August 31, 2007

Open Access and the Rockefeller University Press [8:35 am]

A science publisher gets smart

How the World Works has been hard on the commercial science publishers for their ham-handed efforts to equate public access to government-funded research with “censorship.” So it’s only fair to applaud a publisher who thinks that the stance of the American Association of Publishers (AAP) is just as ridiculous as we do.

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When Is A Ringtone Not Just A Music Clip? [8:21 am]

When it’s an endorsement, argues the family of Bob Marley — marketing, image and music: Family Challenges Verizon Wireless Deal to Sell Bob Marley Ring Tones

Chris Blackwell, a longtime spokesman for the Marley family, said by telephone from his home in Britain that he was originally approached by Verizon Wireless a few months ago and met with representatives of the company twice.

While Verizon proposed the deal as a matter of simply licensing the music, Mr. Blackwell said, the family held that if the cellular company was going to provide the ring tones exclusively and use Mr. Marley’s image to its marketing benefit, it amounted to an endorsement.

“It was not something we were willing to consider unless they were willing to view it as an endorsement,” said Mr. Blackwell, adding that along with securing a fee for the family, an endorsement contract would allow the estate to set parameters on how Mr. Marley’s image and name could be used. (The phone company is already using an image of Mr. Marley to promote itself on its Web site.)

But rather than make an endorsement offer, Verizon went to Universal, a subsidiary of Vivendi, and sewed up a deal without the family’s blessing.

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Score One For Eolas [8:18 am]

For the moment, anyway: Microsoft Settles a Dispute Over a Feature in Its Browser

Microsoft said Thursday that it had settled an eight-year patent dispute that resulted in a $521 million jury verdict against it. Terms of the accord were not disclosed.

The dispute centered on a feature within Microsoft’s Internet Explorer Web browser that allows embedded links. The patent is owned by the University of California and licensed to Eolas Technologies, a closely held company formed by a university researcher, Michael Doyle.

“We’re pleased to be able to reach an amicable resolution in this long-running dispute,” said Jack Evans, a Microsoft spokesman.

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SanFran Wi-Fi Setback [8:13 am]

EarthLink Abandons San Francisco Wi-Fi Project

EarthLink’s chief executive, Rolla P. Huff, told Mr. Newsom in a telephone call on Wednesday that “they were not going to be able to fulfill their end of the bargain,” Mr. Ballard said. “Mr. Huff made it clear it wasn’t going to happen with EarthLink; they are getting out of the Wi-Fi business.”

EarthLink had already announced plans to cut costs by eliminating 900 jobs, about half its work force, and closing its offices in four cities, including San Francisco.

[...] Under the four-year agreement, which was never completed because of a political tug-of-war between the mayor and the governing Board of Supervisors, EarthLink was supposed to bear the cost of building and maintaining the Wi-Fi system, estimated at $14 million to $17 million.

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Troubling Scope of the Monster Spear Phishing Incidents [7:50 am]

What happens when we get used to routine online disclosure of information: Theft at Monster alarms expertspdf

The scam was first reported by researchers at computer security firm Symantec Inc. The company discovered a new “Trojan horse” program infecting hundreds of computers on the Internet. Machines infected with the program would log on to Monster, using legitimate passwords belonging to companies that use Monster to hire new workers. Investigators don’t yet know how the data thieves obtained those passwords. But the Trojan program would use them to collect personal data from resumes at the site, and forward the data to a computer in Russia belonging to a Ukrainian firm.

Most of the stolen data - names, addresses, phone numbers - was easily available elsewhere and posed little risk. But the e-mail addresses were valuable to phishers because the addresses gave them a mailing list of Monster subscribers. They could use the list to launch precise spear-phishing attacks with a likelihood of success.

“The phisher will look for any affinity between an institution or situation and a human being,” said Peter Cassidy, secretary-general of the Anti-Phishing Working Group in Cambridge. “They’ll find any relationship and mine it.”

