerned with properly licensing a song that a.) doesn&#39;t exist and b.) quite possibly won&#39;t exist if permission is denied. It&#39;s also given Huge the "opportunity" to pay an upfront fee of $1000 for a track he might not even make. Huge (once again) points out his thought process: permission, record, YouTube/mp3. This repeated clarification makes no difference. EMI is still hung up on the mechanical license for syncing when it&#39;s not trying to just punt the whole thing over to the copyright department. EMI also insists that its previously mentioned $1000 "contract" is valid for only four weeks, after which it will need to issue a new contract. Huge points out (<i>again</i>) that he still is waiting on permission to record.<br />
<br />
EMI responds with this amazing statement, which baldly states that the label doesn&#39;t particularly care whether or not Huge <i>ever</i> gets a chance to record this parody if he&#39;s not willing to throw some cash its way:
<blockquote>
<i>We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.</i></blockquote>
Huge attempts to wrap his mind around this:
<blockquote>
<i>OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...</i><br />
<br />
<i>Alternatively, they won&#39;t ask for permission for me to record the parody until ... I&#39;ve recorded it and know what I&#39;m gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!</i></blockquote>
Precisely. If you want artists to play nice within the confines of your system, then you need to have a workable system, not just a set of loosely-related entities all acting independently and in their own best interests. Having multiple layers of corporate bureaucracy standing between two artists only hurts those who are actually trying to do the right thing. If Huge had gone the other way and decided that it was easier to ask forgiveness than permission, I can guarantee that any sort of takedown or cease-and-desist would come from a single source. When it comes to saying "no," you generally only need one person. But to get a "yes?" That&#39;s a "team" effort, apparently.<br /><br /><a href="http://www.techdirt.com/articles/20120727/14251019859/dear-permission-culture-this-is-why-no-one-wants-to-ask-your-ok.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120727/14251019859/dear-permission-culture-this-is-why-no-one-wants-to-ask-your-ok.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120727/14251019859/dear-permission-culture-this-is-why-no-one-wants-to-ask-your-ok.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>you-need-a-seriously-large-staff-to-get-nothing-done</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120727/14251019859</wfw:commentRss>
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<pubDate>Fri, 13 Jul 2012 11:11:54 PDT</pubDate>
<title>The Swedish Experiment: Spotify Helps Recording Industry Make Lots Of Money</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120713/02212119682/swedish-experiment-spotify-helps-recording-industry-make-lots-money.shtml</link>
<guid>http://www.techdirt.com/articles/20120713/02212119682/swedish-experiment-spotify-helps-recording-industry-make-lots-money.shtml</guid>
<description><![CDATA[ We've mentioned before that Spotify shows how providing consumers what they want can really have a much stronger impact on "piracy" than any enforcement initiative.  Both Spotify and The Pirate Bay started in Sweden, and both got tremendous penetration in the Swedish market.  But as various studies have shown, infringement of music dropped drastically in Sweden as the service became more popular.  A new report looks at the Swedish recorded music market, and found that it's <a href="http://musically.com/2012/07/13/spotify-sweden-ifpi-figures/" target="_blank">up an astounding 30.1% in the first half of this year</a>, due almost entirely to Spotify.  Digital music now accounts for 63.5% of all music sales, and streaming services (mainly Spotify) represent 89% of all digital music sales. MusicAlly notes that streaming may be cannibalizing downloads, but the massive growth in streaming is more than outweighing the decrease in downloads.
<br /><br />
This even has the labels (who, yes, have an equity position in Spotify -- more on that in a bit) talking about how they're making more money than they have in a long, long time, thanks to Spotify:
<blockquote><i>
&#8220;We&#8217;re back to the same revenue levels as during 2004, and if the development continues in the same way we&#8217;ll be back on turnover similar to those during the &#8220;golden days&#8221; of the CD in just a few years,&#8221; says Universal Music Sweden&#8217;s MD Per Sundin.
<br /><br />
&#8220;We&#8217;ve seen massive change in music consumption, where music fans are now listening to more music than ever, in an entirely legal environment. This means that revenues are increasing all the time, and artists get paid every time their music is played. Our artists get significant revenues from Spotify, which is our biggest income source for Sweden. A positive side effect is that we&#8217;re investing a lot in new talent.&#8221;
<br /><br />
Mark Dennis, CEO of Sony Music Sweden, makes the same point: &#8220;One of the most gratifying consequences of this is that it gives us the opportunity to sign more artists, and record more new Swedish music than ever. In fact, for most of our artists, streaming music now represents the majority of the revenue.&#8221;
</i></blockquote>
Now, I've learned to take any claims from the major labels with a grain of salt, and there are some clear issues with Spotify.  People have complained that the deals favor the majors so they get a larger cut than the indies.  That's definitely a problem.  Others insist that Spotify doesn't pay enough -- but multiple studies keep finding that, on a per listen basis, Spotify actually pays quite nicely.  There may still be significant issues with how the labels pass that money on to artists, however.
<br /><br />
The point of this isn't to say that "Spotify" is the answer.  There are, clearly, some questions about that particular service.  But it certainly shows that there <i>are</i> solutions that very effectively <i>compete with free</i>, and as they grow, they can certainly help make significant money for the copyright holders.  Spotify, of course, had a head start in Sweden, and the adoption rates there are incredible.  However, the point is pretty clear: let new services like Spotify grow and thrive and effectively compete with free, and they will do so -- and the business issues seem to pretty quickly sort themselves out.  Obviously having even more competition would be a good thing as well, as competitors will keep trying to offer something even better (and put pressure on Spotify to advance as well).
