Alec Austin

December 10, 2005

Europe Proposes Terrible IP Precedent

(Via Atrios)

The New York Times reports that European lawmakers are proposing legislation that would criminalize patent violation and impose prison time on patent violators.

Tim Frain, director of intellectual property at Nokia, called the inclusion of patents within the scope of a European law "ludicrous." Mr. Frain, who is based outside London, advises managers at Nokia on the risks of infringing existing patents when they develop new functions for mobile phones.

Mr. Frain indicated that patent holders wanted protection, but not penalties of imprisonment as they test the boundaries of other patents.

"It's never black and white," he said of patents. "Sometimes third-party patents are so weak that I advise managers to go ahead and innovate because after making a risk analysis we feel we can safely challenge the existing patent."

He added, "But with this law, even if I'm certain the existing patent is no good, the manager involved would be criminally liable."

What he said. This move would absolutely have a chilling effect on innovation, especially given how poorly vetted most technological or conceptual/business practice patents are. Mandating prison time for accidentally trampling on a pre-existing patent (which may well be flawed) is an absolutely terrible idea.

December 9, 2005

Norwegian Broadcaster Tests Interactive Mobile TV

(Via Lost Remote)

The first attempts to create interactive TV may have flopped, but the idea keeps cropping up. This time it's being tried by Norwegian broadcaster NRK and Swedish wireless equipment maker LM Ericsson. According to Yahoo! News:

During the six-week test, which started Monday, users can download a program for watching and interacting with the Norwegian youth music program "Svisj" on their mobile phones.

Users can vote for the next music video by pressing a mobile phone key, and chat in writing with each other or the program leaders while watching the show.

Espen Torgersen, a telecommunications analyst with the Carnegie Investment Bank AB, said the extent of interaction of the system may be new, but that many similar projects are under way.

I have to confess I was hoping for something more impressive than the ability to vote on the next TRL video. So far, the killer app of "interactive" TV has been the easy time-shifting enabled by TiVo and the DVR.

Online Video Audience Skews Older

(Via Lost Remote)

35 to 54 year olds are 20% more likely to watch online video than the average internet user, according to a recent study by ComScore, and accounted for more than 45% of the online video audience in August 2005. As ComScore's Erin Hunter notes, "it's not just college kids or bleeding-edge internet users who are streaming videos."

While the bulk of the study is behind a pay wall, the following findings were summarized in the press release:

* More than 100 million users consume online digital media (streams and downloads) in the U.S. in a month, which represents almost 60 percent of the U.S. online population (97.5 million computers).

* Video consumption crosses all dayparts and demographics, with the primetime and daytime dayparts showing particular strength.

* Nearly two-thirds of all U.S. Internet users in August streamed audio or video through a Portal and almost 50 percent did so from an Entertainment site

* More than 17 percent of U.S. Internet users streamed content from a Music site and 15 percent streamed from a Retail site.

All this data is interesting, of course, although it would more useful it it was put in context. For instance, what kinds of content do users watch through streaming video, and what do they prefer to download to their hard drive or DVR? Will people pay for streamed content, or is advertising a more effective means of monetizing the media form? Obviously, some popular streaming videos are advertisments, such as the now-defunct BMW Films and Apple's movie trailers, which presumably more than pay for themselves.

More on Consumer Pressure (and Ford)

As I noted in the comments of Sam's post, below, AmericaBlog has been all over Ford Motors for caving to the demands of the American Family Association. Obviously, this is an area where brand cultures overlap with politics, as a look at the history of the AFA's attempts to influence Ford shows:

Some AMERICAblog readers uncovered an action alert the American Family Association (AFA) used to try to influence Ford to become anti-gay three years ago.

In that alert, the AFA uses the science of one Paul Cameron, the head of the Family Research Institute, an organization labeled a "hate group" by the Southern Poverty Law Center (SPLC), and whose "research" the SPLC says "echoes Nazi Germany."

...Specifically, the AFA is using Paul Cameron's fake "study" in which he determines that gay men die by the age of 40. I'm serious. (Cameron simply read the obituaries of gay men in gay publications in 1993, then averaged the age of death - really.) The AFA literally cited the results of this study in their action alert - I've been following Cameron's "research" and the religious right's use of him for the past 13 years.

In light of the tactics used by the AFA (as well as the PR implications of being associated with them) it's illuminating to contrast Ford's reaction to that of Kraft, which reacted quite differently to pressure from the AFA. An excerpt from Kraft's press release follows:

In recent days, the company has received many e-mails, the majority of them generated through the America Family Association, which objects to our sponsorship [of the 2006 Gay Games]. We also have received calls and e-mails - - not as many, but equally passionate - - thanking us for supporting this event.

