David Kirkpatrick

May 13, 2010

Simon & Schuster, Fortune epic fail

I feel for that other David Kirkpatrick. He’s caught in the circular fire of a dying publishing industry. The thrashings of that particular dinosaur aren’t as public or violent as those of the music and entertainment industries, but they certainly aren’t any less dumb.

Read this entire piece for a taste of the soon-to-be-history file.

From the second link:

I carefully wrote the post, taking time to properly format the text from the excerpts (which is a real pain), linking to both the Kindle and hardcover pre-sale versions of the book in the first paragraph, and linking to Fortune twice in the second paragraph. I added a bolded statement“In the meantime, Fortune has access to two excerpts from the book, and this stuff is solid gold.”

In my world, that’s known as a big wet kiss. And at first both Fortune and Kirkpatrick were pleased. 22 minutes after the post was live, Kirkpatrick emailed to thank me. 48 minutes after the post was live, Fortune emailed to say:

Hi Michael, thank you so much for doing such a great post this morning.

But of course no good deed goes unpunished.

Just six minutes after emailing to tell me how great the post was, Fortune emailed again telling me that in fact they had only wanted me to post exerpts of the excerpts, not the whole excerpts:

Michael, I don’t know where there was a miscommunication, but I didn’t offer you to post the entire excerpt, just the first look and to pluck pieces from it. I need you to please take down the entire excerpts and just post pieces of it as we discussed. I gave you the excerpts to select from, but did not offer for you to post our content, I’m sorry if that was unclear. This is now an issue of copy write infringement and I really need your help in taking down the full excerpts and just posting pieces of it. Please contact me as soon as you can to let me know that this is happening.

Uh oh. “copy write infringement.” Sounds serious.

That was just before 6 am on May 6. I had been asleep for two hours. Fortune then called me three times between 6 am and 7:30 am. I woke up each time and thought “Who’s the jerk calling me in the middle of the night?” and went back to sleep without checking.

Another email at 6:03 am:

Michael, I really need your help on this. Again, I need the post to be fixed and you’re welcome to post a few hundred words from each of the excerpts, but I didn’t offer for you to post the entire excerpt. I gave those to you only to choose something to post. I’m sorry if that was a miscommunication, but I wouldn’t give you permission to post all of our content. Please take down the post and edit it to reflect only some quotes. Please let me know as soon as possible who I might reach to make that happen. I really need your help.

A fourth (or maybe fifth) call at 9:46 am finally got me up (after almost 6 hours of sleep, my average). This time it was Dan Roth, the managing editor of Fortune.com.

I returned the call and things got…heated. Roth said it was unreasonable for me to post the entire excerpts, despite the fact that they asked me to, and that it should have been obvious that we could only post excerpts of excerpts. He told me I needed to edit the posts. I declined on the grounds that I was pissed off I was being called so many times and that it would be a ridiculous amount of new work to pick out the right excerpts of excerpts.

He called me unethical. He then called me unprofessional. He demanded that I remove the post entirely. I declined. We hung up.

February 5, 2010

The recording industry, RIAA and intellectual property

Filed under: Arts, Business, Media, Technology — Tags: , , , , , — David Kirkpatrick @ 1:05 pm

In a Daily Dish post titled, “Copyright and Incentives, Ctd.,” which covers a much more broad concept behind copyright, intellectual property, patents and trademark issues, a Dish reader provided a very succinct view of how and why the RIAA and music industry have gone completely wrong in battling their customer base over digital recordings:

The record companies’ problem is that technology — the internet on the distribution side and the laptop and other personal recording technologies on the creation side — has made the record company’s traditional role as financer and distributor of works increasingly irrelevant.  They are using the intellectual property laws to protect a distribution model that is largely outdated.

I’d say you could even argue the RIAA is abusing intellectual property laws and slowly killing itself and the entire existing recording industry in the process.

