April 30, 2007

Supreme Court Patent Action Today [6:50 pm]

  • Obviousness re-established as something that must be carefully considered: KSR Int’l Co. v. Teleflex Inc.

    We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not thesubject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

  • Microsoft Corp. v. AT&T Corp.

    Because Microsoft does not export from the United States the copies of Windows installed on the foreign-made computers in question, Microsoft does not “suppl[y] . . . from the United States” “components” of those computers, and therefore is not liable under §271(f)as currently written.

Coverage: LATimes - Patent protections tempered by Supreme Court rulings (pdf)

In a pair of decisions, one in a high-profile case that pitted Microsoft Corp. against AT&T Inc., the court limited the legal rights of inventors and gave judges more flexibility in dealing with patent lawsuits.

[...] All of them reflect a concern at the Supreme Court that the patent system has strayed too far to the side of patent owners,” said Philip Swain, a patent attorney with Foley Hoag in Boston. “They’re trying to push the pendulum back toward the middle.”

Also the NYTimes - High Court Puts Limits on Patents

Patent law experts said the ruling created a common sense standard that could have a broad impact.

“Nearly every patent that contains a combination of prior ideas is at risk because the court has dramatically broadened the standard of obviousness,” said Cynthia Kernick, an intellectual property lawyer at Reed Smith in Pittsburgh.

Later: New Patent Trial Sought by Vonage

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Still Struggling… [6:34 pm]

Well, tried a suggestion I got to take care of the sluggishness (create a “clean” WordPress installation and move all the data into the new databases). Sadly, that has merely demonstrated that the problem I’m dealing with is not with the specific databases that WordPress uses. However, a “pure” HTML page loads blindingly fast, so the problem is still with the database infrastructure — I just need to dig deeper. Unfortunately, the slow performance that you see is even worse when using the web browser to post content, making it really hard for me to stay on top of things. *Sigh* Digging through my.cnf and php.ini - what fun.

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Estimating the Information Content of TV Shows [1:57 pm]

Coming Online Soon: The Five-Minute ‘Charlie’s Angels’

The question probably never occurred to viewers in the 1970s and 1980s, but suddenly it is highly relevant: exactly how much worthwhile entertainment content was there in shows like “Charlie’s Angels,” “T. J. Hooker,” and “Starsky and Hutch”?

The Sony Corporation and its production studio, Sony Pictures Television, which controls the rights to those and many other relics of a distant era of television, have come up with an answer to that question: three and a half to five minutes.

That’s the length Sony has shrunk episodes down to in order to create what the company hopes is an appealing new business in retooling old shows for a new era of entertainment. Sony even has a name for these shrunken slices of television nostalgia: minisodes.

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April 29, 2007

Cynics Look At The Internet [9:06 am]

What does it mean to be a member of a community? And are we really supposed to reduce it to a market problem? Oh, for a Chance to Whitewash a Fence

Tom Sawyer, metaphor of the digital age? Or cliché? Whichever, Mark Twain’s 19th-century sprite is being name-checked a lot lately as a handy way to describe the Internet vogue du jour: exploiting free labor and content online. (Which brings to mind a reputed P. T. Barnum line. But never mind.) Excerpts follow.

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April 26, 2007

Prof. Fried Smells A Rat [10:34 am]

Of course, he’s not alone in being snookered these days, but at least he gets a platform to point it out (however more gentlemanly than I could): Supreme Confusion

Senator Dianne Feinstein of California asked whether I thought a Justice Roberts would vote to overrule Roe v. Wade. I said I thought he would not, at least not in its later, less absolute version embodied in the 1992 Casey decision, which protected against governments imposing an “undue burden” on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted — in the law relied on not only in abortion cases but by analogy in matters as widely disparate as the Texas homosexual sodomy case, compelled visiting rights for grandparents and the right to die — that its abandonment would produce the kind of violent unsettling of the law against which respect for precedent is meant to protect.

The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.

[...] Finally, the decision is disturbing for a more far-reaching reason: there are indeed cases where the court in the last few years had become truly incoherent, largely as a result of Justice O’Connor’s pragmatic and underexplained abandonment of positions she had earlier agreed to or even proclaimed on affirmative action and campaign finance. The first issue has been argued and will be decided this term of court; campaign finance is being argued this week.

If the justices eliminate the confusion and restore principle in those areas, the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law. And last week’s decision will lend plausibility to that charge.

[I purposely left out the paragraph immediately following the first two in the quote; because I am sure that no one needs to help to immortalize someone playing CYA on the Op-Ed pages of the NYTimes.]

