Given how much they are protesting that Pandora is trying to 'take money away from the artists', I'm sure they would have no problem whatsoever with an audit from an independent third party, to see how much exactly they pay the artists from all those licenses, and in particular to see if the increase in license rates was matched by an identical increase in royalty rates paid out.
Though neither of the top comments came from the big news of the week — the ongoing revelations about the NSA — several of the runners up did, and for editor's choice we'll highlight a couple of those. First up is That Anonymous Coward:
So a program everyone disavows is running and apparently has no oversight because they lie about it to their bosses.
So a program is running amok, but they are so terrified of looking soft on terror they are willing to sacrifice the law, citizens rights, and another person willing to point out the emperor is naked.
This is why the vast majority of Americans think you suck - it's because you clearly DO.
With as much respect as you seem to give us (read: none),
The American People
On the funny side, first place comes from our post about the lawsuit that has been filed to prove that Happy Birthday is in the public domain. Someone going by the name Cowards Anonymous offered up an anthem for the occasion:
Happy Lawsuit To You!
Happy Lawsuit To You!
This Song Is Public Domain,
Happy Lawsuit To You!
I still have my bootleg recording of a Rush concert back in '79. I still have it, but don't know where to find an 8 track player to turn it into an MP3. Oh well. I guess the damage is done. Rush will never be a sucessful band because of my illegal recording of them.
The real story here is whether the pianist learned to play by marking keys with letters and numbers signifying notes. We could be looking at a case of teaching techique infringement here. This is shocking.
Last week, we talked about the customer management challenge faced by successful crowdfunding projects. That's just one aspect of a broader issue that affects every online business and every creator trying to monetize their work: the more success you find, the harder it gets to manage and maintain that success. Connecting with fans and customers has always been the first half of our philosophy of success on the web, and it needs to be baked in to every business plan from day one.
As part of our sponsorship program with the CRM tool Insightly, we want to get feedback from our audience about the challenge of customer service and management online. We're looking for perspectives from both the business/creative side and the customer/fan side, plus stories of good and bad service experiences (everyone's got a few). Here are a few key questions to consider:
What changes someone from a first-time customer into a long-term one?
How do you scale personal service (something that makes a lot of startups stand out) with a growing customer base? How do you balance the retention of loyal customers with the acquisition of new ones? Same goes for entrepreneurial artists and their fans.
What's the best way to communicate with customers across the wide variety of channels that they use, from social media to email to good old fashioned phone calls?
What are the most important features for a CRM tool, and what kinds of other tools do businesses and creators need to manage their customer bases? In the previous sponsored posts, we discussed the lack of CRM features in the backer management tools included with Kickstarter - on what other platforms are creators and businesses going underserved?
Submit your thoughts, stories and responses in the comments below!
Sometimes, the best way to make a point is to channel someone else who already made it well. Such is the case with this week's most insightful comment, coming in on the post about the student whose science fair win attracted patent threats. Mason Wheeler passed along a quote about the folly of placing too much emphasis on being first:
What do men consider the most valuable of talents? One mentioned artistic ability, as you so keenly guessed. Another chose great intellect. The final chose the talent to invent, the ability to design and create marvelous devices. Aesthetic genius, invention, acumen, creativity. Noble ideals indeed. Most men would pick one of those, if given a choice, and name them the greatest of talents. What beautiful liars we are. In this, as in all things, our actions give us away.
If an artist creates a work of powerful beauty - using new and innovative techniques - she will be lauded as a master, and will launch a new movement in aesthetics. Yet what if another, working independently with that exact same level of skill, were to make the same accomplishments the very next month? Would she find similar acclaim? No. She’d be called derivative.
Intellect. If a great thinker develops a new theory of mathematics, science, or philosophy, we will name him wise. We will sit at his feet and learn, and will record his name in history for thousands upon thousands to revere. But what if another man determines the same theory on his own, then delays in publishing his results by a mere week? Will he be remembered for his greatness? No. He will be forgotten.
Invention. A woman builds a new design of great worth - some fabrial or feat of engineering. She will be known as an innovator. But if someone with the same talent creates the same design a year later - not realizing it has already been crafted - will she be rewarded for her creativity? No. She’ll be called a copier and a forger.
And so, in the end, what must we determine? Is it the intellect of a genius that we revere? If it were their artistry, the beauty of their mind, would we not laud it regardless of whether we’d seen their product before? But we don’t. Given two weeks of artistic majesty, otherwise weighted equally, we will give greater acclaim to the one who did it first. It doesn’t matter what you create. It matters what you create before anyone else. So it’s not the beauty itself we admire. It’s not the force of intellect. It’s not invention, aesthetics, or capacity itself. The greatest talent that we think a man can have? Seems to me that it must be nothing more than novelty.
-- Wit, The Way of Kings, Brandon Sanderson
In second place, we've got a response to NSA Director James Clapper's statement that publicly discussing the details of the NSA spying regime " will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions." That One Guy figured out how to best interpret this:
Makes sense if you swap in two words
If you take out 'adversaries', and replace it with 'the public', then his statement makes perfect sense, as an informed citizenry is and always has been the greatest threat to would-be tyrants.
For editor's choice on the insightful side, let's circle back to the post about the science fair winner, to highlight two comments (both from anonymous commenters) that made other good points about the situation. First up:
I seem to recall something about patents having to be "non-obvious to those skilled in the art" or something along those lines.
A high-school kid just proved that this particular invention is obvious to persons NOT skilled in the art. Patent application rejected.
You'd think instead of threatening a lawsuit they might offer the kid a job?
If she found technology to help/solve the problems the company has been sitting on for 20+ years (developed in 1980s and not produced by 2013?!), maybe they'd get more money from employing the student rather than suing them?!
On the funny side, we start out with this week's triumph of common sense: the grand jury refusing to indict the teenager who was arrested for posting some dumb rap lyrics on Facebook. An anonymous commenter took first place by cobbling together his own verse in response:
The kids rhymes were so bad, they put him in jail.
The jury filled with poets, got him out without bail.
This is a chilling effects cautionary tale.
Maybe the attorney in the case should send John one of those "settlement letters" offering him the opportunity to settle out of court for a sum of money (equivalent to roughly how much he's "earned" using the same technique).
Otherwise, the findings will be forwarded to his family, neighbors, etc. detailing what kind of person he is.
After all, an IP address == a person and if it's his, well...
Karma. Gotta love her.
For editor's choice, we start out with one more comment from that post about John Steele. Avideogameplayer suggested one possible alternative explanation:
Maybe it was Alan Cooper...
After all, he was responsible for practically everything else in this story...
And finally, since we started off with a commenter who passed along an insightful quote, let's end with a commenter who passed along a funny one. On our post about Morgan Pietz, a lawyer opposing Prenda in one of its ongoing battles, objecting to more typical Prenda tricks, Arsik Vek dug through the emails and found a great example of that formal passive-aggression that is the signature style of annoyed lawyers everywhere:
I love the line from Pietz' May 22 email
"I wanted to follow up and inquire: were you planning on complying with the Court's order, and, if so, when?"
Were you planning on complying... now them's fighting words.
A lot of the attention given to Kickstarter and other crowdfunding platforms these days has been spurred by the big runaway success stories — the Pebble smartwatch, the Double Fine Adventure, Amanda Palmer's project, and many others that exceeded their fundraising goals in the first few days and kept on climbing. The phenomenon is not limited to these multi-million dollar examples: countless smaller projects have shot past their more modest goals multiple times over.
Whether it's a $500 project that raises $10,000 or a $100,000 project that raises millions, the result for the creator is the same: a stunning success that has the potential to turn into a crisis or an even bigger opportunity, depending on how they handle it.
That's the other side of the double-edged sword that is success on Kickstarter, and it often gets ignored. If you're a creator with a product in the pipeline — whether it's software, hardware, an album, a film or anything else that takes time and work — and your plan is to raise some money while piloting it out to a few hundred people, suddenly having hundreds of thousands of paying customers on your hands can be more daunting than exciting.
Not only does the challenge of order fulfillment become much bigger and more complex (this is where a lot of campaigns fall down), there's also the issue of managing so many expectations. Hundreds of wall comments and private messages (some less polite and more demanding than others) start arriving, all while you're trying to finish the actual work. And that starts the moment the campaign picks up steam — meaning the actual money often won't be arriving for weeks.
Some creators have talked about the problem. Palmer Lucky, who kickstarted the Oculus Rift headset, faced the issue of excited backers drawn in by the popularity of the campaign who hadn't fully read the details, and were anticipating a more complete product than was actually promised. A 2012 study found higher rates of late delivery among overfunded projects.