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Dispatch From The Facebook/ConnectU Front [7:46 am]

Facebook seeks dismissal of copyright suitpdf

ConnectU’s complaint “contains a litany of unrelated facts and legal theories that fail to identify what role the individual defendants have played in any wrongdoing or violation of ConnectU’s rights,” Facebook stated.

[...] Closely held ConnectU, based in Cambridge, and its founder, Cameron Winklevoss, sued in March. They accuse Facebook, which is based in Palo Alto, Calif., of copyright infringement, breach of contract, fraud, and theft of trade secrets.

It’s the latest development in a dispute that began in 2004, when ConnectU first sued amid Facebook’s growing popularity.

See earlier post for background.

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Another iTunes Defector (updated) [7:40 am]

Testing the relative power of the content brand with the distributor (and playback) brand — and trying to avoid replicating the “Walmart dilemma” for digital content producers: NBC says deal with iTunes will endpdf (also, this version)

NBC Universal, unable to come to an agreement with Apple on pricing, has decided not to renew its contract to sell digital downloads of television shows on iTunes.

Apple responds with their own press release [via Machinist]: iTunes Store To Stop Selling NBC Television Shows - including this slam:

Apple’s agreement with NBC ends in December. Since NBC would withdraw their shows in the middle of the television season, Apple has decided to not offer NBC TV shows for the upcoming television season beginning in September.

*Snap* (In case you missed it, September starts *tomorrow*!)

On the other hand, Sony to unplug Connect music servicepdf. Any chance that Sony will retain and build upon the lesson this time around?

Acknowledging its proprietary audio technology was a marketplace flop, Sony Corp. is shuttering its Connect digital music store and will open its portable media players to other formats.

[...] “This gives customers greater flexibility in their music software approach,” the company said in a statement. “As a result, Sony will be phasing out the Connect Music Services based on Sony’s ATRAC audio format in North America and Europe.”

Sony spokeswman Linda Barger said the new Walkman players will no longer directly support ATRAC.

“We are offering conversion software to convert ripped non-secure ATRAC files to MP3,” she said in an e-mail.

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Digital Distribution and the Long Tail [7:34 am]

Keeping out-of-print CDs in circulationpdf

ArkivMusic, an online retailer that launched in 2002, is out to reverse that trend and restore as much of the deep catalog as possible. In addition to stocking every classical CD in print, it now offers what it calls ArkivCDs: reissues of out-of-print CDs produced on demand for the consumer. The project began three years ago; as of this writing, the company has made more than 3,700 recordings available in this way.

Eric Feidner, ArkivMusic’s president and cofounder, says that the ArkivCD program grew out of the company’s original mission, which was to build an efficient distribution system for classical recordings. “We built this database structure geared to classical music that makes it easy to find every available recording of Beethoven’s Fifth Symphony, which is something you can’t really do elsewhere,” he says by phone from his office in Connecticut.

“When we started ArkivMusic - and it’s only progressed further since then - there were actually more recordings in our database that were out of print than in print.” The brief shelf life is usually explained by the expense of printing and warehousing a title that may sell only a few hundred CDs per year, if that.

Feidner and his cofounders, who have all logged several years in the retail music business, realized that the labels’ woes were an opportunity. “We felt that the way to do it was to license the recordings from the label and, rather than doing standard manufacturing replication runs for them all, we would store all the components digitally - the music and the packaging elements,” he explains.

Related: New home for historic films and broadcastspdf

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August 30, 2007

OT: Subprime Mortgage Crisis and The Jungle [4:35 pm]

As a reader of Gabriel Kolko’s The Triumph of Conservatism, this article strikes an all-too-familiar chord. However, in light of the prevailing market ideologies, it’s hard to imagine that a comparable Progressive response is in the offing — and that may lose us a lot! Calls Grow for Foreigners to Have a Say on U.S. Market Rules

Politicians, regulators and financial specialists outside the United States are seeking a role in the oversight of American markets, banks and rating agencies after recent problems related to subprime mortgages.

Their argument is simple: The United States is exporting financial products, but losses to investors in other countries suggest that American regulators are not properly monitoring the products or alerting investors to the risks.

