New VS Old: the trial of the century this July 27

VS

The internet is all about openness, sharing, community. It is the democratization of all voices, the”long tail”.  It’s what it is. I believe in creative rights totally! But the thing is, if Viacom were to win its case now to be heard July 27 ’07 (NYTimes) it could truly alter the face of the internet. And the tail could be snipped short creating costly barriers to viewers and put power back in the hands of traditional networks for awhile.  Networks are still thinking analog and fighting to maintain a dying model while they figure out a way to dominate on internet turf. This win will buy time while they create a new revenue stream to upshore losses in the old format.

Digital entertainment will be ubiquitous within five to ten years and we will see the rise of production companies who find impetus solely from the internet using BitTorrent styled or compression technologies. The world will move from 20 some broadcast hours to a place where there is no limit on time or choice. Audiences will become exponentially fragmented and advertising will become less intrusive and relevant. No one not even Viacom will be able to stop this reality.

If YouTube get their wrists slapped it will cost them and their users will have to begin opening their wallets, BitTorrent style. Or offer a pre and post-roll advertising model for free access. Don’t we have enough advertising in our lives! In the end, YouTube will remain the leading purveyor of home-grown and perhaps professional shorts (although I don’t feel professional shorts should be placed in an environment replete with content that offends mainstream sensibilitities).

Google are requesting a jury for this epic day. Internet users around the world must be posted for this drama as it unfolds. This signifies that the internet is still young and undefined. It is not just technology advances that define it as we can see; it is also special interests. Democracy is for all. Everyone gets their kick at the cat.

War of Words Waging in the Valley

Tim O’Reilly launched a call for Bloggers’ Code of Conduct (COC) to end the vitriol that pervades the blogosphere. For those of you who do not know O’Reilly he is rumored to have launched the term Web 2.0; he also manages substantial interests in technology events and publishing in the Valley.

Many take this COC as censorship but Tim is clear to state that it is to offer the Freedom of Civility. The usual suspects are weighing in, including Danny Sullivan (search engine star), Mike Arrington (tech review star), Robert Scoble (blog star) and Doc Searls (of Cluetrain Manifesto fame). The New York Times has also joined the frey.

My take: It’s about time this conversation begins.

The blogosphere does not have the respect of the big business community and many other web users thanks to its limited lexicon, explitives and often baseless posting and commenting. O’Reilly seeks to make blogs more transparent i.e. no stealth journalism. This should keep the web more honest. In a seven step initial proposal, he also exhorts blog owners to be more vigilant with abusers–and to cease their own abuse. O’Reilly’s idea has been mocked by many; this is symptomatic of the fact that these are the voices usually heard. There are many who support him. It will be very interesting to see this play out. Movies always end in good conquers evil.

YouTube must return fire to Viacom

Indeed copyright law imparts a great deal of rights to creators and Viacom will cause perspiration to YouTubers and the entire web community. Will the $billion claim dropped on Google Monday (Reuters) change content sharing on the web? The final verdict will set a dearly needed precedent for those who abuse on the web. As one who has had her posts ripped by opportunists I can relate.

But! let’s be honest the entire entertainment industry knew their content was being shared for a long time. Surely Viacom was no exception.  Getting evidence of this will be important. Perhaps they did not realize how the digital age and a connected world community would change the way they do business. They were either asleep at wheel, or planned to launch an enormous law suit as a new source of revenue. It Viacom tolerated use of their properties over the years (the numbers being quoted in the media range from 100,000 to 160,000 clips for over a billion views) and were in contact with YouTube and its assigns (Google) and made no objection at the time, this is a “constructive trust ” in law. Note, that Google removed the content when asked. That South Park clip of Tom Cruise in the closet is now gone. It took me under a day to send a Cease and Desist demand to the thief who took my content. Why so long, Viacom?