A big part of the problem is the relatively lackluster backer management tools found on Kickstarter and similar services. Communication is a huge part of running a successful campaign, since things are bound to go wrong, but backers are almost always understanding as long as they aren't left in the dark. Runaway success projects — or at least the ones that still deliver — tend to move beyond Kickstarter for the hard work of customer management: they take the discussion to their own forums, they set up their own mailing lists and customer request systems, and they move more and more communication to more robust platforms (Kickstarter only offers blog-esque updates and an inflexible survey system). Apart from ensuring that a project delivers its goals on time, there's the fact that most crowdfunding campaigns are also about starting a business, which means hopefully converting lots of backers into repeat customers.
Ultimately, the success of crowdfunding campaigns seems to come down to how well the creators build and manage a community — and currently the crowdfunding platforms themselves can only play a small part in that.
There's no award for "stupidest analogy" in these weekly posts, but if there was it would go to a comment on our post about the RIAA's protestations that it doesn't stifle innovation, which compared music copyright with safety regulations in the auto industry. As it happens, the award we do have — for most insightful comment of the week — goes to Robert for his response:
Actually you can go into the automotive business. You can do so without worry. You must conform to safety laws with whatever products you produce and labour laws, but those are for safety, not legalized monopoly. Quite different.
Second, why don't you do that, design the perfect electric car, charges via solar panels, uses the ideas built upon the Panasonic battery patent owned by Chevron, so you can create a car that charges in an hour, has a 500mi range on full charge (6-8h) using standard 15A 120VAC power (likely more given the power required for such a range), all stored within a super efficient, lightweight, environmentally friendly, reliable battery (maybe scrap the Panasonic idea base and come up with your own). And the vehicle will be built in the US, by domestic employees whom are paid a decent wage (not GE's definition of a decent wage), and will be affordable, half the cost of Tesla's vehicles.
Then watch the legal shitstorm that follows you, from oil companies, car companies, all claiming you can't innovate like that, you're violating their bought laws, you'll kill the entire economy, and even if they haven't a legal leg to stand on, their money will bankrupt you back into the horse and buggy era.
Only then can you compare to what has happened thanks to Napster lawsuits and the attempts at innovation in the music biz.
Damn that pesky ethical duty to advise your client of significant developments ...
For editor's choice, we start out on our post about the fear-mongering report bemoaning the threat of IP theft in China. Jameshogg suggested the only true solution:
You know what would stop China having such a monopoly on piracy?
Reducing copyright terms.
Al Capone had a secret sympathy with the prohibition amendment, and we all know it.
I actually brought these numbers up in an earlier comment, but Mike wrote me to say he's doing a story on it, so I didn't say anything about it since then.
Now that the story's out...
Everyone who reads this site really should dig into the numbers. I actually spent a fair amount of time doing this, and the numbers are even more interesting than Mike makes them out to be.
For example: Between 1999 and 2002, there was actually an increase in the number of working musicians - from 46,440 to 53,940 (an increase of 7,500 jobs). Interestingly enough, these are the years that Napster was active; employment didn't start declining until after Napster was shut down.
Employment levels would not dip below the 1999 levels until 2010.
It's also interesting to look at they type of people employed by the "Sound Recording Industries." They did employ quite a bit of artists - but they were the type of artists who were graphic designers or illustrators (i.e. people designing advertising).
The sound recording industries have always employed more "suits" (management, business/financial employees, office administrators, etc) than artists. In many years, the number of musicians employed by the sound recording industries was so low, they didn't even report them.
Another interesting trend: it's no secret that the sound recording industries are in a bad way. There was an especially bad decrease in employment between 2008 and 2009. But since that decrease, the number of artists (and most everyone else) has declined, but the number of managers and businessmen has actually increased. Not everyone is equally affected, it seems.
Note: if you do decide to look at the numbers, you have to account for some wackiness at the BLS. "Musicians and Singers" wasn't even an occupational category until 1999.
Also, prior to 2003, the BLS used the SIC Division Structure, which lumped in the music industry into the "Services, not elsewhere classified" category. They switched to the current NAICS system for 2003, so that's as far back as you can go to get data for the sound recording industry specifically.
Just FYI. Or perhaps TMI.
For first place on the funny side, we head back to our post about Prenda's innerworkings. The former Prenda client commented that he got "uncomfortable feelings" from the lawyers, which Michael noticed was quite the indictment:
Take a moment and let that sink in. These lawyers were so shady that a PORN PRODUCER was uncomfortable with their practices.
"Turn around, bend over, stick this whip in here, move the goat a little to the left...boy, that John Steele guy is creepy.'
Our second funniest comment comes from Rikuo, on our post about the latest details in the case against Bradley Manning, in which it turns out the identity of one of the enemies he's accused of aiding is being kept secret. I have to admit I hadn't the faintest idea what he was talking about, though a quick Google search reveals it is an artful (I assume from the votes) reference to Stargate, a sci-fi property I'm not at all familiar with. So without further comment, here it is:
I know who it is.
The Goa'uld. About the only enemy the United States is at war with, that is kept secret from the general public. Thing is, they're not doing a very good job of keeping it secret, since they film their combat teams' missions and broadcast them on TV. Why, one of their top men is a dead ringer for MacGyver!
For editor's choice on the funny side, we start out on our post about the failure of NYC's stop-and-frisk program, where Roman suggested some PR wizardry:
I'm sure the mayor could drum up some good PR if he used the term "freedom frisks".
When we posted about the news that all the major movie studios had sent bogus takedowns over the Pirate Bay documentary, the apologists in our comments panicked, and started desperately scrounging for ways to downplay this latest example in the long history of DMCA abuse by Hollywood. Their favorite approach was to claim that because many other DMCA takedowns are legitimate, the multiple examples where they are totally illegitimate and used to stifle free speech just don't matter, and aren't even worth discussing. It was the response to this preposterous notion that spawned both of our most insightful comments of the week, with first place going to RD:
Ok so what have you learned? You have learned that:
A) the *IAA's have issued false DMCA takedowns that are ILLEGAL and a violation of the law, but since this only happens (according to you) in about .1% of cases, its perfectly OK to ignore BREAKING THE LAW since *most* of them are not.
which leads you to the inescapable conclusion that:
B) It is PERFECTLY OK to violate the law, as long as that violation is a MINOR amount compared to the whole.
Which means that:
C) You have ZERO principles and following the law is OPTIONAL for you, and it's simply a matter of negotiating by what degree of violation you are engaged in.
Which brings us to the final conclusion:
Since the VAST MAJORITY of people (ie the population) are NOT engaged in infringing activities, the few "outliers" are too small to have an impact, and therefore its OK for them to violate the law in THE EXACT SAME MANNER IN PROPORTION that you are swinging in here to defend the *IAA's EXACT SAME actions.
So by your own logic, you shouldn't be supporting those who go after infringers. QED.
Highlighting the valid use of a law? Really? There is no need to highlight when a law is used properly. There IS a need to highlight when a law is abused so that we can try and refine and amend it to ensure it does not get abused.
In practice copyright is used:
* to censor undesirable speech
* to prevent you from owning what you bought
* to prevent competition (even when copyright itself is not at issue)
* to make outrageous but bogus claims (I have the copyright on this feature, this flavor, this color, this style, or over plain hard facts).
* to limit growth of the public domain through abuse of copyright length
* to destroy the public domain by re-copyrighting it
* as a tool to accuse and send extortion shakedown settlement letters, aka "copyright trolling", (see practitioners: Prenda, Righthaven, MPAA, RIAA)
* to prevent fair use of any kind, no matter how legitimate that use may be
* to enable "collection societies" to collection on works they do not own
* to enable "collection societies" to shakedown people's private use of the radio (or other music) in a public location
* . . . and other things I'm sure I've missed
Copyright bad? Does it need reform? Don't even think such a thing!
And what does the military train people to do retired Lt. Col? Go to the middle east and have picnics with and dances with our enemies?
Sure it's not teaching people to go up and shoot random Americans in the street, and most military people are law abiding citizens, but some of them do kill innocent Americans and commit violent crimes. Just like some violence video game players do those things, but most don't. By your same logic we should therefore be blaming the military for violent crime done by people in the military.
On the funny side, we start out on the not-so-funny story about high school students being arrested for throwing water balloons. One commenter wondered what the penalty would be for the related lark of kids throwing each other into the river, and Baldaur Regis took first place with his response:
In the US, throwing meat balloons is a Class A misdemeanor. If the meat balloon is less than 147 cm (4' 10") in height, the offense is classified as dwarf tossing, a crime punishable by having to appear in a FOX TV reality show.
For second place, we head to the somewhat-funnier story about a would-be murderer foiling his own plot via a butt-dial to 911. Someone parodying our more socially maladjusted commenters under the name average_horse_of_the_blue racked up lots of points by echoing a currently-trendy trolling tactic:
At no point in this story does Mike say that murder is wrong. He's a murderer apologist. He parses words. Words bad.
He's words apolologist.
