Shouldn't Users Have Been At The Table For The Six Strikes Negotiations?

from the look-who-got-screwed dept

We’ve already discussed the “voluntary” agreement between ISPs and the RIAA/MPAA to create a “six strikes” (I still say the details show it’s five strikes, but the internet has overruled me) graduated response plan. In particular, we’ve noted that the plan appears to limit defenses of users in ways that strike us as questionable (i.e., you can’t even claim a work is in the public domain!). Now law professor Eric Goldman and the EFF’s Corynne McSherry have put together an analysis of the agreement which highlights how unfortunate it is that this agreement was made completely without anyone representing actual users. It was just big companies, working together to effectively screw over users. The writeup by Goldman and McSherry highlights numerous problems with the agreement when it comes to users (including the fairly bogus “education” component of this project). But where it really shines is in showing just a few examples of where such an agreement could have been much better if there had been someone (anyone!) representing the interest of the users:

* The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners? notices of infringement as presumptively accurate–obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence ?credibly demonstrating? their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven’t vetted and to which they cannot object. (The content owners? systems will be reviewed by ?impartial technical experts,? but the experts? work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.

* Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the ?public domain? defense applies only if the work was created before 1923–even though works created after 1923 can enter the public domain in a variety of ways.

* Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn?t spell out any adverse consequences for the content owner that make the mistake ? or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.

* Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days “for substantial good cause”). This period isn?t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.

* There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in ?prevailing legal principles? of copyright law ? an odd standard given the complexity of, and jurisdictional differences in, copyright law. We?re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied?financially or ideologically?to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn?t stacked against subscribers from day 1.

The chances of any of that actually happening? Yeah, basically none.

It’s on this point that IP Czar Victoria Espinel should really be ashamed. After talking up how this agreement would help someone (not clear who?) “win the future,” shouldn’t she have been the least bit concerned about the most obvious stakeholder who wasn’t at the table? We see this way too often with government officials these days. They think the only stakeholders are the businesses, and leave out the citizens they’re supposed to represent. Copyright law is supposed to benefit the public, but the public wasn’t at the table negotiating this agreement. In fact, pretty much everyone admits that the government focused solely on bringing together these two parties and putting tremendous pressure on the ISPs to cave to the entertainment industry. Couldn’t they have used some of that “pressure” to make sure that the public’s interest was included? Isn’t that what government is supposed to do?

Filed Under: copyright, entertainment industry, graduated response, isps, six strikes, users

Expectations Matter, Even If You're Not 'A Customer'

from the false-distinctions dept

We recently had a discussion about law professor Eric Goldman’s complaints about Scribd, after the site, which he’d been using regularly to upload and share legal documents, quietly put up a paywall on older documents without making that clear to users. Suddenly, many old documents that Goldman had thought he was sharing with the world, were hidden behind a lock and key, unless you paid up.

While many people agreed that this was a mistake on the part of Scribd, in talking with Goldman separately about this, he noted that a few people strongly disagreed with his position, and noted (accurately) that he was getting a free service from Scribd, and thus he was “not a customer” and shouldn’t complain at all. We received a few similar comments here, effectively suggesting that if you’re not paying, you’re not a customer and, thus, have no right to complain.

This is silly — and wrong. It’s where the often artificial distinction between “customer” and “user” and “product” gets blurry and, at times, questionable, especially in the realm of “user-generated” content. There are more ways to “pay” than with money. In Goldman’s case, he’s actually been “paying” Scribd by providing it with valuable, sought-after content that he uploads. Scribd is “paying” Goldman with free hosting, bandwidth and services. Advertisers are “paying” Scribd with money. Users are “paying” Scribd with their attention. All are “customers” in some sense, while also being users and, potentially, “the product,” as well. Focusing only on the relationships where actual cash exchanges hands misses the point (greatly).

