Monthly Archives: March 2010


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Usability On The Cheap and Easy

Writing code? That’s the easy part. Getting your application in the hands of users, and creating applications that people actually want to use — now that’s the hard stuff.

I’ve been a long time fan of Krug's book Don't Make Me Think. Not jus… Continue reading

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Motion Picture Academy Threatens Costume Shop For Offering An Oscar Costume

The Motion Picture Academy is notorious not just for its incredibly aggressive stance when it comes to copyright, but also to trademarks — especially when it comes to the Academy Awards, better known as The Oscars. I’ve heard stories of them threatening/suing people for holding Oscars parties with mock Oscar statues. So it comes as little surprise to see the following story, sent in by Lawrence D’Oliveiro, that the Academy is threatening a small costume shop in New Zealand for daring to offer costumes that look like the Oscar statue. As if they don’t have anything better to be focusing on? The Academy and misguided trademark lawyers will of course chime in and insist that they must do this or risk the statue becoming “generic” such that the trademark goes away, but it still seems like a bullying approach. Why not just work with the shop to offer a “licensed” version? It’s not like having such costumes around the world causes any actual harm to The Oscars. In fact, it helps to promote them…

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No Surprise: If You Actively Promote The Fact That You Lead People To Infringing Content, Courts Will Smack You Down

I’d been avoiding writing about the Newzbin case, because, honestly, I didn’t have much to say about it — but people keep submitting it, so here’s a very quick post. Newzbin, one of a bunch of Usenet aggregators, was found liable for copyright infringement of its users in a UK court. The ruling doesn’t appear all that different from similar rulings elsewhere, with courts focusing on staff actively promoting the infringing nature of content on the site. In this case, it told site “editors” to promote works that were almost certainly infringing. Whether or not this makes sense in the larger picture, the message is clear: if you actively promote infringing activities, courts are not going to look kindly on your activities, even if the actual infringement is done by users. This trend has been clear for quite some time, and I’m still confused why any site would encourage its users to infringe these days. It’s just asking for a legal beatdown.

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Judge Tells IsoHunt To Wave Magic Wand; Block All Infringement

This really is not a huge surprise, but in the IsoHunt case the judge has now ordered site operator Gary Fung to magically stop anyone from infringing (Update: as noted in the comments this is just a “proposed” order, but it seems likely that this is where the judge is heading). It is, as Fung notes, effectively a shut down order. There’s no legitimate way for Fung to magically know what content is infringing and what is not, since his system is really no different than a search engine. While the original ruling concerned a few of Fung’s actions that the judge claimed were inducing, it looks like the judge won’t even give Fung a chance to try to set up a non-inducing search engine.

There are some odd statements in the ruling, including the judge claiming:

“It is axiomatic that the availability of free infringing copies of plaintiffs’ works through defendants’ websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works,”

There’s just one (big) problem with that. It is not at all axiomatic. We’ve seen many content creators embrace file sharing as part of a legitimate market, and in doing so, make more money. So the judge is claiming something that is a universal truth that is false. That seems quite troubling.

Separately, the ruling seems to suggest that a keyword filter might stop the infringement. That takes me back. Judge Patel in the original Napster case made the same demand, and it was a disaster, because a keyword filter is useless.

But the bigger issue is that the judge seems to have gone way beyond what the law actually says and allows in this situation. The site can be barred for inducing infringement, but that doesn’t mean a site automatically must block anything that might be infringing.

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Views On The Digital Economy Bill Shifting Rapidly

Well, this is a bit of a surprise. The Liberal Democrats in the UK, who had previously pushed to add some troubling language to the Digital Economy Bill, are now not only skeptical of the bill, but fighting the plan to rush it through the House of Commons. As you may recall, the plan was to zip this through the Commons via a wash up procedure, which doesn’t allow for debate. The goal was to get it done before the election is held. However, the LibDems apparently have heard (loudly) from their constituents:

On Tuesday afternoon, the party’s chief whip Paul Burstow tweeted that he had told the government the Liberal Democrats will not support the bill as it is drafted because there is “not enough time for MPs to examine it in detail”.

That said, it seems like there’s a lot of rapidly changing views on the Digital Economy Bill. With more and more opposition growing, the government amended one of the more controversial clauses, so that it’s greatly watered down. The clause that previously could have shut down legitimate sites based on some infringing use now requires courts to take into account those legitimate users. It also makes it so ISPs won’t have to pay court costs, meaning they’re less likely to shut something down just to avoid court.