For editor's choice on the funny side, we head to our post about news agency AFP making some major errors in its reporting about Kim Dotcom's recent patent threat. We were quite surprised that a couple of commenters viciously defended AFP's error, and doubly so when one claimed that reporting on baseball while calling runs "touchdowns" would be no big deal. This prompted an anonymous commenter to do some reporting of his own:
A famous hockyball player claims to have the greatest number of homedowns in a single quarter. News at 26 o'clock.
And finally, with the fallout of Prenda's despicable tactics continuing to pile up, some people have strangely claimed that we only applaud justice in that case because Prenda is "anti-piracy" (which they are most definitely not, since piracy was the source of all their money) and Techdirt is "anti-copyright". On one post, Matthew Cline snuck in first with his own deduction based on such accusations:
Wow, it's amazing how many judges are anti-copyright!
That's all for this week! We're off tomorrow for Memorial Day, and back to business as usual on Tuesday.
As we learned (though were hardly surprised by) this week, the MPAA doesn't take kindly to the suggestion that it should have to consider fair use when sending DMCA notices. The irony of this was not lost on anyone, and indeed both of our most insightful comments of the week came from that post, both of them making the same point. First up, Tim K's opening salvo:
Difficult for MPAA to differentiate between infringing and non-infringing material, but everyone else should still easily be able to know immediately what's infringing.
Interesting. If it's ISPs magically waving away infringement, it's really easy to figure out infringement from non-infringement. If they have to do it, it's too hard.
It's certainly a point that bears repetition. But there's another important point to be made on that same story, in response to the MPAA's claims that they need to send millions of DMCA notices. So our first editor's choice goes to Rikuo for covering that base:
No they don't. There's a myriad of other tactics they can use. There is no requirement that they absolutely, positively have to send DMCA notices.
For our second editor's choice, we head to our post about Eric Holder, who is also making bold statements about intellectual property. This time, it's the idea that piracy funds terrorism, which made a different Eric (I assume) wonder what exactly he's saying:
So if I understand this correctly:
1) Infringement is all over the place, thus making it difficult to monetize content, which leads to the need for these laws
2) Terrorist are able to fund themselves via monetizing this infringing
3) Which leads to the final logic that terrorist are able to monetize content that is available everywhere better than the producers of the content???
On the funny side, we've got a pair of winners from two different posts about major players in the Prenda saga. First up, when we asked whether Paul Duffy's wife admitted that he was engaged in interstate extortion, Arsik Vek anticipated Duffy's response:
Duffy's next comment: "I'm not sure who that woman is. She may or may not be my wife, but I have no direct knowledge of any relationship."
"Where can I sign back up for my monthly $50-80 cable bill so I have access to these wonderful services"
-No one. Ever.
And finally, since we've been oh so serious and scathing today, we'll finish things off with something a bit sillier. In response to our post about people not turning off their devices when they fly, one anonymous commenter dissented, but for pragmatic reasons:
I generally do. I just don't have the coordination to flap my arms and mess with my smartphone at the same time.
This is the way the post ends: not with a bang but a groan. See you tomorrow, folks!
There's a lot of buzz about Sen. John McCain's proposed Television Consumer Freedom Act (pdf and embedded below), a bill designed to encourage cable companies to unbundle the TV stations they offer, and force the networks to do the same. It also takes away the weak bargaining chip that some networks have attempted to play against Aereo, in which they threaten to pull their broadcasts from the open air, by making them sacrifice broadcast licenses in order to do so.
Everyone on the consumer side agrees that they'd like to have à la carte choices from cable companies, but beyond that there's no shortage of debate as to how effective the bill is likely to be and whether the end result would actually be any better for those consumers. The television market is badly distorted at all levels by monopoly interests and those whiffs of not-quite-collusion by groups of companies with a shared interest in maintaining the status quo, but is this bill capable of overcoming that? And is the practice of bundling really at the heart of the problem, or just a good public face for the deeper issues?
This is hardly the first attempt to stop the practice at either the network or cable provider level. Some courts have already found bundling by cable providers to be legal and not anticompetitive; meanwhile Cablevision is currently pursuing an antitrust suit against Viacom for the network's bundling of stations that it sells to providers. Most of the details of the latter are under seal, but one notable point is Viacom's claim that it already offers channels individually, they just cost way more. If that's true of all Viacom's content, then it wouldn't be affected by McCain's bill anyway, which still permits bundling as long as there is an à la carte option.
And even if it's not true, it just underlines the core problem of this approach: the bill doesn't give networks any reason to make individual channels affordable or desirable. They either already offer an expensive à la carte menu that nobody orders from, or they could easily do so. Moreover, it's not as though the justification for bundling offered by the networks is completely falsified: they can spend more money on niche channels and programs by subsidizing them with the revenue from more broadly popular fare. Of course, it's not as though that justification isn't exaggerated and twisted to suit their needs either, nor is it true that the same fundamental idea couldn't exist without bundling. Networks get more value from niche programs than just transmission fees: they care about audience reach, brand-building, competing with other forms of content, accumulating accolades for prestige shows and even, believe it or not, making good television. There's no reason their businesses could not be structured to continue subsidizing niche programming with popular programming in a slightly less direct manner.
So the final solution, as always, needs to be found in the market — and that's already happening. Basically every single noticeable trend in media consumption habits, not just in television but in music and publishing and every format, points towards a more à la carte world. It's not news that the networks and cable providers have dragged their heels on this in the hope of milking their incumbent position a bit longer, nor is it news that they are privately a lot more freaked out by the cord-cutting movement than their public statements admit. Ultimately, it will be consumers making choices that force these companies to either adapt or perish.
But for that to happen, innovators do need to be able to actually give the consumers those choices. If the market has become so badly distorted that innovators are being locked out, then legal action and new laws are needed. And that's why the aspect of the bill that is likely to be the most effective (not to mention the most interesting) is the way it all seems to come back to Aereo.
The fight that Aereo started sits at the core of almost everything in the bill. Network owners don't like Aereo because they don't want to lose their retransmission fees from cable providers. Cable providers don't like Aereo because they don't want to lose the appeal of the major networks which, despite the ascendence of cable channels, still sit at the core of their service bundles — and because, generally, they don't want cord-cutters to have more options. McCain's bill basically says: Aereo or no Aereo, consumers need choices, and they're going to get them, whether you like it or not.
Is it a worthwhile step? Yes — or, at least, it's hard to see how it could do any harm, even if it does prove ineffectual. Is it the best approach? No. It almost feels like a bet on Aereo's failure. If Aereo were permitted to innovate, rather than being forced to jump through endless technological hoops and still spend more time in court than in the workshop or the boardroom, then the market would already be giving consumers what they want and pushing the networks and cable providers to become more competitive. If there is to be legal reform, it shouldn't be another layer of conditions and caveats on broadcast licenses and the retransmission fee structure that attempts to force the hand of the networks and cable companies, it should be a clarification (and probably a relaxation) of the rules, removing the legal and regulatory uncertainty that holds disruptive startups back. Television doesn't need a Consumer Freedom Act — consumers already have lots of freedom, they just don't have many choices in how they exercise it. The heart of McCain's bill is in the right place, but a Television Innovator Freedom Act is what we really need.
We've got a pair of doubles this week, with both of the most insightful comments coming from one post, and both of the funniest coming from another. On the insightful side, it all happened on our post about the NYPD sergeant who said that guilty-until-proven-innocent is the price we pay for freedom. Squirrel Brains flew in the face of nominative determinism and delivered our most insightful comment of the week:
In my view, these comments by Sgt. Mullins make him a terrorist. He is advocating a philosophy calculated to terrorize the general citizenry and take away out fundamental rights. Why use bombs when you have the power of the NYPD behind you?
The message shown at around the 10 min, about "You can still watch your cat videos for free" just offends me. The implication there is, that on Youtube, there's only the low-quality no-intelligence-required cat videos. There's not. There's vast swathes of great videos, from reviewers to whole educational lessons.
Of note is that this is "Gaijin Entertainment" (http://www.gaijinent.com/), makers of the MMO-flying-sim War Thunder, not "Gaijin Games" (http://gaijingames.com/), makers of the BIT.TRIP series.
You'd think people would be more confused with these two, as opposed to some random website that just happens to use http://www.gaijin.com...
That post also happens to be the one that yielded both of our funniest comments of the week. Up first is S. T. Stone with a simple observation:
And the Japanese all had a laugh about how a bunch of gaijins ended up fighting over the word "gaijin".
You know who's a true Techdirtian? Hitler, that's who.
...
What do I win?
First up for editor's choice on the funny side is a much deserved nod to an anonymous commenter whose observation about the Prenda ruling was so amusing that we wrote a post about it:
Don't miss the hilarity of footnote 5: "This punitive portion is calculated to be just below the cost of an effective appeal." Now that's fucking funny.
Method 1:
Look around and check if there are medkits lying around. If there are, try walking over one.
