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Forget Finding A Needle In A Haystack... How About Actually Finding Haystack

Mike Masnick — Thu, 2 Sep 2010 21:57:13 PST

We recently wrote about Newsweek's coverage of Austin Heap and Haystack, a program he supposedly wrote to help Iranian internet users avoid being spied on by the Iranian government. Some of our commenters questioned the overall legitimacy of the story. It has a very too-perfect Hollywood sort of feel to it -- and some pointed out the fact that no one seems to be able to actually look at Haystack. It sounds like a lot more folks are skeptical of the claims around Haystack as well. Glyn Moody points us to a post by Evgeny Morozov that rips apart the total secrecy around Haystack, to suggest the whole setup is pretty hard to believe.

I like Hollywood as much as the next guy -- and yet something just doesn't feel right about Haystack. What really bothers me is that one cannot download and examine their software; as far as the Internet is concerned, Haystack doesn't exist. In fact, Heap says that it is only distributed to trusted contacts inside Iran; putting it online would create a situation where the government could easily get hold of it as well and then reverse-engineer it or ban it or find a way to track its users.

So, in essence, the outside public - including Iranians -- are asked to believe that a) Haystack software exists b) Haystack software works c) Haystack software rocks d) the Iranian government doesn't yet have a copy of it, nor do they know that Haystack rocks & works. (And who could fault them for not reading Newsweek? I certainly can't). For someone with my Eastern European sensibilities, that's a lot of stuff to believe in. Even Santa -- we call him Ded Moroz -- appears more plausible in comparison.

He goes on to note that, at the very least, this security by obscurity actually could be quite dangerous for Iranians actually using this program, since it may be giving them a very false sense of security:

To me, it seems like a no-brainer: if you want to distribute technology that may endanger lives, make sure that the technology is secure. The only good way that I know of to make sure that it's secure is to let outsiders test it.

Indeed. In retrospect, the Newsweek version of this story had too many holes that should have acted as red flags.

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Microsoft's Patent On Fast Shutdowns Shows Why Windows Is So Slow To Shut Down

Mike Masnick — Thu, 2 Sep 2010 18:55:13 PST

A bunch of folks have sent over the story of how Microsoft recently patented its method of shutting down Windows (7,788,474), which plenty of people are mocking for all sorts of reasons. Reader Prashanth points out the fact that the patent actually helps demonstrate why Microsoft's shut down process is so slow. The whole thing just highlights how companies these days file for completely ridiculous patents just to pad their patent portfolio, and potentially to block others from doing pretty obvious things.

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LVRJ Defends Righthaven Suits; Mocks Competitor For Highlighting Problems With Them

Mike Masnick — Thu, 2 Sep 2010 16:55:37 PST

With the Las Vegas Review Journal continuing to massively abuse copyright law with its Righthaven lawsuits, the absolute best source for covering the story has been the competing Las Vegas Sun -- leading some to claim that its coverage was to spite its local competitor. However, the Sun put together a good editorial explaining why the story is so newsworthy. Now, Sherman Frederick, the publisher of the LVRJ has hit back with an editorial slamming the Sun and insisting that the Righthaven strategy is the right one.

I'd link to the story, but since the LVRJ has made it clear it doesn't like links, I figured it's best not to do so.

Also, I would normally quote Frederick's article to debunk it -- a clear case of fair use -- but since the LVRJ has made it clear it doesn't want anyone quoting its articles (despite the fact it still has 19 separate "share" buttons on each article), I won't bother. Instead, I'll just make some general statements about Frederick's column.

First, Frederick suggests that there are only two options for dealing with people copying your words online: you sue or you go out of business. He predicts that the competing paper, The Sun, is going to go out of business because it's not suing others. I will note, of course, that he doesn't point out the slight conflict of interest in the fact that he helped fund Righthaven, and thus has incentives to try to get other newspapers to make the same mistake he's making. But, of course, there are plenty of other options, such as putting in place a smarter business model. The idea that the cat blogger in Boston is taking any revenue away from the LVRJ is beyond laughable. No one reads the story on the cat blog post and says "gee, now I don't have to go to the LVRJ ever again."

Frederick also claims that getting others to link to you and to promote your site doesn't help you at all (which is partly why we're not). However, this suggests he's unfamiliar with the concept of "Google," and the fact that it ranks your site's relevance, in part, to how many others link to you and who those others are. But, his bigger problem is that he thinks people are saying that if you let others link to you the money will just roll in. But no one's saying that. They're saying that links in combination with a smarter business model help raise your profile and create lots of opportunities to make more money. Unfortunately, it looks like Frederick is taking the lazy short cut, which is pissing off all sorts of people, and serious hurting his brand.

