the joys of definitions: For a 3rd Time, Two Apples Meet in Court

Apple Computer will meet the Beatles’ Apple Corps in court this week in London, where a judge will determine whether Apple Computer’s iTunes online music service violates a 1991 agreement between the two companies that, the Beatles’ Apple claims, blocked the computer maker from selling music.

Apple Corps, which represents the Beatles’ business interests and markets their post-1968 recordings on disc, wants the computer firm to stop using the Apple trademark to sell recordings online, along with unspecified damages. Apple, the maker of Macs and iPods, said the 1991 agreement permitted using the Apple name to sell online data transfers, which are what downloaded songs amount to.

The judge hearing the case, Justice Edward Mann, is an iPod user, but neither side has asked him to recuse himself.

Too bad it’s structured so narrowly — the real question is what we were thinking when business method and software patents were created: Justices Will Hear Patent Case Against eBay

The United States Supreme Court will hear arguments on Wednesday in a protracted, closely watched patent case that pits a small company called MercExchange against eBay, the online auction and marketplace.

While the grounds in the case appear narrow — the court will reconsider the rules under which courts grant injunctions against a company found to be infringing another’s patent — it has attracted enormous attention because of the public rancor between the two companies, the supporters enlisted by both sides and the growing issue of how large technology companies deal with the constant threat of patent challenges.

The patent in question surrounds the “Buy It Now” feature that eBay uses to allow processing of transactions for the Web site’s fixed-price purchasing option.

The Supreme Court will decide whether a federal appeals court was correct in reversing a district court’s decision to deny an injunction against eBay’s use of the feature. In doing so, it will reconsider a precedent from 1908, which suggested that injunctions were always an appropriate remedy for patent infringement.

[...] The case has attracted an unusual amount of public attention in part because of recent attempts by large corporations to change patent law to lessen the threat posed by so-called nonpracticing patent holders.

“Large companies like Microsoft and Intel get hit by weekly patent infringement suits, the majority from smaller entities who may not be practicing the inventions,” said Dennis Crouch, a patent attorney in Chicago who has been following the MercExchange case closely. “The big guns behind eBay are trying to weaken the power of a patent and lessen the ability of a patent holder to obtain an injunction.”

In his decision to withhold the injunction, the district court judge noted that MercExchange “exists solely to license its patents or sue to enforce its patents, and not to develop or commercialize them.”

NYTimes OpEd: Editorial: EBay at the Bar

More broadly, granting MercExchange an injunction is not in the public interest. The patent office has been too willing to grant patents, especially technology patents, when applicants attempt to stake a legal claim on some basic process or relationship rather than on a genuinely new innovation. If the courts now give patent holders the right to nearly automatic injunctions against companies that infringe patents, patent holders will have the power to extract windfall payments from companies that are caught in their nets.

That would ultimately be bad not just for the companies, but for all of us. The Internet, and scientific progress in general, would suffer if abusive patent litigation was allowed to sap the resources of entrepreneurs and discourage innovation. If a patent has been infringed, courts can make the infringer pay up without bringing parts of the Internet and the technology world to a halt.

From Wired News: eBay Heads To High Court; Slashdot: U.S. Supreme Court Hears eBay Case Wednesday

An anticipated Federal Election Commission decision: Agency Exempts Most of Internet From Campaign Spending Laws

Should be interesting to see how the pricing negotiations go on this — particularly since ad placments may well be inescapable: Cable Negotiates to Offer Instant Reruns (for a Fee)

The nation’s second-largest cable operator has initiated talks with the four biggest broadcast networks — CBS, ABC, Fox and NBC — about testing a service that would give viewers access to top programs, as rated by Nielsen Media Research, soon after their broadcast.

A video-on-demand service based on the shifting whims of TV viewers would represent the first effort to package and sell television programs in a way that mimics the “wisdom of crowds” approach, which has become common on the Internet and underpins the way search engines like Google rank results.

Since their establishment a half-century ago, Nielsen ratings have mainly been used as a measure of the popularity of a program, and therefore its attractiveness to advertisers. The concept under discussion is aimed at making what was on TV last night as compelling to viewers as what is on tonight.

[...] One approach being contemplated, one participant said, would offer viewers on-demand access to programs ranked in the top 20 (over a period of time to be determined) for a fee of $10 a month, on top of the regular bill. A price for an individual program may also be contemplated, another person close to the talks said. “There have been high-level discussions, but no definitive decisions or deals,” Mr. Harrad said.