Now Viacom is putting a value on losses comparing their negative growth vs YouTube’s growth, co-incidental with the use of their materials? This is a real long shot. And it certainly is not $1 billion dollars (that sounds like $1 a clip–a far cry from what they would make in TV advertising revenue for this exposure)–a newsworthy amount surely pulled out of their lawyers’ hat. After all, an $850,000 suit would not make as juicy a headline. Viacom’s website is certainly well detailed and poised to receive the incremental traffic from the publicity. In fact, they claim increased traffic; but I assure the resulting publicity in this action is the catalyst– not clips removed. The lawyers arguing for this will be loathe to ignore the publicity effect.

There is no doubt that many of us in technology have an affection for the Google and YouTube brands–both underdogs who redefined the way the world becomes informed and entertained. But my cooler brain prevails. I also have an affection for productions by Paramount (a Viacom subsidiary).

With all due respect to YouTube I don’t believe viewers are by nature inclined to watch long, small template/browser based videos often low quality for hours on end. YouTube is invariably the domain of shorts. And certainly an ideal place to promote one’s creative properties. YouTube must bring into its defense team an excellent valuator that can put a value on the promotion it has imparted gratis to Viacom. Viacom have allowed this to endure for years and benefitted from this. YouTube is not necessarily on the defensive here. I’m just sayin’…..

Yes there is the thorny issue of creative works but how complicit is Viacom in YouTube airing their material. Check the phone records, emails, visits to YouTube, conversations. How long did Viacom folks know before they asked YouTube to remove them? The burden is on the copyright owner to pursue.

I’m just saying again….

Fighting content theft aggressively

I simply hate it when a squatter copies my posts and paste them to a free WP template replete with AdSense ads–or anywhere else! Too many are pulling the wool over Google’s robotic eyes.  

One splogger pasted my post to four different blogs that are irrelevant, just in the past few days–blogs that are mindless junk. Having my post and name there is an embarassement!

Imagine how easy it is for a nubile programmer to download WP open source platform, set-up a pile of URLs with a registrar that offers free URLs like Tucows, troll the internet for content to steal, all so he can make AdSense dollars. This is a violation of Google AdSense terms–I have reported it to Google. This is a violation of his ISP agreement– I have reported it to his ISP. It is a violation of Automattic, WP‘s creators– I have reported to both. I have given this thief a chance to act and remove my content first. I was received with vitriol all through the day and denials–even though I have the complete WHOIS record sent to me by a WP related programmer and screen shots of 4 of his “blogs”.

A lot of bloggers are fed up with characters like this and they need to be prosecuted. It is plagiarism in a civil action; but i suspect it is also a theft in the criminal code. EULA must be inclusive of this. Copyright law must be enforced. It is a creation that belongs to me. This poor sod may be the poster boy for what I and the throngs have endured. His response takes away my guilt and fuels my cause.

What’s most damaging to the splogger is that he spent the whole day denying and then tried to mitigate his right to use my content by ripping Automattic’s TOS for justification. Little does he realize that the rights published are for themselves and do not extend to anyone else.

I quote a programmer who assisted me: “He’s completely off his rocker.”

There is a program that catches sploggers in advance, Sentinel by iwerx. I may be a candidate. But in the meantime, I will follow through this process and await Google AdSense’s, WP’s, Automattic’s and his ISP’s (DouglasFast in Oregon) actions.

One honest programmer removed the plug-in he created which the splogger ripped from his site enabling him to troll and steal this way. That is admirable. Now I await further action from the bigger players.

The next move is to call law enforcement in Oregon. And starting a file at Jones, Jones and Jones. I am not fooling around anymore.

We can no longer ignore issues of enrichment at someone else’s expense. Just last night my son told me he noted 30 million downloads of the movie 300 at a pirate site. Creatives are being abused everywhere every second.

Fair warning to those who copy my content without prior written consent, I will be like a dog on a bone.

Here is an awesome blog by Lorelle at WordPress to help victims take immediate action against plagiarists and sploggers. And yet another great post by Brad.

Patent trolls could alter future of the web

Well the moment has arrived. A few days ago Viacom demanded that YouTube remove 100,000 videos from its service, throwing down the gauntlet with 100,000 spam messages to cease and desist. For producers and artists whose revenues have been altered by digital squatting, there seems to be no end in sight. Distribution is everything right now. Just last week content producers in Hollywood threatened to hold back delivery to theatres in Canada if they could not get control over copying while movies play; apparently Canada (according to US) is mecca for this practice. Content producers are digging theirs heels deeper.