While he claims that since the lawsuits began they haven't seen any loss of traffic to their website, that's a meaningless stat at this point. First off, it's still quite early. Second, the idea isn't just that the lawsuits directly would lead to a loss of traffic, but the inevitable chain of events following such lawsuits. It's as if Frederick can only think a single step ahead. He must be a hell of a chess player.

From there, he claims that even if he was losing revenue from these lawsuits it would be worth it, because protecting the writing is more important than revenue. Really. That's a paraphrase rather than an exact quote, because I don't want Righthaven to sue me, but it's basically what he says. The reason for that? He insists that it's the writing in the newspaper that is the key value. That's only partially true of course and sort of besides the point. These sites that he's suing are not competing with the LVRJ, so pretending that a random site posting a single story somewhere (with credit and a link back) is somehow damaging the LVRJ is simply wrong.

But, more importantly, he's overvaluing the content and undervaluing the community. He's never been in the business of selling content. He's always been in the business of selling the attention of his readers to advertisers. Forgetting that would be a big mistake. He claims that it's the quality and (artificial) scarcity of the content that drives readership, and that's partially true, but it only goes part of the way to explaining the business. It suggests that he's done little, if anything, to make that content more valuable and useful for that community. In fact, he's doing the opposite, by suing those who try to do something with the content. In the long run, that seems quite likely to backfire.

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Are New Patent Marking Lawsuits Patent Trolling... Or Anti-Patent Trolling?

Mike Masnick — Thu, 2 Sep 2010 15:41:37 PST

Earlier this year, we had a long blog post about the sudden rush in patent marking lawsuits. You can read all the details there, but the quickish summary is that patent law says that you cannot falsely claim patent protection on something -- and goods that have expired patents, but still claim patent protection, fall into that category of "false marking." The law allows people to sue for $500 in cases of false marking, but a court ruling last December shook things up quite a bit, by saying that the $500 applied per product rather than (as many had assumed for years) per product line. That meant that in the famous case of Solo's plastic cup lids found on coffee cups around the world, suddenly it faced the potential not of a $500 liability but potentially a $10 trillion liability. Now, no court in the world would grant such an award, but it certainly increased the potential liability and caused lots of companies to start scrambling to get rid of any mention of expired patents on their products. And... at the same time, it led to a bunch of patent lawyers rushing around their local stores looking for just about any consumer product marked with an expired patent. Approximately 350 such lawsuits have been filed since the December ruling.

Now it appears another shoe has dropped. One of the reasons why these patent lawyers (and a few others) went around searching for products is that the law is pretty clear that:

"Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States."

Yes. Basically, the law is setup such that, in the service of the US government, which doesn't want falsely marked goods, anyone who discovers such a false marking can so, so long as they split the proceeds 50/50 with the US government. But then... a District Court in NY put a halt to that, when a guy named Raymond Stauffer sued famed clothing retailer Brooks Brothers for selling bow ties with patents that expired decades ago. The District Court tossed out the case, agreeing with Brooks Brothers that Stauffer had no standing to bring the lawsuit. This put a bunch of those 350 other lawsuits on hold to determine if "any person" really meant "any person."

Well, open the floodgates, because the appeals court has said that any person does, in fact, mean any person, and thus Stauffer has standing to bring the lawsuit: Now, I'll admit that I'm a bit torn about this whole situation. It's no secret that I'm not a fan of the patent system as it stands today, and how it's widely used to give monopoly privileges where none should exist. So, I definitely like the fact that there's a system in place to easily go after those who falsely claim a monopoly privilege where none exists (any longer). If you're still claiming a monopoly on something where that patent has expired, it could scare off competition and innovation building on that product -- and that's bad for innovation. So, in general, I'm inclined to support efforts that ward off false marking.

That said, it seems clear that the sudden goldrush mentality of patent attorneys suing all sorts of companies for false marking is a pure moneygrab, where there's little evidence of any real harm at times. It just seems like a way to tie up the courts in hopes of a golden lottery ticket (shared with the feds). That doesn't seem efficient or useful -- and actually has some unfortunate similarities to basic patent trolling.