January 12, 2010

More on Google and China

Filed under: Business, Media, Politics, Technology — Tags: , , , , , , — David Kirkpatrick @ 6:10 pm

Who’d a thunk I’d be doing two posts on Google and China today? First Google apologizes for a copyright breach issue in China (?!), and now the Mountain View company is threatening to pull out of China because of claims the Asian behemoth breached Google email accounts of human rights activists. Whatever else is going on here, I don’t see any changes to China’s overarching attitudes toward individual privacy or intellectual property — well, at least the intellectual property of non-Chinese citizens.

I understand Google wanting to do business with such a massive market, but it made serious concessions regarding censorship when it went into China so it can’t be all that shocked when China decides to just go out and do whatever it wants.

(Quick joke for Robot Chicken fans — Darth Vader: I’ve changed the terms of our deal. Pray I don’t change it further. Lando: Man, this deal keeps getting worse all the time.)

From the second link:

The company disclosed in a blog post that it had detected a “highly sophisticated and targeted attack on our corporate infrastructure originating from China.” Further investigation revealed that “a primary goal of the attackers was accessing the Gmail accounts of Chinese human rights activists,” Google’s post said.

Google did not specifically accuse the Chinese government. But the company added that it is “no longer willing to continue censoring our results” on its Chinese search engine, as the government requires. Google says the decision could force it to shut down its Chinese site and its offices in the country.

A word/concept combo you don’t see very often …

Filed under: Arts, Business, Media, Technology — Tags: , , , , — David Kirkpatrick @ 4:02 pm

China and copyright protection.

From the link:

Google (GOOG) has apologized to a Chinese authors’ group over its scanning of books by local writers into an online search system, moving to defuse copyright concerns around the project in China.

December 12, 2009

The publishing industry getting greedy

Filed under: Arts, Media, Politics, Technology — Tags: , , , , — David Kirkpatrick @ 6:33 pm

The New York Times has an interesting story today on e-books, copyright and backlist titles.

Here’s the key point with this particular publishing issue:

While most traditional publishers have included e-book rights in new author contracts for 15 years, many titles were originally published before e-books were explicitly included in contracts.

And here’s where the publishing houses are getting greedy:

Several publishers who say they retain e-book rights on old contracts are working to amend those agreements to insert digital royalty rates. A spokesman for Simon & Schuster, Adam Rothberg, said the company has amended many old contracts. “Our plan is to publish all our backlist in e-book form,” he said.

Contracts were signed with no idea the concept of a digital book would ever exist. Those contracts are for the rights to publish those books as physical, bound copies of the text. Publishing contracts are very specific on what rights are conferred, even to the point many publishers don’t include international rights to the books they sign for U.S. rights. E-books certainly fall under the category of an entirely new class of rights, not something that can be “ameneded” after the fact and after the author of those books, and signer of the contract, is no longer around to agree to any amendment. If the heirs to the author’s copyright want to take electronic rights elsewhere, they should be free to do so.

If publishers want to include e-books in older contracts, those rights should be separately negotiated, not amended. I hope the courts come down on the side of the artist on this issue.

Traditional publishing is dying an increasingly quick death right now. I wonder why?

October 28, 2009

Digial Rights Management …

Filed under: Arts, Business, Media, Technology — Tags: , , , , — David Kirkpatrick @ 3:35 pm

illustrated

.

flickr / Martin Krzywinski

This image is great. For the life of me I remain astounded by the success of the iPod/iTunes. I understand the branding quick-to-market aspects, but the iPod is a terrible tech device and standard. Ridiculous proprietary files, a history of just crippling DRM and many, many, many better and less expensive options out there. I know multiple people who lost massive collections of iTunes music because of the non-consumer/non-user friendly backbone of the service.

July 3, 2009

Music industry loses another toe …

… in yet another self-inflicted injury. You get the feeling the RIAA, ASCAP and other industry organizations are out to destroy commercial music. The industry has evolved, these tired dinosaurs haven’t and keep flailing about damaging everything in their path.

