Archive for the ‘Web & Online’ Category

GoDaddy’s Site Spike became the Web’s leading domain name registrar on the basis of low prices, fair policies, and better than average service. (Having some young, busty woman writhing erotically on the random Super Bowl commercial has not hurt, either.) Unfortunately, GoDaddy’s reputation has taken a hit over its sudden removal of a Web site upon request from MySpace.

The 27 B Stroke 6 blog over over Wired News has the whole story, complete with comments from the aggrieved site owner and GoDaddy’s corporate counsel. (Note to GoDaddy: If you’re making enough money to advertise during the Super Bowl, you’re making enough money to hire a public relations professional who can deftly manage controversy and crisis. In the future, never — never — let your corporate counsel handle correspondence with the media, especially when she shows herself to be as press idiotic as her comments in this matter demonstrate.)

In sum, what we’re talking about is one company approaching a domain name registrar, asking the registrar to remove a Web site, and the registrar doing so, unilaterally, with neither notice to the customer nor any apparent basis rooted in law or policy. In other words, it was a straight jack.

The interesting piece of this story is that a DMCA takedown notice was not involved. Clearly, regular readers of Copycense know that the DMCA takedown procedure regularly is abused by businesses who seek to halt the free flow of non-copyrighted information; it happens every holiday season with day-after-Thanksgiving sale information. Copycense readers also know that we have criticized not only the retailers who engage in this practice (which include Wal-Mart), but also the Internet service providers who feebly acquiesce to even the most spurious DMCA takedown notice.

The instant GoDaddy situation, however, seems considerably different. Without a DMCA notice, without a subpoena, and apparently without any legitimate reason whatsoever, a registrar rendered a Web site dark. This action effectively threatens the entire domain name system, and by extension, the smooth operation of the Web. We know of no legal or administrative action that would penalize GoDaddy for this action, therefore the clearest, most effective illustration of displeasure with GoDaddy is to discontinue doing business with the company. The publisher of Copycense has had a good working relationship with GoDaddy for several years. Over this action, however, that relationship now is in jeopardy.

27B Stroke 6. MySpace Allegedly Kills Computer Security Website. Jan. 25, 2007.

CopyCense™: Creativity & Code.™ A venture of Seso Group LLC.

Written by sesomedia

02/08/2007 at 09:00

Posted in Web & Online

Plagiarism Is The New “Piracy”

Ohio University is the oldest public university in the state of Ohio, an institution whose enrollment hovers around 20,000 students. For the past year, Ohio University has been besieged by a crippling plagiarism scandal. Based on an alumnus’ allegations that more than 30 students in the school’s mechanical engineering department have plagiarized substantial or core portions of their graduate theses, the Athens, Ohio institution has ordered those students to address the allegations or risk having their degrees revoked. Some of the theses are 20 years old.

This story, which The Wall Street Journal placed on its front page in mid-August, was the latest in a series of plagiarism stories that seem to be destined for headline news. In May, the board of directors at defense contractor Raytheon Co. decided it would withhold a salary raise and reduce incentive stock-compensation to chief executive officer William Swanson after it was revealed that a booklet he authored (entitled “Swanson’s Unwritten Rules of Management”) contained almost verbatim passages from a 1944 book by W.J. King entitled “The Unwritten Rules of Engineering.”

A few weeks earlier, publisher Little, Brown took the extraordinary step of removing the novel How Opal Mehta Got Kissed, Got Wild, and Got a Life from retail shelves after the Harvard Crimson published a story accusing author Kaavya Viswanathan, a Harvard undergraduate student, of pilfering significant portions of two teen novels written by Megan McCafferty.

Based on these developments, plagiarism has become the new piracy. Like “piracy” was a few years ago, plagiarism has become the hot, new “crime du jour,” an act that suggests immorality and often scandal at once. What’s more, plagiarism allegations feed into our society’s “Candid Camera” mentality, our seemingly insatiable need to uncover wrongdoing. This month’s column compares plagiarism and copyright, and the role of information professionals in raising the collective level of citation savvy.

An Information Today exclusive.

K. Matthew Dames. Plagiarism Is The New “Piracy.” Information Today. November 2006.

CopyCense™: Creativity & Code.™ A venture of Seso Group LLC.

Written by sesomedia

01/17/2007 at 09:00

Posted in Web & Online

Read This Article

Here at Copycense, we’ve long contended that the trend toward user-generated content had so altered America’s business, technological, and cultural landscape that the country’s legislature and court system would have no choice but to recognize this shift and begin to change the laws it passes and the way such laws are interpreted.

We have wanted to codify these ideas into a CommuniK. article, but to some degree, the Times‘ Jon Pareles has beaten us to the punch. Pareles’ article on user-generated content is one of the best single statements we have seen about the trend and the issues that surround it. Virtually every information professional, entertainment executive, and creator should read this article as a Cliffs’ Notes version of the digital economy.

The following quote helps show how good this article is

Copyright holders might be incensed; since buying YouTube, Google is paying some of them and fielding lawsuits from others. But a truly shrewd marketer might find some larger value. Those parodies, collages, remakes and mismakes are unvarnished market research: a way to see what people really think of their product. They’re also advertising: a reminder of how enjoyable the official versions were.

