by Mike Masnick
Mon, Jul 25th 2011 3:08am
by Mike Masnick
Fri, May 27th 2011 4:21pm
from the is-there-a-line? dept
What this really does is highlight the fuzzy line between "right to work" concepts and trade secrets. That's because California does have strong trade secret protections. But if an employee has a right to work... how do you remove any "trade secrets" from their previous job from their brain? There are some details -- including accusations of transferring confidential documents to a computer right before making the job switch -- that certainly look bad. But, on the whole, I tend to think these kinds of lawsuits are a waste of time. Focus on actually competing in the market, rather than suing competitors. Frankly, the world needs more payment solutions, and if there's some competition, then it should force all players to improve their game.
by Mike Masnick
Thu, Dec 9th 2010 7:06am
from the priceless dept
by Mike Masnick
Thu, Oct 7th 2010 12:51pm
ASCAP Tells Artists It's Cutting Their Payments As It Brags To The Press How Much More Money It's Collecting
from the whose-interests? dept
ASCAP cut payments to some members of it's ASCAPlus program by 20-30%. "Unfortunately, because of the fiscal climate, less money was available this year for the award program," ASCAP said in a letter to those receiving checks.Ah, right. The tough economic climate. We do know about that. But... wait. Here's an ASCAP press release from just five months ago, claiming it was bringing in more money than ever:
"Music is performed more often, in more places, in more ways by more businesses than ever before. That expanded music use, combined with dramatic ASCAP Membership growth, market share increases and effective strategic management have led to stunning revenue and distribution growth for 2009."Okay, so ASCAP is collecting more money and distributing more money, but it's cutting the amount given to ASCAPlus members by a huge amount. What's ASCAPlus? Ah, right, the smaller artists who can't make a big stink about this:
"writer members of any genre whose performances are primarily in venues not surveyed; and/or writer members whose catalogs have prestige value for which they would not otherwise be compensated."In other words, ASCAP appears to be taking more money away from small artists, and giving it to their biggest artists. No wonder ASCAP's Paul Williams refuses to debate Larry Lessig, claiming he'd rather focus on "fair compensation to music creators." Unless you're a smaller, less well known artist. Then ASCAP wants your share to be a little less fair. Actually, quite a bit less fair. Like 20 to 30%.
by Mike Masnick
Wed, Sep 1st 2010 8:30pm
from the you-buy-with-ebay,-you-pay-with-ebay dept
by Mike Masnick
Wed, Jul 14th 2010 7:39am
from the don't-miss-it dept
Upon information and belief, eBay's familiarity with the confidential information provided by the Inventors allowed eBay to recognize the advantages it would realize by acquiring, modifying and integrating PayPal's payment platform with eBay's own e-commerce payment platform. eBay also knew or should have known that such modification and combination would violate Inventors' patent applications claims should they issue as patents.Yeah, ok. This gets even more ridiculous when you realize that XPRT is claiming that it was modifications that PayPal/eBay didn't roll out until 6 or 7 years later that are supposedly infringing.
As for the whole conspiracy stuff about eBay "unilaterally altering" the date on the agreement, it turns out there's not much there there. Basically, eBay and the inventors negotiated over an NDA to share some information, with the initial proposed NDA having a date of March __, 2002. That was, clearly, a placeholder, found in just about every contact negotiation you'll ever see. When eBay actually signed the NDA it replaced the placeholder with the date of the signature, April 30, 2003. That's how contracts work.
XPRT, however, suggests that eBay's own (equally questionable) patents on its own payment system were filed just before eBay signed this document, and that eBay failed to note the XPRT patent applications, despite knowing about them, as prior art. To make it even more fun, the complaint suggests that eBay effectively admitted that XPRT's technologies are patentable, because it tried to cover the same inventions with the claims in its own patent filings. Basically, this is a sneaky way to (try to) cut off a claim that XPRT's patents are invalid.
Anyway, the key patent in the battle is the following, which, while it was filed back in 2001, didn't actually issue until 2009. If you look through the history of this particular patent, you find a trail of rejection. The USPTO did a non-final rejection, then a final rejection of the patent in 2004 and 2005. The inventors appealed (and twice had problems of filing a "defective appeal brief"). The appeal also rejected the patent and sided with the examiner. The inventors then asked to have the patent reconsidered, and that was rejected. Then, they asked for the patent to be examined again, and, yet again, the USPTO rejected the patent -- with both a non-final and final rejection. Finally, after all those rejections, the inventors amended the patent some more and finally got it through in 2009. In other words, whatever they showed eBay way back in 2001 was not actually patentable, and what was patented in 2009 was quite different.
7,483,856: System and method for effecting payment for an electronic auction commerce commerce transaction
If you look at the other patents, they appear to be continuation patents on that patent, the common trick of updating an old patent application to make sure it covers what others are actually doing in the market, even if such things weren't really what the initial patent was intended to cover.