From the link:

A digital rights group is contesting a U.S. music industry association’s assertion that royalties are due each time a mobile phone ringtone is played in public. The American Society of Composers, Authors and Publishers (ASCAP) filed suit against AT&T asserting that ringtones qualify as a public performance under the Copyright Act. ASCAP, which has 350,000 members, collects royalties and licenses public performances of works under copyright.

The Electronic Frontier Foundation (EFF), however, asserts that copyright law exempts performances made “without any purpose of direct or indirect commercial advantage,” which would include a ringtone heard in a restaurant.

Click here to find out more!The organization further argued that the move by ASCAP could jeopardize consumer rights and increase costs for consumers. The EFF filed an amicus brief for the case on Wednesday in U.S. District Court for the Southern District of New York.”These wrongheaded legal claims cast a shadow over innovators who are building gadgets that help consumers get the most from their copyright privileges,” the EFF said in a blog post.

February 6, 2009

The digital world and the entertainment industry

Filed under: Arts, Business, Media, Technology — Tags: , , , , — David Kirkpatrick @ 1:59 pm

I’ve blogged on the battle betweendigital media and the entertainment industry (link goes search for RIAA, but both RIAA and MPAA are equally stupid on this topic. The RIAA is just a little more stupid) and how futile this fight is for the dinosaurs.

In fact, the war is over and the industry has lost. Lost credibility, angered customers and is now way behind a curve that could have been used as a slingshot into the future. Instead both the RIAA and MPAA are floundering.

I don’t the MPAA is going anywhere, but I wouldn’t be the least bit surprised if the RIAA either ceases to exist, or continues in a radically different form within five years. I can see the major labels pulling away from an organization that increasingly acts like a cornered, dying beast.

Here’s a story on how “digital pirates” are blowing past every blockade Hollywood movie studios throw in the way.

From the link:

On the day last July when ”The Dark Knight” arrived in theaters, Warner Brothers was ready with an ambitious antipiracy campaign that involved months of planning and steps to monitor each physical copy of the film.

The campaign failed miserably. By the end of the year, illegal copies of the Batman movie had been downloaded more than seven million times around the world, according to the media measurement firm BigChampagne, turning it into a visible symbol of Hollywood’s helplessness against the growing problem of online video piracy.

 

The culprits, in this case, are the anonymous pirates who put the film online and enabled millions of Internet users to view it. Because of widely available broadband access and a new wave of streaming sites, it has become surprisingly easy to watch pirated video online — a troubling development for entertainment executives and copyright lawyers.

Hollywood may at last be having its Napster moment — struggling against the video version of the digital looting that capsized the music business. Media companies say that piracy — some prefer to call it ”digital theft” to emphasize the criminal nature of the act — is an increasingly mainstream pursuit. At the same time, DVD sales, a huge source of revenue for film studios, are sagging. In 2008, DVD shipments dropped to their lowest levels in five years. Executives worry that the economic downturn will persuade more users to watch stolen shows and movies.

October 13, 2008

RIAA losing battles and already lost war

I’ve done some blogging on the RIAA and MPAA copyright battles. I love the entertainment industries, but these organizations are doing much more harm than good suing ordinary people and flailing about in death throes.

And even the base strategy is a losing propostion. I think the war is long over even if both are still fighting.

From the second link, a New America Foundation analysis:

The Recording Industry Association of America (RIAA) has been taking a lot of people to court–basically, harassing folks in an attempt to curb file-sharing. The $220,000 verdict against Jammy Thomas got a lot of news (and probably worried a lot of folks). However, on appeal (i.e., after a new court not cherry-picked by the RIAA to try the case looked things over), the RIAA lost… again. ZDnet covered the verdict.