<br /><br />
In the end, though, Spotify is a classic case of giving the <i>public</i> what they want, rather than what the industry wants them to have.  And yet, in doing so, it's also now providing massive revenues for the industry -- even as people continue to insist that such a result is impossible.<br /><br /><a href="http://www.techdirt.com/articles/20120713/02212119682/swedish-experiment-spotify-helps-recording-industry-make-lots-money.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120713/02212119682/swedish-experiment-spotify-helps-recording-industry-make-lots-money.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120713/02212119682/swedish-experiment-spotify-helps-recording-industry-make-lots-money.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>in-the-pirate-bay's-home-country</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120713/02212119682</wfw:commentRss>
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<item>
<pubDate>Thu, 7 Jun 2012 13:17:00 PDT</pubDate>
<title>Fiona Apple To Label: Back Off, I'm Connecting With My Fans</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/blog/casestudies/articles/20120606/15440619227/fiona-apple-to-label-back-off-im-connecting-with-my-fans.shtml</link>
<guid>http://www.techdirt.com/blog/casestudies/articles/20120606/15440619227/fiona-apple-to-label-back-off-im-connecting-with-my-fans.shtml</guid>
<description><![CDATA[ We've written about the tangles of singer Fiona Apple and her label, Epic (a Sony imprint), for years.  Back in 2005, Epic <a href="http://www.techdirt.com/articles/20050316/1433252.shtml">refused</a> to release her album, because it "didn't hear a hit."  Instead, the album leaked and started getting radio play, which got fans excited and, <i>finally</i>, Epic felt <a href="http://www.techdirt.com/articles/20050816/1027251.shtml">compelled</a> to release it.  The NY Times recently had an article about her latest album, which has actually been done for well over a year, but has been "held up" by shakeups at the label.  However, what may be most interesting is a section where they talk about her recent appearance at SXSW, where her management basically told Epic <a href="http://www.nytimes.com/2012/06/03/arts/music/fiona-apples-new-album-the-idler-wheel.html?_r=1&#038;pagewanted=all" target="_blank">to stay the hell out of the way and <i>not do anything</i></a>:
<blockquote><i>
&#8220;The Idler Wheel&#8221; is counting on the devotion of Ms. Apple&#8217;s fans. Before she appeared at South by Southwest her manager, Andy Slater, said he told Epic Records: &#8220; &#8216;I want you to do nothing.&#8217; I said: &#8216;Don&#8217;t make any posters. Don&#8217;t make any cards. Don&#8217;t put out a single. Just don&#8217;t say anything. Let her play the show. It&#8217;s been a few years. Let kids go to the show, film the thing, put it on their blogs, and you don&#8217;t need to do anything.&#8217; &#8221; Almost immediately after her set amateur video clips were on YouTube.
</i></blockquote>
There are a few interesting things here.  First of all, we're always told that musicians need the big labels for "marketing" purposes.  Yet, here's an artist specifically recognizing that the way a label does marketing can actually make things <i>worse</i>, not better.  On top of that, what she (or her management, in this case) clearly recognize is that the way to really do "marketing" these days is to connect with fans and then <i>trust them</i> -- not treat them as criminals.  Notice that no one wanted the label to release a video or put the music on YouTube.  Instead, they full expected and were happy with the fact that <i>the fans</i> filmed the show and put it on YouTube.  The same YouTube that is still being sued for a billion dollars for letting people do that.  The same YouTube that people tell us needs to be <i>more</i> proactive in preventing the fans from doing exactly what they did and exactly what Apple appears to have wanted them to do.
<br /><br />
There's a big point here.  If we shut down sites like YouTube, or force them to pre-block any and all content without proof of copyright or license, this kind of very, very successful marketing wouldn't be possible.  Instead, you'd have nothing but Epic doing its thing -- which everyone seems to recognize would lead to a <i>worse</i> result for the artist...<br /><br /><a href="http://www.techdirt.com/blog/casestudies/articles/20120606/15440619227/fiona-apple-to-label-back-off-im-connecting-with-my-fans.shtml">Permalink</a> | <a href="http://www.techdirt.com/blog/casestudies/articles/20120606/15440619227/fiona-apple-to-label-back-off-im-connecting-with-my-fans.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/blog/casestudies/articles/20120606/15440619227/fiona-apple-to-label-back-off-im-connecting-with-my-fans.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>the-internet's-got-this</slash:department>
<wfw:commentRss>http://www.techdirt.com/comment_rss.php?sid=20120606/15440619227</wfw:commentRss>
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<pubDate>Wed, 23 May 2012 08:05:00 PDT</pubDate>
<title>Apple And Microsoft Behind Patent Troll Armed With Thousands Of Nortel Patents</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120521/13194719006/apple-microsoft-behind-patent-troll-armed-with-thousands-nortel-patents.shtml</link>
<guid>http://www.techdirt.com/articles/20120521/13194719006/apple-microsoft-behind-patent-troll-armed-with-thousands-nortel-patents.shtml</guid>
<description><![CDATA[ You may recall last summer that Apple, Microsoft, EMC, RIM, Ericsson and Sony all teamed up to <a href="http://www.techdirt.com/blog/wireless/articles/20110701/01110214930/nortel-patents-sold-45-billion-to-apple-emc-microsoft-rim-ericsson-sony.shtml">buy Nortel's patents</a> for $4.5 billion.  They beat out a team of Google and Intel who bid <a href="http://www.techdirt.com/articles/20110701/23392814939/google-tried-bidding-geeky-numbers-nortel-patents-how-about-314159-billion.shtml">a bit less</a>.  While there was some antitrust scrutiny over the deal, it was dropped and the purchase went through.  Apparently, the new owners picked off a bunch of patents to transfer to themselves... and then all (minus EMC, who, one hopes, was horrified by the plans) decided to <a href="http://www.wired.com/wiredenterprise/2012/05/rockstar/all/1" target="_blank">support a massive new patent troll</a> armed with the remaining <i>4,000</i> patents.  The company is called Rockstar Consortium, and it's run by the folks who used to run Nortel's patent licensing program anyway -- but now employs people whose job it is to just find other companies to threaten:
<blockquote><i>
But Widdowson is a specialist. He's one of 10 reverse-engineers working full time for a stealthy company funded by some of the biggest names in technology: Apple, Microsoft, Research In Motion, Sony, and Ericsson. Called the Rockstar Consortium, the 32-person outfit has a single-minded mission: It examines successful products, like routers and smartphones, and it tries to find proof that these products infringe on a portfolio of over 4,000 technology patents once owned by one of the world's largest telecommunications companies.
<br /><br />
When a Rockstar engineer uncovers evidence of infringement, the company documents it, contacts the manufacturer, and demands licensing fees for the patents in question. The demand is backed by the implicit threat of a patent lawsuit in federal court. Eight of the company's staff are lawyers. In the last two months, Rockstar has started negotiations with as many as 100 potential licensees. And with control of a patent portfolio covering core wireless communications technologies such as LTE (Long Term Evolution) and 3G, there is literally no end in sight.
</i></blockquote>
The article admits that Nortel got most of these patents because it wanted them for "defensive" reasons.  And now look at how they're being used.  Remember that the next time you hear a company promise to only use its patents defensively.  There's also a ridiculous quote from Rockstar's CEO, John Veschi:
<blockquote><i>
&#8220;A lot of people are still surprised to see the quality and the diversity of the IP that was in Nortel,&#8221; he says. &#8220;And the fundamental question comes back: &#8216;How the hell did you guys go bankrupt? Why weren&#8217;t you Google? Why weren&#8217;t you Facebook? Why weren&#8217;t you all these things, because you guys actually had the ideas for these business models before they did?&#8217;"
</i></blockquote>
The real answer, of course, is because patents are meaningless.  Ideas are worth nothing by themselves.  Ideas only matter if you execute, and anyone who's ever actually executed on an idea will tell you that the original idea almost is never reflected in the final product.  The process of going from idea to actual product is a process by which you learn that what matters is not what you thought mattered.  And yet, for reasons that make no sense to anyone who has ever actually built a product, creating monopolies around the ideas only serves to create a massive tollbooth towards actual innovation.  And that's what we have here -- and it's funded by Apple and Microsoft.
