August 18, 2004

Another Copying Fight In The Reality TV Ring [7:47 pm]

Lots of people are enjoying this tale: Rival TV Boxing Shows Square Off in California Court

The dispute between the creators of rival boxing reality shows grew nastier yesterday when producers of “The Contender” on NBC sought a temporary restraining order that would prevent the Fox network from broadcasting its version, “The Next Great Champ.”

Relying on a report written by the former chairman of the California State Athletic Commission that accuses the Fox show of numerous violations of state boxing regulations, the producers of “The Contender,” DreamWorks SKG and Mark Burnett Productions, asked a judge in California Superior Court to prevent “The Next Great Champ” from using film of any match that was not legally promoted.

[...] Yesterday’s legal maneuver takes the fight to a new level. It is also an attempt to find a different way to challenge the increasing practice of copying concepts for reality shows. In several court challenges in the recent years, networks failed to convince courts that reality ideas could be protected as intellectual property.

This also gives me a chance to dig out one of the many articles I noted while on vacation, but haven’t found the time to get posted — a look at the scope of the issue: In Reality TV, Is It Thievery or Flattery?

Fox’s strategy of copy and conquer - its boxing reality program, “The Next Great Champ,” will beat NBC’s series, “The Contender,” to the air by two months - has infuriated its rivals as well as some agents and producers. They see recent events as a clear indication that the business of reality television, where ideas and formats are apparently not protectable by any court or code of conduct, is only going to get crazier, uglier and down-in-the-dirt nastier.

“It’s pretty sad that unethical behavior can deny people their intellectual property,” said Stephen McPherson, the president of ABC Entertainment, whose struggling network could lose a potential hit because of Fox’s success with “Trading Spouses.”

He said he was not surprised by the initial strong ratings for “Trading Spouses,” saying that Fox had benefited from ABC’s extensive promotions for “Wife Swap,” leading viewers to think they were tuning in to the ABC show. “I don’t think - I know - people were confused,” Mr. McPherson said. “The only thing I underestimated was how unethical and desperate my competitors are.”

Fox has heard the charges all summer. Gail Berman, the president of Fox Entertainment, rejected the accusation that Fox copied programs but acknowledged that it did a spin on the ideas of others. “Spin is a fair assessment,” she said, “That’s a word I can endorse.”

Fox’s defense has been to point to a history of rampant imitation of ideas in television. Fox executives call the network’s behavior business as usual and dismiss its rivals as whiners.

Others call Fox’s actions far from business as usual, noting that because of the unscripted nature of reality programs - everything rests on a format - a network can, for the first time, filch ideas before the originals can get on the air.

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Lesson: Don’t Cross Microsoft [6:59 pm]

Two strikes for Eolas

The U.S. Patent and Trademark Office has handed Microsoft a second victory in its dispute with Eolas, rejecting browser patent claims that could roil the Web if upheld.

The patent in question, owned by the University of California and licensed exclusively to its Eolas software spinoff, describes the way a Web browser opens third-party applications, or “plug-ins,” within the browser.

In the second of what are projected to be three office actions on the case, the Patent Office rejected all 10 patent claims under review, according to a source familiar with the document.

And, maybe, just maybe, the Patent Office will use this to demonstrate why they need more resources so that they can think a lot harder when they review patent applications — or even revisit the notion of “method” patents.

See also Microsoft wins another Eolas web patent battle and Slashdot’s Two Strikes for Eolas Plug-In Patent

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A Pro-DMCA Perspective [6:20 pm]

Prof. Solum points to First Amendment Speech and The Digital Millennium Copyright Act: A Proper Marriage by Raymond Nimmer. The paper is quite a demonstration of how far one can get if one can manage to define the problem in entirely legal terms, ignoring the fundamental issue of access. The abstract is certainly striking, but this paragraph from the conclusion is sufficient to suggest the tortuous path that is traveled:

The creation and dissemination of copyrighted works is typically speech activity. Thus, the core purpose of the DMCA is pro-speech. As content-neutral regulation, the constitutional test of validity for DMCA is whether substantially more speech is regulated than is necessary to achieve the governmental purpose. In fact, as we have seen, most of the conduct affected by DMCA is not speech.

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NYTimes & IICA/INDUCE [1:41 pm]

This summer cold has clearly taken a lot out of me; I missed this NYTimes editorial yesterday! In-House Advice [via Ernest]

The real test should be the economic efficiency of the marketplace - finding a way to balance the social benefits of a technology, like videocassettes, against the fears of copyright-owning movie studios.