Once you realize that, it makes perfect sense for Goldman to complain. He was using the service under pretty explicit terms that he was providing these documents to share them with the world. Scribd unilaterally (and quietly) changed those terms on him, to something completely different. In turn, by pissing off Goldman, and having him seek alternatives, Scribd is actually harming its overall site. Even if you accept the narrow definition of “customer,” to suggest that Scribd’s only customers are their advertisers, pissing off Goldman should still be seen as a problem, because as Goldman uses alternative services, it lessens the “product” that Scribd can offer to those particular “customers.”

So rather than going with the kneejerk, “well, if he’s not paying for it, he has nothing to complain about,” it’s important to look at the overall ecosystem, and how different pieces are “paid” in different ways — and how upsetting one key element of that ecosystem, can harm all sorts of “customers.”

Filed Under: customers, user generated content, users
Companies: scribd

Blaming Users When You Screw Up

from the not-cool dept

We’re always amazed when we see companies blame their users for their own screwups. The latest company to do this, as reported on TechCrunch, is Zynga, who gave out some codes to certain users for $120 worth of in-game currency in one of its games if those users moved off of one social networking platform to another. However, Zynga didn’t take the most basic technical precautions to stop anyone and everyone from using the codes. So, of course, anyone and everyone started using the codes. These things happen and even though it’s embarrassing, the company can just turn off the code and get on with life. Instead, it not only rolled back user accounts, deleting lots of things many had done, but also tried to blame them for “exploiting” their system:

Attention:

Our records indicate you have redeemed Rewards Points using an exploit. Please note that future use of exploits may result in disciplinary actions, up to and including the permanent banning of your account.

We will keep your account active at this point, but have rolled back your account to 06/08/2010, the date prior to the redemption of these unauthorized Reward Points.

It wasn’t an exploit, it was poor programming on the part of Zynga. With a company like Zynga that has so many users, I’m sure it doesn’t really care that some are quite pissed off, but at some point, the company may realize that cavalierly blaming users for their own mistakes can come back to haunt them in a big way.

Filed Under: blame, users
Companies: zynga

So Is Verizon Cutting Users Off Or Not?

from the probably-not,-but-they-need-to-clarify dept

Well, well, well. A few days ago, News.com had a story that got a lot of attention saying that Verizon was kicking users off of its service after it had received accusations of file sharing. At the time, we wondered if this was a misstatement by a Verizon spokesperson, and in an update, Verizon insisted that News.com had misquoted its spokesperson, and it had not kicked anyone off. And yet, lots of folks are still reporting that Verizon is kicking users off for file sharing. And, now, News.com has come back and stands by its original story.

Reading through the details, what it appears to have happened was that a Verizon person misspoke, and News.com accurately reported the misstatement (suggesting that users had been kicked off). Verizon is still claiming it “reserves the right” to kick users off, but has not actually done so. Hopefully it realizes that doing so based solely on accusation is a huge mistake and one over which it would almost certainly face serious backlash.

Filed Under: copyright infringement, isps, riaa, three strikes, users
Companies: riaa, verizon

French Courts Continue To Penalize eBay For Actions Of Users

from the bad-news dept

While more and more courts seem to be understanding that eBay shouldn’t be responsible for what users are selling on its site, it appears that French courts are a bit confused. Last year, a French court fined eBay $63 million because counterfeit LVMH products were being sold on the site. Of course, eBay has no way of knowing what’s legit and what’s not, but the French court didn’t seem to care. A similar case, also involving LVMH, but concerning Google ads, was also ruled in LVMH’s favor, but it was appealed to the European Court of Justice, and a judge there has already indicated that it makes little sense to blame the company. But that isn’t stopping the French courts. eBay has now been fined yet again, because of a French ban on selling even legally purchased brands of LVMH perfumes if you’re not an authorized distributor. eBay is appealing the ruling, saying that banning the resale of legally purchased goods doesn’t make sense and harms consumers. However, a much bigger question is why eBay should be liable at all. It’s not eBay doing the selling, but users on the site.

