July 24, 2006

Fighting Over Choreogaphy, and More [5:44 pm]

Pilobolus Suffers Bitter Breach Over Rights to Choreography

Ms. Chase, who was one of the company’s four artistic directors and whose Dartmouth College dance class gave birth to the company 35 years ago, broke away last fall after a bitter exchange of letters by lawyers.

Ms. Chase said that she was cast out by a new, corporate-minded executive director and board after three decades of service, and was denied ownership of the dances she created. “It was artistic differences and sort of a mean-spirited power grab by the board,” Ms. Chase added.


Ms. Chase choreographed five pieces, alone or in collaboration, appearing on this season’s Joyce programs. She said that she asked the company not to perform the works and to “dare to tell the world what you’ve done to the mother of Pilobolus.”

Mr. Kubovy declined. “She does not own that work,” he said, “nor does she have the right to decide whether or not we perform it.”

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Some YouTube News Analysis [11:02 am]

YouTube dances the copyright tango

“We have been told by many dozens of content owners that we are by far the most cooperative and responsive of the video-sharing sites,” Zahavah Levine, YouTube’s general counsel, said in an e-mail to CNET News.com.

So who’s right? For now, YouTube is standing on solid legal ground, according to several legal experts who said that YouTube is protected–under the same federal law that covers other online services such as Craigslist, eBay and Yahoo’s GeoCities–from liability for copyright violations its customers may commit.

But intellectual-property attorneys also see areas where YouTube risks butting into the DMCA. For example, the law specifically prohibits a Web site from profiting from copyright material. Recently, ads have begun appearing on YouTube alongside individual video clips.

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July 23, 2006

Speculations on Community vs. the Market [7:50 pm]

This one is bound to get tongues wagging, but there’s an important idea here: On the Contrary: Long Live the Nanny State

Social structures like close extended families that once constrained behavior have weakened even as widespread affluence has democratized overindulgence. A result is that Americans eat too much, save too little and absolutely guzzle planet-warming fossil fuel, all to our collective detriment. Forget about the national debt. What we have here is a ballooning self-control deficit.

[...] It’s tempting to suggest that government shouldn’t even be in the business of influencing noncriminal behavior, except that it already is and always will be. States advertise their lotteries constantly, for example, although they rarely mention the infinitesimal odds of winning. Internet casinos are usually a better deal.

[...] So there is no point in pretending that government doesn’t influence behavior. Some changes in the government’s own behavior, in fact, could have a big economic payoff by saving us just a little from ourselves. Taxing consumption rather than earnings, for example, would probably bolster savings and reduce consumer indebtedness even while dampening inflation and increasing productivity.

The question is, what would an effective nanny state look like? [...]

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Upsetting the Paradigm [7:46 pm]

Hollywood Clicks on the Work of Web Auteurs

Some people say that the film industry has more to fear than just being late to the party. If the Net begins spawning films — and not simply helping to market or deliver them, as has happened to date — studios’ grip on the business of putting pictures on screens may be challenged.

“Their nightmare is a direct feed from moviemaker to audience,” said Walter Kirn, a frequent contributor to The New York Times who has been serializing his novel “The Unbinding” on www.slate.com and saw one of his other novels, “Thumbsucker,” adapted to the big screen. “Their only trump cards are that they are pools of capital for making expensive things. Otherwise they are cut out of the action.”

Geoffrey Gilmore, director of the Sundance Film Festival, said: “We are probably at a period of greater change than we have had in the past 50 years. The industry is scared about what they should make and how they should deliver it. What’s the next step? Where’s the development coming from?”

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July 21, 2006

A Little More on the Order in the AT&T Suit [5:12 pm]

The courts and NSA snooping

The real significance of the case exceeds the NSA wiretapping story and the use of state secrets. Walker’s opinion is a stirring defense of the role of the courts, even in times of war. Quoting the Supreme Court’s decision in Hamdi v. Rumsfeld, he reminds us, “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” The president and Congress seem to have forgotten that lately; Judge Walker has reminded them.