Such a service would be the latest in a string of new video-on-demand services for consumers who do not use the increasingly popular digital video recorders or who did not record a particular program and became interested in watching it as a result of its ratings success.

A test of Linus’ Law? Or an excuse for a free-for all? Iraqi Documents Are Put on Web, and Search Is On

All the documents, which are available on fmso.leavenworth.army.mil/products-docex.htm, have received at least a quick review by Arabic linguists and do not alter the government’s official stance, officials say. On some tapes already released, in fact, Mr. Hussein expressed frustration that he did not have unconventional weapons.

Intelligence officials had serious concerns about turning loose an army of amateurs on a warehouse full of raw documents that include hearsay, disinformation and forgery. Mr. Negroponte’s office attached a disclaimer to the documents, only a few of which have been translated into English, saying the government did not vouch for their authenticity.

Another administration official described the political logic: “If anyone in the intelligence community thought there was valid information in those documents that supported either of those questions — W.M.D. or Al Qaeda — they would have shouted them from the rooftops.”

But Representative Peter Hoekstra, the Michigan Republican who is chairman of the House Intelligence Committee and who led the campaign to get the documents released, does not believe they have received adequate scrutiny. Mr. Hoekstra said he wanted to “unleash the power of the Net” to do translation and analysis that might take the government decades.

“People today ought to be able to have a closer look inside Saddam’s regime,” he said.

Mr. Hoekstra said intelligence officials had resisted posting the documents, which he overcame by appealing to President Bush and by proposing legislation to force the release.

The timing gives the documents a potent political charge. Public doubts about the war have driven Mr. Bush’s approval rating to new lows. A renewed debate over Saddam Hussein’s weapons and terrorist ties could raise the president’s standing.

Slashdot: Open-Government Technique Used on Iraqi Documents

Later: NYTimes’ Editorial: Surfing for W.M.D. on the Web

Much later: Salon is suspicious of some of the content — Bush’s bogus document dump [pdf]

Once a Maverick, Google Joins the Lobbying Herd

In doing so, Google provides another example of how Internet companies, no matter how unconventional their roots or nonconformist their corporate cultures, increasingly find themselves wrestling with the same forces in Washington that more traditional industries have long faced. Google’s executives consider the moves necessary as they achieve a prominence that allows them to elbow their own interests onto the political stage.

“We’ve staked out an agenda that really is about promoting the open Internet as a revolutionary platform for communication,” said Alan Davidson, brought on board less than a year ago as the company’s policy counsel to set up offices in the Penn Quarter area of Washington. “It’s been the growth of Google as a company and as a presence in the industry that has prompted our engagement in Washington.”

[...] “They are brilliant engineers,” said Lauren Maddox, a principal in the bipartisan lobbying firm Podesta Mattoon that was hired by Google last year. “They are not politicians.”

[...]The big Internet companies, including Google, are bracing for an uphill struggle with lawmakers and the titans of the telephone and cable industries over whether fees should be charged for heavy data traffic, like video streaming over broadband width.

“Our belief is that this is going to be an issue of great concern for consumers,” Mr. Davidson said. “The telephone companies have been lobbying these committees for generations. Our industry is very young.”

80 Eyes on 2,400 People - Los Angeles Times [pdf]

Now the residents of this far-flung village have become, in one sense, among the most watched people in the land, with — as former Mayor Freeman Roberts puts it — “one camera for every 30 residents.”

Some don’t mind, but many others are furious and have banded together to force the city to take the cameras down.

“You better smile. You’re on camera,” says Roberts, 64, a barge captain. Roberts himself isn’t smiling as he points out a single camera on the side of a building. The camera is aimed toward an alley.

“It’s amazing, isn’t it?” he says. He drives around town in his pickup, spying on the cameras that he believes are spying on him. “Everywhere you look, there’s one looking at you.”

An LATimes piece on embracing the future: Film projection [pdf]

In its obsession with quarterly earnings, the industry has failed to notice that movie lovers — led by young males, once the most loyal members of the tribe — are being transformed into media consumers, siphoned away from movie theaters by a growing assortment of more involving electronic toys. If you need more evidence, read the fascinating recent survey conducted by OTX, a leading movie research firm that found that under-25 males, the earliest adopters of new technology, saw 25% fewer movies in the summer of 2005 than in the summer of 2003. Even worse, young males now rate theatrical movies No.7 among weekend activities, behind everything from surfing the Web and playing computer games to (ouch!) going out to dinner.

