July 31, 2007

Profile of Ira Rothken [5:57 pm]

TorrentSpy lawyer battling ‘copyright extremism’

Ira Rothken is technology’s answer to the radical lawyer, Silicon Valley’s version of Johnnie Cochran or William Kunstler.

Tech start-ups sued by media conglomerates for copyright infringement typically call on Rothken, a medical researcher turned lawyer. He’s made a name for himself by bucking entertainment empires and by backing long-shot copyright cases, such as those involving RecordTV, ReplayTV and MP3Board.com. His efforts have won him praise from the Electronic Frontier Foundation (EFF), the advocacy group that has become synonymous with user rights on the Web.

“Ira has a strong intuition for the little guy,” said Fred von Lohmann, an EFF senior staff attorney. “He enjoys these uphill fights. I often refer people to him.”

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Amazing [5:12 pm]

Techdirt says it best about this bit: Labels eye online social networks as retailers (pdf)

Do the record labels really not realize how much they’ve pissed off their best customers for the last decade? It would appear so, because they’re now hoping that the kids they’ve alienated for all these years will become shills for them on MySpace and other social networks, pushing all their friends to buy music as well. That might have worked years ago, but these days it seems like plenty of kids have been so turned off by buying music from record labels that treat them like criminals first, that it seems like an uphill road to convince them to not just start buying music, but shilling for the record labels as well.

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I Got Back In Town Just In Time For The Fun, I See [9:29 am]

Will it be the half-loaf (pdf) that’s been offered, or will we see an all-out test? FCC to Rule on Wireless Auctionpdf

The Federal Communications Commission will set the rules tomorrow governing the auction of $15 billion of public airwaves, a decision with stakes so high that the major U.S. cellular carriers and Google have spent millions of dollars on a lobbying campaign in an attempt to influence the outcome. The decision could dramatically alter the nation’s cellphone industry.

[...] Google, in its first serious foray into the Washington regulatory scene and, potentially, the wireless industry, has offered to spend at least $4.6 billion for the airwaves it would use to build the network it envisions if the FCC’s rules work in its favor. The move reflects Google’s growing ambitions to reach consumers in new ways while exerting its influence on policy it sees as critical to its future. But the company’s efforts to recast the wireless landscape have met fierce opposition from AT&T and Verizon, which worry Google’s open network would undermine their businesses.

News release, Copps statement, Adelstein statement, McDowell statement. From Copps’ statement:

My deepening concern this afternoon is that this auction might not end up being the stimulus to a third pipe, the right to attach devices, to run applications and to encourage the innovation and entrepreneurship that we all hope for because of some add-on provisions. The item now imposes reserve prices on each of the individual spectrum blocks, something without precedent in previous auctions and something, it seems to me, rather at odds with letting the market pick the auction block winners. The procedure in this Order carries chilling risk to the success of the auction. If some of these blocks do not fetch the bid prices stipulated, perhaps because of gaming of the worst sort, they will be re-auctioned with weaker build-out requirements. If the 22 MHz block, where we hope for Carterfone open access principles, fails to elicit a $4.6 billion bid, it will be re-auctioned without Carterfone open access. In the end, all of this micro-managing virtually hands industry the pen to write the auction rules and to constrict all the opportunities this spectrum held forth. The end result could be: same old, same old. What a pity that would be!

In closing, we came farther on some things than many thought likely a few months, or even a few weeks, ago. There is much to approve in this Order. I will concur in two parts because wholesale open access is not stipulated and also because of the concerns I have discussed regarding how the micro-managed reserve pricing scheme could subvert the higher goals of the auction.

The NYTimes has the APWire story: F.C.C. Approves Airwave Sale Rules (pdf). And in news from the future (dateline August 1, 2007), we have Google Wins Partial Victory in F.C.C. Ruling (which has become this: F.C.C. Hands Google a Partial Victory)

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Refining the Distribution Model [9:14 am]

Or is it locking customers into a closed network? Music From Independent Labels to Be Sold via Cellphones

EMusic, the nation’s second-largest online music seller after Apple’s iTunes, plans to announce a deal with AT&T today that will allow people to buy songs from independent labels through their cellphones, without the need to go through a personal computer.

[...] Tracks will cost more than they do over the Internet — $7.49 for five songs, as opposed to $9.99 for 30 at the online site — because of the expense of sending them over a mobile network to a user’s phone. For that price, however, users can also get another copy of the song, which they can download from the Internet as an MP3.