Perhaps this sorts itself out, however. With the rush of cases, companies are scrambling to review all their product packaging and to remove expired patent markings as quickly as possible. After that initial scramble, the number of these lawsuits should drop pretty quickly. On top of that, the current version of the patent reform bill (which seems to get worse every time we hear about -- but may have already stalled out in Congress again) also would try to cut back on such false marking lawsuits. But, in the meantime, with this new ruling, expect a bunch more of these lawsuits to be filed.

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Software Startups Realizing That Cookie-Cutter Freemium Doesn't Always Work Well

Mike Masnick — Thu, 2 Sep 2010 14:39:37 PST

A few weeks ago, we ran a webinar about "using free as a part of your business." One of the speakers was Phil Libin, from Evernote, who gave a very detailed presentation (you can view the whole thing here) about how Evernote has turned "freemium" into a success story. I found his points fascinating, in part because I've actually never been a huge fan of the "freemium" model for software -- where you get some basic features for free and then to use more, you have to pay. I don't talk about "freemium" very often, because I'm not convinced it's a strategy that works in most cases. It can obviously work in some specific cases, as Evernote has discovered, but it can be tricky to apply elsewhere.

There are a few reasons for this. First of all, the basic concept of "freemium," involves some rather arbitrary choices. You provide "x amount" of storage/users/projects/features/etc. for free, and you hope that people will pay for increased storage/users/projects/features/etc. But where do you make the cut off? That's quite tricky to figure out, because there's no fundamental reason for the cutoff points. When we talk about using free in a business model, we generally focus on freeing infinite goods and selling the scarce goods, but "freemium" offerings for web services don't tend to make any such distinction. The "free" versions are basically given away as marketing in the hopes that people will upgrade.

But in many cases, that doesn't work for a few key reasons: first, you now have incentives to make the "free" offering worse. That's never a good thing. In the effort to get people to sign up for the premium version, you have bad incentives. You don't want to make the free version "too good" as then people won't feel the need to upgrade. I find that to be a bad incentive structure in many cases. On top of that, there's a part of this that's a "give it away and pray," type strategy. Yes, you're offering more features, but figuring out that right mix of what's free and what's paid is really incredibly tricky, and you simply have to learn to accept, as Libin has done, that the vast majority of people using your app are just there for the free version. For Evernote, one of the keys to making it work is that the app itself becomes more and more useful, the more you use it. That leads to greater conversions over time. That's honestly rare for most apps which have a more or less steady-state usefulness.

The problem is that while the "free" version is supposed to act as "marketing" for the paid version, it's often wildly mis-targeted. Many people use the free version solely because it's free, and have no interest in signing up for the paid version at all. So that's not the right target market. If you're going to charge for something, you need to give people a real reason to buy, which often is offering something entirely different that is enhanced by something free, rather than limiting something free.

Unfortunately, however, the whole concept of "freemium" (including the catchy term) has received so much attention that many startups now jump right in with a cookie-cutter "freemium" offering -- and now they're learning why that's a mistake. Ross Pruden alerts us to a really interesting article from an entrepreneur who went the cookie-cutter freemium route, and eventually backed away from it and saw his revenue shoot upwards. He then explores a few other companies that have gone through similar evolutions, and saw the exact same thing happen.

This isn't surprising, given the problems described above about "freemium." Unfortunately, however, the author of that blog post, Ruben Gamez, jumps to the wrong conclusion that "free plans don't work." That's taking it a bit far. Freemium type plans can work in some cases, and "free" by itself can work wonders, if done right. But that tends to involve using free to enhance the value of something else, rather than using it as a sampling.

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Lehman Brothers ex-CEO Wants Everyone To Know That It Was Everyone Else's Fault Lehman Failed

Mike Masnick — Thu, 2 Sep 2010 13:37:37 PST

At a public hearing of the Financial Crisis Inquiry Commission -- the group put together to investigate the Wall Street implosion of 2008 -- former Lehman Brothers' CEO, Dick Fuld, wants everyone to know that Lehman was not at fault in its failure. No, it turns out the problem was all of you. You didn't believe strongly enough in Lehman, and then the government didn't bail him out because of it. As the crew at Planet Money notes:

In fact, in 1,680 words of prepared testimony, Fuld devotes exactly 15 words to what Lehman did wrong. And those 15 words are immediately followed by an explanation of why Lehman's errors didn't contribute to the bankruptcy:
In retrospect, there is no question we made some poorly timed business decisions and investments, but we addressed those mistakes and got ourselves back to a strong equity position ... There is nothing about this profile that would indicate a bankrupt company.

