COPYCENSE

In this edition of CopyCense Clippings, we feature the razor sharpness of William Patry (on copyright) and Ed Foster (on licensing); Microsoft positioning Zune as an iPod challenger while ripping you off; a foreign court codifying file sharing into law; Bob Barker’s last spin; and “epistemologically unreliable” statistics from Big Content.

But first, we offer our thoughts on Ed Bradley.

In Memoriam: Edward Rudolph Bradley Jr.

(Photo credit: Tony Esparza, The Associated Press)

As likely was the case with many, the news that Ed Bradley died late last week caught me short. There are many others who knew Bradley personally and professionally, much more well than the “six degrees of separation” sense in which I could claim to have known him. Several of Bradley’s colleagues, like Clarence Page of the Chicago Tribune, offer deserved remembrances, accolades, and tributes. To them, I respectfully leave the duty of presenting their memories of one of journalism’s giants.

One recurring question I kept having last week, though, is “Who’s next?” In truth, the mere question seems embarrassing, suggesting there is room for but one Ed Bradley, or one Max Robinson, or one Art Rust, Jr., or one Gil Noble, or one William Rhoden, Les Payne, Clarence Page, George McElroy, John J. Johnson, Charlayne Hunter-Gault or Earl Graves. Part of Bradley’s remembrances will focus on his revered status as a journalist of color, and that is fine. What probably will not be discussed is the aging of Bradley’s contemporaries and the mere sprinkling of successors in the journalism pipeline who can bring competence and color to a news story, regardless of medium.

For me, the brilliance of Bradley’s skill — and it was as much skill as gift — was that he could at once “stay black,” yet remain as invisible as Ellison’s man. It seems there are few ready, willing, or able to follow Bradley and his contemporaries in delivering news and information with equal measures of accuracy, transparency, and inclusion. That is not fine.

K. Matthew Dames

Executive Editor

CopyCense: Code & Content

Article & Quote of the Week

Hollywood has tried to court us, but Hollywood doesn’t understand that once you’ve self-distributed to a mass audience — and we’ve got an audience larger than a lot of cable shows — and they offer you $2,000 per episode, we’re like, ‘What are you talking about?’ We already have an established fan base. We can’t sign the idea away for low money. With 20 million-plus downloads over the last year, and a strong brand and a strong Web site, that’s crazy.

Matthew Klam. The Online Auteurs. The New York Times Magazine. Nov. 12, 2006. In an idea economy that allows for Internet distribution and in-house creation, there’s little need to work through traditional channels unless you can get cash, freedom, and the ability to retain all your rights. Wu-Tang Clan understood that: when the big labels approached the group for a record deal, Wu-Tang opted for no advance, full publishing, and the freedom to release solo work from any of its group member on any other recording label. Ani DiFranco understands that: instead of signing away her songs and her freedom to control her work, she began her own label and performed. Even Prince, once a darling and beneficiary of the old system, understood this. His Royal Badness decided he’d rather write on himself than release another album for Warner Bros.

Big Content? Not so much.

Totally Random & Unrelated Clipping

ABC News. Person of the Week: Bob Barker. Nov. 3, 2006. Perhaps the funniest thing we’ve seen on screen in years is that “Happy Gilmore” skit Barker did with Adam Sandler a few years ago. But that’s one event from a 50-year career in which he’s gracefully declined to dye his hair, stayed calm when hyper contestants threatened to yank his arm off, and always completed one full turn whenever he’s spun the wheel. If we can roll Big Willie style for as long as Barker has, we’ll be very happy campers. Congratulations in advance for a fine career.

CommuniK. Clippings

Sandy Cohen. ‘Stolen’ Ideas Big Business in Hollywood. MercuryNews.com (via The Associated Press). Nov. 9, 2006. In the current economy, ideas are priceless. Some inventors and creators would rather sit on an idea, hoping to bring it to market independently, than to seek funding or partners to help bring an idea to market because they fear a competitor (or worse, a “partner”) will manifest the idea at market and cut them out of the loop. Trade secret laws and confidentiality clauses can help, but both presume that an idea person (a) has access to a good attorney; (b) can afford to pay a good attorney to write the obligatory cease and desist letter should something go wrong; and (c) can afford to defend his idea through litigation if necessary. If a creator has these resources up front, he is more likely than not to have access to more resources to bring the idea to market independently.

