In addition to our usual offerings (tees, hoodies, mugs and stickers) we've added a bunch of additional options for Copying Is Not Theft gear, at the expense of color choices (necessitated by the design). There are tank tops, long-sleeve tees, crew neck sweaters and a second option for women's tees. Also, in addition to our usual $23 premium men's tees, you have the option of a cheaper Hanes tagless tee for only $20. We don't know if this is something people prefer, and we're not sure how big the quality difference is (the premium tees are very nice) -- but if lots of people opt for the cheaper t-shirt and are satisfied with the quality, we'll consider making this available for more shirts in the future. Vote with your wallet and by letting us know in the comments or on Twitter!
Techdirt has been warning about the problems with the Creative Commons Non-Commercial License (CC NC) for many, manyyears. Last September, Mike wrote about an important case involving the CC NC license, brought by Great Minds, an educational non-profit organization, against FedEx, the shipping giant. Copy shops owned by FedEx photocopied some of Great Minds' works on behalf of school districts. The material had been released by Great Minds under a CC BY-NC-SA 4.0 license -- that is, the Attribution-NonCommercial-ShareAlike license. The issue was whether a company like Fedex could make copies on behalf of a non-commercial organization, of material released under a license that stipulated non-commercial use. Happily, the judge in the case has ruled that it can (pdf):
At issue on this motion to dismiss is whether the allegations that FedEx has copied the Materials at the behest of one or more school districts and charged the school districts for that copying at a rate more than FedEx's cost states a claim for violation of GM's copyright. There is no claim that the undisclosed school districts are using the Materials for other than a "non-Commercial purpose" or that FedEx has copied the Materials for any other entities or for its own purposes. As so framed, FedEx's copying of the Materials is permitted by unambiguous terms of the License and the motion to dismiss is granted.
That's a sensible result: FedEx was simply an intermediary making copies on behalf of a non-profit organization, even if FedEx extracted normal profits in the course of doing so. But it's also important, because if the judge had found against FedEx, the wider consequences for the CC-NC license would have been disastrous. A few were spelled out in the August 2016 letter from Creative Commons Corporation's lawyers (pdf) seeking permission to file an amicus brief:
a CC BY-NC-SA 4.0 license would be of decidedly limited value if the licensor could invariably sue any for-profit intermediary engaged by the end user in the course of carrying out the ultimately permitted use. And the results would be absurd. Under the plaintiff's interpretation, school districts could not engage a parcel service to send copies of the licensed works to schools; could not use an internet service provider to host the works online for use in the classroom; or, more unworkable still, could not even email a digital file through a commercial network for receipt by students and educators
Although everything turned out fine in this case, it's worth noting that the problem was caused -- yet again -- by the ambiguous nature of the CC-NC license. Moreover, we are quite likely to see yet more court cases as a result of the lack of clarity around the definition of non-commercial use. It's hard not to feel that this particular Creative Commons license is more trouble than it's worth.
from the taking-the-tachyonic-train-to-Shenzhen dept
Techdirt has written a number of articles tracking how China is moving beyond its traditional counterfeit imitation culture to one of collaborative innovation, as exemplified by "gongkai". An article on the Quartz site provides a useful update on this world, concentrating on developments in Shenzhen, generally regarded as China's hardware equivalent of Silicon Valley. Things have now progressed from simply copying top-selling products, to spotting future winners on the Web:
Thanks to the internet, factories and designers looking for the next hit product can easily turn to Kickstarter, Amazon, or Taobao to see what gadgets are hot.
The article describes how nimble Chinese operations even produce their own versions before the original is released. For example, Yekutiel Sherman, an Israeli entrepreneur, came up with a design for a smartphone case that unfolds into a selfie stick. After months of research and design, here's what happened:
one week after his product hit Kickstarter in December 2015, Sherman was shocked to see it for sale on AliExpress -- Alibaba's English-language wholesale site. Vendors across China were selling identical smartphone case selfie-sticks, using the same design Sherman came up with himself. Some of them were selling for as low as $10 a piece, well below Sherman's expected retail price of £39 ($47.41). Amazingly, some of these vendors stole the name of Sherman's product -- Stikbox
As the article goes on to describe, enforcing traditional monopolies like patents is so difficult as to be pointless, thanks to the highly-fragmented and fluid nature of Shenzhen's ecosystem. Instead:
Businesses are now forced to come to terms with this new reality. It’s not enough to create a product with a groundbreaking design or features, like a smartphone case that turns into a selfie stick. Companies dealing in the creation of physical goods now must make products that are impossible to copy exactly from the get go, by focusing on a special feature they can protect, or creating a coveted brand name consumers will pay more for.
