We've talked in the past about the importance of copying what other companies do as a business strategy (and just how common it is throughout history, despite the pejorative terms associated with it). But one of the key factors in making "copying" a successful strategy is in knowing how to improve upon what you copy. It's why Apple has been so successful over the years. Yes, it builds on the ideas of others, but does so in a way that improves them and makes them more usable.
Yet, we always hear of people fearing companies copying one another (sometimes mistakenly calling them "thieves" or decrying their unoriginality). And yet, it seems pointless to worry about such things. Even as people always seem to be afraid of big companies with big budgets copying others, history has shown time and time again that this almost never works. That's because merely copying what someone is doing not only takes you "where the puck has been" rather than "where the puck is going," but also has you focused solely on the outward, superficial aspects of what makes another product or service successful. What's missing is an awful lot of details in the background -- the knowledge of why certain things work and don't work, as well as how users and customers actually interact with the product. Such copying almost inevitably fails.
With that said, it seems like Samsung's plan to make its own Facebook, using the rather telling code name "Samsung Facebook" seems destined to fail for exactly that reason. The very fact that they're internally calling it "Samsung Facebook" shows that they're already aiming at a target in the past, rather than the future. It's the exact wrong approach and almost guarantees that whatever comes out of it will be seen as pointless by the time it launches. Learning from what others do is a useful strategy. Copying what others do can be a very important business strategy -- but it has to be done with the goal of exceeding where those others are heading, not in replicating what they've already done. That's a recipe for expensive failures.
We recently took Jon Taplin to task for his comments insulting Nina Paley's artwork, because he did not agree with her viewpoint that disobeying copyright law for the sake of making new art was a form of "intellectual disobedience." The debate spilled over to Twitter for a while, in which it went a bit all over the map, before Taplin did issue what appears to be a sincere apology, along with a blog post, which he said he hoped would move the debate forward (unfortunately, that blog post contains yet another backhanded slap at Paley's art -- which he calls "what she claims to be art").
That said, since we're always about "moving the debate forward," rather than arguing over old points, we might as well do that -- and Taplin's blog post, does in fact, bring some new things to the debate that are worth discussing. First, though, as a preamble, to those who haven't been a part of "the debate," I might as well catch you up by posting the in-person debate between me and Jonathan that happened a few weeks ago at the Tech Policy Summit (but was only recently posted online). It runs 45 minutes, starting off slow but gets more and more lively as it goes on:
Okay. Now that you're caught up, the Taplin's blog post reasonably asks if we're losing our ability to innovate, as we become more focused on the ease of copying as an alternative. It's an appealing thought, but one that I don't believe survives significant scrutiny. However, let's start at the top. Taplin points to an article called Infinite Stupidity by evolutionary biologist Mark Pagel. It makes some very interesting arguments, talking about evolution, and wonders if humans are evolving away from being innovative. The basis of this is as follows:
If I'm living in a population of people, and I can observe those people, and see what they're doing, seeing what innovations they're coming up with, I can choose among the best of those ideas, without having to go through the process of innovation myself. So, for example, if I'm trying to make a better spear, I really have no idea how to make that better spear. But if I notice that somebody else in my society has made a very good spear, I can simply copy him without having to understand why.
What this means is that social learning may have set up a situation in humans where, over the last 200,000 years or so, we have been selected to be very, very good at copying other people, rather than innovating on our own. We like to think we're a highly inventive, innovative species. But social learning means that most of us can make use of what other people do, and not have to invest the time and energy in innovation ourselves.
Now, why wouldn't we want to do that? Why wouldn't we want to innovate on our own? Well, innovation is difficult. It takes time. It takes energy.
The fear then, is that, as a species, we become "docile copiers" rather than innovators. In fact, as he later argues (in the paragraph that Taplin highlights on his blog), Pagel questions if the internet is leading to a situation where "copiers are probably doing better than innovators" because we don't have to innovate to get by. It's an interesting theory from an evolutionary perspective, but not one borne out by economics or history, unfortunately, which have studied this particular issue much more closely. Of course, throughout history there are numerous examples of people insisting that we had reached the pinnacle of innovation and there was nothing more to be done. And every time, they're proven not just wrong, but laughably so.