Oh, and finally, why are these guys demanding $3.8 billion for a basic idea that they failed to implement themselves? Well, they appear to be claiming a 6% royalty on all of PayPal's revenues, and then make a bunch of assumptions about how much PayPal is likely to make between now and 2024 when the patents will expire. In other words, it's simply making up how much eBay might make and demanding a rather large cut of that.
Mon, Jan 11th 2010 10:55am
from the going-through-the-details dept
Back before New Years, Techdirt's Mike Masnick picked up on my comment to p2pnet.net regarding the list of artists SoundExchange said it couldn't find. I wrote that the list was not on the website. I was wrong about that, and Mike got suckered into repeating it. I went blissfully without the Internet for a couple weeks (yes, it is possible) and missed the whole thing. I just got it wrong. The list is there. I just couldn't find it.
My apologies, in order, to SoundExchange, Mike, and his readers. The list itself is a very interesting document on several levels, and I will be dealing with that later. This particular note has a specific purpose relating to Mike's piece.
SoundExchange folks like Director Dick Huey and staffer Laura Williams have been gushing all over about SoundExchange's new open communications policy. I have been trying to engage them in actual conversation, rather than simply criticizing their serial press releases. Their campaign seems to be faltering, however, as they've resorted to commenting on my supposed factual errors to third parties like Techdirt rather than deal with me directly. I don't mind. It's the tactic they've used with outside critics like me for years. It's arrogant, but what can we expect from an organization where the Board of Directors is hand-picked by the RIAA?
So, let me take this opportunity to deal with the "Top Ten Reasons Laura Williams Tells Techdirt Why I Am So, So Wrong About SoundExchange (But Won't Tell Me Directly)."
1. About the "missing" list of unpaid artists, I said it wasn't on the website. They said:
"Not sure how FW missed this. It's at http://soundexchange.com/performer-owner/does-sx-have-money-for-you/unpaid-artists/. It's been there all along, old website and new, and this version is easier to use than ever."As noted before, I missed it.
There used to be a link directly from the homepage to the list, and a rolling counter of artists removed from the list. Those are gone. I used the search function on the site for "unregistered artists" (the term SoundExchange used to use to describe the entries on the list) and came up with nothing. I'm not sure how "easier" the list is to use, given that the alphabetizing scheme used by SoundExchange is even more idiosyncratic than the old one, but I will deal with the contents of the list, and what it means, separately.
All that aside, SoundExchange is right about this. I just missed the list.
2. About what happens to forfeited money, I said SoundExchange gets to keep the money. They said:
"This is a common misperception about SX. While our congressional mandate allows us to liquidate funds after 3 years, the board has repeatedly declined to do so, in hopes of locating more artists to pay properly. EVEN IF THEY DID RELEASE FUNDS, those funds go directly to the artists and rights holders who are currently registered, in a windfall royalty - SX is a non-profit and does not keep that money."There's a whole bunch of misdirection and spin going on in those 70 words.
There's no "congressional mandate." The forfeiture is permitted by Federal regulation adopted by the Copyright Office, specifically, 37 CFR 261.8. A regulation is not a "congressional mandate," although I admit that mandate stuff makes it sound like it is something SoundExchange has to do, rather than something that SoundExchange asked the Copyright Office to do for them, which is what really happened. SoundExchange wants everyone to think they are forced by Congress into taking money from artists they can't find, even if that really isn't so.
Perhaps SoundExchange wants everyone to think it is a matter of Federal law because they don't want anyone looking at the regulation itself. You see, the regulation requires that all money that should be paid to an unidentified or unlocated recipient be placed in a segregated trust account. I've asked SoundExchange repeatedly over the years to advise me where the "segregated trust account" is held, but the inquiries are always met with silence. I've also asked them to tell me how much money is in that segregated trust account. They've ignored that too. I don't think the segregated trust account exists, for the simple reason that SoundExchange doesn't have the slightest idea which artists are entitled to what share of the undistributed money.
About "repeatedly declining" to forfeit more artist money, they say this as if refusing to take money from people who don't know about it is an act of moral courage. They also say this as if they actually never intended to do it again, when history proves otherwise. In January, 2007, immediately after the deadline for the first forfeiture, SoundExchange announced they were going ahead with a second one. Strangely, for an organization that claims to be so vitally concerned with serving artists, they never mentioned the new forfeiture program anywhere but on the website page that linked to the list of unregistered artists. In other words, you had to already know they had your money in order for you to find out they were going to take it. There was not one press release announcing the forfeiture, and not even a notice about it anywhere on the website, or anywhere else for that matter. In blunt point of fact, SoundExchange "declined" to go through with the second forfeiture only because there was public outrage that they would do it again and try to keep it a secret. SoundExchange clearly wants everyone to pretend that they never really meant to try a second forfeiture. The problem is, they did.
