leichter 's Techdirt Comments
Latest Comments (87)
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On the post: Duh: Raise Music Prices To $1.29/Song; Music Sales Growth Slows
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On the post: Photographer Thrilled That Apple Using His Photo As Default iPad Background, Despite No Official Agreement
leichter ( profile ), 09 Feb, 2010 @ 06:45amThe reason some photographers are so "over the top" on the issue of copyright is that they see their business model disappearing. Many photographers made a nice living off of sales of their stock photos. Not so long ago, there were only a few stock photo agencies, and before digital photography, physically producing good images, finding appropriate images, getting copies and such were labor-intensive enough that the market supported high prices. You could live off the stock photos you sold.
The emergence of low-end, cheap, mass-scale digital stock photography has destroyed that market. Sure, some - perhaps much - of the stuff available isn't up to the old "professional standards." But some is - and even more important, much that isn't is "good enough." It's just about impossible to live off of stock photos any more. This is sad for the photographers - really, it is, some of them are real artists - but economics and reality don't change because something is sad. And it's certainly better for the larger economy: Anything that makes a product that's in demand cheaper frees up resources to do something else that's in demand. As with many such economic shifts, there's a broadly spread benefit that hardly anyone notices, and a sharp loss that really hits a small population hard. The hard-hit population will understandably be upset - but that's, sad to say, life. Even if you believe that society owes you "a living wage," it doesn't owe you an income for doing the particular thing you want to do.
As to Richard Misrach and his lack of angst over his non-agreement with Apple: A fundamental economic good is trust. Trust that the party you deal with won't try to rip you off. Trust that "we're in this together, we'll both profit if we work together." Our over-lawyered/over-legalized society loses sight of that sometimes, and it costs us dearly. The fact is, even today, most business is transacted informally, without anything written down - and certainly with no lawyers involved. Mainly, it all works well - and a damn good thing, since our economy would grind to a halt otherwise.
So ... kudos to Mr. Misrach for his willingness to trust. And here's hoping that Apple does the right thing to reward him. I believe they will - but if they don't, they should see their reputation badly stained. -
On the post: Others Claim To Hold The Trademark On iPad. Is There An App For That?
leichter ( profile ), 29 Jan, 2010 @ 03:37amThere are only so many possible reasonable trademarks. Most trade used to be local, so most trademarks were also local, allowing them to be "geographically multiplexed". No more. Also, of course, everyone is so much more litigious about "*their* IP" these days.
With trademarks, we don't see the resulting conflicts very often because most companies choose to pay "behind the scenes" to avoid them. (We see big guys going after little guys - Olympics, I'm looking at you - because the little guys aren't in a position to stay out of the way.)
Apple has clearly decided that this situation is untenable for them. They have marks they want to use - I'm sure the decision on the *right* mark is Steve Jobs's - and if they took their lawyer's risk-averse advice, they'd never be able to use them. So they just go ahead, obviously aware that a fight will likely ensue - and relying on their ability to outspend pretty much anyone to force a reasonable settlement. Hell, if they can get Cisco to settle, who's likely to stand up to them? Besides, since trademark law doesn't have treble damages based on bizarre valuations and rarely produces prospective injunctions, the downside isn't that terrible: Change the official product name, knowing full well that if the product was a wild success, people will keep calling it what you want anyway.
It's an easy prediction that all the legal complaints about the name will be quietly settled. Apple will pay some unspecified amount for the rights, and that will be that.
-- Jerry -
On the post: Did Manchester United Ban Players From Using Social Networks… Or Alert People To Fake Accounts?
leichter ( profile ), 26 Jan, 2010 @ 03:08amLoyalty to who?
I can understand the rationale. (I don't particularly agree with it, but it's understandable.) The team wants loyalty to the *team*, not to the individual players. There's a kind of "co-opetition" between individual stars and the teams they play on. On the one hand, stars bring fans to the games, which is what makes teams money - so the teams want to build up stars. On the other, when stars build up enough of a following independent of the team that they can walk to another team and take their followers with them, they get a very strong bargaining position relative to the team.