Innovation may be "hard," but it's also incredibly rewarding. If you want to read a very long, but absolutely fascinating and worthwhile book on the subject, I highly recommend Robert Friedel's awesome A Culture of Improvement, which looks at the last thousand years of innovation to understand why do we innovate. The key finding? That we improve because we see a better way of doing things.
But -- and this is the key point -- the way that you see "a better way of doing things" is not to invent something new from scratch. But to see something -- and, often to copy it and then to improve upon it. We, as a species, are always looking to improve. The argument that Facebook has made people perfectly docile suggests little understanding of what happens on Facebook all the time. Even just looking at Facebook alone, there are constant complaints about how it works, with suggestions on how to make it better. There are still companies launching new and different social networks, believing they can do it better.
Is there some copying going on? Yes, absolutely, but there's no real reason to just copy for the sake of copying. It's only if you can do it better. In fact, as the (also excellent) book by Oded Shenkar, Copycats explained, copying is often a very useful strategic weapon in figuring out how to innovate. What Shenkar's work showed was that there is value in copying, but not merely for copying's sake, but to take what's been done, not to re-invent the wheel, but then to do the incremental improvements on it that can make all the difference in the world.
Going back to Nina Paley. Taplin suggests that her "art" is barely art at all, because she is one of those "docile copiers," and thus not innovating. But this suggests a near total ignorance of Paley's work, an incredibly innovative film, which you can see right here:
Is Nina copying? Well, it tells a variation on a classic Indian story, combined with a modern story of the main character's own struggles. It also cleverly weaves in the music of Annette Hanshaw. Is there "copying" going on there? Sure, there are elements of copying, but it's all for the sake of innovating. There is no way to watch that and claim that it is mere "docile copying." Nina had a story to tell, and sought to tell it in a very innovative way. The story had certainly never been told this way. And tons of people have enjoyed the movie because of that innovation. If it were just a copy of "the same old story" people would not have enjoyed it.
And that, really, is what happens all the time. Copying is there -- and it can make people upset -- but it's a key natural resource in the process of innovation. And that's not just a random statement. As the research of many economists have suggested, it is the very nature of copying that leads to economic growth. Why? Because a copy increases the pie. Where once you had "one" copy of the resource, now you have two. And so on. It expands the pie, and makes it more possible to do things, such as innovating.
Caltech professor Carver Mead once talked about how, when things become abundant we have an obligation -- not just a possibility, but an obligation -- to waste that which is abundant. And that is because it creates new opportunities and expands the world and innovation even further. What is more abundant than what can be copied?
So, all of this fear of "docile copying" is, I believe, misplaced. All of that copying is generating the expanding natural resource base for further innovation, as people continue to build on that culture of improvement by saying, "hey, I can do that better." Innovation may be hard, but when the resources are abundant, it cannot be stopped. It is our nature to seek to make things better, and when we share ideas and build and copy on our way to making things better, it is the inevitable progress that we find at the end.
I'm glad that Jonathan brought up this subject and is seeking to move this debate and discussion forward, and I look forward to continuing the back and forth -- hopefully on friendlier terms.
One of the common themes we see over and over again is people filing lawsuits just because they're upset about something (to a lesser extent, this also applies to DMCA takedowns). We just wrote about Judge Posner's shredding of Apple's patent litigation strategy, noting that just because you're "really annoyed," it doesn't mean you get to sue. Famed venture capitalist Fred Wilson has riffed on this idea, talking about how he loves investing in innovators rather than copycats, and he feels a visceral emotional anger when he sees an innovator copied, but that's no reason for a lawsuit:
I have often felt that "palpable sense of injustice" when our firm is an investor in the innovator and a copycat competitor shows up. But there is a difference between being pissed and having a legal claim.
Indeed, as we've written before, we recognize the emotional response that comes about when this happens. It's natural to get angry when someone copies you. But is it a reason to go legal? That's much more difficult to justify. In fact, as Wilson notes, often someone copying you can be a good thing:
Knockoffs create competition for the innovator and keep them honest. And they provide an opportunity for those that cannot, for some reason, work with the innovator.
And, as he notes, if the original company is a true innovator, they'll keep innovating and stay ahead of the competition anyway:
If the innovator keeps innovating, as Apple and [YCombinator] have, they will do fine and will enjoy the spoils that come from creating the category and leading it.