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Sorry, Everybody [8:57 am]

For those few of you who are still putting up with this blog, please know that I, too, am completely frustrated with the abysmal performance of this site over the last month. I have been trying to figure out why WordPress has become so incredibly sluggish on this machine, but other than narrowing it down to the MySQL server, I’m not making a lot of headway — particularly since I do have other demands on my time.

I expect that I’ll keep pounding away at this, and maybe I’ll get it resolved. My great fear is that there’s been a mangling of the databases during the latest WordPress upgrade, and I have only retained so many backups. The fact that certain diagnostics suggest that there are some JOINs without INDEXes going on is certainly disheartening (i.e., select_full_join <> 0).

For those few of you who are putting up with the sluggishness, thanks, and I am trying. Anyone out there who has suggestions, I’m getting desperate and will listen to just about anything at this point.

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Speaking of Reality; Why YouTube Isn’t It [8:16 am]

The interesting sociological question, of course, is whether this corrosive attitude toward access to human foibles for our amusement is something that we’ve been trained in (by, say, reality TV) or something that we implicitly require in societies. I know what I hope the answer is, but I really couldn’t say: I’d Like to Get Off the Stage Right Now

But in the field of damage control, the rapid shifts in access to every personal foible and ill-considered phrase of the rich and famous is the equivalent of flying without a net.

And the truth? The truth is a diminishing resource, easily bludgeoned by the facts.

“You can say, ‘Be transparent,’ ” said Mr. Mayer, the expert in crisis control, “but you’re seeing all these things ripped out of context, that’s the scary thing about it. There is the illusion when you’re watching a video that you’re seeing the whole truth. As anyone who’s followed court cases, or been in the news business knows, looking at different outtakes you get different realities. And this powerful illusion of reality is far more misleading than any distorted account.”

Related: Sony’s going to fix copyright-infringing video sites by offering up their own fantastics one tomorrow — Sony to launch video-sharing network on Friday - pdf

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Why Would You Want A Representative Image? [7:59 am]

Hey, it works in music; why not in photography? Looking Perfect, One Pixel at a Time

Professional photographers have relied on clever hands and sophisticated software to turn a good picture into something that stands out. Now, Web sites are selling professional retouching services. For $20 to $200 or more, anyone can get a tighter stomach, smoother skin and brighter teeth — at least in an image. In addition, a wide variety of programs make it possible for the average computer user to fix basic problems.

[...] Some companies are trying to automate the process. Among them is Anthropics Technology, which makes a software program called PortraitProfessional (selling for $39.95) that gives the user about 80 ways to increase the “beauty” of a subject with algorithms that automatically shift and reshape the parts of a face.

[...] But with such a program, he said, “its power to subtly alter appearance also raises some interesting moral questions.” He has received e-mail messages that pointedly asked, “Who made you the gods of beauty?”

[...] Reputable news organizations have strict rules forbidding photographers or editors from using such tools to alter images.

But when it comes to family matters or simple vanity, the ethical equation is different.

“Most pictures are about memories,” Mr. Berend said. “They’re to be looked at years later. When you show your kids your wedding picture, it’s nice that they’re nice. Harsh reality is not always what people want.”

After all, aren’t we all the stars of our own movies?

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April 25, 2007

Navigating A Minefield [4:25 pm]

European Parliament sparks criticism with IP changes

If the version adopted by the Parliament Wednesday becomes law it would cause mass confusion about the scope of the law, and would threaten legitimate software and Internet companies, as well as ISPs (Internet service providers) with sanctions including fines of up to €300,000 ($409,670) and jail time of up to four years.

The Parliament’s version of the law would apply to all IP infringements of a commercial scale as long as the infringement was done in order to obtain commercial advantage.

Rights holders, including the record industry, slammed the narrow definition. “The European Parliament has taken the wrong road in trying to define what constitutes ‘commercial scale’ and ‘intentional’ intellectual-property infringements,” said Frances Moore, regional director for Europe for the International Federation of the Phonographic Industry, a recording industry lobbying group.

On the opposite side of the lobby, the Foundation for a Free Information Infrastructure (FFII) said the wording of the Parliament’s draft on the scope of the law is “weak.”

[...] Separately, the text approved by the Parliament also muddied the water regarding a clause on inciting, aiding and abetting an IP infringement. ISPs could be found criminally liable if their networks are used to breach someone else’s intellectual property, the FFII said.

In addition, the Parliament’s version of the law would apply criminal sanctions to protect unexamined database and design rights as well as trade names and copyright. Patents and utility models were excluded, to the relief of many in the technology industry and the scientific community.