“We need an international approach, and the United States needs to be part of it,” said Peter Bofinger, a member of the German government’s economics advisory board and a professor at the University of Würzburg.

While regulators in the United States have not been receptive to the idea in the past, analysts said that Europe and Asia had more leverage now. Washington might have to yield if it wants to succeed in imposing bilateral regulations on government-owned investment funds from emerging economies.

After all, how different is selling poorly-documented securities from selling adulterated foods? I am sure the Chinese are confronting precisely the same question, and while the Progressive solution was regulation to protect business interests, it’s hard to imagine any Washington policymaker able to get past the “markets good, regulation bad” mindset that has led us to this pass.

Later: shades of Kolko! Industry asking for regulation! What’ll they think of next? Toy Makers Seek Standards for U.S. Safety. And, even in this article, note the opening rhetorical tone:

Acknowledging a growing crisis of public confidence caused by a series of recent recalls, the nation’s largest toy makers have taken the unusual step of asking the federal government to impose mandatory safety-testing standards for all toys sold in the United States.

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An Obviousness Smackdown [12:50 pm]

Albeit a painful and expensive process — yet one that exploited internet tools: Playing Detective in a Patent Case

“It’s a victory against patent trolls,” Mr. Goldin said. “This has changed the landscape. The days of coming up with an obvious idea and patenting it and using legal extortion are over.”

The Texas ruling was one of the first to apply a new test established by the Supreme Court on April 30 that makes it more difficult to obtain patents on new products that combine elements of already existing patents. Experts say the Texas opinion was certainly the first to apply the new standard to financial services and probably the first to apply it to a business method.

[...] On Feb. 28, 2006, at AdvanceMe’s request, he says, he met with its chief executive, Mr. Goldman, and the president, Tom Burnside, who offered to license their company’s collection methods to him. “I said, ‘I don’t understand how you can have a patent on something that has been around since the 1980s,’ ” he recalled. “They kept saying they had a ‘patent on the technology.’ ”

The next day, Mr. Goldin says, Mr. Goldman called him to say his company had filed a patent infringement lawsuit against AmeriMerchant — on the day before their meeting.

His first reaction was fear. His second was anger. “Losing was not an option,” he said.

Mr. Goldin, 35, said he found out that the only way he could win was to get AdvanceMe’s patent invalidated, and to do that he had to find written evidence that its payment system had been around at least one year before the patent was filed in July 1997.

He started a blog ( to argue his case and appeal for supporting evidence.

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Why Solving Copyright Matters [8:21 am]

It’s the abusive extension that’s a problem. As this article shows, it serves an important purpose: All the Right Moves — Dance Notation Bureau

The dance world was shocked when, at the end of October 2005, the Dance Notation Bureau suddenly laid off five of its six staff members and announced that it had run out of money. The bureau, the repository of hundreds of dance scores that use a system of symbols called Labanotation to document a vast range of choreographic oeuvres, had been quietly going about its work since 1940, most recently in its cramped offices and archives on West 30th Street in Manhattan. Despite its perpetual need for money, it always seemed to be one of the many struggling arts organizations that somehow manage to survive.

Since those dark days at the end of 2005 the bureau has staged a remarkable renaissance. It has raised more than $1 million from foundations, government and private donors and has expanded its staff to nine. A $500,000 endowment has been established to safeguard its future. The creation of a database and the digitization of the entire collection — including scores, films, videotapes, photographs, programs and posters — have begun, thanks to grants from the National Endowment for the Arts and the New York State Council on the Arts. In addition an ambitious project to notate seven works by Martha Graham is under way, alongside the business-as-usual aspects of checking scores, teaching future notators, and licensing and staging works all over the world.

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Amping Up The Rhetoric [8:05 am]

How long before we get told “You’re either with us on supporting copyrights for fashion, or you’re with the terrorists?” (Note: This NYTimes OpEd contributor does *not* make that connection, asking us to rely on the “Culture” leg of Larry’s New Chicago School map of control. But I am confident that copyright maximalists are going to make the connection.) Terror’s Purse Strings

At least 11 percent of the world’s clothing is fake, according to 2000 figures from the Global Anti-Counterfeiting Group in Paris. Fashion is easy to copy: counterfeiters buy the real items, take them apart, scan the pieces to make patterns and produce almost-perfect fakes.

