This is a guest post from regular commenter, Ima Fish, and is cross posted from his own blog:

Marion Maneker over at the Big Money website wrote a piece entitled "The Weird Logic of Paywall Challengers."  He attempts to show that the arguments used by those against paywalls are illogical.  He also attempts to show that paywalls are not only a good idea but a necessity for news websites.

First, a little background.  Some internet news sites are making people pay to view content.  That's called a paywall.  You can't view the content without paying.  So far the attempts to implement paywalls have been complete failures.  For example, when Newsday set up a paywall, only 35 people paid.  After the Times instituted a paywall, its readership dropped by 2/3rds.  And because those articles are not being indexed by Google (or Bing or Yahoo), they're essentially invisible to people on the web.

So what's Maneker arguments in favor of paywalls? What errors in logic have those against paywalls made? Let's go through his points.

His first point is that even if ad revenues are back, news outlets should diversify by charging anyway.  He doesn't seem to get this, but as I explained above, paywalls kill off advertising by driving viewers and readers away.  So Maneker's argument that news outlets should diversify by relying on both advertising and paywalls fails as it is self contradictory. 

His second point is that news outlets charging "for content has always been part of its long-term strategy."  He's absolutely right that newspapers have tended to charge for content. However, that was never done for profit. Profits always came from advertising, classifieds, and obituaries. 

There were two reasons newspapers did charge.  The first was to cover the costs of publishing.  However, those costs no longer exist in the digital realm. 

The second reason newspapers charged was to show advertisers how many actual readers they had.  If a newspaper publisher simply gave away its papers, it could claim that millions of people are reading when in fact no one is reading.  People paying for newspapers is a pretty good indication to advertisers that people are in fact reading.  But in the digital realm news outlets do not need paying customers to tell advertisers how many unique people are reading.  All that information can be tracked automatically in real time.  Heck, in the digital realm news outlets can give specific information about page views and what ads are working and what ads are not.

His third point is that "central to any media strategy should be the idea of charging for some content."  Has he never listened to broadcast radio?  Has he never watched broadcast TV?  Has he never used Google, Facebook, or Twitter?  And despite being contradicted by legitimate business models, his third argument is circular.  He's essentially arguing that news outlets should charge for content because they should charge for content.  It only concludes its premise without telling us why.

Along with his third point he pulls the following assertion out of his ass, "Digital distribution should make content much cheaper--but it shouldn't make it free."  Why shouldn't it be free?  He never explains.

Hundreds of years ago the most efficient means to distribute news was to print it on paper and deliver it locally.  Times changed.  Radio came along and made delivering news in real time more efficient.  But it still lacked the newspaper's depth.  TV news had the same problem.  But the internet does not.  It has the efficiency, the immediacy, and the depth.  Because the distribution costs are essentially zero, economically speaking, there is no reason why the cost of the content should not also be free.

If Maneker's piece is any indication, the pro-paywallers' dream of making us pay for news is a lost cause.

Permalink | Comments | Email This Story

Back in 2007, musician Kristin Hersh was one of the first musicians we wrote about who had put in place a "tiered" support offering, which these days are becoming quite common. It looks like she's continuing to break new ground with experimental business models as well. Her latest album is actually going to be released as a book via Harper Collins' The Friday Project. The book/album, called Crooked, will basically be a really nice book, including full color artwork, lyrics, essays by Kristin about each song on the album and (of course) download codes to get all sorts of additional content, including stems for remixing and track-by-track audio commentary. This seems like a good way to give her fans an actual reason to buy the scarce good (the book), rather than just demanding they pick up a piece of obsolete plastic, like some artists.

Permalink | Comments | Email This Story

Nearly two years ago, we wrote about a company, called Leader Technologies with an incredibly broad patent (7,139,761) that covered associating a piece of data with multiple categories, that was suing Facebook for infringement. Our usual group of patent system defenders rushed to the comments to quickly declare that I was an idiot for daring to question this patent. The case took a weird turn when the court actually ordered Facebook to hand over its source code. We were confused as to how this made sense. Since the lawsuit was about patents, not copyright, the specific source code shouldn't really matter.

Either way, it looks like the jury in the case seemed to agree with me about the quality of the patent. The jury has declared the patent invalid. Clearly, the only explanation is that the jury was also made up of idiots. Next time, Leader Technologies should file the lawsuit in East Texas where they know how to make juries, rather than Delaware.

