Ross Pruden's Favorite Techdirt Posts of the Week

from the favorites-favorites-and-more-favorites dept

Choosing my favorite posts this week has been a challenge because a single week of Techdirt posts is a lot to read and digest for me. Truth be told, I'm the world's slowest reader. I'd like to think it's because I have to frequently stop and re-read to grok the full import of each post... after all, there's always a nugget of insight to be gleaned on Techdirt. Not a week goes by without a delightful debunking, comic flip-off, outrageous abuse of trademark protection, or some new lesson in law or economic theory. While I often see the original articles on Techdirt in other places, I never miss a chance to read the commentary here on Techdirt.

Let's kick things off with two excellent comic flip-offs:

A musician names his album, "Kevinspacey". The real Kevin Spacey has his lawyer send a cease-and-desist letter because "Kevin Spacey" has been trademarked. (You could even do that? Huh. Another lesson learned.) And the musician's response? Relabel his album, Evinspacey. I already want to buy the album and I know nothing about it.

Writer makes an comment about Stetson hats. Stetson sends him a letter insisting he add the ® symbol when using their brand name. What was the writer's response? Stetson® hats suck. Hopefully, this will show the trademark attorneys that, sometimes, the best move is no move at all.

As for trademark abuses, Access Copyright claimed a trademark on the copyright symbol itself. Is there no end to the madness? Is our very DNA going to trademarked one day? As if that isn't bad enough, Disney slapped a trademark on Seal Team 6. As Mike put it, "I wonder if the Navy SEALs themselves will file a protest. I would imagine that you generally don't want to be on the other side of a dispute with Navy SEALs."

I learned more about the law this week as Mike explained how he had to file a Freedom of Information request about ICE's anti-piracy videos. These are the kinds of posts I really look forward to because they illustrate the law in action, something few non-lawyers ever have a chance to see:

…[T]he three Freedom of Information requests -- filed using the new system from MuckRock.com, an open government tool that seeks to publish documents retrieved via such requests and which recently built a tool to make it easier to make such requests (which I'm now testing) -- are as follows:

1. A FOIA request to the Department of Homeland Security, concerning the details of any licensing agreement with the City of New York or with NBC Universal directly.

2. A request under NY State's Freedom of Information Law concerning details of any licensing agreement with Homeland Security concerning the same videos.

3. Separately, a second request to NYC, concerning communications between the Mayor's Office and NBC Universal or the MPAA concerning the details behind those videos as well.

The NY State law says that the city must respond to my request within five business days. DHS has a longer period of time to respond.

It sounds small, but posts like this are a welcome reminder to me that the law isn't a nuisance to us, but is also there to serve us; filing a FOI request is iconic of that power.

In the same vein, I was very glad to see the stories about Amazon and Google not rolling over at the government's whim. First, Amazon says they won't pay taxes in other states unless the government says they have to:

...Jeff Bezos is claiming that such attempts to collect sales tax are unconstitutional without Congressional approval:

And in the U.S., the Constitution prohibits states from interfering in interstate commerce. And there was a Supreme Court case decades ago that clarified that businesses -- it was mail-order at that time because the Internet did not exist -- that mail-order companies could not be required to collect sales tax in states where they didn’t have what’s called “nexus.”

And that’s a very clear decision.

This is, of course, entirely accurate.

I've often wondered how Amazon was going to handle states demanding back taxes on sales within their borders. Always seemed like a sticky issue to me, and one which keeps cropping up in different ways. For example, Virgin's Megastore on the Champs Ellysees in Paris, France stayed open on weekends and the French government was fielding complaints from local shop owners who said they couldn't possibly compete with a big superstore like Virgin being open on Sundays. So the French government threatened Virgin with a big fine (if memory serves, it was about $100,000 a day) if they stayed open on Sundays. What did Virgin do? They stayed open. I can't recall how long they stayed open like that, but it seemed incredibly intrusive to me that the government would step in to prevent one business from competing in that way. In Amazon's case, it's the states who want a cut of Amazon's sales because they feel it's stealing business away from their state. But hey, too bad. Find a better way to draw customers to make purchases in state so you can keep your taxes. Don't go whining about how Big Bad Amazon is a moustache-twirling tax evader. Quite on the contrary, Amazon is saying they would pay taxes for interstate commerce:

Bezos also points out that Amazon would be perfectly happy with Congress stepping in and creating a sales tax system that works across states.

You have to hand it to Amazon. They know the law, they know their rights, and they're enforcing it. I welcome that. But the reason why this article is my favorite article on Techdirt, but not my favorite article on Slashdot, is the commentary: "This is, of course, entirely accurate." Were it not for that single trailing line, that I know is coming from a well-read lawyer, I might have read that Slashdot article and been clueless. Is Bezos exaggerating? Is he twisting the law to suit his needs? Who would know the answer? Techdirt is, bar none, a supremo bullshit detector.

Also great to see is Google's claim that they would fight PROTECT IP if it were passed because it would be disastrous to free speech. Most of the time I find that I'm against some new proposed law but I can't quite express why. As ever, Mike does it effortlessly:

...those in favor of PROTECT IP don't seem to understand the technology that they're regulating. So they don't realize that they're trying to create a "simple solution to complex problems," and don't recognize that they're effectively breaking the internet and infringing on free speech rights. It's not because they don't like free speech. It's because they don't understand what they're doing, and lobbyists for the entertainment industry insist this is needed to "fight piracy." The problem is that this won't "fight piracy" and will have massive unintended consequences. It's good that Google is willing to make this an issue.