The amateurs may seem irreverent, disrespectful and even parasitical as they help themselves to someone else’s hooks. But they’re confirming that the pros came up with something durable enough to demand a reply. Without icons, what would iconoclasts mock?

Pareles follows with another outstanding observation

Individually the hopefuls can’t compete with a heavily promoted major-label star. Face it: Song for song, most of them just aren’t as good. But collectively they are stiff competition indeed: for time, for attention and, eventually, for cultural impact. The multiplying choices promise ever more diversity, ever more possibility for innovation and unexpected delight. But they also point toward an increasingly atomized audience, a popular culture composed of a zillion nonintersecting mini-cults. So much available self-expression can only accelerate what narrowing radio and cable formats had already begun: the separation of culture into ever-smaller niches.

That fragmentation is a problem for businesses, like recording companies and film studios, that are built on selling a few blockbusters to make up for a lot of flops. The music business in particular is going to have to remake itself with lower and more sustainable expectations, along the lines of how independent labels already work.

But let the business take care of itself; it’s the culture that matters.

For these reasons, Pareles’ article is this week’s Article of the Week and Quote of the Week.

Jon Pareles. 2006, Brought to You by You. The New York Times. Dec. 10, 2006.

Copycense™: Code & Content.™ A venture of Seso Group LLC.

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Written by sesomedia

12/11/2006 at 09:00

CopyCense Clippings v. 0.97

We have provided a full slate of Clippings before the holiday break, with stories and commentary on a small, middle America music publishing company that effectively has halted musical sampling; the real importance of YouTube; Apple’s response to Zune; legislative wheeling and dealing during Congress’ lame duck session; and the growing problem of a new disease called EDTS (errant DMCA threat syndrome).

Best to you and yours over the Thanksgiving holiday.

Article of the Week

Nolan Strong. Bridgeport Music Files Lawsuit Against Jay-Z Over ‘Justify My Thug.’ Nov. 6, 2006. The Sixth Circuit’s 2004 decision in Bridgeport Music v. Dimension Films, in which the court held that the Copyright Act’s fair use clause is inapplicable within the context of music sampling, will continue to have a huge affect on contemporary music for two reasons. (See CopyCense coverage on how this decision halted sales of Notorious B.I.G.’s Ready to Die.) First, the plaintiff music publisher controls the copyright to several integral soul and funk compositions that are popular with the hip hop community. Second, much of hip hop still implements sampled recordings.

Third, contemporary popular music is rooted in (or influenced by) hip hop implements, leading to a higher possibility that a composition will contain samples. Fourth, and finally, the Bridgeport decision is so inconsistent with prevailing fair use constructs from other federal circuits that the Supreme Court may actually decline to hear the appeal on certiorari because most of the other circuits are not as stark in rejecting fair use. The Court typically will hear a case when it determines it is clear there is a wide divergence in opinion in several circuits. If, however, only one of the circuits holds anomalously on a broad concept that has been addressed across the federal court system, the Court is more likely than not to let that anomaly stand.+

Quote of the Week

What makes [YouTube] so revolutionary is that it’s one of those Internet moments where something that used to be hideously difficult — to the extent that you didn’t do it — all at once, almost overnight, became easy. Video just used to be a terrible experience on the Web: files wouldn’t load, or you’d be told you needed software. Or you’d wind up seeing the dreaded word: buffering. And almost overnight, YouTube made that go away. You saw video on Web sites, and you weren’t afraid to click on it. If you were a Web site designer, you weren’t afraid to use it. That was a remarkable change in opening up the promise of video. — Jason Fry, assistant managing editor, The Wall Street Journal Online.

Fry’s comments on NPR’s Talk of the Nation last week echo what he wrote in a Nov. 13 article published in The Wall Street Journal Online. We believe the NPR broadcast (.ram) is superior because it includes an interview with James Boyle, a Duke law professor who also is one of the masterminds behind Tales From the Public Domain: Bound by Law?, the first copyright comic book.

For all the talk about YouTube and the copyright issues at stake, Fry reminds us of why YouTube (and protecting the underlying sharing principle it manifests) is so important. Insightfully, Fry tells host Lynn Neary that the real importance of YouTube’s posting of Saturday Night Live’s “Lazy Sunday” skit was more than a copyright issue: in many ways, it made SNL relevant again to viewers who had abandoned the show. We’d add that this consumer-driven identification of relevance and freshness is stronger than any advertising a content creator could conceive.

Yet, Neary points out the inherent double standard that YouTube’s presence manifests. Content creators can benefit from the audience driven legitimacy a strong showing on YouTube presents, but they also exclusively control when or how to remove that content. We would agree that copyright owners should have primary control over how others use their works, but we also would demand a counterbalance to that control, one which does not seem to be evident in today’s hyperactively protective environment.

Separately, we look askance at Big Content’s intentional exploitation of the double standard. They act like a cop who allows every car to exceed the speed limit by 20 miles per hour, only to arbitrarily choose which driver among dozens will receive a speeding ticket. This sort of selective prosecution not only is inconsistent; it fosters a fundamental distrust of large, corporate content-owning entities. Some of the deep seated distrust consumers have of Big Content — everything from rigged CD prices, to ridiculous concert ticket prices, to computer viruses being marketed under the doublespeak of “digital rights management” — contributes mightily to many consumers’ unwillingness to play by traditional rules.