The conflict plays out in all sports. Look at baseball in the US. For years, the teams had complete control on who could play where. Salaries remained low, even for the biggest stars. Then the teams were forced to allow free agency. Salaries for the stars exploded. The teams no longer captured all the profit.
From the point of view of an intelligent team, the right thing to do is to somehow have an official team presence for its stars. They want fans interested and following - but in a way that's tied primarily to the team, and secondarily to the player.
Now, what they *want* and what they can, in practice, *get* are two very different things. Since it isn't clear they can retain control over things like Twitter followers, the natural response is "live without 'em".
-- Jerry -
On the post: Should A Site Be Forced To Takedown Content If A Court Rules Against The User?
leichter ( profile ), 28 Dec, 2009 @ 05:52amIt's amazing how people can come up with excuses for bad behavior.
As the story is presented above, it's essentially all about the procedure. It leaves out the essence of the case. That's fine for an appeals court - it's what they are supposed to do. But it's not a reasonable way to judge what's actually *right* here.
Take a look at http://arstechnica.com/tech-policy/news/2009/12/justice-elusive-for-chicago-family-defamed-online.ars which outlines the facts. This isn't about a business complaining that they were labeled as dishonest. It's about a series of vicious postings by an ex-husband about his ex-wife and her entire family.
Nor is it about a poor innocent who wasn't informed that there was a case being tried against him. He declined to defend himself, in a case decided at the beginning of October. When people really have some legitimate reasons for not showing up in court - or can show they weren't actually served properly - they can petition for a rehearing. Nothing like that has happened here. -
On the post: Woman Sues Sprint Over Driving While Yakking Death
leichter ( profile ), 09 Dec, 2009 @ 04:29amDon't dismiss this lawsuit quite so quickly. The difference between this and earlier ones is that time has passed and there's more information. On the one hand, all the wireless companies clearly sold these devices as useful in cars. Their buildouts focused on highways, their ads kept showing the advantages of carrying out business while driving. Meanwhile, studies *that they themselves funded in many cases* showed the hazards. In response, for years they put CYA warnings in the booklets - where they knew no one would read them.
The argument will be that it's as if, hmm, a ski resort ran repeated ads showing people with previous skiing experience using some kind of new-fangled skis on a special course with no instruction, then put a warning at the end of those books of local attractions they put in rooms saying "Don't go out on the slopes until you've learned how to ski" - and then claimed to someone injured "Oh, you should have known better."
Well, maybe - but this isn't even such a great analogy, since the actual hazards from cell phone use are much less obvious than those of skiing. Everyone jumped on "hands-free" operation as the issue, because *that* seemed like the obvious hazard. Except that it wasn't, and isn't. While it doesn't *feel* like "just talking on the phone" has much of an effect - how many of the previous posters here *don't* use their cellphones while driving? - the fact is objective measurement shows it does.
Laws are supposed to be unambiguous. It's fine to say that general laws about distracted driving are enough - but how do you know when such a law has been violated? Is it a law you trot only when there's already been an accident and you want *something* to charge an idiot driver with? Or do you want something that might actually be effective in preventing accidents? Frankly, I don't all that much care if people do stupid, dangerous things that only harm themselves - but I damn well *do* care what they do when they share the road with me.
-- Jerry -
On the post: Yes, Gartner Is Free To Pick Which Companies Fit In Its Magic Quadrant
leichter ( profile ), 17 Nov, 2009 @ 09:29amNot always so black and white
Companies like Gartner want to have it both ways: On the one hand, they want to sell themselves as vendors of objective research. On the other hand, when called on the damage they might be doing to a company, they will claim "Oh, it's just our opinion".