In a new clever move last January, YouTube has offered to compensate home grown video producers for their material. That will prevent claims from rising, perhaps class actions, to countless numbers.

Frankly, this is not about whether YouTube or other services have erred; it is about a new digital economy defining itself. Growing pains. There will be ambulance chasers who will enter the courts with old world patent and copyright laws for windfalls notorious of  large court judgments. And it will be the Googles and the Yahoos they will pursue. Maybe even the Flickrs and Technoratis.  But strangely enough this problem cuts both ways.

There is new impetus for claims against the common user via EULA (End User License Agreement), a contract between end user and producer of software. For software purchased at retail these are referred to as “shrink-wrap agreements” and on-line, “click through agreements”. Few read them following through with agreement by merely using or clicking “I agree” on-line. The agreements are ridiculously long and their meaning, difficult to comprehend. But, there is increasing debate about whether these agreements are enforceable.

Some of these agreements allow the licensors to snoop into the users’ computers and in some cases to remove existing software. In many cases the user cannot even “criticize” the product. This goes completely against the new consumer democracy all tech players purport to be purveyors of. Is this not the height of hypocrisy? Yet, EULA is now on steroids, ”overwritten” with TOS (Terms of Service ) contracts,  to lock-in and control innocent users. We know the corporations (and you know who you are) who indulge. Start-ups driven by VCs (who love “lock-in” software) are no stranger to this TOS practice. The relative absence of these could be a brand building feature!

In the grander scheme of things, is this wise? EULA must be reformed. Firstly, licensors must have a good hard look at their actions and recognize that they are taking basic rights under our collective constitutions away. Ambulance chasers (patent attorneys) see an opportunity; but, truly when rights in constitutional preambles come into play what are their chances? The public will become aware, perhaps stop clicking, stop buying.  It’s not inconceivable. Software producers must rely on the copyright law that protects them well enough and enjoy the benefits of their works. Et tu?

Software creators must look at their values—-publish and espouse them. In this, there is brand affection and loyalty in a sea infested with (name your predator here). Rethink.

Mozilla marketing tactic irritates

Mozilla’s Firefox could lose the love of many if it continues its guerilla tactic of interfering with browsing with IE. People like to make their own choices. And to have your viewing highjacked while in process is simply annoying. I downloaded Firefox having heard the buzz; yet, the only way to get it to stop this behavior is to remove it. I thought Firefox could take the place of grace. One of our programmers said, “I don’t use Firefox because of this annoying intrusion”. Be careful Mozilla, this behavior is unlike the glowing chatter in the marketplace. I’ll bet the buzz is abating.

Google wins a big one for search platforms

Last Thursday, September 28, a US federal court ruled for Google against a small player that it’s OK if Google sells ads to advertisers adjacent to name searches for their competitors. (Why does Bill Gates saying “it’s like they’re asking us to put a Pepsi in a six pack of Coke” come to mind). Issues of intellectual property rage on.

The small company, Rescuecom, argued Google was breaking trademark law by “free-riding” on the brand equity in their name. Also that Google made it difficult for searchers to find Rescuecom’s web site by deliberately doing the following: manipulating the search results, hence using the trademark internally.

Hmmmm. Gives us pause.

Rescuecom is contemplating an appeal. David Milman, founder and chief executive of the company, states, “A dangerous precedent has been set that allows a behemoth to pit smaller competitors against one another, while it rakes in the additional revenue”. “The immense power enjoyed by Google will be compounded by this ugly tactic as advertisers clamor to reach critical online audiences. Rescuecom will not be the last company hurt by this scheme.”

This case may set a precedent in trademark case law (if the ruling is not overturned on appeal): that keywords are not trademarks. Yet Google lost trademark lawsuits filed by designer Louis Vuitton in June 2006, and last year, by Le Meridien Hotels and Resorts. So this is not global consensus. Again the new world services must tread carefully when travelling out of N.A.