In other words, the competitive environment in Shenzhen is driving the uptake of approaches that Techdirt has been advocating for years. That's good for customers, who enjoy a greater choice and more rapid innovation as a result, but this shift can be good for companies too, as the Quartz article notes:
Joffe, the venture capital investor, argues that some companies might even benefit from copycatting, as it can bring more awareness to the product itself. "If you have more customers buying the fake product then it creates more awareness for the real product, and it becomes an aspirational thing. At some point they might be able to afford the real thing."
It's well worth reading the whole article for its description of the Shenzhen scene, even if regular Techdirt readers will find the main ideas there extremely familiar.
The details here do matter. The defendant, lawyer Ezra Sutton, had worked alongside Newegg in one of the many patent troll lawsuits. Sutton was representing another company sued in the same lawsuit as Newegg by a patent troll, Adjustacam. They had won the case against the troll, and both Newegg and the company Sutton represented, Sakar International, filed motions seeking attorneys' fees. Here's where things get iffy on Sutton's part, as described by Alison Frankel via the Reuters link above:
As Newegg general counsel Lee Cheng recounts the story, he told Sutton early on that Newegg would be willing to file a joint brief with Sakar if Sakar paid a share of the legal fees. Sutton said no thanks, but, as the filing deadline approached, he came back to Newegg. Cheng agreed to show Sutton a draft of the brief Newegg intended to submit to the Federal Circuit to help him write a complementary brief for Sakar.
Instead, the day before Newegg’s brief was due, Sutton filed a brief that was largely copied from Newegg’s draft. When Newegg realized what he’d done and protested the filing, Sutton withdrew the brief and subsequently filed a shorter version focused on Sakar’s argument.
So, first off, what a shitty thing to do by Sutton. I think that's pretty clear. At the very least it potentially would have made a mess for Newegg who would have looked bad filing a nearly identical brief to Sutton's after he did. But, then there's the question of what to do about it. Newegg decided to sue Sutton for copyright infringement -- and this is where I'm a lot less comfortable with Newegg's decision. I think it's the wrong move.
We've actually discussed the question of whether or not legal briefs should be subject to copyright before. A few years ago, some lawyers sued the big legal publishing companies, Westlaw and LexisNexis, for republishing briefs when they published compendiums of cases. That was ridiculous, and thankfully the court tossed out the lawsuit, finding that the republishing in this case was easily fair use.
Admittedly the facts in Newegg's case against Sutton are very different. This isn't republishing dockets for lawyers and scholars to access and review. The situation here seemed more like plagiarism, with Sutton more or less trying to take credit for Newegg's work (which had the knock on effect of potentially making Newegg look bad). And I get all of that, but it still troubles me that copyright was the tool here. It feels inappropriate. Copyright is supposed to be about the incentives to create. And no one needs a copyright incentive to create a legal brief -- something that Newegg's Cheng agreed about when I reached out to him about this case. He more or less admits that they're just using copyright here for a clearly non-copyright purpose. As he told me:
"We didn't file this case for profit or money. It's for principle and justice (corny but those values truly motivate me). However, we do believe that Sutton's action did cause us monetary harm and that we are entitled to remedies, but it clearly wasn't the focus of this suit. This suit was to send a message, strictly directed at unethical and lazy lawyers, to do what they learned in the first year of law school in terms of properly crediting others' work, and to do what anyone with common decency would do. Lawyers should be held to, and should hold themselves to, higher rather than lower standards."
I don't disagree with any of that -- but it's still troubling to me that copyright is the tool here, because that's a decidedly non-copyright thing that it's being used for. In fact, this seems to be one of those situations where the complaint is really about plagiarism rather than copyright, but where there's enough overlap that the legal mechanism of copyright is enabled to come into play. I fear that this will then be used by others in even more abusive ways -- though Cheng seems confident that the specific facts of this case would likely limit such a potential result.