Permalink | Comments | Email This Story

A bunch of folks have sent over the story from TechCrunch, based on a tweet from Chris Dixon that patent hoarding giant Intellectual Ventures isn't doing so hot for those who invested in it. Now, it's no secret that I'm no fan of Intellectual Ventures. I believe the company represents a huge tax on innovation and has a variety of very questionable business practices. I would be very happy to hear that it was doing poorly. But, unfortunately, the numbers being revealed are mostly meaningless. To understand why this information is even out there, you have to go back to 2002. Historically, the internal rate of return (IRR) for venture capital funds was kept secret from the outside world. However, many big public universities invest in such funds and get the usual reports about those funds' performance. Back in 2002 (I believe, due to a reporter's request), the University of Texas was the first of a few public institutions to realize that, being public, they probably should publish that information. Venture capitalists freaked out that people would misinterpret the results.

That's because the IRR for a venture fund, especially in the early years, is pretty meaningless. A typical venture fund lasts ten years, and the first few years is when all that money is being invested, and there's no real returns. On top of that (and, more importantly), the IRR is usually reported based on a totally made up number, which is what the VCs believe their portfolio is valued at, since it doesn't involve a liquid market. VCs were afraid that publishing such numbers would freak people out, and lead VCs to focus on more short-term investments. I don't think that's really happened, but it does appear that the Intellectual Ventures funds represented here (showing IRRs of -73% and -10%) might not really mean anything.

Without knowing the details of what those funds represent, or how long the timeframe is for those funds, it's difficult to assess what's really going on. It does look like IV isn't valuing its first fund very highly any more, and considering it's Intellectual Ventures I, perhaps you can assume it's further along in the process. But, in a game where a sudden "home run" can change things quickly (even if we're talking about patent infringement lawsuits or licensing demands, rather than true venture investments), it's difficult to make any serious call on the performance just yet.

Permalink | Comments | Email This Story

We're still at a loss to explain why there's been so little outrage over the fact that the FBI got a total free pass for its massive abuse in getting phone records. As you may recall, reports came out about how the FBI regularly abused the official process for obtaining phone records, avoiding any of the required oversight, but right before that info came out the White House issued a ruling saying that it was okay for the FBI to break the law. That's not how things are supposed to work.

And, it appears that since there was no outrage over all of this, the White House keeps pushing further. Three new articles highlight what a travesty this has become. First, the White House wants to quietly make it easier for the FBI to demand internet log file information without a judge's approval." Just as I finished reading that, I saw Julian Sanchez's new writeup about how the White House blocked and killed a proposal to give the GAO power to review US intelligence agencies. The GAO is the one government operation that seems to actually focus on doing what's right, rather than what's politically expedient. Sanchez notes that, beyond the sterling reputation of the GAO, it's also ready, willing and able to handle this kind of oversight: The GAO has the capacity Congress lacks: as of last year, the office had 199 staffers cleared at the top-secret level, with 96 holding still more rarefied "sensitive compartmented information" clearances. And those cleared staff have a proven record of working to oversee highly classified Defense Department programs without generating leaks. Gen. Clapper, the prospective DNI, has testified that the GAO "held our feet to the fire" at the Pentagon with thorough analysis and constructive criticism.

Unlike the inspectors general at the various agencies--which also do vital oversight work--the GAO is directly answerable to Congress, not to the executive branch. And while it's in a position to take a broad, pangovernmental view, the GAO also hosts analysts with highly specialized economic and management expertise the IG offices lack. Unleashing GAO would be the first step in discovering what the Post couldn't: whether the billions we're pouring into building a surveillance and national security state are really making us safer. Oh, and just to make this all more comically depressing, just as I finished reading both of these stories, I saw a story about a new investigation into reports that FBI agents were caught cheating on an exam, which was designed to get them to stop abusing surveillance tools. Yes, you read that right. After all the reports of abuse of surveillance tools, the FBI set up a series of tests to train FBI agents how to properly go about surveillance without breaking the law... and a bunch of FBI agents allegedly cheated on the test that's supposed to stop them from "cheating" on the law. And, not just a few. From the quotes, it sounds like this cheating was "widespread." But, of course, it might not matter, since the requirements for surveillance are being lowered, oversight is being blocked, and apparently the White House is willing to retroactively "legalize" any illegal surveillance anyway.