Gartner does indeed sell its research to sophisticated buyers who should know enough to understand the limits of their objectivity - not that they always do. (Many years back, the line was "You can't be fired for choosing IBM." Today, failed technology decisions are often defended as "That was industry best practice, Gartner said so.") Absent "actual malice" or some such concept imported from other areas of First Amendment jurisprudence, or outright fraud, they should be permitted to argue that the sky is green, if that sells their reports
But that doesn't mean *every* purveyor of "opinion" dressed up as "objective research" in *every* circumstance should be given a pass. Look at the ratings agencies like Moody's. They arguably sold their ratings to whoever would pay enough. (They would, of course, object to that characterization; but when you're being paid by the company you are rating, and many of your ratings for your biggest clients have turned out to be ... not quite accurate - it's hard to deny that there is some element of this at play.) Those bogus ratings had significant real-world effects, because they had become built in to the financial system. Funds were sold on the basis of pledges to invest only in "safe" instruments - defined by Moody's and similar ratings. There were laws on the books that referred explicitly to such ratings in determining where government funds, or regulated investments like pensions, could be put.
All of those things contributed to making Moody's ratings valuable, above and beyond any value the competitive marketplace in investment opinion might have placed on them. At some point, if you're going to be rewarded in special ways for allegedly providing something beyond "mere opinion", you should expect that a defense of "it's just my opinion" won't be acceptable.
At the moment, it seems that Moody's and friends have the law on their side - attempts to call them on their behavior don't seem to be going anywhere in court. The legal issues are something to be thrashed out by courts and lawyers - and perhaps the legislatures. But the issue of whether it's *right* for someone to gain special recognition and rewards, above and beyond that of other "opinion publishers", and then be immune from any consequences when they violate that trust - that's something else again.
-- Jerry -
On the post: Psystar Loses Big To Apple
leichter ( profile ), 16 Nov, 2009 @ 03:14amMaster copy vs. individual copies
This particular battle has been lost repeatedly. You can go all the way back to, err, what was the pre-Napster company that would serve you a copy of a CD *if* you first proved you had physically bought a copy? Most recently, one of the cable companies won the right to provide a "VCR in the cloud" to their customers - but only if they kept separate physical copies of stuff each customer recorded.
The fact is, identical bits may not be identical under the law. Provenance - how the bits got there - matters. It may sound silly, it may be a distinction that will prove impossible to maintain in any meaningful way - but right now, it's there, and given that distinction, it's not surprising this case came out the way it did.
-- Jerry -
On the post: How To Get Spectrum Back From TV For More Useful Purposes
leichter ( profile ), 25 Oct, 2009 @ 05:51amUWB, etc: The government is the whole problem
That's such a nice rationalization: If we just get the government out of the picture, the famous "invisible hand" of the market will solve all problems.
Even Adam Smith didn't believe that. (He used the term "invisible hand" exactly once in his writing, and had a great deal of discussion of when and where the government should interfere in the markets.)
Interference is a real problem. It was when radio started out, and it will be for new digital technologies. It manifests itself more subtly for the new technologies. In the old days, a strong signal simply swamped a weak one. Now, what it does is decrease the effective signal to noise ratio. That has the practical effect decreasing the rate at which you can send data. Eventually, the rate drops low enough that your system stops working. Tragedy of the commons and all that: Everyone gains individual advantage by using a wider spectrum and more power, which makes it tougher for everyone else.
The free market answer is always: Get rid of the commons, just divvy up the "shared resource" and let the market figure out the best use. Guess what:
That's exactly what we did when we set up the frequency allocations back in the 30's. We didn't *call* it that - the laws never gave anyone perpetual rights to a frequency, just what were more-or-less free rentals for a limited time - but over time, guess what, we grew exactly a property-based system for allocation. If you're unhappy with incumbents complaining that "their" frequency bands are being taken from them - well, isn't that exactly what you'd expect a property-based system to look like? Property holders protecting their holdings?
The problem isn't the government intervention; it's that as a result of technological change *the basis on which we created "property" out of an abstract EM spectrum no longer makes sense*.