...It can be difficult when we are criticized. It's easy to say you support a concept or a principle when nobody objects. The real test of commitment is how one reacts when there are those who disagree. I hope you share my view that our company has taken the right stand on diversity, including its contribution to the 2006 Gay Games in Chicago.

This is one case where I'm actually pleased that 'fan' pressure failed to achieve its desired goal.

December 8, 2005

Nielsen DVR Ratings forthcoming

(Via Lost Remote)

On December 26, Nielsen is shifting over to a three-part rating system, with the latter two data streams reporting on DVR playback. The three streams are:

1) live, viewing excluding any DVR playback;
2) live plus same day, live viewers and those who played back programs on a DVR within one day of their initial airing; and
3) live plus seven, live viewers and those who played back programs on a DVR within a week of their initial airing.

While up to 90% of DVR users skip ads, the expanded DVR ratings will be important for gauging the reach of product placements, particularly if Nielsen releases minute-by-minute breakdowns of their ratings so both producers and program sponsors can see when viewers were tuned in.

Says Sara Erichson, general manager of national services for Nielsen Media Research, "With regard to the different flavors of data, it was pretty clear that different clients had different needs and different priorities."

Changes in Nielsen ratings, the basis upon which networks and advertisers negotiate the value of ads, threaten to drastically alter how advertising deals are structured. Many ad buyers, not surprisingly, don't like the new streams and say they won't include DVR viewers in deals they make during next spring's upfront; more viewers mean more money that advertisers could be asked to shell out.

Of course, 45% of all viewers of live TV don't watch ads either. Still, the spread of DVRs and the availability of TV shows for online download should start pressuring advertisers to sink more money into product placement any day now...

HBO Inks Deal With Vodafone

Apparently HBO will be offering its shows via Vodafone's 3G mobile phones in Europe. The options (Sex and the City, Six Feet Under, Curb Your Enthusiasm) seem to be shows that have finished their run, so neither Rome nor Deadwood is available, but has quite a list of other channels (including MTV, Discovery, Fox, and Eurosport) which are carried via Vodafone in the UK and New Zealand.

It's interesting that one of the side-effects of the convergence of TV and electronic media is the divergence of ways in which people consume that media. I suspect that while it's easier to repurpose existing content for phones and portable video players like the video iPod, the not-too-distant future will see more content being created specifically for mobile platforms. (Whether that content will have to sell itself by association with a pre-existing brand, like the 24 and Lost mobisodes have, is quite another question.)

December 5, 2005

NYU Fair Use Report

The Free Expression Policy Project of the Brennan Center of Justice (at NYU's law school) has just released a report titled: "Will Fair Use Survive? Free Expression in the Age of Copyright Control".

To get kind of technical, as C.E. Petit has noted:

Keep in mind that fair use is not a privilege. It is instead an affirmative defense to an accusation of infringement. (Unfortunately, neither the statute nor the courts are very consistent in treating it as such.)

That said, the (quite reasonable) concern expressed in the study is that the culture surrounding copyright and trademark enforcement is having chilling effects on the exercise of the right to free speech. Those interested in the legal issues surrounding fan-created content and intellectual property may find it worth a look.

December 4, 2005

Digital VCR for TV/PSP/iPod

(Via Kung Fu Monkey)

NeurosThe Neuros MPEG4 recorder is a digital device that records TV to a hard drive or memory stick, and allows playback, much like TiVo's iPod-compatible extension for TiVo ToGo. This is mostly important because now there's a hassle-free way of porting TV onto PSPs as well as iPods, increasing the overall portability of media.

Regarding the impact of this growing trend, Rogers says:

Why do I like this stuff? Well, it's part of my 4th Generation Media Theory -- the profitability of future shows will not only depend on mob-dissemination of the products; there will be a direct relationship between the availability of good-but-not-great copies of those shows -- which can therefore be traded more much easily -- and the said profits. The faster we mainstream port-ability, we mainstream in the perception of trade-ability.

He goes on to lay out the probable progress of several other trends that I've been following closely:

There are two pieces of news which show some promise for the evolution of 4GM. First, the FCC has come out in favor of a la carte cable services. This won't change the mechanics of TV distribution all that much, but again moves audience perception along a very important curve for 4GM -- it changes the perception of TV/entertainment from something shoved down a pipline to them into something they choose. And as soon as they begin choosing the material, if only in the broad "what channels do I choose" sense, the nature of their relationship with the media changes. To be blunt, I think that most people won't bother to parse through the basic cable package channel list, but it's another chink in the wall.