Permalink | Comments | Email This Story

It's been funny watching the usual anti-Google forces try to make something bigger out of Google's accidental WiFi sniffing via its Street View vehicles. As has been explained in detail, it's not hard to understand how the data was collected accidentally. Even though it is bad that Google didn't realize this, there is no indication that Google ever did anything with the data, or that any sensitive data was collected. After all, if you're doing something sensitive online, it's hopefully via an encrypted channel -- and most email and all banking sites would be.

But, of course, lots of governments are "investigating." I fully expect some less-technically savvy government groups to get confused about this and still condemn Google, but the UK's investigation has found that Google did not collect sensitive data: The ICO said in a statement: "On the basis of the samples we saw, we are satisfied so far that it is unlikely that Google will have captured significant amounts of personal data."

It added: "There is also no evidence - as yet - that the data captured by Google has caused or could cause any individual detriment."

Permalink | Comments | Email This Story

A couple years ago, on a whim, knowing nothing at all about the movie, I rented the documentary Who the #$&% Is Jackson Pollock?. It's a really amazing documentary. Compelling, well-done and really entertaining. The reviewers loved it too. It tells the story of a truck driver woman, who bought a painting for $5 at a garage sale, and is convinced that it's actually done by Jackson Pollock. The movie has numerous amusing scenes with famed art experts staring at the painting and dismissing it in the most... condescending of tones. Eventually, the "hero" of the film is a guy named Peter Paul Biro, who matches a fingerprint on the back of the painting to one he found in Pollock's (still preserved) studio. The movie ends and you're absolutely convinced that the painting is really by Pollock -- even if the art world won't recognize it. At the end of the film, the truck driver who bought the painting has turned down a $2 million and a $9 million offer for the painting, holding out for the $50 million she's sure it's worth. I highly recommend watching it (though, oddly, I can't seem to find any video clips of it online -- not even a trailer for the flick).

Remembering that, I was fascinated to see that The New Yorker recently did a long feature piece on Peter Paul Biro and dove in to read it. The first half of the article covers Biro's rise to fame. How a few of these "fingerprinting" authentications had made him quite famous, with that documentary ratcheting up his fame level even higher. The key point that everyone keeps noting is that, rather than the traditional form of authentication -- the condescending art experts in the documentary who are ripe for mocking and use what often feel like extremely subjective techniques -- this involved science. After all, if the fingerprints matched, how can you question that?

But, then, the article takes a turn. There are a few cracks in the story, and someone who knows Biro well suggests that the reporter, David Grann, look a bit more deeply into Biro's (and his family's) history. It turns out that they were involved in several lawsuits years earlier involving selling what were later found to be forged artwork. Of course, painting forgeries are nothing new, but as Grann dug deeper and deeper he kept coming across evidence that Biro's "authentications," may have involved questionable practices -- including planting faked fingerprints on some of the paintings he was supposed to be authenticating. It's an amazing and gripping article -- and totally calls into question pretty much all of Biro's work. At the end of it, I was just as convinced that the truck driver's "Pollock" painting is not by Pollock, as I was that it was by Pollock at the end of the documentary!

But I found most interesting of all was the reasons why so many people were convinced that Biro's authentications were real. It wasn't just the use of "science." And it wasn't just that people had this natural inclination to believe that so-called "art experts" don't know what they're talking about, but that Biro appears (and, for what it's worth, Biro denies the allegations in the article) to have used what are effectively social engineering tricks to make this work. There's a certain brilliance in realizing that rather than forging paintings, there may be money to be made in authenticating works by effectively forging fingerprints on top of other works -- which then gives it the air of legitimacy-via-science. Honestly, the whole idea that someone would go in and forge fingerprints on top of a piece of art work just doesn't seem in the realm of possibility, and so most people didn't even consider it.

I had started reading the article last week (as mentioned, it's pretty long), but ended up finishing it up now, because I was thinking some more about the recent story of those glass negatives that have been "authenticated" as being from Ansel Adams -- which Ansel Adams' estate is vehemently denying are Adams' work. After reading The New Yorker piece, it's difficult not to be increasingly skeptical of the claims of these new negatives, even with all of the "scientific" evidence that has been mentioned by the team involved in the authentication.

