Rich Fiscus' Favorite Techdirt Posts Of The Week
from the favorites dept
This week's favorites post comes from Rich Fiscus, who hasn't commented on the site much, but when he does, it's almost always worth reading.
By far, my favorite story of the week was one that seems to have gotten very little attention from the Techdirt community. That's understandable since it revolves around a musician many readers may not have heard outside of samples and a 52 page legal document. In fact, despite his status as one of the most influential musical figures in the last 50 years, it's not immediately obvious why you should care about George Clinton's lawsuit against his former lawyers. I would argue, however, that his career is a textbook example of why artists should pay more attention to the business side of their craft. To put it in Mr. Clinton's own words, "free your mind... and your ass will follow."
One of the most common complaints whenever someone suggests to musicians that they need to develop a business model is, "we shouldn't have to be business men." You need look no further than George Clinton's career to understand why that argument was never valid. His work over the decades has netted hundreds of millions, if not billions, of dollars - but not for him. It was never his art which held him back. It was poor business decisions.
In market terms, he invested heavily and unwisely in the funk bubble of the seventies and ended up bankrupt by the mid-eighties as a result. Even though George Clinton understood early on that his career was a business, he failed to arm himself with the basic tools to operate it wisely. As a result, he blindly trusted others to protect his interests and has been paying the price for at least three decades.
To be sure, the people who apparently defrauded Mr. Clinton should be held accountable for their actions, but that doesn't relieve him of the duty to oversee his business. If he were building houses or selling shoes, wouldn't the responsibility for hiring competent and honest managers, accountants, and lawyers rest at his feet? Why should he get a pass because his product is entertainment?
At the same time, the question of legal malpractice is more complex. Mr. Clinton claims his lawyers worked directly against his interests and wishes. He alleges they failed to take obvious and necessary steps to disqualify key evidence. According to his filing, they went so far as to instruct him to lie on the witness stand. Lawyers, more than any profession besides doctors, are the public's only link to a service vital to our everyday lives. Without lawyers most of us have no access to justice.
Yet, somehow, we don't hold them to the same level of professional accountability as doctors, accountants, or even used car salesmen. On one hand, this is a necessary evil. No lawyer can know all the nuances of the law or memorize every court decision that might be relevant some day. But authenticating disputed documents and telling the truth in court would surely be obvious even to a layman, let alone a legal professional.
From legal malpractice we move on to legal misrepresentation and the fading fortunes of Righthaven. As they lose more and more cases, the questions are shifting from the legitimacy of their copyright claims, to the legality of their entire business. This is an issue bigger than Righthaven or their individual victims. Lawyers, including Righthaven CEO Steven Gibson, do not just work in the legal system. They are its representatives. If they are allowed to knowingly perpetrate fraud upon the system, it victimizes all of us. A justice system that the people cannot trust is one they will fear to avail themselves of. Likewise, those who see others gaming that system for their own illicit gains will be emboldened to do the same.
Which brings us to a final stop on this week's legal merry-go-round. The question of whether a picture taken by a monkey qualifies for copyright protection may have a touch of the absurd, but it is deadly serious to photographer David Slater. His assertions and the takedown request from Caters News Service, which neglects to state any legal claim, illustrate the biggest obstacle to an honest debate over copyright.
Both parties make the same mistake. Instead of questioning whether the photo meets the legal requirements for copyright, they assert it must be so because he deserves it. Copyright has never been about a single individual, or at least it's not supposed to be. Its stated purpose is nothing more or less than to act as an economic incentive.
Furthermore, if we make it about fairness, we must consider more than the creator and publisher. It must be about fairness for everyone. That includes creators of future works and the public at large. What appears just when you consider only the artist is often completely unjust for the rest of society. That's what our laws are supposed to be providing - justice for society. Justice does not mean the best possible result for one party, but rather the most equitable result for all.
Finally, on a lighter note, I wonder how different my life would have been had I known my love of Iron Maiden and Motörhead might just be a symptom of addiction. How much better off could I be now if I had known to seek treatment for the compulsion to grow my hair long, wear t-shirts with pseudo demonic imagery, and give myself whiplash while listening to music at an unhealthy volume? It's a relief to hear from a Swedish psychologist that it's not my fault. Now, I just need to find a way to overcome this handicap and maybe someday I will be able to lead a normal, healthy life.
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The real irony here is that this ultimately decides nothing. The cable companies want to rearrange the deck chairs on the Titanic. Boxee is fighting to leave them where they are. Either way, the ship is going down. Neither side can change that. The real question is whether anyone can fix the gaping hole in the side before we have to start over with a new boat.
That's a bigger job than anyone expected, but in retrospect it's really not surprising. The broadcast industry isn't controlled by cable companies or broadcasters. It's controlled by both of them together. They may not like or trust each other, but when it comes to real change they are united against it. In form they are a collection of companies in 2 separate but interrelated industries. Functionally they are a vertically integrated cartel.