At its heart, the verdict reaffirms that simply making a copyrighted work available is not the same as actually distributing the work. In other words, copyright holders actually have to show harm before they can sue the pants off of people. More importantly, it lends yet more weight to the notion that our copyright laws are woefully out of date and that the RIAA has systematically overstepped the legal bounds of its authority under existing copyright law.

October 11, 2008

If you have an interest in online copyright …

… piracy and what can be considered fair use, go read this essay by Lawrence Lessig at the Wall Street Journal.

I’ve blogged on the idiotic crackdown by both the RIAA and the MPAA on online file trading. There are arguments on both sides — there is some real piracy out there and there’s lot of fair use, with a bit of actual piracy thrown in that actually increases sales by giving consumers a taste of the product.

The fact is the recording and motion picture industries have already lost this war, even as they occasionally win one of their one-sided-legally battles. You could think of pre-digital files as the age of the dinosaur and this new era of data storage and selling/trading/sending as the dawn of the age of the mammal. We know how the original end of that metaphor turned out.

From the link, but do go read the entire piece:

In early February 2007, Stephanie Lenz’s 13-month-old son started dancing. Pushing a walker across her kitchen floor, Holden Lenz started moving to the distinctive beat of a song by Prince, “Let’s Go Crazy.” He had heard the song before. The beat had obviously stuck. So when Holden heard the song again, he did what any sensible 13-month-old would do — he accepted Prince’s invitation and went “crazy” to the beat. Holden’s mom grabbed her camcorder and, for 29 seconds, captured the priceless image of Holden dancing, with the barely discernible Prince playing on a CD player somewhere in the background.

Ms. Lenz wanted her mother to see the film. But you can’t easily email a movie. So she did what any citizen of the 21st century would do: She uploaded the file to YouTube and sent her relatives and friends the link. They watched the video scores of times. It was a perfect YouTube moment: a community of laughs around a homemade video, readily shared with anyone who wanted to watch.

Sometime over the next four months, however, someone from Universal Music Group also watched Holden dance. Universal manages the copyrights of Prince. It fired off a letter to YouTube demanding that it remove the unauthorized “performance” of Prince’s music. YouTube, to avoid liability itself, complied. A spokeswoman for YouTube declined to comment.

August 15, 2008

Copyright ruling good news for open source software and others

Filed under: Arts, Business, et.al., Media, Technology — Tags: , , , , — David Kirkpatrick @ 4:03 pm

This ruling by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., is great news for open source software developers, and anyone who wishes to exert some level of control over their creative works whether sold or given away.

One example is the Creative Commonscopyright license project. This project is geared toward authors, scientists, artists and educators to allow people to define the rights they assert and the rights they offer for use.

I use a Creative Commons license when I post fiction online. The fiction I choose to post is offered for no-cost re-publication as long as it’s not for commercial purposes. If say a magazine or commercial website wanted to run one of my stories they would have to get in contact with me and either get my permission or come to terms for compensation. This way I can offer selected works of art to be freely shared and still “own” the commercial rights to the work. Just because I give it away for one purpose doesn’t mean I’m ceding the right to compensation in another context.

This is from the Creative Commons “about” page:

Creative Commons is a Massachusetts-chartered 501(c)(3) tax-exempt charitable corporation. For more information, see the corporate charter, by-laws, most recent tax return and most recent audited financial statement.

Creative Commons defines the spectrum of possibilities between full copyright — all rights reserved — and the public domain — no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work — a “some rights reserved” copyright.

Too often the debate over creative control tends to the extremes. At one pole is a vision of total control — a world in which every last use of a work is regulated and in which “all rights reserved” (and then some) is the norm. At the other end is a vision of anarchy — a world in which creators enjoy a wide range of freedom but are left vulnerable to exploitation. Balance, compromise, and moderation — once the driving forces of a copyright system that valued innovation and protection equally — have become endangered species.