But there is really no stopping YouTube. For one, it represents a chance — however brief — for consumers to “stick it to the man” by remixing other’s work. Additionally, YouTube has a great technology: it legitimately and greatly simplifies the traditional problems consumers have had with watching video online. Finally, we think people honestly think that they are sharing works they post to YouTube and, in some way, helping to bring to broader light events that others may have missed. (Increasingly, YouTube has been used to document abuse such as police brutality and human rights violations.)

For these and other reasons, we believe it is appropriate that Time Magazine has called YouTube the “Invention of the Year” for 2006. The questions that remain include whether YouTube ever will be allowed to evolve beyond its current position. If not, what we will remain is exemplified by a column written by ESPN’s Bill Simmons. The article, “The YouTube Hall of Fame,” has been rendered irrelevant by links to videos that had been on YouTube, but which have been removed for copyright reasons.

Is this swiss cheese, residual approach to content what people really want?

Things We Missed

Google Blog. Spot On. Oct. 31, 2006. With all the hubub about YouTube and Google, we missed the fact that Google bought JotSpot, the popular wiki software.

CommuniK. Clippings

Ars Technica. Best Buy Tries to Copyright Sales Prices. Nov. 14, 2006. As we approach the Thanksgiving holiday in the States, we also approach that gross cultural abomination called the holiday shopping season. And for about five years now, holiday shopping season has ushered in a new, legal abomination: errant DMCA threat syndrome (“EDTS”). EDTS is a severe, seasonal affective disorder in which major retailers such as Wal-Mart and Best Buy threaten informational Web sites with a DMCA-sanctioned blackout pursuant to Section 512 should those sites publish so-called “Black Friday” sales information before those stores are ready to publish that information. (“Black Friday” is a term the retail industry uses for the Friday after Thanksgiving, which officially begins the holiday shopping season. The term was coined as a play on the financial phrase “in the black,” or profitability.)

Of course, it doesn’t matter that advertising information is clearly factual information, and therefore ineligible for copyright protection. Under the DMCA takedown and safe harbor rules, this critical fact actually is irrelevant. Of course, the defending Web sites could bring legal action, but (a) this costs money many of them do not have to spend, and (b) would do nothing to avoid having their Web sites shut down for the mandatory 10-day period. Conveniently for the retailers, this 10-day period would span the entire Black Friday weekend.

EDTS has become rampant over the last few years, and to date, the only known cure is an amendment to the DMCA (or a judicial decision) that would codify and enforce automatic financial damages against any entity that invoked the takedown procedures for clearly factual information. This has a snowball’s chance in hell of ever happening.

The Patry Copyright Blog. Why UK Scholars Eat Our Lunch. Nov. 14, 2006. William Patry weighs in — rather heavily — on American legal scholarship’s dirty little secret: its system of scholarship is questionable, its peer review process non-existent. Law reviews are managed, operated, edited, and produced by second- and third-year law students, almost none of which have the requisite legal (or writing, or editing) skills to properly challenge, audit, or improve serious legal scholarship. What makes the situation worse, though, is that legal scholarship increasingly is interdisciplinary. For example, we just came upon a new publication, Empirical Legal Studies, which covers the emergence of empirical scholarship in the legal academy. In other words, this group of law professors is seeking to apply social science methodology, both quantitative and qualitative, to the law, resulting in a data rich level of case analysis, content analysis, and statutory analysis. In contrast, many third year law students are ill-equipped to do statutory analysis properly; how, then, would these students be in a position to edit or gauge the quality of an empirical legal study as the editor of a law review? Patry’s post points to a 2004 article by Seventh Circuit judge Richard Posner that more thoroughly analyzes this system.