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April 24, 2007

A © Strategy For Developing Countries? [5:07 pm]

Make sure that it’s first world subsidiaries who are penalized? Yahoo China loses music piracy case - pdf

The lawsuit filed by the International Federation of Phonographic Industries accused Yahoo China of violating copyrights because its search engine linked to sites that carried 229 pirated songs. It was filed on behalf of 11 recording companies including Sony BMG, Warner Music, EMI and Universal Vivendi.

“We’re very pleased with the outcome,” said Leong May Seey, Asia regional director for the federation. “We think it is a step in the right direction in creating a legitimate online music service in China.”

[...] Yahoo China said it would appeal and stressed its respect for intellectual property rights.

“We will appeal this decision because we believe Yahoo China’s music search service both meets and exceeds the relevant legal standards for intellectual property protection,” a company statement said. “An important principle is at stake in this case - search engine operators should not be held liable for content posted on third-party Web sites.”

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Perjorative Much? (updated) [1:58 pm]

What an opening line - this is how to characterize fans? Yahoo, Gracenote launch lyrics service - pdf

Yahoo Inc. (Nasdaq:YHOO - news) and digital media company Gracenote launched an online lyrics service on Tuesday, the first industry-backed effort in a market dominated by unauthorized, rogue Web sites.

Later (2007 May 7): Yahoo untangles licensing web for lyrics service - pdf

Yet at Yahoo and elsewhere, lyrics remain a notable omission from digital music files either purchased or acquired through subscription models. Not only do consumers not receive song lyrics with their download, they can’t search for songs by lyrics within Yahoo Music Unlimited or any other digital music service including iTunes.

The cost of including the lyrics to these files — primarily the result of the licensing fee — would either force digital retailers to increase the cost of their service or accept less of an already-thin margin.

But Yahoo and Gracenote say these issues will be resolved over time once publishers begin realizing the added revenue that lyrics bring them. Gracenote CEO Craig Palmer estimates that lyric license fees could result in as much as $100 million in annual revenue within 10 years.

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Reconciling the Irreconcilable [1:08 pm]

One more demonstration of the problems a notion of ownership engenders in this space: Microsoft, Trying to Avoid a European Fine, Defends Demand for Royalties

The legal skirmishes over the European Commission’s antitrust ruling against Microsoft are moving into a fourth year. In its original ruling, the commission ordered Microsoft to sell a version of its Windows operating system without its Windows Media Player. Microsoft did so, but the so-called N version, which sold for the same price as Windows with the Media Player included, was a commercial flop.

Microsoft maintains that the other remedy imposed in the 2004 ruling — that it share its confidential server software code — implied that it could charge royalties.

But competitors say that Microsoft is asking exorbitant fees, discouraging many from designing software to work with Microsoft products. According to its Web site, Microsoft is proposing royalty fees that range from $5.60 to $666.75 a server under a formula that ties the fee level to the revenue generated by any software designed using Microsoft’s information.

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OT: Ya Think George McGovern’s A Little Upset? [9:01 am]

From today’s LATimes: George McGovern: Cheney is wrong about me, wrong about war - pdf

VICE PRESIDENT Dick Cheney recently attacked my 1972 presidential platform and contended that today’s Democratic Party has reverted to the views I advocated in 1972. In a sense, this is a compliment, both to me and the Democratic Party. Cheney intended no such compliment. Instead, he twisted my views and those of my party beyond recognition. [...]

[...] THE VICE PRESIDENT spoke with contempt of my ‘72 campaign, but he might do well to recall that I began that effort with these words: “I make one pledge above all others — to seek and speak the truth.” We made some costly tactical errors after winning the nomination, but I never broke my pledge to speak the truth. That is why I have never felt like a loser since 1972. In contrast, Cheney and Bush have repeatedly lied to the American people.

It is my firm belief that the Cheney-Bush team has committed offenses that are worse than those that drove Nixon, Vice President Spiro Agnew and Atty. Gen. John Mitchell from office after 1972. Indeed, as their repeated violations of the Constitution and federal statutes, as well as their repudiation of international law, come under increased consideration, I expect to see Cheney and Bush forced to resign their offices before 2008 is over.

Aside from a growing list of impeachable offenses, the vice president has demonstrated his ignorance of foreign policy by attacking House Speaker Nancy Pelosi for visiting Syria. Apparently he thinks it is wrong to visit important Middle East states that sometimes disagree with us. [...]