Permalink | Comments | Email This Story

Years back, I was a Comcast cable modem subscriber. That was until they spent a whole month cutting off my service, every single day, from 10am until about 4:30pm. Each day I would call to ask what was up, and I was told it was "scheduled maintenance." I asked for said "schedule" so I could plan around it, and was told that there was no schedule -- which made for an odd form of "scheduled maintenance." I also asked if it would be happening the next day as well, and was always told that I wouldn't be able to find out until the connection disappeared again. I dropped Comcast and switched to DSL. Even though Comcast is now much faster than my DSL, that experience so soured me that I have no interest in ever going back.

While Comcast has received a lot of attention for its "Comcast Cares" initiative (the head of which recently left the company), it certainly looks like they have a few kinks to work out. Phil Anderson points us to the story of Comcast demanding the $0.00 a customer owes and threatening to turn off service if it's not received.

It's not hard to figure out how something like this happens. For whatever reason, the customer didn't owe any money that month -- perhaps a credit, or he had overpaid in a previous month, or something like that. But, Comcast's system is probably set up with the recording of "a payment" separate from the amount, such that not receiving any payment sets off a red flag, with no simple check to see if the reason is that no money is owed. You would think that this is something that Comcast would have caught a lot earlier...

Permalink | Comments | Email This Story

There's been plenty of talk about whether or not software patents should be legal, and one of the "debates" we often run into in the comments is over whether or not the "software industry" really believes in patents or not. Some patent system supporters claim that most of the industry does, in fact, support patents, but it's a noisy bunch who is against them. Unfortunately for those who believe that, some new research is suggesting quite a different picture. It seems that a rather large majority of software firms don't seek patents and don't believe they're helpful or provide any real incentives: Three-quarters of the D&B firms had no patents and were not seeking them. Because the D&B firms are, we believe, typical of the population of software startup firms in the U.S., their responses may be representative of patenting rates among software startups generally. It is, in fact, possible that the overall percentage of software startup patenting is lower than this, insofar as patent holders may have been more likely than other software entrepreneurs to take time to fill out a Berkeley Patent Survey. For the most part, these firms just didn't think getting a patent was worth it. For all the talk of how patents protect companies and act as an incentive for investment in big projects, most software execs seem to disagree: One of the most striking findings of our study is that software firms ranked patents dead last among seven strategies for attaining competitive advantage identified by the survey Instead, they believe that a first mover advantage is a lot more important followed by "complementary assets," which is basically offering scarce services to complement the software.

The execs were also asked how much incentive patents provided for developing software, and the answer was about as close to none as you could expect. On a scale from 0 to 5, software execs said that patents were a 0.96 as an incentive for inventing something new and a 0.93 in commercializing a product and bringing it to market (innovating). And, before you say that this was skewed by people without patents, the report notes: the results did not change significantly even when focusing only on responses from software entrepreneurs whose firms hold at least one patent or application. Even patent-holding software entrepreneurs reported that patents provide just above a weak incentive for engaging in these innovation-related activities. The other interesting finding? If a firm is venture-backed, it's more likely to get patents, but this doesn't appear to suggest that the patents are valuable. It seems to indicate that entrepreneurs still believe the old claim that venture capitalists want to see patents, so they feel the need to get patents just to show to investors.

On the whole, it certainly appears that the vast majority of the software industry isn't interested in patents, don't find them useful or important, and certainly don't see them as creating an incentive. Even those who get patents don't see much value in them, and appear to only get them because they feel pressured to get the patents for external reasons. All in all, this is a pretty damning bit of research for those who suggest patents help the software industry.

Permalink | Comments | Email This Story

Remember the school district in suburban Philadelphia involved in a lawsuit over secretly taking webcam images of students? The school initially denied things, and later said that it had only used the feature 42 times to help find lost or stolen laptops. However, a law firm brought on by the school to investigate its use of the LanRev system found 58,000 images were taken. That's led some other students to realize that they might have a beef with the Lower Merion School district as well. A second student has now filed a lawsuit against the school after discovering that the school took 469 secret photographs from his webcam over the course of two months.

What happened was that the student lost his laptop on December 18th. The laptop was found by a teacher and returned to the student on the 21st... but also on the 21st, the school's IT folks turned on LanRev's "TheftTrak" service. Even though the laptop had been returned to the student, the LanRev system was never turned off. It took 469 secret images and captured 543 secret screenshots. It wasn't turned off until that first lawsuit was filed, and someone in the IT department realized there might be an issue there...