  • Greg Sandoval. Movie Studios Sue DVD-to-iPod Service. Nov. 17, 2006. So, let’s get this straight. You go to your local store (physically or virtually) and you pay full price for Season 6 of The Sopranos. You want to view these discs on your iPod. You’re in a hurry.You ask a commercial service to load the DVD content — the content you’ve already paid for — onto the iPod you’ve bought, also with your own money. And this allegedly is illegal? Electronic Frontier Foundation includes the complaint (.pdf). The organization is 100 percent correct when it says this is copyright gone too far.
  • Association for Computing Machinery. Meet the New Boss: Outlook for Technology Policy in the Next Congress. Nov. 16, 2006. ACM’s public policy staff has written a good overview of how a new Congress likely will vote on technology issues. As we discussed last week, a Democratic Congress does not ensure intellectual property fairness.
  • Louis E. Frenzel. Digital TV: Issues And Impacts. Electronic Design. Nov. 16, 2006. A good primer on the various issues related to serving digital television, and by extension, the broadcast flag.
  • Sean Captain. So Much Music, So Few Choices. The New York Times. Nov. 16, 2006. Little new here for our regular readers, but the article does highlight that some musicians like Sonny Rollins are using the virus-free .mp3 format for online music distribution, and depending using that as an incentive for live performance participation. We’ll also note for the record that The Saxophone Colossus is leveraging YouTube’s technology to help him broadcast some of his live performance videos from his home page.
  • Daniel Terdiman. Second Life Faces Threat to Its Virtual Economy. Nov. 15, 2006. This is affirmation that Second Life is as close to real life as possible. It now has a copyright problem. IPTA Blog adds an interesting perspective to this issue, as does Edward Felten’s Freedom to Tinker.
  • Gigi B. Sohn. Still Sticking It to the Consumer. Nov. 15, 2006. Public Knowledge‘s president warns us: beware the lame duck session of Congress. This period virtually rivals no other for the amount of Congressional wheeling and dealing that occurs in our nation’s capital. Ostensibly, this is the time of year when egregiously bad copyright laws miraculously appear on the books with little notice, no debate, and nary a whiff of negotiation. Journalistic integrity obliges us to note that Big Music capo Cary Sherman weighed in on this same issue (we presume intended a mano a mano debate), but Sherman’s take on fair use is predictably narrow, and his lobby’s efforts at “educating” Boy Scouts and primary school children are offensive.
  • MacNN. Apple, Airlines Offer iPod Integration. Nov. 14, 2006. And, um, what was the name of Microsoft’s new digital music player?
  • Charles Hutzler. Gutierrez Urges China Piracy Crackdown. (via The Associated Press). Nov. 14, 2006. Trade agreements are the new copyright legislation. This is significant enough that we will write about this separately, perhaps in an a CommuniK. piece or as an article for one of our print partners.
  • Lifelong Learning. Of the Case for Fair Use: Digital Distribution of Course Materials — Market Failure. Nov. 13, 2006. Georgia Harper analyzes the economic calculus courts seem to use to determine the fourth factor in fair use analysis, set against the context of educational uses of protected works.
  • Light Reading. BitTorrent Video Store Delayed. Nov. 13, 2006. This illustrates the enormous paradox that is occurring in the content industries. On the one hand, Big Content struggles with its irreversibly broken current business model and, in a state that is panicked, arrogant, stupid, and confused all at once, it does nothing but file lawsuits, hoping this tactic can by it some time to get itself together. Savvy companies who understand the current content environment have provided Big Content with solutions. Apple handed the entire digital music market on a platter. Instead of working with Apple to provide the best customer experience possible, Big Music has its hand out, asking for a larger slice of a pie that had no hand in making. Facing a torrent of lawsuits, which were validated by the Supreme Court’s Grokster decision, BitTorrent pledged to work with Big Content. As a distributive technology, BitTorrent is fantastic. But now the company is flailing because Big Content won’t provide … well, content. And content executives wonder why consumers get exasperated and simply ignore them.
  • Richard Siklos. A Struggle Over Dominance and Definition. The New York Times. Nov. 12, 2006. Google’s YouTube purchase reignited debate over whether Google is a media company, or otherwise pushing itself toward being, effectively, the King of All Media. Google makes its money in advertising; media companies understand and operate on advertising as well. Perhaps the two camps are not as far apart as we originally thought.
  • BBC News. Public ‘Support Longer Copyright.’ Nov. 12, 2006. Recall the Australian government’s assessment that Big Music’s infringement claims are “epistemologically unreliable”? Until Big Music proves otherwise, we will presume most of its survey findings are “epistemologically unreliable,” calling into question the veracity of this claim.
  • Nailchipper. Implications of the Web for Free and Open Source Licenses. Nov. 12, 2006. An interesting thought piece on EULAs within the context of Web-based applications.
  • Ars Technica. RIAA Defendant Argues Damages Are Excessive. Nov. 11, 2006. Finally, it seems like a legal team is stepping up to the plate and challenging Big Music on the merits of its spurious claims. We understand the economics of litigation — without cash, you can neither assert your rights nor defend yourself against questionable claims — which is why we’re surprised organizations like Electronic Frontier Foundation have not been a bit more active in protecting some of the public in the most egregious music file sharing cases.
  • Gary Shapiro. Tenure Online. The New York Sun. Nov. 3, 2006. Is traditional, stodgy academia prepared to give equal weight to publication in open access journals when faculty get evaluated for tenure? The day is coming where a young faculty member will have nothing except open access citations. According to Issues in Scholarly Communication, that day is sooner than later: UMI (known to doctoral candidates and recipients as the company to which dissertations are sent for microfilm publication) is now offering an open access option for students submitting their theses or dissertations.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

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Written by sesomedia

11/20/2006 at 09:00

Posted in Web & Online

Why YouTube Won’t Sink Google

CommuniK Commentary by K. Matthew Dames

“Will YouTube seriously affect Google’s earnings?”

This has been a looming question in the tech and business news ever since the search giant purchased the video sharing service for $1.6 massive. This week European music publishers demanded royalties for music videos (see story below), and Google reported the following in its quarterly SEC filing

our planned acquisition of YouTube may subject us to additional copyright claims upon the closing of the transaction. Adverse results in these lawsuits may include awards of substantial monetary damages, costly royalty or licensing agreements, or orders preventing us from offering certain functionalities, and may also result in, or even compel, a change in our business practices, which could result in a loss of revenue for us or otherwise harm our business.

Now, really, why is everyone all in a tizzy about this?

Could the YouTube acquisition subject Google to copyright lawsuits? Yes. Could an adverse judgment in any one of these lawsuits result in Google having to pay “substantial monetary damages”? Yes. Could such damage claims result in Google having to change its business practices? Yes. Could such claims also result in Google suffering an earnings drop? Yes.

Could the sun fall out of the sky tomorrow morning and melt us all, leaving only the Manhattan cockroach and the Loch Ness Monster to divide the planet for global supremacy? Yes.

