TEDxWTF —

The Harvard Business Review has an interesting look at what has happened as TED Talks has expanded to ever-wider audiences and (in doing so) has lost control of its own brand. It's also an excellent object lesson in why slapping the TED logo on something doesn't make it true. — Maggie •

In Bruce Sterling's barn-burning closing keynote for SXSW 2013, he confronts the realities of disruption -- that disruption leads to destruction. Our wonderful things destroy other wonderful things. The future composts the past. We roast the 20th century over our bonfire, let's not shamefully pretend that we did it by accident. Let's eat our kill.

Important stuff.

Bruce Sterling closing remarks at SXSW2013

On TechDirt, Tim Cushing follows up on a WSJ story where filmmaker/indie distributor Kathy Wolfe says that half of her profits, about $30,000, are spent sending out DMCA takedown notices to fight piracy. Wolfe has an admirably successful and long-lived business, and Cushing tries to find out how Wolfe hit on the $30,000 figure as the optimal amount to spend fighting piracy, but it seems that Wolfe's spending of half her profits are based largely on faith, and unsupported by any data she is willing to share.

Removing links may generate a few sales, but certainly not enough to offset an effort of this magnitude. Some file sharers will never purchase anything, and if they can't pirate a Wolfe film, they'll simply find something else to download. Others will purchase something after an illicit "preview." Taking away the link they might have utilized simply sends them looking for other links... or other movies. Generally speaking, a failed search for a "free" movie rarely results in the sale of the same movie.

Wolfe Video is doing the right thing by diversifying its distribution across multiple services and, even better, by running its own in-house digital rental/download platform. These efforts will do more to increase sales (and profits) than $30,000 worth of takedown notices. It's hard not to view illegal downloads as "lost sales," but entertaining that notion results in deterrence efforts that far outweigh the benefits.

The fact is that removing illegal options won't generate sales. Removing a negative ("lost sale via illegal download") doesn't create a positive ("gained[?] sale"). It simply levels off at $0. Positive efforts will tilt that scale back towards the creators. Negative efforts max out at $0, at best.

As I stated in my email to Kathy Wolfe, I have no desire to paint her as someone who tilts at windmills to the tune of $30,000/year. She strongly feels this effort needs to be made in order to protect a business she's run for over 25 years. I can completely understand that. My concern is that this effort is over-funded and a long, hard look should be taken at any connection between the takedown effort and corresponding sales fluctuations.

Could the same be accomplished at half the price? How about $10,000 per year? Or $0? I think some experimentation is called for. Back all enforcement efforts off for a few months and watch for any signs of a sales decline. If the drop is precipitous, scale the efforts up and see if the numbers respond. But rather than intensify the efforts, slowly escalate until you find a balance between deterrence and sales that works out best financially.

This is the kind of empirical business question that the piracy debate needs answered, rather than ideological claims that all piracy is bad and anything you spend fighting it (or the world spends fighting it in the form of laws) is worthwhile.

Indie Film Distributor Spends Half Her Profits Sending DMCA Takedowns, But Is It Worth It?

Ian Hickson, the googler who is overseeing the HTML5 standard at the W3C, has written a surprisingly frank piece on the role of DRM. As he spells out in detail, the point of DRM isn't to stop illegal copying, it's to stop legal forms of innovation from taking place. He shows that companies that deploy DRM do so in order to prevent individuals, groups and companies from innovating in ways that disrupt their profitability:

The purpose of DRM is to give content providers leverage against creators of playback devices.

Content providers have leverage against content distributors, because distributors can't legally distribute copyrighted content without the permission of the content's creators. But if that was the only leverage content producers had, what would happen is that users would obtain their content from those content distributors, and then use third-party content playback systems to read it, letting them do so in whatever manner they wanted.

Here are some examples:

A. Paramount make a movie. A DVD store buys the rights to distribute this movie from Paramount, and sells DVDs. You buy the DVD, and want to play it. Paramount want you to sit through some ads, so they tell the DVD store to put some ads on the DVD labeled as "unskippable".

Without DRM, you take the DVD and stick it into a DVD player that ignores "unskippable" labels, and jump straight to the movie.