And that's really the key in all of this. Competition is not a static snapshot. Time doesn't stand still. Innovation is an ongoing process. Copycats are often a bit behind the leader, but as long as the leader truly understands its market, it's in a much better position to continue innovating and leading. The copycats act as incentive to increase that innovation, and that seems like a pretty good thing, if we believe that greater innovation is a good thing. People have a natural reaction where they think that "copying" is bad -- but if you look at the overall impact, and the fact that it results in greater innovation from the leader as well, it turns out the opposite is true.
In copyright circles, Mark Twain's speech to Congress in 1906 is well known as being the point at which he made clear his desire that copyright should be vastly expanded to make sure his kids kept earning money:
My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughter, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.
He later argues for infinite copyright:
The English idea of copyright, as I found, was different, when I was before the committee of the House of Lords, composed of seven members I should say. The spokesman was a very able man, Lord Thring, a man of great reputation, but he didn't know anything about copyright and publishing. Naturally be didn't, because he hadn't been brought up to this trade. It is only people who have had intimate personal experience with the triumphs and griefs of an occupation who know how to treat it and get what is justly due.
Now that gentleman had no purpose or desire in the world to rob anybody or anything, but this was the proposition--fifty years extension--and he asked me what I thought the limit of copyright ought to be.
"Well," I said, "perpetuity." I thought it ought to last forever.
Some have argued, somewhat convincingly, that Twain as actually doing a somewhat brilliant satire, which not everyone understood. That would be awesome, if true, and there are some hints that it may very well be. However, it does appear that Twain himself was somewhat more conflicted on this particular issue. Siva Vaidhyanathan has an entire chapter (pdf) of his excellent book, Copyrights and Copyrwrongs, devoted to Twain's fluctuating views on copyright. However, he does suggest that later on in life -- from 1898 onward basically -- Twain appeared to be a strong maximalist.
So it's interesting to then discover, via Joe Betsill, that during that same period, Twain argued that "the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism" and that this wasn't a bad thing. The specifics are that Twain was writing a letter to Helen Keller, who a decade earlier (at 12-years of age) had just gone through a controversy in which she was accused of plagiarizing heavily from another book for her own work, The Frost King. Twain wrote to Keller, with whom he was friendly, after learning about the plagiarism accusations:
Oh, dear me, how unspeakably funny and owlishly idiotic and grotesque was that "plagiarism" farce! As if there was much of anything in any human utterance, oral or written, except plagiarism! The kernel, the soul—let us go further and say the substance, the bulk, the actual and valuable material of all human utterances—is plagiarism. For substantially all ideas are second-hand, consciously and unconsciously drawn from a million outside sources, and daily use by the garnerer with a pride and satisfaction born of the superstition that he originated them; whereas there is not a rag of originality about them anywhere except the little discoloration they get from his mental and moral calibre and his temperament, and which is revealed in characteristics of phrasing. When a great orator makes a great speech you are listening to ten centuries and ten thousand men—but we call it his speech, and really some exceedingly small portion of it is his. But not enough to signify. It is merely a Waterloo. It is Wellington's battle, in some degree, and we call it his; but there are others that contributed. It takes a thousand men to invent a telegraph, or a steam engine, or a phonograph, or a telephone or any other important thing—and the last man gets the credit and we forget the others. He added his little mite—that is all he did. These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple; and the lesson ought to make us modest. But nothing can do that.
Then why don't we unwittingly reproduce the phrasing of a story, as well as the story itself? It can hardly happen—to the extent of fifty words except in the case of a child; its memory-tablet is not lumbered with impressions, and the actual language can have graving-room there, and preserve the language a year or two, but a grown person's memory-tablet is a palimpsest, with hardly a bare space upon which to engrave a phrase. It must be a very rare thing that a whole page gets so sharply printed on a man's mind, by a single reading, that it will stay long enough to turn up some time or other to be mistaken by him for his own. No doubt we are constantly littering our literature with disconnected sentences borrowed from books at some unremembered time and now imagined to be our own, but that is about the most we can do. In 1866 I read Dr. Holmes's poems, in the Sandwich Islands. A year and a half later I stole his dedication, without knowing it, and used it to dedicate my "Innocents Abroad" with. Then years afterward I was talking with Dr. Holmes about it. He was not an ignorant ass—no, not he; he was not a collection of decayed human turnips, like your "Plagiarism Court;" and so when I said, "I know now where I stole it, but whom did you steal it from," he said, "I don't remember; I only know I stole it from somebody, because I have never originated anything altogether myself, nor met anyone who had."
