December 2006 Archives

2006 in Review

How is it already the end of December? On a personal note, I am glad to say that I met my major goals for this year-- it sucked less than 2005. And that applies to blogging, as well. While I'm not winning any awards over here, I managed to get name-dropped in the NY Times, which at least gave me something to talk about at my high school reunion. That was only one of a few interesting posts. Here are the topics I discussed and some of the best posts:

Communications Law Issues

Indecency Regulation

Some of these include more than superficial analysis. A rarity for this blog.

Internet Discrimination and Network Neutrality Regulation


Information Literacy

Trademark and Reality TV

Did any other site on the web have more comprehensive coverage of the Supernova trademark lawsuit? If not, I'm not sure that's something to be proud of.


Virtual Worlds

I'm late to the party on the property and virtual worlds party, but it's an interesting topic:

What's Next?

So, what's on the horizon for next year? My goal is to integrate blogging and music better along with my professional life. I'm not yet quite sure how that plays out on this blog or in my life. As I intended to do last year, but managed only in unrealized fits and starts, I suspect that it involves taking these topics beyond the blog, probably by writing scholarly articles intended for a real publication or participating better in real life activities here in the city (particularly as far as teaching information literacy issues). The problem, of course, is doing it in a way that doesn't result in scattering myself even thinner across more unrelated activities.

Fox v. FCC Oral Arguments

C-SPAN has video of the Fox Television v. FCC Oral Arguments (Second Circuit Court of Appeals, Dec. 20, 2006).

More tomorrow.

Scary Technology and Virtual Taxes

Eriq Gardner , The Hollywood Reporter, Esq: High-Tech, High Anxiety: Innovations Likely to Rattle Nerves: "It doesn't take long for a hot new technology to become the talk of Hollywood. Witness YouTube: Lawyers in the entertainment community hardly had time to register their copyright complaints before the company was sold to Google for $1.65 billion in October."

The Washington Post has an article introducing readers to the law and property implications of virtual virtual worlds: Where Real Money Meets Virtual Reality, The Jury Is Still Out: "As virtual worlds proliferate across the Web, software designers and lawyers are straining to define property rights in this emerging digital realm. The debate over these rights extends far beyond the early computer games that pioneered virtual reality into the new frontiers of commerce."

Deep Linking to Webcasts

In Live Nation Motor Sports, Inc. v. Davis, a federal district judge in Texas ruled that deep-linking to streaming media is copyright infringement. The plaintiff streams webcasts of its racing events via its web site. The defendant was providing links to these streams from his web site.

The court finds that "the unauthorized 'link' to the live webcasts that Davis provides on his website would likely qualify as a copied display or performance of SFX's copyrightable material."

William Patry Gentlemen Stop Your Linking (includes full text of the opinion): "This is a deeply disturbing opinion."

Declan McCullagh,

Matthew Saunders, Legal Fixation: Hitting the Links “Live Nation/SFX claims Supercross is the second most popular motorsport in the U.S., surpassed only by Nascar.”

Colette Vogele: Supercross Opinion Leaves Many Open Questions: "Sometimes, when your case isn't particularly strong, it may be better to employ a vagueness strategy and hope the court won't notice (or won't want to get bogged down in the details). This might be especially effective when your opponent is representing him/herself. Not having seen the rest of the record, I don't know for sure if that's what happened here, but I suspect this is the case because the opinion, as Patry points out, leaves so many factual questions open."

CBS gets (back) into the record business

It's apparently cheaper for a television network to run a record label than to license recordings.

Variety reports: CBS spins digital record label: "CBS will launch a digital record label in January, signing artists with the goal of breaking them via television show placement, iTunes and the Eye web's broadband channel. CBS Records will be launched primarily utilizing the existing infrastructure of CBS Entertainment and CBS Interactive. It will operate as a newly created unit within the entertainment division based in Los Angeles. The label will debut with three artists -- Boston rock act Senor Happy; Will Dailey, a John Mayer-ish singer-songwriter, also from Boston; and P.J. Olsson, an established indie-rock artist -- and is looking to sign another five acts in the first year."

With music licensing costs increasing and the costs of recording and distributing albums dropping, it may make more sense to sign an artist to a recording contract instead of paying a license fee for placing a song into a television show (particularly a recurring use, such as for a theme song.)

Television shows are now distributed across multiple platforms-- broadcast, cable, DVD, video on demand, iTunes, Xbox, streaming on the web-- and more. From the perspective of the studios, it may make more sense to just buy the recordings instead of licensing particular uses. This way, the studio sees a piece of the record sales generated by the promotional value of a television placement.

Unexpected Consequences

One of the unintended consequences of law can be its effect on culture and humor.

NY Times: So This Manatee Walks Into the Internet: "In a pre-emptive strike inspired as much by the regulations of the Federal Communications Commission as by the laws of comedy, NBC bought the license to, for $159, after the taping of the Dec. 4 show but before it was broadcast."

