by Mike Masnick
Thu, Dec 13th 2012 4:35pm
by Mike Masnick
Tue, Nov 13th 2012 7:30am
You Can Take The Company Out Of The DRM Business, But You Can't Take The DRM Business Out Of The Company
from the but-of-course dept
When other companies decide to stop supporting something, they don't make older systems useless. Worse, Sony never came out with another DVR in the U.S. market. Why do we have to rent them? How do we get Sony or Rovi to provide at least a software patch to set the clock so the DVR can at least retain 1980s VCR functionality? Sony admits there is no fix. A thread on AVS forums has a bunch of information on TV Guide OnScreen. The TV stations who broadcast the data have been ordered by Rovi to disconnect the data inserters and ship them back.Quite a legacy MacROVIsion has, huh?
Thu, Oct 25th 2012 8:27pm
from the our-hardware-our-rules dept
The PS3 has been hacked before, but Sony was able to inhibit the hack with an update to its own firmware. This is much like the history of jailbreaking on Apple's iOS, where hackers typically uncover a security vulnerability and exploit it, whereupon Apple patches the hole and suppresses the jailbreak.
But the latest PS3 break is being dubbed unpatchable and the final hack. That's because this hack isn't giving you an exploit to use against a programming hole. It's giving you Sony's so-called LV0 (level zero) cryptographic keys.If true, the war is over and Sony lost. Hacker collective, the Three Musketeers, reportedly figured this all out some time ago, but now the LV0 keys have been leaked and it's open season on jailbreaking your PS3 (assuming you're technical enough to implement it). And, while it would be very easy to sit back and comment gleefully on the wonderful spirit of curiosity that propels this kind of work, and to likewise point out the futility of stopping people from tinkering with the products they legally bought, I find a different point more compelling.
Quite simply, this war that Sony lost did not need to be fought. They advertised a feature and it was only the subsequent and unilateral removal of that feature, which many customers very much wanted, that created all of this controversy. Without that removal, how much litigation money does Sony save? Without being anti-consumer, how much ill-will do they avoid? And all of that to fight a battle that, not only did they lose, but that they had to know they were overwhelmingly likely to lose over the long haul. Sophos touches on this point in hoping for a different approach in the future.
Let's hope, when the PS4 comes out, that Sony will give up on trying to lock out jailbreakers permanently, and instead provide a way for those who want to run alternative software to do so in official safety.
When King Cnut famously ordered the tide back and failed, he wasn't an arrogant absolute ruler trying to show off. He knew he would fail, and thereby demonstrated that to hold back the tide was impossible - and, in any case, unnecessary - even for a king.Once I got done snickering at the name King Cnut, I found the analogy perfectly fitting. Hopefully Sony will avoid this war entirely the next go around, though with their track record, I won't be holding my breath.
Tue, Oct 9th 2012 1:40pm
from the if-looks-could-sue dept
Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he's become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony's intellectual property, creates confusion in the market and causes damage to Sony.This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.
Thankfully, the Hollywood Reporter has provided some further clarifications on the matter. Here we learn a bit more about the exclusivity clause in Lambert's contract.
According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an "exclusivity clause" that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert's work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.
Next is the claim of trademark infringement.
According to the lawsuit, "With the intent of unfairly capitalizing on the consumer goodwill generated by 'Kevin Butler,' Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial."Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&D department.
These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.
"Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer," say the defendant. "Bridgestone denies that 'Kevin Butler' appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial."This is certainly not the first time something like this has happened. Many years ago, Wendy's had a very successful advertising campaign starring Clara Peller as a little old lady asking a generic fast food chain the famous question, "Where's the beef?" She lost her job with Wendy's after she starred in a Prego commercial uttering the phrase: "I found it. I really found it."
Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on "Kevin Butler," that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.