Method 2:
Try yelling "Medic!" or "Excuse me! I'm in need of medical attention!" and see if a doctor wielding a nailgun shows up. If he does, make sure his shirt color matches yours before he applies "treatment".
Method 3:
If your vision is obscured by a pulsing red glow, try waiting it out. The wound will heal itself, unless you take damage from other sources.
/Disclaimer: It's been a while since I needed to treat gunshot wounds, so might knowledge might be a little outdated
(This method is especially effective for self-inflicted rocket wounds.)
As part of our sponsorship program with the Application Developers Alliance, we're highlighting some of the content on DevsBuild.It, their new resource website, that we think will be most interesting to Techdirt readers.
We've talked a lot about the tax on innovation that patent trolls create, which is well-known inside startup circles but often misunderstood by the broader public, thanks to the pro-innovation rhetoric of high-profile trolls like Intellectual Ventures. The conversation is getting more attention lately, especially with the recent news of Senator Schumer's patent reform bill which specifically aims to fight the patent troll problem, and this interview with an anonymous developer from a tech startup offers some perspective from someone who is directly affected by the issue.
"Immigration & Custom's Enforcement (ICE)"
Uh, sorry, but that's not what it stands for.
Industry & Corporate Enforcement.
Please make note of this in the future, for accuracy. ;)
And as long as we're talking about people who seem very confused about the business they are in, we have to mention CBS and its threats to move to cable if Aereo is declared legal. An anonymous commenter took the second most insightful spot by parsing their confusion:
Content paid for by advertisers so let's shrink our audience for our advertisers because we hate that someone is expanding our advertisers' audience, nyah!
Stupid, stupid people.
Indeed. And for the first editor's choice, we continue that line of thought by going to Beech, who broke it down in more detail:
What I can't understand...
Money earned directly from someone watching via antenna: $0
Money earned directly from someone watching via Aereo: $0
Wait...what? So they make the same either way? Oh, they make money off of advertisers buying time on their network. Time becomes more valuable the more people watch it. So...
Number of people watching CBS over the air: X
Number of people watching CBS over the air + over Aereo: >/= X
Wait...what? So more eyeballs? Shouldn't that mean more ad money? Maybe there's a problem determining the ratings?...
OTA ratings: Compiled by Neilson based on a tiny sample group that we pray is representative of the whole.
Aereo ratings: Aereo could technically (and probably does)count EXACTLY how many viewers are watching when/for how long/and from where in the world.
So...in a business of selling eyeballs, Aereo dumps a huge truck load of eyeballs on their doorstep and gets sued over it. On top of this CBS's own eyeball inventory is awfully inaccurate and Aereo's drop has an immaculate inventory sheet attached. And Aereo still get's sued.
And now, on top of everything, CBS is threatening to remove itself from the eyeballs of a bunch of viewers, to prevent the eyeballs of a BUNCH of other viewers from seeing them in a way they don't care for? In a business where eyeballs = money?
This case makes less sense by the minute.
And for our second editor's choice, we head to the latest ramblings of Jaron Lanier, from whence there is one more winning comment to come. JEDIDAH provided some general context to the raging debate by reminding everyone about the dirty truth of old school publishing:
If you know someone that is making a mint as a creator then both of you are very lucky. Most artists never even get accepted by a publisher. If they are lucky enough to get accepted by a publisher, they may never strike it big enough to pay back their advance. Chances are, they will have to do their own marketing as the publisher won't lift a finger for them.
Authors like King and Rowling are lottery winners.
Even seemingly well established authors end up doing their own promotion schlepping to cons of various kinds and making a pittance in the process.
The old system isn't really what it's cracked up to be.
This becomes readily apparent if you actually bother to seek out the talent and listen to them.
Jaron Lanier: Why people should pay more attention to me and not Web 2.0
When I noticed myself getting mean online I thought, “Something has gone terribly wrong.” It was obvious the rest of the ARPAnet had a social problem, not just me being some sort of asshole.
My book You Are Not A Gadget: A Manifesto is ruffling virtual feathers across the ARPAnet. And so it should, because I invented virtual reality. Wikipedia, which is a tissue of lies, says so. Prospect magazine’s Top 100 Public Intellectuals Poll lists me. Also, my hair is much better than yours. And I’m fifty. According to Wikipedia, so I’d better change my birthday.
Today, the web is a bland place. It’s all user-generated content — silly clips on YouTube, spiteful anonymous comments on blogs about my books, endless photographs of people at a bar with their friends or up a mountain with an ironing board. It was much better back in the early days of the ARPAnet, before we let the commercial users on. These words will mostly be read by numb mobs composed of people who are no longer acting as individuals. You know, the peasants. Virtual reality is far more ennobling, but you never hear people talking about that any more.
The ARPAnet only creates banal mashups of old culture. Salvagers picking over a garbage dump. Only the old-world economy of books, films and newspapers creates original content like Lawnmower Man or Battlefield Earth. Everyone knows that real artists have no influences. This stuff the kids are into these days is just noise!
The ARPAnet is also killing music, according to my good friends at the RIAA. Did you know there’s no music in Spain any more? It’s true!
Will we — meaning I — be able to live off our brains in the future, or will we just have to give our creative works away for free? If we can’t live off our brains then we’ll need a form of SOCIALISM just to survive. WIKIPEDIA IS COMMUNISM! Until the Wikipedia Corporation finally builds a good interface, for goggles and power-gloves.
Open source and open content are a cancer. The dogma I object to is composed of a set of interlocking beliefs and doesn’t have a generally accepted overarching name as yet, so I’m going to call it Digital MAOISM, which is COMMUNISM. Update, five years later: Here is a detailed retcon explanation of why I was not just trolling for headlines by calling Wikipedia COMMUNISM, but was speaking precisely and you just weren’t thinking hard enough: [snip 10,000 words]
Also, you should get into virtual reality more.
(You Are Not A Gadget: A Manifesto is published on papyrus scroll and hand-illustrated by monks. You cannot have a copy until you have fought your way up the mountain and proven yourself worthy.)
And in second place, we've got a comment on our post about the removal of a bunch of Warner Bros titles from Netflix. Khaim explained why we should take it easy on the Bros:
To be fair to Warner Bros, Netflix's business model of "provide a useful product at a reasonable price" is incredibly harmful to their profits.
For editor's choice on the funny side we remain in Hollywood, this time with the news that Universal responded to a lawsuit about underpayment by saying it actually overpaid. Or, as an anonymous commenter put it:
Universal: We COULD have pulled even more accounting tricks to pay you even less, so we actually overpaid you.
And finally, we return to our post about silly cable threats from CBS. This comment actually got lots of insightful votes and almost no funny ones, and while it is indeed insightful, it also made me laugh the moment I read it, so here it is as the final editor's choice for funny:
Go ahead, CBS. Give the people back its spectrum. That'll teach 'em.
Today, the USTR released its 2013 Special 301 Report (pdf and embedded below), the notorious "watchlist" of foreign countries where intellectual property is supposedly in danger (which is in fact just a self-serving diplomatic pressure tool). Ukraine has been dubbed enemy number one, with Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand and Venezuela on the priority watchlist, so expect the diplomatic push for American-style IP laws to intensify in those countries.
One thing to note is the fact that Spain succeeded in staying off the list. As we recently noted, the Spanish government has essentially admitted that its recent copyright reform efforts were designed entirely to keep the country out of the 301 Report. Well, it looks like they got their wish, and all they had to do was sell out their country to US interests. Nobody will be able to say that they sit on a list of dirty thieves alongside backwards pirate nations like Canada and Finland, which brazenly ignore the kind US diplomats who surely have our best interests at heart. Congratulations, Spain!
from the putting-the-cybercart-before-the-horse dept
With CISPA dead (mercifully) from a critical case of Senate disinterest, the conversation has inevitably turned to what the next cybersecurity bill should look like. Over at Wired, Julian Sanchez has laid out some guidelines for a cybersecurity bill that actually works, achieving the stated goals of CISPA without butchering civil liberties. His key point is that, according to CISPA's authors, the bill's sole purpose is to let companies and the government share technical data (or as Dutch Ruppersberger adorably called it last year, "formulas, Xs and Os, the virus code") to help shore up network security and anticipate major attacks — and there's no real reason that has to conflict with privacy at all.
Few object to what technology companies and the government say they want to do in practice: pool data about the activity patterns of hacker-controlled “botnets,” or the digital signatures of new viruses and other malware. This information poses few risks to the privacy of ordinary users. Yet CISPA didn’t authorize only this kind of narrowly limited information sharing. Instead, it gave companies blanket immunity for feeding the government vaguely-defined “threat indicators” — anything from users’ online habits to the contents of private e-mails — creating a broad loophole in all federal and state privacy laws and even in private contracts and user agreements.
...