The best way to accomplish that is to remember that copyright is an instrument “for allocating creative resources,” not “an absolute, inviolable set of rights to which either creators or consumers are entitled.”

That is not how Congress usually thinks about it. A good example is the so-called Induce Act, now under consideration, which would make it a crime to aid or induce copyright violations like illegal file-sharing.

But the bill is so loosely worded that it could threaten a host of legal information-sharing practices and technologies. That includes everything from the iPod to automatic online translation. Critics claim, with reason, that this overreaching bill would have deeply chilling effects on technological innovation.

Congress seems instinctively to side with those who instinctively want to put a chokehold on new technologies. It’s always easier, after all, to try to protect what appears to be “an absolute, inviolable set of rights” than it is to find equitable new ground to stand on in the rapidly shifting debate over digital copyright.

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Tim Wu at Lessig Blog on Digital Radio [10:02 am]

Digital Audio & the Copyright Gap

[I]n the country that invented both the radio station and the transistor, digital radio is stuck. Among other problems, the FCC is contending with the RIAA’s arguments that, absent proper controls, digital radio would be “the perfect storm” for the music industry. Digital radio, the RIAA believes, must be prevented from causing the “enormous damage wrought by peer-to-peer piracy.” On Monday, the RIAA filed a new letter reiterating that the “threat” from digital radio is “real and imminent.”

Even if digital radio survives all of this, digital broadcasters would begin at an immediate disadvantage over those who stay analog. A 1995 Act mandates that digital broadcasters pay an additional license fee (for sound recording copyrights) above and beyond the usual fees due ASCAP or BMI. That puts digital broadcasts, the technology of the future, at a cost disadvantage. And who gets those extra fees? You guessed it — the RIAA.

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BPI Worried About EU Copyright Term [9:55 am]

BPI Position On Term Of Copyright (BPI’s press release)

European sound recordings are currently only protected by copyright for 50 years. By contrast the work of authors, songwriters and composers - the song rather than the recording - is protected for 70 years after their death, a total perhaps of 120 or 130 years To make things more complicated, recording copyrights also differ around the world; for example, 70 years in Brazil and (soon) Australia, and 95 years in the US.

As of January 1 2005, recordings made on or before December 31 1954 will no longer be protected by UK copyright law. Record companies, artists and performers whose work falls into the public domain will no longer have the right to earn income from their work.

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A Look At IP and China [9:26 am]

From Electronic Business: Fighting for your rights

Electronics executives must understand from the get-go that IP is viewed differently in China than in the U.S. In the U.S., IP is sacrosanct, something a company owns in the same way it owns its manufacturing equipment. That viewpoint reflects centuries of tradition; the first English patent was filed in 1449. By contrast, Chinese culture tends to view IP as something that contributes to the public good and whose impact increases in proportion to the degree to which it’s dispersed. China didn’t have patent laws until 1990, and those were added to the legal code because of international pressure rather than due to an internal sense of legal necessity, according to Usha Haley, a business school professor at the University of New Haven and author of The Chinese Tao of Business: The Logic of Successful Business Strategy (John Wiley & Co., 2004). “The entire idea of intellectual property is alien to Chinese culture,” she insists.

This bias against IP ownership creates a business climate in which IP theft is simply not considered a serious breach of business ethics. In fact, foreign ownership of IP is sometimes viewed in China as a form of neocolonial oppression. Haley cites the example of a popular business book recently published in China that characterizes Microsoft’s profit margins—which it gets by controlling its vital IP—as a form of stealing from the Chinese people. The Chinese government’s insistence that foreign investment take place through joint venture partnerships is another manifestation of this anti-IP attitude. “The government does not want foreign companies dominating in China,” says James Mulvenon, deputy director of the center for Asia-Pacific policy at the RAND think tank. “Instead, the government wants key technologies transferred to local Chinese firms.”

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Real Seems To Be Losing The PR Battle [9:17 am]

At least for the moment (see this earlier posting): Real anti-Apple poll swamped by pro-Apple posters

Real Networks last night yanked an online petition demanding Apple open up its FairPlay DRM technology after Macatistas swamped the web site with anti-Real messages.

The petition soon returned, however - minus the opportunity for users to post comments.

[...] Well, as Apple’s iPod sales have demonstrated, the Mac maker’s current policy won’t hinder sales. But it does hinder the opportunities open to the likes of Real and Napster to sell music, which it why we’ve always argued that Real’s motivation is far from philanthropic.