The other bit of news is more a rumor(leading us into the tactics discussion mentioned above): the buzz is Apple will make some heavy-duty announcements about moving into the home entertainment business and expanding its downloadable media deals to include other companies than Disney/Touchstone. CBS and NBC are possibilities. Now CBS and NBC already have deals in place with Comcast and DirectTV, respectively, so why the dabbling with Apple? I've written previously that I believe the delivery-systems will be the ultimate winners in the downloadable entertainment wars, but as I mentioned in the same post, Apple basically used (think total pwnage, please) the ABC deal to bootstrap itself into first place in the Perception Wars. If they wield that early advantage ruthlessly ... It'll be a race now, between Apple locking down the "source of all your media" spot in the consumer's mind, and cable's "we are the source, the box is meaningless" destiny.

Definitely food for thought.

Cory Doctorow's comments on the device at Boing Boing are also worth a look, for those interested in IP law.

December 1, 2005

New Models for Cancelled TV Shows

The question of off-network TV models (subscription TV, straight to DVD TV, and so on) has been really hot in the last few weeks. A few weeks ago, Lost Remote proposed a multi-part model for cancelled shows (specifically Arrested Development) which seems to be getting some press. Here are some of their suggestions for the show:

* Offer the show online and on VOD every week for free.
* Make it a free video podcast.
* Seed BitTorrent with it.
* Set up a site that has all the shows right there, along with shorter-form content, ready to watch or download in all formats.
* Have the cast blog - in character. Have them do video blogs and even live webcasts in character, too.
* After each show, have viewers comment and then address their comments. Invite the best commenters to have a guest spot on the show.
* Heck - invite fans to shoot their own fan-fic shows. Celebrate "AD" as the first open-source sitcom.

Meanwhile, a bevy of screenwriters have been discussing the possible hang-ups of an off-network model - namely the "Joss Paradox", or the fact that off-network models might work for the likes of Joss Whedon (of Firefly, Angel, and Buffy), once he's gathered a bunch of fans, but how do new creators get to the point where they can do that?

November 20, 2005

Playing Hardball

C.E. Petit, in reference to a dispute in which the University of Alabama sued and blackballed a fan and booster of the school's football team over trademark infringement in his (very popular) paintings, writes:

Don't get the idea that I think this is "poor [alma mater]-- the law made them act like a bad guy" post. While I do think that the "defend it or lose it" aspect of trademark law is often a bit silly-- strike that; almost always a bit silly, and often counterproductive-- [alma mater] still blew it with its particular approach. A more-inventive approach might have involved hiring Moore as an adjunct professor of art with a specific exclusion of copyright in his contract, and paying him a dollar for teaching a seminar or studio class each year. Then there is no "market value" placed on the license that could muck up other actions. Too, the value of the museum's collection has no doubt been enhanced by the painting's increased value since acquisition; why couldn't the university consider that factor in tailoring a remedy? And so on.

Then he gets to the really interesting bit:

The ultimate problem is that too many lawyers-- and, oddly enough, an even higher percentage in art/entertainment/publishing law than I have encountered outside those areas-- are not very creative in resolving disputes. They push either a "boilerplate contract" or "hardball litigation." That isn't representing the best interests of the clients. It certainly isn't representing the best interests of the public. In that sense, I think art, in the broadest possible sense of the term, is "special"-- if only because of the public's First Amendment interests.

This is particularly true when dealing with fans and fan cultures, as taking a hardball approach with people who support and evangelize for your product and company (or school, in this case) is often totally counterproductive.

(Read the whole thing here.)

Intrusiveness vs. Relevance

An interesting shift in attitudes is revealed in a story on Google ads in The New York Times. Remember pop-under ads from way back in 2001?

In a survey in mid-2001, X10's company Web site was the fourth-most visited in the online universe, though the statistics did not distinguish between voluntary and inadvertent visits. Its apparent success led some in the advertising industry to publicly endorse the loathsome pop-under. Brian McAndrews, the chief executive of the online ad agency Avenue A, was quoted in Advertising Age in 2001 as saying, "Just because something is intrusive doesn't mean it's bad."

This is the same man, four years later:

Mr. McAndrews, the onetime defender of intrusive pop-unders, has taken note. He is now the head of aQuantive, the parent of Avenue A/Razorfish. When reminded last week of his past statement that intrusive-doesn't-mean-bad, Mr. McAndrews said, "I've evolved my thinking. The key is no longer intrusiveness; today the mantra is relevance." No ad is more relevant to a user than that linked to a Web search, he said.

Of course, the key never was intrusiveness, and while I'm sure X10 got some business out of spamming the known universe and making it nigh-impossible to close a web browser, I can't imagine that the proportion of people who inadvertently went to their site and then actually bought something was particuarly high. There's a lesson to be found in the success of Google ads, if one cares to look.

Snocap: the P2P killer?