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A Troll Gets A Smackdown [9:07 am]

And a judge explores a way to get around nonsense “business method patents:” Judge Permits eBay’s ‘Buy It Now’ Feature

Judge Jerome B. Friedman of Federal District Court denied a motion by the Virginia company, MercExchange, for a permanent injunction to stop eBay from using the feature. The Supreme Court ruled last year that, although eBay infringed upon MercExchange’s patent for the service, it was up to the lower court to decide whether eBay had to stop using it.

In his ruling, Judge Friedman said the company was not irreparably harmed because it continued to make money from its patents, either by licensing them outright or by threatening litigation against those it believed infringed upon them.

“MercExchange has utilized its patents as a sword to extract money rather than as a shield to protect its right to exclude or its market share, reputation, good will, or name recognition, as MercExchange appears to possess none of these,” he wrote.

EFF’s earlier tracking of this case

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Participatory Cartography [9:05 am]

With Tools on Web, Amateurs Reshape Mapmaking

With the help of simple tools introduced by Internet companies recently, millions of people are trying their hand at cartography, drawing on digital maps and annotating them with text, images, sound and videos.

In the process, they are reshaping the world of mapmaking and collectively creating a new kind of atlas that is likely to be both richer and messier than any other.

They are also turning the Web into a medium where maps will play a more central role in how information is organized and found.

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July 25, 2007

Just Relax and Take It [2:06 pm]

FBI Seeks To Pay Telecoms For Datapdf

The FBI wants to pay the major telecommunications companies to retain their customers’ Internet and phone call information for at least two years for the agency’s use in counterterrorism investigations and is asking Congress for $5 million a year to defray the cost, according to FBI officials and budget documents.

The FBI would not have direct access to the records. It would need to present a subpoena or an administrative warrant, known as a national security letter, to obtain the information that the companies would keep in a database, officials said.

What could possibly go wrong?

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July 24, 2007

UK Rejects A Bono-Like Copyright Term Extension [9:50 am]

UK rejects music copyright extensionpdf

The British government rejected a plea to extend copyright laws for sound recordings to beyond 50 years on Tuesday, prompting the music industry to accuse it of not supporting musicians and artists.

[...] Geoff Taylor, chief executive of the BPI, which represents the British recorded music industry, said the government had failed its test to show support for British music.

“We will continue to put forward the strong case for fair copyright in Europe,” he said. “It is profoundly disappointing that we are forced to do so without the backing of the British government.”

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Search, Privacy and the FTC [7:32 am]

Search Engines Tighten Privacypdf

Online search companies Google, Yahoo, Ask.com and Microsoft are tightening their privacy policies in the face of mounting public, congressional and regulatory agency concern about the vast amounts of personal data they gather and store.

Yesterday, Microsoft announced it would make all data on search queries anonymous after 18 months. This week, Yahoo is to outline plans to make a user’s search history anonymous within 13 months. On Friday, Ask.com said users could ask the firm not to retain their Web searches.

Google, which faces the most scrutiny, announced in March that it would begin to make search-query data anonymous after 18 to 24 months. Last week, the company said it would shorten the lifespan of cookies, which are small files attached to a user’s browser. A further refinement of its privacy policy is expected soon.

The moves come as the Federal Trade Commission signaled that it might take action to modify or block Google’s $3.1 billion acquisition of DoubleClick, a major online advertising company. [...]

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Blogging the Hunt for the Higgs Boson [7:16 am]

A look at the evolution of the way that science gets done: The Race is on for the God Particle

The excitement has been ratcheted up by the speed and ubiquity of information on the Internet.

“It is exciting even if you think the chances of it being true are only 0 or 10 percent,” said Tommaso Dorigo, from the University of Padua in Italy, who helped spread the D Zero rumor in June on his blog, A Quantum Diaries Survivor (http://dorigo.wordpress.com). “It’s something you were looking for and would be very happy to find.”

Joe Lykken, a Fermilab theorist who said he first learned of the rumored bump the old-fashioned way, over lunch in the laboratory cafeteria, said: “Pre-blog, this sort of rumor would have circulated among perhaps a few dozen physicists. Now with blogs even string theorists who can’t spell Higgs became immediately aware of inside information about D Zero data.”