<br /><br />
Once again, we see that these two large companies are using the patent system not to innovate, but to stop up and coming competitors from innovating.  The patent system isn't being used to encourage innovation but to protect incumbents from an open market.
<br /><br />
Oh, and worst of all, the reason that the antitrust effort was dropped was because Apple and Microsoft promised to license the key patents under "reasonable terms."  But... Rockstar is not subject to that agreement.
<blockquote><i>
But the new company &#8212; Rockstar Consortium &#8212; isn&#8217;t bound by the promises that its member companies made, according to Veschi. &#8220;We are separate,&#8221; he says. &#8220;That does not apply to us.&#8221;
</i></blockquote>
That seems quite problematic, and perhaps worthwhile for the government to reopen its investigation...<br /><br /><a href="http://www.techdirt.com/articles/20120521/13194719006/apple-microsoft-behind-patent-troll-armed-with-thousands-nortel-patents.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120521/13194719006/apple-microsoft-behind-patent-troll-armed-with-thousands-nortel-patents.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120521/13194719006/apple-microsoft-behind-patent-troll-armed-with-thousands-nortel-patents.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>just-great...</slash:department>
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<pubDate>Fri, 18 May 2012 13:39:00 PDT</pubDate>
<title>Romance Author Adele Dubois Receives Takedown On Blog Post For Having The Same Name As Singer Adele</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120517/17443418961/romance-author-adele-dubois-receives-takedown-blog-post-having-same-name-as-singer-adele.shtml</link>
<guid>http://www.techdirt.com/articles/20120517/17443418961/romance-author-adele-dubois-receives-takedown-blog-post-having-same-name-as-singer-adele.shtml</guid>
<description><![CDATA[ I heard about this story last week, but it took a while to sort through all of the details.  There were reports out there that the romance author Adele Dubois had been sent a DMCA takedown.  Most of the reports were a bit vague, and then the Washington Post had <a href="http://www.washingtonpost.com/blogs/she-the-people/post/is-adele-dubois-the-romance-writer-infringing-on-adele-the-singer/2012/05/14/gIQAT32WPU_blog.html" target="_blank">a very confused writeup</a> that bounced back and forth between copyright and trademark, without bothering to mention that you <b>cannot</b> use a DMCA notice for trademark issues (and also pointing much more of a finger at Google than was warranted).
<br /><br />
I've now been able to see the full DMCA notice (which is not yet up on ChillingEffects, but should be soon -- though I've included it below) and talk to a few people around this, and it appears that someone associated with Sony did, in fact, issue a DMCA takedown to Google, leading to a blog post by Adele Dubois being taken offline.  Google has since reinstated the post, after reviewing the counternotice, so you can <a href="http://romancebooksrus.blogspot.com/2012/05/new-intimate-art-by-adele-dubois.html?zx=2ad7b9999f22cf3d" target="_blank">read it here</a>, though depending on your workplace, it may be marginally not safe for work (think erotic romance novel graphics and prose).
<br /><br />
The DMCA takedown notice details are extremely sparse.  It notes that the "copyright owner" is "XL SONY" and that the "Copyright work description" is "ADELE + EXITOS."  It then lists out two URLs.  One for "Location of the copyrighted work" and one for "Location of infringing material."  It's not clear what the difference is here, but the first one takes you to a sales page for a totally different (and unrelated) romance book, whose author runs the blog where the Adele Dubois post was.  The author of that book, Marianne Stephens, notes that she holds all the copyright on that particular book, and isn't clear why it's in the DMCA notice.  The second link (location of infringing material) is the link listed above.  The <i>only</i> connection that seems to be made is the fact that the famous singer Adele is on Sony, and the author of the blog post (and the erotic romance novel it talks about) has the pen name Adele Dubois (a name she's used since well before the singer Adele became a professional singer).  Either way, there's no copyright in just the name Adele.  The word Exitos seems totally irrelevant to anything.
<br /><br />
Google, as it does in these situations, reverted the blog post to "private," and then upon reviewing the counternotice turned the blog post back on.  It's not entirely clear from the notice who actually sent the takedown.  It's possible that it was an overaggressive representative of Sony.  What does seem clear is that whoever sent it was just doing some sort of quick automated takedown effort without any real review -- even though the takedown notice says: 
<blockquote><i>
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.
<br /><br />
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
</i></blockquote>
In the Washington Post article, the author suggests that Google should have gotten "to the bottom of this" before taking the content down.  While that would be nice, the problem is not so much with Google as with the law itself, the DMCA.  Because of the way the DMCA is structured, companies that don't take down content first and review the details later face significant liability if the content turns out to be infringing.  The law basically says, if you want immunity from liability, you have to first pull the content offline.  So Google followed that procedure.  As we've noted, this part of the DMCA potentially <a href="http://www.techdirt.com/articles/20100402/1856128861.shtml">violates the First Amendment</a>, but has yet to be tested in court.
<br /><br />
That said, you can see why it's so frustrating to the recipient.  It's not at all clear from the notice that Google's Blogger passed on to the blog owners the information on who really issued the takedown, or even what, exactly, they were claiming.  The bizarre link to the totally unrelated book doesn't help matters, but only serves to confuse them further.  Combine that with the threat that this can lead to a "strike" against an account and you can see why some recipients of notices like this get pretty worried.
<br /><br />
In the end, this looks like yet another of an all too common phenomenon (and one we've <a href="http://www.techdirt.com/articles/20120223/15102217856/key-techdirt-sopapipa-post-censored-bogus-dmca-takedown-notice.shtml">dealt with</a> ourselves).  Companies file automated or questionable (or insanely vague) DMCA notices all the time, and the structure of the law encourages companies who receive them to pull the content offline immediately and sort out the mess later.<br /><br /><a href="http://www.techdirt.com/articles/20120517/17443418961/romance-author-adele-dubois-receives-takedown-blog-post-having-same-name-as-singer-adele.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120517/17443418961/romance-author-adele-dubois-receives-takedown-blog-post-having-same-name-as-singer-adele.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120517/17443418961/romance-author-adele-dubois-receives-takedown-blog-post-having-same-name-as-singer-adele.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>bogus-dmca</slash:department>
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<pubDate>Tue, 8 May 2012 22:30:00 PDT</pubDate>
<title>SGI Back From The Dead (Again) And Suing Tons Of Companies For Patent Infringement</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120419/02113518553/sgi-back-dead-again-suing-tons-companies-patent-infringement.shtml</link>
<guid>http://www.techdirt.com/articles/20120419/02113518553/sgi-back-dead-again-suing-tons-companies-patent-infringement.shtml</guid>
<description><![CDATA[ Back when I moved to Silicon Valley, Silicon Graphics Inc., (SGI) was still a hot place to work.  They were still pumping out cool machines and had a reputation for a fun corporate culture.  Of course, that collapsed pretty quickly over the next few years, as SGI totally misjudged the market trends and fell victim to the innovator's dilemma.  Basically, SGI never could come to terms with the fact that its premium products were going to be increasingly undercut as cheaper commodity technology improved.  Back in 2006, we noted that what remained of SGI had indicated that it planned to resurrect the company by <a href="http://www.techdirt.com/articles/20061024/174559.shtml">going patent troll</a>.  However, we <i>thought</i> we'd avoided that ignoble result when SGI <a href="http://www.techdirt.com/articles/20090401/1502474343.shtml">sold most of its assets</a> to Rackable for a mere $25 million three years ago.  Silly us for assuming those patents would just go away.