I also got a weekly dose of lessons about statistics and economics from Techdirt as these two articles show. First, we have the superb, How To Lie With Statistics: France Pretends Hadopi Law Is Working. I lived eight years in France so I know a little something about how French culture works -- watching Hadopi unfold has been, for me, one part anguish and two parts interminable laughter. France seems to have a long history of its citizens electing their representatives... then rebelling against them. Yes, this is of course an imperfect over-generalization, but there is a measure of truth in it. On the one hand, the French respect authority, but on the other hand, they like to rebel against it. Hadopi is a classic case of a government program enforcing its top-down will on a people determined to disregard it. So it's no surprise to me that the actual data from Hadopi might be overstated. As Mike put it:

The government and various agencies are running around touting the claim that, according to their survey the HADOPI law has convinced more than 50% of users to stop file sharing. Problem is, that's not what the data really says. The real data shows that of people surveyed only 7% said either they "or someone close" had received a warning letter. Now, of those 7%, 50% claimed that they would stop infringing. Now, if you're playing along with the home game, you should have quickly realized that the actual percentage of people surveyed is more like 3.5% -- and I could argue that it's even lower for a few key reasons:

• The key question asked wasn't whether the individual would stop file sharing, but whether or not they or someone close to them had. Suddenly you have a big statistical problem, because -- to take an extreme example -- let's say that everyone in a town knows the one big file sharer who shares content online, but no one else in the town does. And, that guy knows and makes it clear that if he gets an injunction, he'll stop. Now, since everyone knows this guy, the reports from that town would be that 100% of people receive letters and 100% of those recipients would stop using P2P, even if that wasn't true at all. Including the "or someone close to you" makes the effective data pretty close to useless, because there's no way to separate out the overlap.
• The whole thing is based on a survey, which is notoriously unreliable in getting accurate data. People quite frequently answer what they think others want them to say, rather than what they're really thinking. And, when asking them if they'll stop engaging in illegal activity, many are simply going to say yes, even if they have no intention to follow through.

That first point reminded me of confirmed kills in war. If twenty people each saw the same person get killed and report that same person as a separate kill, the estimated dead can be a grossly inflated number. Yet one more lesson I learned about how to question statistical claims. Seems like the best way to assure a solid number is to have statistics done by your most skeptical opponents.

The piece on Limewire was also a gratifying read. Recorded music sales are up after Limewire was shut down, so that must mean mission accomplished, right?

Well, actually, no. Doesn't look like that at all. In fact, Nielsen doesn't even mention LimeWire's shutdown in its note about this, attributing much of the increase to the Beatles finally coming to iTunes. And, actually, if you look at the same Nielsen reports going all the way back to 2006, they show music sales going up each year. It's just that more of it is single tracks, rather than full overpriced albums.

And finally, three "classic" Techdirt articles. First, I loved how Mike wrote about Jonathan Coulton, an unsigned musician, who made $500,000 last year. How many exceptions must we list before we show that it's possible to make your own success if you understand business models and give fans what they want?

Second, the story of how Apple essentially gave the iFlow app developers an eviction notice:

…Apple is now requiring us, as well as all other ebook sellers, to give them 30% of the selling price of any ebook that we sell from our iOS app. Unfortunately, because of the "agency model" that has been adopted by the largest publishers, our gross margin on ebooks after paying the wholesaler is less than 30%, which means that we would have to take a loss on all ebooks sold. This is not a sustainable business model.

The iFlow developers go on to say they felt they did everything they could to ensure Apple was okay with their product, but then find out later that iBooks had been in development, and that Apple must have known about this conflict all along. Instead of Apple telling them outright, Apple effectively "jacked up the rents" so that it made no financial sense to stick around anymore. Rightly so, the iFlow app makers are furious. However, as Mike notes:

"...[T]his really shouldn't be too surprising. When you're making a bet on a closed system and relying entirely on that, it's inevitable that there are going to be issues. It's one of the reasons why we keep hearing more and more developers wanting to move away from developing native iOS apps towards developing more open standard apps, such as in HTML 5. Not only does it make it easier to build cross platform apps, but it also means they're not completely at the whims of a single company that's been known to reverse direction with little notice.

Finally, the story of the faux children's ebook that rocked the web. I personally received a copy of this ebook and was laughing so hard that, before I'd even finished reading it, I was already forwarding it to every parent I knew. Only after I'd hit the SEND button did it occur to me that I might have committed copyright infringement. While reading the Techdirt piece, I was happy to see that the hardcover book had reached #1 on Amazon, but also dismayed when I read, "Despite all of this, Akashic appears to believe that it's still in its best interests to go after those hosting copies of the PDF or graphics, and have them take it down." Wha??? Nobody even knew about this book before the pirated copies were distributed. Obscurity... piracy... obscurity... piracy... I choose obscurity!

These three posts were classic Techdirt because they pound at the heart of why businesses work or don't work in this new Digital Age: pre-internet, neither Coulton nor the children's ebook could have been as successful, and the iFlow developers made a fatal judgement about building their castle in someone else's walled garden. These stories all illustrate the insane power of the internet, but also how a clear understanding of how business models function in the changing marketplace provide an indispensable advantage over one's competition.