Company That Makes Wristbands With Holograms Forced To Admit That Their Scientific Claims Are Bunk

from the truth-in-advertising dept

If you've seen those hologram-adorned wristbands advertised that are supposed to give you "balance" or some other such nonsense, you probably were smart enough to know that they were the modern equivalent of snake oil. However, for the gullible folks who believed in the claims of the manufacturer, Australian officials have forced the company to admit publicly that there's no scientific basis for their claims about the properties of the wristbands, and that the company "engaged in misleading conduct." What amazes me is that anyone believes the claims in the first place. The idea that a bracelet with a hologram improves your balance, enhances muscle response and increases stamina and flexibility just seems so obviously ridiculous. Even if you believed it might work via a sort of placebo effect, you'd have been better off believing in the magic powers of a basic rubberband and wearing that on your wrist. Nice to see regulators (in Australia, at least) forcing the company to admit that its product claims were based on nothing but a desire to sell cheap bracelets at a tremendous markup.

Filed Under: australia, balance, scams, wristbands
Companies: powerbalance

The Impossible Job Of Being The Copyright Czar

from the balancing-the-unbalanceable dept

The administration's "IP czar" (more technically, the "Intellectual Property Enforcement Coordinator"), Victoria Espinel, recently gave a talk at the Future of Music Coalition event in Washington DC, and while I had seen various reports about her speech, and had a few submissions asking me to comment, I wasn't quite sure what to say. Espinel basically said the same things she's been saying all along. Her job is to "protect the creativity of US citizens." And, to her credit, she doesn't just define that as big companies. While reports of her pressuring ISPs, payment processors and registrars to voluntarily block or disable accounts of infringers is... troubling, she is always careful to try to "balance" things. This was evident in the IP Strategic Plan she released a few months back. While it makes some suggestions that clearly makes industry interests happy, at the same time, it tosses some breadcrumbs to those concerned about how over-aggressive IP laws can actually hinder quite a lot of creativity.

It wasn't until I read music critic Greg Kot's report on Espinel's speech, that I finally realized what the real problem is here: Espinel's job is impossible. Now I'll admit that I never thought the job made sense. The IPEC role was created by the Pro-IP law, that never made much sense in the first place. But, Espinel has been given a job that makes no sense.

Creativity is not something you protect, it's something you enable.

What you can protect are business models or specific businesses. But, Espinel seems to recognize that actually protecting certain businesses actually could harm certain forms of creativity. And, so she appears to be trying to walk a fine balancing line, of "protecting" certain industries (who, it must be admitted, are heavy political donors), while not stifling actual creativity. But, that's impossible. It rests on the idea that there is such a fine line and that there needs to be a "balance" here. But that's not how creativity or business models really work. Enabling creativity means avoiding protectionism, and avoiding restrictions. The business models shake themselves out. And while it may make life tough on businesses that don't adapt, it's silly to think that there should be a government job whose sole purpose is to keep a few companies alive.

So, if we must have an IP Czar, at some point, the internal conflicts of the job need to be sorted out. Is the job to enable and encourage creativity? Or is to protect a few companies? It can't be both. But, in trying to thread that impossible needle, the logical contradictions come through. As Kot notes in his writeup, Espinel decried the (industry-sourced) claim that 95% of downloads are infringing, but when he asked her a question about "this fundamental disconnect between the government's agenda and the way many citizens interact with their computers and cellphones in their daily lives," Espinel responded by saying "I don't see an inherent conflict. The majority of consumers don't want to engage in illegal content." But, Kot noted (not aloud, unfortunately), "didn't you just say that 95 percent of downloaders are doing exactly that?"

Such is the nature of the impossibility of the job that Espinel is in. She needs to convince the world (and, perhaps, herself) that enabling creativity and protecting a few industry interests are the same thing, when they're clearly opposed. It's the same thing as saying that 95% of downloads are illegal while still believing that people don't want to download unauthorized material. Something doesn't fit, and in the end, people are going to need to realize that enabling creativity is a lot more important than protecting the interests of a few companies who, all too often, get in the way of creativity.

Filed Under: balance, copyright, copyright czar, victoria espinel

Would You Believe The RIAA Doesn't Agree With The Judge In The Viacom/YouTube Ruling?

from the what-a-shock dept

I can't imagine this surprises anyone, but Slashdot points us to the news that the RIAA is upset by the judge's ruling in the Viacom/YouTube case, which found that YouTube is protected by the DMCA's safe harbors. Of course, Hollywood and the music industry have always hated the safe harbors -- which were only put in the DMCA to appease internet companies and keep them from fighting the rest of the DMCA. But, of course, the entertainment industry doesn't like to give even an inch on these matters, so this case has always been about moving the goalposts and effectively decimating the safe harbors to the point that they are meaningless. The RIAA's statement was posted to its blog (where you cannot comment, of course) and is short, sweet and totally misleading:

Add our voice to those who disagree with a recent summary judgment ruling in the court case between Viacom and YouTube.