I'm even bothered a bit by the fair use analysis here where the judge denied Sutton's fair use claims. I would think that the question of whether or not a legal brief should be covered by copyright would be a pretty big factor here. And the judge does agree that this point weighs somewhat in Sutton's favor (and points to that earlier case). The judge also finds, correctly, that the 4th factor -- the impact on the market -- weighs in favor of Sutton since Newegg doesn't have a market for selling its legal briefs. But while many courts often point to that 4th factor as a key one, this court basically just decides that it doesn't matter as much:
Upon consideration of all four factors, with more weight given to the first and
third factors based on the facts, circumstances and particular nature of this case, Sutton
did not meet his burden of establishing a prima facie case that his copying of Newegg’s
draft brief was fair use.
So, yes, he's saying because of the specific facts in this case, but it does feel like -- as is all too often the case in fair use cases -- the judge has basically determined what result he wants, and then weighs the four factors accordingly. Admittedly, this might not be a huge deal. The facts are pretty specific, and plagiarizing is sleazy. But, I'm still troubled with the use of copyright to punish even sleazy behavior if it's not related to the reasons for copyright existing.
So, last week we launched our new Copying is Not Theft t-shirts (and hoodies, and stickers and mugs). It's a nice shirt:
We thought the message was fairly straightforward, building of the wonderful song and animation done by Nina Paley: Copying Is Not Theft:
That doesn't necessarily mean that copying is always legal or morally correct. But it pretty clearly is not theft.
The shirt is selling fine (get yours soon, because it's only available for a few more days!), but what's been surprising is how much it has resulted in pure rage from some people who seem really, really pissed off that we'd dare suggest the simple fact that copying is not theft.
Earlier this week, we wrote about the head of the Global Anti-Counterfeiting Group promising to make counterfeit copies of our t-shirt (which seems a bit... odd, no?), but today I wanted to highlight some of the other responses we've received. The fact is, many people do understand the message and seem to appreciate it, but I'm somewhat surprised at those who disagree with it who feel the need to not just disagree, but to act as if merely stating a four word factual sentence is somehow offensive. It started in our comments where someone insisted that saying copying is not theft wasn't just wrong, but was "ignorant and irresponsible." Huh.
There have been a few similar comments to our posts, and a few angry remarks on Twitter, but the real action has definitely been on Facebook, where some people are just really, really angry. Here's just a sampling:
And, then, of course, you have that one person who always thinks they have the "gotcha" moment:
Then there's the guy who's so confused and angry that he's sure we've got our offices stacked high with infringing material, so he's "reported" us (to whom...? no idea...)
And then there are the people who get so frustrated that we're being accurate that they then need to mock us for using words as they're supposed to be used.
We've been doing this long enough to recognize that it stirs a lot of passion and emotion, so it doesn't surprise us that some people don't like the message on the shirt (and certainly plenty of others seem to enjoy it). But, we're still fairly astounded at the level of brainwashing that seems to go on, such that people get so angry about trying to separate out the fairly fundamental differences between copying something and stealing it.
Either way, if you're looking for a t-shirt that is a... uh... proven conversation starter, check out our Copying Is Not Theft gear while it's still available...
Every so often when people find out about the position we tend to take on copying, they hit back with what they think is a "gotcha" of something along the lines of "you wouldn't feel that way if someone copied your stuff." They really do. All the time. There are a number of scraper/spam blogs that copy and repost Techdirt's content, and it's really no big deal. As we've noted for a long time, all of the content that we publish directly we've declared to be in the public domain, so feel free to copy it with some caveats (which we'll discuss below). Last week, we launched our latest T-shirt, the "Copying is Not Theft" shirt:
So far there's been a great response to it, but some people seem really upset by the basic message. On Twitter and in our comments, we've had a few people pull out the "Oh, well how will you feel when I copy that shirt!" line of thinking that they'd found some sort of gotcha. The oddest, of all, however, was John Anderson, who apparently runs something called the "Global Anti-Counterfeiting Group" insisting that he's going to counterfeit our shirt.