What's really scary? If a school administrator hadn't revealed the whole system to the first student by showing him a photo of him at home, this would still be going on and none of the students would know about it. The only reason this lawsuit is being filed is because of the information that came out during the investigation into the first incident.

Permalink | Comments | Email This Story

Just last week we were talking about Perfect 10's lawsuit against Google in Canada, where we noted that in Perfect 10's own bragging press release, it effectively admits that its takedown filings were not properly filed. They admit that they just sent images to Google saying that it owned the images, without telling Google where they were actually located to take down. This was the same charge that Rapidshare recently made against Perfect 10, noting that the company seemed to purposely not want companies to take down their images, so that it could sue.

Thankfully, in the US version of the lawsuit (in which Perfect 10 seems to lose over and over and over again), the judge noted this failure by Perfect 10 to properly file DMCA takedown notices and dismissed large parts of the lawsuit. Similar to what Perfect 10 bragged about and what Rapidshare claimed, it appears that Perfect 10's "notices" were hardly informative. It also seems to have gone out of its way to make it difficult for Google to quickly respond -- including sending the notices to the wrong email address. As EFF notes: For example, many of its "notices" consisted of a cover letter, a spreadsheet with URLs (many of which linked only to a top-level URL for a website, as opposed to a specific infringing URL) and a hard drive or DVD containing Perfect 10's electronic files of its photos. Not good enough, said the court -- the information required by the DMCA must be contained in a single written communication; forcing a service provider to cobble together adequate notice from a variety of sources is just too burdensome. While this is entertaining in that it's the latest in a long line of legal smackdowns against Perfect 10 and its questionable litigation strategy, this ruling could be important in a variety of other cases as well. One of the key issues being fought about in a series of cases is what constitutes "knowledge" for a service provider, requiring it to take action under the DMCA. In both the Veoh/Universal Music case and the YouTube/Viacom case, judges found that the knowledge had to come from specific DMCA takedown notices, that indicated where the specific infringing works were. However, in the IsoHunt case, a judge went in a different direction, claiming that "red flag" knowledge was enough. That is, if there was enough information out there to raise a "red flag," then the service provider needed to take action.

Now, we've long argued that such "red flag" knowledge is somewhat meaningless. If I know that lots of people are using a tool for infringement, but don't know which specific works are infringing, how can I be expected to do anything specific? Since there's no way for the service provider to pinpoint which works are infringing -- even if they know that many works likely are infringing -- then how can the service providers act in a way that doesn't create massive collateral damage for legitimate communication?

But this ruling, again, effectively is a vote against the concept of "red flag knowledge," since you could make the argument (and, Perfect 10 did) that even in the absence of a complying DMCA takedown notice, sending over its mess of information could constitute a red flag. But, as the judge properly notes, that makes little sense. The ruling goes through the ridiculous hoops that Google would need to jump through in order to find and take down specific works, and notes that the DMCA clearly did not intend for that to happen.

Of course, this isn't the first time that Perfect 10 has lost on this exact argument. The CCbill case involved more or less the same questions about "red flag" knowledge, and Perfect 10 lost there. This ruling relies heavily on that one. But, we seem to keep racking up rulings that say that any "red flag" knowledge still requires specific notification of what is infringing -- with the IsoHunt ruling being the one exception. It makes you wonder if the IsoHunt ruling is on a collision course with all of these others.

Permalink | Comments | Email This Story

With all of the buzz lately around the fantastically successful Old Spice campaign, some numbers are finally starting to trickle in about whether or not the campaign actually translated into more sales of the body wash. Although initial reports suggested that the ads did little to boost sales, according to Nielsen, sales of the body wash rose 107 percent in the past month. That said, the increase cannot be necessarily attributed entirely to the social media campaign, since a coupon campaign for the body wash was also running at the same time. In an age, driven largely in part by the supposed traceability of online advertising, where there has been a large push to track ad spends all the way down to individual purchases, this ad campaign reiterates the adage attributed to John Wanamaker: "Half the money I spend on advertising is wasted; the trouble is I don't know which half." Since this campaign was very much a branding campaign, just because it happens online does not necessarily make it more traceable, so it's difficult to say what percentage of the increase can be attributed to the campaign. That said, at least for me, I know I considered buying some Old Spice body wash when I was at Walgreens last week, and apparently I was not alone.

