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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Actually it's not the pay TV guys they're worried about. It's the cord cutters. As I explained in a comment to yesterday's post about ESPN, they are Disney's cash cow. You should also make sure to look at the link in Dave's response to mine where he provides much better detail about ESPN pricing.
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First off, very nice job with that analysis. I think you're absolutely correct that sports programming is probably the biggest key to pay TV's future simply because of the huge amounts of money and complex web of contractual relationships involved. That's without even considering the technical hurdles in delivering delivering real time programming on a national scale given the current state of US broadband.
Now here's why I think it's going to happen anyway, perhaps starting as soon as the next 3-5 years. Depending on the contracts involved perhaps more like 8-10. As you note in that piece, a lot of people are switching from cable to satellite and I'm sure sports are one of the major factors in that.
In terms of the NFL and NBA I don't think there will be any big changes any time soon. However baseball is a different story for a number of reasons. First off they are not nearly as well situated financially so there's motivation for the owners. In addition there is, by and large, less national interest in most baseball teams and therefore a much more fragmented broadcasting market.
More importantly, the reason it remains that way when the NFL and NBA have consolidated nationally is the fragmentation of the owners which is why there is no salary cap and a huge revenue disparity between teams. Likewise there is a disparity between sports networks. While it's true that Fox Sports is a growing threat to ESPN, Comcast SportsNet remains second tier and primarily regional. Local and regional markets, including cable providers, are much more important to them than they are to a national satellite service.
Finally there's the question of what cable operators can offer that satellite can't. If they're going to compete that's going to be key because without widespread consolidation they can't compete financially. The answer is Internet service. Also keep in mind that there's a big push among traditional telcos to get into TV programming to compete with cable. I might also add in the wildcard of Google Fiber since they happen to operate in a market where one of the most financially disadvantaged teams is located and their infrastructure is so advanced for the US.
Now let's say CSN sets up an IP-based service offering packages from various MLB teams and sells it through any broadband provider who's interested. There would be some technical questions to deal with like what kind of box would be required, whether it could be delivered via the regular CATV lineup and IP, one or the other, and possibly whether/how to offer some type of VOD component. It would certainly need to be accessible off-network from other devices. It could even, theoretically, be available through streaming appliances like Roku sells as an option for people who have them.
Just looking at the local market here in Des Moines I can see a lot of potential for that. The cable company gets more angry calls every year from baseball fans than anyone else. When Chicago Cubs baseball moved from WGN to CSN they had to choose between carrying Cubs and Cardinals games. They went with the Cardinals. They said it was about audience numbers (maybe true) but I believe there was a strong financial component.
In any case it doesn't matter which one they go with. There will be a good sized unserved audience for the other. Not to mention the significantly smaller, but still good sized in the aggregate, number of people who would pay to see less popular teams like the Twins, Brewers, and Royals. Offer them an IP-based option and I suspect there would be a lot of takers. The cable company (Mediacom) might prefer not to offer such a thing except that it gives them something to compete with the more expansive sports offerings from DirecTV. If the local telco (Centurylink) jumped on it Mediacom would pretty much have to.
I'm not saying this is what's going to happen and I certainly can't know when but I'm sure something will eventually. In fact in the long run I expect it will come directly from the leagues and teams as the money for insane broadcast contracts (especially for the NFL) dries up.
The most important thing to remember is that you can't look at the current market leaders to find the trend of the future because all you're going to see there is more of the same. That's a nearly universal truth. Market leaders keep doing whatever has brought the most success in the past until they've been knocked down a couple pegs When they're as big, arrogant, and generally clueless as ESPN/Disney and Fox usually until they drive themselves into the ground.
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Actually they will be hurt by it because, while ESPN is the most profitable cable property by a wide margin today, they will also lose the most to cord cutting over the next several years.
ESPN charges pay TV providers a little more than $5 per subscriber on average. Their contracts with providers also require the purchase of a bundle which includes significantly less popular ESPN channels - nothing shocking there - but more significantly it also requires that these channels be included in each TV provider's 2 most popular tiers if I remember right. As a result their profits will take a hit from almost every lost cable and satellite customer.
ESPN is far and away Disney's most profitable unit. And since we're talking about Disney it doesn't take a crystal ball to predict their reaction. They are a textbook example of the clueless old media company whose knee jerk reaction to the changing market is to double down on failure and yell at that damn Internet to get off their lawn. They will jack up the price to the point where they lose leverage with pay TV services who can no longer afford their channels. ESPN's profit margins will decline, starting gradually and probably snowballing after a while.
To be honest I'm not sure there's any way to sustain their current margins anyway since they're already charging almost as much per customer as HBO. Let's say half of those people would subscribe to an ESPN online offering; a ludicrously generous estimate. Not counting the cost of providing their own infrastructure or lost revenue for bundled channels that means doubling the price to maintain the current margin.
That's simply not going to work. It might happen. I mean they might try it, but it would fail spectacularly.
The irony for me is that, at least during football season, ESPN is one of the few channels I would pay for simply to get Monday Night Football. It killed me to miss the first Bears/Packers game last year but I refuse to pay for content on the industry's terms. And I certainly wouldn't pay much more than what the providers do now for ESPN.
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I would be shocked if Steele, or even Prenda's paper principal Paul Duffy, made any claims WRT the factual claims. They effectively painted themselves into a corner when the took the 5th in California. Prenda will most likely file their usual nonsensical procedural arguments attempting to drag the whole thing out as long as possible. At this point they have nothing to lose considering any potential monetary sanctions will most likely be a drop in the bucket compared to the damages likely to be awarded for the identity theft claims.