To think of those solemn donkeys breaking a little child's heart with their ignorant rubbish about plagiarism! I couldn't sleep for blaspheming about it last night. Why, their whole lives, their whole histories, all their learning, all their thoughts, all their opinions were one solid rock of plagiarism, and they didn't know it and never suspected it. A gang of dull and hoary pirates piously setting themselves the task of disciplining and purifying a kitten that they think they've caught filching a chop! Oh, dam—
That was sent in 1903. Yet just three years later, he was arguing to Congress that ideas were property and should remain in the possession of those that created them forever:
So if I could have convinced that gentleman that a book which does consist solely of ideas, from the base to the summit, then that would have been the best argument in the world that it is property, like any other property, and should not be put under the ban of any restriction, but that it should be the property of that man and his heirs forever and ever, just as a butcher shop would be, or--I don't care--anything, I don't care what it is. It all has the same basis. The law should recognize the right of perpetuity in this and every other kind of property.
Now, plagiarism and copyright are not exact equivalents -- though there can (and often is) significant overlap. But it's difficult to see how the same person can reasonably argue both points. Perhaps that lends some credence to the claims that the Congressional hearing was, in fact, satire. Either way, I think I like the 1903 Mark Twain waxing poetically on how all ideas are plagiarism much more than the 1906 Mark Twain whining about how his children are too useless to do anything and need to keep making money from his books long after he's dead.
You may recall a few weeks back, we had a guest post from musician Erin McKeown about her reaction to finding out that a Sony Music artist had copied one of her songs without credit, and the copied song was now becoming a hit. That story kicked off quite a discussion. A few days later, I actually got to meet Erin in person at the Innovate/Activate conference, and we had a really enjoyable chat about the whole thing. So I was interested to see that Erin recently launched a crowdfunding project for her new album on PledgeMusic. PledgeMusic is a platform that's similar to Kickstarter, but focused just on music (obviously). It has some nice features (music player plus the ability to share some of the proceeds with charities) and some oddities (total goal amount isn't clear, and no way to embed anything?!), but if you understand Kickstarter, you'll understand what's going on here.
Of course, tons of musicians (and other creators) have jumped on the crowdfunding bandwagon over the past few years, so just seeing "yet another" project isn't newsworthy by itself. But what struck me about Erin's approach was that some of the tier offerings solidified an idea that had been bouncing around in my head lately about these kinds of projects: the ones that work are somehow uniquely personal to the artist in question. Figuring out what goes into the tiers is always something of a challenge, but I think going with purely generic tiers doesn't do much. I've said before that it's important for artists to understand the kind of relationship they have with their fans and build on that, and it appears that Erin does exactly that with her tier options. Some of them are just amusing, like offering her first Spotify check to a backer, or the anti-SOPA petition video she did during the SOPA fight.
But then there are some that seem like they're totally out of left field... and many of them really show off Erin's personality. Things like having her buy some books for you. Or spending an hour fixing your fantasy baseball game. Or actually going to a baseball game or a museum with her. Or, best of all, getting to play a game of wiffle ball with her and some friends (she seems to like baseball).
Now, again, quirky tier options aren't a new idea. We've been writing about them for years, and I know how some of our usual critics will react: with horror at the idea that Erin has to help people with their fantasy baseball teams to get them to support her music. Hell, we heard exactly that criticism three years ago when we highlighted Josh Freese's hilarious tiers, which included things like playing mini-golf with you, or getting lunch at PF Changs, having him wash your car, or giving you a tour of Disney land. To this day, one of our usual critics still brings up the mini-golf example derisively, arguing that if the new business model means musicians have to play mini-golf with their fans to get their support, the new model is a failure.
But that totally misses the point. No one is arguing that playing mini-golf or wiffle ball with your fans is the future of the music business. We're saying it's all about the kind of person you are and how you connect with your fans. That is, what works has to be something that is unique to the artist's personality, and which fits well with the kinds of things that make fans like that artist in the first place. One assumes that Josh chose minigolf and Erin chose baseball/wiffleball not because it was some horrific thing that they didn't like, but precisely the opposite: because those things are fun to them and they wanted to offer up something fun and unique that they could share with their fans as well. And, in both cases, it seems like they're succeeding.