<br /><br />
While Rackable changed its name to Silicon Graphics International... the original company actually <i>retained</i> the patents, and renamed itself Graphics Properties Holdings... and over the last few years has <a href="http://www.m-cam.com/patently-obvious/hand-grave-intellectual-property-analysis-graphics-properties-holdings" target="_blank">been suing lots of companies for patent infringement</a>.  In the last year alone it has sued Apple, HTC, LG, RIM, Samsung, Sony, Acer, ASUS, Panasonic, Sharp, Toshiba, Vizio and Motorola Mobility.
<br /><br />
As the link above notes, while some of GPH's patents are relatively early, it appears that lots of similar inventions predated key patents.  However, the early date may make those patents look stronger, and give GPH much more leverage in getting companies to pay up -- or risk losing the ability to produce devices with nice graphics capabilities.<br /><br /><a href="http://www.techdirt.com/articles/20120419/02113518553/sgi-back-dead-again-suing-tons-companies-patent-infringement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120419/02113518553/sgi-back-dead-again-suing-tons-companies-patent-infringement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120419/02113518553/sgi-back-dead-again-suing-tons-companies-patent-infringement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>troll-troll-troll-troll</slash:department>
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<pubDate>Wed, 2 May 2012 12:40:00 PDT</pubDate>
<title>My Bloody Valentine's Kevin Shields On Reissue Delays: 'Sony Hid Our Master Tapes'</title>
<dc:creator>Tim Cushing</dc:creator>
<link>http://www.techdirt.com/articles/20120501/07385618728/my-bloody-valentines-kevin-shields-reissue-delays-sony-hid-our-master-tapes.shtml</link>
<guid>http://www.techdirt.com/articles/20120501/07385618728/my-bloody-valentines-kevin-shields-reissue-delays-sony-hid-our-master-tapes.shtml</guid>
<description><![CDATA[ Shoegaze legend <a href="http://en.wikipedia.org/wiki/My_Bloody_Valentine_(band)" target="_blank">My Bloody Valentine</a> has never been mistaken for a prolific band. With their last album (<a href="http://www.wired.com/underwire/2011/11/my-bloody-valentine-loveless/" target="_blank"><i>Loveless</i></a>) having been released over two decades ago (1991 to be exact), anyone who's been holding their breath waiting for a followup has probably been revived enough times that friends and family are considering adding a DNR order to their living will.<p>Now, at long last, there are signs of life. On May 7th, Sony Records is set to release remastered versions of MBV's two full albums and several EPs [exclamation points!]. Not only that, but MBV co-founder Kevin Shields is strongly hinting at an actual new My Bloody Valentine album [more exclamation points, tempered with a "we've heard this before over the last 20 years, but still..."!]. <br /><br /> While the new remasters will be appreciated, it's a project that's been in the works since 2004. Most of those familiar with Kevin Shields' perfectionism (the obsessiveness that saw the band go through 19 recording studios and nearly as many producers while recording <i>Loveless</i>, nearly bankrupting Creation Records in the process) probably chalked up this extra-long delay to excessive amounts of knob twiddling. But in an interview with Pitchfork, <a href="http://pitchfork.com/features/interviews/8809-kevin-shields/" target="_blank">Shields points out that <i>this time</i> it wasn't him</a>: 
<blockquote>
<i>The [remastering] process actually started in 2001, when we managed to come to an agreement with Sony, who inherited us from Creation. Part of the Sony deal was that I wanted all of the EPs made into one package because, back in 2001, you could get the albums pretty easily but not the EPs. So it was basically a compilation of all the EPs, and that was it.</i> <br /><br /> <i>Then we decided to do Isn't Anything and Loveless as well-- if we're gonna remaster [the EPs], we should remaster everything. In 2002, I tried to start working on it, but the studio that had the tapes, Metropolis Studios, lost them; the analog multi-tracks were all missing for a year. Only after I started threatening to get Scotland Yard involved did they magically, suddenly reappear. The true story is as yet to be determined, but we'll fight that one out in the near future.</i>
</blockquote>
Tapes going missing isn't completely unheard of. When bands lie dormant for years at a time, the labels generally don't place a premium on keeping everything sorted out, especially when they can do things like issue faux-remasters by pressing the "+Loud" button while the CD is in the tray. Shields points out that Warner (who handles American distribution) did exactly that when issuing supposed vinyl "remasters" in 2003:
<blockquote>
<i>For example, in America, Warner Bros. licensed Loveless and Isn't Anything to Plain Records, and they basically just ripped [the audio] off the CD and put it on vinyl [in 2003]. They did an awful, terrible job. It was done without my permission, and the sound quality was 100% wrong. It was a rip off to anyone who bought it. But I didn't know anything about it until they were in the shops. We actually got an injunction against it being imported into the UK at the time because it was technically a bootleg but, in America, Warners operate under their own law, so it might have been slightly legal in the United States.</i>
</blockquote>
But Shields states that the missing master tapes wasn't the result of simple oversight:
<blockquote>
<i>The contract we did in 2001 basically gave me ownership of the tapes, and then the Sony regime that existed when that contract was signed left. And when the new regime came in, the tapes disappeared. That was relevant because even though I was the owner, it would only revert back to me if I remastered from the original tapes-- if the tapes were gone, I couldn't remaster from them and hence I couldn't ever own them.</i>
</blockquote>
[Fun note: Pitchfork asked Sony to comment on this and got this smiley chunk of PR spam in reply: "<i>We have really enjoyed working on these hugely iconic re-issues with Kevin, and can't wait for the release.</i>" We know this isn't true because <i>no one</i> enjoys working with Kevin Shields. (<a href="http://en.wikipedia.org/wiki/Loveless_(album)#Recording_and_production" target="_blank">HAHAHA ONLY SRS</a>. 19 studios! Thousands of pounds!!! Engineers not being allowed to listen to vocal takes!!!?!)] <br /><br /> So, keeping the tapes away from Shields meant preventing him from reclaiming control of his band's output or being compensated for any interim sales. In fact, despite continued interest in My Bloody Valentine's catalog, the band is still operating in the red:
<blockquote>
<i>Also, you don't get paid if you don't own it-- you know, we've never been paid one penny from the United States from any of the records we've ever made. In the record company's world, we're always in debt. But the strange part of the story is Loveless alone sold enough copies in its first year to put us out of debt. But somehow Warners have managed to create a situation where, hundreds of thousands of records down the line, we're still in debt. That's why the compilations aren't coming out on Warner Bros. They're extremely in breach of contract as well at the moment.</i>
</blockquote>
Despite all of this, Shields remains largely pragmatic about this situation. It's not that it isn't unfair or stupid or flat out ugly. It's just that it isn't <i>uncommon</i>:
<blockquote>
<i>I'm no victim here-- this is just the way it is for everybody. It's a bit like being in the middle of a battlefield and getting shot in the arm and going, "Why me?" I mean, to put it very, very, very simply: The corporate system is fully psychopathic, and any creative people who enter into business with any of these organizations come up against a lifetime of issues. You just deal with it as you go along. It'll keep on happening until people reorganize the organizations.</i>
</blockquote>
Shields expands on this, pointing out that this two-decade gap between the original albums and the reissues could have been a lot shorter, if there had been any sort of cooperation from the labels involved.
