People really have an incredible ability to assume that only they could possibly have a very common idea. Lots of people have pointed out that James Cameron's Avatar seems similar to all sorts of stories. In fact, the site io9 put together a giant list of books and movies that some claimed were copied by Cameron. And, of course, we've already mentioned two separate lawsuits. Well, now we can add a third one to the list, and it has just as much a chance to succeed as the others. In this case, it's made even more ridiculous by the fact that the book in question was written after Cameron was already working on Avatar.
In most of the cases with these types of lawsuits, it seems like those suing are really just filing what they likely know is a bogus lawsuit to get publicity for their book/movie/etc. (which is why we're not naming the book in this case). But, it does highlight an important point that we've discussed plenty of times in the past: lots of people have ideas that are similar. Ideas, by themselves, are neither unique nor protectable. It's the execution or (within the copyright realm) the expression that is unique. Yet, too many people overvalue the idea and assume that only they could possibly have had it. The idea behind the story of Avatar is pretty simplistic and common, really. It's been done plenty of times before. The reason the movie is getting so much attention is because of the execution.
A few years ago, when Twitter was starting to take off, we questioned whether or not Tweets were covered under copyright. While technically tweets could definitely be covered by copyright, it's still a little bit murky, especially with the "retweet" as an integral part of Twitter culture. That said, there's no doubt that people feel ownership over their tweets, especially those who lovingly craft wit and humor into each of the 140 characters. Recently, the editor of the book Tweet Nothings, a book of curated Tweets, sent an apologetic letter to the people whose Tweets were included in the book -- after the book had already been published in December:
Dear Mr. Barnes,
We sincerely apologize for using your Tweet in our "Tweet Nothings" book without contacting you prior to publication!
I wrote the introduction and compiled quotes from Twitter for the book at the direction of the publisher. I do not make any money from this work. We did want to contact each person quoted in the book; the publisher's legal advisors said it was not necessary under fair use guidelines. We sincerely view this book as a celebration of Twitter, and an introduction to some of the best and brightest people to follow. We are very sorry if you or anyone is offended or upset by the book.
I would be more than happy to send you copies of the book. Please accept my apologies.
Sincerely yours,
Suzanne Schwalb
While the apology is an admirable step, the anger seen in the reviews of the book on Amazon is not unexpected. This is not a "fair-use versus copyright" issue at all. This is a "doing the smart, right thing" issue. Whether or not we think that people should feel ownership over their "ideas" is moot -- the issue here is that they do, and as such, to ignore that is short sighted. Books have successfully been assembled using Tweets before. For his book, Twitter Wit, editor Nick Douglas did a good job working with Tweet authors, who had to explicitly submit their best Tweets to be included in the book. As a result, not only was his book received favorably by the Twitter community, every one of the included authors, who are supposedly the most witty on Twitter, each became a promoter for the sale of the book -- a winning promotional combination.
So, by not involving the Tweet authors in the publishing of Tweet Nothings, the publishers not only attracted the ire of the wronged authors, but also missed out on a huge opportunity for free, viral promotion. After the exchange with Barnes, the publisher, Peter Pauper Press, issued an official apology in which it said:
We regret that we did not contact the people whose quotes we used in advance. We will be contacting each one with an apology. In the meantime, we are ceasing to sell the book in all venues and will not resume sales until everyone quoted in the book is satisfied with our response.
If that's the case, and if the publisher stays true to their word, then they may never be able to sell the book again. After all, Merlin Mann, one of the wronged Tweet authors, seems irrecovably pissed.
We spend a lot of time talking about innovation and ideas. Part of that discussion often turns to patents, and questions of whether it is better to "protect" or "hoard" your ideas, or to focus on sharing them. Patents live in this nebulous world between the two, where you partially (sort of) "give away" the idea, in exchange for the right to protect it. This seems counterintuitive when you think about it. Plenty of research has shown that people invent and innovate more often because they want what they're inventing themselves -- not because they want some sort of monopoly right over it. Other research has shown how innovation (rather than invention) is really an ongoing process, that often involves building on various ideas. For years, we've discussed how the "idea" is quite often overvalued, while the execution is undervalued. Lots of people have ideas. How you execute on them is where the real innovation occurs.