Most people think that buying an imitation handbag or wallet is harmless, a victimless crime. But the counterfeiting rackets are run by crime syndicates that also deal in narcotics, weapons, child prostitution, human trafficking and terrorism. Ronald K. Noble, the secretary general of Interpol, told the House of Representatives Committee on International Relations that profits from the sale of counterfeit goods have gone to groups associated with Hezbollah, the Shiite terrorist group, paramilitary organizations in Northern Ireland and FARC, the Revolutionary Armed Forces of Colombia.

Sales of counterfeit T-shirts may have helped finance the 1993 World Trade Center bombing, according to the International AntiCounterfeiting Coalition. “Profits from counterfeiting are one of the three main sources of income supporting international terrorism,” said Magnus Ranstorp, a terrorism expert at the University of St. Andrews, in Scotland.

The article goes on to recount all sorts of crimes that are committed by those who make fakes; that’s where the enforcement belongs, not on criminalizing the creation of fakes. All that’s going to do is add the buying of fakes to the downloading of music, breaking the speed limit, etc. — further degrading the status and the role of the law in modern society.

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August 29, 2007

The DMCA and the iPhone Hacker [6:41 pm]

Why Apple Can’t Stop iPhone Hackerspdf

So will Apple and AT&T’s legal action deter hackers? Hardly. Individual users are already allowed to unlock their own phones under an exemption to the Digital Millennium Copyright Act (DMCA) that the U.S. Copyright Office issued last November. The exemption, in force for three years, applies to “computer programs…that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.”

What’s less clear is whether companies and hackers can legally unlock the phones and then sell them to others, or sell unlocking software. “The law here is unclear,” says Jonathan Kramer, founder of Kramer Telecom Law Firm in Los Angeles. “There just isn’t any case law in this area for us to figure out how it plays out.”

Experts believe that AT&T and Apple will point to the DMCA’s section 1201, stating that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” They will claim that a phone lock is just such a technological measure that protects copyrighted work: namely, cell-phone software.

Problem is, it could be argued that, in reality, the lock only protects access to a carrier’s communications network—and communications services aren’t copyrightable under the Act, explains Jane Ginsburg, professor of literary and artistic property law at Columbia Law School. “This law was written for DVDs and video games,” she explains. “What’s going on here is using the Copyright Act to achieve another objective.”

Indeed, this time, hackers may have the law on their side. Remember, decades ago, automakers built their instrument panels so that only authorized radios of their own manufacture would fit in. Eventually, U.S. courts ended that practice.

Also Unlocking iPhones for profit could draw lawyers’ attentionpdf

Later (Sept 4 — Australians move forward — Code crack opens the iPhone floodgatespdf

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Pot, Meet Kettle [5:09 pm]

Court rules against TorrentSpy in hacking case | Tech News on ZDNet

A lawsuit filed last year by TorrentSpy–a BitTorrent search engine–that accused the movie studios trade group of intercepting the companys private e-mails, was tossed out of court last week.

But while a U.S. District judge found that the Motion Picture Association of America had not violated the federal Wiretap Act, as TorrentSpys attorneys had argued, the MPAA acknowledged in court records that it paid $15,000 to obtain private e-mails belonging to TorrentSpy executives.

The MPAAs acknowledgement is significant because it comes at a time when the group is trying to limit illegal file sharing by imploring movie fans to act ethically and resist the temptation to download pirated movies. To critics, the revelation by the MPAA is a possible sign that the organization is itself not above adopting unethical practices in its fight against file sharing.

“Ethically, its pretty clear that reading other peoples e-mail is wrong,” said Lorrie Cranor, an associate research professor and Internet privacy expert at Carnegie Mellon University. “Being offered someone elses e-mails by a third party should have been a red flag.”

