We were a bit concerned last year when the FCC held hearings which were technically about the national broadband policy, but instead focused on copyright, something that is clearly well outside the FCC’s mandate — something the FCC already got in trouble for a few years back with its attempt to mandate a “broadcast flag.” However, there are now some additional concerns that this administration is ignoring the limits of the FCC’s mandate. As you may recall, a few weeks back, the Justice Department — at the urging of the entertainment industry — set up a special IP task force to deal with “the rise of intellectual property crime.” However, some are quite worried about how this task force intends to go about this.

Copycense points us to a letter sent to the Justice Department by the Center for Democracy and Technology, which noticed that, in the announcement of this new task force, the Justice Department said it intends to work with the FCC on intellectual property enforcement. That’s a problem:

What’s wrong with that? It’s an invitation to major mission creep. The FCC’s job is to execute and enforce federal communications law. It has no authority and no role in enforcing other laws. Lots of unlawful activity — from intellectual property infringement to racketeering to securities fraud to deceptive advertising — may occur over or using communications networks. But that doesn’t make it the FCC’s job to police such activity. The FCC’s focus is, and should remain, promoting the availability of high quality communications capabilities in the United States — not policing what users do with those capabilities.

In addition, the only reason to involve the FCC would be to force the entities the FCC regulates — communications providers, and in particular ISPs — to start actively policing I.P. infringement. Having government force ISPs to take on this new role should raise serious red flags. The idea that ISPs don’t serve as gatekeepers or content censors, and aren’t themselves responsible for what users do on the network, has been a bedrock principle that underpins the Internet’s open and innovative nature. Casting it aside would be a serious mistake and a radical departure from U.S. communications policy.

Permalink | Comments | Email This Story

Continue reading →

Jeremy Stoppelman says the company doesn’t remove or hide negative reviews in exchange for money, lashing out against allegations made in class action lawsuit.

Originally posted at The Social

Continue reading →

Remember how the last Guns ‘N Roses album leaked to the internet — and somehow the FBI thought it was a good use of their resources to get involved and arrest the guy who uploaded the files — leading to him pleading guilty and getting two month’s house arrest? Would you believe there’s another approach?

Jeff Barr points us to the news that Vince Neil, the “sometimes lead vocalist for Motley Crue,” has a new single out — which first leaked to the internet. But rather than freak out about it, Neil decided to offer it up directly himself for free, and to make it more valuable to get it directly, by offering the track, the video for it and a desktop wallpaper in the official version. And with that announcement, he also reminded folks that the full album will be out later this year, and he hopes they’re looking forward to it.

Which response do you think endears more fans? Which response makes a stronger bond between the musician and the fans? Which response is likely to make more people feel good about paying for stuff from an artist? Now, Vince Neil isn’t as well known as Guns ‘N Roses — so it’s not a direct comparison. But, it does offer a decent way to look at how different musicians handle similar situations.

Permalink | Comments | Email This Story

Continue reading →

There was some news a few days back about how people who use Pandora end up buying more music, while people who use Spotify do not. Of course, if you understand these two services, this should be completely obvious. After all, Pandora is like radio — with a bit of randomness, and no real way to just play what you want. Spotify, on the other hand, is designed to replicate your music collection — a cloud-based iTunes. Unfortunately, those who focus too narrowly on the idea that music sales is the music business may find this news as further support for moving away from services like Spotify. On top of that, I’ve heard from people who were at the conference where this “research” was announced, and it turns out that the guy presenting it never mentioned Spotify at all. It’s just that the press is assuming he meant Spotify.

However, either way, just looking narrowly at music sales is a mistake. As we’ve discussed, selling music is not a very good business any more, but that doesn’t mean that there aren’t good music business models — it’s just that selling music probably isn’t one of them.

With that in mind, it’s worth taking a look at a recent report put out by Will Page, an economist for PRS in the UK — and the guy who put out that report last year showing that the music industry was actually growing, not shrinking, when you looked at all the component parts. In his latest report, Page takes on the question of “average revenue per user” (ARPU) when it comes to the music consumer out there — with a specific look at Spotify (and, unlike the NPD report that’s getting all this press, Page actually has real info about Spotify).