I was thinking about all of this after hearing of the launch of a new service called Mixtape For You, which let's you create a limited time mixtape, which only a single person (who you email) can download. What does this have to do with ideas, execution and innovation? Well, let's go back a bit... and follow this (somewhat convoluted, but fun) trail:
On Memorial Day weekend in 2009, at the annual Sasquatch Music Festival, some shirtless dude started dancing, and someone else started filming him with a cameraphone. Then someone else started dancing with the shirtless dude. Then someone else. Then a few more people. Then a bunch more. Then pretty much everyone. The guy who filmed it put the video up on YouTube, where it went viral (nearly 3 million views at this point). I remember seeing it passed around as a video that "just makes you smile." And it does.
As the video became popular, some started to think about it a bit more, and all around smart guy, Derek Sivers, wrote up a nice little blog post in June, analyzing the sociological aspects of the video.
That discussion turned into an absolutely wonderful 3 minute TED Talk, given in February of this year, that Sivers gave, using the video as a way to explain and demonstrate the importance of "first followers" in creating a true "movement."
That talk got a ton of attention, with lots of people telling Sivers that he should turn the whole "first follower" meme into a book or something like that. Sivers, however, said he wasn't that interested in doing much with the concept and decided, in the very nature of the "first follower" to give away the idea and embrace anyone else who wanted to take the idea and run with it:
If this "First Follower" idea inspires you to elaborate on it, please do. Feel free to write a hit book about it, tour the corporate speaking circuit talking about it, or anything else. I won't.
You don't have to ask my permission, pay me, or even credit me.
I've been very lucky with lots of opportunities. This one's all yours.
Another all around smart guy, Andrew Dubber, picked up on the idea and considered doing exactly as Sivers suggested above, and writing a book based on this concept. But, after sleeping on it, he decided to innovate and execute in a slightly different way. Instead of taking the "first follower" idea and preaching it, Dubber wanted to be a first follower of Siver's other concept: giving away ideas. He decided that he would give away 30 ideas in 30 days -- just like Sivers "gave away" his idea.
Starting March 3rd, Dubber did exactly that, giving away an idea a day.
On March 16th (day 14), Dubber's idea give away, was called I Made A Tape, and was based on the idea that, back in the old days, when people made mixtapes, they were usually for someone specifically. And while there are a bunch of "mixtape" services out there these days (though the RIAA likes to shut them down every so often), Dubber thought it would be cool to create one that allowed someone to be more personal:
So that's why my idea is an online music sharing site -- but one that can only be shared with one person. You craft a "tape" with a single person in mind, and then that mix is sent to that person with a unique URL that only they can access.
They can download or stream the mixtape, and it comes with the liner notes that you've written.
And then... on April 6th, some other guy, Ray Kuyvenhoven launched MixTapeForYou.com, based very much on Dubber's idea from just a few weeks earlier.
I'd been following the whole chain of events from the very beginning, but what struck me about it, and what caused me to write this post was when I read Dubber's followup post, gleefully talking about how cool it was that Kuyvenhoven actually executed on his idea, this one line stood out:
I invented something, and it came true because I said it out loud.
That's a really powerful statement when you think about it. And, of course, it goes way beyond that. Just look back at the trail of things that happened that resulted in this particular offering coming about -- how many of them were disconnected and simply shared. Yet, we keep hearing people talk about the need to "protect" an idea? Innovation doesn't come out of protection. It comes out of building on the ideas of others and sharing and others taking a different view on it and finally someone executing, not because they want a patent, but because they want the product.
And to tie this all together, Sivers (who kicked off a lot of the chain of explosions above) has also pointed out himself that it's the execution that matters, and ideas, by themselves, are "worth nothing unless executed."
But think about all this in context, and you realize that it was the openness and sharing of ideas that resulted in execution. It happened by building on different ideas -- not "copying," but innovating. And, it's not just this one idea. Remember, Dubber put forth 30 ideas, and others have been doing the same, building on those ideas themselves. In fact, some have committed to delivering on other ideas that Dubber put forth as well.