What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert's career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?
by Mike Masnick
Wed, Sep 26th 2012 12:06pm
from the details-matter dept
The reality today is that you don't need to go that route if you don't want to. That doesn't mean that there is no need for major labels at all -- even if some will confuse those two statements. It just means if you want to be a successful musician, it's now a choice, rather than a requirement. In short: major labels can and do play a role in helping some artists. Historically, I think they've done a pretty bad job of it (mostly representing their own interests much more than the artists'), but that doesn't mean they don't do certain things well. And for artists who need those certain things -- with radio play being a big one -- it may be reasonable to do a deal with a major, though, preferably with eyes wide open and (if possible) on their own terms, rather than the labels'. The point of what I've said all along is that you can now succeed without the labels if you want to. But for those who wish to use the labels, that should be an option to. It's just that the rise of alternatives should mean that the labels become more willing to change their terms to be less artist-unfriendly. It also likely means that we'll see more overall competition and that many artists will find alternatives appealing. As such, the majors will be forced to adjust over time, even doing more reasonable deals.
I bring up all of this again, because there's a lot of attention this week over the news that Trent Reznor has signed some sort of deal with Columbia Records (owned by Sony Music) for his new(ish) band, How to Destroy Angels, leading a bunch of people to claim that he's "abandoning the DIY" market. You can see everything there is to know in the statement Reznor released last week, which doesn't go into many details, but it certainly hints at the idea that this is not a standard-issue major label deal:
Regarding our decision to sign with Columbia, we've really spent a long time thinking about things and it makes sense for a lot of reasons, including a chance to work with our old friend Mark Williams. There's a much more granular and rambling answer I could give (and likely will in an interview someplace) but it really comes down to us experimenting and trying new things to see what best serves our needs. Complete independent releasing has its great points but also comes with shortcomings.I'll be interested to hear about the details eventually, because that certainly hints to there being much more to this than just "signing with a major." And there's nothing I disagree with in what he says. Being completely independent does have its great points, but it also makes certain things much more difficult. I don't think anyone's denied that. Of course there are also well known shortcomings when working with a major label. So, it's a case of tradeoffs, and when you have someone in a position to negotiate a more favorable deal that can hopefully minimize the bad side of a label deal, and get the good part, that seems like a perfectly reasonable strategy for those who want it. I think that Reznor likely would have been fine staying indie for this release, but depending on what he's doing, there may be perfectly reasonable arguments for doing this deal.
I know that there are some people who think that everyone absolutely should go indie, but I've never said any such thing, nor do I believe it. I think that going indie is now a much more viable option than it's been in the past, but going to a major label certainly does not preclude being innovative. In many ways, I think of it similarly to the way I view startups as well. It's less and less necessary to raise venture capital to do a startup -- but that doesn't mean that raising venture capital is necessarily a bad thing. There are certain opportunities that really require it. If you go in with your eyes wide open and can negotiate a favorable deal that lets you do what you need to do, more power to you. In the long run, I think that there are much bigger opportunities in focusing on better connecting with your fans, and historically major labels have sometimes made that more difficult. But if an artist sees good reason to work with a major, there's nothing inherently wrong with it.
Mon, Aug 13th 2012 2:38pm
from the not-just-artists-getting-screwed dept
While most of our stories revolve around the artists who get screwed, there are other people getting screwed in the process as well. One of these people is a music producer by the name of Roy Thomas Baker, a producer for the likes of Queen, Guns N' Roses and Journey. Roy is now suing Sony for unpaid royalties on 21 Journey songs.
Sony was supposed to pay Baker royalties under a producer agreement, according to his 18-page federal lawsuit. But Baker says an audit of Sony's books revealed that the music company had been underreporting his royalties by more than $475,000 for the period audited.If these allegations against Sony are true, that is quite a lot of money that Sony was not paying out. It really isn't surprising at all though. We have seen such payment dodging from all throughout the legacy entertainment industries. Publishers, labels, movie studios and game publishers have all used such tricks to avoid paying out money to the people who actually make possible the income they have. All the while claiming that they support the people in the trenches.
He says Sony is refusing to release other documents that might uncover additional underreporting since the audit, and he estimates that his royalties may have been underreported by more than $500,000 before the audit using Sony's incorrect rates.
This lawsuit also highlights something we pointed out about that settlement Sony made earlier in the year, that Sony got off way too easily.
Baker says he opted out of a class action over Sony's alleged failure to correctly pay artists for downloaded music because the proposed settlement in March "is wholly insufficient to make plaintiff whole."Because no matter how you worked out the split of the $5 million that Sony set aside for settlement, Roy would not have made anything close to the $475,000 he says he is owed. If other artists and producers feel the same way, Sony's legal team won't get any rest any time soon.