Of course, part of his reasoning is that the government did proceed to bail out most of the other big Wall Street firms. However, just because the government decided to save those other guys, it doesn't mean that all of Wall Street didn't make some serious mistakes in creating their own downfall. In fact, a recent report from Planet Money and Pro Publica, that came out just last week, showed how ridiculous levels of self-dealing among banks not only prolonged the mess, but actually made the eventual impact much, much worse. Basically the banks created fake demand for the very worst parts of the mortgage-backed securities they were trying to sell, in order to keep on selling.

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USTR Behind ACTA Secrecy; This Is Not The Transparency We Were Promised

Mike Masnick — Thu, 2 Sep 2010 12:31:37 PST

This is hardly a surprise given previous reports and previous actions of the USTR, but it does highlight the blatantly false claims from the USTR that it is being as transparent as possible when it comes to ACTA negotiations. The Obama administration has repeatedly told different groups in the administration to be as transparent as possible, but apparently the USTR simply doesn't care. It puts out content free statements claiming that it's "committed to improving transparency," but when it comes time to release the latest draft of the document, it's not released officially at all... and reports are now coming out to say that this is due to US demands to keep it secret. Transparency? Not around the USTR, apparently. They've been using transparency as a negotiating ploy, and when they don't get what they want, they refuse to let the document be released. Of course, in being so childish, all the US has really done is draw more scrutiny, and pretty much guarantee that a draft (including the markup that the one and only official release left out) get leaked.

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Woman Sues Facebook After Getting Banned

Mike Masnick — Thu, 2 Sep 2010 11:31:35 PST

Michael Scott points us to a story of a woman who not only drove from Maryland to California to go to Facebook's offices to complain about having her account banned, but (when that didn't get the account reinstated) then she sued the site for the ban. Facebook says she was banned for harassing others. The woman, Karen Beth Young, says she was just promoting causes she was interested in, and, in doing so, friending lots of people (about 4,000 by the time the account was closed). She claims the ban violated her constitutional rights... and the Americans with Disabilities Act. The constitutional claim is almost certainly a non-starter. As a company, Facebook certainly has the right to ban pretty much anyone it wants to ban. The ADA claim also seems like it won't go very far, but as Eric Goldman notes, with so much ADA litigation, there's always a chance that "a court could have sympathy for the plaintiff." In this case, she's claiming that she has a bipolar disorder, and Facebook "does not provide reasonable accommodations to individuals with disabilities," like her. But that implies the problem was with her mental health issues, rather than her actions on the site. This seems like yet another case of someone saying that if they don't like something it must be against the law... even when that's not the case at all.

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Music Publishers Angry That Apple Didn't First Grovel To Them About 60-Second Song Previews

Mike Masnick — Thu, 2 Sep 2010 10:24:11 PST

It's really incredible to watch music industry folks shoot themselves in the foot over and over again with a simple inability to understand that promotions can lead to more sales, and that you don't need to get paid for every promotional effort. We've seen some in the industry gleefully admit that they'd rather have $1 today than $100 tomorrow. But this sort of thinking seems to pervade so much of the music industry at times that it's really quite stunning.

The latest comes from rumors that Apple was going to double song sample lengths in iTunes from 30-seconds to 60-seconds. There's apparently plenty of good reasons for this, as research has shown that 60-second samples lead to more purchases.

And yet, despite the rumors, you'll notice that Steve Jobs did not announce the expected doubling of samples. Why? Apparently Apple had the approval of all four of the major record labels... but he forgot to go groveling and beg for permission from the other side of the coin: the music publishers. Apparently, various music publishers read the rumors of the doubling and were quite upset that Apple hadn't asked for their permission, and even started lawyering up to sue, in case Apple announced such a plan without first getting permission from various music publishers.

And people say we're exaggerating when we show just how ridiculous music licensing is. This isn't about copyright or revenue or anything. This is just childish foot-stomping by a group that demands that everyone ask permission before helping them make more money. Stunning.

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Bartenders Looking For Greater Intellectual Property Protection For Drinks

Mike Masnick — Thu, 2 Sep 2010 09:11:11 PST

Copycense points us to yet another story about another person in another industry whining about not getting enough monopoly privileges from the government. This time, believe it or not, it's bartenders wanting to protect mixed drink recipes. Seriously. Unfortunately, the writeup at the Atlantic, by food writer Chantal Martineau seems to get an awful lot of points about intellectual property totally mixed up. The article slips back and forth between trademark law and copyright law (which are extremely different) and then has this whopper:

The publication of a recipe can be legally protected, but the "expression of an idea," as the lawyers in the seminar explained, cannot. It's the reason musicians can't be sued for covering another band's song in a live show.