Now, before people get upset and say "well that's great, but it doesn't mean patents aren't useful," you're right. I'm not saying that any of this negates the need for patents (there are other reasons for that), but I found it to be such a great example of how ideas travel and morph and lead to eventual execution, totally separate from focusing on the need for protection, that it felt worth sharing. And hopefully, someone else might share it, build on it and do something different and innovative with this idea themselves.
For years we've tried to explain the difference between ideas and execution, and how lots of people have ideas (in fact, many have the same ideas entirely independently), but without good execution, those ideas aren't really worth much at all. This point comes up a lot in the debates we have over the patent system -- with patent system supporters often overvaluing the idea part, and grossly underestimating the importance of execution. Often this is because they've never built a real business, and don't realize how little an initial idea plays into the final product. The two are often oceans apart. But stopping others from executing well (or forcing them to fork over a ton of money) just because they executed well where you did not? That doesn't seem like encouraging innovation or promoting progress at all.
DSchneider points us to an excellent recent Jeff Attwood post about the differences between the idea and the execution. It's well worth reading as it covers a bunch of different things, including a common refrain made against those who successfully execute: that they were only able to do so because they were "well-connected." As he notes, being well connected may get you an initial head start, but if you can't execute well, no one will come back. The idea, alone, is almost meaningless.
Attwood highlights this by pointing to a recent letter to a mailing list from one of the guys who started a crowdfunding operation called Fundable a while back, which failed miserably (and very spectacularly in public, with an open letter posted to its website laying out all the dirty laundry). There were all sorts of problems with the execution, which the guy even admits:
Yes, Fundable had some technical and customer service problems. That's because we had no money to revise it. I had plans to scrap the entire CMS and start from scratch with a new design. We were just so burned out that motivation was hard to come by. What was the point if we weren't making enough money to live on after 4 years?
The "technical and customer service problems" underplayed how significant some of those problems were. And yet... now that other crowdfunding platforms are getting attention, such as Kickstarter, this guy is crazy upset that they "stole his idea."
I feel that this story is important to tell you because Kickstarter.com copied us. I tried for 4 years to get people to take Fundable seriously, traveling across the country, even giving a presentation to FBFund, Facebook's fund to stimulate development of new apps. It was a series of rejections for 4 years. I really felt that I presented myself professionally in every business situation and I dressed appropriately and practiced my presentations. That was not enough. The idiots wanted us to show them charts with massive profits and widespread public acceptance so that they didn't have to take any risks....
I cannot tell you how painful it is to watch 5 assholes take your idea
and run with it and not even give you credit. I hate all 5 of them
for that. If I see them, I may punch each one of them in the face.
If you have never started your own company and then had someone else
steal the credit for what you worked hard to develop, you don't
understand.
Now, I have started my own company, and I've had lots of other people either come up with the same idea separately, or even blatantly decide to do something similar to various aspects of our business. So I do know how it feels. And, certainly when you first hear about it, it may be annoying, but it's really just a challenge. I'll be honest, there are times when others have done a better job executing on ideas than I have in the past, and in the end you either compete, or you tip your hat and move on. Competition breeds innovation and better execution since you know you need to do more. And that means not screwing up your technology and customer service and not lashing out and blaming others when someone else executes better.
And, the thing is, given what we write about, and all the business model examples we've see over the years, we're pretty damn familiar with many of the players in the whole "crowdfunding space." There have been lots of players who have come and gone, and there are at least a dozen players in the space today. And it's not because they all "took" the idea from this guy, but because lots of people recognized that it's an idea that makes sense. Kickstarter is certainly getting a ton of press these days, but that's mostly because of some top notch execution on its part.
We were pretty shocked when a judge ordered doll maker MGA to hand over pretty much everything having to do with Bratz dolls to Mattel, the maker of Barbie -- one of the key products Bratz competes against. While some of the facts are disputed by various parties, it does seem pretty clear that a Mattel designer was working on the concept of Bratz and then went to MGA to make the dolls instead. Mattel claims that it owns the entire concept because its contract with the designer included all rights to things he worked on while under their employ. Even if you accept all that, it seemed to go too far to not just provide monetary payments and/or an injunction, but to tell MGA to hand over the entire line of dolls including future plans for the dolls. That seems to go well beyond the scope of what's reasonable -- and it seems like the appeals court might agree. It has lifted the original deadline for when MGA had to transfer stuff over to Mattel and seems to be considering whether itself goes too far, saying that handing all of that over to Mattel seemed "draconian."