Permalink | Comments | Email This Story

ReallyEvilCanine alerts us to the news that the game Plants vs. Zombies has decided to change its dancing zombie, because Michael Jackson's estate complained that the zombie looked too much like Jackson. It's true. The zombie is obviously designed to look like Michael Jackson, and my guess (details are lacking) is that the estate threatened a publicity rights claim over the use: This seems pretty silly. Publicity rights rules were put in place to try to stop people from thinking a famous person had endorsed a product. I can't see how anyone could have possibly thought that Michael Jackson or the Jackson estate had endorsed this particular game, or the dancing zombie Jackson.

Permalink | Comments | Email This Story

Ah, the perils of lawyers confused about the internet. Reader kb alerts us to the news of lawyer Jose Baez, who apparently has received plenty of attention for defending Casey Anthony, a mother who stands accused of killing her 2-year-old child. Apparently, some of the blogs that are reporting on the case pulled some photos from Baez's Facebook profile and Photoshopped them to include in blog posts. Baez's response is to threaten a lawsuit against those bloggers saying it's copyright infringement, while pulling down all of his photos. As kb notes, it appears that this lawyer doesn't seem to understand copyright law, fair use, Facebook's privacy settings or the Streisand Effect in that this effort is only drawing that much more attention to the blog posts he's upset about. Nice work.

Permalink | Comments | Email This Story

Back in 2006, some politicians included a bill that effectively banned online gambling as a part of a law designed to protect our ports (don't ask what one has to do with the other). Pretty much since then, Rep. Barney Frank has been seeking to legalize online gambling (in order to tax it), and he just got a step closer to that as the House Finance Committee has passed a version of his bill. There were, not surprisingly, complaints against how this bill would "bring gambling into everyone's homes," but that ignores (of course) that it's already available in homes, and the feds have long admitted that they have no idea how to enforce the original law.

Of course, this is not the first time that the House Finance Committee has approved such a bill, and in the past it went nowhere. So, there's still a half decent chance that this really means nothing much.

Still, there are some interesting provisions in the bill, as a few amendments were added, including banning the companies who have currently been letting Americans play poker online from getting approved for a license. Yes, all of those online gambling sites who are still offering services and hoping this bill passes... may get shut out by it. Of course, they might have a pretty strong legal case that this is not legal, seeing as some courts have suggested that poker is not technically gambling. Another amendment would bar those who are behind in child support payments from visiting online gambling sites, though I don't see how they enforce that one.

Permalink | Comments | Email This Story

A few of you have sent in the fact that the Colbert Report recently did a fun segment about a guy arrested for selling polka DVDs: The Colbert ReportMon - Thurs 11:30pm / 10:30cNailed 'Em - Polka Piracywww.colbertnation.comColbert Report Full Episodes2010 ElectionFox News For all the talk we hear about how DVD counterfeiters are connected to "organized crime" and "terrorists," a lot of the times it's really situations like this one, involving a guy who did a public access TV show about polka. Someone called him to see if they could buy some DVDs of the show, so he made a few DVDs and sold them. But the whole thing was a setup, and the next morning he was arrested. The whole thing shows what a joke some of these claims really are.

Separately, I do find it amusing to see folks like Colbert mock the overreaction to things like copyright infringement -- considering that his employer, Viacom, is so aggressive on spreading the myth that DVD counterfeiting is really about supporting terrorism and organized crime.

Update: Good discussion in the comments about what the specific charges were in this case. Apparently, the guy used government equipment to make the recording and DVDs, so the local government felt it was theirs -- and they sold their own DVDs, which this guy's DVDs undercut. He was charged with using city property for "personal gain." Oddly, there's an "embezzlement" charge as a part of this... More details here.