Meanwhile, reader Phatnobody notes that according to some copyright holders, the Digital Economy Bill doesn’t go far enough.

Given all of these shifting and changing views (and shifting and changing provisions in the bill), it seems like it would be a really dangerous move to simply rush the bill through with no debate. These are major issues that impact a very large percentage of the population. Not allowing for an open debate on the issue seems very, very questionable.

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If Amateur Photographers Are As Good As Professionals, Then We Can All Be Professional Photographers

Only a few decades ago, photography was dominated by film cameras, where each and every photograph you took cost money and time to develop. To accumulate 10,000 hours of shooting experience under one’s belt was prohibitively expensive, so only those truly dedicated to the craft were able to excel. The divide between the quality of amateur and professional was fairly distinct. Fast forward to today, and we now have a world where photographers can take thousands of pictures without ever incurring any additional cost, making quality photography more accessible than ever before. Also, with digital photography, feedback about a photo is instantaneous, which only serves to accelerate the learning curve. And with the proliferation of photo-sharing sites like Flickr, photographers can share, critique and comment on their photographs and technique, which makes everyone involved a better photographer.

These advances have greatly disrupted a previously solid industry. Last year, after producing it for 74 years, Kodak retired Kodachrome film. Likewise, microstock photography sites like iStockPhoto have undermined the stock photography business model so much so as to incur comparisons of its business to pollution and drug dealing. The microstock business has been buoyed by a the increase in supply of new photographers — and as with any market where the supply is increased, price is driven downwards. Stock photography that used to cost thousands of dollars a year for a single photo now can cost as little as $1 for a royalty-free license. Furthermore, with the decline of newspapers and magazines, fewer photographers are being sent out on assignment. As a result, professional photographers are starting to feel the squeeze on all sides, and many are now struggling to make a living. Some professional photographers criticize amateurs for agreeing to the low prices. Photographer Matt Eich claims:

“People that don’t have to make a living from photography and do it as a hobby don’t feel the need to charge a reasonable rate,”

Unfortunately, “making a living” is not a reason to charge a certain price for any good or service. The price is set at what the market will bear, so in this case, the flood of supply and shrinking demand exerts downward pressure on the market. Hobbyists have nothing to do with it.

Advances in technology create new opportunities. The printing press probably made many scribes unhappy with their job security, but it also made the printed word more accessible to everyone and also created a new class of craftsmen who were needed to operate the printing presses. Likewise, with billions of photographs uploaded to the internet each day, looking at and sharing photographs has now become a daily endeavor for many people, as compared to a once-in-awhile event when people dragged out their photo albums. Microstock has made stock photography accessible to many more people who were previously priced out of the market. According to Getty CEO Jonathan Klein:

In 2005, Getty Images licensed 1.4 million preshot commercial photos. Last year, it licensed 22 million — and “all of the growth was through our user-generated business”

As for the photographers, there’s still a viable business for those that can adapt their businesses to reflect the changing landscape. Sure, the magazine industry may be flagging, but magazine production costs are also falling with services like MagCloud, and enterprising photographers are taking matters into their own hands and producing their own. Furthermore, new publications like Burn and JPG have emerged to take advantage of this new crop of seasoned photographers. Some photographers have even embraced the entrepreneurial spirit with their own ventures. Photojournalist Lauren Victoria Burke started WDCPIX, a photographic wire service for sites that can’t afford a traditional wire service. For only $260 a month clients have access to a wide range of photojournalistic sources, much cheaper than AP or Getty. But, what’s interesting is that subscribers of WDCPIX are actually paying for Burke’s work that has not yet created, one of the “10 Good Reasons To Buy” that we’ve discussed here many times before. So, apparently, even for photographers, the mantra of CwF+RtB applies as well.

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New Zealand Politicians Want To Explicitly Outlaw Software Patents

As we wait for the Bilski ruling in the US (which my gut feeling tells me will have the Supreme Court totally punt on the issue of software patents), it seems like politicians down in New Zealand have figured out that software patents are a real problem. As a whole bunch of you sent in, a bill is moving through the process for patent reform that explicitly says software should not be patentable:

We recommend amending clause 15 to include computer programs among inventions that may not be patented. We received many submissions concerning the patentability of of computer
programs. Under the Patents Act 1953 computer programs can be patented in New Zealand […] Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting it is inconsistent with the open source model and its proponents oppose it. A number of submitters argue that there is no “inventive step” in software development, as “new” software inevitably builds on existing software. They felt that computer software should be exluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

This is a welcome development, certainly. Even more impressive is the general realization (often missed by politicians) that too much patenting is a bad thing and can seriously stifle innovation:

[the old act] has a low threshold for patentability compared with most other countries. This low threshold can lead to broader patent rights being granted in New Zealand than in other countries, which can disadvantage New Zealand businesses and consumers[…] This can discourage innovation and inhibit growth in productivity and exports.