Filed Under: auctions, fines, france, liability, trademarks, users
Companies: ebay, lvmh

Amie Street Also Takes Away Features… But At Least Is Honest And Upfront About How They Hate Having To

from the take-a-lesson,-emusic dept

We’ve covered how eMusic (which had a fantastic reputation for a while) totally failed in communicating changes to its service, which involved increasing prices and taking away many valued features. The company tried to bury that news along with the fact that Sony Music would now be included, not recognizing that many of its users didn’t care, and were pissed off at the way eMusic presented this as a good thing. At least some others may be learning. Ragaboo alerts us that online music site Amie Street is also removing some features (such as the ability to redownload tracks — just like eMusic has done), but did so by admitting that it sucked and apologizing, but basically saying its hands were tied. They also gave advance warning of the changes. While Ragaboo isn’t thrilled about he, notes that he appreciated the honesty from the company. Here’s the email that he received:

“In several weeks we’re going to be making a change to how Amie Street handles downloads, and we want to be certain you are fully informed in advance about this change. In brief, starting on August 5th we’ll only be able to offer a single download of your purchased music unless you’ve encountered a technical problem.

Although most people only download their music one time, we’ve noticed that you have done so more than once on occasion. We realize that the ability to re-download files has been important to you, so it’s understandable that you might be disappointed to see this no longer available. Unfortunately a number of factors beyond our control, including legal and royalty concerns, have made this impossible going forward.

We’re very happy to say, however, that you can continue to stream all of the music you’ve purchased on Amie Street. That means wherever you have access to the internet, you also have immediate and unrestricted access to stream the entirety of your Amie Street music collection from your Library.

To make sure that downloading music continues to be as easy as possible, we’ll be keeping a close eye on the user experience and making updates to the site as needed. The primary voice that directs any such changes will be yours, so if you have suggestions based on your experiences using the site, we’d love to hear from you. Tell us exactly what you like and don’t like, and we can make Amie Street even better!

Peace,

The Amie Street Team”"

Of course, the fact that both Amie Street and eMusic have removed the ability to redownload tracks over royalty issues makes you wonder what exactly is the issue here. Are record labels really demanding a royalty payment every time people redownload a song?

Filed Under: benefits, features, users
Companies: amie street, emusic

Examining Fact And (Gov't Crafted) Fiction On The Number Of Chinese Web Surfers

from the it-ain't-that-many dept

Statistics lauding the growth of the Internet in China have become so commonplace as to inspire yawns, despite breathless press reports of hundreds of millions of Chinese going online and signing up for the ‘net. With the Chinese Government declaring that their internet population surpassed the US last year, it would seem that the real opportunity for expansion and growth online is not in the West, but somewhere behind the Great Firewall of China. Cue the ads for Chinese Web Hosting, Chinese Industry Liaisons, and the omnipresent legions of Chinese business agents.

Many Western technology companies have heeded that call, but have found themselves cast onto the rocks of Chinese shores including companies like Microsoft, Google, Cisco, eBay, and Yahoo! The massive markets just never seem to have materialized in the Orient for these giants, or when success has loomed on the horizon the murky Chinese bureaucracy has stepped in to snatch defeat from the jaws of victory. Partnerships have vaporized overnight, and (particularly in the case of Cisco) core Intellectual Property has been outright stolen, reverse-engineered, or redistributed. Perilous waters, indeed.

So it was with this skepticism that my friend Gersham viewed the latest piece of propaganda emerging from our friends in China that we have now reached the new height of 338 million Chinese Internet users; a 13 percent increase since the end of 2008, and just about exactly one quarter of the country’s population. All of this, of course, seems to have been tabulated and distributed by the slightly inaccurately-acronymed Chinese Internet Network Information Centre (CNNIC) which, by its own admission,takes orders from the Ministry of Information Industry (MII) to conduct daily business. In fact, google Chinese Internet Traffic and you’d be hard-pressed to find data that did NOT originate from the CNNIC. Hmm. Call me a cynic.