Creative Commons is working to revive them. We use private rights to create public goods: creative works set free for certain uses. Like the free software and open-source movements, our ends are cooperative and community-minded, but our means are voluntary and libertarian. We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them — to declare “some rights reserved.”

From the PhyOrg.com (way up in the first graf) link:

In a crucial win for the free software movement, a federal appeals court has ruled that even software developers who give away the programming code for their works can sue for copyright infringement if someone misappropriates that material.

The decision by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., helps clarify a murky area of the law concerning how much control programmers can exert over their intellectual property once it’s been released for free into the so-called “open source” software community.

People are free to use that material in their own products, but they must credit the original authors of the programming code and release their modifications into the wild as well, a cycle that’s critical for free software to continue improving.

Because the code was given away for free, thorny questions emerge when a violation has been discovered and someone is found to have shoved the code into their own for-profit products without giving anything back, in the form of attribution and disclosure of the alterations they made.

Here’s the entry on this from the Creative Commons site:

Brian Rowe, August 13th, 2008

 

The United States Court of Appeals held that “Open Source” or public license licensors are entitled to copyright infringement relief.

The Court of Appeals for the Federal Circuit (CAFC), the leading IP court in the United States, has upheld a free copyright license, while explicitly pointing to the work of Creative Commons and others. The Court held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work.  As a result, licensors using public licenses are able to seek injunctive relief for alleged copyright infringement, rather than being limited to traditional contract remedies.

Creative Commons founder Lawrence Lessig explained the theory of all free software, open source, and Creative Commons licenses upheld by the court: “When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.” Lessig said the ruling provided “important clarity and certainty by a critically important US Court.”

Today’s ruling vacated the district court’s decision and affirmed the availability of remedies based on copyright law for violations of open licenses.  The federal court noted that ignoring attribution requirements contained in the license caused reputation and economic harm to the original licensor. This opinion demonstrates a strong understanding of a basic economic principles of the internet; attribution is a valuable economic right in the information economy.  Read the full opinion.(PDF)

 

Creative Commons filed a friends of the court brief in this case. Thanks to all the cosponsors Linux Foundation, The Open Source Initiative, Software Freedom Law Center, the Perl Foundation and Wikimedia Foundation.  Significant pro bono work on this brief was provided by Anthony T. Falzone and Christopher K. Ridder of Stanford’s Center for Internet & Society. Read the full brief.

Full Press Release

A chink in the RIAA’s legal armor?

Filed under: Arts, Business, et.al., Media — Tags: , , , , — David Kirkpatrick @ 2:59 pm

I love the music industry. I even have a vested interest in the music industry succeeding. It’s just the old system no longer works. Digital files, and their inherent purity through virtually unlimited copies, have changed the entire ballgame.

The RIAA either does not get it, or more likely doesn’t like the fact their psuedoextortionist racket no longer rules the land. The major labels didn’t get it for the longest, but I do think these behemoths realize accommodations have to be made in order to remain viable, ongoing concerns.

I’ve blogged on the evils of the RIAA and the troubles facing the music industry here, here and here.

Now there’s some decent legal news on the asinine lawsuits the RIAA continues to file against ordinary people who get caught up in their quasi-legal dragnet.

If a new trial is granted for Jammie Thomas, the RIAA may find itself in a very difficult legal position going forward. And hopefully an actionable position from those it’s already railroaded with frivolous, punitive lawsuits.

From the WSJ link:

Judge Davis told the jury that making songs available online for distribution to others was copyright violation and that the record companies did not have to prove distribution took place. He has since learned of a federal district-court case in Phoenix that ruled that making songs available was not copyright violation. He is weighing granting Ms. Thomas a new trial.

If one is granted, one outcome could be a higher bar for what record labels need to prove to demonstrate that copyrights have been violated. For example, evidence that more than a handful of songs on a shared file folder were distributed to others may be needed.