These kinds of offerings help the artist not just make money, but to better connect with their fans by letting their own unique personality shine through. It's that kind of personality that makes people want to support the artists. It's not because they want to play mini-golf or wiffle ball, but that they like supporting the artist in a manner where the artist gets to have fun as well. And that's pretty cool.
Scientific American photography blogger Alex Wild recently wrote about his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild's attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what's appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.
Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant:
There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:
The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.
But Wild's work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren't covered by copyright, and that's not just a legal nuance, it's a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn't mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don't get perpetual credit or payment. Knowledge cannot be owned.
What was copied from the photograph was simply the knowledge of what the ant looks like, and indeed the photo contained very little beyond that to begin with. It's a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph's subject, which Wild didn't create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that's no reason to feel hard done by.
So I don't think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he's still open to other thoughts on the matter:
Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.
That's a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn't entirely made up. I hope that, on further consideration, he'll realize that this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all.
We recently posted what I thought was an interesting essay by musician Erin McKeown on her reaction to seeing someone copy a song of hers, and have that other song become a "hit." We thought it was an interesting and nuanced exploration of some of the challenges of being a musician and thinking about copyright -- from both an emotional and logical perspective -- and thought it would make for an interesting discussion. And, in fact, it did make for an interesting discussion. With well over 100 comments, representing a variety of different viewpoints, there was a pretty deep dive into the myriad responses the piece brought out. Like pretty much any online discussion, some of the comments were more polite than others. But, when viewed on the whole, it struck me that the conversation was much more polite than most online discussions around copyright. In fact, what was interesting was that because the discussion was quite nuanced, most of our usual haters didn't take part. So we didn't have, for example, anyone calling me a slimy lying sociopath or a disgusting human being.
Some of the comments were pointed in their disagreement with Erin, but almost immediately others came in to defend her, and the overall discussion was quite interesting in my mind. And, yet, a bevy of the standard Techdirt critics took to Twitter to claim that Erin's article was proof positive that Techdirt was pure evil, hated artists and was the disgusting underbelly of the internet (a very close paraphrase of actual statements). I'm not going to link to any of these, because I don't mean to call out those people specifically. Similarly, there was a thread on a music site that was entitled "why does Techdirt hate musicians?" I suddenly had people tweeting at me, personally, about how I was somehow destroying music and why did I not want artists to get paid.
I honestly can't figure out why this was the response. First of all, we've regularly been attacked because (we're told) we never, ever post an article where we show sympathy for artists' difficult plight these days. So here was an article, from a musician, explaining her plight -- and we get attacked for that?!? Furthermore, I'm long since past the time when I could read all the comments on the site, but I do read a pretty large number of them, and the amount of hate and vitriol that has come from Techdirt haters (see above, for two very recent examples) is way, way, way, way beyond anything seen in that particular thread.
In fact, the further you read into the comments the more you realize it's a detailed and nuanced discussion on many important issues. People don't agree, but no one's calling each other a slimy lying sociopath or a disgusting human being. Yet, because a few commenters (not even the majority, as far as I can tell) disagree with Erin, all of Techdirt hates musicians? There were a few tweets and statements elsewhere saying that Techdirt hates it when artists make money. Of course, that's ridiculous. We regularly celebrate artists earning money -- sometimes lots of money. What we get nervous amount is when artists start making use of laws in ways that may actually do them more harm than good in the long term, by attacking their fans as if they were criminals, or when they seek to abuse laws that take away fundamental rights of others.
But, really, what was most amazing to me was how quick some of these people were to jump on the entire Techdirt community, because a few comments disagreed with one musician's opinion. They ignored everyone who came to her defense. They ignored the fact that we posted the story in the first place. They ignored all the people on other stories who attack Techdirt supporters in often extremely personal ways (I've been threatened with physical harm as well as seen multiple comments I won't repeat about my family). But most people -- myself included -- see those kinds of comments as part of the price you pay for having an open discussion. Some people are going to disagree and some will use different levels of speech, some more polite than others. To tar and feather everyone on the site because someone on it disagrees with your personal views is to suggest that every community online is a problem.
Is it that difficult to distinguish a nuanced conversations where not everyone agrees with each other... from the "dark underbelly" of the internet?
Last summer, we noted that there was an interesting "sideshow" in the patent dispute between Oracle and Google -- a question of whether or not Java's APIs are covered by copyright. That "sideshow" has become the main attraction now that the trial has started and many of the patent claims have been kicked out.