[...] On May 28, an anonymous physicist wrote to the comments section of Dr. Dorigo’s blog, asking if it was true that D Zero was seeing an excess of so-called b-quarks spitting from the Tevatron. This excess, or bump, was supposedly at the level of 4-sigma or 5-sigma and thus, if it withstood scrutiny, it would have to be taken seriously as a sign that the Higgs boson was there with a mass of about 180 billion electron volts.

Dr. Dorigo is in the C.D.F. collaboration and thus had no inside knowledge, but repeated that he had also heard the rumor. The rumor was picked up by the publications Slate and Wired.

In response, Gordon Watts, a physicist from the University of Washington and longtime member of the D Zero team, scolded Dr. Dorigo for speculating on rumors.

“Dude! If you get called by the press to comment on this rumor — you will be making secondhand comments on rumors!” Dr. Watts wrote on his blog, Life as a Physicist.

Dr. Watts pointed out that until a result had passed several levels of rigorous reviews within the team, including redoing analyses with different computer programs, there was no result, and nothing to say in public. “I don’t think D Zero has ever had an analysis that was given this much external scrutiny before its official release,” Dr. Watts wrote in an e-mail message, adding that the blogs had already quieted down.

Nice to see that WordPress gets a few points, too!

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July 23, 2007

The Joys of (Accessible) Openness [2:04 pm]

Sub photo could help sink Google in China

On July 5, researcher Hans Kristensen posted what he believes is the first photo of the Jin-class submarine to the Strategic Security blog on the Web site of the Federation of American Scientists, a nuclear weapons research and opposition group. The photo, taken from Google Earth, is accompanied by coordinates for six other Chinese submarine bases on the same page.

Although it was the People’s Liberation Army Navy that docked the alleged new sub outdoors, in full view not only of the commercial satellites that Google uses but also those employed by the U.S. and other militaries, that doesn’t mean that China’s growing blue-water force will take kindly to being put on display.

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Speaking of the NFL’s IPR … [1:44 pm]

Wary of Infringing Rival Games, Take-Two Calls Up Football’s Golden Oldies

Until three years ago, Take-Two put out a popular series called NFL 2K, which featured big-name players in the league. It sold well, though not nearly as well as the leading football video game, Madden NFL, which was owned by Take-Two’s top rival, Electronic Arts.

But the dynamics changed late in 2004, when Electronic Arts entered into an exclusive, five-year agreement with the National Football League and Players Inc., the licensing and marketing subsidiary of the N.F.L. Players Association, to develop, publish and distribute football video games. The pact ended the ability of Take-Two to feature current N.F.L. players in its games.

Rather than admitting defeat, Take-Two fought back. Last week it introduced a game featuring retired National Football League players, who are not covered under the deal with Electronic Arts.

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Liebowitz Study Gets New Push (updated) [11:54 am]

Radio Listeners Seem to Buy Less Music

The study, written by Stan Liebowitz, an economics professor at the University of Texas at Dallas, compared record sales and music radio listening in some 100 American cities from 1998 to 2003. It found that, very roughly, an hour’s worth of radio listening per person per day, over the course of a year, corresponded with a 0.75 drop in the number of albums purchased per capita in a given city. Professor Liebowitz has proposed that people use radio listening as a substitute for buying music.

According to the article, the MusicFirst Coalition is pushing this but, if so, it’s quite well hidden on their WWW page — look in their FAQ for the link. (local copy)

Heading over to the U of T, it looks like his homepage is down, and here’s the only link I can find for the study at UTD. Luckily, the Google cache gets me through to at least this — The Elusive Symbiosis: The Impact of Radio on the Record Industry; Review of Economic Research on Copyright Issues, 2004, v.1(1), pp.92-118 (local copy)

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And What’s Going On Under The Covers? [10:13 am]

This is going to require a little scrutiny: Podcasters Unite to Figure Out a Role for Ads

Industry executives say they have closed in on a solution in recent months, which means that consumers may have a much wider array of free audio (and video) content coming to them, if they can stand a little advertising to go along with it.

The effort is a multifront initiative, starting with improvements in technology. Companies have begun distributing media files that stay connected to publishers, giving them a way to track the number of times that advertisements have been heard or viewed, or replace old advertisements.

At the same time, about 15 companies, including Apple and NPR, announced last week the formation of a new industry group, the Association for Downloadable Media, that will help executives improve methods for creating, distributing and tracking advertisements in podcasts.