All in all, these lawsuits are just another indication that the entertainment industry is changing. As more and more artists are able to bypass legacy gatekeepers and only use those enablers that truly add value to their work and make more money in the process, those artists stuck with legacy gatekeepers will wonder why they aren't making as much money as they feel they should. They will eventually leave those gatekeepers, but in the meantime, we will see a whole lot more actions like this as those artists and other enablers seek to get paid.
by Tim Cushing
Mon, Jul 30th 2012 9:00am
from the you-need-a-seriously-large-staff-to-get-nothing-done dept
When it comes to dealing with the "permission culture" that goes hand-in-hand with copyright these days, there's really no way to win. Certain rights holders claim they just want to be asked, but the actual process involved makes it seem like you'd save a ton of time just assuming the answer is "no."
Hugh Brown (a.k.a. Huge), an Australian recording artist and music business coach, experienced this circuitous process firsthand when he attempted to craft a parody of Adam Lambert's "If I Had You," entitled "If I Had Stew." Parodies are handled a bit differently in Australia, despite recent concessions in Australian fair dealing laws. According to APRA (Australasian Performing Rights Association), "lyric changes and parodies of works must [be] cleared directly with the copyright owner."
"If I Had You" wasn't written by Lambert, but by Swedish songwriting team Maratone (Max Martin, Shellback and Kritian Lundin). But Huge couldn't approach Maratone directly as its website indicated that all the trio's songs were owned by the writer's respective labels. So he emailed Maratone and sent another form asking RCA/Jive Records for permission to make this recording.
Huge heard nothing from Sony but did hear back from Maratone... who told him to contact Kobalt Music Publishing and clear it with EMI as well. Quick count of players involved: There's Maratone, the trio of songwriters behind Adam Lambert (who's likely off sleeping the undisturbed sleep of successful angels). Sony Music. RCA/Jive Records. Kobalt Music Publishing. And EMI. That's four labels and not a single person willing to discuss clearing Huge's parody.
A couple of weeks pass and Sony still hasn't responded. Kobalt UK and EMI Australia have... sort of. The two labels directed Huge to yet another set of forms to fill out, despite him having given them all this information in his initial emails. The new forms aren't even for requesting permission to record a parody. All they do is assist the labels in compiling a price quote on the as-of-yet unrecorded song. And even if permission is granted, it likely still won't be enough. EMI only owns one-third of the track in question. Songwriter Savan Kovetchka, an EMI signee, contributed to Lambert's track, along with Max Martin and Shellback. This means Huge still needs permission from the other two songwriters and some sort of answer from Sony.
It's now nearly a month since Huge first made contact and no progress has been made. Sony appears to be ignoring his requests. If anything, he's further behind than he was 27 days ago, when this whole thing kicked off. The "good" news is that Kobalt Media (representing Kotecha) said "yes," giving Huge one-third of a "permission" -- pending EMI's approval... and when it comes to getting written permission, one-third of a permission slip is worth approximately one-third of nothing. Huge did the right thing and asked (and asked... and asked) for permission, but despite the ever-growing list of interested parties, it looks as if "permission" might be something they simply can't give. And then... things go completely off the rails.
Huge opens his last post on the debacle with, "Well, I'm gobsmacked! No wonder the major labels are in so much trouble." Kobalt has given their blessing but EMI begins a long process of royalty-related correspondence so twisted it would make Joseph Heller proud.
It starts out with a simple request for clarification by EMI.
What is your main goal for this use?Huge responds:
In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form. Is this principally for release as an mp3 single?
To be honest, my main intention is to make the song for my own amusement.Gauging the market before putting the song up for sale is just common sense and YouTube's a pretty good place to get quick feedback. But as soon as YouTube is mentioned, EMI fires off a preliminary standard contract for sync rights, showing that its share of any money generated would be 33.34% and a guesstimated one-time fee of $1000.
If I play it to few people who agree with me that it's fun and good, then I'll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.
If it gets any traction on YouTube, then I'll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.
Huge forwards EMI his approval letter from Kobalt, which sends the label off on an entirely different tangent.