We believe that the district court's dangerously expansive reading of the liability immunity provisions of the DMCA upsets the careful balance struck within the law and is bad public policy. It will actually discourage service providers from taking steps to minimize the illegal exchange of copyrighted works on their sites. As the White House recently noted in its strategic plan to combat intellectual property theft it is essential for service providers and intermediaries generally to work collaboratively with content owners to seek practical and efficient solutions to address infringement. We need businesses to be more proactive in addressing infringement, not less. We expect the Court of Appeals will better understand the balance Congress struck when it enacted the DMCA.

This is both wrong and amusing at the same time. The court's ruling was hardly "expansive." It covered the same ground as numerous other cases and basically kept the status quo. It was Viacom that was trying to expand the meaning of the law in effectively wiping out the safe harbor provision.

The idea that this ruling discourages providers from trying to minimize infringement (not theft -- and it's really silly that the industry keeps calling it theft) has already been debunked. Most of the serious companies in the space want to work with the entertainment industry and have put in place voluntary filters -- not because the law requires them, but because they feel it makes business sense. So the ability to work collaboratively is still very much there. And, frankly, it's pretty insulting that the RIAA thinks that tech companies will only work with the RIAA if the law requires them to do so. Of course, it's so very typical of the entertainment industry mindset, where everything is a fight and everyone is in competition. It's as if they don't understand non-zero sum games. The internet world has never needed legal forces to work collaboratively with the entertainment industry. They've wanted to do so time and time again. Napster tried very hard, and the RIAA hit them with a lawsuit. The number of innovative startups sued by RIAA members to force those companies to cough up some equity is too long to list here.

RIAA labels don't work collaboratively. They sue. Arguing that this particular ruling will make it somehow harder to work collaboratively is ridiculous. The tech firms were never the ones running to the lawyers. They were always willing to partner. But, of course, at this point, I guess expecting intellectual honesty from the likes of the RIAA remains a pipedream.

Filed Under: balance, copyright, riaa
Companies: riaa

Canadian Heritage Minister Says That Those In Favor Of Balanced Copyright Are 'Radical Extremists'

from the actually,-that-sounds-extreme dept

Anshar alerts us to the news that the driving force behind Canada's new copyright bill, Heritage Minister James Moore, at a Chamber of Commerce event, apparently claimed that those who are opposed to Canada's attempt to put in place a version of the DMCA are just a group of "radical extremists." Really? So, people who just want to make sure that copyright law doesn't lock up culture and harm creativity are "radical extremists"? How does he figure that? Meanwhile, in response to this, Michael Geist has started putting together a list of these "radical extremists" who appear to be just about everywhere, including littered throughout all of the major political parties, and appears to include such "radicals" as the Canadian Library Association and the Canadian Bookseller Association (radicals! all of them!). I guess since Moore doesn't appear to want to have to actually defend the more worrisome parts of the legislation (mainly the "digital locks" anti-circumvention provisions) he figures the next best thing is to demonize people who actually care about consumer rights.

Filed Under: balance, canada, copyright, james moore

The Blurring Line Between Personal And Professional Activities

from the is-that-a-presidential-endorsement dept

We've talked for years about the blurring of the "work-life" balance thanks to our always connected world. These days, it's not uncommon for people to do some "life" aspects at work (online shopping, banking, etc.) while also doing plenty of "work" things while at home (checking email, creating presentations, etc.). While there are still occasional stories (almost always put forth by companies selling filters) about the "evils" of workers doing personal things on work time, enough studies have shown that people more than make up for such uses by working from home or being more productive when they actually work.

But there are other issues beyond just the productivity question when professional and personal "selves" begin to blend. I've definitely noticed this on things like Twitter, where some people use their Twitter accounts for personal things, others for work things -- and many for both. Some companies have rules about that kind of thing, though it leads to awkward declarations, such as telling employees they can only use their Twitter accounts for work related issues. But that takes away much of the power of Twitter, which gives people -- even in work settings -- a chance to better connect with others.

And, one of these days, you just know there's going to be some sort of legal fight over who actually "owns" a Twitter account: the employee who uses it... or the employer. In cases where an employee builds up a huge following, and tweets mostly about work, sooner or later some company will claim to own that profile (especially if the employee tries to leave).