This is the first third of my recent Guardian column, What I wish Tim Berners-Lee understood about DRM, but there's two other important points to make, apropos the W3C:

Read the rest

This really deserves its own post. In the comments on the post on Kirtsaeng -- where the Supreme Court just upheld the right to sell used goods, even if they were made abroad -- Shrikant quotes from Heinlein's classic short story Life-Line:

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

The US Supreme Court has handed down a verdict in Kirtsaeng v. John Wiley & Sons, one of the most important copyright cases of the century. In it, the publisher John Wiley & Sons sought to block the import of legally purchased cheap overseas editions of its books by arguing that "first sale" (the right to resell copyrighted works) only applies to goods made in the USA. However you feel about cheap overseas editions and their importation into the USA, this was a disastrous legal theory. Practically everything owned by Americans is made outside of the USA and almost all of it embodies some kind of copyright. Under Wiley's theory, you would have no first-sale rights to any of that stuff -- you couldn't sell it, you couldn't even give it away. What's more, the other "exceptions and limitations" to copyright would also not apply, meaning that it would be illegal to photograph anything made outside of the USA (no di minimum exemption) or to transform it in any way (no fair use, either). Thanks goodness the Supremes got this one right!

Here's some choice bits of the decision (PDF)

These intolerable consequences (along with the absurd result that the copyright owner can exercise downstream control even when it authorized the import or first sale) have understandably led the Ninth Circuit, the Solicitor General as amicus, and the dissent to adopt textual readings of the statute that attempt to mitigate these harms. Brief for United States 27–28; post, at 24–28. But those readings are not defensible, for they require too many unprecedented jumps over linguis tic and other hurdles that in our view are insurmountable. See, e.g., post, at 26 (acknowledging that its reading of §106(3) “significantly curtails the independent effect of §109(a)”).

...In reaching this conclusion we endorsed Bobbs-Merrill and its statement that the copyright laws were not “in tended to create a right which would permit the holder of the copyright to fasten, by notice in a book . . . a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it.” 210 U. S., at 349–350.

And here's a serious smackdown of the "if I can make money doing it, copyright should protect it" theory of law:

Third, Wiley and the dissent claim that a nongeographical interpretation will make it difficult, perhaps impossible, for publishers (and other copyright holders) to divide foreign and domestic markets. We concede that is so. A publisher may find it more difficult to charge different prices for the same book in different geographic markets. But we do not see how these facts help Wiley, for we can find no basic principle of copyright law that suggests that publishers are especially entitled to such rights.

Supreme Court Upholds First Sale Doctrine

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Update: a great comment from Shrikant, below:

It would appear that the Supreme Court has essentially just paraphrased Robert Heinlein from Life-Line:

"There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back."

Further to yesterday's post about the way that the UK's new press regulation will affect bloggers, tweeters, tumblrers, facebookers, et al., Lisa O'Carroll at the Guardian points out that anyone who doesn't sign up for the "voluntary" system of press regulation will be liable to punitive "exemplary" damages for libel, as well as being on the hook for their accusers' legal fees, even if no fault is found.

The exemplary damages clause was recommended in the Leveson report but has been opposed by newspapers, including the Guardian, which have been given legal advice that it could be contrary to the European convention on human rights, which enshrines the principle of free speech.

Lord Lester, the campaigner for libel reform, warned during the Leveson debate in the House of Lords earlier this year that publications such as Private Eye and local newspapers could face closure as a result of the imposition of exemplary damages.

On Monday night, the editor of the Guardian, Alan Rusbridger said he welcomed cross-party agreement on press regulation, but said: "We retain grave reservations about the proposed legislation on exemplary damages."

Under sustained questioning on Monday night during the Commons debate about the courts bill, which includes the Leveson regulations, the culture secretary, Maria Miller, said the "publisher would have to meet the three tests of whether the publication is publishing news-related material in the course of a business, whether their material is written by a range of authors – this would exclude a one-man band or a single blogger – and whether that material is subject to editorial control".

But if you and three friends edit a joint Twitter account or blog or Facebook group, you fit the bill. To those who say that a Twitter account isn't a website, I think they're erroneously assuming consensus about what is and isn't a webpage. If www.wordpress.com/doctorow is a website, then why isn't www.twitter.com/doctorow?

Bloggers may face libel fines under press regulation deal

Richard Nash's essay "On the business of literature" is one of the best, most thought-provoking, most beautifully argued articles about the business of publishing through history and in the Internet age that I've ever read. It's one of those pieces from which it is nearly impossible to choose an illustrative quotation -- as I read, I kept happening on passages and thinking, "Aha, that's what I'll put in the post so people will know how interesting and important this is," only to find another passage a few minutes later that superseded the former one. So here's one quote to whet your appetite, and I'll stick another after the jump, but for heaven's sake, just go read the whole thing. Really.