I said SoundExchange gets to keep money it forfeits from unfound artists. SoundExchange disputes that and claims that "those funds go directly to the artists and rights holders who are currently registered," which is utter bull. As that regulation so clearly states, SoundExchange doesn't pay the money "directly" to anyone. They get to use the forfeited funds to defray their own expenses, which, when you come down to it, means they get to use it for their own purposes. Technically, SoundExchange doesn't "keep the money," so the "correction" is correct in a very strict literal sense. However, reality shows that they don't keep it because they spend it, which doesn't match up with what they say here.
Now, of course, if they reduce their own expenses, that makes more money available for distribution to registered artists and copyright holders because they have to take less out of the current receipts. That's a good thing, but reality tells me that there are a couple problems. First of all, anyone who has ever worked for a non-profit that must keep a lid on expenses can tell you that "extra" money that can be used to defray expenses tends to get used up pretty fast. In the case of SoundExchange, I can clearly imagine that the forfeited money financed a good part of the musicFIRST campaign for the terrestrial radio performance royalty. Secondly, take a look at what happens to whatever money does get through that "expense" process to be paid to registered recipients. As royalty money is split 50/50 between artists and copyright holders, and, by their own estimates, 70% of the copyright holder royalties goes to the four RIAA members who directly control six of the eighteen seats on the SoundExchange board (and who appointed the other twelve out of the goodness of their hearts), that means that 35 cents out of every forfeited artist royalty dollar goes to the four RIAA members. The one thing SoundExchange got right in its "correction" of my comment is the idea that this is a "windfall." I don't think they meant it the way it actually comes out, because the greatest windfall ends up in the lap of the RIAA labels, but they won't tell you that outright and if you ask them about it, like I have, they ignore you. Because they can.
If SoundExchange actually spent that forfeited money on improving their efforts to find the artists, like the language of the forfeiture regulation actually intends that they do, that would be fine. But they don't, and their "correction" of my comment is nothing but more smoke and mirrors to hide that.
Click the read more or comments link below to see the additional eight points Wilhelms raises in response to SoundExchange.
by Mike Masnick
Wed, Feb 11th 2009 8:51am
from the it's-hard-to-keep-up dept
But that's obviously ridiculous. If online sites were only "winning" the traffic battle because they were ripping off others' content, then that would be easy to fix: those very same newspaper sites should do the same damn thing. Hell, it should work better, since they'd have the original content. The problem is that it's not the reporting that's attracting the community. It's the community. For way too long, the newspapers have ignored or diminished the role of the community. They were forgetting that, in the end, it really is the community that's their "product." They sell the attention of that community. But, for years, they had little to no competition in doing so. That meant they could basically ignore serving the community... and they did. Now that there are sites that actually do serve the community, people prefer going to them than the sites that treated the "community" like lower class riffraff to be kept away. Funny how that works.
Warren also gets quite mixed up in pretending that when newspapers put content for free online, they get nothing back for it. He goes on for a few paragraphs about the disaster of giving away content "for free" (gasp!) even making a stupid joke that maybe the NY Times' columnists should work for free if they want their work distributed for free. Apparently Warren (like so many others) seems to be missing the point again. News organizations sell readers' attention. You don't get that attention if you don't get the readers. And you don't get readers by charging for content. So, when newspapers give away content for "free" -- it's not for "nothing" -- it's because it's supposed to be a part of a larger business model. The problem is that the newspapers have fallen down on that end of the business model. But the answer isn't making it more difficult to get more community attention. That's like purposely burning your most valuable asset.
Along those same lines, Romenesko points us to a painfully bad idea from another journalist: getting all big newspapers, and the Associated Press, to collude with each other to stop publishing any news online for a week. The idea, of course, is that suddenly the rest of the online world will recognize what they're "missing" without these big newspapers. Of course, that (once again, incorrectly) assumes that journalism only comes from newspapers (aren't these big time journalists supposed to research this stuff before publishing such obviously wrong things?). If all the big newspapers don't publish online for a week, what they may actually discover is that people get on just fine without them.
Why? Because the demand for good content is still there, and someone smarter than these journalists will supply it. Imagine if you're a young news organization entrepreneur, and all of the biggest names in the market have just decided to take themselves out of the competition for a week. Talk about a huge market opportunity. So, sure, let the dinosaurs hide for a week (and watch out for antitrust complaints). The journalists who think this is a win-win idea, may quickly discover that all it really shows people is how little the old model is needed. There's plenty of room for good journalism to thrive. It just might not involve newsprint.
by Mike Masnick
Mon, Nov 3rd 2008 4:48pm
from the something-doesn't-seem-right dept
by Mike Masnick
Wed, Jul 30th 2008 2:48am