Yes, yes, he's obviously just being snarky and thinking he's making a point, but it still seems odd for someone who insists he's against counterfeiting to basically say he's planning to counterfeit our shirt. At the very least, it actually gives us a platform to make our point: if he really wants to do so, he can absolutely go and make those cheap $5 shirts. But they won't sell. Why? This is the whole point we've been trying to make all this time. The reason people buy shirts from us is because (1) they like the shirts and (2) they want to support Techdirt. Somehow, I get the feeling that the community that John Anderson has built up around his Global Anti-Counterfeiting Group aren't exactly the kind of people who would jump at an offer to buy "Copying is Not Theft" T-shirts, even if they are 25% the price of our T-shirts.
This is the point that so many fail to get when they freak out about people copying. If you've built up a community of people who want to support you and people who like and are interested in what you do, there's nothing to fear from copying. It's only when you don't have that kind of support, or when you're trying to force something on people that they don't want that you suddenly have to worry about copying.
This is why we've always pointed to the same response when people say they're going to copy us and prove that we really are worried about copying or that copying really is theft. It's not. Here's what I wrote nearly a decade ago and it's still stands true today:
We have no problem with people taking our content and reposting it. It's funny how many people come here, like yourself, and assume you've found some "gotcha." You haven't. There already are about 10 sites that copy Techdirt, post for post. Some of them give us credit. Some of them don't. We don't go after any of them.
1. None of those sites get any traffic. By themselves, they offer nothing special.
2. If anything, it doesn't take people long to read those sites and figure out that the content is really from Techdirt. Then they just come here to the original source. So, it tends to help drive more traffic to us. That's cool.
3. As soon as the people realize the other sites are simply copying us, it makes those sites look really, really bad. If you want to risk your reputation like that, go ahead, but it's a big risk.
4. A big part of the value of Techdirt is the community here. You can't just replicate that.
5. Another big part of the value of Techdirt is that we, the writers, engage in the comments. You absolutely cannot fake that on your own site.
So, really, what's the purpose of copying our content in the manner you describe, other than maybe driving a little traffic our way?
So, if you really want to, I'd suggest it's pretty dumb, but go ahead.
This same thing holds true for counterfeiting goods as well. When we launched our first shirt, the Nerd Harder shirt, we saw a few copycats spring up on Teespring, complete with the language claiming that the shirts were from Techdirt, when they were not. We reached out to Teespring telling them we had no problem with them leaving up the T-shirts, but we would appreciate it if they didn't say that supporting them was supporting Techdirt. That's been consistent with our position all along, that in the realm of trademark, the one thing that does make sense is when it's used as a form of consumer protection. If buyers might be confused about who is really endorsing the product, that's a reasonable concern. But someone copying our shirt without pretending it's from us? That's totally cool. In fact, maybe they can make it better.
I mean, it's not like we even came up with the phrase "copying is not theft" either. It's the name of a truly wonderful song that Nina Paley wrote and illustrated:
Did we "steal" her song in taking the title and making it a shirt? Hell, no. We made a new thing. We took something that she did and we built on it to offer something new (cool T-shirts) to a different audience (ours), and so far, it seems to be working. If John Anderson thinks he can compete with his audience, he should go for it.
Hell, we'd be happy to compete with anyone doing so, because we know the message resonates with our audience. I'm not so sure it would resonate with the audience of some random person trying (and failing) to prove a point. So, bring it on.
And, yes, we've even made it extra easy for folks like John Anderson. If he likes, we've made the original image available as both a vector SVG file and a high-res PNG. So go ahead, John Anderson from the Global Anti-Counterfeiting Group. Go ahead and counterfeit our shirt. Knock yourself out. I imagine you'll sell somewhere close to zero of them. Though the members of your group may find it odd that the head of a Global Anti-Counterfeiting Group's first response to seeing a T-shirt he doesn't like is to talk about counterfeiting it. Right, John?
Anyway, if you'd like to make a point to John Anderson and the Global Anti-Counterfeiting Group, here's your opportunity. Buy one of our lovely Copying is Not Theft T-shirts.
Yeah, by now, we get it. The legacy copyright folks have spent decades beating into the minds of the public that every idea and concept and philosophy is "owned" and that you need to get permission for just about everything that it's no surprise to see crazy, nutty copyright lawsuits pop up every here and there. At least, usually, the really nutty ones are filed pro se (i.e., without a lawyer) and quickly dumped. However, it's doubly amazing when you get a lawsuit that feels like a pro se lawsuit, but is actually filed by a real lawyer. In this case, the lawyer is Joel D. Peterson, whose website lists "intellectual property" as one of his specialties. If that's the case, he may want to demand a refund from his law school.