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Tim Wu on The Long Tail [5:10 pm]

The Long Tail: a dubious theory of everything

Like most good ideas, the Long Tail attaches to your mind and gets stuck there. Everything you take in—cult blogs, alternative music, festival films—starts looking like the Long Tail in action. But that’s also the problem. The Long Tail theory is so catchy it can overgrow its useful boundaries. Unfortunately, Anderson’s book exacerbates this problem. When you put it down, there’s one question you won’t be able to answer: When, exactly, doesn’t the Long Tail matter?

[...] This insight goes only so far, but like many business books, The Long Tail commits the sin of overreaching. The tagline on the book’s cover reads, “Why the Future of Business Is Selling Less of More,” which is certainly wrong or at least exaggerated. Inside we learn about “the Long Tail of Everything.” Anderson’s book, unlike his original Wired article, threatens to turn a great theory of inventory economics into a bad theory of life and the universe.

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OT: Not Getting A Lot Of Work Done This Week [8:47 am]

Because we have a ring side seat for viewing the demolition of the old garage next door to our building.

Still no idea what MIT has in mind for the space, but it’s been the distraction that a bunch of engineering faculty and students can’t resist — watching the use of big machines to execute on the interesting engineering task of destroying a building without harming the surrounding ones. Each machine has a name, as do the operators. (Surprisingly, despite the number of Futurama fans here, the “Crushinator” name has gone unused) Sadly, the hose guys demonstrate that we’re MITers — they’re merely Hose Guy #1 and Hose Guy #2.

They broke one of the crushing claws the second day (they really do look like lobster crusher claws), and today there’s a “veterinarian” out there fixing it.

And to see what machines like these can do to reinforced concrete and brick walls can change your world view forever!

The graphic will take you to an animated GIF — a demonstration of what having a digital camera can do to you once you realize you’re not constrained by film costs.

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More on Virtual Marketing in 2nd Life [7:48 am]

Virtual marketing - pdf

In an office located nearly 2,000 feet above his island estate, Bill Lichtenstein is overseeing construction of the new headquarters for the public radio show “The Infinite Mind.”

None of this actually exists in the real world, but rather in a 3-D virtual world known as Second Life. Here, “The Infinite Mind” is planning to broadcast its weekly one-hour radio program on health and science and create an immersive experience.

“This represents an unprecedented leap forward for broadcasting into virtual reality and 3-D online communities,” said Lichtenstein, president of Lichtenstein Creative Media in Cambridge, which produces “The Infinite Mind.” “There’s a huge potential to bring people together in a dynamic, cost-effective environment.”

When “The Infinite Mind” opens it virtual doors next month, it will become the first regularly scheduled national media broadcast within the increasingly popular 3-D web space. [...]

See also I’m Falling Behind The Curve

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July 20, 2006

EFF Wins First Step In AT&T Wiretapping Case [6:08 pm]

Judge rejects US request on eavesdropping lawsuit - pdf

In a 72-page ruling, Judge Vaughn Walker rejected that request regarding a case that has highlighted the domestic spying program acknowledged by President George W. Bush.

“The very subject matter of this action is hardly a secret,” the U.S. District Court for Northern California judge wrote. “Public disclosures by the government and AT&T indicate that AT&T is assisting the government to implement some kind of surveillance program.”

“The compromise between liberty and security remains a difficult one,” he continued. “But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.”

EFF case page; the ruling

Later: Judge Declines to Dismiss Privacy Suit Against AT&T

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Mixtapes and Marketing [1:49 pm]

Critic’s Notebook: Mixtapes Mix In the Marketing That Fuels the Hip-Hop Industry

Last week, when Johnny Cash topped the album charts with his posthumous CD, “American V: A Hundred Highways,” it was good news for his estate and bad news for record executives everywhere. Bad news, because the CD sold only 88,000 copies in its first week; that’s the lowest sales figure for a No. 1 album since SoundScan started keeping track in 1991. Put another way, Cash’s album would have to keep selling at that pace for half a year to tie the one-week sales record set by ’N Sync in 2000, near the end of the 1990’s CD boom.