[...] Susan Bratton, who helped form the Association for Downloadable Media, said her experience as the chief executive of Personal Life Media, which produces audio podcasts on a range of subjects, helped convince her that more industry cooperation was needed to make podcasting a viable business.

Among other things, Ms. Bratton said that technology companies, marketers and publishers need to agree on standard methods for packaging and delivering advertisements, and tracking the number of times an advertisement is heard. Also, there is no consensus on how best to design an advertisement within a podcast. As a result, marketers, advertising agencies and publishers cannot efficiently implement big campaigns across multiple sites.

While I imagine there are lots of cool ideas, I wonder how the privacy side of this possibly can work.

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Using The Medium [10:02 am]

Crossing Out, for Emphasis

For Dickens, the strike-through — a visible line drawn through a word or sentence — was a way to erase a word from the reader’s eye (and indeed the stricken sections from his manuscripts didn’t appear in the printed versions of his books).

But in Internet culture, the strike-through has already taken on an ironic function, as a ham-fisted way of having it both ways in type a witty way of simultaneously commenting on your prose as you create it.

Writers on the Internet don’t know how good they have it. They can only play around so casually with their own “corrections” because they are so easy to make. (If you were truly worried about conveying basic meaning unprecedented insights about communication, you wouldn’t mess around with editing tools.)

This facility in writing, rewriting and overwriting is seemingly a breakthrough unique to the Internet Age, although the strike-through itself dates back to at least medieval manuscripts .

[...] Karl Fogel, president of the Subversion Corporation, which produces open-source version control software, says illustratively that in Subversion’s case, “the command that shows what person touched what file is called Blame.” He said that after someone objected, the software was changed to include the duplicate command, Praise, “but no one uses it,” he quickly added.

Mr. Fogel is one of those creators of technology who see more than the mere convenience of what he is bringing to the world. He sees its power to shape public behavior.

Think of what version control software could mean for the Congress, he was quoted as saying recently at Tim O’Reilly’s blog . If bills were created under a system where strike-throughs and additions were carefully tracked, the public would know which legislator made which change to a proposed piece of legislation as it made its way through the Capitol.

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Seems Odd To Me [9:59 am]

But I know that textbooks are expensive; it will be interesting to see if this firm can spin gold from what Reed Elsevier and others believe is just straw: Deals in Textbook Business Make Irishman a Leader in U.S. Publishing

Analysts say private equity has been attracted to the educational business by steady cash flows, a relative lack of competition and expectations that spending will increase in the coming years as states like California step up textbook replacement programs.

Yet companies like Reed Elsevier, Thomson and Wolters Kluwer have been willing to leave the business because educational publishing has lagged behind areas like medical, legal and scientific publishing in the shift to digital distribution, analysts say.

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Thinking Hard, Working Hard In The Music Biz [9:56 am]

The evolving business model: Oops! …They Did It Again

Since the sale, Zomba, which includes Jive Records and the gospel label Verity, has managed to defy the industry’s troubles by discovering new artists, like the R&B singer Chris Brown and the rockers Three Days Grace, while keeping costs down — a tough task in a field given to financial excess.

Johnny Wright, a talent manager overseeing acts including Mr. Timberlake and the Backstreet Boys, remarked, “They overanalyze every penny that’s spent to make sure it’s not just frivolous money being thrown away.” He added: “As a manager of an artist, you want a $2 million video budget. Do you really need one? At the time that you’re involved in it, you’re feeling a little frustrated,” but “at the end of the day you’ve made a decent video, and you have an artist that’s actually getting a royalty check.”

There is little argument that the label’s sales and market share have slid sharply from their pinnacle during the teen pop sales surge; the industry itself has buckled under the weight of widespread piracy and other woes.

But if any of the corporate-owned labels can be described as succeeding these days, Mr. Weiss’s is one of the few. Zomba has increased its share of new-release sales almost 20 percent so far this year, even as sales of new albums industrywide have dropped 16.5 percent, according to Nielsen SoundScan data. It has remained consistently profitable, having generated more than $40 million in profit last year on well over $200 million in revenue, according to executives briefed on the label’s business.

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Gotta Keep Trying, I Guess [9:52 am]

But, really: Barbie Gets Another Accessory: An MP3 Player and More Stuff on Her Web Site

A new doll hitting retail shelves this week is familiar in many ways — she’s got outfits galore — but she also has some unusual features: this Barbie, who is smaller and less shapely than her standard namesake, functions as an MP3 music player.