What is particularly crucial to understand is that books were not dragged kicking and screaming into each new area of capitalism. Books not only are part and parcel of consumer capitalism, they virtually began it. They are part of the fuel that drives it. The growth of the chain model in books offered everyone the opportunity to decry the groceryfication of the bookstore, utterly belying the reality, as Striphas outlines in his excellent The Late Age of Print, that the bookstore is in fact the model for the supermarket:

In the history of shop design, it is bookstores, strangely enough, that were the precursors of supermarkets. They, alone of all types of shop, made use of shelves that were not behind counters, with the goods arranged for casual browsing, and for what was not yet called self-service. Also, when brand name goods and their accompanying packages were non-existent or rare in the sale of food, books had covers that were designed at once to protect the contents and to entice the purchaser; they were proprietary products with identifiable authors and new titles.

There are other examples of significant innovation being driven by the publishers—Penguin founder Allen Lane's 1937 paperback vending machine for better commuter distribution being among the most charming—but the point is that books aren't sitting grumpily in economy class on the airplane to the future. They're in the cockpit.

Nash founded the amazing Soft Skull Press, which had many triumphs, not least publishing the amazing Get Your War On books.

VQR » On the business of literature

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A Fort Worth, TX cop told a guy in a Statue of Liberty suit to move along from the road-median where he was advertising Liberty Tax Services. Lady Liberty did not immediately comply ("Get away from me! What are you doing? Go talk to my boss!") so the cop tazed the Statue of Liberty. Three times. As Lowering the Bar points out, this has bad optics.

People in Liberty suits have rights, too, but not the unrestricted right to solicit customers from a median. While this does implicate the First Amendment, it would be the kind of time, place, and manner restriction that usually passes muster. The situation would be different if a local government tried to completely ban the use of such "moving signs" or (as I prefer to call them) "business mascots," which of course is something that has happened before. See "The McHenry Code," Lowering the Bar (Sept. 6, 2006).

b Coincidentally, that incident (which happened in Illinois) also involved "Lady Liberty," as well as the Verlo Mattress Factory's "Mattress Man," a 4-by-3-foot ambulatory mattress with "comically large hands." McHenry's city council had decided that such "live moving signs" were distracting drivers (which is part of the point of having one) and causing a nuisance because people honk at them. (The council also threw in an alleged "safety risk" to the person in the costume, saying they might get heatstroke.) If I recall correctly, the council later reversed itself on the complete ban, thus giving Liberty some limited freedom.

You Know, It Just Sends the Wrong Message When You Tase the Statue of Liberty

Another great ramble from the always-fascinating Venkatesh Rao entitled "The Dead-Curious Cat and the Joyless Immortal," considers several explanations for our species' curiosity, and asks whether our weird, ubiquitous artificial life-forms (corporations) share this trait, and why:

Alone among the curious animals (though this seems like a conceit that more research might invalidate), we seem to be curious about clearly useless things. Or at least, things that have no obvious and immediate use. Humans seem to frequently poke at things that yield returns, if at all, only generations later. And often in ways unsuspected by those who do the poking.

We stare at the stars, we peer through microscopes, we climb mountains and we dive to the ocean floor.

This behavior, so natural to humans, is incomprehensible to human organizations. So things like space programs or other pure curiosity driven efforts have to be justified by politicians on the basis of “will improve life here on earth through the discovery of new materials and advances in medicine.” This is probably the mother of all idiotic fictions. Fortunately, we don’t seem to require our institutional fictions to be credible. Merely sufficient to stop conversations we don’t want to have.

There is an interesting symmetry here. Organizations naturally try to avoid pain — the pain of business model obsolescence or national decline for instance – through institutionalized “curiosity.” They find joy-seeking unnatural and in need of justification (hence the paradoxical notions of “efficient” innovation with high “yield” or “impact” and the relentless war on waste).

This has even been turned into a depressingly banal formula for innovation: what pain are you seeking to relieve?

For humans the reverse is true. Curiosity driven by pain-aversion is unnatural, but curiosity driven by joy-seeking is natural and requires no further explanation. Efficiency is the last thing on our minds when we are being curious. The concept does not even apply: efficiency pre-supposes a goal. Waste is pain in the efficient pursuit of goals.

The Dead-Curious Cat and the Joyless Immortal