We’re smelling a media feeding frenzy here folks. The business press loves to cover Google, and the possibility that the most high profile tech company in (dare we say it) Bubble 2.0 would have to battle in court for its very survival is something that business and technology reporters are licking their chops over. The bloodlust for Google to be mortally wounded and brought down to Earth is quite different from the fawning coverage Google used to receive in its early days.

But please, folks, chill. As much as Big Content would like to continue its strategy of “sue to stop the [disruptive technology, failed business model, no more EOY bonuses, etc.] clock while we get ourselves together,” it knows it can’t do that with Google. Unlike Jane soccer mom that Big Content sues over spurious illegal file sharing claims — can someone please read Rule 11 — Google has cash, baby, long enough to go toe to toe for 15 rounds of litigation.

What Big Content really wants (needs?) to do is partner with Google to get access to some of that cash and technology. If these bigwigs were smart, they’d ask Google “How much is it going to cost for you to license us the YouTube platform so we can run it on our own site?” And then they’d run a customized version of YouTube with their own Web sites. Big Content is not going beat Google at its own game, so instead they should license the technology.

We think one reason Google bought YouTube is so the service can join Google Search Appliance and the Google Mini as enterprise-level technology platforms. If the YouTube technology is made available to Big Content at a nice price point, then the labels, studios, and production houses will sign up because they cannot do better. (Of course, Big Content also would have to quit threatening to sue everyone that makes an interesting mashup video out of their work, but that is more about attitude, and we’re strictly talking business and technology right now.)

In the meantime, we’ll have to suffer the slings and arrows of more “Will YouTube sink Google?” stories. One thing is for sure, though: “the hills are alive with the sound of lawyers.” (Quote courtesy of The Register.)

Jan Libbenga. German Music Publishers Demand YouTube Royalties. The Register. Nov. 9, 2006.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

Written by sesomedia

11/10/2006 at 09:00

Posted in Web & Online

CopyCense Clippings v. 0.94

Since there is a lot of important news and our regular Monday edition was briefer than normal, we’ve decided to publish a special midweek edition of Clippings. And with it, we include a vow never to talk about copyright infringement in terms of “piracy” ever again. (See our AoTW, below.)

Article of the Week

Strategy Page. Sea Transportation: Putting Piracy Into Perspective:Putting Piracy Into Perspective. October 21, 2006. The first line of this brief report reads as follows: “During 2005, there were some 275 incidents of criminality at sea, that were classed as piracy.” Henceforth and forever more, the term “piracy” never again should be used as a synonym for copyright infringement. Using “piracy” within the context of copyright infringement is inaccurate at a minimum, disingenuous at all times, and framed doublespeak at worst.


  • BBC News. Q&A: Web Science. Nov. 2, 2006. Courtesy of the Massachusetts Institute of Technology and Web pioneer Tim Berners-Lee, the Web gets a formalized field of study. Members of Congress and the federal judiciary should be the first to enroll. According to The New York Times, Web science “is an academic effort, but corporate technology executives and computer scientists said the research could greatly influence Web-based businesses.” The field “is related to another emerging interdisciplinary field called services science. This is the study of how to use computing, collaborative networks and knowledge in disciplines ranging from economics to anthropology to lift productivity and develop new products in the services sector, which represents about three-fourths of the United States economy. Services science research is being supported by technology companies like I.B.M., Accenture and Hewlett-Packard, and by the National Science Foundation.”
  • The Register (via MySpace Tries to Block Unauthorised Tunes. Nov. 1, 2006. Even the mainstream media has reported that MySpace’s core population thinks it is so over it. This and similar policies will hasten its demise and relevance. What a shame. It could have been a music distribution contendah. (By the way, Gracenote is the same company that makes the software that automates the loading of song metadata onto iTunes from compact discs.)
  • Yuki Noguchi and Sara Kehaulani Goo. To the Media, YouTube Is a Threat and a Tool. Oct. 31, 2006. This article articulates Big Media’s position on YouTube, which is (to paraphrase a sports commentary phrase) “you cannot stop it, you can only hope to contain it.” But the real issue is buried somewhere in the middle of this article, and cogently articulated by the following sentence: “YouTube is the most recent example of how the ease of sharing digital information poses copyright threats to media companies.” We ask: When did sharing become a threatening act? We ask further: If sharing has become so pervasive as to become “threatening,” when will Congress and the judiciary recognize this and begin to balance copyright laws accordingly?
  • Declan McCullagh. U.N. Proposes Changes to Net’s Operation. Oct. 30, 2006. The Internet Governance Forum is a big event internationally, but strangely gets comparatively little press coverage domestically. Maybe that’s because the U.S.’s control over the system (via ICANN) rankles feathers everywhere — except here. (Maybe the U.S. government’s refusal to send a policy official to speak also has something to do with it.) Fortunately,’s tireless Declan McCullagh is reporting on the proceedings. This event succeeds last autumn’s events in Tunis (see McCullagh’s report and interview from last year’s Tunis meeting), and the Commerce Department’s pledge (.pdf) to loosen its control over ICANN (see ICANN announcement). The Forum is meeting near Athens, Greece. Summary of the event: “Some 1,200 academics, policy makers, technology experts, user representatives and other delegates are attending the Internet Governance Forum, which runs through Thursday in this resort near Athens. Discussion topics are expected to include ways to ease current U.S. control of the Internet and improve international cooperation to fight Internet crimes like banking fraud and child pornography.”
  • Louise Story. Marketers Demanding Better Count of the Clicks. The New York Times. Oct. 30, 2006. If marketers are serious about getting reliable and valid metrics, this may mark the end of the Internet advertising pixie dust that has fueled the growth of several of the major search engines. This area, not copyright, is Google’s biggest challenge.
  • Tim Wu. Does YouTube Really Have Legal Problems? Slate. Oct. 26, 2006. Tim Wu writes one of the most informed opinions about Google’s anticipated legal problems in its YouTube acquisition, including drawing a sharp distinction between fair use and “tolerated use.” The net-net? All of Big Content’s huffing and puffing may be akin to a smokescreen.
  • Ars Technica. Defendant Doesn’t Want RIAA Let Off the Hook. Oct. 26, 2006. Big Music drops another file sharing case after “further investigation.” Why isn’t doing this investigation before it files the lawsuits? One of — if not the main — reason why RIAA’s lawsuit tactic is “successful” is because the typical defendant does not have the resources to fight the charges in federal court. And let’s face it: most people don’t have the resources to pay federal litigation costs. But, for goodness sake, can’t anyone at least bring up the issue of sanctions against Big Music? EFF has done an incredible amount of litigating in this arena; why can’t it take on a case?
  • Joris Evers. Breaking Through Apple’s FairPlay. Oct. 25, 2006. We knew Jon Lech Johansen had cracked Apple’s FairPlay DRM again, but we didn’t know he had formed a consulting company that, in part, will license his technology. At the very least, you have to admit that this guy has a pair.
  • Ars Technica. YouTube Names Names: Why Is Anyone Surprised? Oct. 24, 2006. This is a great article that dissolves the innovative, anti-establishment pixie dust that citizens and (to some extent) the press have sprinkled across YouTube’s home page, and includes an interesting look at the how the DMCA’s safe harbor provisions may apply to the video sharing Web site. (Also, see Tim Wu’s article, above.)
  • Brian Bergstein. IBM Sues Amazon for Patent Infringement. (via The Associated Press). Oct. 23, 2006. It seems IBM’s new approach to patent filings has nothing to do with its approach to litigating on it massive patent portfolio.
  • (via The Associated Press). Net Neutrality Would Get Warm Reception in a Democratic Congress. Oct. 23, 2006. If you missed Bill Moyer’s special on net neutrality, the entire broadcast is now available online.