Around here, we’re used to hearing about ARPU in the context of telcos. It’s a stat that telco execs and Wall Street money folks obsess over. Five years back, we warned why the telcos obsessive focus on ARPU was dangerous, and could lead to bad long-term strategic decisions. Page’s report effectively suggests the same thing is true in the case of the music business. With the move to various music services, such as Spotify and Pandora, there is a sudden push to look at “ARPU” of music consumers as well — and if the average music buyer in the UK spends £63 on music, and Spotify can get them to sign up for a £120 plan, that seems like a pretty good thing. Right?

But, as Page notes, the real story is a hell of a lot more complicated than that. What if Spotify is picking off just the “top users” who were actually spending £150 per year? Or, what if it’s getting people who didn’t buy music at all to pay for subscriptions? Then, any direct revenue is incremental, and the pricing could really matter — since lower prices could bring in a lot more total revenue by bringing new “buyers” into the market. Furthermore, just focusing on the ARPU from direct payments for music (sales or subscriptions) misses a big part of the story. Live shows are a large and growing part of the market, but don’t make it into such calculations. Merchandise and other direct-to-fan offerings also probably aren’t included in many of those calculations. And, in fact, we’ve heard that Spotify is looking to enable those other business models as well — and isn’t just focused on the obsolete metric of “music sales.”

As such, services like Pandora and Spotify shouldn’t necessarily be judged on how much they contribute to plain old music sales, or even direct ARPU — but how much they drive people to spend money within the music ecosystem — and then figure out where that money goes, and whether or not it’s allocated in a way that benefits or harms the various players in the space. If Spotify helps make every other aspect of the music industry more valuable, but depresses the market for direct music sales, that shouldn’t be seen as a bad thing at all.

Once again, it reminds us of the necessity to not get too narrowly focused on a subsegment of the market when trying to figure out what’s happening — but to explore the larger ecosystem of how much money is being generated around music — and then we can look at where it goes and what it funds. That is, we shouldn’t be worried about how much people spend on horse carriages, but on transportation. So remember that whenever you hear numbers being thrown around about how much money is being made or “lost” in various industries. If you don’t look at the overall ecosystem, you often miss what’s happening.

Permalink | Comments | Email This Story

Continue reading →

Last year, we wrote about the appeal in a case involving a US postage stamp which was based on a photograph of the US’s Korean War Memorial in Washington DC. You can see the sculpture and the stamp below:

There were a variety of issues involved in the case, including who actually owned the copyright, but in the end, the interesting question is whether or not this was fair use. The lower court had ruled that this was clearly quite transformative, different in nature, and did not harm the commercial value of the original work (which even the sculptor admitted). Thus it was fair use. To us, and many other experts in fair use, it seemed hard to question that logic, but when it comes to copyright, you can always be surprised by how judges interpret the law.

The Federal Circuit has ruled on the appeal and stunningly decided that this isn’t fair use, claiming that it’s not, in fact, transformative. I’m somewhat amazed — as is law professor Peter Friedman in the post linked here. The two works are quite clearly extremely different, but the court felt that since they both were designed to honor soldiers killed in the Korean War, it couldn’t be seen as transformative. The fact that the photographer took hundreds of images before settling on this one apparently didn’t matter. On top of that, the fact that the snow totally changes the character of the image was dismissed by the court as being just “nature’s decision.” Update: That “nature’s decision” line was really bugging me, and Friedman has updated his post to show it’s bugging him too, so I wanted to write a bit more. If “nature’s decision” makes something non-copyrightable, then it can be argued that all nature photography is not covered by copyright — which goes against pretty much every precedent out there. It’s hard to see how CAFC can make this argument.



While there were other discussions over who actually owned the copyright (the government claimed it should jointly hold it, since it had a lot of input in the memorial) and whether or not the photograph should not be subject to the copyright on the sculptures because architectural works can’t have their copyrights cover photographs of buildings (both courts noted that a sculpture is not an architectural work), there’s a much bigger issue here: why the hell did the government ever agree to build a public memorial and not get all of the rights associated with the memorial? This omission seems like a stunning failure of the government in creating this memorial in the first place. We’ve seen plenty of similar cases, involving copyright lawsuits over public displays of artwork — and they all seem equally ridiculous from a common sense viewpoint. If you’re commissioning a public piece of artwork, shouldn’t you also make sure you get all the rights associated with it? Leaving them with the artist, and then displaying the artwork in public creates a massive sense of confusion for pretty much everyone. Your average man on the street assumes it’s legal to take photographs of public pieces of artwork and to then do what they want with them. It’s hard to think of any public policy rationale that would explain why the opposite is true — and yet, that appears where things stand.