There’s no need to share [personally identifiable] data for security purposes anyway: Kevin Mandia, head of the cybersecurity firm Mandiant, insisted at a February hearing on CISPA that in 20 years in the industry, he had “never seen a package of threat intelligence that’s actionable” that included personally identifiable information.
Sanchez suggests some straightforward basic requirements for a cybersecurity bill that might actually get consensus from privacy watchdogs and the broader public: the removal of personal information before data reaches the government, a limited lifespan on the data (CISPA's authors have stated that real-time information sharing to deal with immediate threats is the key point of the bill anyway), and the ability for companies to respect their contracts with customers. As written, CISPA would have exonerated service providers from keeping any promise they made to not share user data. Even a service provider that wanted to offer you the contractual certainty that they would protect your data would have been unable to do so.
The reason for that is a key piece of language that's been drifting around CISPA since the beginning: "notwithstanding any other provision of law." There are lots of bits and pieces to the bill, but that line is the exemption granted to companies that wish to share cyber threat information with the government, and it's incredibly broad, allowing companies to ignore even the contracts they have with their customers.
So why is it there? That's the question nobody seems to want to answer, and that's the real issue with the whole push for cybersecurity legislation. Supposedly, according to the message that has accompanied CISPA and similar bills from the beginning, companies and the government are currently prevented from doing some harmless, common-sense information sharing to improve network security, because existing laws block such sharing. But... what laws? That has never been clear. Why does CISPA need to provide immunity "notwithstanding any other provision of law" rather than simply creating specific exceptions to the specific laws that are causing a problem? Why has nobody in Congress even been able to point out these problematic laws?
Perhaps it's not just one or two laws; perhaps it's a whole cluttered legal framework that can't easily be cleaned up and needs some broad, sweeping exceptions. But... nobody has made that case either. They just keep saying, non-specifically, "existing laws prevent it". And yet we know that's not true, at least to some degree: the FBI has had a system for sharing threat information back and forth with companies for 15 years. Why is that model not sufficient? Again, if there are reasons, nobody in Congress is offering them.
I'd like to say Sanchez's guidelines make an excellent starting point for cybersecurity legislation, but a starting point for legislation has to be a definition of the problem it's trying to solve, and we still don't have that. Nevertheless, they do serve as an excellent set of rules to hold Congress to if it is really so intent on barreling forward blindly. Cybersecurity grandstanders are likely to say that such restrictions would gut the legislation. Whether that's ignorance, cognitive dissonance or a tacit admission of dishonesty I'm not sure, but the restrictions suggested by Sanchez, the EFF, the ACLU and others would do nothing to hinder CISPA's stated and largely innocuous purpose — they would only interfere with the other much scarier potential uses that Congress insists aren't going to happen.
The longer Congress offers only the vaguest of vague definitions of the problem it's trying to solve, while at the same time seeming to betray even that vague definition with its response to suggested safeguards and restrictions, the harder it gets to afford them even one iota of trust on the subject of cybersecurity.
The political debate in Canada is heating up, with the Conservative party recently launching a series of attack ads aimed at the new Liberal party leader, Justin Trudeau. Whatever you think of these kinds of ads — and I am of the mind that it sucks to see them getting more and more popular in Canada, no matter which party is using them — former Liberal leader and current Liberal MP Stéphane Dion has now shown everyone how not to respond to them. In a letter to Canada's election regulators, Dion has presented the incredibly twisted argument that the footage in these ads violates copyright law, which makes it an illegal campaign contribution:
Recently, the CPC used footage owned by the Huffington Post and CTV in a television advertising campaign directed at the Liberal Party of Canada. These advertisements are being aired nationally, including in Labrador where a by-election is currently being held. I understand from media reports that the CPC is using this footage without the copyright holders’ permission and presumably without paying the copyright holders to license the material. I understand that the licensing of copyrighted materials ordinarily comes at a cost.
I am raising my concerns with you because the CPC’s unauthorized use of this material, while inconsistent with our country’s copyright laws, may also be non-compliant with the Canada Elections Act (the “Act”). In my view, the unpaid use of copyrighted material is a “non-monetary contribution” to the CPC, as defined in s.2(1) of the Act.
We've seen lots of people try to use copyright for the sole purpose of shutting down criticism before, but this situation is unique because of just how weird Dion's argument is. He's not actually asking for the Conservative party to be penalized for infringing on copyrights, or for the commercials to be blocked because they are infringing — how could he? He's not the copyright holder. Instead, he's claiming that making unauthorized and also unpaid use of the footage constitutes accepting non-monetary campaign contributions from CTV and the Huffington Post, and is asking for an investigation based on election rules.
Firstly, this just makes the Liberal party look insecure. It's hard to believe there is any real concern about this as a campaign funding issue — it's an attempt to shut up critics, plain and simple. More importantly, commentary and criticism are protected under Canada's fair dealing laws just like they are under America's fair use laws, which rips the foundation right out from under this argument. The Conservatives have every right to use the footage in this way without a license, but Dion's request hinges on the idea that they didn't pay for a license when they should have. Even if that were true, the idea that using something without permission counts as a "contribution" from the rightsholder is bizarre on the surface and likely to baffle most people — even if the definitions in the Elections Act make it at least conceivable that such an argument could prevail. In a battle for the people's approval and support, devious policy tactics don't look any better than aggressive attack ads.
Moreover, what exactly does Dion want here anyway? For Elections Canada to start investigating a civil copyright issue that hasn't even been raised by the people with standing to do so? How would that even work? Without an accusation of copyright infringement from CTV or the Huffington Post, there's no basis on which to investigate this. So far, the only word from the two news organizations has been to confirm that they didn't give permission, and that they have "made our concerns known" — they haven't even actually said they think the use was infringing, let alone brought a lawsuit. And if the Conservatives were sued over copyright, and a court found them guilty of infringement and ordered them to pay, would this still be an illegal campaign contribution? Dion's whole argument is petty at best, and utterly paradoxical at worst.
It was only a short news update, but nevertheless an important milestone: Iceland's supreme court upheld the ruling that ordered Visa to start processing payments for Wikileaks again. In that post, we asked how long it would take for US diplomatic pressure to start changing Iceland's attitude, and Karl's answer became our most insightful comment of the week:
Hopefully long enough such that Wikileaks can recoup its operational costs... and continue practicing the free speech ideals that the U.S. is merely preaching.
I wholeheartedly agree. I made a decision a long time ago to use my mind to its fullest whenever I could. I'm not going to cover my eyes and pretend we don't live in a world where nearly everyone could have access to nearly every bit of culture and every idea for very little cost. We do live in that world now, and thinking anything less is exactly that: stupid.
For the editor's choice comments, we look to the important ruling that came out this week, declaring much of Richard Prince's appropriation art to be fair use. There was a lot of discussion in the comments about whether or not artists should ask for permission to use the work of others, and I wanted to highlight two excellent responses to the question "why not just ask?"
Yes, it really is that hard to ask permission. Creativity is "of the moment" and if you waste time finding the name of the person who did the photo or whatever you're basing your work on, trying to find a phone number or email address or snail mail address to somehow contact them, then asking, then waiting patiently for the person you've asked to eventually get back to you and not bothering to act on your impulse because you might not get permission so it will all be a waste of time, you've lost the creative spark. And anyway, artists, who are usually rebels at heart, have never before had to do this asking permission thing that our current "Mother, May I?" society seems to be moving towards in all of human history, so it does seem to throw a monkey wrench into the machinery to suddenly demand that asking permission must part of the creative process.
Yes, let's look at Weird Al, I do love the guy, but he runs into vexing problems with permission all the time: an artist will suddenly made believe he didn't give permission because of embarrassment (Amish Paradise), or a well-meaning agent or assistant of a famous star tell him he's going to ask and then not bother to ask, then tell him she said "no" (there was a very annoying bit of a brouhaha with a Lady Gaga song where Al released the song without permission and only got permission when she heard it later.) Also, Weird Al is famous and 99.9% of all artists are not famous at all and will get the brush-off and completely ignored from the very first "may I?" on.
Plus, sometimes people who are established believe, true or false, that it is not in their financial interests to encourage very talented people who are NOT established, and established artists refusing to give permission for works that have entered the culture and pinged with talented people is a great way to stagnate your culture. If American artists had refused to let the Beatles creatively work off of American songs, we'd have had no British invasion. Conversely, if the Beatles had refused to let American and other British artists creatively work off of their songs, we'd have had no great music revolution of the 60s. If Paramount had clamped down on the fans who gave conventions and wrote fanfiction in the early 70s (as I'm totally sure they'd have done in today's legalistic climate), there'd have been no great Star Trek cash cow for them to milk to this day. Because nobody asked nobody for permission back then, they just *DID THINGS* and everybody prospered.
So that is what's wrong with getting permission. And if an artist is denied, moving on to something else can be a problem, because sometimes creativity drives itself, and it's going to get expressed one way or another, with or without permission.