CopyCense™: Code & Content.™ A venture of Seso Group LLC.

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Written by sesomedia

11/02/2006 at 09:00

Posted in Web & Online

CopyCense Clippings v. 0.92

To quote Worm (Edward Norton) in the 1998 film Rounders, “Wow!! Lot of action. Lot … of … action.” There was so much material for this week’s Clippings that we’ve decided to analyze our Article of the Week separately.

This week’s edition features lots of good material concerning Big Music and its broken business model; thoughts about lawsuits; thoughts about digitization; and not one, but (count ’em) two Quotes of the Week.

Article of the Week

Julia Angwin, et al. Record Labels Turn Piracy Into a Marketing Opportunity. The Wall Street Journal). Oct. 18, 2006. We will analyze this article later this week as a separate CommuniK. post.

Quotes of the Week

“If we can have a legal YouTube, we can have a legal P2P service.” — Bob Lefsetz, editor and publisher, The Lefsetz Letter.

The Lefsetz Letter. YouTube Deals. Oct. 9, 2006. There is virtually nothing else we can add. But even more important than this quote is Lefsetz’s industry analysis (which is consistent with ours): “piracy” is not Big Music’s biggest problem; its broken business model is. That broken business model has virtually nothing to do with “piracy,” and Big Music executives should take full responsibility for their failure to recognize their business is broken. (They also should concede their laziness in relying on litigation and Congressional coffer stuffing to halt commercial and technological development while they get their act together.) We all know what happens to a business that can’t cut it anymore in a changed environment: it dies. And some of those deaths can be sad, as the closing of CBGB illustrates. But life moves on. If Big Music cannot get its act together in a new environment, let it perish as other industries unable to adapt have perished. This is, after all, the flip side of capitalism: adapt or die.

“The [entertainment] business has changed so massively. … You will never have the market forces again that, how do I put this, that allow people to get rich.” — Dick Wolf, creator and executive producer, Law & Order.

Brian Steinberg. ‘Law & Order’ Boss Dick Wolf Ponders the Future of TV Ads (Doink, Doink). (via The Wall Street Journal). Oct. 18, 2006. Earlier this year, Dick Wolf claimed that his television franchise generated $1 billion in advertising revenue. Even if the actual numbers are only half that estimate, what’s incontrovertible is that Dick Wolf has made a ton of money in the “old school” environment. But what is really interesting is Wolf’s admission that the game has changed so radically during his Law & Order run that the business model he has used to make his money would not work if he were starting today. Further, if you read between the lines, Wolf seems comfortable with having entered the business at the right time with the right concept, having made his money, and seems pleased to move on without regret (and without whining that his formula no longer generates $1 billion in ad revenue). We wonder how many other Big Content executives can say they know when to hold ’em, know when to fold ’em, know when to walk away, and know when to run.