Rulings like this should be quite scary for both amateur and professional photographers. If you photograph things that are covered by copyright, you may be infringing. It’s yet another scenario of “accidental infringement” that clearly was never intended to be covered by copyright law.

Permalink | Comments | Email This Story

Continue reading →

Following the launch of its Near Me Now mobile-search feature, Google’s Nearby tool enables users to find keyword results around their current location.

Originally posted at The Digital Home

Continue reading →

Skype dumps support for two free apps as part of its mobile VoIP strategy.

Originally posted at The Download Blog

Continue reading →

There are some people out there who appear to believe that anything they don’t like is defamation — or anything that makes them look bad, even if it’s true. Fortunately, that’s not the way defamation law works. But it doesn’t stop some from trying to use the law that way anyway. Kevin Carson writes in to let us know of a lecturer/author named Karin Calvo-Goller, who recently wrote a book on The Trial Proceedings of the International Criminal Court. Another law professor, Thomas Weigand, reviewed the book for Global Law Books and didn’t feel it lived up to its potential. The review is a pretty typical book review. Hardly scathing.

But Calvo-Goller was apparently upset by it, and contacted the editor of the journal (another law professor) asking for the review to be suppressed on the grounds that the review might “have a negative impact on her ‘professional reputation and academic promotion,'” and that there were factual errors in the review that were libelous. The editor refused to take down the review, noting that he did not find the statements libelous (including detailed notes on why the statements were not, in fact, wrong), but did so in an extremely polite manner. He kicked it off with a very friendly opening to Calvo-Goller, agreeing how painful it is to get a negative review of one’s book (and relating his own experiences dealing with negative reviews) and warning her directly that:

I think, however, that your reputation would suffer even more if you emerged as someone who tried to suppress a critical book review of the kind published by Globallawbooks.org. That is my advice to you as a friend.

He also suggested, politely again, that if she disagreed with some aspects of the review, he would allow her to write up a response, which he would post alongside the review — something that almost no other book review sites would offer.

Calvo-Goller apparently chose not to heed this advice or accept the offer, and after a terse note demanding the review be taken down again, she sued the editor for criminal defamation in France, where the editor is now scheduled to stand trial later this year.

The editor, Joseph Weiler, has written up the whole saga (pdf), including the letters between the two. He concludes by pointing out how this lawsuit seems to go against all principles of academic discourse:

I believe that in the circumstances of this affair, her action of instigating a criminal libel case against me for refusing to remove the book review is misguided and inconsistent with the most fundamental practices of all academic institutions with which I am familiar and with traditional academic discourse.

It really is difficult to see how someone could think that a slightly negative review could do more harm to one’s professional reputation than filing a criminal defamation lawsuit against the editor who published that review.

Permalink | Comments | Email This Story

Continue reading →

Over the years, we’ve seen plenty of people get mad and sue Google over getting either dropped from Google’s index, or simply ranked really low on certain searches. And, of course, for some there are always totally unsubstantiated conspiracy theories about Google purposely “punishing” a company or individual it doesn’t like. To date, however, there’s been no evidence at all that Google acts in such a capricious manner when it comes to rankings. If the company did so, and it ever came out, the hit to Google’s reputation would be something fierce. It’s even more ridiculous when you consider that all of the accusations of such personal attacks seem to come from tiny companies — hardly any kind of threat to Google, anyway.

That said, if you want even more evidence that Google’s ranking decisions aren’t personal, but actually are based on what its system feels will give the best possible results, witness the story of Google employee Jason Morrison, who recently discovered that his own personal site had be delisted from Google. It actually took him a few weeks to notice this, but once he did, and dug into the issue (using Google’s public tool and his own site’s admin tools) he quickly realized that he had made a mistake that caused Google’s crawlers to believe that his site was no longer up.

Now, that certainly doesn’t preclude the possibility that Google takes revenge on sites it doesn’t like, but it’s at least more evidence that the ranking system really is pretty algorithmically focused — and even Google employees aren’t immune to being delisted for screwing up. If your site gets delisted from Google, it’s not personal.

Permalink | Comments | Email This Story

Continue reading →