[...] We, of course, already know that when Cheney endorses a war, he exempts himself from participation. On second thought, maybe it’s wise to keep Cheney off the battlefield — he might end up shooting his comrades rather than the enemy.

On a more serious note, instead of listening to the foolishness of the neoconservative ideologues, the Cheney-Bush team might better heed the words of a real conservative, Edmund Burke: “A conscientious man would be cautious how he dealt in blood.”

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LATimes on Morissette’s YouTube Entry [8:41 am]

Working the system; sending a message; establishing cred? Satire busts a humppdf

At first glance, it simply looks like another pass-along parody, a takeoff on the original “My Humps” hit by the Black Eyed Peas. But Morissette’s video is armed with a provocative subtext that has people abuzz with debate. It’s a fascinating piece of video art, an inspired combination of satire, social criticism and career reinvention that is a signature artifact of today’s viral Web culture.

On one level, “My Humps” is a commentary on dim-bulb pop. The Black Eyed Peas’ “My Humps,” though a huge smash, was widely mocked for its vapid, suggestive lyrics. (Sample: “The boys they wanna sex me, they always standing next to me, always dancing next to me, tryin’ a feel my hump, hump.”) The video, featuring Fergie, the group’s lead singer, was, if possible, even tawdrier. Full of nonstop teasing and thrusting, it’s the kind of hip-hop booty porn that would make great torture material for Muslim prisoners at our Guantanamo Bay prison camp.

Dressing herself Fergie-style, with baubles and bling, surrounded by black-clad male dancers, Morissette retained the original’s visual sluttiness but replaced the Peas’ thumping rhythm track with a pensive solo piano. By removing the intoxicating bass line and clearly enunciating the crass lyrics, she gave the song’s sexpot swagger a new tone of sadness and desperation while simultaneously parodying her own artistic tendencies toward self-absorbed angst.

It’s a striking performance, functioning as both social criticism and self-criticism. It also has given an instant shot of street cred to Morissette, whose career had slid downhill after her incandescent debut in 1995 with “Jagged Little Pill.” Stereotyped as an earnest navel gazer — one blogger recently dismissed her as an “emo-feminist” — she suddenly has fans seeing her through fresh eyes.

[...] Morissette has followed the model once practiced by Bob Dylan, who in his ’60s heyday refused to explicate anything, bobbing and weaving in interviews, baffling the MSM of the day with a fog of evasions, sly jokes and put-ons.

Unlike Lindsay Lohan, Britney Spears and Fergie, who can’t stop blabbing about their various addictions, pet causes and loser lovers, Morissette has greeted all “My Humps” interview requests with a vow of silence.

Then, we are suddenly talking about FoxAttacks.com. Not that I don’t see a connection, but it’s not at all clear that it’s *the* connection that I would make.

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April 23, 2007

A Win For Fair Use [5:23 pm]

Activist groups drop suit against Viacom - pdf

The Electronic Frontier Foundation declared victory in announcing that Viacom agreed to add information on its Web site about its stance on such parodies and to set up an e-mail address to receive complaints about possible errors in the future.

Viacom, however, sought to play down its concessions, saying the lawsuit’s dismissal was a recognition of “the effective processes we have consistently applied.” In a statement, Viacom said the lawsuit “could have been avoided” had the groups contacted the company ahead of time.

The EFF and Stanford Law School’s Fair Use Project had filed the lawsuit in U.S. District Court in San Francisco on behalf of MoveOn.org Civic Action and Brave New Films LLC, which had jointly produced the parody.

EFF press release; EFF archive; Fair Use Project

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Cheaper Distribution, Specialization and New Opportunities [8:03 am]

A possible example of efficiency gains through lowered startup costs — consider what it took to start up the wire services (or, for that matter, Salon, which is certainly a competitor in this space): USA Today to Use Items From Start-Up News Site

Three months after two journalists left The Washington Post to start a new-media venture, their political coverage has found its way back to a national newspaper: USA Today.

USA Today said Friday that it would begin using articles produced by the start-up, The Politico, a mostly online news operation staffed by journalists who have worked for news outlets like Time, The Wall Street Journal and The Associated Press.

Also — interesting to note that the NYTimes article includes hyperlinks to USA Today.com, but not to The Politico.

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When Does Promotion Become Lying? [7:53 am]

A look at the culture of entertainment negotiation. Sounds like a lot of other claims — say, about lost sales? Cussler’s sales claims undermined in trialpdf

Anschutz and Cussler have been waging a fierce legal battle in a downtown Los Angeles courtroom over who is to blame for the financial failure of the movie “Sahara,” which starred Matthew McConaughey and Penelope Cruz. The film has lost about $105 million since it was released in April 2005. A jury is expected to hand down a verdict in the trial next month.