Even if we grant that the designer created the dolls while he worked at Mattel, it takes more than just an idea to be successful. Yet this ruling seems to put the entire value of not just the Bratz line of dolls, but every forward thinking innovation in the Bratz line, into that single idea. That's going way too far. Sure, perhaps there should be some sort of sanctions or punishment, but MGA did a lot more than just see this idea, snap its fingers and have a success on its hands. The execution was what made it work, and it seems silly to ignore all of that and assume that the entire value is in the idea -- and everything else needs to be handed over because the guy had the idea while still at Mattel.
Ben was the first of a few folks who sent in the story that Pepsi has been told to pay $1.26 billion (with a b) for supposedly "stealing" the idea for filtered bottled water. Seriously. Two men claim they came up with the idea in 1981 to bottle water this way and approached Pepsi distributors with the idea. They say that Pepsi "stole" their trade secrets when it launched a bottled water line, Aquafina. Of course, Aquafina was launched in the mid-nineties, a decade and a half after this conversation supposedly took place. The $1.26 billion is something of a joke as well. It's a default judgment because a Pepsi secretary apparently forgot to pass on the letter alerting them to the lawsuit, so they didn't respond. Even so... there's so much wrong with this. First, $1.26 billion? For the "idea" of filtered bottled water? And for a lawsuit filed nearly thirty years after the alleged conversation? Nearly fifteen years after the product came to market? Yeah, that makes sense...
The NY Times has what feels like a warmed over press release talking up the rise of patent auctions and makes some very one-sided and weakly supported assertions that this is somehow good for the market of innovation. It's not. In any way. There have been a bunch of companies trying to "trade" in patents or patent auctions, and all they've done is help make innovation harder by separating the idea from the implementation, and encouraging more lawsuits or extortionary techniques. Patents are no longer being used for innovation or to distribute knowledge. They're used to create a tax on anyone who actually innovates, and comes up with the same concept that others have come up with. Amazingly, the NY Times notes none of this. Instead, it makes the following statement:
And patents, after all, are ideas. Any market mechanisms that speed up the process of figuring out what a patent is worth should hasten the flow of ideas into the economy, accelerating the pace of innovation, policy experts say.
That's wrong. Flat out, bizarrely, backwards and wrong. Ideas don't need a market. You want a market for scarce goods. You don't need a market for goods that are not scarce. This is fundamental stuff and has been obvious for ages. Hell, Thomas Jefferson famously noted that very issue ages ago:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
Markets are for property exchange and the more efficient allocation of property. Ideas are not property, and making a market for them and holding them back doesn't accelerate the pace of innovation, it retards it. Greatly. And, more and more studies have been showing this.
Do we need some sort of anti-SLAPP-type law against bogus copyright lawsuits over similar ideas rather than actual copying? We've seen quite a trend in such lawsuits especially concerning people who claim to have had an idea for a similar book, movie or TV show. But, of course, copyright is supposed to be clear: it's for the expression, not the idea. Of course, at times it's quite difficult to separate the two, and with our society always talking up "ownership" of content, it's perhaps no surprise that many people seem to think that they get to own certain ideas. And then they file lawsuits.
The latest such case involves Jessica Seinfeld, Jerry's wife, who published a cookbook, "Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food." It's a pretty straightforward idea, and apparently the book has done well. That upset the author of another book on the same topic, who had apparently pitched the book idea (and had it rejected) by the publisher of Seinfeld's cookbook -- so she sued for copyright infringement. But, again, copyright doesn't cover ideas -- something you would think her lawyer would understand. Thankfully, the judge quickly tossed the case, while also taking the time to issue a bit of a thumbs-down review of the cookbook by the woman suing:
"Lapine's cookbook is a dry, rather text-heavy work," Judge Laura Taylor Swain of Federal District Court wrote in her review, while Ms. Seinfeld's "cookbook has a completely different feel and appears to be directed to a different audience."