So many things wrong in two short sentences. First of all, no, the publication of a recipe cannot be protected. Straight from the US Copyright Office: "Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection." That said, if there is "substantial literary expression" in, say, the description of how to prepare the recipe that part (and that part alone) could be covered by copyright, but that should have little impact on bartenders making similar mixed drinks. Also, copyright is, in fact, supposed to protect the expression, contrary to the statement above. This is the whole basis of the idea-expression dichotomy, which Martineau seems to get backwards. As for why musicians can't be sued for covering another band's song in a live show, that's got nothing to do with the difference between an expression and an idea, and everything to do with performance rights licenses from venues to PROs like ASCAP and BMI that (in theory) are supposed to cover the copyright (yes, there is one) on the composition.

As for the meat of the actual article, there's a lot that's very troubling in there, though Martineau doesn't seem to challenge any of the claims made (given the confusion on the topic, perhaps that's why). It starts off with a story about a trademark violation, when a new Manhattan lounge called Painkiller was threatened with a cease-and-desist from the distillery Pusser's, who had apparently trademarked a drink called Painkiller back in 1989. But the only issue there is the name (which is trademarked), not the recipe. So it's odd that this is used as a lead in to a discussion about copyright.

The actual story focuses around an apparently angry bartender, Eben Freeman, who seems to be upset that he doesn't get enough credit for inventing certain drinks:

After the seminar, I spoke to Freeman, who admitted he came up with the idea for the talk after becoming fed up with other bartenders and establishments taking credit for and profiting from his recipes and techniques. (Fat washing, for example, the process by which a spirit can be infused with, say, bacon, was pioneered in part by Freeman, yet is often attributed to others.) "Someone needs to get sued ... to set a precedent," he told me.

"In no other creative business can you so easily identify money attached to your creative property," Freeman went on. "There is an implied commerce to our intellectual property. Yet we have less protection than anyone else."

Of course, Freeman is exaggerating the claim that bartenders "have less protection than anyone else." He has just as many protections, it's just that you can't copyright a recipe. If it's true that he really did come up with a novel and non-obvious process for "fat washing" (I really don't want to know), then he could have applied for a patent on it, but in an article confused about trademarks and copyright law, no one even mentions patents. Perhaps Freeman should have done some research first.

From there the article goes off on a totally random tangent about how big liquor companies have been hiring young bartenders to become "brand ambassadors" where they're expected to come up with a signature drink using the specific brands in question. But, the accusation is, these bartenders "don't have the experience" to do so, and instead just copy someone else's recipe and tweak it. Of course, that's not illegal. At all. And it's not a problem. It's how innovation happens. You build on the ideas of others, and you tweak it to try to make it better. There's nothing wrong with that at all. In fact, it should be celebrated. In fact, we've seen how the very same lack of copyright protection over recipes has helped food and restaurant trends grow and spread in valuable ways. Instead, this just seems like a complaint about someone who doesn't like young bartenders and the way they work. But that's not an intellectual property issue.

Over at the Washington Post, Ezra Klein does a nice job pointing out that, just as with fashion copyright, there's no evidence for a need for a "drink copyright,":

As is always the case with granting individuals legalized monopolies over intellectual property, we should start by asking whether consumers are suffering because bartenders don't have enough financial incentive to innovate interesting new drinks. Given that the past few years have seen an incredible explosion in creative mixology, that's a hard case to make. The status quo seems perfectly good at encouraging innovation -- so much so that the drinks have gotten increasingly comical.

And it's not just that there's no evidence that consumers are being harmed by the current arrangement. There's clear evidence that they're benefiting from it. I live in Washington. But a lot of really good cocktails are thought up in San Francisco. Happily, I can drink a lot of those cocktails, as the most successful recipes quickly proliferate.

But, of course, the reason that Freeman's complaint and Martineau's article don't ask those rather basic questions, is that it appears both don't realize that intellectual property is supposed to be about incentives, rather than protectionism and making sure that some guy who created something "gets his proper credit." Freeman's complaint comes off more as someone who just doesn't feel he's received enough recognition for his work as a grumpy old bartender. But that's got absolutely nothing to do with intellectual property law -- patents, trademarks or copyrights -- and should have no bearing on whether or not he likes young bartenders coming up with derivative drinks.