“There’s an attitudinal shift in our culture,” says Kevin Goetz, who heads OTX’s West Coast media and entertainment division. “In the last 10 years there’s been a 500% increase in what the average digital consumer spends on entertainment, but that increase is going to iPods, cellphones and computer games, not more theatrical moviegoing. People have so many other things to do with their time that they view the prospect of going to the movies very differently than 10 years ago.”

[...] But studios can’t simply announce that they’re in the digital business. They have to adopt the DIY sensibility of young consumers who want to put an individual imprint on content. For young Web devotees, the most absorbing art right now is not movies but “mash-ups,” which began as idiosyncratic remixes of two different songs but have now made the leap to video, where “The Shining” trailer has been reinvented as a feel-good movie and “Sleepless in Seattle” recast as a stalker film.

Savvy studio marketers have jumped into the fray. New Line Cinema has encouraged fans to mash up its trailer for the film “Take the Lead,” with the results posted on YouTube and other sites. “Snakes on a Plane,” another upcoming New Line film, has generated plenty of buzz on fan-based sites as a result of a movie poster Photoshop contest at Fark.com and a Tagworld.com promotion that gives would-be recording artists a shot at movie soundtrack spot.

Young people still love movies. But with the exception of a steadily shrinking number of Big Event films, they don’t have an overriding desire to see them in a theater. And they aren’t willing to wait until the studios have cashed in their DVD profits. If it takes months for a movie to come to their preferred medium, they’ll find other content to absorb. Like it or not, this is a generation trained to access media when and how it wants it, not when it best fits the studio’s profit picture.

Fans put satellite radio on cellphones, draws fire [pdf]

But as the two satellite radio providers carefully ponder their mobile strategies and chew over business plans, a small group of technically savvy devotees are taking matters into their own hands.

Grassroots software and Web developers have found ways to tap into XM Satellite Radio Holdings Inc. (Nasdaq:XMSR - news) and Sirius Satellite Radio Inc.’s (Nasdaq:SIRI - news) Web sites to stream music channels on to Windows-powered smartphones and other devices.

Most have given their work away for free to other fans since late last year — running into conflict with the wireless business strategies of the satellite radio providers.

Music: Classical, Now Without the 300-Year Delay

Both orchestras are part of a new initiative by the Universal Music Group built on its Deutsche Grammophon and Decca labels. Christopher Roberts, president for classics and jazz for Universal Music Group International, says that DG Concerts and Decca Concerts will, between them, ultimately service about 10 orchestras in the United States and abroad. Negotiations are under way with orchestras in London, Paris and three German cities. The current intention is for each orchestra to offer, on average, four concerts a season for digital downloading, and one of the four would also be released on CD.

The project reflects a seismic shift in the way music is being discovered, distributed and heard. In 2005, Nielsen SoundScan reports, sales of digital tracks for downloading to computers or portable music players soared to 353 million units in the United States, up 150 percent from 2004. Downloads of digital albums increased 194 percent, to 16 million. Although classical labels arrived late to the party, they, too, are experiencing growth in this area. While sales of classical CD’s in the United States decreased by 15 percent last year, SoundScan reports, digital downloads of classical albums grew by 94 percent. More significant, several labels are finding that the classical share of the download music business is about 7 percent, more than twice the share in physical retail outlets.

For the classical music industry, weary of alarmist talk about the graying of its audience, the demographics are promising.

Why education remains critical: Op-Ed Contributor: Searching for Dummies

Many students seem to lack the skills to structure their searches so they can find useful information quickly. In 2002, graduate students at Tel Aviv University were asked to find on the Web, with no time limit, a picture of the Mona Lisa; the complete text of either “Robinson Crusoe” or “David Copperfield”; and a recipe for apple pie accompanied by a photograph. Only 15 percent succeeded at all three assignments.

Today, Google may have expedited such tasks, but the malaise remains. In the February newsletter of the American Historical Association, the reference librarian Lynn D. Lampert notes the prevalence of “ill-conceived (or often nonexistent) student research practices.” As another university librarian, Pamela Martin, observed, “Google’s simplicity and impressive search prowess trick students into thinking they are good all-around searchers, and when they fail in library searches, they are ashamed as well as confused.”

Higher education is fighting back. Librarians are teaching “information literacy” and establishing alternative Web indexes. Graduate students, in the front lines as teaching assistants, are starting to discuss joining Wikipedia rather than fighting it, as many instructors still, quixotically, do.

