Technovia

Lessig is wrong (mostly)

Via Doc Searles comes this quote from Lawrence Lessig:

...our attention is not focused on these creators. It is focused instead upon "the pirates." We wage war against these "pirates"; we deploy extraordinary social and legal resources in the absolutely failed effort to get them to stop "sharing."

This war must end. It is time we recognize that we can't kill this creativity. We can only criminalize it. We can't stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them "pirates." And the question we as a society must focus on is whether this is any good. Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as "criminals." They begin to get used to the idea.

That recognition is corrosive. It is corrupting of the very idea of the rule of law. And when we reckon the cost of this corruption, any losses of the content industry pale in comparison.

Copyright law must be changed. Here are just five changes that would make a world of difference...

The problem with Lessig's argument is that he's using edge cases in order to promote reform which would affect everyone. Most times that people make copies of digital media, they're not doing anything creative with them - they're just using them, listening to them, reading them, watching them.

Ironically, using edge cases in this way is exactly what the content industries do, too. They declare that every copy made is a sale lost, which is equally absurd. Yes, there are people who no longer buy music because they can rip it off, but those are the edge cases as the insane success of Apple's iTunes Store shows. Most copying falls into the category of "victimless crime", simply because no one has been deprived of even a potential sale.

Law, as Lessig should know, cannot be framed from the edge cases. If you try and do that, you end up with the absurd situation we're in with the government's demands for 28 42 days detention without trial, not because it says it needs it, but because there may be edge cases where it might need it. Law has to be created from the middle, from behaviour that's typical, or it inevitably fails.

Lessig is also behind the times with his call for deregulation of what he terms "the amateur remix". The world of content creation is no longer one of amateurs and professionals: when you can monetize content within minutes by using AdSense, the distinction isn't one of money made. In that sense, we can all be professionals, if we choose. As soon as something is shared on the Internet, it is no longer amateur - because someone, somewhere, will monetize it. 

And if Lessig really means his statement that "when YouTube makes the amateur remix publicly available, some compensation to Mr. Gil is appropriate" then his solution is no solution, because there's no notion of who pays. Does Google pay? I can't see Google wanting to admit it's responsible for the content on YouTube. Does the "amateur" creator pay? Yeah, Larry sure he does. And if he doesn't, what then? Back to the courts?

Where Lessig is completely correct, though, is in the need to simplify and make more efficient the process of copyright. A term of life plus anything is ludcrous: we want creators to create, not sit on songs as "pension plans" (they can get a bloody pension plan like everyone else).

Copyright needs reform because for the first time in perhaps a hundred and fifty years it can truly work to protect everyone. Digital media levels the playing field - and copyright needs to protect everyone, not just those who can afford the biggest lawyers.

Why the DRM industry is clueless about consumers

Guy Tennant, chief operating officer of Entriq, a company that helps online stores manage DRM'd products, thinks that a company terminating your use of music is just like when you lose a CD:

"Tennant says he doesn't want to sound unsympathetic but reminds digital-music buyers that CD owners don't demand a refund from stores when they lose their discs. As for backing up songs to a CD, people should just accept the loss of quality because the only other alternative is to lose the music entirely, he said."

It's stupidity like this that makes me think the music industry is determined to commit collective suicide. Of course it's not the same: turning off DRM key servers is the equivalent of coming round to my house, breaking in, and stealing back the CDs you sold to me in the first place.

Idiot.

Hilarious bad marketing moves

On the back of thelondonpaper today, an ad by British Gas for a price guarantee - fix your prices until 2011. This is on the day it announced a 35% price rise.

That's just gauranteed to infuriate people even more. Plus of course, the reason they're offering it is because they know that prices will drop from their current high over the next few years. Centrica have scores of analysts who work on predicting prices years in advance, so they know his very well.

River of News fails

The user experience has been a disaster (Scripting News):

"The NY Times has totally ignored the NY Times River, which makes the Times work on mobile devices with ease of use that they so often report is eluding them"

I don't know how many times that it's worth saying this, because Dave isn't listening but... "River of News" approaches don't work for everyone. In fact, for the majority of people - the kind who aren't constantly scanning the feeds - River of News fails miserably. It had no concept of importance other than "Most recent", and in news that's almost never the most important factor to someone.

If a bomb goes off somewhere in London, it's more important to me than other events. I want that front and centre of my news, more than anything else - more recent but unconnected stories are no use to me. If they push the important stuff off the front page, then I am missing things which I need to know.