<blockquote>
<i>Well, the organizations are [psychopathic], but probably 70% of the individuals in them are decent people. But a significant controlling minority have no empathy. They don't give a shit. If you put them in a situation where they can't make any decision but one that is in your favor, they will-- but that can take years. That's the game. Most people just give up with time and go, "I'm a victim." The only reason I've got the reputation for delays and spending a long time on things is because I just don't stop. We've had incredibly huge obstacles in our way-- no tapes, no royalties, no cooperation on any level-- and we sort it out.</i>
</blockquote>
Apparently, this is what it takes do a proper reissue: eight years, two labels, Scotland Yard and Shields' willingness to keep pushing on despite the labels' best efforts to keep him and his music as far apart as possible. I eagerly await the naysayers who will point out that the label system is still the artists' best friend, preferable to self-publishing, Kickstartering, etc. while simultaneously pointing out that "Screw the artists! They signed a contract!" Fun stuff, this cognitive dissonance. </p><br /><br /><a href="http://www.techdirt.com/articles/20120501/07385618728/my-bloody-valentines-kevin-shields-reissue-delays-sony-hid-our-master-tapes.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120501/07385618728/my-bloody-valentines-kevin-shields-reissue-delays-sony-hid-our-master-tapes.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120501/07385618728/my-bloody-valentines-kevin-shields-reissue-delays-sony-hid-our-master-tapes.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>inevitable-'artist-signed-a-contract'-trolling-in-3...2...</slash:department>
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<pubDate>Mon, 30 Apr 2012 15:31:00 PDT</pubDate>
<title>Sad State Of Copyright: Guy Using Short Clips Of Music In Viral Videos Accused Of Infringement</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120427/18013118692/sad-state-copyright-guy-using-3-to-10-second-clips-music-viral-videos-accused-infringement.shtml</link>
<guid>http://www.techdirt.com/articles/20120427/18013118692/sad-state-copyright-guy-using-3-to-10-second-clips-music-viral-videos-accused-infringement.shtml</guid>
<description><![CDATA[ <a href="https://twitter.com/#!/BrianLaSorsa/statuses/196031613233135616" target="_blank">Brian LaSorsa</a> points us to the <a href="http://www.youtube.com/watch?v=9Smb6p9tLAo&#038;feature=player_embedded" target="_blank">unfortunate case of Steve Kardynal</a>, a pretty popular maker of funny online videos.  There are all sorts of creative people who have been enabled to create and put their works out to the world thanks to things like YouTube.  Kardynal makes funny sketches, with some of the most popular being his "Songs in Real Life" videos, in which he creates scenes where every so often the dialogue actually is a short clip -- between 3 and 10 seconds -- from a popular song.  Unfortunately, as he notes in the video explaining what happened, the second one of these videos received a takedown from Sony (a year after it was posted):
<center>
<iframe width="560" height="315" src="http://www.youtube.com/embed/9Smb6p9tLAo" frameborder="0" allowfullscreen></iframe>
</center>
<br />
Realizing that getting three strikes on YouTube means he would lose his account -- which already has about 100 million views -- he's pretty freaked out.  In response, he's set his other "Songs in Real Life" videos to private to hopefully avoid getting any other strikes while he tries to figure out what to do.
<br /><br />
While his videos are no longer available, with a little searching you can find them elsewhere.  I don't know how long this will remain available, but here's someone who put all three of the "Songs in Real Life" videos <a href="http://www.youtube.com/watch?feature=player_embedded&#038;v=6EsDwOQELJk#!" target="_blank">into a single video</a>.  It's difficult to see how this isn't fair use, and I'd argue that this is a clear case of Sony engaging in copyfraud.
<br /><br />
As Steve notes, all of the video clips are between 3 and 10 seconds.  No one is going to reasonably claim that this takes away from the market for that song.  Furthermore, as he also points out, he listed all the songs that were used in the description of his video and made it easy for people to go buy the songs.  In other words, it's difficult to see how these videos didn't actually <i>help</i> the market for these songs, rather than hurt it.  The <a href="http://scholar.google.com/scholar_case?case=2209471029398314909&#038;hl=en&#038;as_sdt=2&#038;as_vis=1&#038;oi=scholarr" target="_blank">Lenz v. Universal</a> case showed that copyright holders need to take fair use into account when they issue DMCA takedowns, and it certainly doesn't look like Sony did so in this case.
<br /><br />
But, really, what's even more interesting about this story is just how much it has impacted Steve.  He talks about how he's afraid to lose all that he's worked on and how it's like losing a family member.  This is the exact opposite of what copyright law is supposed to do.  Here it's being used to stifle and shut down creativity.  And while some may claim that what Steve feels is no different than what an artist whose work is infringed on experiences, it seems quite different, actually.  With an infringement, an artist hasn't lost anything.  It's just that their own wishes for how the music is used or paid for gets denied.  In this case, the content is actively being shut down.  There's a real loss.  That's unfortunate.<br /><br /><a href="http://www.techdirt.com/articles/20120427/18013118692/sad-state-copyright-guy-using-3-to-10-second-clips-music-viral-videos-accused-infringement.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120427/18013118692/sad-state-copyright-guy-using-3-to-10-second-clips-music-viral-videos-accused-infringement.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120427/18013118692/sad-state-copyright-guy-using-3-to-10-second-clips-music-viral-videos-accused-infringement.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>ridiculous</slash:department>
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<pubDate>Wed, 4 Apr 2012 19:59:00 PDT</pubDate>
<title>Court Says Sony Is Free To Change Its Terms Of Service Because Accessing PSN Is A Choice</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml</link>
<guid>http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml</guid>
<description><![CDATA[ Last year, Sony changed its terms of service for accessing the PlayStation Network.  Like many other companies, part of the changed terms was a requirement to take disputes to arbitration, rather than court.  These clauses are pretty popular for some obvious reasons: the companies almost always win (perhaps because the arbitrator wants to get hired in the future, and implicitly recognizes the big company is likely to call him again -- not the random individual who has a dispute with the big company).  On top of that, it's a lot cheaper than litigation.  That part is a good thing, but arbitration hearings seem to be so one-sided that they're often not worth it.