CommuniK. Clippings

Wendy Grossman. Preserving A Copy of the Future. The Guardian. Oct. 19, 2006. Wow!! A national library fighting the music industry over term extension. Too bad America’s de facto national library (which runs this nation’s copyright office) hasn’t seen fit to fight similar battles over term extension here. Oh, wait, we forgot: America’s copyright officer in chief waited seven years to concede that America’s last term extension went too far. Thanks for weighing in. (via Associated Press). European Artists Defend Copyright Levies on Gadgets, Blank Discs. Oct. 18, 2006. With approximately $690 billion collected last year (and a levy of 180 euros, approximately $226, for a 60 GB iPod), you had to know any attempt to halt this tax would be very controversial. On the surface, it seems ridiculous, but if most of this money really is going directly to creators (instead of to content companies, which occurs in the American system), is it an overall bad system? We think, though, that if artists are receiving this sort of subsidy, then copyright terms should be very brief, certainly much shorter than the “life plus 70” term that America has (and European Union countries seem to want to adopt).

Xenia P. Kobylarz. Judge Sanctions Firm for Filing ‘Cookie-Cutter’ Patent Infringement Complaints. (via The Recorder). Oct. 18, 2006. Second paragraph of this story reads: “A federal judge in the Western District of Washington has sanctioned an attorney and his law firm for sending dozens of ‘fill-in-the-blank’ demand letters and filing cookie-cutter patent infringement complaints on behalf of client Eon-Net, a patent holding company based in the British Virgin Islands.” If you change “patent” to “copyright,” and replace “Eon-Net” with “Big Music,” why wouldn’t the same logic apply to file-sharing lawsuits?

Ars Technica. RIAA Drops File Sharing Case. Oct. 15, 2006. Big Music’s random litigation based on scant evidence is not news. Big Music dropping a case with prejudice after a consumer fights back (again, based on scant evidence) is news. What we’d like to see is a network of law school litigation clinics begin to accept these cases to fight the case at pre-trial and negotiate settlements, if settlements are applicable. The only level Big Music has in many of these cases is the cost of litigation. Those who have been using large amounts music without paying anything should pay through settlement. Others who haven’t done anything should not have to spend one cent on spurious charges in federal court. And in really egregious cases like this one where the evidence is weak, we’d also like to see defendants begin asking for sanctions under FRCP Rule 11.

Thudfactor. Gunfight at the Circle-C Corral. Oct. 15, 2006. If not for Bob Lefsetz’s simple, dead on quote, we would have made this our QoTW: “The rampant violation and disrespect for copyright law demonstrates the extent to which copyright law is broken, and having heavy-hitting violators in the game will hopefully make some strides towards repairing it and making it useful again. Copyright holders have been unable to come to terms with the basic truth of their product: copyrighted works are by definition cultural assets. Performance, music—even computer games—become parts of people’s lives. They generate emotional response, they accrue emotional attachment, and in many cases become integrated into people’s identity. People want to pass along the art and stories that appeal to them; it is a basic social activity that predates written language. You can no more expect people to stop sharing their culture than you could expect people to stop six thousand years of beer drinking because a handful of sanctimonious nutjobs pass Prohibition.”

Antony Bruno. Digital Rights in Question As Business Model. (via Reuters). Oct. 15, 2006. We find it rather amazing that in a few short years, now even the mainstream press is openly questioning DRM as a business solution. (Of course, these questions are all the more relevant now that Microsoft has released its Zune music player with yet another DRM scheme that is incompatible with all others.) This article, though, goes even further in that it calls for Big Music to make available .mp3 files with no DRM restrictions at all. The hardcore liberal sect of the copyright crowd has been trumpeting this view for several years, but as recently as two years ago, this suggestion never would have been published in a major newspaper. (Note: While this article is provided through the Reuters news wire, Bruno actually writes for Billboard, the leading music industry publication, which makes the article’s tone all the more extraordinary.) Compare this with the chief technology officer of the MPAA, who posits that piracy is the consumer’s answer to not having standardized DRM. Some commentators, like those on ZDNet’s Hardware 2.0 blog, look to these comments as a sign of progress. We see it another way: that a chief technology officer of any organization would actually state such drivel on the record is virtually incomprehensible. But it’s a Big Content executive speaking; drivel is to be expected.

John Battelle’s Searchblog. A Brief Interview with EFF’s Fred von Lohmann on YouTube, Copyright, Google, and More. Oct. 10, 2006. We’re still unearthing good, residual GooTube coverage that we missed due to sheer volume. This article includes a good, straightforward explanation of the DMCA ISP safe harbor provisions that are codified in Section 512. What becomes apparent in reading this article is Von Lohmann understands the core technologies and plausible uses that are at the heart of so many current copyright battles. We firmly believe that if you do not understand the technology and its current and prospective uses, there is virtually no way you can run a technology business. Further, there is no way you can write laws that affect the technology. Clearly, Big Content and Congress consistently have failed to learn these fundamental lessons.