Oracle has been quite public with its argument (pdf), which is mostly based on taking snippets from Google emails that suggest a need to license Java. The favorite of the bunch is this one:
They also point to some snippets of code that do appeared to be copied:
If you just see that side of it, you might be convinced, but the details suggest a much less convincing story. First off, there are serious concerns about whether or not an API even can be covered by copyright. In fact, before Sun was acquired by Oracle, Sun's own CTO had said that "internet specifications are not protectable under copyright," which (you might think) gives Google an implied go ahead to make use of the API. Furthermore, many of the email snippets that Oracle presents are taken out of context -- they show little snippets of big emails and pull from very very different time periods -- ranging from 2005 to 2010, when different factors applied. Oracle also scrubbed a blog from former Sun CEO Jonathan Schwartz in which he warmly welcomed Google to the Java family when the company launched Android.
Perhaps more damning: Larry Ellison himself in 2009 at the JavaOne event spoke about Google's Android development and how they were contributing code back to Java. Ellison himself was put on the stand and appeared to contradict his own depositions when it came time to discuss the specifics of the copyright. That can't go over well. Not only that, but he stumbled, and claimed he was "not sure" when asked specific questions:
On cross-examination, Google came out firing and the room got tense quickly. “Do you understand that no one owns the Java programming language?” lead counsel Robert Van Nest asked.
Ellison began a longer answer, but Judge William Alsup interrupted him and said it was a “yes or no” question. Finally Ellison said, “I’m not sure.”
“And anyone can use it without royalty?” Van Nest followed up.
“I’m not sure,” Ellison said again.
Then Van Nest showed a video of Ellison receiving the same question on a deposition video and answering “That’s correct” to both.
Oracle's response, of course, will be that it just meant for developing apps, not for using the API -- but its other statements are a lot less clear on that. Either way, it seems pretty clear that Sun gave an implied open license to these things, so to come back now and insist otherwise is pretty questionable. Furthermore, there still are questions as to whether or not an API can actually be covered by copyright at all.
Separately, Oracle keeps talking about just how much work it is to create APIs, and even points to some Google statements about the difficulty of doing so. That's smoke and mirrors. Difficulty has no bearing on copyright law. It's kind of surprising that Oracle's lawyers would even bring it up, as "sweat of the brow" arguments won't get very far. Hell, even if it biases a jury, it would get rejected on appeal. It seems like Oracle's strategy here is just to confuse the jury and go for guilty by association because they're going to have trouble showing actual guilt.
As for the specific code snippets shown above, those a few lines out of 50,000 or so files. Under copyright there's a defense known as de minimis copying, if you're just found to have copied a very tiny portion of something. It seems like that might apply here as well.
Also, you may have heard stories about the results of this trial potentially being worth billions of dollars or something, but that was before most of the patents got thrown out. The patents left over aren't worth very much at all, and the end result means that if Oracle wins, it'll likely get less than $100 million. That's still a significant sum, but it's a lot less than what Oracle had hoped to get in this lawsuit.
In the end, as it seemed from the beginning, Oracle's case looks pretty weak (and getting weaker).
Erin McKeown, a wonderful musician who has been very involved in some discussions on copyright and internet access -- and who was especially helpful in the fight against SOPA -- recently wrote the following thoughtful, heartfelt piece concerning the emotional roller coaster of having someone copy your work, and how all of this relates to copyright law.
I always knew my song "Slung-lo" was a hit.
It just took longer than I expected.
"Slung-lo" came out on my 2003 album, grand (Nettwerk). It found its way to the Brittany Murphy masterpiece "Uptown Girls" and into episodes of "Roswell", "Gilmore Girls", and "Privileged". It also found its way into a Tesco F&F commercial, which ran in the Czech Republic in the summer of 2008. Though not a hit by any means, it was a remarkably long life for a song that came out in 2003.
And then last year, I received two separate emails through my website pointing me to this video for a song called "Touch The Sun" sung by the Czech artist, Debbi. (editor's note: we tried to embed the official video for this song, but Sony Music refuses to allow an embed on the song).
"Have you seen this?" both emails asked. I hadn't.
From the first moment I heard "Touch The Sun," it was as clear to me as anything that someone had taken the DNA of my song "Slung-lo" and turned it into another song. At this point, my lawyer wants me to make very clear that IN MY OPINION, THIS IS COPYRIGHT INFRINGEMENT.