Cussler is scheduled to take the witness stand for a fourth consecutive day this morning in the courtroom of Judge John P. Shook.

On Friday, Cussler offered myriad explanations for his accounting of the “Sahara” numbers. Asked if he pulled the numbers out of thin air, Cussler said, “Pretty much.” He added: “I honestly thought I probably did sell 100 million books. That doesn’t seem out of the ordinary to me.”

Cussler’s response, made during tense cross-examination testimony, “illustrates that he is perfectly comfortable lying about the number of books he sold,” said Alan Rader, one of several attorneys from the O’Melveny & Myers firm who represent Anschutz. “He was willing to say whatever it took to get the $10 million.”

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Participation Culture: Singing [7:45 am]

Why listening to music might not be enough — and the biochemistry of the teen music industry: SING OUT, SISTER - pdf

It makes intuitive sense that singing is psychologically good, that it can elevate one’s mood or provide an outlet for sadness. But a growing body of science shows that not only is singing mentally healthful, it’s also physically good for you. It can improve the body’s immune response. In elderly people, it can reduce the use of prescription drugs, doctor visits and emergency room care. The conscious breathing from the diaphragm involved in singing can itself reduce stress.

[...] Some researchers, including Walter J. Freeman, a neurobiologist at UC Berkeley, think that when people sing, oxytocin is released. A handful of small studies provide evidence to support the theory. Oxytocin is the hormone that surges through new mothers after they give birth and when they breast feed, through both men and women when they have sex and through couples when they gaze romantically into each others’ eyes. It increases bonding and it helps imprint memory. Oxytocin peaks during adolescence — probably one reason that the songs we hear and sing during teen years are the ones we always remember.

The hormone’s release is likely part of the reason that group singing forms bonds. “When we sing and dance together, our emotions are synchronized,” says David Huron, a musicologist at both Ohio State University’s school of music and center for cognitive science. “Everyone is on the same emotional page.” The military undoubtedly understands that, readying troops to act in unison in part through rhythmic marching songs.

It’s not just that singing fosters fuzzy feelings. It can boost the body’s immune response. [...]

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Parallels: Anti-Scalping Laws and Copyright [7:38 am]

This is an interesting editorial to come out of the LA Basin. And particularly notable in light of the article I posted yesterday about the rise of the live concert business over that of the record companies — the parallels are interesting to think about, particularly in the case of those jurisdictions where the state restricts the rights of resellers (i.e., scalpers): Ticketmaster’s crocodile tearspdf

Ticketmaster is in the resale business too — fans at selected venues who want to resell their tickets can do so, provided they pay another service charge that Ticketmaster splits with the venue. There’s no reason Ticketmaster can’t compete in the secondary market with StubHub, Craigslist, RazorGator and every other reseller out there, with no artificial constraints on what people do with their tickets.

Ticket prices, typically set by event promoters, tend to be inflexible. Plenty of people are willing to pay far more, which is one reason the resale market is thriving. Meanwhile, Ticketmaster has won no friends among event-goers, who resent the company’s ubiquity and multiple service fees.

The thriving resale market for tickets reflects how hard it is in the digital economy to constrain customers’ choices, no matter how dominant a company’s position may be. And with so much extra money in the resale market, is it any wonder the Rowdy Frynds wanted a piece of the action?

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April 22, 2007

Music Distribution Experiments [11:53 pm]

Speaking of radio: New Model for Sharing: Free Music With Ads

For years, music labels have been trying to prevent fans from downloading their songs on peer-to-peer file-sharing networks. Now, some of them would like to encourage people to listen to music that way — provided they view some advertising first.

Several start-up companies are pursuing the idea of advertising-supported music, including SpiralFrog and Ruckus, which caters to college students. Qtrax, one such company that plans to open for business in September, already has deals to sell music from Warner Music Group and EMI Group, and it plans to announce a similar deal with Sony BMG Music Entertainment today.

On the other hand: In Dallas, Commercial Radio Without Commercials

Facing increasing competition from satellite radio and iPods, Clear Channel Communications is trying something radically different at a commercial radio station in Texas: getting rid of the commercials.

As of today, KZPS in Dallas — on the dial at 92.5 FM or online at lonestar925.com — will no longer run traditional 30- or 60-second advertisements. Instead, advertisers sponsor an hour of programming, during which a D.J. will promote its product conversationally in what the company calls integration.

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April 2007
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