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Reminder: You Don't Own Your Ebooks; Amazon Locks Customer Out And Doesn't Respond To Help Requests

Mike Masnick — Thu, 2 Sep 2010 08:10:11 PST

We've pointed out in the past that if you're "buying" ebooks on devices like the Kindle or the iPad, it's important to remember that you're not really "buying" the books, and you don't really own them. We're seeing that once again with a story on Consumerist about a woman who was locked out of the ebooks on her Kindle for a month:

A month ago I bought a kindle and was really excited to use it on vacation. I bought a few books and when I was done, I bought another. Then they froze my account, so I called in and logged a case.

Within 48 hours I got a call back, saying it was an error on their side and they'd unfreeze it for me, but I'd just need to re-order the book. I thought no problem, thanks for the help. So I bought the book a second time and it automatically freezes me out again. I call in and log another case, but get no phone call back as promised from an account specialist.

This apparently has gone on for four weeks, involving approximately 20 phone calls and emails... and still no solution from Amazon. Anyone know of any case where the same thing happened with a physical book?

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Connecting With Fans Is About More Than Getting People To Pay Attention To You

Mike Masnick — Thu, 2 Sep 2010 06:55:11 PST

When I first start talking about this whole CwF+RtB thing, I tended to focus more on the "RtB -- Reason to Buy" part of it, because I naturally assumed that was the big problem. After all, the big thing we kept hearing was how creative folks weren't able to make money any more. However, the more I've been discussing this with people, the more I realize that many, many folks out there have serious problems with the first part, the "connecting with fans," part. I recently got an email from an artist who seemed upset, saying that he was giving out all of his music for free, but fans weren't interested. Similarly, I recently got into a discussion in the comments with someone from a newspaper who insisted that I was wrong in saying news organizations need to better enable their community. His argument was that newspapers put up comments, just like we have at Techdirt, so they're doing the exact same thing as we are.

Both of these appear to be cases of cargo cult copying, where someone tries to copy just the superficial outwardly obvious aspects of what others are doing, without taking the time to understand (1) the deeper underlying reasons why they work for some or (2) recognizing how that might (or might not) apply to what you're doing yourself. Connecting with fans isn't about "oh just give away content for free," or "oh, put up some comment forms." It's about actually figuring out what your community wants, interacting with them, and giving them what they want. It's about actually participating in some manner.

I was thinking about all of this as I read an interesting blog post by Marcus Taylor, where he explains the process by which he became a fan of the singer Jason Mraz, who had that catchy hit single last summer that many of you probably heard. But just hearing a catchy hit song being played over and over again isn't enough to make someone a true fan. Taylor points out that it went way beyond that, and took him not just listening to much more of Mraz's music via various online offerings, but then coming across some interviews with Mraz, where his personality shines through. Taylor points out that it took some time, but he finally realized that he didn't just like Mraz's music, but he liked Mraz -- and that made the jump possible. From there he comes up with a short list of "ways to make fans fall in love with you":

Be yourself -- Most people despise a fake personality and can smell it a mile off, be your self and people will appreciate that.

Be transparent -- don't hide the fact that you're a small local band if that's what you are -- if you're honest and likeable then your fans will be more inclined to help you get to the next step.

Be professional but not too serious -- After all, life's too short for being too serious and worrying about everything, have fun but remain professional.

Leave breadcrumbs everywhere -- better yet, leave breadcrumbs that show off the points above and give your fans a good reason to love you. Remember not all fans react to the same mediums as strongly so keep producing images, videos, and text content to bait them.

Obviously, this doesn't apply for everyone, and there is no "magic formula" for figuring out the best way to connect with fans, but it's certainly about doing a lot more than tossing out some free content and a comment form and wondering why fans aren't rushing to you. You actually need to be a part of that process, and actually let your personality come through. Being human really counts for something, and it's a point that's ignored all too often.

Along those lines, this upcoming Tuesday, at the a2n conference in Berlin, I'll be leading a brainstorming session generating ideas for musicians to better connect with their fans.

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Filipino Gov't Loses Court Case Because It Relied On Wikipedia

Mike Masnick — Thu, 2 Sep 2010 05:28:11 PST

A few years back, we discussed whether or not it was appropriate for judges to cite Wikipedia, noting that some were against the idea. Now, Slashdot points us to a case over in the Philippines, where the Filipino government has lost a recent lawsuit, in large part due to relying on Wikipedia to counter claims, rather than bringing in an expert witness.