It's as if we defined ownership of real property solely on the basis of a right to grow plants - crops, animal feed, wood - on it. Fifteen hundred years ago, that would have made some sense - and would arguably have been a better deal for most people then alive than a system defined by and for the interests of a landed aristocracy. But in a modern society, it would make no sense at all, since we've since discovered many other ways to use land. Had we gone that route, at some point along the way, we might have had the same problem of how to fix the "land allocation problem" that we do with the "spectrum allocation problem" today.
*What* to replace today's spectrum allocation with is a difficult problem. There are multiple contending technologies. They use spectrum in different ways, and interfere with each other in different and complicated ways. This is going to take some time to figure out - and it will inevitably end up favoring some technologies over others. It will also inevitably involve the government: It's the government's courts that have to adjudicate disputes (if you aren't willing to let them be adjudicated by private armies), and they ultimately need to have some basis for doing so, which (if you aren't willing to wait for 100 or more years for precedent to fill in the blanks) will have to come from the legislature.
So forget the anti-government rants. They don't help.
-- Jerry -
On the post: How To Get Spectrum Back From TV For More Useful Purposes
leichter ( profile ), 24 Oct, 2009 @ 09:08amUWB etc.
"Anonymous Coward" the engineer is correct. UWB and related technologies are already here on a technical basis, and will only get better and cheaper. The only thing blocking their adoption is incumbent users - and, even more, an incumbent mindset that divides the world up by "spectrum". That's thinking that will soon be obsolete - the sooner the better.
Dividing up the spectrum and turning frequency ranges - to be more accurate, some arbitrary combination of spectrum, power, and location - and selling it off would forever commit us to old technologies. It would make about as much sense as selling off the right to walk in particular directions at particular speeds in particular areas. Sure, you could avoid collisions that way - and auctioning off those rights would be a bonanza for the government - but we have better ways to avoid running into each other, thank you very much.
"Spectrum scarcity" is a combination of several factors. Huge parts of the spectrum are reserved for government/military use. (Look at a spectrum chart some time.) Spectrum allocations are based on old technology, even where the spectrum is actually being used in a traditional analogue fashion. (When tuning involved a resonant circuit, you needed broad guard bands because tuning was imprecise. It's all digital PLL's now; you could work much more efficiently.) There are tons of incumbent users who treat "their spectrum" as a property right, and scream bloody murder and anyone taking it away.
Consider proposed white space use as an example. White space systems have to avoid TV signals - OK, let's accept that as a big user - *and* wireless mike systems in theaters and similar venues that operate on unused TV bands. Let's get real here: How many such systems are there in the whole country? How much do they cost? Sure, there will be a Committee To Defend Community Theater (funded by who knows what *real* interests) that will complain about small houses on minimal budgets with amateur staffs that will be put out of business by the cost - which could all be replaced for a few 10's of millions of dollars across the entire country, including the majority which wouldn't even be interfered with. But this is the kind of thing that blocks innovative use.
Slicing up electromagnetic radiation by frequency band is analogue thinking. With digital systems, a whole new reality can emerge, in which frequency is interesting only because if different transmission characteristics at different points in the spectrum. We need to move away from analogue thinking and come up with a way to deal with the new realities. -
On the post: Speakeasy The Latest VoIP Provider To Block Certain Calls
leichter ( profile ), 02 Oct, 2009 @ 10:42amGet rid of free calls ... sort of
Another approach would be for the VoIP providers to (a) charge back the connection costs on each call; (b) provide a rebate per call up to some amount, which would render all "normal" calls free. Then there's no problem allowing calls to one of these expensive numbers - the costs will end up on the user. (Of course, it's important that the VoIP provider make it very clear what the call will cost - preferably at the time the call is placed.)
With this approach, increasing use of VoIP will lead to increasing pressure on the conference call providers to change their ways....