Peterson has filed a lawsuit on behalf of author Erick DeBanff, who appears to be trying to build some sort of "self-help" empire around living your life "to the max." The lawsuit is against Google for copyright infringement, because it appears that Google used a kind of trite message in a commercial about making every moment matter -- and it was the same way that Debanff subtitled his book. DeBanff's book is called "Vie Max" which also seems to be the name of the movement/fad/concept/something that he's selling. But the subtitle is "How to live the next 2 billion heartbeats of your life to the max."
It feels a little overly sentimental considering what it's advertising, but whatever. Still, at the end, you'll notice that it says "there are about 2 billion, 500 million heartbeats in a lifetime. You should feel every one of them."
And that according to DeBanff/Peterson (and basically no one else) is copyright infringement:
These words are essentially a direct copy of the words and philosophy in Mr. DeBanff's book and is a violation of the U.S. Copyright Act.
Except they're not. Yes, it sort of marginally conveys the same idea -- that there are ~2 billionish heartbeats in a standard lifetime and that that number means something, but... uh... that's not copyrightable. It's an idea and as any first year law student should have learned, ideas and philosophies are not copyrightable. Just the specific expression of the idea and a throwaway line that barely has any detail at all is not going to cut it. The fact that there are ~2 billionish heartbeats in a lifetime is also factual information and you can't copyright facts (also kind of something you're supposed to learn early on about copyrights).
In short, there is nothing here that is even remotely copyright infringing, and suggesting that there is is laughable. Such a lawsuit should get tossed out quickly.
Anyway, no, just because multiple people come up with the same kinda sappy/kinda silly concept around the same time (and express it in very different ways), that's not copyright infringement. And a lawyer with any knowledge in "intellectual property law" should know that.
In our recent podcast on copying, we talked about the usual story that people tell about the need for patents: that they protect up and coming startups from being wiped out by "big companies with lots of money" that are simply copying their good ideas. During the podcast, we try to come up with a single example of that actually happening, and we even search the internet looking for examples -- and find it very difficult to come up with a legitimate example. It almost never happens. As we've discussed, in the rare cases when "copying" succeeds, it's because the second company doesn't really copy, but actually comes up with a better product, which is something we should celebrate. When they just copy, they tend to only be able to copy the superficial aspects of what they see, rather than all the underlying tacit thinking that makes a product good. We've referred to it as cargo cult copying after the infamous cargo cults of World War II, who built fake airports, hoping that if they had those fake airports, all of the stuff that came with American soldiers would return.
As you may have heard, Google is finally admitting that its attempt at a Facebook killer, Google Plus, is now basically dead. Mashable has a fantastic post mortem, in which it quickly becomes clear that Google fell for the same old pitfall: cargo cult copying of Facebook:
Interviews with more than a dozen Google insiders and analysts in recent months, many speaking on condition of anonymity for fear of retribution, paint the Google of 2010-2011 as increasingly fearful of Facebook snatching away users, employees and advertisers. Google tried to mobilize itself quickly, but approached the task with all the clumsiness of a giant trying to dance with a younger, nimble startup.
Google launched Plus without a clear plan to differentiate the service from Facebook. It bet on a charismatic leader with a flawed vision, ignored troubling indications about the social network's traction (or lack thereof) with users and continued throwing features at the wall long after many had written Google+ off for dead.
The slow demise of Google+ sheds light on how a large technology company tries and often fails to innovate when it feels threatened.
Ars Technica, similarly, has a good post mortem detailing how Google basically did everything wrong when it came to trying to get into the "social" game:
Google+ was, in a word, "forced." It was forced not only into products and on users but onto the rest of the company, too. In 2011, for instance, Larry Page famously tied all employee bonuses to the company's success in social. It was easy to see why Page decided to do this at the time: Facebook was big and growing and scary. What if people stopped using search and just asked their friends for websites and product recommendations?
With a fear-powered, top-down mandate and every employee having a vested interest in Google+, the social network got shoehorned into every Google product. Google+ showed up in Search, Android, Google Maps, YouTube, Google Play, and many others.