See also this p2pnet roundup; CNet’s title shows where they stand: Apple zealots slam Real’s iPod campaign

And Derek points out something that I missed — Public Knowledge is supporting Real?

Later: Slashdot - Real Feels iTunes Backlash

Much later: Wired News’ Is Real a Real Hypocrite? and Ernest’s followup, Apple vs. Real: The Debate Continues

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Fox In Charge Of The Henhouse [9:09 am]

Ernest notes that Senators Put Copyright Office in Charge of Finding INDUCE Act (IICA) “Consensus” by Sep 7. From the cited Hollywood Reporter article, Senators seek consensus from P2P parties on new law [pdf]

In a letter signed by four top-ranking senators, the lawmakers ask Register of Copyrights Mary Beth Peters to schedule high-level meetings with copyright owners such as the record companies and movie studios, people who run peer-to-peer networks and technology companies in an effort to build a consensus for the legislation.

Ernest notes the fawning that went on at the IICA Hearing. However, as this article notes, the proponents of the IICA are trying to shift the debate into a discussion of how to fix the limitations of the provision, rather than discussing whether the act is a good idea at all.

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I Have To Apologize [8:55 am]

I’m not sure what’s up with the OS X Server MySQL server (and/or its relationship with PHP), but it seems to get tragically slow after it runs a few hours - meaning that this page can take an inordinate time to load!! It’s not Apache, that’s for sure!

I’ll dig out my MySQL books and see what I can do about this — and sorry for the mess!!

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Something To Think About [8:52 am]

From BusinessWeek Online: Howard Rheingold’s Latest Connection [pdf]

Q: Where do you see the social revolution you’ve been talking about going next?

A: It’s too early to say. The question is: What does it point toward? Some kind of collective action…in which the individuals aren’t consciously cooperating. A market is a great example as a mechanism for determining price based on demand. People aren’t saying, “I’m contributing to the market,” [they say they're] just selling something. But it adds up.

Q: Where do you see the social revolution you’ve been talking about going next?

A: It’s too early to say. The question is: What does it point toward? Some kind of collective action…in which the individuals aren’t consciously cooperating. A market is a great example as a mechanism for determining price based on demand. People aren’t saying, “I’m contributing to the market,” [they say they're] just selling something. But it adds up.

[...] Q: What will all those trends produce ultimately?

A: All these could dramatically transform not only the way people do business, but economic production altogether. We had markets, then we had capitalism, and socialism was a reaction to industrial-era capitalism. There’s been an assumption that since communism failed, capitalism is triumphant, therefore humans have stopped evolving new systems for economic production.

But I think we’re seeing hints, with all of these examples, that the technology of the Internet, reputation systems, online communities, mobile devices — these are all like those technologies…that made capitalism possible. These may make some new economic system possible.

Q: If so, it’s a good bet not all companies will be happy with the changes.

A: New digital technologies are creating a crisis in the business models of the companies that depend on having a monopoly on distribution. Look at MP3 blogs: We’re now seeing bands that are saying, “Please pirate my material. Here it is.” They make money from that. They get bookings from that. They build an audience on that.

Via Slashdot’s The Next Social Revolution?

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Ringtone Royalties Hit the States [8:27 am]

A hot topic and a significant revenue stream in the EU is finally getting US market attention: The Guy From Green Day Says He Has Your Mother on the Cellphone

Ring tones, the synthesized melodies that are programmed to play when a cellphone rings, have proved to be such a lucrative side business for cellphone companies that record labels in the United States have decided they want a piece of the revenue. Warner Brothers Records in the last few days began showing commercials on MTV and MTV2 for a set of voice-greeting ring tones recorded by members of the punk band Green Day. Executives in the music and cellular industries said it was the first time a record label had paid to run its own ads for ring tones in the United States market.

[...] Tom Whalley, the chairman of the Warner Brothers label, part of the Warner Music Group, said that advertising the phone tones was just one part of his label’s shift from mere disc factory to marketer of lifestyle products.

“We’re in the culture with each and every one of our artists,” Mr. Whalley said. “The ring tone can help connect that fan to the artist. If it’s done with taste, I don’t think it crosses that line where it’s commerce over art.”

Taste is not the first notion that springs to mind when sampling the Green Day ring tones, which cost up to $2.49 each. They include the band members belching and cursing, as well as offering witty ripostes. “Pick up the phone!” demands Mike Dirnt, the band’s bassist, in one. “It’s your mother. I know. She’s with me.”

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