Permalink | Comments | Email This Story

We've seen it over and over again in the comments on Techdirt. We'll talk about the impact of copyright or patents, and a lawyer will claim that unless we're an IP lawyer, we should not comment. Or we'll talk about content business models for the music or movie industry, and someone will claim that until we've had a hit song or movie, we should not comment. The argument always struck me as a curious one. After all, just because you don't have a law degree, doesn't mean you can't understand copyright law. In fact, since we're usually talking about the economic impact of copyright law, it seemed like the easy retort is that if those lawyers didn't have an economics degree, perhaps they shouldn't be talking about the impact of copyright law either. Of course, that's silly. The fact is, anyone who understands the basic issues has a right to give their opinion, and back it up with facts and discuss their positions. But saying that someone who doesn't have "x degree" or "y experience" is usually a response from someone who doesn't want to argue the actual details.

Filmmaker Ross Pruden just wrote a blog post discussing this, where he pointed out that you don't need first-hand experience to understand details and make a proper judgment call about how to run a business. When we talk about music or movie business models, I'm not suggesting I know how to make a hit song or movie. But I can look at the economics and suggest what makes sense from a business perspective given the market today. Just as Ross can look at the market and realize that how things are done today don't make as much sense, even if he hasn't (yet) made a "commercially successful film."

This whole appeal to a false authority is a bit annoying, because it's an easy way to dismiss the messenger without addressing the message. I doubt it will change, but it was nice of Ross to call out this point. Having created a hit song doesn't mean you know how to navigate a changing market. Knowing how to produce a blockbuster movie doesn't mean you know how to use the internet to your advantage. Knowing how to get a patent doesn't mean you know how patents impact innovation. Unfortunately, some people think that if they know one aspect of these things, only they are allowed to comment on the business models or economic implications. That's simply not true -- and those who go there tend to be in denial about the market challenges they face.

Permalink | Comments | Email This Story

A few weeks back, as part of our discussion on the arrest of Bradley Manning for handing over classified documents to Wikileaks, we questioned where to draw the line between "whistleblowing" and "criminal" leaking of military secrets. At the time, we compared the situation to Daniel Ellsberg and the Pentagon Papers. With the the new leak of nearly 100,000 documents about the war in Afghanistan, that same question is getting a lot more attention.

Ellsberg says that the leak is no different than the Pentagon Papers. Both involved massive leaks that showed a government was not being entirely forthright with the public about the status of a war. Others in that article suggest there are some key differences, in the lack of any smoking gun of direct lying by the government (in the latest case, it was more about just not telling the full truth), as well as the scattershot nature of the content. But that's no matter to some grandstanding politicians, like Rep. Pete King who were quick to call the leak treasonous and demand prosecution of those involved (he seems to imply that he believes Manning leaked these documents, though no one has said that conclusively yet).

Of course, that was the strategy taken by the Nixon White House in response to the Pentagon Papers -- to attack the messenger. It looks like the Obama White House is taking a rather different response. While worrying about how the leaks could "jeopardize" people or operations on the ground, the White House is actually trying to turn the few revelations into an advantage, by claiming that the information revealed support the strategy the military has taken under his watch. Whether that's true or not, this actually does seem like the type of response that could diffuse the criticism much faster than simply screaming "traitor!"

Of course, some of the revelations, such as the news that the US was paying Afghani press people to run positive stories about the US don't look good at all, no matter how you spin them.

On the whole, it seems like the debate about whether this is "whistleblowing" or "traitorous" behavior misses the point. The fact is, information like this is going to get out -- probably at an increasing rate. The real question is how does the government and the military learn to function in a society where information is a lot more open and free.

Permalink | Comments | Email This Story

Reader Ken points us to a "feel good" story of a guy, Rick Norsigian, who found a box of old glass negatives at a garage sale in 2000, which he bought for $45 (bargained down from the $70 the other guy wanted). It turns out that a bunch of experts have now agreed that the negatives are actually previously unpublished works by Ansel Adams. Most of the article focuses on how Norsigian got the negatives, why the experts seem pretty convinced the negatives are from Adams and even how the negatives might have ended up in Southern California. However, right at the beginning, the article says the negatives "may be worth $200 million." Oddly, this isn't elaborated on until the end, when they claim that sales of prints from those negatives could net Norsigian $200 million: It could be a while before he sees the profits from the sale of prints from the negatives, but Streets estimates over the next 25 years it could mean over $200 million for Norsigian. Ken wondered about that statement, since there may be some copyright issues here, and as far as I can tell, he's right. I can't see how Norsigian has any legal right to sell the prints at all -- though, perhaps some copyright scholars could chime in. The works are estimated to have been made in the 1920s, which could actually complicate things. However, from all of the indications, none of these works were "published," and as the handy dandy public domain tracker notifies us, unpublished works are given a copyright of "life of the author +70 years." Ansel Adams died in 1984, so it would appear that the copyright on the images would likely belong to his heirs, and will last until 2054.