Stephen Shankland. Microsoft Patent Peace — Or Patent War? News.com. Nov. 3, 2006. The last two weeks have been rough for Red Hat. First, Oracle announced an initiative in which it will provide support for Red Hat’s product line for half what Red Hat charges. (Red Hat’s stock dropped by 25 percent.) Then late last week, Microsoft announced it would become partners with Novell in order to support Suse Linux. More significantly, both Microsoft and Linux pledged to Linux users that they will be protected against intellectual property infringement lawsuits resulting from proprietary software those companies blend with open source Linux. Red Hat, a much smaller company, had no choice but to offer the same deal.

Turf wars. Undercutting. Protection. Sounds like something straight from The Sopranos, doesn’t it?

Of course, Red Hat is downplaying both deals, particularly the Novell/Microsoft pairing. As usual, Ars Technica’s coverage raises an interesting question: for those companies truly committed to the open source ethos (and not just presumed cost savings), will it matter that Microsoft and Oracle have committed to the platform? One could reasonably suggest that their entrance could solidify Red Hat’s customer base.

MercuryNews.com (via The Associated Press). Spanish Court Dismisses Music File-Sharing Case. Nov. 2, 2006. If the news reports are accurate, this is a significant finding. We’d like to read the opinion ourselves to analyze the facts that are involved in this decision, and we only would be able to guess whether the English translation is accurate (since we assume the decision is written in Spanish). Despite our hesitance to read much into the decision without having analyzed it, this court touches on something about the current content that is irrefutable (even in America): sharing is standard operating behavior for the generation under 30 years old. The Spanish court wrote a guilty verdict in its case “would imply the criminalization of socially accepted and widely practiced behavior in which the aim is in no way to make money illicitly, but rather to obtain copies for private use.” Now, the question domestically is when are the courts and Congress going to recognize the fundamental change in American society and rule and legislate accordingly? This is likely to be a torturously slow process. After all, the Brown vs. Board of Education decision occurred only after decades of an effective, highly coordinated movement that illustrated the injustices wrought on American citizens based solely on their skin color. It took several decades more for the decision to lead to demonstrable change. We do not know how many more years of socially acceptable culture and content sharing must happen before the law falls in line, but we are rather confident that copyright law as it stands now must change. A law cannot be law if much of the society that is supposed to bound by the law doesn’t believe in or abide by the law.