-- Jerry -
On the post: IFPI: The Pirate Party Shouldn't Be Allowed To Hold Its Positions
leichter ( profile ), 20 Aug, 2009 @ 07:09pmTranslation?
It's amazing how much attention can be applied to the exact wording of a statement that is either a translation, or was made in English by someone for whom English is not his mother tongue. ""We are absolutely against the idea that any political party can give their support to the idea of free use of protected content." Read that again. Does it sound like colloquial English to you? The whole sentence structure isn't "natural" for English.
The use of verbs like "can", which have complex and subtle meanings, is exactly the kind of thing that trips up non-native speakers. The "permission" aspect of "can" is not the primary one; in fact, in most contexts, one would prefer "may" for permission and "can" for "possibility". But he can't possibly me that it's *impossible* for the Pirate Party to hold such positions, since they manifestly do.
I can't tell you what Arto Alaspaeae actually meant. I wasn't there, I can't ask him. I certainly believe he strongly disagrees with everything the Pirate Party stands for. But I doubt he was trying to dictate what positions they should be *allowed* to take. -
On the post: Is A Blogger Strike The Best Way To Fight Back Against Laws Designed To Quiet Bloggers?
leichter ( profile ), 19 Aug, 2009 @ 09:42amDon't look with just American eyes
In much of the world, the use of strikes to make a point is a long-established tradition. As it happens, this tradition is very strong in Italy. The basic message of any strike is: We're here, you need our services (see how it hurts you when we don't do our jobs?), you need to give us a place at the table. In the US, strikes are reserved almost entirely for labor negotiations - though there are celebrated examples of other uses: Consider the Birmingham bus boycott. (Actually, this displays a linguistic distinction: Strikes are over labor issues while boycotts are general political tools. There are other ways in which Birmingham wasn't a "strike", but we do tend to maintain that line in the US.)
The general strike - an attempt to basically shut down the economy - has been a common tactic in parts of the world for many years, but has never had much of a presence in the US, probably because we've never had any unions large enough to pull it off (though in the US in might well produce more anger than sympathy anyway).
Other cultures have developed other variations. Hunger strikes were a characteristic Indian form of protest against the British colonial government, and similar forms continue to be used in modern India.
It's always a mistake to judge the meaning and effectiveness of a tactic within someone else's culture by the standards of your own. -
On the post: It Ain't The Link, It's What You Do With The Traffic
leichter ( profile ), 15 Aug, 2009 @ 05:27amFollowing the logic through..
then advertising is a waste of money. Having a Yellow Pages listing is a waste of money. Those movie previews? A waste of money. Getting the name of your business mentioned positively in the newspaper? Theft by the newspaper.
In all these cases, you're *giving away* some of your value without being compensated for it. And only a tiny minority of those who view your ads, or your Yellow Pages listing, or the preview, or the paper, will actually end up being customers. Those aggregators owe you for that! -
On the post: Misplaced Blame In Copyright Infringement Claim Over Plagiarized Website
leichter ( profile ), 13 Aug, 2009 @ 04:16amEquity
We're talking how the law *should* work here, in an ideal world, versus how it actually *does* work. (How it *does* work is that the losing law firm was held 1/3 responsible, which could be re-examined within the legal system via an appeal, but I would guess would likely be upheld.)
In terms of how it *should* work, it's first essential to separate off the nature of the harm - a copyright infringement vs., say, a car accident - from how any damages get apportioned. One could well argue that the actual harm to the winning law firm from having their web page copied is zero. In the old days, law firms gave out paper descriptions of their services. (They still do, actually.) They all look pretty much the same. What's the big deal?
But, OK, that's not the question at hand. The question at hand is: Given the damage done, who should pay. And here's where the nature of civil, as opposed to criminal, law enters. Civil law is *primarily* concerned with the issue of apportioning costs. X was harmed. Who should compensate X? The basic standard is: Whoever caused the harm. Causality is complicated and has to be cut off somewhere, or you blame the minor of iron ore without who's work the steel that went into the care wouldn't have been available. And you also want to look at who was in a position to prevent the harm (and had some reasonable obligation to do so) and who might have gained as a result of whatever harmed X. And this was the decision of an arbitrator, who is even more tasked to "make things right" than a court would be.