But, this blurring of work and life boundaries can create other issues as well. Andrew F alerts us to a story which he calls (and I agree) a "little inane," concerning the fact that White House Press Secretary Robert Gibbs is upsetting some because he tweeted about his local bike shop. In this case, Gibbs did a "#FF" tweet, which is a pretty common usage of Twitter, where, on Friday's you do a "Friday Follow" (#FF) tweet that highlights someone else on Twitter that your own followers might be interested in following. It's sort of a neighborly use of Twitter. So Gibbs did exactly what millions of people on Twitter do and gave a shout out to his local bike store:

#FF @CraigatFEMA so you know the latest @RevCycles a great bike store & special thanks to Ken and others there for helping me with my bike

Perfectly normal, and another example of Twitter being used to make famous people more human, right? Well, except in the politicized world of Washington D.C., where suddenly there's concern that what if this is an "official White House endorsement" and an "abuse of power."

And suddenly we're back to the whole blurry border of work and life. The tweet was quite clearly a personal tweet, but with the blurring borders and questions about whether or not any random statement a person makes is now in "an official capacity" or just as a personal statement. The nice thing about Twitter is that it's quite conversational, so people say things as if they're just talking to friends they ran into on the street. But the difference is that it's also broadcast and recorded for everyone.

I think it's pretty ridiculous to worry too much about the White House press secretary expressing his happiness with the local bike shop that fixed his bike, but it might be a precursor to other issues that are definitely going to come up with services like Twitter as people begin to recognize the new and changing boundaries between their personal lives and their work lives.

Filed Under: balance, endorsements, personal life, robert gibbs, speech, white house, work life

Is Balance The Right Standard For Judging Copyright Law?

from the balancing-what? dept

For many years, I've pointed out that I tend to disagree with many folks -- who I otherwise agree with -- in copyright debates, who argue that we should be looking for the "right balance" of copyright holder rights vs. user rights. I've long thought that balance is the wrong way to look at it. The purpose of copyright law is to incentivize the creation of new content, and thus the standard on which copyright law should be judged is one where the creation of content is maximized. As such, there shouldn't be a question of balance, because the ideal situation where content is maximized should make everyone better off. Talking about balance is figuring out how both sides should compromise to meet in the middle. Talking about maximizing content creation, on the other hand, is talking about ways to improve the marketplace of options for everyone.

Still -- especially among so called "copyfighters" -- the concept of "balance" is quite commonly used. However, it appears that at least some others are also concerned about this use of "balance." Copycense alerts us to a paper that was published recently by Abraham Drassinower, of the University of Toronto Law School, which also argues that balance is the wrong way to view copyright policy. Unfortunately, the paper is not the most... lucid thing out there. It's quite academic and, tragically, does not do a particularly good job clearly and concisely making its point. It's not what I would call an easy read. Instead, it rambles at times, and uses overly complex (and at times circular) language, rather than just coming out and stating a clear and concise thesis. This is unfortunate, because if you can get through the language used in the paper, it does make some very valuable points.

The argument is, effectively, that "balance" as a concept in copyright law really only makes sense if you believe that copyright law is designed to reward a content creator for their labor -- in legal terms, the "sweat of the brow" argument. However, courts in both the US and Canada have rejected a "sweat of the brow" standard for copyright law, as being separate from the purpose of copyright law. If you believe that "sweat of the brow" is appropriate, then you are starting from a position that a content creator naturally deserves rewards from all benefits that result from his or her work. And, thus, the "balance" is in slowly removing some of those rewards and giving them to the public, until things are seen as "fair" for both sides.

The sweat of the brow standard affirms a view of copyright law on the basis of what we might call a misappropriation paradigm--that is, a paradigm that grants copyright in the products of a person's mental effort so as to preclude others from reaping where they have not sown. The mischief copyright law aims at in this paradigm is the misappropriation of value through copying. Copying a phone directory gives rise to copyright liability because such copying amounts to an unauthorized transfer of value from the author to the copyist, the plaintiff to the defendant. It is to correct this "grievous injustice"--to use the words of a classic House of Lords judgment in this tradition--that copyright law operates. Its target is the injustice of misappropriation.

But, without a "sweat of the brow" standard, then the whole concept of balance makes a lot less sense. Instead, Drassinower notes that copyright is actually based on a "skill and judgment or creativity" standard, which focuses just on the creative elements of the work, rather than the effort put into the work. In other words, the standard we have set for copyright focuses on the value of creativity rather than the value of effort. Drassinower argues that balance, as a concept, does not, and cannot take that difference into account.