<br /><br />
Some folks were not at all happy about this and sought to file a class action lawsuit against Sony for the change -- but that lawsuit has been (pretty quickly) <a href="http://blog.ericgoldman.org/archives/2012/04/court_rejects_c_2.htm" target="_blank">rejected by the court</a>, suggesting that the main guy suing failed to show evidence of any harm.  In an interesting move, the court found that the fact that you lost access to the network if you didn't agree to the new terms isn't evidence of any harm, but rather a choice.  Of course, that seems a bit extreme.  It opens up possibilities for companies to more or less corner users into unpleasant situations.  Just change the terms and anyone can be excluded.
<br /><br />
I'm not a fan of mandatory arbitration clauses or class action lawsuits like this where "harm" is pretty tough to show.  In the end, though, it does seem like Sony should be able to choose and change its terms of service.  The real issue is that it chose consumer-unfriendly options, and in a better world, less draconian alternatives would spring up to help treat consumers right.  It's hard to side with Sony here (or in most situations), but the lawsuit itself does seem like a stretch.<br /><br /><a href="http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120404/02412418363/court-says-sony-is-free-to-change-its-terms-service-because-accessing-psn-is-choice.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>companies-own-you</slash:department>
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<pubDate>Mon, 5 Mar 2012 12:27:01 PST</pubDate>
<title>Sony &#038; NBC Interfere With Fan-Funded Web Series, Accomplish Nothing</title>
<dc:creator>Leigh Beadon</dc:creator>
<link>http://www.techdirt.com/articles/20120302/13120517969/sony-nbc-interfere-with-fan-funded-web-series-accomplish-nothing.shtml</link>
<guid>http://www.techdirt.com/articles/20120302/13120517969/sony-nbc-interfere-with-fan-funded-web-series-accomplish-nothing.shtml</guid>
<description><![CDATA[ <p><a href="http://www.techdirt.com/profile.php?u=churchhatestucker">ChurchHatesTucker</a> points us to yet another example of how the strictures of the legacy entertainment industry are at odds with modern attitudes towards culture and creativity, and the hypocrisy of those who rely on fair use but seek to limit it for others.  First, a bit of background:</p>

<p>The NBC series <em>Community</em> (which is awesome, by the way) recently introduced a show-within-the-show: a parody of <em>Dr. Who</em> entitled <em>Inspector Spacetime</em> and shown only in a few short clips. <a href="http://www.imdb.com/name/nm1770866/" target="_blank">Travis Richey</a>, the actor who portrays the titular character for his few seconds on screen, and who is also an experienced web series producer, immediately saw the potential to extend the fake show into a series of real shorts. He approached the <em>Community</em> creators with a script, only to discover that, as he puts it, "Hollywood doesn't work quite that way." He then had his agent pitch it through official studio channels, but never heard back&mdash;so he took the idea to Kickstarter, planning to produce the series himself.</p>

<p>It will come as a surprise to no one that <a href="http://www.kickstarter.com/projects/1878253293/inspector-spacetime-the-webseries" target="_blank">the lawyers made short work of that plan</a>&mdash;but Richey isn't stopping, he's just changing the title:</p>

<blockquote><em>Lawyers from Sony and NBC have contacted me demanding that I cease production on an Inspector Spacetime web series.  
<br /><br />
Though I firmly believe the law would be on my side in producing this parody, I have no wish or ability to fight a show that I love as much as "Community."  I had hoped that they would embrace what is essentially a fan film and appreciate the value it adds to the character, and the audience that we would bring who are finding "Community" for the first time through this character, but alas, that's not the case. So, I will be removing all references to Inspector Spacetime from this series (it only happened in the title anyway), and altering the appearance of the Inspector so that he does not look like Inspector Spacetime.  What remains is 100% the creation of myself, my writing partner, and you, the fans.</em></blockquote>

<p>The title card on the video now reads "Untitled Web Series About A Space Traveler Who Can Also Travel Through Time", and the project is already more than half-funded, with the rest of the month still to go. Richey says the money is for equipment only: everyone involved is a volunteer, and the finished series won't be monetized at all. This is a case of someone who just loves to create, for its own sake, being blocked by problematic, hypocritical legal claims. Problematic because a name and a simple character concept, barely established with a handful of brief clips, should really fall on the idea side of the idea/expression dichotomy; hypocritical because that character is himself a direct parody of a much bigger cultural icon, and relies on that very same dichotomy for his existence.</p>
<p>Some will say that it's no big deal: he changed the title, and now he can make the series. Luckily, this time, that does appear to be the case&mdash;but there is no reason even that should have been necessary. As Richey says, he still thinks he is in the right, but has no intention of going to court: not just because of the expense, but because he <em>doesn't want to</em>. He wants to create, not have creator-fights with his peers. But somehow the industry that claims its every move is about protecting creators always manages to get in the way of people like that.</p><br /><br /><a href="http://www.techdirt.com/articles/20120302/13120517969/sony-nbc-interfere-with-fan-funded-web-series-accomplish-nothing.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120302/13120517969/sony-nbc-interfere-with-fan-funded-web-series-accomplish-nothing.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120302/13120517969/sony-nbc-interfere-with-fan-funded-web-series-accomplish-nothing.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>except-making-the-lawyers-richer</slash:department>
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<pubDate>Mon, 27 Feb 2012 11:33:00 PST</pubDate>
<title>Sony Music Exec: The Internet Is Full Of Opportunities &#038; Not A Problem; Intransigent Collection Societies, However...</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtml</link>
<guid>http://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtml</guid>
<description><![CDATA[ We've detailed a few times the ridiculous standoff in Germany, where the <a href="http://www.techdirt.com/articles/20090706/0318065456.shtml">incredibly aggressive</a> music collection society <a href="http://www.techdirt.com/blog/?company=gema">GEMA</a> is involved in a big lawsuit against YouTube for posting videos with music in them.  YouTube has done licensing deals with collection societies around the globe, but GEMA refuses to even sit down to start a conversation until after the lawsuit happens. Because of that, all GEMA music in Germany is barred from YouTube entirely.  This leads to some situations in which totally licensed videos are <a href="http://www.techdirt.com/articles/20110714/00141315084/why-sita-sings-blues-is-perfectly-legal-germany-you-still-cant-watch-it-youtube.shtml">banned in Germany</a>.  This has been going on for years and years with no change.