But there is at least one CD market that still looks healthier than ever. Only one problem: that market doesn’t officially exist.

Mixtapes — unlicensed collections of new and unreleased hip-hop tracks, invariably distributed on CD’s, despite the name — continue to be an essential part of the hip-hop industry. These days they often seem less like shady contraband, circulated by samizdat, and more like vital extensions of slick marketing campaigns.

[...] “Southern Smoke 27” is a corporate-sponsored CD, even though you can’t legally buy it, which means that it’s probably also an endangered species; the era of major-label bootlegs can’t last forever. But then, mixtapes aren’t supposed to last forever. Like magazines, which they resemble in both price and energy, mixtapes are intended to be perishable. (Although the best ones, like the best magazine issues, hold up well.)

And despite their relentless hunger for novelty, mixtapes have always been a trailing indicator of the music industry. In the late 1980’s, as CD’s were booming, mixtapes were literally mixed cassette tapes. Now mp3’s are booming, and mixtapes are on CD. And you don’t have to be a nervous record executive, sweating over the latest SoundScan numbers, to know that no CD boom lasts forever.

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WaPo Business Press Columnist on RIAA Overreaching in XM Case [10:01 am]

A Sound Marketplace For Recorded Music - pdf

Here in Washington, there is nothing more amusing than watching business interests work themselves up into a righteous frenzy over a threat to their monopoly profits from a new technology or some upstart with a different business model. Invariably, the monopolists (or their first cousins, the oligopolists) try to present themselves as champions of the consumer, or defenders of a level playing field, as if they hadn’t become ridiculously rich by sticking it to consumers and enjoying years in which the playing field was tilted to their advantage.

A recent example is the political and legal attack mounted by the music-recording industry against the upstarts of satellite radio.

[...] Look, I’m still waiting for my kids to give me an iPod and teach me how to use it. My taste in music pretty much stopped with James Taylor. But if the goal here is to encourage innovation and competition in the market for recorded music, I can assure you that lawsuits and lobbying battles are a lousy way to go. The better strategy is to prune overgrown copyright protections, deregulate the industry and let the marketplace set prices and decide which companies and technologies and business models survive.

An online discussion (pdf) with the Washington Post columnist, Steven Pearlstein. Two exchanges:

Vienna: Steven:

Your column was a home run. The most important point in the article, in my opinion, is that in the past the industry has agreed to a royalty fee on recording equipment to cover the issue of consumers (you know, their customers) being able to record music for their personal use. It also should be pointed out that, in many cases, the reason you can’t buy certain music on a download site or on CD for that matter is that the record companies won’t release it. The artists usually has no say over the use of their own material. Maybe the RIAA should do something about that, but of course, then they’d have to sue a record label, instead of their customers.

Steven Pearlstein: When I spoke with the general counsel of the RIAA yesterday (yes, folks, I actually DO do reporting), I asked why the suit and all other materials put out by the association failed to mention the 1992 legislation that specifically grants royalties for the home digital recording machines, and why that was no relevant. Their explanation is that, as long as it is more sophisticated than a simple tape recorder that forces you to listen to everything you recorded every time, then its not a home audio recording device. They may be able to convince some judge of that, although I doubt it. But it certainly isn’t obvious from the plain meaning of the words involved. The unwillingness even to acknowledge the existence of the act is a pretty good tipoff that their legal position is actually quite weak.


Washinton, D.C. : Hi Steven,

I work at the RIAA, so I can’t say we loved your column. I won’t offer a line by line rebuttal but I did want to make one thing clear: we too think that satellite radio is a great thing. Both the music industry and XM and Sirius are partners. We agree with what many people have said in this chat.