Now if only New Zealand would recognize similar problems with copyright law as well…

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Court Says President Bush Violated Wiretapping Laws With Warrantless Wiretap

In a huge ruling, a court has said that the US government violated wiretapping laws in eavesdropping on phone calls without a warrant.

If you haven’t been following the fight over the legality of warrantless wiretapping, this case, involving lawyers working with the Al-Haramain Islamic Foundation, is extremely important. When it was revealed that the Bush administration was wiretapping phonecalls without a warrant, lawsuits were filed — but the “problem” was that the parties (such as the ACLU) that filed the lawsuits didn’t have “standing” because they had no evidence that they, personally, were impacted by the warrantless wiretapping. This created a ridiculous Catch-22 situation. As long as the government hid its illegal activities and never said who it spied on, it could spy on anyone illegally. No one could bring a lawsuit, since there was no proof that they had been impacted by the illegal spying.

Then the feds screwed up. They accidentally sent the evidence of wiretapping some lawyers for the Al-Haramain group to those lawyers. Suddenly there was evidence. But, of course, the government tried to cover it up. For a while it claimed that even though it had revealed that it had illegally spied on these lawyers, and everyone knew it, since those documents were classified, everyone had to pretend that it was still a secret and no one knew about it. This resulted in a series of positively ridiculous hoops that lawyers had to jump through to bring the case, without actually using the document.

Thankfully, even as the Obama administration continued to support the Bush’s administration’s position that this lawsuit should not move forward, the courts disagreed and allowed the case to move forward although the document in question wasn’t allowed to be used.

However, the judge, who was clearly annoyed by the administration’s stalling tactics, said that even without the document, there was enough evidence that the federal government violated wiretapping laws:

“Plaintiffs must, and have, put forward enough evidence to establish a prima facie case that they were subjected to warrantless electronic surveillance,” U.S. District Judge Vaughn Walker ruled, in a landmark decision. Even without the classified document, the judge said he believed the lawyers “were subjected to unlawful electronic surveillance” (.pdf) in violation of the Foreign Terror Surveillance Act, which requires warrants in terror investigations.

Beyond that, the judge called the administration’s method of dealing with the case as “argumentative acrobatics,” and even suggested that those suing could ask for monetary damages.

This is a huge victory against illegal government surveillance. There is simply no excuse for the government to violate its own laws, especially when it comes to infringing on the privacy rights of American citizens. There is a well-established process for obtaining legal wiretap warrants. There is no excuse for going around that process, other than that the government knows it’s doing something wrong. Thankfully, the judge recognized that in this case.

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Yahoo to shutter AdSense clone at the end of April

Yahoo’s Publisher Network might have been going strong for nearly five years, but in the face of tough competition from Google, it has decided to close it up on April 30.

Originally posted at The Digital Home

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Columnist Claims Anonymity Is Bad For Our Country

Connie Schultz, a columnist for the Cleveland Plain Dealer, and a supporter of special copyright laws is back with another nonsensical column, this time weighing in on the recent debates about anonymous comments and her own newspaper’s decision to reveal the name of a commenter. Her summary: anonymity is just evil and should be done away with. Not just evil, but bad for the country. Seriously:

Maybe that’s the foolish optimist in me, but I want to believe that we will finally admit — to ourselves and to the public at large — that allowing people to hide behind anonymity has not been good for our industry, our culture or our country.

Apparently, Ms. Schultz is unfamiliar with The Federalist Papers, which were (*gasp*) written and published anonymously, and were instrumental in ratifying the US Constitution. Apparently, that was bad for our country. And, apparently, Ms. Schultz is unfamiliar with the concept of anonymous sources or anonymous tips that often drive important investigative reporting — the same kind of investigative reporting she thinks will die without special copyrights to protect her employer.

No one denies that when anonymity is allowed people may abuse it. But getting rid of anonymity completely is going way too far and greatly diminishes and limits certain important conversations — which are not bad for “our industry, our culture or our country.” Instead of whining about anonymity, why not focus on providing incentives for people to better identify themselves?

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