Clippings

• Adam Liptak. Sports Artist Sued for Mix of Crimson and Tide. The New York Times. Nov. 12, 2006. The University of Alabama sues an alumnus whose paintings of Crimson Tide football life have represented the school’s football history and adorned campus for decades. Aside from being examples of questionable litigation and poor alumni relations, this lawsuit suggests the program once run by the legendary Bear Bryant is lost perhaps beyond repair. One could reasonably suggest that the Tide has many more important things to handle after it lost to Mississippi State and another alumnus, State head coach Sylvester Croom.
• Dan Mitchell. What’s Next, a MySpace Profile? The New York Times. Nov. 11, 2006. Abstract: “SEC Chairman Posts to Blog; Government Enters 21st Century.” Posting significant financial information to the Web to comply with Regulation FD seems like an overall idea, but we’re puzzled by Chairman Christopher Cox’s concern about “whether there exists effective means to guarantee that a corporation uses its Web site in ways that assure broad non-exclusionary access.” We always thought company press release and conference calls were exclusionary; why now the concern about making this information non-exclusionary simply because the medium has changed?
• Marketplace. Pushing for EU Patent Reform. Nov. 9, 2006. While patent reform in the U.S. has been an increasingly important issue over the past few years, at least a patent in the United States is respected in all states in territories. In contrast, a patent holder seeking protection in Europe must file a patent application in every one of the European Union countries, since there is no single standard. The move toward unifying the E.U.’s patent standard likely will be a high-stakes issue over the next three to five years.
• The Patry Copyright Blog. What the Election May Mean for Copyright. Nov. 8, 2006. The always razor sharp William Patry writes on the affect a Democratic Congress may have on copyright legislation in the next term. Interestingly, Patry does not discuss the potential role of John Conyers, Jr., currently the ranking Democrat on the House Judiciary Committee and the legislator in line to succeed James Sensenbrenner as chairman. Conyers’ record on intellectual property issues seems conflicted, as he is as likely to support a dominant content industry position as he will consider balanced legislation that seems sane. We also recommend Declan McCullagh’s post-election coverage, which also focuses on technology issues.
• Grant Gross. Is DRM Good Or Bad For Consumers? PC World. Nov. 8, 2006. We link to this story only as an example of how so-called policy makers in Washington, DC seem to be almost pathologically idiotic when it comes to dealing with the intersection of business, law and technology.
• Simon Hayes. Piracy Stats Don’t Add Up. Australian IT. Nov. 7, 2006. For years now, various folks have been challenging the accuracy and truth of the infringement statistics Big Content uses to justify all manner of initiatives, from increased digital restrictions software to maximalist legislation. But we cannot ever recall a government department deriding Big Content’s data as both “self-serving hyperbole” and “unverified and epistemologically unreliable.” Ouch.
• The Age. New Australian Copyright Rules ‘Restrictive’: Google. Nov. 7, 2006. While copyright laws are national, the question is how can they continue to be national when the primary distributive medium — the Web — knows no boundaries? It is unlikely that Australia will enact a proposed set of laws that would allow Australian copyright owners to sue search engines for caching and archiving material because the affect on Australian business would be catastrophic. Still, we remain amazed at how often countries and corporations jockey for special consideration in cyberspace, yet so consistently fail to realize how short-sighted such jockeying hurts not only others, but ultimately themselves.
• Ameet Sachdev. Lawyers Face Right to Blog. Chicago Tribune. Nov. 7, 2006. Some state bar associations are wondering whether attorney-authored blogs constitute legal advertising. Of course they do, but in most cases, no more or less so than if that same attorney gives a speech to lawyers at a convention, or discusses legal topics as part of his child’s show and tell project. Part of the reason the legal profession having its lunch eaten by consulting firms is it hasn’t seen fit to deal with issues of multijurisdictional practice (which is more common than ever now), and many lawyers’ inability to merge their legal knowledge and skills with an understanding of their clients’ business. (That suggests a failure at the law school level.) The lawyer blogging controversy is just an indication of how far behind the profession has fallen in relation to commercial and legal reality.
• Tom Krazit and Michael Kanellos. NTP Slaps Palm With Patent Infringement Suit. News.com. Nov. 6, 2006. Palm should just reach for its checkbook and ask how much. When it sued the Blackberry maker, NTP survived unusual (and ethically questionable, in our view) Congressional intervention, patent invalidation, and full-page ads condemning it in this country’s major newspapers. And still, it walked away with more than a half billion dollars. Palm could go the patent invalidation route, but does it have the cash to be successful? On the other hand, one must question NTP’s decision to launch this lawsuit right before Election Day, which is almost sure to stoke the pro-business Bush administration into action on patent reform in its last two years.
• BBC News. Zune Problems for MSN Customers. Nov. 6, 2006. So you’ve decided to resist the dominant paradigm, eschewing an iPod for a Zune. And you think you’re going to transfer your old music over? Even though you bought that music from a Microsoft entity? We chuckle. Please, just walk away.
• Frank Ahrens. Google to Try Selling Advertisements for Newspapers. WashingtonPost.com. Nov. 6, 2006. At some point, newspapers knew it was going to come to this. They knew they were going to have to go through Google for their ads. (And radio ad execs should not feel safe, either.) The only risk for Google is if newspapers, like other advertisers, demand sharper metrics with which to gauge how the advertising dollar is being spent.
• Drew Cullen. How to Gag Your Enemies Using the DMCA. The Register. Nov. 4, 2006. Chronicling the DMCA takedown notice process from a publisher’s perspective.
• Ina Fried. Microsoft Backtracks on Vista Transfer Limits. News.com. Nov. 2, 2006. When we first noted Microsoft’s new DRM features in the upcoming Vista operating system, we suggested that perhaps Redmond was floating a red herring to gauge consumer backlash against a major DRM initiative. We also predicted that Microsoft’s strategy would be to float out a hardline position that they’d later soften, yet it would find some other method to implement its DRM initiative. This announcement is the predicted softening. Now watch for the sneakily implemented alternative.
• Sue Zeidler. Hollywood Writers, Studios Spar Over Digital Works. WashingtonPost.com (via Reuters). Nov. 2, 2006. Big Content always has said that all this litigation and lobbying is about compensating the artists and creators. We’ll see how long that line stands when union contracts lapse and artists and creators begin demanding their cut of works that are distributed through new channels like iTunes.
• InfoWorld GripeLine by Ed Foster. A Vista of Licensed Censorship. Oct. 24, 2006. The always razor sharp Ed Foster focuses on how Microsoft restricts critical speech via a license agreement.
• InfoWorld GripeLine by Ed Foster. Reader Voices: Copyright Duration. Oct. 20, 2006. The always razor sharp Ed Foster lets his readers sound off about copyright terms.

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