With Broadband, the PC’s Siren Call Is Tough to Resist

Just three short years ago — an eternity when you consider the explosive growth of the online juggernaut — regular Internet users already spent 25½ hours a month sitting at the computer, the Nielsen/NetRatings study says. By now that has shot up to 30½ hours — fully an hour a day. (It’s a wonder that people still also have time to watch the vast quantity of television they do. When do they wash the floor? Practice piano? Do laundry?)

Why so much time at the PC? Surely because, as Nielsen/NetRatings’ figures also show, broadband use has exploded, to 68 percent of Web users today from 33 percent three years ago.

Under New Management: Here’s an Idea: Let Everyone Have Ideas

At Rite-Solutions, the architecture of participation is both businesslike and playful. Fifty-five stocks are listed on the company’s internal market, which is called Mutual Fun. Each stock comes with a detailed description — called an expect-us, as opposed to a prospectus — and begins trading at a price of $10. Every employee gets $10,000 in “opinion money” to allocate among the offerings, and employees signal their enthusiasm by investing in a stock and, better yet, volunteering to work on the project. Volunteers share in the proceeds, in the form of real money, if the stock becomes a product or delivers savings.

Mr. Marino, 57, president of Rite-Solutions, says the market, which began in January 2005, has already paid big dividends. One of the earliest stocks (ticker symbol: VIEW) was a proposal to apply three-dimensional visualization technology, akin to video games, to help sailors and domestic-security personnel practice making decisions in emergency situations. Initially, Mr. Marino was unenthusiastic about the idea — “I’m not a joystick jockey” — but support among employees was overwhelming. Today, that product line, called Rite-View, accounts for 30 percent of total sales.

“Would this have happened if it were just up to the guys at the top?” Mr. Marino asked. “Absolutely not. But we could not ignore the fact that so many people were rallying around the idea. This system removes the terrible burden of us always having to be right.”

Television: Cubicle Dwellers’ Funniest Home Video

But many of the videos on “Web Junk” come from viewers — creative people using affordable digital video cameras and desktop software to shoot and edit and post their own clever shorts. “Saturday Night Live’s” rap sketch “Lazy Sunday,” perhaps the most widely seen viral video of late, has already inspired numerous parodies, including “Lazy Monday” (featuring two 11-year-old Chicago boys lip-synching to the original), “Lazy Muncie” (where the honor of the Midwest is defended) and “Lazy Saturday” (the West Coast answer to “Lazy Sunday”), which was featured on Episode 4 of “Web Junk 20.”

It’s an updated version of the long-running series “America’s Funniest Home Videos,” but with a twist: “The distinction,” said Mr. Graden, “would be that I would call ‘America’s Funniest Home Videos’ accidentally created, and these are often purposely created by people to express their own sense of comedy and commentary.”

[...] And the more new shows there are, the more opportunities for the nation’s grass-roots filmmakers to have their material seen. “The technology has opened up in a massive way so that everyone in some way or another is potentially the next great viral auteur,” said Andrew Cohen, Bravo’s vice president of production and programming. “I think that’s great. I just don’t want anyone to hurt themselves lighting themselves on fire or jumping off a building.”

A good fight pending here: Newman backs US image rights bill

[Paul] Newman is among a group of actors backing a bill banning the use of a person’s image or voice without consent for up to 70 years after their death.

Newman, who lives in the state [of Connecticut], told a state assembly hearing that technology meant he could appear in “a whole movie” without his permission.

Opponents fear the bill will restrict filmmakers’ rights of expression.

Universal to Try Film Download Service [pdf]

Universal Pictures plans to allow British movie fans to download “King Kong” and other big-name Hollywood movies in a service that offers a glimpse of the future of online entertainment.

As part of the deal with Lovefilm, the European equivalent of online movie rental service Netflix Inc., customers will be able to download permanent digital copies of films to watch on their computers and certain portable media devices. They also will receive a DVD copy in the mail.

[...] Although limited to a single studio and 35 titles, the service marks a turning point for Hollywood, which has been reluctant to sell permanent downloads of major films for fear of contributing to Internet piracy or cannibalizing DVD sales.

“This is a no-brainer,” said Josh Bernoff, an analyst with Forrester Research in Cambridge, Mass. “Every studio really should be doing this in every geography.”

The download-to-own experiment could help determine whether consumers will pay a premium for the convenience of getting movies in multiple formats. Universal’s service costs about $34.72 per movie, compared with $24.30 for a regular DVD.