It is likely difficult for most (any) of us to corroborate or even conceptualize these high numbers, but it seems suspicious nonetheless, particularly from a country whose median income is around $3400 and whose Per-Capita GDP is ranked 104th, right behind Armenia. In trying to substantiate this, once can point to Alexa’s site rankings which currently reveal that 3 Chinese-language web sites rank in the Top 20: Search Engine Baidu (#9), IM chat and portal QQ (#14), and portal Sina.com.cn (#18). Sounds good, right? But look closely at the rankings. Baidu, an undisputed leader in Search for China, reaches 5.73% of the internet populace, whereas Google.DE (#13) reaches roughly 3% of global internet users while servicing German, Swiss and Austrian users exclusively. Combine the populations of these three countries and they don’t even add up to 100 million people.

Gersham pointed me toward the Firefox Download Stats, where, as of this writing, Germans have made 4,948,666 downloads of various Firefox versions compared to only 672,972 for China. Again, Germany has a population of 82Million vs. 1.3Billion in China. As a control, Americans have downloaded Firefox 7,959,727 times as of this writing. Do the Chinese really just prefer Internet Explorer?

In January 2009, Comscore measured the Chinese internet audience at closer to 180 Million users, still an impressive 18% of the Internet population. This site quotes murky Nielsen Online data pegging Chinese Internet Users at roughly 300 Million. Beyond these hearsay reports, empirical measurements are difficult to come by.

So, let’s throw up our hands and try to reverse-engineer the data using published stats. According to June 2009 data from Comscore, Google has captured 65% or so of US Search Traffic. This made it the #1 web site in the world, with 157 Million US Visitors in June, according to Comscore. In the Chinese Market, Baidu has captured 73% of Chinese search, with Google in the Number Two spot. Yet Baidu.com barely moves the needle by comparison, according to compete.com, alexa.com, and others, hitting roughly 600,000 unique visitors per month globally. High-side estimates of the Internet’s penetration in the US peg it at 72.5% of the populace, or about 220 million. This makes the data on Google’s penetration vs the addressable market reasonably accurate (71% if you do the math). Following this logic, if Baidu in fact has 73% of China’s purported 338 Million users, it should be ranking as the #1 web site by far, with 246 Million unique visitors per month. In fact if any of this data were true, then Chinese sites should occupy at least 4 of the Top Ten global web sites.

Whatever your opinion of Compete’s and Alexa’s relative methodologies, it’s impossible to reconcile anything even close to the numbers coming from the Chinese Government. If that isn’t good enough for you, let’s turn to profits. While serving what was allegedly the world’s largest internet audience, Baidu appears to be tracking to earn about $500 Million in revenue this year. Google’s revenue appears to be tracking to about $23 Billion for 2009 with its pithy 157 Million unique visitors. Any way you slice it, if China’s internet userbase is as large as Beijing says it is, and if Baidu’s market share of that audience is what it’s widely purported to be, then both the number of uniques reported by external traffic sites and the revenues reported by the public company that owns Baidu should be exponentially greater.

These stats seem to either indicate that Chinese do not use search very often, or that there just aren’t too many of them heading out into the wilds of the Internet. Either way, statistics emanating exclusively from bureaucratic sources within Beijing, particularly those which seem to fly in the face of all other external metrics, are not to be believed. The thesis of this post is not to suggest that China is NOT a massive opportunity for online properties and other technology purveyors, it is simply an attempt to point out that, like in a lot of cases in dealing with the People’s Republic of China, things are not what they may seem. Pay no attention to the man behind the curtain. Cross-posted from IanBell.com.