And when her feet are plugged into the iPodesque docking station that she comes with, she unlocks pages and pages of games, virtual shops and online chatting functions on the BarbieGirls.com Web site.

The new doll is a roundabout way of charging for online content. Instead of asking young Web surfers to punch in their parents’ credit card numbers, BarbieGirls.com and other sites are sending customers to a real-world toy store first. Some of these sites (like the Barbie one) can be used in a limited way without purchasing merchandise — the better to whet young appetites — but others, like the popular Webkinz site, are of little or no use without a store-bought product or two (or three, or a dozen).

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A California Initiative To Protect Images [8:08 am]

Literally. The real question, of course, is whether this will lead to “protection” of images or merely protection of “revenue” — and how would you know the difference anyway? IPR run amok — and a demonstration of the degree to which the notion of value and property have become conflated. For example, I had to post the rhetorical trick used on the front page teaser for the story: Bill attempts to protect dead stars’ imagespdf

State Sen. Sheila Kuehl (D-Santa Monica), a television star in the 1960s, has won preliminary approval of legislation that would bolster the “postmortem right of publicity” held by the heirs of famous people to control the use of their images, voices, signatures and likenesses for commercial purposes.

The bill would apply such rights to celebrities who died before 1985 and would retroactively allow them to be passed to nonrelatives. Opponents of the legislation say that it could retroactively nullify publicity rights that have been in the public domain or held by relatives of hundreds of dead actors and artists, and trigger a flood of lawsuits.

If it becomes law, “this is going to cause pandemonium in the courts,” said Surjit Soni, a Pasadena attorney representing a company founded by the late Milton H. Greene, a Monroe photographer.

[...] “This bill is a recognition of the right to publicize and use an image as a kind of property right that extends beyond death and can be willed as a kind of personal property,” Kuehl said. “The image of a celebrity is not something the public can use generally … no matter how popular the celebrity is.”

[...] “My clients owned the copyright on the photos,” Soni said. “These celebrities voluntarily posed for these photos. They filed model release forms.”

[...] But Soni asserted that the Kuehl bill could retroactively alter rights to the images of hundreds of other celebrities, including Walt Disney. “It creates potential for litigation and strife,” he said.

The bill’s opponents also argue that it “effects an unlawful taking of property, violates due process [and] unconstitutionally impairs existing contracts of not only photographers, but also the studios and other business.”

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Patent Legislation Fight … [7:56 am]

On the pages of today’s Boston Globe. As you might expect, only part of the story gets cited, but we are probably entering an interesting stage of the fight in Congress:

  • An editorial that, at least, describes the scope of the conflict being played out in Congress right now: Patently flawedpdf

    The strongest advocates for changing the law are high-tech firms that often find themselves sued by patent holders who contend that their inventions are being used without license. Lawyers for the high-tech companies have taken to calling these patent holders “patent trolls” and accuse them of bringing suit in federal courts in places like eastern Texas, which has a reputation for favoring plaintiffs in these cases. The high-tech firms want to limit this venue-shopping by patent holders and the damages they can get if their claims are upheld. The firms also want more opportunity to challenge new patents after they have been approved.

    On the other side are the pharmaceutical industry, biotech firms, research universities, and even some high-tech companies. They say they would welcome some changes in the patent system but worry that bills now before Congress would seriously weaken the patents that are their lifeblood. Lita Nelsen , director of the Technology Licensing Office of the Massachusetts Institute of Technology, says, “Only patents protect the little guy,” and points out that the vast majority of biotech startups depend on university patents.

  • And an op-ed: A fresh look at patent lawspdf. Note, this is a particularly lame piece, failing to actually talk about what’s at stake and instead focusing on some of the least interesting dimensions of the problem. For example:

    Instead, today’s patent challengers can calculate damages in a lawsuit based on the value of the entire product, not the specific component in question. For example, a lawsuit can claim the worth of an entire computer, when only one computer chip is being challenged. It’s not only excessive, it’s an obstacle to new, innovative discoveries.

    Surprisingly, patent challengers can also navigate the system to find the “friendliest” courts to their cause, making places like Texas a popular spot even for companies that have no actual ties to the state. Nationwide, patent lawsuits nearly tripled between 1991 and 2004; between 2001 and 2004, the number of cases grew by nearly 20 percent.

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