Now, if the works were published (which seems unlikely) then it gets a bit complicated. If they were done before 1923 (and no one's exactly sure of the date on most of these negatives), then they're in the public domain. If they were done after 1923 and weren't registered at the Copyright Office then, again, they're in the public domain. If that's the case, then Norsigian actually could make prints, but once those prints were out there, others could most likely copy the prints and sell competing prints themselves legally, which could put a damper on the $200 million. Of course, there then could be things Norsigian could do, such as specially "branding" his prints in some manner, but it's a bit trickier.

If the works were published after 1923, registered at the Copyright Office and had that registration renewed, then they should retain the initial copyright until 95 years after publication, meaning, until at least 2018 (and, again, most likely remaining with Adams' heirs). But, if that were the case, it seems unlikely that these negatives would have been considered "lost," though it is possible.

And, for those of you wondering, no, owning the negatives does not give you the copyright on the images, even if that creates a weird situation where someone who owns a bunch of negatives might not legally be able to use those negatives (yay, copyright law!).

The most likely scenario remains the first one, which would suggest Norsigian might actually get into legal trouble for making prints. And, in fact, the managing director of the Ansel Adams Publishing Rights Trust, Bill Turnage, first says that Norsigian's claims are a "fraud" and he's actually considering suing over Norsigian's use of Ansel Adams' name for commercial purposes (the article claims "copyrighted name," but I believe the AP reporter gets that wrong -- at best there may be a publicity rights claim under California state law). Of course, that puts another twist on the situation as well. If the Adams' heirs deny the prints are Adams, but they've been authenticated as Adams', then could the Adams' heirs still then make a copyright claim on any prints? That could be fun.

Of course, Adams himself, were he alive, might find the whole debate amusing. As the article notes (and which is well known among followers of Adams): "Ansel interpreted the negative very heavily. He believed the negative was like a musical score. No two composers will interpret it the same way," he said. "Each print is a work of art." In other words, if Norsigian does make prints, they wouldn't be considered the same thing as a true Ansel Adams print. It might be more like a high school orchestra performing Beethoven.

Still, from a copyright perspective, there may be a very interesting legal battle brewing...

Permalink | Comments | Email This Story

There was an amusing post this week at TheWrap.com discussing how the various Hollywood movie studios are confused about the basics of social media and Twitter. You may remember (or, maybe not), back in 2003, when Hollywood suddenly started blaming text messaging for certain movies failing, because some kids would go to a movie, realize it sucks, and quickly warn their friends to stay away. Of course, Hollywood blamed text messaging, instead of the fact that they made a crappy movie, and couldn't rely on their old methods of squeezing a ton of money out of people before word got around. In the age of Twitter, of course, this has only increased, so the studios started blaming Twitter, calling it "the Twitter Effect" and proceeding to freak out about it.

This new article points out that "The Twitter Effect" doesn't really appear to have any impact at all, but does mention that studios are trying to jump on this "Twitter" bandwagon by "buying trending terms" on the site. But watching the movie studios try to figure out this whole social media landscape can be pretty funny. Adam Singer sent over an email he just received from Warner Bros. asking him to join its "word of mouth marketing team" in which the studio would pay him to say nice things about Warner Bros. films: Hello,

I am a part of the Warner Brothers word of mouth marketing team and recently came across your blog! Your blog uniquely stood out as dynamic, informative and highly creative. We are seeking bloggers that are passionate about entertainment to help us engage your readers with content that would be interesting to them.

We would like to have you join our WB Word marketing team to let fans know about our latest releases and relevant content/products. As a member of the team, you will be asked to display photos, clips, and stories on your Blog, Facebook and Twitter accounts. The best part is you will get paid! Additionally, we may even debut event previews and new content so that fans like you get to enjoy it first. Here's a tip for Warner Bros.' "word of mouth marketing team." If it's really "word of mouth marketing," it probably doesn't require you to pay people to talk about your bad movies. And, of course, depending on how the various bloggers on the "team" indicate their relationship with WB, the studio may be opening itself up to FTC problems.

Permalink | Comments | Email This Story