The lawyers hired the web company. The web company acted as their agents. The lawyers apparently gained because they got a good web site. They could perhaps have dug more deeply and asked the web company for assurances that they were being given something new, not something copied. If you read the whole article, the web company asked a very low price. The guy hiring them was savvy enough to know that, and savvy enough to expect to have to do some additional work on what was delivered. Then they delivered much more than the law firm expected. That should perhaps have raised alarms. And, apparently, the copying was pretty much exact, with only the names changed. So a simple search would have been enough.
Given all this, it's not unreasonable on its face for an arbitrator to say that the law firm - actually, the partner who hired the web firm, personally - should share in the liability. If your cars brakes are acting flakey, and you choose to save money by hiring Joe from down the block who asks you for much less than the local mechanic, and then your brakes fail and you hit someone - shouldn't you bear some of the blame?
By the way, the court case being reported on here seems to have *nothing* to do with the merits. It seems to be a procedural decision on where the suit can be filed. -
On the post: Reuters Steps Up; Says Linking, Excerpting, Sharing Are Good Things For The News
leichter ( profile ), 05 Aug, 2009 @ 07:41pmYou're being way to tough on him for those final remarks. "Fair use" has never had a legal definition everyone could agree on. Absent specific statutory language (which we're highly unlikely to ever see), a court would be strongly influenced in an analysis by a common understanding in an industry of what's OK and what goes too far.
As for fair compensation, how are contracts and agreements on price actually reached except through conversation? Collusion can take place only among *competitors*; it's expected that buyers and sellers will spend a great deal of time talking to each other about exactly the kinds of things that land competitors in trouble if they talk about it.
As to the business models ... where do you see him calling for some kind of agreement ahead of time?
There's the "economic man"/Ayn Rand view of atomic individuals each pursuing his own rationally calculated best interests completely objectively, and there's the reality of how human being actually interact with each other. Most business communities do, in fact, run on general understandings of what's proper and what isn't - legal or not, profitable or not. That's the basis of "trust", which is a fundamental if difficult to measure resource, without which economies don't work very well. To complain when someone like Ahearn calls for more understanding and discussion and return of some notion of civility and ethics to a business that's descended into name calling and legalisms seems to completely miss the point. -
On the post: Apple, Microsoft, Others Sued For Patent Infringement Over iPod, Zune Touchpads
leichter ( profile ), 22 Jul, 2009 @ 07:43pmRe: Response to Jerry Leichter, Jul 21st, 2009 @ 4:12am
Your comments are ... confusing. You start off by talking about prior art as providing "a scaffolding for obviousness", but prior art and obviousness are *different* ways a patent can be faulty. If you can find prior art, you would certainly want to cite it, since for at least the last 30 years, the courts have effectively gutted claims of obviousness. Even lacking that - obviousness is inherently much more subjective than prior art, so not something you would want to rely on unless it was your only alternative. Fundamentally - if it was so obvious and was also useful, why didn't someone do it before? And if they didn't why can't you turn this into prior art?
As for the rest ... I fail to see how any of the examples you list have to do with the specific notion of using gestures to control a music player, and specifically with the intent of making such control possible even without looking. The fact that gestures, media players, and all the rest were mentioned and even built before this invention has nothing to do with the patentability of this specific combination of features. Few, if any, inventions are completely novel, with no connections to what went before. Most are re-arrangements of existing components, or new uses for them. As long as they can pass the various relevant tests - including not being obvious - they can be fine patents.