Previously: Frack

The internets are abuzz with the news that EMI is going to release a Norah Jones single for sale in the MP3 format without DRM. Feel free to gasp audibly. A major label is digitally releasing a new single from a major artist without copy protection.

Why are the labels experimenting with unprotected files?

It probably has to do with Apple's dominance of the digital music market. The iPod acounts for the vast majority of the digital audio players. Apple's Fairplay DRM software is proprietary and not licensed to other digital music vendors. So, the only source for DRM-protected files that will play on the iPod is Apple itself.

So, the labels can choose to play by on Apple's turn by Apple's rules. And, it has been long-established that the labels would like to have more pricing flexibility for individual tracks than Apple's strict $0.99/song structure. So, how can the labels circumvent Apple's monopoly? Working with iTunes competitors that use Microsoft's widely-licensed Windows Media DRM? That hasn't worked out too well, yet. The various Windows Media compatible players and stores are used bby many fewer listeners than the iPod experience. More importantly, they are not a competitor to iTunes for the iPod platform.

The only way to get to the iPod platform without using Apple's DRM is to sell unprotected files. Going DRM-free is not a statement about the awful restrictiveness of DRM. Rather, it is simply an attempt to challenge Apple's hegemony over digital downloads for the iPod. If these experiments are successful and labels start selling large amounts of their catalog in download stores that do not use DRM, it would be a direct result of Apple's overwhelming success in the digital music market.

DRM promotes vendor lock-in more than it protects against copyright infringement. By relying on third-party DRM technology, copyright owners could be more effectively shackling themselves to their new alien overlords instead of protecting their copyrighted works from infringement.

Brady v. Yahoo

TEB Capital Management, "the owner of the publicity and endorsement rights to the likeness, image and identity of [Patriots quarterback] Tom Brady," is suing Yahoo! for "knowing and intentional unauthorized use" of Brady's "likeness, image and identity" in advertising for Yahoo Fantasy Football. TSG has the complaint. The plaintiff claims false endorsement under the Lanham Act (43(a)), violation of California's right of publicity statute, common law right of publicity and unjust enrichment.

Speaking of Yahoo fantasy football, my team (which starred Brady as the starting QB) failed to make the Blawger Bowl playoffs this year, after two heartbreaking 2-point losses in weeks 11 and 12. I blame Brady. (Though it would be more reasonable to blame the team GM for playing the wrong Denver running back named Bell. Oh well.)

Previously: Baseball stats in the fact-based community

Wednesday Miscellany

David Isenberg, Framing Network Neutrality Right: "The unifying element is the prohibition of deliberate discrimination."

NY Times: Spam Doubles, Finding New Ways to Deliver Itself: "Spam is back — in e-mail in-boxes and on everyone’s minds. In the last six months, the problem has gotten measurably worse. Worldwide spam volumes have doubled from last year, according to Ironport, a spam filtering firm, and unsolicited junk mail now accounts for more than 9 of every 10 e-mail messages sent over the Internet."

Eric Goldman: Wikipedia Will Fail in Four Years: "Wikipedia will enter a death spiral where the rate of junkiness will increase rapidly until the site becomes a wasteland. Alternatively, to prevent this death spiral, Wikipedia will change its core open-access architecture, increasing the database's vitality by changing its mission somewhat."
Previously: Info Literacy posts

And, in the UK, the government released the Gowers Review of Intellectual Property: "In December 2005, the Chancellor of the Exchequer asked Andrew Gowers to conduct an independent review into the UK Intellectual Property Framework. The Review was published on 6th December 2006" The Final Report

Video in the walled garden

Last week Verizon and YouTube announced a deal that will allow Verizon V-Cast subscribers to stream YouTube videos to their mobile phones: YouTube in deal with Verizon: "Only pre-selected high-quality videos will be available for viewing on Verizon's YouTube channel. Users are also be able to upload to the YouTube Web site after shooting video on a Verizon phone. YouTube, which was founded in February 2005, reports 100 million video views a day."

So Verizon customers will be able to watch only selected and pre-approved YouTube videos, not their friends' latest video, but the ones intended for mainstream audiences. (But also, presumably, not the ones that are copyrighted works or those excerpted from copyrighted works.) A non-neutral internet service would probably look something like this kind of mobile phone internet service-- a pre-approved medium that shares little in common with the freewheeling public internet.

On the other hand, the good news is that the deal seems to be good for individual creators who are using their phone videocameras. It would seem to make it easy for individuals to upload video directly from a phone camera to YouTube. It would make phone video creators able to contribute directly to the freewheeling public internet from their phone. That could make primary source video of newsworthy and interesting events available worldwide almost immediately. That could be impressive.

Does a closed service that lets only selected video into the walled garden but lets everything out into the rest of the world promote free speech or hinder free speech?