The concern here is when a business tries to offer an iTunes or Rhapsody-like business model but not play by the same set of rules as those companies.

The music community been killed by piracy for the last 5 years (thousands of layoffs and enormous drops in sales), and here we have this nascent, exciting legal online marketplace that is offering real hope for the future. When businesses try to encroach upon that marketplace without playing by the same set of rules as others are, that’s when we take issue.

Steven Pearlstein: There’s nothing wrong with anything you said there, except your assumption that there is some clear bright line between a radio broadcast that can be taped, the Inno device, and a music download. Its all along a continuum of convenience and control, with a pure radio broadcast having the least convenience and control and a download service giving consumers the most. Should there be different rates for the different services along that continuum? Absolutely. So go and negotiate them in a free and open market. But please don’t suggest that XM, which is paying the royalties it thinks it is required to pay under the 1992 law, a pirate. If you really wanted to have the law clarified on this point, considering the unforseen changes in technology since 1992, you could have asked for an advisory opinion from the Copyright Office, or the FCC, or even asked for a declaratory judgment from the same court you visited in order to sue XM for what could be hundreds of millions of dollars. Your tactics are thuggish and abusive.

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Some Testimony To Look For [8:49 am]

Experts Differ About Surveillance and Privacy

Legal experts squared off before Congress on Wednesday about the National Security Agency’s domestic surveillance program, offering radically different views on whether changes in the law are needed to allow eavesdropping on terror suspects without violating Americans’ privacy.

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The Print On Demand Business [8:47 am]

Technology Rewrites the Book

The print-on-demand business is gradually moving toward the center of the marketplace. What began as a way for publishers to reduce their inventory and stop wasting paper is becoming a tool for anyone who needs a bound document. Short-run presses can turn out books economically in small quantities or singly, and new software simplifies the process of designing a book.

As the technology becomes simpler, the market is expanding beyond the earliest adopters, the aspiring authors. The first companies like AuthorHouse, Xlibris, iUniverse and others pushed themselves as new models of publishing, with an eye on shaking up the dusty book business. They aimed at authors looking for someone to edit a manuscript, lay out the book and bring it to market.

The newer ventures also produce bound books, but they do not offer the same hand-holding or the same drive for the best-seller list. Blurb’s product will appeal to people searching for a publisher, but its business is aimed at anyone who needs a professional-looking book, from architects with plans to present to clients, to travelers looking to immortalize a trip.

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The Escalation of the Design/Copyright Fight [8:33 am]

An example of the way in which the rhetorical battlefields are drawn: Looks are deceiving for a reason - pdf

THE case underscores an issue growing ever-more prevalent in the home furnishings world: The Rug Co., a London-based purveyor of couture carpets designed by the likes of Vivienne Westwood, Paul Smith and Diane von Furstenberg, has filed a lawsuit accusing New York retailer ABC Carpet & Home of selling budget knockoffs of the Rug Co.’s bespoke creations.

[...] Sharp’s lawsuit, filed in May in federal court in New York, accuses ABC of copyright infringement and unfair trade practices. ABC owner Paulette Cole did not return calls requesting comment, but Mitchell Falber, general counsel for the company, said the charges are without merit.

Whether or not the allegations are proven, industry experts said the lawsuit is yet another sign of designers’ escalating concerns.

[...] “It is a huge problem, and it is a changing problem,” said Susan Farley, an intellectual property lawyer based in Albany, N.Y.

Blame technological advances and a global marketplace in which overseas factories can within weeks whip up inexpensive knockoffs from a photograph. Some in the industry also say the proliferation of shelter publications and decorator TV shows has awakened in consumers a taste for sophisticated design but not necessarily the willingness to pay for it.

“Magazines do a page where they show the designs a high-end way, and then on the exact opposite page, they say, ‘This is how to get the look,’ ” said Eleanor McKay, former president of the Foundation for Design Integrity, an alliance of companies fighting knockoffs.