However, what's odd, is that the judge in the case seems upset about the use of Wikipedia itself, with no specific attempt to determine if the citation was accurate or credible. It appears that the government was really using Wikipedia to call up the infamous psychologists' bible DSM-IV, in order to explore whether or not one of the participants in the case had a real personality disorder. While citing Wikipedia might not be the wisest of decisions, it still seems a bit harsh to dismiss it entirely because of the source, without any effort to determine if the content itself was legitimate.

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Is Falsely Being Accused Of File Sharing With An Automated Pre-Settlement Letter A Form Of Harassment?

Mike Masnick — Thu, 2 Sep 2010 03:52:11 PST

With law operations like ACS:Law in the UK and US Copyright Group in the US sending out thousands upon thousands of "pre-settlement" (i.e., "pay us or we'll sue you") letters for those it accuses of copyright infringement, based on extremely flimsy evidence, it's inevitable that plenty of innocent people will get swept up in the legal threats. At least one law firm in the UK is looking for those who were falsely accused to file a harassment charge on their behalf. This seems like a stretch. Even if it does seem like harassment, my guess is that no court would likely find that such legal threats were harassment, as the lawyers bringing the suits would make the case that it was just an "honest mistake." Of course, if you tried to use that in response to a threat letter for sharing a file online, I doubt these law firms would simply let you walk away...

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BBC Loses Its Attempt To Silence Top Gear Test Driver The Stig From Revealing His Identity

Mike Masnick — Thu, 2 Sep 2010 01:30:45 PST

The incredibly popular UK BBC TV show Top Gear has been involved in a legal fight with publisher HarperCollins over the plans to publish a book revealing the identity of "The Stig," the always secretive test driver who appears in the show unidentified in a racing suit and helmet. The BBC spent its (publicly-funded) money to try to prevent such a revelation, but the UK courts have pointed out the basic free speech rights involved, and allowed racecar driver Ben Collins to admit that he's The Stig and have his autobiography published. Of course, in watching this battle unfold, I was confused as to why the BBC was going after HarperCollins, rather than targeting Ben Collins directly (and, by the way, I'm assuming the "Collins" in both names is a coincidence). Either way, as HarperCollins notes, this does appear to be a victory for free speech. In the meantime, if the BBC is really so upset that "the mystery" is gone, why not just get a new once-again secret Stig? In fact, the BBC has actually done exactly that in the past, dumping Perry McCarthy as the original Stig after his identity was revealed.

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When Will People Learn: Websites Are Not Liable For What People Write In The Comments

Mike Masnick — Wed, 1 Sep 2010 23:28:45 PST

It still amazes me when lawsuits actually get filed against sites for things that people write in the comments. Section 230 case law is really well established on this, and you would think lawyers would know better. But, such lawsuits still get filed, and they get dismissed just as quickly. In this particular case, a TV news anchor who was arrested during a drug bust (though, later, not indicted) got upset about her (former) employer writing an article about her arrest, where some people wrote things she didn't like in the comments. So, she sued her former employer for "allowing unfiltered online comments which contained false information." Of course, allowing unfiltered comments is not, by itself, illegal, and the court made that clear:

Miles does not allege that the defendants wrote or revised the false comments. In fact, she alleges that the comments were not filtered by the defendants. Furthermore, she complains that the defendants merely allowed the comments, and there is no indication or allegation that the defendants encouraged defamatory comments on their website. As a result, the Court finds that the defendants are immune from liability for the allegedly defamatory third-party comments published on its website pursuant to the Communications Decency Act.

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eBay Dumping All Third Party Checkout Options

Mike Masnick — Wed, 1 Sep 2010 20:30:45 PST

Reader Mike sent over a story from Investors.com claiming that eBay was now banning Google Checkout from eBay. That struck me as odd, because we had written about eBay banning Google Checkout more than four years ago, and weren't aware that anything had changed. And, in fact, that's the case. Ebay is pointing out that the new announcement has nothing to do with Google, which has always been banned. Instead, what it means is that other third party payment offerings, which had previously been allowed, will no longer be offered. That seems unfortunate, as eBay used to be quite open about letting others play nicely in its sandbox, but recently has become more and more controlling.