<br /><br />
GEMA, of course, says that it's doing this to "protect" the artists.  But as I've pointed out in the past, many, many artists in Germany don't believe that at all.  In the past we've noted that GEMA tried to ignore Creative Commons licenses as well as barred members from offering their music for free (two years ago, when I was in Germany at a music conference, I had multiple artists explain to me they had an "official" website where they would "sell" music to keep GEMA happy... and an "unofficial" website where they'd offer their music for free.  The whole thing is crazy.
<br /><br />
In fact, it's gotten so crazy that apparently even the major labels are getting sick of it.  TorrentFreak has the news of a top Sony Music exec, Edgar Berger, who runs their international business, talking about how <a href="http://torrentfreak.com/sony-music-boss-censored-youtube-videos-cost-us-millions-120224/?utm_source=feedburner&#038;utm_medium=feed&#038;utm_campaign=Feed%3A Torrentfreak %28Torrentfreak%29" target="_blank">the internet hasn't been a problem at all</a>, but has created tons of new opportunities.  The ones creating the real problems for the industry?  GEMA.  Because the music is blocked "to protect the artist," it appears that the labels and artists are missing out on large revenue checks from YouTube's ContentID...
<blockquote><i>
&#8220;There is absolutely nothing to complain about. The Internet is a great stroke of luck for the music industry, or better: the Internet is a blessing for us,&#8221; Berger said.
<br /><br />
&#8220;You can not blame the Internet for harmful excesses. On the contrary. It has brought us tremendous new opportunities,&#8221; he added.
<br /><br />
But with these new opportunities come new rivals from an unexpected corner. According to the Sony boss, music rights collecting agencies are now preventing innovation in certain countries.
<br /><br />
In Germany, for example, most YouTube videos by Sony artists are blocked due to the music rights group GEMA, and not because Sony wants it that way. When asked why Sony&#8217;s music is not available on YouTube in Germany, Berger responded bitterly.
<br /><br />
&#8220;It&#8217;s not because of us. You must direct this question to the German collecting agency GEMA, they licensed the copyright very restrictively.&#8221;
</i></blockquote>
Quite a contrast from the "old" story, right?  Here's a situation in which <i>technology</i> and <i>business model innovation</i> via Content ID are creating massive new revenue opportunities for the entertainment industry -- and the old school system of excess protectionism is denying them that revenue.<br /><br /><a href="http://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120225/02270617882/sony-music-exec-internet-is-full-opportunities-not-problem-intransigent-collection-societies-however.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>more-people-getting-it</slash:department>
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<pubDate>Fri, 27 Jan 2012 12:54:00 PST</pubDate>
<title>Bar Fight! Sony Sues Karaoke Distributor For Infringement; Gets Sued Right Back For 'Copyright Misuse'</title>
<dc:creator>Tim Cushing</dc:creator>
<link>http://www.techdirt.com/articles/20120126/13074717557/bar-fight-sony-sues-karaoke-distributor-infringement-gets-sued-right-back-copyright-misuse.shtml</link>
<guid>http://www.techdirt.com/articles/20120126/13074717557/bar-fight-sony-sues-karaoke-distributor-infringement-gets-sued-right-back-copyright-misuse.shtml</guid>
<description><![CDATA[ A great many drinkers have watched helplessly as their BAC became inversely proportionate to their common sense, throwing around cash as thought it were Monopoly money before grabbing the mic to belt out Adele's latest track. Karaoke has been the go-to bar sport for thousands of people who feel the only thing keeping them back from superstardom is sobriety. It's a proven money-maker, but does it make ridiculously large damages-type money? <a href="http://www.hollywoodreporter.com/thr-esq/michael-jackson-karaoke-sony-280132">Sony/ATV sure thinks so</a>:
<blockquote>
<i>[O]ne manufacturer and distributor of karaoke discs [KTS] has just taken Sony/ATV Music Publishing to California federal court to get a declaration that it doesn't owe <b>$1.28 billion for 6,715 acts of alleged infringement</b>. The plaintiff not only wants to limit its liability, but also is seeking to punish the music publisher for unfair trade practices.</i>
</blockquote>
Sure, karaoke is lucrative, but $1.28 billion? From one manufacturer? And how about those damages -- $190,618 per violation? How does Sony get to this number? By going back to the well over and over and over and over. And they're not the only ones in line.
<blockquote>
<i>The use of the original music as the background score requires a license over the master recording. The use of the song composition requires a mechanical license too. When songs are performed in public, that requires payment to a PRO like ASCAP or BMI. When the music is matched to video images, it requires a synchronisation license. And if the lyrics are being republished, that might require an additional fee too.</i>
</blockquote>
Standard operating procedure for karaoke manufacturers is to hire their own lineup to play the hits, thus dodging higher royalty fees by paying a mechanical license for the cover versions. Obviously, this makes financial sense considering the sheer number of tunes required to run a karaoke business, not to mention the fact that it's frequently multiple mechanical licenses. You'd think Sony would be wary of shutting down a steady income stream. But a good thing can always become a better thing with the addition of lawyers and improbable maths, amiright? <a href="http://www.hollywoodreporter.com/thr-esq/karaoke-lawsuit-kts-sony-283540" target="_blank">Not so fast, say KTS</a> (also via lawyers):
<blockquote>
<i>In KTS' lawsuit two weeks ago, the company alleges that Sony is committing copyright misuse by attempting to collect multiple damage awards on a single work from the upstream producers, the downstream users (bars and restaurants), and KTS, the packager/distributor. KTS believes this alleged bullying "scheme" is unlawful.</i>
</blockquote>
In its lawsuit, KTS says that Sony/ATV has long since known about its operation, and rather than take reasonable steps to stop such products at the source, the defendant has: "instead committed copyright misuse by seeking to secure multiple license fees for the same allegedly infringed work by suing each link on the distribution chain, by demanding license fees for licensed goods and by attempting to obtain more than one statutory damage award for the continuing infringement (i.e., down stream distributions of the infringing work) of a SINGLE WORK."
<br /><br />
This declaration only succeeded in irritating the music giant, which like many major labels finds itself easily angered in this "post-Napster" environment. Sony wants both damages and an injunction against KTS. KTS wants Sony to be realistic and to honor licenses paid by distributors instead of shoving all of its hands into KTS' wallet over and over again.