Filed Under: china, internet, stats, users

L'Oreal Keeps Trying: Appeals French Ruling Against eBay

from the can't-stop dept

It appears that L’Oreal just refuses to give up. The company has sued eBay in a bunch of different countries trying to get a court somewhere to admit that eBay is somehow liable for actions of its users. To date, it’s been a clean shutout against L’Oreal, who has lost cases in Belgium, the UK and France (I believe cases are still pending in Germany and Spain, though it’s hard to keep up). The ruling in France was the biggest surprise, given that French courts have ruled the other way in the past. Given that, it looks like L’Oreal isn’t done yet on its home turf, as it’s appealing the ruling in France. At some point, one would hope that L’Oreal would realize that going after eBay is targeting the wrong party, but it appears that no one at L’Oreal seems all that interested in actually understanding the issues, and wants to see how many shots it can get at making eBay pay up.

Filed Under: auctions, liability, platforms, trademark, users
Companies: ebay, l'oreal

If You're Taking Away Features From Users, Don't Tell Them It's For Their Own Benefit

from the that's-called-lying dept

Sometimes, I really wonder if companies think their users are stupid. There are times when they treat them that way. My favorite examples are when companies are taking away features or raising prices, and claiming (somehow) that it’s for the benefit of those customers/users. For example, when eMusic raised prices and disabled features it put up a blog post trying to spin it as a positive, claiming “more of the good stuff!” Yes, at a higher price, with fewer features, but why let that get in the way of claiming good news?

The latest example is online music streaming site imeem. The company has struggled of late under absolutely draconian terms forced on it by the record labels. Rumors held that the company came close to going out of business until Warner Music agreed to renegotiate its suffocating deal. Still, there are many who question how the company can survive without a drastic change in business models. But, taking away features from customers with little warning and pretending it’s a good thing isn’t exactly the best way to go about things. Clay Shirky points us to the news that imeem is removing features for users to upload videos or pictures without even offering a “download to save” option. But, even worse, the blog post announcing the change tries to play this up as good news again, saying that it’s all about “simplifying imeem” as part of an effort to enhance the site.

Sure, simplifying a site can be a good thing — but unilaterally removing features that people use, with little warning, isn’t really simplifying. You can simplify without removing features. If you have to remove features, for whatever reason, why not at least admit the truth: it’s not for consumer’s benefit, but for some other reason, and you realize it sucks for many users.

In other words, sound human, rather acting like your users are morons. If you want to see a company that’s actually done a good job of this, look at Hulu. While we think it’s ridiculous that the company caved in to content providers and tried (and failed) to block a specific browser (Boxee) from viewing its content, at least Hulu’s CEO was upfront and honest about the fact that it sucked:

The maddening part of writing this blog entry is that we realize that there is no immediate win here for users. Please know that we take very seriously our role of representing users such that we are able to provide more and more content in more and more ways over time. We embrace this activity in ways that respect content owners’ — and even the entire industry’s — challenges to create great content that users love. Yes, it’s a complex matter. A tough mission, and a never-ending one, but one we are passionately committed to.

For those Boxee users reading this post, we understand and appreciate that you’re likely to tell us that we’re nuts. Please know that we do share the same interests and won’t stop innovating in support of the bigger mission.

eMusic, imeem and others would be wise to take note. Taking features away and pretending your customers are stupid enough to believe it’s for their benefit isn’t likely to fly.

Filed Under: benefits, features, users
Companies: emusic, hulu, imeem

eMusic Also Took Away Right To Download Songs Already Purchased

from the thanks-for-nothing dept

In all the fuss over eMusic’s poorly managed plan to sign Sony Music and raise prices at the same time, the company apparently also was able to sneak through another anti-customer move. For years, as an eMusic customer, you were able to go back and access songs you’d previously downloaded. This is, for obvious reasons, a very useful feature — especially considering the fact that people change computers or lose hard drives and such. However, apparently, along with the price increase, eMusic has quietly dropped this feature as well. It’s not clear why they would do this. Perhaps Sony didn’t want this, but that doesn’t explain why the feature was removed for everyone. It’s like eMusic is punishing their loyal customers. The company claims that it will allow people to redownload if there’s a technical problem, but the convenience feature is just gone.

Filed Under: downloads, users
Companies: emusic