Again, while I agree that balance is the wrong way to look at things, I was quite disappointed by the way Drassinower sets out to make this case. It's interesting, but not presented in a compelling way. There are times when it makes good points (though, again, using overly dense language in most cases), but never seems to fully come out and just state the clear conclusion of focusing too much on balance: that it falsely implies that when one loses the other wins. That it falsely implies that this is a zero sum game. At times, he gets close, as in the following passage:

[Once] the metaphor of balance is assumed as the integrating mechanism holding authors and users together, integration properly so-called can never occur. And that is because once value-balancing is the ordering mechanism, then the relation between authors and users is but a perennial struggle for value, such that claims of authors are but minimizations of the value-entitlements of users, and similarly, the claims of users are but minimizations of the value-entitlements of authors. The upshot is that successful haggling about price masquerades as the foundation of a truly public domain. The failure to elucidate authorship as anything other than value-origination generates an impoverished vision of the public domain as nothing other than a lower or lowered price.

But he fails to take that final step of pointing out that it's not a zero sum game, and the goal of copyright should be maximizing the creation of content overall, such that everyone is better off. Still, if you can get through the rather dense language, the paper does raise some good points, even if I felt it misses the true problems over "balance" in the copyright debate.

Filed Under: abraham drassinower, balance, copyright, incentives

Could Evidence-Based Copyright Law Ever Be Put In Place?

from the perhaps-not dept

Recently, we were discussing how copyright law seems to only get worse and worse, and it got me thinking how likely it is that "better" copyright laws could ever be put in place. Michael Geist recently put up a post on how to design copyright law that would last, emphasizing "balance" as being essential for durability. I have to admit, I tend to wince when people talk about a "balanced" copyright law, because it usually means a copyright law where everyone is worse off. A balanced copyright sets up the argument as if there's a real give-and-take, where what's good for some is bad for others.

I don't think copyright law needs to be that way. If the real purpose of copyright law is to "promote the progress," then why not make sure it's doing so? In other words, why not have actual evidence-based copyright law? There's a lot of historical evidence that can be looked at, and different ideas around copyright law can be empirically tested. If it doesn't promote the progress, get rid of it. If it does, then shouldn't that make almost everyone better off?

The real problem, though, is that there is a very small group of companies who disproportionately benefit from today's copyright laws -- at the expense of the public. And they have a ridiculously powerful lobby who aren't about to give up their monopoly rights, no matter how much evidence there is that it harms the public and does not promote the progress at all. So we're left with a bad system that continually gets worse. And no evidence-based system will ever be allowed, because it would almost certainly strip that small, but powerful, group of their monopoly rents.

People often assume that I'm in favor of just tossing out all copyright law. I'd argue that I'm more agnostic on the subject than anything else. I don't care about "copyright law" per se. I care about what's going to best promote the progress. If someone can show me that copyright actually can do that, I'm willing to understand how. But if we can't present the evidence of how, or actually defend what good copyright does, the I'm left wondering why it's there at all.

Filed Under: balance, copyright, evidence, politics

The Myth Of Finding A 'Balance' In Copyright Laws

from the no-balance-needed dept

It never fails. During various battles over copyright laws, someone will come along and present themselves as wanting to be the "moderate" provider between the warring parties of "users" on one side and "copyright holders" on the other side, declaring that what's really needed is a good "balance" in copyright law that is fair to both sides. News.com has just such an article about the ridiculous new Pro-IP bill. However, as we've discussed before, that's the wrong way to look at it. The more you focus on balance, the more useless your recommendations are. That's because the whole idea is based on a faulty premise that the interests of copyright holders and users are not aligned.

In fact, if structured properly there's no reason that the interests of both sides can't be perfectly aligned, making both sides happy without either having to "give up" something. If you can create a bigger market where both sides come out of the situation better, then there's no balance necessary at all. Balance is only needed when both sides come out slightly worse off. This is even more true these days when the entire dichotomy between "content creators" and "content consumers" has blurred. These days, most people are both content creators and content users. In fact, one of the great things about the internet is that it's completely knocked down the barrier between the two, and helped make it easier than ever to create content the same way content has always been built: by building on other ideas that are out there.

So rather than trying to look for "balanced" solutions that make both parties somewhat worse off, isn't it time we recognized that copyright doesn't have to be a zero-sum game with winners and losers? If you get rid of the restrictions that copyrights artificially impose, you create a non-zero-sum game, where everyone can be better off. It may seem a little trickier for copyright holders, as their business models change, but it expands the overall market for their products while opening up tons of new business models that allow them to profit at a greater rate without pissing off users. Meanwhile, users aren't restricted. So, let's toss out the idea of creating a lose-lose situation around "balance" and focus on building win-win situations that get rid of artificial restrictions and focus on bigger opportunities for everyone.

Filed Under: balance, copyright, economics