BitPlayer. Tower Records, iTunes and Napster. Oct. 11, 2006. The L.A. Times‘ entertainment blog discusses the demise of Tower Records, which went into liquidation last week. (The Times’ Ann Powers also lends her pen to the store’s closing.) Most interesting is this last paragraph: “It’s a shame the labels, artists and music publishers have failed to make everything available for sale, and that they (and Apple) have resisted the idea of cheap, bulk sales of older material. The urge to dive deep into an artist’s work is what separates a casual listener — the kind who’s satisfied by the selection at Wal-Mart and Best Buy — from a real music fan. The latter were the Tower Records shoppers of yore, and they are the lifeblood of the industry today. They need to be indulged.” Can we get an “Amen”?


  • Trudi Bellardo Hahn. Impacts of Mass Digitization Projects on Libraries and Information Policy. ASIS&T Bulletin. October/November 2006. After reading this article, please remind us again: why isn’t copyright a mandatory course in library science masters’ programs?
  • Pete Wells. New Era of the Recipe Burglar. Food & Wine. November 2006. After the fashion industry whined about needing federal legislation to protect their designs, and after Dianne von Furstenburg’s asinine comments about copyright [QoTW, Sept. 11, 2006], it is only natural that we’d have to tolerate copyright issues spilling over into the kitchen.
  • Brad Stone. The End of Free Trade? Newsweek. Oct. 20, 2006. Details YouTube’s “acoustic fingerprinting” technology, which will be used to monitor copyrighted works owned by Big Music.
  • Jason Epstein. Books@Google. The New York Review of Books. Oct. 19, 2006. This is a good summary of the current books that discuss Google’s Book Search project. You can read an even more insightful analysis of this trend at if:book, Google and the Future of Print.
  • Open Source blog. What Do Apple’s Earnings Say About Open Source? Oct. 19, 2006. Outstanding article about Apple’s cool factor and service overshadowing it’s proprietary operating system and DRM-laden iPod.
  • Anthony Ross Sorkin and Stephen Leeds. Music Companies Grab a Share of the YouTube Sale. The New York Times. Oct. 18, 2006. Big Music gets to wet its beak a little. The Mob would call this “tribute.”
  • Rebecca Knight. Microsoft In Digital Book Deal. Oct. 18, 2006. This announcement is noteworthy because some of our editors, along with Jill Hurst-Wahl over at Digitization 101, have seen the Kirtas machines in action. The top-end machines — which we presume Microsoft will use — are rather expensive, but seem to be advanced enough technologically that they can handle the sort of volume Microsoft’s digitization efforts will endgender.
  • Rich Frankel. Copyright to Public Domain: A Battle Cry. Oct. 18, 2006. A Philadelphia lawyer rants about our current copyright system.
  • Graeme Philipson. The Coming Digital Showdown. Oct. 17, 2006. The online version of Australia’s Sydney Morning Herald addresses the problems with copyright in the digital environment this way: “As for the concept of copyright, I have written many times in this column about its inevitable demise. It is an atomic concept in a networked world.”
  • Michael Geist. Why YouTube Won’t Be Napster Redux. Toronto Star. Oct. 16, 2006. Geist compares YouTube with Napster, and explains YouTube likely won’t suffer the same denouement.
  • Stefanie Olsen. Wikipedia Co-Founder Plans Expert Spinoff. Oct. 16, 2006. Larry Sanger plans to launch Citizendium as a Wikipedia alternative, one that features “experts.” We want to know how one qualifies to be an “expert.”
  • Between the Lines. DMCA Should Scare Us All. Oct. 14, 2006; ZDNet Education. DMCA Threatens Academic Freedom. Oct. 14, 2006. If you’re a regular CopyCense reader, there is nothing new here, but both articles point to a swelling popular discontent with the directions in which copyright law has leaned recently. Maybe Geist’s prediction that copyright will follow environmental issues as one of the next big political issues will actually come true. If so, look to articles such as these as the beginning of this movement.
  • PublicEye. Why You’re Not Seeing Video Of Cory Lidle Playing Baseball. Oct. 12, 2006. Even Black Rock cannot use sports footage in its coverage of news stories because of contract terms and cost. This is evidence of a copyright system gone haywire.
  • Inside Higher Ed. Opening Up Online Learning. Oct. 9, 2006. Earlier this month at at the Educause meeting, three dozen academic publishers, LMS providers, and other vendors agreed on an open standard that will make it possible to move digital content into and out of widely divergent online education systems without expensive and time consuming reengineering. Anyone who regularly deals with learning management systems realizes Common Cartridge is a welcome development in academia.
  • Chris Morris. The Music’s Over for Tower Records. (via Reuters). Oct. 9, 2006. It seems a lot of New York City icons are biting the dust. First we heard about Coliseum Books. Next, it was CBGB. Now, Tower Records finally bites the dust. True, Tower has been teetering on the edge for quite a while, but it’s still a little shocking to us. Goodness, what’s next, The Strand?
  • Taking Back Educational Fair Use. Oct. 8, 2006. Loyola law professor Brett Frischman posits some interesting points about why academia increasingly is unable to use the fair use defense, but we think his analysis is way too academic. One important omission with Frischman’s preliminary thought is that it does not take into account the presence (predominance?) of the license, and its effect in eliminating exceptions that are available under the Copyright Act. We plan to publish on this rather soon, but suffice it to say now that in a digital environment, copyright is dead, and the license is the law of the land.
  • Tank McNamara. Oct. 7, 2006. The popular comic addresses copyright within the sporting context.

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Written by sesomedia

10/23/2006 at 10:00

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