I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip. If you want to request approval to record and release this song you will need to get in contact with our copyright department.So, Huge has been talking to the wrong people. He sends a letter back acknowledging the fact that he (obviously) can't sync the video until after he's recorded the song. He asks EMI for a contact name in the copyright department and receives this in response:
Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?This a question that can't be answered. According to APRA/AMCOS rules, Huge needs to secure permission before he can worry about uploading it to YouTube. He tries again to get EMI to follow his line of thinking: get permission, record, upload.
That depends on whether I am allowed to use Sony's backing music or whether I have to completely re-record it myself ... still no word from Sony.EMI takes this clear statement of ducks-in-a-row and it decides that the mechanical license question needs to be clarified before anything else can proceed, except that other stuff (getting permission) also needs to happen first and perhaps simultaneously.
My instinct is to clear everything before I do anything. If I know what it's all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...
So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?At this stage, Huge is still waiting for permission from two more writers. EMI, however, only seems to be concerned with properly licensing a song that a.) doesn't exist and b.) quite possibly won't exist if permission is denied. It's also given Huge the "opportunity" to pay an upfront fee of $1000 for a track he might not even make. Huge (once again) points out his thought process: permission, record, YouTube/mp3. This repeated clarification makes no difference. EMI is still hung up on the mechanical license for syncing when it's not trying to just punt the whole thing over to the copyright department. EMI also insists that its previously mentioned $1000 "contract" is valid for only four weeks, after which it will need to issue a new contract. Huge points out (again) that he still is waiting on permission to record.
If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.
EMI responds with this amazing statement, which baldly states that the label doesn't particularly care whether or not Huge ever gets a chance to record this parody if he's not willing to throw some cash its way:
We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.Huge attempts to wrap his mind around this:
OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...Precisely. If you want artists to play nice within the confines of your system, then you need to have a workable system, not just a set of loosely-related entities all acting independently and in their own best interests. Having multiple layers of corporate bureaucracy standing between two artists only hurts those who are actually trying to do the right thing. If Huge had gone the other way and decided that it was easier to ask forgiveness than permission, I can guarantee that any sort of takedown or cease-and-desist would come from a single source. When it comes to saying "no," you generally only need one person. But to get a "yes?" That's a "team" effort, apparently.
Alternatively, they won't ask for permission for me to record the parody until ... I've recorded it and know what I'm gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!
by Mike Masnick
Fri, Jul 13th 2012 11:11am
from the in-the-pirate-bay's-home-country dept
This even has the labels (who, yes, have an equity position in Spotify -- more on that in a bit) talking about how they're making more money than they have in a long, long time, thanks to Spotify:
“We’re back to the same revenue levels as during 2004, and if the development continues in the same way we’ll be back on turnover similar to those during the “golden days” of the CD in just a few years,” says Universal Music Sweden’s MD Per Sundin.Now, I've learned to take any claims from the major labels with a grain of salt, and there are some clear issues with Spotify. People have complained that the deals favor the majors so they get a larger cut than the indies. That's definitely a problem. Others insist that Spotify doesn't pay enough -- but multiple studies keep finding that, on a per listen basis, Spotify actually pays quite nicely. There may still be significant issues with how the labels pass that money on to artists, however.
“We’ve seen massive change in music consumption, where music fans are now listening to more music than ever, in an entirely legal environment. This means that revenues are increasing all the time, and artists get paid every time their music is played. Our artists get significant revenues from Spotify, which is our biggest income source for Sweden. A positive side effect is that we’re investing a lot in new talent.”
Mark Dennis, CEO of Sony Music Sweden, makes the same point: “One of the most gratifying consequences of this is that it gives us the opportunity to sign more artists, and record more new Swedish music than ever. In fact, for most of our artists, streaming music now represents the majority of the revenue.”
The point of this isn't to say that "Spotify" is the answer. There are, clearly, some questions about that particular service. But it certainly shows that there are solutions that very effectively compete with free, and as they grow, they can certainly help make significant money for the copyright holders. Spotify, of course, had a head start in Sweden, and the adoption rates there are incredible. However, the point is pretty clear: let new services like Spotify grow and thrive and effectively compete with free, and they will do so -- and the business issues seem to pretty quickly sort themselves out. Obviously having even more competition would be a good thing as well, as competitors will keep trying to offer something even better (and put pressure on Spotify to advance as well).