But seriously, there are some troubling things here: Legal woes mount for TorrentSpy:

“Essentially, one can do ongoing surveillance of another party’s e-mails without their consent and not violate the law,” [EFF's Kevin] Bankston said. “Not only does this open the door to privacy abuses in civil cases but it also could lead to abuses by the government…It’s an incredibly dangerous decision.”

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Making Friends, and Exporting Ideologies [7:10 am]

Although it’s been going on for years, this article in today’s Boston Globe really smacks you in the face. Not just because we are working to insult one of our closest neighbors because their copyright policies are different than our own, but also because we are managing to force them to adopt not just our policies, but also our ideologies of copyright. Note that the cited change in Canadian law introduces the notion that there are things that one is not supposed to be able to do with a tool, and also that employing the tool in this fashion is a proof of guilt, removing any question of intent: Pirates of Canada’s movie theaters snare booty off Hollywood bootlegspdf

One in six movie copies made by illegally recording from the screen originates in Montreal, according to the Canadian Motion Picture Distributors Association. Bootlegs made in Montreal have turned up for sale as DVDs in 45 countries, said Serge Corriveau, an investigator for the group.

Canada is paying a price for tolerating pirates. The International Intellectual Property Alliance, which represents 1,900 US companies that produce films, books, software, and other goods protected by copyright, placed Canada alongside China and Russia on its list of worst offenders.

Bowing to the pressure, the federal government changed the criminal code in June. Cammers now face as long as two years in jail for recording in a theater. Police previously had to prove intent to distribute in order to bring charges.

Does this mean that camcorder manufacturs will have to include, alongside consumer warnings like “Not to be used in the shower,” a warning that use inside a movie theater may open the owner to criminal penalties?

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August 28, 2007

The Unwhackable Mole [2:00 pm]

Russian pirate music site to reopenpdf

Russian music download site has said it will resume business soon, after a Moscow court ruled its operation is in accordance with Russian law.

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What an Expansive Intepretation of “Property” Gets You [11:53 am]

“Biopiracy,” among other things, including a policy run amok: As Brazil Defends Its Bounty, Rules Ensnare Scientists

Fears of biopiracy, loosely defined as any unauthorized acquisition or transport of genetic material or live flora and fauna, are deep and longstanding in Brazil. Nearly a century ago, for example, the Amazon rubber boom collapsed after Sir Henry Wickham, a British botanist and explorer, spirited rubber seeds out of Brazil and sent them to colonies in Ceylon and Malaya (now Sri Lanka and Malaysia), which quickly dominated the international market.

In the 1970s, the Squibb pharmaceutical company used venom from the Brazilian arrowhead viper to help develop captopril, used to treat hypertension and congestive heart failure, without payment of the royalties Brazilians think are due them. And more recently, Brazilian Indian tribes have complained that samples of their blood, taken under circumstances they say were unethical, were being used in genetic research around the world.

Brazil has in recent years passed legislation to curb such practices. National sentiment favors the laws, but scientists complain that they go too far, are too vague, confer too much power on authorities who have no scientific knowledge and have created a presumption that every researcher is engaged in biopiracy.

Hey, if you wanna live by the sword, you gotta expect you’ll die by the sword.

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A “Counter-Gould” Goldberg Recording [9:33 am]

And some notes on Glenn Gould’s expectations for music: Simone Dinnerstein plays the Goldberg Variations

We hear a lot about meteoric careers, but Gould’s—his concert career—really was. In 1964, at the height and breadth of his fame, he renounced the stage to devote himself to making records. Two years later he set forth the method to his madness in an essay in High Fidelity titled “The Prospects of Recording [Ed: sorry about the hideous HTML].” In prose of a puckish fustiness as distinctive as his playing, he made three predictions: One: that recording would supplant live performance. Two: that much of the real action, musically speaking, would take place in the studio. Three: that, as technologies of sound manipulation got better and cheaper, the line between artist and audience would be smudged and maybe even—in a distant, Gouldtopian future—erased.

At last count Gould is two for three, which beats the hell out of Nostradamus, Ezekiel, and St. John the Divine, despite their far greater fudge factors and grace periods. Sampling, mashups, remixes, the laptop studio; the recognition, at long last, of the art I’ve called “phonography”—prophecies Two and Three have come true in spades, most strikingly in the realm of popular music (about which Gould had relatively little to say). Prophecy One, though, looks dead wrong.