River of News effectively abdicates responsibility for judging what's important to a reader. Whether that's done by human editors or machine algorithms isn't important - what matters is that in order to well-serve readers, it must be done. River of News simply fails to do it.

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Dave Winer

Quote of the day

Rory Sutherland: Let's put sales promotion at the heart of the agency:

"The second assumption is just as dangerous: it is the dangerously linear assumption that the best way to build a brand is to set out to build a brand. I really don't believe this. I think if you set out to build a great business, you'll stand a fair chance of building a great brand. I am not equally confident that someone aspiring to build a great brand will build a great business."

Doc Searls Weblog · Same old blog, brand new place

Link: Doc Searls Weblog · Same old blog, brand new place.

"But the problem for Mark, for Jeremiah, and for all of us (including yours truly) is that we too easily default to framing our understanding of advertising in its own terms. We regard advertising as an independent variable: something ya gotta have. But in fact advertising is a dependent variable. The independent variable is the individual human being. As Chris Locke put it so perfectly nine years ago, we are not seats or eyeballs or end users or consumers. we are human beings and our reach exceeds your grasp. deal with it."

Apple SEC case starting to get dirty

Heinen v. Howell in SEC Apple stock options litigation - Business - Macworld UK:

"Apple's former general counsel Nancy Heinen is embroiled in a pre-trial dispute in which evidence being assembled to aid her defence against accusations of involvement in the company's stock options scandal is said to violate federal privacy laws.

Heinen's defence team is trying to get hold of private financial records belonging to former employee Wendy Howell in defence of charges raised against the former chief lawyer by the US Securities and Exchange Commission (SEC).

A Bloomberg report explains Heinen seeks financial records to show Howell faced financial pressure 'to do anything' to keep her job at Apple and to discredit her as a witness in the SEC's case, according to court documents filed by Howell in federal court in San Jose, California."

I suspect that there may be more little unpleasantnesses as the case goes on, and that Apple's senior executives may not escape without some dirt sticking.

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Jim Louderback on web video

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Biofuels "a crime against humanity"

Link: BBC NEWS | World | Americas | Biofuels 'crime against humanity'.

A United Nations expert has condemned the growing use of crops to produce biofuels as a replacement for petrol as a crime against humanity.

The UN special rapporteur on the right to food, Jean Ziegler, said he feared biofuels would bring more hunger.

Of course, we don't have to face the choice between feeding everyone and growing fuel. We could, instead, use technology to create new crops which grow faster and require less in the way of expensive pesticides and nitrates. Ones which could be planted reliably, year after year, without having the impact which current high-yield crops have.

Would it surprise you to know that crops like these already exist - but that a well-financed lobby is pressuring governments not to allow them to be grown? And that this lobby is, instead, pushing crops which require highly-toxic chemicals such as copper sulphate to be used on them as pesticides.

Hi Engadget, please to be doing some research please?

Scottish firm sued for blaring radios, infringing copyright - Engadget:

"Sure, you may get yourself a ticket from local police if you roll around with that in-car stereo cranked, but at least you're not being sued for £200,000 ($407,680). Unfortunately for the Edinburgh-based Kwik-Fit automotive repair center, it actually is being taken to court for that astronomical amount by the Performing Rights Society, which 'collects royalties for songwriters and performers.' The PRS alleges that 'Kwik-Fit mechanics routinely used personal radios while working at locales across the UK and that music, protected by copyright, could be heard by colleagues and customers.' Astoundingly, Lord Emslie ruled that the case could actually be heard, so we guess we'll be relying exclusively on headphones from here on out."

1. Performance rights aren't the same as copyright although (like lots of laws) I suppose they rely on their existence.

2. The amount isn't "astronomical" for a company which turns over £1 billion a year.

3. If you bothered to read any background to this, instead of just reposting crap from Slashdot, you might know that this is actually a pretty clear case of a large corporation seeking to avoid paying something which every other shop has to pay by claiming "it was the employees wot dun it".

The law is clear - businesses have to have a license to play music, whether that's to their employees only or to employees and the public. The money is collected by a non-profit body, and goes directly to writers and composers. Who has to pay and what they have to pay is clear - there's a comprehensive list of licenses on the PRS web site. This isn't any kind of new issue, it's simply a company trying to avoid the law.

Even if Kwik-Fit were completely closed to the public, it would still count as an Office or Factory and thus have to pay for a PRS license. The "oh, it's the employee's radios, we're not responsible" is an obvious scam simply designed to avoid spending the cash.