Some say the trend reflects the democratization of design. McKay has another analogy.

“Plagiarism, is what it is,” she said.

[...] In the fashion world, knockoffs are rampant in part because it is virtually impossible to copyright the shape and cut of fabric. But home furnishings designers can legally protect many of their creations because they can copyright patterns.

According to Rug Co. attorney Peter Jacobs, copycats respond by making slight variations in hopes of placing their products outside the reach of copyright laws.

“It won’t look like your design, but yet it will capture the feeling of your design,” he said. “And then you have a real issue of whether or not it is your design they are knocking off.”

[...] Jacobs said the company has spotted purloined patterns in stores across the country. In each instance, he dispatches a cease-and-desist letter.

[...] The Rug Co.’s Sharp said the lawsuit is part of a crusade.

“What I’m trying to do is really make a point,” he said. “We’ve made a decision that we’re not going to put up with it.”

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Owning Social Networking [8:12 am]

From BusinessWeek: Friendster’s Patent Possibilities - pdf

Friendster.com may be losing some of its “friends” to upstart MySpace.com. But the old-school social-networking site just got something that MySpace lacks: a patent on—you guessed it—social networking.

The patent, issued on June 27, refers to a “system, method, and apparatus for connecting users in an online computer system based on their relationships within social networks.” While that’s pretty general, it certainly covers the activities of the dozens of other social-networking Web sites that have sprung up since Friendster filed for the patent in June, 2003 (see BusinessWeek.com, 12/12/05, “The MySpace Generation”).

It’s not yet clear how Friendster will use the patent, which names original founder Jonathan Abrahms as the inventor. Friendster President Kent Lindstrom says the company is in the process of determining whether the site will be able to charge licensing fees. “Any kind of businessperson would say, ‘Hey, we’re going to prosecute this to the full extent we can and get every penny we can out of it,’ ” says Lindstrom. “But we do work in a community of businesses and don’t want to just cause trouble if there is no reason for it.”

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July 19, 2006

OT: Requiem For An Elm [9:29 pm]

When Karen and I moved into our current home a few years ago, we were surprised to learn that the stupendous tree that essentially owns the backyard of our row house is an elm tree. It is estimated that it was probably planted when the house was built in 1861.

Given the prevalence of Dutch elm disease in the Northeast, I really would not have expected that there were any elms of this size in the city and we looked upon the care of this tree as an important responsibility. The tree surgeon who came to take care of the tree this fall indicated that there are probably about 60 trees still in Cambridge (mostly at Harvard), and that this one is probably among the oldest.

Well, I learned today that our tree is now infected — “flagging” is the term used in the links above to describe the state of the tree, indicating that the tree canopy is infected and dying. And the tree surgeon says that, given the heat and the wetness of this summer in New England, we can probably expect that the tree will be dead within 4 months.

Even though the surgeon waited until November to treat the tree last year, I can’t help wondering if we wouldn’t have been better off leaving the tree alone. Care of a tree like this can only take place when it’s dormant; otherwise, the sap of the cut tree attracts the beetles that are the primary vector for the disease. Even though this fall was colder than normal, the winter overall was noticeably warmer than other years, with a really stunning warm spell in January that led to some trees budding really early.

In the grand scheme of things, of course, it’s only a tree, I know. But it’s still something awful to be so helpless in the face of what the experts seem to feel is an inevitable outcome. While it’s always possible that the tree might weather this infection, the fact that my untrained eye got me worried enough to bring in an expert suggests that it’s not doing very well.

Intimations of our mortality, despite what Ray Kurzweil expects….