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More like He wants sympathy from us for his plans to hit himself in the head repeatedly with his ball.
Actually...
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I'd really like to see him tell all the CBS affiliates they can no longer broadcast his company's content over the air. That is essentially what he's saying.
Besides the obvious avalanche of lawsuits from all those station owners I'm guessing the public outrage would have every grandstanding politician in the country lining up to take a swing at the CBS piņata.
Fixed that for you
It looks like there's a typo on that form - the real one I mean. The UF clearly should be FU.
On a more serious note, at least as serious as one can be about such a retarded argument, using the chief's logic I should be able to rob as many banks as I want by simply filling out a checklist afterward and checking items like, "no gun used" and "any property taken was actually mine." I don't think there are any laws saying my word isn't just as good as theirs after all.
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If he had put that web surfing time into searching Ray Beckerman's archives he would know it only costs $200 an hour to get the RIAA's forensic expert (Doug Jacobson) to testify that a lack of evidence is actually proof there's a second computer. Beckerman already did all the hard work by establishing Jacobson is only "borderline incompetent."
For another C-note he might even change his name to Alan Cooper. Just tell him it's like witness protection from his reputation.
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Perhaps for now that's true, but it also potentially helps build a mountain of evidence about those problems which can be referenced by critics of the current system. In my experience every discussion with people who haven't taken a close look for themselves pretty much requires you to begin with a mountain of explanation and evidence too big for them to get through before they tune out.
On the other hand if you could simply point them to a bunch of submissions like this it would be both simpler to understand and more convincing. You and I may not see evidence which comes from the USPTO process more relevant, but I think most people would. Most of those same people would dismiss an economics paper with what we see as clear and convincing arguments as simply one person's opinion.
That's understandable considering most of what the public is exposed to in that field is really political punditry in disguise. It has as much in common with the study of economics as Chicken McNuggets do with traditional southern fried chicken.
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This is the most awesome idea ever! It will both revolutionize and save the entertainment industry.
Just think of it. Give musicians and their record labels a cut of all proceeds from the restaurants and bars around concert venues. Movie producers can take the theaters and TV stations can stick their hands in the pockets of all those places, assuming they have TVs, and all kinds of other businesses who put in a TV "for their customers' convenience." Convenience my ass! You're all just a bunch of thieves.
Heck, why bother with all the geographic details. Let's just assume anyone who gets money from the public is freeloading off some copyright holder, impose a fair tax (25% of revenue sounds reasonable) and let them fight among themselves to divide it up.
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I'm in pretty much the same boat when it comes to 3D. The most 3D effect I've ever gotten was during the closing credits of a couple movies. And even though my hearing is excellent my stereo is an older model without HDMI or 6 channel inputs which I refuse to replace because music sounds so good through it. I don't even own a HDTV. I'm still watching an old 27-inch analog monster.
The irony is I had to buy a Blu-ray player and burner so I could write technical guides for the technology. Which is okay since I find that side of things more interesting anyway.
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There are a couple of major differences with respect to Blu-ray. The first is the licensing requirements for player manufacturers which don't allow a lot of discretion when it comes to restrictions. Although I don't know specifically about region locks, I know all the DRM "features" are mandatory. On the other hand that apparently I've read that at least one company has made one or two models capable of playing commercial (pressed) Blu-ray discs without Aggressive Anti Consumer Screwing (AACS) encryption which is a violation of the agreement.
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Clearly you are not well versed in American history. Excuses are for pansies. We'll skip right to the something really stupid part thank you very much!
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That depends on how creative you're willing to be with your definition of fair trial. I can here it now.
"We'll give him a fair trial... and then we'll hang him."
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This is merely another example of why we need even stronger copyright laws. Judge Harvey's blatant attempt to profit from the wholesale copying of our founding fathers' stand against state sponsored corporate profiteering is frankly offensive. How long will the rest of the world continue to reap the rewards of our ancestors' struggle against the tyranny of the British East India Company?
Such morally reprehensible behavior only underscores the debt owed by citizens of every free country around the world for the efforts of those great Americans. I shudder to think what would become of our allies should we find ourselves unable to sustain our output of freedom to the rest of the world. And yet these people who owe us so much, who relied on us to keep the world safe as recently as the late 1980s, have the arrogance to declare that the world has changed and we must change with it.
I reject that notion. The decline in US geopolitical and economic influence which has been building since the end of the Cold War threatens nothing less than the collapse of the free world as we know it. It is well and good to praise the rise of democracy in Eastern Europe, but who among these fledgling democracies has the power to stand up to the likes of China? And can we rely on the people of India or Brazil to spend tens of billions of dollars on consumer goods in support of capitalism? If we learned nothing else in the latter half of the 20th century, we should have learned this. As the US goes, so goes the world.
We've always been at war with Eastasia.
Radio was built by cookie cutter pop stars
Cookie cutter pop stars certainly go back much further than the 1960s. Benny Goodman's big band, perhaps the first pop stars produced by radio (in the mid-1930s), became national stars playing arrangements copied from Fletcher Henderson's band. Not to disparage Goodman for things which certainly weren't his fault, but it's hard to imagine anything could have made NBC Radio any happier than a cookie cutter copy of Henderson's sound.
It would be insulting to compare Goodman's band with what record labels learned to manufacture for themselves later, and his use of another bandleader's arrangements was purely a practical decision. Lacking arrangements of his own to immediately begin filling a 3 hour radio show, Goodman's career likely wouldn't have lasted beyond his first show if not for his decision to pay Henderson for his arrangements. Certainly it's hard to imagine Goodman or any of his sidemen being the least bit offended if someone mistook their early performances for those of first, and some would say greatest, big band ever.
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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.