I don't want to spend a lot of time technically breaking down the two songs, but I'd like to point out a few things. Among the many substantial similarities between them, check out the lyrical content (weather as metaphor for happiness), the almost exact song structure (solo verse, band verse, double-tracked vocal in the chorus...), and the vocal cadence in unison with the descending instrumental line in the chorus. I could go on.
Debbi's "Touch The Sun" isn't the proverbial "kid in the bedroom with a laptop" who remixes pop culture and makes mash-ups to show how alike we humans really are. No, it turns out the song was written for a commercial scale beer campaign by the giant European alcohol company Metaxa, which itself is a subsidiary of the global beverage conglomerate Remy Cointreau.
And it is a hit. A huge one. Debbi was the runner up on the Czech version of the "Idol" franchise. The song won "Song of the Year" at the Czech version of the Grammys. The original video that was sent to me has almost a million hits. A quick search of YouTube reveals karaoke versions, animations, "how to play versions," and plenty of people in their bedrooms playing the song and singing along. The beer ad with the song aired across the Czech Republic more than 1200 times in September of 2010. That's about 40 times a day.
So, after all this time, "Slung-lo" is finally a hit.
The easy part of this story is that I work with an amazing publishing administrator, Duchamp, who has stepped in to help me. We've retained Czech council who have been in contact with Metaxa, Debbi's record label (Sony!), and the Slovak production house that produced the track. All have denied any infringement, declined to settle, and at this point, court proceedings have started. My lawyers estimate that this could take anywhere from one to five years.
This spring Remy re-launched the ad campaign across all of Europe.
By the way, the writers are Tomas Zubak, Peter Graus, and Maros Kachut. Let's #kony2012 them.
Actually let's not.
Instead, I want to talk about the whole host of emotions this experience has brought up for me, and the way it's forced me to confront and articulate my beliefs about copyright.
After watching the video for the first time, I was certifiably apoplectic. I was physically shaking with anger. How dare they! I wasn't so much angry at Debbi -- who, from what I eventually read, really just sang the damn thing -- as I was at the writers. They had to know what they were doing, I fumed. I mean, the song was just in a commercial there. They had to know about it. How dare they!
And then I felt small. I'm nobody, I thought, so they probably figured they could get away with it. It's not like they ripped off Beyonce. Just small-time me.
And then I felt defeated. I've always wanted to have a hit like "Touch The Sun". And I thought I wrote one in 2003. It was such a great disappointment to me that no one noticed. There will never be enough people to notice me, I thought.
And then, I would find myself dreaming. Maybe I'll get a settlement. Maybe it will be large enough to make all my problems go away. I'll be able to pay for my new record. I'll be able to afford the best marketing and publicity money can buy. And then there will be some left over to buy a house. My life will change!
Finally, I disconnected. I couldn't tell very many people about what was happening, and the feelings were overwhelming me. Ok, I thought, I'll just let the lawyers do their lawyer thing. This is why you pay them. I am powerless. Breathe deep and exhale.
Very early in the process, my lawyers asked me what I wanted to be the goal of my settlement. Did I want 100% of the money made? Did I want a flat fee? How much? Did I want a public apology? Did I want to let it go? Did I just want credit?
These questions became a spiritual exercise. I began to think that how I answered them said something about who I was as a person.
I believe that creativity is an unpredictable, mysterious process. I often have no idea where a song comes from. Other times I am more aware of the hard work. It is not always an easy thing to know where influence ends and mimicry begins. But there is also a way we recognize ourselves in the faces of our children, and a gut instinct that tells me when I am hearing my own musical fingerprint.
I thought for awhile, and decided I would like 50% of all the monies made so far, and 50% on everything moving forward. I didn't need a public apology. I think this is fair, not punitive, and given the current copyright law system and options available to me, a reasonable request.
Now I just have to wait one to five years to see how it turns out.
Recently, I've ended up doing a lot of advocacy and policy work around copyright. This isn't because I am a copyright crusader, for or against, but because the issue gets tied up with so many other things I care about: media access, fair compensation for artists, creating a sustainable music business.