<blockquote>
<i>KTS wants a declaration that Sony is only eligible for one statutory award per work, which would trim the nearly $1.3 billion that Sony allegedly says it is due, but perhaps just as importantly, the karaoke manufacturer is bringing a bold copyright misuse claim that seeks to punish the publisher for trying to "recover multiple times for the same allegedly infringing conduct at rates greater than if the claims had been asserted against the manufacturers."</i>
</blockquote>
We'll see how this shakes out, but I have a feeling that Sony may be willing to slaughter one of its few remaining cash cows (you know, where people are still paying for music -- <i>music not even performed by the original artists</i>) on the altar of infringement, rather than settle for lower mechanical license fees. When all you have is sales declines, everything looks like a lawsuit.<br /><br /><a href="http://www.techdirt.com/articles/20120126/13074717557/bar-fight-sony-sues-karaoke-distributor-infringement-gets-sued-right-back-copyright-misuse.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20120126/13074717557/bar-fight-sony-sues-karaoke-distributor-infringement-gets-sued-right-back-copyright-misuse.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20120126/13074717557/bar-fight-sony-sues-karaoke-distributor-infringement-gets-sued-right-back-copyright-misuse.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>winner-determined-via-sing-off-at-the-holiday-inn-express-lounge-starting-at-10</slash:department>
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<pubDate>Fri, 16 Dec 2011 03:48:01 PST</pubDate>
<title>Judge Says OtherOS Removal Was A Bad Business Decision But Not Illegal</title>
<dc:creator>Zachary Knight</dc:creator>
<link>http://www.techdirt.com/articles/20111213/18342917073/judge-says-otheros-removal-was-bad-business-decision-not-illegal.shtml</link>
<guid>http://www.techdirt.com/articles/20111213/18342917073/judge-says-otheros-removal-was-bad-business-decision-not-illegal.shtml</guid>
<description><![CDATA[ Last year, Sony removed the ability for all PS3 owners to <a href="http://www.techdirt.com/articles/20100331/0128358800.shtml">install other operating systems</a> onto its PS3 console. This came as a result of console modders attempting to use it as an avenue to jailbreak the console. As a result of the move, Sony received a lot of outrage from upset gamers. Part of this outrage was a <a href="http://www.techdirt.com/articles/20100429/0752099237.shtml">class action suit</a> brought on behalf of PS3 owners who felt they were cheated when they were forced to lose the OtherOS feature or lose the ability to access Sony's Playstation Network and the ability to play future games that require a connection and the latest firmware. Many gamers reacted as if this was little more than the gamer's version of 'Sophie's Choice'. <br /><br /> We now learn, via <a href="http://ps3.ign.com/articles/121/1214636p1.html" target="_blank">IGN</a>, the <a href="http://www.courthousenews.com/2011/12/09/42126.htm" target="_blank">presiding judge has dismissed the case against Sony</a>. Back in February of this year, Judge Seeborg had dismissed all but one claim leaving the option for an amended complaint to be filed.
<blockquote>
<i>While it cannot be concluded as a matter of law at this juncture that Sony could, without legal consequence, force its customers to choose either to forego installing the software update or to lose access to the other OS feature, the present allegations of the complaint largely fail to state a claim. Accordingly, with the exception of one count, the motion to dismiss will be granted, with leave to amend. </i>
</blockquote>
The judge wasn't convinced by the latest amended complaint and has completely dismissed the case stating that the PS3 owners failed to convince him that they were entitled to the OtherOS feature or access to PSN outside the PS3's warranty period. That is an interesting point. Had the PS3's been within the warranty period, would this case have gone the other way? That is certainly something to consider. After all, the OtherOS feature was part of the whole PS3. However, even outside the warranty period, are we really to just accept it when a manufacturer deliberately disables a function? <br /><br /> Perhaps responding to just such concerns, Seeborg stated:
<blockquote>
<i>The dismay and frustration at least some PS3 owners likely experienced when Sony made the decision to limit access to the PSN service to those who were willing to disable the Other OS feature on their machines was no doubt genuine and understandable. As a matter of providing customer satisfaction and building loyalty, it may have been questionable.</i>
</blockquote>
A questionable move indeed. Sony may have dodged a legal bullet here, but the bullet of continued frustration that Sony customers have with this addition to many many <a href="http://www.techdirt.com/articles/20110224/23195013251/sonys-neverending-war-against-freedom-to-tinker-innovate.shtml">questionable business decisions</a> has hit it between the eyes. How much longer will Sony customers put up with this kind of abuse? What features will it cut next? While we don't know the answer to that, we do know one thing. Sony removed this functionality in order to prevent PS3 owners from jailbreaking it. However, if the <a href="http://www.techdirt.com/articles/20111202/09555116956/copyright-office-once-again-preparing-to-throw-citizens-fair-use-bone.shtml">EFF has its way</a> this year, this dismissal will be moot.<br /><br /><a href="http://www.techdirt.com/articles/20111213/18342917073/judge-says-otheros-removal-was-bad-business-decision-not-illegal.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20111213/18342917073/judge-says-otheros-removal-was-bad-business-decision-not-illegal.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20111213/18342917073/judge-says-otheros-removal-was-bad-business-decision-not-illegal.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>otherOS?-what-otherOS?</slash:department>
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<pubDate>Fri, 11 Nov 2011 11:31:46 PST</pubDate>
<title>And Then There Were Three: Bye, Bye EMI</title>
<dc:creator>Mike Masnick</dc:creator>
<link>http://www.techdirt.com/articles/20111111/10302916724/then-there-were-three-bye-bye-emi.shtml</link>
<guid>http://www.techdirt.com/articles/20111111/10302916724/then-there-were-three-bye-bye-emi.shtml</guid>
<description><![CDATA[ The major labels have been dropping one by one.  Of course, they never "die out" completely... they just get weak enough until someone buys someone else.  The Big Six became the Big Five when Universal took over Polygram.  The Big Five became the Big Four when Sony (formerly CBS Records) and BMG effectively merged.  And, now we're down to the Big Three as <a href="http://www.latimes.com/business/la-fiw-citigroup-emi-20111111,0,4778383.story" target="_blank">Universal and Sony pick off the remains of EMI</a>.  This was pretty much a foregone conclusion that there would be some sort of merger, when Citibank took over EMI after EMI defaulted on its debt obligations.  Universal is picking up the music division for $1.9 billion while Sony gets the publishing side for $2.2 billion.  Universal was already the world's largest record label, so adding the likes of the Beatles, Coldplay and Katy Perry to its roster must be appealing.  Of course, there's some concern among regulators that this raises antitrust questions, but I really don't see the issue here.  Universal Music has been self-imploding by failing to adapt.  I don't see how merging it with EMI will do much other than to allow it to continue to be a nuisance and continue to not understand how to embrace the internet.  Besides, spending $1.9 billion for more back catalog, rather than investing that kind of money into actually adapting?  If anything, this simply accelerates the decline of these labels.<br /><br /><a href="http://www.techdirt.com/articles/20111111/10302916724/then-there-were-three-bye-bye-emi.shtml">Permalink</a> | <a href="http://www.techdirt.com/articles/20111111/10302916724/then-there-were-three-bye-bye-emi.shtml#comments">Comments</a> | <a href="http://www.techdirt.com/articles/20111111/10302916724/then-there-were-three-bye-bye-emi.shtml?op=sharethis">Email This Story</a><br />
 ]]></description>
<slash:department>another-one-bites-the-dust</slash:department>
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