There's a long, nuanced and interesting answer to this question. Much of it is contained in the amicus brief attached to the appeal, which is well worth reading.
The short answer is:
a) Artists who do ask are often denied permission. Copyright was never meant to be used as a tool of censorship, or to suppress other, new creativity, but that's what happens.
b) "Steal" is a loaded and inaccurate term. Since the beginning of time artists have used, reused, modified, and built upon one another's work. To use the famous example of Manet's Olympia, the painting could not exist without Titian; Titian in turn "stole" from both Raphael and Raimondi; and Raimondi "stole" from an unknown classical Roman sculptor. That's how creativity works. It cannot function in a vacuum. It cannot thrive in a permissions culture.
Of course, the real question is not why they shouldn't get permission, but why they should. Speech should be as free as possible by default.
On the funny side, we start out with the story of how 1-800-CONTACTS is using the patent system to kill an innovative start up. An anonymous commenter takes first place with a quick quip in response:
You could say that the CEO is being...
Incredibly short-sighted.
For second place, we head back to the Richard Prince ruling, where another anonymous commenter laid down the law:
Artists shouldn't steal from other artists, ever. All artwork should be 100% original, all the time, or else art will surely die.
And I should know because I'm a lawyer.
For editor's choice on the funny side, first we head to the news that Germany's Deutsche Telekom is tossing net neutrality out the window by throttling competing video and voice products on its network. Yet another anonymous commenter connected this with some other recent news:
Next Headline: Google announces its fiber service is moving into Berlin.
"But Mr Dent, the plans have been available in the local planning office for the last nine months."
"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."
"But the plans were on display ..."
"On display? I eventually had to go down to the cellar to find them."
"That's the display department."
"With a flashlight."
"Ah, well the lights had probably gone."
"So had the stairs."
"But look, you found the notice didn't you?"
"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'."
That's all for this week. See you tomorrow, and until then, don't panic.
Last Saturday, I posted The Copy Culture Cryptic Crossword, just in case there were any cryptic fans in the Techdirt audience. It turns out there are quite a few, including at least one AC who almost solved it in less than 24 hours. All in all it was a great response, and while I can't promise regular cryptics on Techdirt, I will definitely try to put another one together in the not-too-distant future.
But, for now, it's time to reveal the solution to last week's puzzle. The completed grid is below, followed by a list of answers. I've used some basic notation to show how the answers were arrived at wherever it's easy to do so in a self-explanatory way; as for the rest, I'll answer any questions (and accept any criticisms for sloppy clue-writing) in the comments! One reasonable concern was already raised, which is that BMG is not quite a "collection society" by definition, and on that one I offer a mea culpa.
ACROSS
1. Kick start (4) BOOT
3. Right after six, America gets infection (5) VI+R+US
6. With acknowledgements, reveals modification (4) HACK
8. Collaborated on and bragged about bad grade at bad church (12) CROW(D+SOUR+C)ED
Even up here in Toronto, winter is starting to give way to spring. Among other things, that means getting around is becoming a lot easier — and a lot more fun. It's the time of year that cities start to fill up with people on bikes, boards and blades, all of which are things that people keep on tinkering with, coming up with new improvements and twists on old ideas. Whatever your manual wheels of choice, here are three innovative new ideas that could change the way you roll:
Wheels In Your Pocket: The ABGO
Sometimes, circumstances preclude you from bringing your chosen ride along somewhere. It can be downright infuriating, as you realize how woefully slow your legs are without some mechanical assistance. Enter the ABGO, a short-distance quick-fix that fits in your pocket.
I'm sure some people will have the reaction that this is pointless, and ultimately it's hard to pass judgement on something like this without getting to try one out — but as a cyclist, the sight of this immediately spoke to all my memories of crossing a distance without my bike and wanting nothing more than to roll. There have been various attempts at wheeled shoes over the years, but none that are very compelling. If it works even reasonably well (and the video suggests it does once you get the knack of it) it could actually fill a nice little gap: a wheeled device that isn't bulky like a skateboard or hard to get on and off like rollerblades.
Wheels Where You Want Them: The Beercan Board
About 10 years ago, I worked in a skateboard store for a couple of years. I was never very good at the sport itself, but I sure got lots of practice putting them together, and at convincing skeptical parents to stomach the price tag. Two things I noticed about skateboards was that there is very little variety in their configuration, and also that they all break — often quickly. The Beercan Board changes both those things.
It's not the first aluminum longboard, but it's a great design, and its central feature is pretty innovative: sliding mounts for the trucks, so the wheelbase can be easily adjusted. Judging from the video, it looks like it's accomplished with a combination bolt that allows quick changes without removing the whole assembly (and of course without drilling new holes, which is the only option on most boards). Neat.
Wheels That Work Better: Loopwheels
Folding bikes and other compact cycling options have been around for a long time, and they can be excellent for certain uses — but there's just no denying that the riding experience is much more frustrating and tiresome on those little 20" wheels. The Loopwheel is a shot at alleviating that problem.
As the project page admits upfront, this is nothing less than an attempt to reinvent the wheel. Using springs instead of spokes could open up a whole new level of suspension for compact bike designs that aim to keep size, weight, and bits-that-stick-out to a minimum. The creators claim a distinct advantage over suspension forks, the current solution for compact suspension: Loopwheels offer tangential suspension that cushions impacts from all directions. Again, it's hard to say how big the difference is without trying it, but that assertion makes sense based on the design, and in the video the wheels appear to be quite effective. Nothing could make small wheels as luxurious to ride on as big ones, but any innovation that succeeds in making folding bikes more pleasant is bound to be a hit.
That's all for this week's awesome stuff — thanks for coming along for the ride.
It was over a year ago when we last wrote about Richard Prince, the famous appropriation artist who was sued by photographer Patrick Cariou, whose photos Prince had used in various collage paintings. In a very troubling ruling, the judge in that case rejected Prince's fair use defense in a summary judgement, and ordered all 30 relevant works be turned over to Cariou to be sold or destroyed as he saw fit. This was a shock to the art world, where appropriation art has been a popular and highly-respected art form for years, with Prince as one of its best-known practitioners.
Today, we get some good news: the appeals court has overturned the decision (pdf and embedded below) and found 25 of Prince's paintings to be fair use, while sending the other five back to the lower court so the fair use defense can be properly considered rather than summarily dismissed. There are a few oddities in the details, but overall this is a fantastic ruling that includes some excellent language about fair use.
One of the most disturbing parts about the earlier ruling was that the lower court completely dropped the ball on its interpretation of fair use, incorrectly stating that in order to qualify for fair use, a new work must be commenting on or criticizing the original work. That's plainly wrong, and the appeals judge set the matter straight:
The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”
Of course, even this judge seems to have a few facts muddled, considering "parody and satire" cannot be casually linked together like that in the context of U.S. copyright law — one is a well-established and codified form of fair use, the other enjoys no such protection. In fact, the initial court's talk of comment and criticism seems to have stemmed from confusion between the standards for fair use in general, and the standards for parody specifically (where commenting on the original is indeed a requirement).
There's more good stuff about fair use, including lots of citations, to be found in the ruling, which should be read by anyone who still claims that copyright is a natural right or that stronger copyright always means more creativity:
The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575. Because “‘excessively broad protection would stifle, rather than advance, the law’s objective,’”
...
The “ultimate test of fair use ... is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ ... would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141
Since the court goes through a full fair use analysis, there's lots of good stuff on issues other than the transformative one too. The ruling clarifies that neither the "commercial use" aspect nor the "amount of work copied" aspect of fair use is determinative, and explains why Prince's work qualifies for fair use even though it is commercial and often uses Cariou's photos in their entirety.
But there's still a somewhat problematic side to this ruling, and that's the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it's tested, it starts to turn into an argument about whether a piece of art is "good" or "worthwhile" — a subjective standard if there ever was one. Among the five that have been sent back to the lower court is the most famous of them all (Cariou original on the left, Prince work on the right):
The ruling draws a distinction between that and one of the other works that it declared to be fair use (again Cariou left, Prince right):
In that comparison, it's not hard to see how the latter example changes the original "more" than the former. But that's where the obviousness ends. The true challenge is drawing that line, which the appeals court was not prepared to do:
As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”
The problem is that I don't think anyone can say with "certainty" what the meaning of a piece of art is, and that includes the artist themselves. In some cases, it seems like the most sensible approach would be to rely on experts — in this case the many galleries around the world that have showcased Prince's art, and the many critics who have praised it (or, for that matter, condemned it — a new meaning doesn't have to be something people like). Of course, there are potential problems there, too: many an important art movement was rejected by the established community at its outset.
Overall, the most important part of this ruling is that it overturns the ridiculous assertion that comment and criticism is the only form of fair use — but other than that, it fails to provide much clarity. I'm not certain any court could. There's no way to guess what the lower court will decide once it goes through the fair use test with the remaining five works, to the point that the question is almost entirely a matter of opinion, and it's not hard to envision a ruling in either direction. Whenever you have that much uncertainty on a point of law, something needs to be fixed.