I actually hate to talk about copyright because, once it's brought up, it just seems to take over any conversation. Most of the time I feel like that conversation then becomes counterproductive. People throw around complex legal principles. The jargon resembles a foreign language. Often, the emotions get so heated that a room ends up divided at just the time when we need to work together. I've also noticed that most of the people crowing about copyright aren't individual copyright holders. They're groups of people who make money from the business of policing and administering copyright.
In my advocacy, I want to talk scale. I want to talk relationships and power structures. I want to talk about technology. Copyright is part of this, but it's not the whole enchilada. I've come to think that current copyright law is like an immovable boulder in the middle of a rushing river. It's not likely to change, so I'm going to have to work with it, as it is. And not let it stop other important work.
Yet here I am facing a difficult situation where copyright is the main issue.
I recently watched Kirby Ferguson's "Everything Is A Remix" series and found it really helpful to understand the feelings that came up for me around "Touch The Sun." In part four, Kirby makes the observation that we humans are easily and freely influenced and inspired by the world around us. However, when we feel like something has been taken from us, we get very angry and indignant. Our anger is as natural and essentially human as is our borrowing or being influenced.
Really how I feel about copyright is this: can you please just ask me? I am so easily found. One or two clicks, a badly mangled combination of "erin" and "mck" will get you to me. Let me know what you're doing. Let's talk. Take some time and connect with me. I know this is imperfect. Sometimes in the creative economy, there just isn't time. But how about we try?
I'd also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others' material without permission and an obstacle to those who would like to legally use or remix content. Whether it is done consciously or unconsciously, nefariously or in communal bliss, given the complicated, arcane process, the myriad hoops to jump through, the length and cost of the process, who can afford to participate?
So Tomas, Peter, and Maros, I won't assume your motives in turning my song "Slung-lo" into "Touch The Sun." Instead, I'll say this: if you asked me, we might have worked something out. When I found you, we might have worked something out. Who knows, maybe we could have advanced the conversation around copyright and made a radical contribution toward a different type of economy. Instead, it will drag on in court. And I will fight it in court as long as I have to. But this could have gone another way. And for that, I am sad.
Erin McKeown is an internationally known musician, writer, and producer, releasing 8 full length albums in the last decade and spending an average of 200 nights a year onstage. She has appeared on Later with Jools Holland, Late Night with Conan O'Brien, NPR, BBC, and has had numerous film, television, and commercial placements. She's even written a song via text message with her friend Rachel Maddow. Lately, she has added mentor and activist to her resume. She is a board member at the Future of Music Coalition and a 2011-12 fellow at the Berkman Center for Internet and Society. Visit her website www.erinmckeown.com for more info and to join her mailing list.
Special Thanks to Mike King, Andy Sellars, my lawyers, Lawrence Stanley and Vaclav Schovanek, and Erik Gilbert at Duchamp for their help researching and proofing this post.
from the a-picture-is-worth-a-thousand-copyrights dept
For the most part, furniture designs can't be copyrighted. Just like fashion, which thrives without copyright, the furniture industry serves as an excellent example of why intellectual property is not necessary to promote innovation and commercial success. Copying happens in these industries, and while it's sometimes fought on trademark grounds, the prevalence of cheap knockoff products is an unavoidable reality. But cheap knockoffs are exactly that, and they meet the demands of a different market segment, where low price is more important than quality, so the original designers can compete either by focusing on their strength in the high-end market, by entering the lower market with their own cheaper products, or both.
If you didn't watch the video, suffice to say the two knockoffs snap like twigs, while the original withstands the same punishment without any signs of damage. Fritz Hansen has rightly recognized what it offers that others don't, and has found a high-impact way of demonstrating this advantage. Naturally some people won't care: they will choose affordability over durability. But those people were probably never going to buy a $500 chair anyway, whether or not cheap alternatives for that specific design are available. Meanwhile, customers who value and can afford top-quality merchandise see a clear demonstration of what they're getting for their money, and one that reflects well not just on the Series 7 but on Fritz Hansen's entire line.
It's extremely rare, in any industry, for one creator to copy another without adding or changing something—a lower price point, better marketing, a better distribution model, a valuable curation service. This is how copying expands markets: originators and copiers must both focus the things that make them stand out, which means finding ways to make a product appeal to new and different people. Strong intellectual property protections exist to shut down such copying, but as industries like furniture and fashion demonstrate, this is unnecessary and potentially quite detrimental. Beating your competitors in court only proves that you were first—obliterating their products on YouTube proves that you're better.