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Lawyer Tries Selling DIY Legal Response Kit For Those Hit By US Copyright Group Suits

Mike Masnick — Wed, 1 Sep 2010 18:32:45 PST

With US Copyright Group (really DC law firm Dunlap, Grubb and Weaver) filing tens of thousands of lawsuits against individuals accused of file sharing certain movies, there's been something of a scramble for some of those accused to find legal help. While the EFF put together a list of lawyers interested in helping those accused, one of them, Graham Syfert, has realized that many of those accused really can't afford a lawyer for their defense, and so he's put together some worksheets to help those who wish to defend themselves, pro se, against USCG. Apparently, he was trying to charge $99 for the worksheets, but after TorrentFreak raised questions about the price, he's dropped it to $9.99. As Syfert told TorrentFreak:

"My dream would be to have 10,000-20,000 people file all three documents to the lawyers and severely cripple the entire process and show them that you shouldn't be allowed to join so many defendants."

That seems a bit unlikely but for those accused of sharing a movie, and without the means for full legal representation, at least there's some alternative.

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If You Have To Tweet About Me Before I Give You Content, Will You Still Respect Me In The Morning?

Mike Masnick — Wed, 1 Sep 2010 16:57:45 PST

A couple months back, we discussed the growing trend of some content creators to require some sort of promotion in exchange for "free" content -- such as "tweet about our album and you can download a song." Apparently, such practices are becoming more common place, with a whole company being built around the concept. However, just like I wrote when we first discussed this, these sorts of requirements seem like fake word of mouth marketing, unlikely to drive any sort of sustained interest. That's because you're requiring people to promote you just to get your content, rather than giving them the content and having it be awesome enough that they actually want to tell their friends about it. It basically gets the equation backwards, and in the process, seems to suggest that the content in question really isn't that good. After all, if you have to force people to promote you before you'll give them content for free, it sounds like you don't think they'd want to promote you after they got it. I can see why people would jump on this kind of bandwagon, but I think that those who do should consider the possible negative signals it gives off.

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How Microsoft Missed The Disruptive Innovation In Paid Search

Mike Masnick — Wed, 1 Sep 2010 15:37:45 PST

We recently highlighted a part of one of Paul Graham's recent essays that told the story of how Yahoo missed the paid search opportunity, by fearing that it would cannibalize all the revenue coming in from its "portal" business. As we noted, it was a great example of why big companies so rarely notice disruptive innovation, even when it's handed to them. Ali Partovi picked up on the same part of Graham's essay, and wrote a similar story about why Microsoft also failed to see the opportunity in paid search, despite the fact that Partovi and others were pushing for it, both from the outside, and then inside (after Microsoft bought his company, LinkExchange):

From 1997 to 2000, we visited Yahoo more than a dozen times to pitch the Keywords idea: pay-for-placement, keyword-targeted text ads on the side of search results. Despite repeated rejection, we pitched every member of Yahoo's executive team multiple times, each time finding new ways to present the concept and new data to support how profitable and huge the opportunity might be, all in vain....

In late 1998, Microsoft bought LinkExchange for $265 million, telling us they liked the "Keywords" vision. As Microsoft employees, we continued pitching the Keywords deal not only to Yahoo, but also to the up-and-coming Google. I wasn't surprised to find that these companies were wary of partnering with Microsoft. My greater surprise was the seemingly insurmountable resistance we faced within Microsoft itself.

After almost two years of fighting bureaucratic obstacles, we finally got the green light to launch "Keywords" as an MSN Search feature in 2000. It started growing rapidly, and the MSN Ad Sales division feared (correctly) that it would cannibalize banner ad revenue. They therefore decided (incorrectly) to shut down Keywords after a few months. If Yahoo's demise stemmed in part from being ambivalent about technology, perhaps Microsoft's error stemmed in part from being ambivalent about ad sales: we couldn't get the senior execs interested enough to intervene.

Both cases highlight the same basic point: the claim that big companies will automatically recognize a disruptive innovation and "copy it" is wishful thinking in many cases. Time and time and time again we see stories more like the ones above, where truly disruptive innovation isn't just ignored, it's actively blocked at big legacy companies who fear it cannibalizing an existing business, rather than recognizing the opportunity.

In the end, both Microsoft and Yahoo failed to jump into keyword search in any serious way until long after Google established it as a giant business. At that point, both tried to play catch-up, with Yahoo buying Overture and Microsoft rebuilding its product -- and as we've also seen over and over again, by waiting that long, it was too late. The two companies still haven't come anywhere close to catching up in market share, even if the technology is considered to be about equal at this point.

So the fear of some big company coming out and just "copying" you is generally overblown. If your idea is really disruptive, they probably won't recognize it, and by the time they do, you'll have a big head start, and their attempts to copy what you did will prove a lot more difficult than they expected.

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