The headline is nice, but the content is ugly: Martin Says FCC Has Authority To Enforce Net Neutrality

However, Martin also added that he supports network operators’ desires to offer different levels of broadband service at different speeds, and at different pricing — a so-called “tiered” Internet service structure that opponents say could give a market advantage to deep-pocket companies who can afford to pay service providers for preferential treatment.

While Martin said that consumers who don’t pay for higher levels of Internet service shouldn’t expect to get higher levels of performance, he did say in a following press conference that “the commission needs to make sure” that there are fair-trade ways to ensure that consumers “get what they are purchasing.” When asked how consumers could measure service performance levels, Martin said that public Web sites already exist that let users measure their connection speeds.

Inventing a new system [pdf]

High-tech companies are increasingly running into stop signs waved by patent holders who claim the rights to some element of the companies’ products or services. One example is Research in Motion Ltd., maker of the popular BlackBerry wireless e-mail device, which was forced to pay more than $600 million in a patent infringement suit — despite the very real possibility that the patents on which the suit was based will prove to be invalid. The BlackBerry case is Exhibit A for patent reformers, who want to give companies a better chance to challenge patents before they go to court and to reduce the likelihood that federal judges will shut down services that have some infringing elements.

But the tech industry and its allies face powerful opponents on Capitol Hill, led by pharmaceutical and biotechnology companies. Like high-tech firms, drug makers rely on innovation and intellectual property to generate profits. But tech products frequently involve dozens, if not hundreds, of patented parts and processes. The tech world is a thicket of patents, and companies frequently find themselves on the receiving end of lawsuits by other inventors.

Patents in the pharmaceutical world are more straightforward, and big drug makers typically are plaintiffs, not defendants, in patent suits. They’re resisting proposals to let the patent office second-guess patents years after they’re granted and to reduce patent holders’ leverage against infringers.

Given the lobbying might of the industries involved, Congress won’t be able to make any major improvements to the patent system until the two sides are closer than they are today.

Bands are achieving unprecedented hype [pdf]

Hype is as old as entertainment. In the pop music business, generating buzz has largely been the domain of a record label’s marketing department and involved a time-tested triptych of tools: radio, reviews, and video rotation. As the alternative nation grew, intrepid fans traded recordings of favorite underground bands, generating word-of-mouth campaigns that turned groups like Pavement into cult stars.

Today, thanks to the confluence of Internet file-sharing technology, online blogs, and social networking websites such as MySpace, the grassroots community has swelled, quite literally, to global proportions. Instead of talking up bands and handing out tapes to friends in your town, music enthusiasts send the word, and the MP3 files, to cyber-pals around the world.

All Arctic Monkeys did was post some demos on their website and make them available for free download. By the time the band members signed a deal with the English indie label Domino last year, their audience was already huge. ”Whatever People Say I Am, That’s What I’m Not,” released in the UK in January, broke a record for first-week sales in Britain.

This is good news in so many ways. After decades of being force-fed label-sanctioned product via corporate-approved radio, music consumers are more than ready to become programmers of their own playlists. And it’s nothing short of a revolution in terms of opportunities for independent artists. The Boston-bred, Brooklyn- and Philadelphia-based group Clap Your Hands Say Yeah sparked a full-blown blog-based frenzy (and, in turn, remarkable sales figures) for last year’s self-released, self-distributed, self-promoted debut album via the Internet.

No packaging. No pitching. No payola. The notion of a band finding a fan without the machinations of middlemen inspires utopian visions of art uncorrupted, a power-to-the-people model of music making and consuming. But while Web-generated hype may be more credible than the carefully crafted fluff coming out of boardrooms, it isn’t without its pitfalls. [...]

Although the thrust of the article is about decency, you have to wonder: Regulating like it’s 1969 [pdf]

New FCC Commissioner Deborah Taylor Tate encapsulated the agency’s surreal worldview when she said she was motivated to crack down on shows because she had received hundreds of e-mails recently from people complaining about what they had been “subjected” to on TV. Although local broadcasts are free, no one is “subjected” to them, and the vast majority of viewers have increasingly sophisticated ways to screen out shows they don’t want their kids to watch. Virtually every household has a TV set with a V-chip — a crude but workable technology for limiting what children watch. And the more than 80% of U.S. homes with cable or satellite have the option of using the screening tools offered in set-top boxes.

As programs move to new venues and time slots, much of it at viewers’ control, it’s irrational to think that the feds can shield children by cracking down on what local broadcasters show. The commission should stop trying to censor broadcast programming and focus instead on helping parents understand and use the tools available to police their television sets.