That does not, however, make them impervious to disruption. The reason every attempt so far, from companies like Netflix, Microsoft, Apple, Google, and even Boxee, has fallen short is because none of those companies had any leverage. You can't disrupt just the cable provider or just the network. You have to disrupt the whole system.
For example, you might start by installing your own broadband Internet service, like say the one Google is building in Kansas City. Then perhaps you reach out to the networks to start your own pay TV service, which Google has also done. Then maybe you would buy a cable set-top box manufacturer, like Google is doing with Motorola Mobility. Now at this point you've taken the cable company out of the loop, but the networks can still ignore you, so you go one step further.
Rather than setting up your antenna farm in Kansas City, which would be the most efficient way to deliver video, you locate it 270 miles away in Council Bluffs, Iowa. You do that because Council Bluffs is home to your closest datacenter. Perhaps the reason you chose Kansas City for your fiber network was the same reason you put your datacenter in Council Bluffs, which is right next to Omaha, Nebraska. Both are major hubs for Internet backbone connections, making the distance basically trivial.
Now you have leverage. If your antenna farm is at your datacenter, odds are you were planning to offer a cloud based DVR and on demand service. If the networks don't want to play ball you can always let your customers upload their own videos to it.
Which one would Warner Brothers prefer, people uploading their movies to the cloud or those same people paying to watch TV? Disney would probably be the hardest sell. They own ESPN which is the most expensive pay TV channel around and the biggest argument for a la carte channel selections, which I'm guessing Google is pushing for anyway. The point is, the networks will still see Google as the enemy, but uploading videos to the cloud is the real bogeyman.
Of course Google is going to need a custom set-top box. They could get something off the shelf from Motorola, but why do that when you're already working on a box of your own. We already know Google is testing a streaming appliance and the rumor is Google Music will be its only service initially. The thing is, that doesn't really make sense.
If you own YouTube, the single most popular streaming site in the world, why leave it off your appliance that connects to home theater equipment? Maybe it's really a Google Fiber set-top box and they know how much everybody in the TV business hates YouTube. Google Music isn't threatening. The networks aren't selling music and Google Music isn't serving video. Besides, it's just a substitute for the digital music channels everybody else is including with the cable and satellite packages.
Now I could be completely wrong about Google. Maybe they haven't learned anything from Google TV's failure. But if I'm right and they have learned their lesson, the big revolution in TV may be right around the corner. Once they get their foot in the door, every pay TV provider in the country is going to start thinking about adding their own cloud services and the floodgates will open for Apple, Microsoft, and even Boxee.
If I'm wrong, maybe it's a good time to pick up a lifejacket
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On one hand, as an audiophile I'm sympathetic to Young's complaints. At the same time, his track record on providing high quality audio is a business model disaster. I consider that a shame since I happen to be a big Neil Young fan, especially his Crazy Horse releases.
He has already begun releasing his back catalog on Blu-ray to maximize sound quality, but there's no chance I could (or would) pay $35 per album or $300 for a 10 disc set. Especially when he seems to have made a point of leaving some songs out.
That's a ripoff even compared to HDtracks, where I can buy FLAC downloads which aren't infested with DRM. With most albums costing $18 ($23 for a double album), I still consider their prices too high. But at least they are trying to make their product more compelling. You can even spend an equally ridiculous $2.50 to buy most tracks individually if that's what you prefer.
The bottom line is this. Neil Young really only pays lip service to expanding the popularity of high quality formats. Considering most people can't tell the difference, making it more expensive and generally less accessible has exactly no chance of doing that.
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In practical terms, democracy is not self sustaining. It is only as strong as the will of the people. If they people do nothing, democracy is gone.
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If you know the system is broken and aren't doing anything about it, you're part of the problem. Stop being part of the problem.
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I disagree. A person does not have the time or resources. The people do. I don't hold every person responsible to police the government single handedly. I do hold every person responsible for doing what they can. If a quarter of the population held themselves to the same standard, keeping the government in check would be child's play. Hell, 10 percent would probably be enough.
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You couldn't be more right Mike. Democracy is something which can only be taken by demand of the people. And it must be maintained the same way. That has always been the case, and always will be. It's natural for people who crave power to abuse it, and also to rationalize that abuse as something noble and necessary. Living in a democracy does not eliminate those tendencies. It merely provides us with mechanisms to counteract them.
This is not a new idea. Thomas Jefferson said as much more than 200 years ago.
We are lucky to live in times when rebellion may be accomplished without violence. But make no mistake, the type of changes required are rebellion in civilized clothing. Solving our problems requires imposing our will on the government. We are not dealing with a few isolated instances of corruption. The taint of corruption permeates the government. Naked corruption has become so commonplace the powerful feel secure flaunting their misconduct and contempt for the people in full public view.