McClintock (CBS' exec VP of communications) sure doesn't mince words, but he does mince reality. The broadcasters are not faring well against Aereo, with the courts all apparently recognizing that the company has carefully followed the letter of the law established in the Cablevision ruling. It's bizarre that he would try to characterize the situation as an obvious win for CBS when the exact opposite is true — especially in a conversation with tech analysts and journalists. Still, points for confidence, I guess.
It didn't end there, either:
After [Verge editor Ben] Popper noted that CBS' signals were not being stolen and that the public owned the airwaves, McClintock responded: "Yet it's ok for Aereo to profit from the same public. Hmmm..."
Greenfield got in a zinger by noting the similarities between Aereo and Amazon's services. "Amazon 'makes money'" Greenfield wrote on Twitter, "on selling antennas to watch broadcast TV, and they ship to Boston."
The question of "profiting from the public" is a red herring, and not a smart one for CBS to bring up. After all, the networks profit from their public broadcasts, too. Do they plan to give back all the money they have made from selling ads on the publicly-owned airwaves for which they paid no access fee?
The fact that the airwaves are owned by the public only means what it sounds like. It means the ability to broadcast on the airwaves is permitted by the public — it does not have anything to do with how the public accesses those airwaves, or whether or not someone is making a profit. As Greenfield points out, by McClintock's logic, it would be wrong to charge money for a TV antenna.
The Twitter exchange perfectly highlights a key issue here: thanks to the vagaries of copyright law, the whole fight over Aereo (and over remote DVR) is basically a fight about the length of a wire. Selling a home TV antenna? Legal. Renting a home TV antenna to someone? Yup. Selling someone a setup that hooks their antenna into a computer and then into their network, so they can watch it on any of their devices? No problem. Renting that same setup to them? Sure thing.
But doing any of that from slightly further away? 'Illegal!' cry the networks.
Luckily, despite the networks' facade of confidence and silly threats to pull their broadcasts, the courts seem to be well aware of the ridiculousness of their argument. Given the recent rulings, it seems unlikely that a new lawsuit in Boston would gain much traction — but, of course, just the fact that the lawsuits keep on coming serves as a roadblock to Aereo's innovation. The broken analogies enforced by copyright law have resulted in an insane situation with online streaming (among other things), and the fact that the fight with Aereo has even gone this far (and shows no signs of stopping) just underscores the severity of the problem.
In a press release issued today, Rep. Bob Goodlatte made a call for comprehensive copyright reform and announced series of hearings on copyright before the House Judiciary Committee. Of course, this isn't the first indication that Congress is interested in copyright reform — they heard Maria Pallante's testimony, which addressed many of the key issues involved, and was a mixed bag of good and bad ideas.
One thing the two have in common is a lack of specificity. Goodlatte is a friend of Hollywood and played a big role in SOPA during its conception, so it's pretty much guaranteed that a lot of his ideas for reform won't be the kind of reform we actually need — but for now, he's avoiding saying much. Most of the press release is dedicated to discussing the history of copyright reform and attempting to establish his own credentials. Only one paragraph offers any suggestion as to what Goodlatte thinks copyright reform might consist of:
There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.
Well, right off the bat we have concerns about piracy (while avoiding using the word), so we know where his priorities are. The rest of the things he lists — orphaned works, compulsory licenses and royalty rates, statutory damages, unclear legal definitions — are indeed some of the key parts of copyright law that need fixing, but that doesn't mean he has the right ideas about how to fix them. When it comes to things like statutory royalties and damages, both sides often think they are broken — the question is whether they are too high or too low. When it comes to clearing up legal definitions of things like fair use and contributory infringement, one small detail could swing the needle wildly in either direction.
Maybe it's a good thing that Goodlatte is avoiding getting into specifics, and instead launching hearings — but based on his past opinions and some of the implications of the press release, there's plenty of reason to wonder just how open and balanced these hearings will be. Will they include representatives of the public, or just industry lobbyists like so many copyright discussions in the past? And will they be seeking to reform copyright in a way that benefits the public, as it is supposed to, or just trying to "stop piracy"?
Goodlatte has surprised us a little bit in the past. Here's hoping he surprises us again — but I'm not holding my breath.
Yup, I had the wrong Trent Reznor album. Looks like he had a good experience working with Columbia and sees benefit in continuing to do so -- which is great, and reinforces our point that record labels and artists can work together to their mutual benefit so long as they do so in an innovative and non-exploitative way. So er, discography knowledge point to you, all the rest of the points to me, I guess.
I thought whiskey stones looked awesome, but according to basically every single Amazon review of them or similar products, they are useless... The guy at Worst Things For Sale actually crunched the numbers to show why they suck for cooling drinks down: http://theworstthingsforsale.com/2013/05/27/whiskey-stones/
Hey Blue, you're a little late to the game -- we covered the fact that Trent Reznor was going to Columbia last year, and even interviewed him about it:
In order to drive pageviews and lower the bounce rate, we'd need to actually trim the articles and thus force people to click through to the post pages -- which is exactly what the expand feature avoids. The expandable posts mean all reading can still happen on the main page, so it has no impact on pageviews or bounce rate...
If you saw "Read More" instead of "Expand" it's because the javascript failed to run for whatever reason (people with JS disabled get Read More links instead, since the expansion feature relies on javascript) -- probably just a connection hiccup
Sentence diagrams are potentially good but, like most things in education, they are way overused and/or used completely wrongly by the school.
Doing a couple sentence diagrams throughout the course of learning about grammar would be fine -- but the focus should be on developing a keen intuitive sense for English grammar, and knowing the basic idea of how to do things more scientifically only when needed (which it rarely will be for most people). But, of course, you can't test intuition...
It's very similar to what's wrong with math class. Students are given a solution upfront, then made to use it over and over and over again until they memorize it, without ever checking to see if they understand it. And nothing is more baffling to a student than being forced to prove or solve the obvious -- tools, like a sentence diagram or a piece of mathematical notation, should emerge from problems. That's how we created them. No human being ever diagrammed a sentence until someone was faced with some really complex language and had a reason to want to parse it out in detail, just like no human being did long division until they had some numbers they couldn't divide with their brain and a few fingers.
If anything, the best way to teach sentence diagrams would be to first get students to spend a day examining sentences of increasing complexity, and encourage them to use pen & paper to help separate out the elements and draw it all out in a way that makes sense. Then, after they've developed a dozen of their own quick methods for sentence diagramming and are discovering the limitations of them, show them the standardized solution (but let them keep using their own if they like it better). Of course, such a process wouldn't fit into a standardized testing model at all.
Has anyone else noticed that when you see a report flag, based on the content of the post and the timing of the comment you can always guess it's going to be ootb before clicking?
There are people who actually don't drink, do drugs, or cheat on their spouses, you know.
No, but the vast majority of people have at some point in their life (most often high school and/or college) done a few things that right now would be considered embarrassing or scandalous for a public figure. Drinking, drugs and adultery are certainly among the most common, but there are plenty of others like questionable activism/affiliation, "deviant" sexual behaviour of some brand or another, an outburst of violence, cheating at a test or a game...
Personally, I'm not sure someone who has lived their life without any missteps is capable of understanding, much less leading, a populace made up mostly of imperfect people.
Well said. It's a bit of an awkward transition now, but I've always felt it's going to adjust our norms for the better. Often I think of this in terms of the people who freak out that kids are racking up so much incriminating evidence of their behaviour that nobody will be able to get jobs, much less run for office, in the future.
But in reality, the norms should adjust. When every candidate for a job or for office, every actor and singer and olympic athlete, has a few photos of them holding a whiskey bottle and a bong, society simply won't be able to condemn such activity so harshly. Indeed, people who don't have a little colour showing through their facade will probably seem eerily suspect (as they do already in extreme cases)
I do see your point, but on digging further into the numbers, it seems to me that the premise still holds. We don't have netflix ratings for the show unfortunately, but lets compare it to some other shows using TV ratings and piracy numbers, plus AD's ratings from when it was on Fox:
- Arrested Development ratings on fox: 6.2-million average in first season, lower by the end with 3.43-million watching the finale -- source: http://en.wikipedia.org/wiki/Arrested_Development_(TV_series)#Television_ratings
- Some selections from the top pirated shows of 2012 (when GoT was #1), with both piracy & tv numbers (all based on a single popular episode):
Hit shows on broadcast networks:
Big Bang Theory - 3.2-mil DL, 15.8-mil TV
How I Met Your Mother - 2.9-mil DL, 10.1-mil TV
House - 2.3-mil DL, 9.7-mil TV
Hit shows on specialty cable networks:
Game of Thrones - 4.2-mil downloaders, 4.2-mil TV viewers
Breaking Bad - 2.5-mil DL, 2.9-mil TV
Homeland - 2.4-mil DL, 2.3-mil TV
Dexter - 3.8-mil DL, 2.7-mil TV
So the pattern is fairly clear: broadcast networks still have far more TV viewers than downloaders, whereas cable networks have number that are close, or sometimes even fewer viewers than downloaders.