In the end, though, Spotify is a classic case of giving the public what they want, rather than what the industry wants them to have. And yet, in doing so, it's also now providing massive revenues for the industry -- even as people continue to insist that such a result is impossible.
by Mike Masnick
Thu, Jun 7th 2012 1:17pm
from the the-internet's-got-this dept
“The Idler Wheel” is counting on the devotion of Ms. Apple’s fans. Before she appeared at South by Southwest her manager, Andy Slater, said he told Epic Records: “ ‘I want you to do nothing.’ I said: ‘Don’t make any posters. Don’t make any cards. Don’t put out a single. Just don’t say anything. Let her play the show. It’s been a few years. Let kids go to the show, film the thing, put it on their blogs, and you don’t need to do anything.’ ” Almost immediately after her set amateur video clips were on YouTube.There are a few interesting things here. First of all, we're always told that musicians need the big labels for "marketing" purposes. Yet, here's an artist specifically recognizing that the way a label does marketing can actually make things worse, not better. On top of that, what she (or her management, in this case) clearly recognize is that the way to really do "marketing" these days is to connect with fans and then trust them -- not treat them as criminals. Notice that no one wanted the label to release a video or put the music on YouTube. Instead, they full expected and were happy with the fact that the fans filmed the show and put it on YouTube. The same YouTube that is still being sued for a billion dollars for letting people do that. The same YouTube that people tell us needs to be more proactive in preventing the fans from doing exactly what they did and exactly what Apple appears to have wanted them to do.
There's a big point here. If we shut down sites like YouTube, or force them to pre-block any and all content without proof of copyright or license, this kind of very, very successful marketing wouldn't be possible. Instead, you'd have nothing but Epic doing its thing -- which everyone seems to recognize would lead to a worse result for the artist...
by Mike Masnick
Wed, May 23rd 2012 8:05am
from the just-great... dept
But Widdowson is a specialist. He's one of 10 reverse-engineers working full time for a stealthy company funded by some of the biggest names in technology: Apple, Microsoft, Research In Motion, Sony, and Ericsson. Called the Rockstar Consortium, the 32-person outfit has a single-minded mission: It examines successful products, like routers and smartphones, and it tries to find proof that these products infringe on a portfolio of over 4,000 technology patents once owned by one of the world's largest telecommunications companies.The article admits that Nortel got most of these patents because it wanted them for "defensive" reasons. And now look at how they're being used. Remember that the next time you hear a company promise to only use its patents defensively. There's also a ridiculous quote from Rockstar's CEO, John Veschi:
When a Rockstar engineer uncovers evidence of infringement, the company documents it, contacts the manufacturer, and demands licensing fees for the patents in question. The demand is backed by the implicit threat of a patent lawsuit in federal court. Eight of the company's staff are lawyers. In the last two months, Rockstar has started negotiations with as many as 100 potential licensees. And with control of a patent portfolio covering core wireless communications technologies such as LTE (Long Term Evolution) and 3G, there is literally no end in sight.
“A lot of people are still surprised to see the quality and the diversity of the IP that was in Nortel,” he says. “And the fundamental question comes back: ‘How the hell did you guys go bankrupt? Why weren’t you Google? Why weren’t you Facebook? Why weren’t you all these things, because you guys actually had the ideas for these business models before they did?’"The real answer, of course, is because patents are meaningless. Ideas are worth nothing by themselves. Ideas only matter if you execute, and anyone who's ever actually executed on an idea will tell you that the original idea almost is never reflected in the final product. The process of going from idea to actual product is a process by which you learn that what matters is not what you thought mattered. And yet, for reasons that make no sense to anyone who has ever actually built a product, creating monopolies around the ideas only serves to create a massive tollbooth towards actual innovation. And that's what we have here -- and it's funded by Apple and Microsoft.
Once again, we see that these two large companies are using the patent system not to innovate, but to stop up and coming competitors from innovating. The patent system isn't being used to encourage innovation but to protect incumbents from an open market.
Oh, and worst of all, the reason that the antitrust effort was dropped was because Apple and Microsoft promised to license the key patents under "reasonable terms." But... Rockstar is not subject to that agreement.
But the new company — Rockstar Consortium — isn’t bound by the promises that its member companies made, according to Veschi. “We are separate,” he says. “That does not apply to us.”That seems quite problematic, and perhaps worthwhile for the government to reopen its investigation...