So Shawn Fanning, the guy who created Napster, has come up with a new program called Snocap that aims to prevent peer-to-peer piracy of music files:

The heart of Snocap is its sophisticated registry, which will index electronically all the files on the file-sharing networks. "Rights holders," which are what he calls musicians and their labels, will use the system to find those songs on which they hold copyrights and claim them electronically. Then they will enter into the registry the terms on which those files can be traded. It could be just like iTunes - pay 99 cents, and you own it - or it could be trickier: listen to it five times free, then buy it if you like it. Or it could be beneficent: listen to it free forever and (hopefully) buy tickets to the artist's next concert. Of course, the rights holders could also play tough: this is not for sale or for trading, and you can't have it.

It's an interesting idea, although since only two P2P companies (Grokster & Mashboxx) have signed on so far, it's unclear whether Snocap will make a big splash or sink without a trace. Also, people who stick with the old version of Grokster will be able to continue pirating music without impediment.

Personally, I think the "listen five times free, then buy it if you like it" model sounds the most sensible, though as usual with anti-piracy schemes, it'll be interesting to see how resilient the DRM on the limited-use files proves to be.

November 17, 2005

DRM "an inept solution"

C.E. Petit, a prominent IP lawyer who's represented Harlan Ellison in a number of piracy cases, talks sense over at Scrivener's Error:

The underlying difficulty is that DRM is inherently an inept solution to the basic problem, no matter how elegantly implemented; the problem extends far beyond limitations on (or expansion of) fair use. Instead, this is a matter of economics and price points.

This is a point that comes up again and again in studies of file sharing; people don't want to pay a premium for a CD with only one or two tracks they'll actually listen to. In addition, there's an issue of goodwill involved; when consumers consistently find themselves buying $14-$18 albums for one or two radio hits, it's not unreasonable for them to feel like they're being cheated.

Mr. Petit continues:

This points out the economic model for preventing (or combatting) piracy: The perceived quality and availability of the genuine article must substantially exceed the premium over the counterfeit [...] All of this implies that instead of DRM, the media giants need to take a close look at their pricing structures, accounting, release timing, and value added to physical products.

In other words, if you can give people positive incentives (worthwhile extras, the sense that they're not being ripped off) to buy your product instead of pirate it, they'll do so. Funny how that works.

Go read the whole thing.

Sony Recalls DRM-ridden CDs

After taking a beating in the court of public opinion for releasing music CDs which install DRM software that leaves computers vulnerable to viruses (which I blogged about in more detail here), Sony has not only halted production of CDs containing the program, but has bowed to consumer pressure and issued a recall.

How long will it take for companies to figure out that copy protection doesn't work? The problem with DRM technology is that if it's non-invasive, it can and will be cracked or circumvented-- and if it is invasive, you run into problems like Sony did, with people using it to cheat in World of Warcraft (on the one hand) and hackers using it to make viruses and malware impossible to detect. No matter how clever you get, you're going to have some piracy-- hell, you could tape songs off the radio long before Napster showed up.

To continue my 5 stages of grief metaphor from an earlier post, the RIAA and the music industry have moved past denial (their pre-Napster apathy towards mix tapes and expensive CD burners) straight into anger, and have stayed there for most of the last decade. Whether alienating their audience with DRM counts as anger or bargaining is debatable, but until people begin to come to terms with the new media landscape spawned by P2P, they're going to keep making the same mistakes over and over again.

(Hat tip to Lost Remote for news of the recall.)

November 16, 2005

Design Issues 101

Via Mike McArtor,'s Xbox 360 Hardware Pr0n page contains a classic example of design failure:

Leave it to industrial designers to put the "how to remove" instructions under the [hard] drive, where you can't see them until after you get it off.

Note to industrial designers-- it helps when your clean, crisp instructional diagram is actually, y'know, visible.

Major Networks in DVR Denial

From Gizmodo:

CBS, ABC, NBC, Fox, UPN and the WB hold a rare joint press conference to inform advertisers that the DVR isn't death incarnate for conventional TV commercials. One of the tenuous linchpins of their argument: DVR users pay more attention to what's flashing on-screen, even if it's a commercial that's being fast-forwarded at 10 times normal speed, so if something catches their eye, they'll rewind back to see it.

Does anyone who's not drinking the networks' kool-aid believe this?

Let me be blunt: The conventional TV commercial is going the way of the dinosaur. We don't know what will replace it yet, but it's an open secret that even as the price of prime-time advertising goes up, its impact is dropping like a stone. Although there are only an estimated 8 million DVRs in homes and playback viewing is less than 5% of the total viewing audience (numbers via adweek), it's indisputable that DVR viewing is on the rise (to say nothing of other recent ad-free trends, like people BitTorrenting TV shows to watch on their computers and ABC's recent partnership with Apple).

The major networks appear to be in complete denial about the impending demise of the TV commercial. That's the first of the 5 stages of grief. Personally, I can't wait until we hit anger and bargaining.

Update: Ilya takes issue with some of my conclusions in comments. Come join the fun.

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