Now, we don't know how many people watched AD on Netflix... but we do know that Netflix has almost 30-million subscribers, which is about the same as HBO's audience in the U.S. -- HBO's global audience is about 115-million.
Obviously, we are lacking some of the key data points that would let us draw a *solid* conclusion about piracy rates -- but when you look at the audience size numbers and compare it to some other shows, it still seems highly likely that
Yeah, you're probably right. The copyrightable elements of a photo are things like angle, framing, composition, lighting, etc. -- all of which are not only fixed for mugshots, they are fixed so as to be as minimal and uncreative as possible, to give the clearest and most objective view of the subject matter. And the subject matter itself is the one thing that is definitively not part of a photography copyright.
Re: Re: Re: @"PaulT", compulsive yapper.
And since Mike is clearly a huge hypocrite on this topic, thinks laws against unpaid interns are silly while HE blithely exploits the minions
Well, for one thing, that's not true -- but, er, even if it were, how would that be hypocritical? Wouldn't it, in fact, be perfectly consistent?
Re: The true best one of the week
Yup, I had the wrong Trent Reznor album. Looks like he had a good experience working with Columbia and sees benefit in continuing to do so -- which is great, and reinforces our point that record labels and artists can work together to their mutual benefit so long as they do so in an innovative and non-exploitative way. So er, discography knowledge point to you, all the rest of the points to me, I guess.
Re: Re: Re: Meanwhile... the stories that didn't get covered:
oh hey it was you talking not blue -- i really should pay more attention. i never would have bothered responding
Re: ChillBottles - Just like ...
I thought whiskey stones looked awesome, but according to basically every single Amazon review of them or similar products, they are useless... The guy at Worst Things For Sale actually crunched the numbers to show why they suck for cooling drinks down: http://theworstthingsforsale.com/2013/05/27/whiskey-stones/
So maybe the steel does a better job...
Re: Meanwhile... the stories that didn't get covered:
Hey Blue, you're a little late to the game -- we covered the fact that Trent Reznor was going to Columbia last year, and even interviewed him about it:
http://www.techdirt.com/articles/20121022/00013120781/trent-reznor-talks-to-techdirt-about-hi s-unconventional-new-record-deal-why-he-still-loves-diy.shtml
Maybe you should actually read Techdirt instead of going straight to the comments to complain that we didn't write what you wanted us to write...
Re: Re: Re: Re: Re: Congratulations, Techdirt engineers -- once again you've broken something.
In order to drive pageviews and lower the bounce rate, we'd need to actually trim the articles and thus force people to click through to the post pages -- which is exactly what the expand feature avoids. The expandable posts mean all reading can still happen on the main page, so it has no impact on pageviews or bounce rate...
Re: Re: Re: Congratulations, Techdirt engineers -- once again you've broken something.
If you saw "Read More" instead of "Expand" it's because the javascript failed to run for whatever reason (people with JS disabled get Read More links instead, since the expansion feature relies on javascript) -- probably just a connection hiccup
Re: Waste of my time in 9th grade
Sentence diagrams are potentially good but, like most things in education, they are way overused and/or used completely wrongly by the school.
Doing a couple sentence diagrams throughout the course of learning about grammar would be fine -- but the focus should be on developing a keen intuitive sense for English grammar, and knowing the basic idea of how to do things more scientifically only when needed (which it rarely will be for most people). But, of course, you can't test intuition...
It's very similar to what's wrong with math class. Students are given a solution upfront, then made to use it over and over and over again until they memorize it, without ever checking to see if they understand it. And nothing is more baffling to a student than being forced to prove or solve the obvious -- tools, like a sentence diagram or a piece of mathematical notation, should emerge from problems. That's how we created them. No human being ever diagrammed a sentence until someone was faced with some really complex language and had a reason to want to parse it out in detail, just like no human being did long division until they had some numbers they couldn't divide with their brain and a few fingers.
If anything, the best way to teach sentence diagrams would be to first get students to spend a day examining sentences of increasing complexity, and encourage them to use pen & paper to help separate out the elements and draw it all out in a way that makes sense. Then, after they've developed a dozen of their own quick methods for sentence diagramming and are discovering the limitations of them, show them the standardized solution (but let them keep using their own if they like it better). Of course, such a process wouldn't fit into a standardized testing model at all.
Re: Will Mike welcome The Debate On GOOGLE'S Surveillance?
Has anyone else noticed that when you see a report flag, based on the content of the post and the timing of the comment you can always guess it's going to be ootb before clicking?
Re: Re: Re: Re: Re: Re:
There are people who actually don't drink, do drugs, or cheat on their spouses, you know.
No, but the vast majority of people have at some point in their life (most often high school and/or college) done a few things that right now would be considered embarrassing or scandalous for a public figure. Drinking, drugs and adultery are certainly among the most common, but there are plenty of others like questionable activism/affiliation, "deviant" sexual behaviour of some brand or another, an outburst of violence, cheating at a test or a game...
Personally, I'm not sure someone who has lived their life without any missteps is capable of understanding, much less leading, a populace made up mostly of imperfect people.
Re: Re: Re: Re:
Well said. It's a bit of an awkward transition now, but I've always felt it's going to adjust our norms for the better. Often I think of this in terms of the people who freak out that kids are racking up so much incriminating evidence of their behaviour that nobody will be able to get jobs, much less run for office, in the future.
But in reality, the norms should adjust. When every candidate for a job or for office, every actor and singer and olympic athlete, has a few photos of them holding a whiskey bottle and a bong, society simply won't be able to condemn such activity so harshly. Indeed, people who don't have a little colour showing through their facade will probably seem eerily suspect (as they do already in extreme cases)
Re: Has anyone been sued or prosecuted for this?
Has anyone been sued or prosecuted for this?
For violating the DMCA anti-circumvention clause? Yes, absolutely. See: George Hotz.
Re:
If by gutted you mean fixed, then yes.
Re: Re: Re: Re: Re: Re: But....the numbers
gah, html screwup :)
...highly likely that [ less than 200,000 downloaders is a very low number ]
Re: Re: Re: Re: Re: But....the numbers
I do see your point, but on digging further into the numbers, it seems to me that the premise still holds. We don't have netflix ratings for the show unfortunately, but lets compare it to some other shows using TV ratings and piracy numbers, plus AD's ratings from when it was on Fox:
- Arrested Development ratings on fox: 6.2-million average in first season, lower by the end with 3.43-million watching the finale -- source: http://en.wikipedia.org/wiki/Arrested_Development_(TV_series)#Television_ratings
- Some selections from the top pirated shows of 2012 (when GoT was #1), with both piracy & tv numbers (all based on a single popular episode):
Hit shows on broadcast networks:
Big Bang Theory - 3.2-mil DL, 15.8-mil TV
How I Met Your Mother - 2.9-mil DL, 10.1-mil TV
House - 2.3-mil DL, 9.7-mil TV
Hit shows on specialty cable networks:
Game of Thrones - 4.2-mil downloaders, 4.2-mil TV viewers
Breaking Bad - 2.5-mil DL, 2.9-mil TV
Homeland - 2.4-mil DL, 2.3-mil TV
Dexter - 3.8-mil DL, 2.7-mil TV
So the pattern is fairly clear: broadcast networks still have far more TV viewers than downloaders, whereas cable networks have number that are close, or sometimes even fewer viewers than downloaders.
Now, we don't know how many people watched AD on Netflix... but we do know that Netflix has almost 30-million subscribers, which is about the same as HBO's audience in the U.S. -- HBO's global audience is about 115-million.
Obviously, we are lacking some of the key data points that would let us draw a *solid* conclusion about piracy rates -- but when you look at the audience size numbers and compare it to some other shows, it still seems highly likely that
Re: The Maginot Line
Hey, I'm not saying the US didn't play a major role, just that it aint so simple. For example:
German or German. Take your pick. Those are your choices without Russian involvement in WWII (scary or not).
Re: Re: Re:
Heh. I'm not even one of the people who clicked report on that post. Paranoid much?
Re: Re: Re: Re: Re: Re: Re: Re:
That's America's Toque, thank you very much ;)
Re:
if America were so superior, its populace wouldn't have such a wildly inaccurate and jingoistic understanding of WW2
Re:
Yeah, you're probably right. The copyrightable elements of a photo are things like angle, framing, composition, lighting, etc. -- all of which are not only fixed for mugshots, they are fixed so as to be as minimal and uncreative as possible, to give the clearest and most objective view of the subject matter. And the subject matter itself is the one thing that is definitively not part of a photography copyright.