Google+ certainly isn't the first social Google product, but it is the latest in a long line of social failures that the company still doesn't seem to have learned from. It's not that Google can't build great social products—it can—it just continually misjudges which of its social products are good (or even which of its products are social) and therefore deserve the company's focus. Google's social past seems to follow a pattern: throw resources behind social products few people want and try to compel adoption, while neglecting the social products people do want.
And yet... despite all of these failures, you still hear people talking about the importance of things like patents, or the "fear" that Google or other large companies will suddenly enter the market and easily beat startups that are in the space, "because they're so big." Or "because they can just throw money at it." And, yet, that almost never works. In fact, as we've seen with Google and social, they can be exceptionally clumsy at it.
Does that mean that there are no examples of it happening? Of course not. It does happen (and one could even argue that Android is a good example of Google copying iOS). But the idea that the big company always wins or that it's somehow "easy" for big companies to wipe out little companies just isn't supported by that much evidence. If a startup is doing something really amazing and innovative that people actually want, you can almost always guarantee that (1) the big companies will totally miss the boat for way too long and (2) once they finally wake up, be clumsy and ridiculous in their attempts to copy. On that one, there are lots of examples. Microsoft has spent the past few decades making that same mistake. Google has done it with social. Some are suggesting Apple's latest attempt to get into streaming music is the same thing (though it's a bit early to say on that).
People think it's easy to copy because copying seems like it should be easy. But it's not. You can only copy the parts you can see, which leaves out an awful lot of understanding and tacit knowledge hidden beneath the surface. It also leaves out all the knowledge of what doesn't work that the originator has. And, finally, it ignores the competing interests within a larger business that make it much harder for those companies to innovate.
We live in a world that venerates "ideas" but ignores the fact that even the best idea is worthless if it's poorly executed. In turn, people who "copy" ideas are often demonized, even when it's their superior execution that is responsible for their success. But the truth is that copying is a critical part of innovation and progress, and the instinct to ignore or refute that idea has left us without many clear measurements of its impact — not to mention lots of bad policy, and a highly problematic "ownership culture" when it comes to ideas and creative output.
The rise of China has been predicted for a while now, and in the field of technology we are already seeing Chinese companies that are likely to have a global impact. One manifestation of that is the $25 billion US IPO of Alibaba -- roughly, China's equivalent of eBay, but much bigger -- which was the largest in history. Another is Xiaomi, only founded in 2010, but already shipping 61 million smartphones a year. Writing in the Guardian, Charles Arthur called it "China's Apple", although Apple’s head of design, Jonathan Ive, is not too enamored of the comparison:
when asked about the company last October [Ive] was blunt: he "didn’t see [the similarities in design] as flattery" and called the superficial similarity in appearance of Xiaomi's phones and software "theft" and "lazy".
Xiami is not shy about borrowing ideas from Samsung either:
Certainly it has mimicked some of its names: one of the new phones unveiled on Wednesday, a 5.7in device called the “Mi Note”, echoes the 5.7in Galaxy Note phablet range.
No surprise there, you might think, since China is (in)famous for its Shanzhai culture, even though that now goes well beyond producing cheap knock-offs of popular products. But given a tendency to draw on others for inspiration, the following news about Xiaomi, reported by Bloomberg, is nonetheless rather satisfying:
Sales of the company's Mi Power Bank battery pack for smartphones hit 14.6 million units last year, less than half what the total should have been, Chief Executive Officer Lei Jun said at a press conference at the company's headquarters in Beijing Thursday.
"What is the biggest problem? There are many fakes," Lei said. "If there were no counterfeits, our sales would be double or triple. The product has been recognized by everyone."
There is, of course, a delicious irony in that comment, but there's something else. It shows -- just as expected -- that China is recapitulating the early history of the US. Once, America too was a pirate nation, happy to, er, borrow ideas from Europe without worrying too much about asking or paying for permission. Now, of course, the US is the biggest fan of people owning ideas, and forcing others to pay for the privilege of building on them. The comments by Xiaomi's CEO show that China is following the same evolution. Put another way, it can only be a matter of time before Chinese companies regularly sue those in other parts of the world for "infringement" of their ideas, and the country replaces the US as the loudest cheerleader for longer copyright and patent terms, and harsher punishments for those who dare to ignore them.