Finally, prior art is much more specific than a description in some story. There have been descriptions of flying cars for a century; you could probably claim that those were based on stories of flying carpets! Given all that, you couldn't now get a patent on the concept of a car that flies - but in practical terms, any specific innovative technology that lets you actually build a flying car will be completely unaffected by all those stories. Stories that contain enough detail to really matter are rare. Clark's invention of the use of geosynchronous orbit for communications satellites is a great example of an exception. -
On the post: From Closed To Open: iPhone App Developer Skepticism Highlights Platform Trajectory
leichter ( profile ), 21 Jul, 2009 @ 04:26amSteve Jobs probably agrees with you!
Apple has been extraordinarily clever about surfing the line between open and closed. Consider the history of the iPhone: Initially, it was a *completely* closed system; no user development at all. Then, it would support Web apps, but no native apps. Then it supported native apps, but only through an Apple-controlled app store. The app store wouldn't sell anything even mildly offensive - and now it has ratings and you can sell "mature" stuff, with a proper warning,
Meanwhile, a secondary "unofficial" market in unrestricted apps for jail-broken phones develops, grows rapidly, and then slows considerably as the official market grows. Apple complains about jail-broken phones, but makes no serious attempt to block them. In fact, Apple seems to use the "unofficial" market as a way to gather intelligence about what people on the bleeding edge want to do with their phones, with no danger that problems with such apps will reflect badly on Apple.
No one gets it right forever, but Apple has managed to stay at just the right point on the curve to maximize its income. Many millions of customers, so far, as happy with the app store as it exists. As their attitudes shift, Apple will likely shift, too. -
On the post: Apple, Microsoft, Others Sued For Patent Infringement Over iPod, Zune Touchpads
leichter ( profile ), 21 Jul, 2009 @ 04:12amQuite specific patent
The underlying invention was clearly conceived quite specifically: It's the use of gestures to control (a) a music player; (b) without having to look at the player. The restrictions to music players appear in dependent claims (e.g., 6); the lack of a need to look appears in an independent claim (10).
Think back to music players in July 1999, when this invention took place. We're two and a half years before the first iPod is introduced. The UI's on existing MP3 players are - pretty dreadful. Tiny little buttons, maybe a tiny little screen. Doing something as simple as going to the next song requires picking up the device and looking at it. As is clear starting with the Abstract, *that* is the problem the inventor set out to solve - and he did.
Yes, in drafting the patent, the lawyers did what they always do: Included much broader claims (like 1) . Those probably don't survive a challenge on prior art grounds. No big deal, as long as there are also specific claims that survive - as there might be here.
I certainly wouldn't say this was an obvious thing to propose in 1999. Touch screen interfaces barely existed except as experimental high-end stuff. People looking to the future thought about high-end applications, or at least about *fixed* applications, like kiosks - though gestural interfaces for those would have been very unlikely. Palm and Go used gestures as a small addition to a text-based interface - so, yes, the stylus made a big difference. The idea that you could apply this kind of interface to something like a music player was really quite clever - and when Apple shipped it a couple of years later, was treated exactly that way.
Maybe there's more specific prior art out there. The defendants will certainly search for it. The whole business of usage without looking will have to be examined. I don't recall Apple ever describing this as an advantage of the iPod, for example.
One can disagree with the whole notion of patents, and one can disagree with many aspects of the patent system as it currently exists. There are many patent lawsuits based on really bad patents. To me, this isn't one of them. What appears to be an individual inventor set out to solve a real problem he ran across in his daily life, and came up with a novel used of a leading-edge technology. I don't know if he tried to sell his idea to anyone. Perhaps we'll find out that he actually approached one of the companies being sued. (It certainly wouldn't have been Apple - in 1999, the idea that Apple might make an MP3 player would have been news to everyone with the possible exception of Steve Jobs and a few close associates.)