Corporate executives run companies into the ground with no real fear of the consequences. If there's a government regulation they want or don't want, or maybe just a subsidy to keep their books in the black, it's off to the first bank of Congress to make a deposit and drop off a bill. Or maybe the White House with a satchel of cash and the details of an untested, unreliable, unnecessary product some government agency could really benefit from.
Whatever damage gets done to their employees, or customers, or shareholder, or the whole damn economy gets passed on to the rest of us. Maybe we're paying unemployment for all the jobs they destroyed, or maybe it's housing subsidies for the employees and retirees whose pensions they looted. But you can bet they'll have the audacity to lecture us later about how guilty we should feel for asking them to pay a higher tax rate on their hard earned money. And Congress will react by holding out the tip jar.
The Democrats did not do this. The Republicans did not do this. They all did it, and by allowing them to do it, the people were accomplices. In a democracy it is your responsibility to police the government. If you see the broken system and do nothing, you're part of the problem. Stop being part of the problem. It's time to stand up and say, "I'm mad as hell and I'm not gonna take this anymore!"
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You don't need to find it. Just describe it the most general terms possible and the patent is yours.
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Reality is known for it's frequent anti-RIAA bias.
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So basically eBay is being sued because their online auctions work like offline auctions. Or more accurately, because they don't offer the seller the advantages of both regular and sealed bid auctions.
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Actually they don't appear to be owned by Sony at all. Sony just happens to be the only label they have a deal to distribute songs from.
Free? I think not.
Actually, this doesn't appear to be a true giveaway, at least not by Sony. The service is provided by a company called Library Ideas, and according to at least one librarian who has dealt with them, they aren't really offering much of a deal at all, and appear to be at least a little on the slimy side.
http://librarianinblack.net/librarianinblack/2011/04/just-say-no-to-freegal.html
Apparen tly the library pays at least $1 per download on average, and the company has horrible customer service.
The Supreme Court disagrees with that assessment
I have to go with the Supreme Court on this one. Per the Betamax case, all non-commercial, non-profit copying is assumed to be fair use unless the copyright holder can show convincing evidence of past or future harm.
Notice there is nothing mentioned about "except when the full work is copied."
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Here's why I think you're wrong on this one Mike. It's a point I've made here before. Despite all their supposed professional duties, we hold lawyers to a ridiculously low standard we would never accept for an MD, CPA, or equivalent professional.
While it's true we need to allow some leeway when it comes to using an unusual or downright strange legal theory, if there is significant caselaw showing an issue is already decided, which there is when it comes to transferring copyrights, a lawyer should have a professional duty not to mislead the court by suggesting there isn't. Otherwise the legal system is a farce in which a party with the funds to pay a lawyer to make specious arguments for a few months or years has a decided advantage over the average person.
What Gibson did in setting up Righthaven was equivalent to an accountant trying to write off hookers and blow on a client's tax return. He could argue about his theories on tax law all he wants, but in the end he's held responsible for what he should know. Gibson should be held to the same standard. If he didn't know the copyright assignments weren't valid, as a lawyer he has a duty to do the basic research which would have made it clear. Either it was fraud or failure to meet his basic responsibilities. In either case he should be punished.
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Sure it does, but only between you and them. If you are connecting to your bank's website, you still have to use DNS and it still won't have DNSSEC capability. Your VPN makes no difference on that.
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No there isn't. But the provision that makes it illegal for a server means DNSSEC won't ever see widespread use. If you read the original article Mike linked you'll understand the point better.
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Or do you not even think about the censorship issue and only consider whether you have the right to fix the problem? That's what the people pushing PROTECT IP don't understand. The attitude most people will likely have is, "I have the right to make my internet work."
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There's a price to be paid if we let them chase US internet users to using offshore DNS. It's inefficient and leaves too much opportunity for someone with malicious intentions. Suddenly there's no need to attack a DNS server to poison its cache for malicious purposes. Now someone can just setup their own server outside the US to provide the false information directly to the end user. You're essentially ceding any semblance of control over the security of DNS to unknown entities outside your borders.
What Mike didn't mention was Paul told me DNSSEC wouldn't be implemented in his organization's DNS server, BIND, if PROTEC IP becomes law. That means it wouldn't be available on the majority of DNS servers on the Internet. Even your offshore service won't get its benefits. You've fixed "your" Internet, but they have still effectively outlawed a security feature you should get the advantage of.
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There's a difference between blocking cell service and not boosting it. Not interfering with the signal is mandatory and regulated by the FCC. Boosting it is optional and not regulated.
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I suspect it has more to do with the ridiculous ruling last week in which the judge as much as stated that he doesn't believe the speech on their site is protected and used that as an excuse to ignore their other arguments.
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Nope. You're still confused. If linking is aiding and abetting, the most you could say is that a third party used their property to commit that crime, which once again doesn't qualify for forfeiture.