On top of the ruling, interestingly, many people are recognizing that these types of lawsuits are really no more than PR stunts by the less-well-known author to jump on the publicity bandwagon of a best-selling author. Seinfeld's lawyers are claiming that the woman suing was just using the lawsuit as a publicity attempt, which is similar to what we've seen in other lawsuits like this one. That's why it makes sense to set up significant sanctions for actions like this, where it's clearly not a case of copyright infringement, and the lawsuit is almost certainly designed not to right some wrong, but to use the justice system as part of a PR campaign.
Time and time again, we've heard about people claiming "plagiarism" when the truth is that it's just someone else who happened to have the same, or a similar, idea. It often happens with books and movies. For example, multiple people are suing over the claim that only they could have come up with the idea of a child who has a secret life as a rockstar, and Hannah Montana stole their idea. But actual copyright infringement or plagiarism (two different things) require some actual copying -- not just people having the same idea. Given that, it's not entirely clear what's going on with the claim (found via Michael Scott) that the ex-wife of the singer Usher, Tamika Foster, may have "plagiarized" a self-published author when she wrote a blog post for the Huffington Post called "She's Pretty for a Dark-Skinned Girl..." The author claiming plagiarism had written a book, similarly titled "Pretty for a Black Girl."
But is it plagiarism, or just two people coming up with the same idea? Unfortunately, the report at the link above never bothers to tell us! It simply repeats the claim from the woman that it's plagiarism, but her quotes suggest that it's not:
"My heart sank into my stomach. All the hard work, all the sleepless nights I had endured was playing back in my head as I read this article written by a woman I didn't even know," [Aisha] Curry told BV Buzz. "Why did I feel so connected to this article? Suddenly, it came to me. It was my work! It was my work, my voice, but in her words."
Well, there's a problem there. If it's her words then it's not plagiarism. Also, Curry seems to undermine her own argument in explaining how she came up with the idea for the book:
"One day about five years ago, I was absolutely tired of being told that I was pretty for a black girl," she explained. "I started asking my friends if they had heard this statement before, and as time went on, I realized how prevalent the issue was."
Right. The comment is apparently prevalent, meaning that Tameka Foster certainly could have heard the same thing on her own, and could have decided to write her own essay about it. That's not plagiarism. That's multiple people recognizing something that's prevalent and deciding to write about it. Foster's representatives claim they've never heard of the book. But the real question is whether or not it's actually plagiarism, and that could have been determined by finding out if there were any passages actually pulled from the book. Unfortunately, it doesn't look like anyone actually decided to do that. However, as you read Foster's article, much of it seems to be about her own personal experiences, not Curry's, which again suggests this isn't plagiarism at all, but two people writing about a similar concept that is (as admitted by Curry) already "prevalent."
We've written a few times about best-selling author Paulo Coelho, and his embrace of file sharing and openness -- and how it helped him sell a lot more books. Reader Esahc writes in to alert us to the text from a speech Coelho gave. The actual speech appears to be from last year, so a bit out of date, but it's still well worth reading:
He talks about the success of his own projects, from "pirating" his own books, to having the community make their own movie out of one of his books. At the same time he discusses the rise of technology and the folly of pretending you can fight the technology. It's really a great overall statement on embracing new technologies for anyone who thinks they need to rely on copyright. On top of that, it again confirms the basic premise that we've stated here time and time again: for those who work to connect with their fans directly, there are plenty of ways to do well, even without specifically relying on copyright to do so.
We
are facing a new era, so either we adapt or we die. However, I did not
come here to share solutions, but my own experience as an author. Of
course, I make a living out of my copyrights, but at this very moment I
am not concentrating on this. I have to adapt myself. Not only by
connecting more directly with my readers -- something unthinkable a few
years ago -- but also by developing a new language, Internet-based, that
will be the language of the future: direct, simple, without being superficial.
Time will tell me how to recover the money I myself am investing alone in
my social communities. But I am investing in something for which every
single writer in the world would be grateful: to have his texts read by a
maximum of people.
The Internet has taught me this: don't be afraid of sharing your ideas.
Don't be afraid of engaging others to voice their ideas. And more
importantly, don't presume who is and who is not a creator -- because we
all are.
And the key point he makes? In the past, heretics were punished for sharing their ideas. These days, you'll be punished if you don't share your ideas.