(MIT’s Tech Talk on this year’s loss of an old elm at on Killian Court)

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What To Make Of This? [8:24 am]

Maybe We Should Leave That Up to the Computer

I read this article yesterday and couldn’t really decide what to say about it. Is this techno-fetishism at its worst? Or a suggestion that, maybe, a little more analysis and a little less intuition might improve (business) decisionmaking? Or a recognition that, in the end, we don’t trust machines to make some decisions for us? (Recognizing, perhaps, that the machines are only implementing the decisions, or possibly the meta-decisions, of someone. )

I wonder what Katherine Hayles would have to say about this — is this just a declaration that we should get on with becoming “post-human?” Or a call to arms to remember, as she puts it, the “body?”

Do you think your high-paid managers really know best? A Dutch sociology professor has doubts.

The professor, Chris Snijders of the Eindhoven University of Technology, has been studying the routine decisions that managers make, and is convinced that computer models, by and large, can do a better job of it. He even issued a challenge late last year to any company willing to pit its humans against his algorithms.

“As long as you have some history and some quantifiable data from past experiences,” Mr. Snijders claims, a simple formula will soon outperform a professional’s decision-making skills. “It’s not just pie in the sky,” he said. “I have the data to support this.”

And this notion of “simple formula” — am I supposed to be reassured by that?

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TimesSelect Working? [8:10 am]

Or is the revenue from somewhere else? Times Company Profit Flat; Internet Revenue Increasing

The New York Times Media Group, which includes The New York Times, nytimes.com, The International Herald Tribune and IHT.com, continued to post slight gains while the New England Media Group — primarily The Boston Globe — continued to be a drag on overall results.

[...] The company’s total costs were up 2.9 percent in the second quarter, to $759.7 million, mainly because of the costs associated with newsprint, which rose 7.4 percent. The higher prices for newsprint were partly offset by lower consumption, the company said.

Internet revenue continues to increase and now accounts for 7.7 percent of total revenue, up from 5.8 percent in the second quarter of last year. The Internet-related businesses generated $66.1 million in revenue, up from $49 million.

From yesterday’s 8-K filing:

News Media Group

Total News Media Group revenues increased 0.5 percent to $800.2 million from $795.9 million. Advertising revenues decreased 0.7 percent, mainly due to weakness in print advertising at the New England Media Group partially offset by higher online revenues across the News Media Group. Circulation revenues were up 0.6 percent due to growth at The New York Times Media Group and the Regional Media Group partially offset by declines at the New England Media Group. Other revenues increased 12.3 percent largely because of the introduction of TimesSelect and higher commercial printing revenues.



About.com’s second-quarter revenues increased 62.7 percent to $19.4 million from $12.0 million. Operating profit increased to $7.3 million from $2.5 million. The Company expects that About.com will add to earnings this year.


Internet Revenues

In the second quarter, the Company’s Internet-related businesses generated $66.1 million in revenue, up from $49.0 million. Internet-related businesses include our digital archives, the Web sites of our newspapers and broadcast properties, and About.com. In total, Internet businesses accounted for about 7.7 percent of the Company’s revenues in the second quarter versus 5.8 percent in the

same quarter a year ago.

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OT: Surprised? [8:02 am]

I wish I were.

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“Inducement” Argument Reappears [7:56 am]

Apparently, this is the “inducement via ease-of-use” argument — if it were difficult to do, would that not be infringement? Or am I missing something? Reporter sues YouTube over copyrights - pdf

An independent news reporter sued the popular video-sharing service YouTube Inc. for copyright infringement, claiming the Web site encouraged users to copy his protected materials.

Robert Tur, who gained fame with his helicopter-based coverage of the 1992 Los Angeles riots and 1994 freeway chase of O.J. Simpson, filed the lawsuit Friday in U.S. District Court. It alleges the footage was posted and circulated on YouTube without his permission.

[...] The suit alleges Tur’s images of the beating of trucker Reginald Denny during the riots have been downloaded thousands of times. The practice is ruining the market for his work while attracting lucrative advertising revenue to the Web site, Tur said in an interview.

The complaint alleges that YouTube encourages infringement by allowing the easy uploading and viewing of footage.

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