Over the past eight years, concert ticket sales have doubled. For the average musician, recording has never replaced live performance as a way of paying the rent, and in the post-Napster age—unless you’re a superstar or a studio regular—making a living from records is harder than ever.

All of this goes double for a classical player. [...]

See also this earlier post; the New Yorker article; Alex Ross’ blog entry

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The Line Between Promotion and Infringement [8:58 am]

Depends on what you get out of it: Digital DJspdf

[T]he hip-hop and gossip blogs have a forebear in mixtapes: the R&B and hip-hop music compilations that the record industry has used for decades to create early excitement for music. But mixtapes have faced perennial legal hardships because of crackdowns by the Recording In dustry Association of America. As mixtapes’ popularity wanes, fans have turned to black gossip and hip-hop blogs to find songs by artists such as Kanye West, Beyoncé, Common, and Ne-Yo. The music often arrives on the Web weeks before the official CD is released.

[...] Like the DJs who make mixtapes, bloggers have received a mixed reception in the record industry. Many executives recognize that Internet exposure can create a following for the artists that can translate into record sales. The Game’s CD “Doctor’s Advocate” leaked last year yet still debuted in the No. 1 spot of the Billboard album charts, selling 358,000 copies. A recent Capitol Records press release about J. Holiday’s R&B single “Bed” featured a quote from Concrete Loop’s music editor Brian Davis, as a sign of the single’s growing popularity.

[...] [T]here’s a limit to how much exposure the record companies want to give. Capitol, for instance, prefers handing out streaming audio, because free downloads can curtail single and album sales. Relationships can grow tense when material by a major artist or a potential blockbuster song leaks. The day after Rawlins posted “She Wants It,” from 50’s highly anticipated CD, “Curtis,” he received an e-mail from an executive at 50 Cent’s label, Interscope, asking Rawlins to remove the song from his blog. Bloggers have been sent cease-and-desist letters from the legal departments of record labels or received calls from record executives asking them to remove songs. One recent Concrete Loop post featured five downloads from M.I.A.’s new CD, “Kala”; the next day the links to the downloadable songs were dead. Nah Right featured a yet-to-be-released video for Talib Kweli’s new song “Hot Thing/In the Mood.” Within hours the video window simply read “removed by copyright holder.”

Interscope Records, which represents M.I.A. and 50 Cent, declined to be interviewed for this story. But there’s an increasing realization in the music industry that it needs to adapt to the digital music age. As the number of new media departments at record companies increases, executives are trying to change the way they do business.

“We need business models of our own out there in an offensive way to get people to work with us so we can get paid for our music,” says Christian Jorg, a recently hired senior vice president of new media and commerce at Island Def Jam. “We can’t go back to selling as many CDs as we did five years ago — that’s just unrealistic.”

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Responding to an Online Campaign [7:26 am]

Taste of Victory: Online Outcry Revives a Chocolate Bar

Companies everywhere are monitoring blogs and other online discussions for feedback on their brands and providing them with information about coming products, as well as placing so-called viral advertisements on video-sharing sites. But the company insisted that the expressions of affection for Wispa on the Internet were genuine.

The campaign for Wispa, and the decision by Cadbury to revive it, shows what can happen when nostalgia about lost brands converges with user-generated content and social networking sites.

“This is the first time that the power of the Internet played such an intrinsic role in the return of a Cadbury brand,” the company said.

[...] Still, was it wise for Cadbury to give in to the consumer campaign? After all, Wispa was pulled off store shelves for what seemed like solid reasons in 2003. Sales were flagging, and the company said at the time that a majority of consumers preferred a candy bar that was introduced to replace it, called Dairy Milk Bubbly.

“Clearly you want to listen to consumers,” said Karl Heiselman, chief executive of Wolff Olins, a brand consulting firm. “But I think we have to be careful about relying on them to do our jobs.”

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August 2007
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