“It’s going to be more difficult for them to prove” if they can’t simply rely on showing that songs were in somebody’s shared file folder, says Brian Toder, a partner at Minneapolis-based Chestnut & Cambronne who is representing Ms. Thomas.

April 3, 2008

Project Gutenberg

Filed under: Arts, et.al., Media — Tags: , , — David Kirkpatrick @ 2:55 am

If you’re looking for no cost books (both fiction and nonfiction) that are no longer covered by copyright, head to Project Gutenberg.

This excellent resource offers over 20,000 books on its main site and over 100,000 across its entire universe of affiliates, partners and resources.

For a sample of what you can find, here’s the top 50 authors downloaded over the last 30 days:

  1. Thomson, J. Arthur (35613)
  2. Austen, Jane (34034)
  3. Dickens, Charles (30463)
  4. Shakespeare, William (27665)
  5. Doyle, Arthur Conan, Sir (23725)
  6. Miles, Alexander (21763)
  7. Thomson, Alexis (21763)
  8. Verne, Jules (21428)
  9. Lacroix, Paul (19919)
  10. Baum, L. Frank (Lyman Frank) (18881)
  11. Landor, A. Henry Savage (Arnold Henry Savage) (16197)
  12. Beard, Charles A. (Charles Austin) (15813)
  13. Beard, Mary Ritter (15813)
  14. Spicer, William Ambrose (14209)
  15. Nichols, J. L. (14035)
  16. Jefferis, B. G. (13894)
  17. Colum, Padraic (13435)
  18. Pogany, Willy (12932)
  19. Poe, Edgar Allan (12762)
  20. Lang, Andrew (12520)
  21. Maspero, Gaston Camille Charles (12358)
  22. Hubbard, Elbert (12260)
  23. Carroll, Lewis (12113)
  24. Marshall, Logan (11549)
  25. Wilde, Oscar (10855)
  26. Pierce, Ray Vaughn (10792)
  27. Van Dyke, John Charles (10611)
  28. Aesop (10583)
  29. Doré, Gustave (10562)
  30. Wells, H. G. (Herbert George) (10467)
  31. Burroughs, Edgar Rice (10104)
  32. McClure, M.L. (9909)
  33. Sayce, A.H. (9909)
  34. Goethe, Johann Wolfgang von (9658)
  35. Litchfield, Frederick (9441)
  36. Eliot, George (8858)
  37. Burbank, Emily (8644)
  38. Nietzsche, Friedrich Wilhelm (8475)
  39. Potter, Beatrix (8389)
  40. Conrad, Joseph (8380)
  41. Harrison, James A. (James Albert) (8380)
  42. Sharp, Robert (8380)
  43. Wodehouse, P. G. (Pelham Grenville) (8265)
  44. Rawlinson, George (8082)
  45. Berens, E.M. (7966)
  46. Homer (7925)
  47. Montgomery, L. M. (Lucy Maud) (7900)
  48. Dumas père, Alexandre (7884)
  49. Stevenson, Robert Louis (7869)

… not a shabby group there.

March 1, 2008

The RIAA is really looking out for the artist

Filed under: Arts, Business, et.al. — Tags: , , , , , — David Kirkpatrick @ 12:53 pm

The RIAA and recording companies are certainly doing a bang-up job of protecting the artists creating every work named in every lawsuit.

Oh, you mean they’re only protecting their money, not the artist?

From Hit & Run:

Surprise! Actual musicians have gotten diddly from the $370 million copyright infringement settlement between record companies and Napster et al.

Artist managers are girding for battle with their music overlords over when their clients are going to see some of the dough negotiated last year in copyright-infringement settlements with a host of Web sites….

“Artist managers and lawyers have been wondering for months when their artists will see money from the copyright settlements and how it will be accounted for,” said lawyer John Branca, who has represented Korn, Don Henley, and The Rolling Stones, among others. “Some of them are even talking about filing lawsuits if they don’t get paid soon.”

Way to encourage and reward innovation, intellectual property law!

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