My guess is this is one that gets settled. (I, personally, would rather see a settlement for some reasonable amount with the inventor. But we'll get a settlement at some value with a speculator. Another unfortunate aspect of the realities of today's patent system.) -
On the post: Don't Underestimate The Value Of Exposure
leichter ( profile ), 15 Jun, 2009 @ 04:24pmOversimplification
Anyone who sells his work - as an artist, writer, consultant - has to face the tradeoff between getting paid what the market will bear, and accepting little or no monetary compensation in trade for visibility. This isn't new to the Internet era. People starting out in any such business rarely have a good feel for what their own effort is worth. A few think too much of themselves; most undervalue themselves and will all too readily buy into this kind of deal.
The tradeoff is complicated. For one thing, like many tradeoffs in business, it's about current versus future expense or income. These are always hard, because future expenses/incomes are inherently uncertain, while current expenses/income are certain - and sometimes you just have to pay the rent.
If you look at the actual Times article, the clear impression is that all the artists approached have a significant audience and business already, and certainly the ones who are refusing to let their work be used for free appear to be doing quite well. To stand on the outside and tell them how they should run their businesses - with no knowledge of where they actually stand - is incredibly presumptuous. Some of the artists who are refusing to participate are likely making a mistake. Others who are *agreeing* to participate may well be making a mistake, if the publicity they get ends up garnering only requests for more free work, rather than paying contracts.
Frankly, it seems to me that the biggest mistake here was Google's. I'm reading between the lines here - I don't know what Google actually said - but they appear to have been insensitive to how these artists see their businesses. It was only after the fact that they appear to have made it clear that they would be happy with existing work - most artists at the level they were approaching probably assumed they, like most customers, wanted something unique done just for them. Rather than casting this as an honor - a kind of on-the-web art show - they let it look like commerce. Well, if it's commerce - why shouldn't the artists expect payment? Perception and setting are essential in determining how people view a request.
By the way, this kind of thing doesn't just happen with artists. A small company I knew spent a great deal of up-front effort putting together a proposal and participating in a bake-off against competitors, for a sale in the low millions of dollars - a big part of the year's income for them - to customize and sell software to a mega-company. The mega-company's response was "We love your technology; it beat everyone. We want to use your stuff. In fact, we love it so much that we'll be happy to tell the world that we're using it. Our endorsement is so valuable that we propose you give us your software for free." Fine idea; but if the small company had gone along with it, they might well not have survived the year. (The deal was eventually negotiated to some level close to the small company's original proposal.)
*Real* economics
If we're going to talk economics - let's talk *real* economics. A seller is trying to maximize *profits*, not *sales*. Profits are the product of price and sales. Yes, if you raise the price, sales go down - but profits can go either up or down, all depending on the supply/demand elasticity curve.
Now, the shape of that curve is pretty arbitrary, certainly for consumer products. There are "magic points" - e.g., when you cross the $1.00 threshold - where the change can be unexpectedly large. In general, no one can know the shape of the curve for a real product with any certainty - all they can do is try different prices and see what happens.
Things are even more complex when you're looking at market growth rather than just profits for the last quarter. Is it better to forgo some profits now in order to build a bigger market for later? Maybe, maybe not. Is it better to rake in big profits this quarter by holding the price high, then dropping it later when you've "used up" those willing to pay higher prices? Maybe, maybe not.
I have no idea what the actual effect on record company *profits* were of the increase prices. Neither does anyone else commenting here. And certainly none of us knows what will happen next quarter, next year, next decade.
I'm just objecting to the knee-jerk "the record company execs are a bunch of idiots who don't understand basic economics" assertions. Pricing decisions are complex and very difficult to get right - even with large amounts of data. With the very limited data that's available privately - how did the distribution of sales vs. price look? What happens to sales when a $1.29 "popular" song losses popularity and moves to the $.99 or even $.69 level? - it's essentially impossible. Yes, if you raise prices, few people will buy. Duh. Unless you're living in the world of the dot com bubble - when all that mattered were "eyeballs" and mentioning "profits" marked you as an old fuddy duddy who didn't understand the brave new world - that's obvious and in and of itself uninteresting.
-- Jerry