The release form will become an important tool on the web. Don’t steal this idea lest I pursue you but shouldn’t someone start a release service? http://www.pleasereleaseme-letmego.com. Don’t click this — it’s a parody!! I have not obtained a release from Engelbert yet.

All these skirmishes have driven me to get that Creative Commons button uploaded to my blog “forthwith”. Et tu?

First Google Belgium Now YouTube – Intellectual Property is the “medium tail”

Web content services are now starting to negotiate user rates lest they be sued by studios (sound or screen) or authors for sharing their content. A lawsuit was launched by a journalist against YouTube in July for copyright infringment. Now the head of Universal Music is blasting YouTube and threatening to take action with the same cause. The value web services like YouTube bring to these studios is shadowed by the windfall the studios can obtain in US courts notorious for generous judgments. But this is incredibly short-sighted. Other media corporations see the future value and are cooperating with YouTube and similar services. The studios and media were asleep at the wheel while folks at Apple, Amazon, Microsoft and Yahoo! (to name few) and YouTube where busily developing the technology to enable massive entertainment distribution. YouTube reports 100 million viewers per day–that nears superbowl status! Gives me goosebumps. YouTube may be the poster child for opportunistic studios who were slow to act in a whole new paradigm. Surely the Belgium claim against Google will serve as fodder in a YouTube settlement or ruling. Brace yourself for more action; ambulance chasers are actively sniffing every opportunity (it’s more lucrative than a “slip and fall” practice).

What’s sad for start-ups like YouTube is that they are barely monetized with mostly VC money keeping them afloat. The pressure is on to tack ads on videos, web pages and perhaps even start charging a fee to users–so they can compensate the content producers whoever they may be. While studios were slow, the devices were even slower at keeping up the pace. The masses don’t want to watch TV or movies on their computers; however mobile devices have great appeal. Apple will be the first to offer the Apple iTV module early in 2007 making TV viewing possible. Yet analog TV still reigns. Digital TV is in progress. Broadband isn’t here yet–not for internet TV.

Perhaps there should be a fee levied by content producers (counterpoint) but value must also be placed on distribution. And valuators must assess the value of distribution and audiences delivered by YouTube–it is high and not to be undervalued. (We need the equivalent of Nielsen ratings for the web.) YouTube should be on the offensive and recognize their immense power and value in building these entertainment brands and their many licenisng initiatives. For Hollywood it is free advertising. It is a two-way street. And this is not about replicating the old model where all is downloaded to the audience–after all YouTube cannot sell buckets of popcorn at 100 times the cost; this revenue stream is just not there. Can surfers tolerate streamed 30 second spots in the TV model? This intrusiveness is what endeared users to the web. So many questions.

The studios need the YouTubes; hence, visionary media players are now collaborating. I do not believe YouTube will go the way of Napster. We are at a “medium tail” point. Change always meets with resistance. People kept burning oil lamps when bulbs were in use. I for one am offering my dirge herein at no fee but I always expect credit. Aye! there’s the rub.

Path to 9/11 ABC blog yanked and unyanked

Sometimes it seems the democratization of the web may be the domain of the “little guy” who stands to lose little brand equity by expressing him/herself effusively. Lo and behold, under fire from right-wing critics ABC has yanked its related blog. “Path to 911″, ABC’s made for television drama, airing last night and tonight was fodder for the blog. Now that impetus will have to find new outlets… Excuse me, this just in… I am being interrupted with an update. Oh! it was unyanked two days later? Huh? (Hurry and join in the blog before a re-yanking where the “little guy” can control the chatter.)

HP Chairman Patricia Dunn not yet fired

If HP doesn’t fire their Chairman (or entice her with a nice home in the Alps) they will be deemed to have accepted her conduct as acceptable. Integrity, transparency and good brand values when not observed can be a brand killer. This venerable company who has developed outstanding products over the years simply cannot withstand too many days within this controversy. Big PR is necessary forthwith. Starting with Pat’s departure. Just in case you haven’t heard, she’s been accused of masterminding the hacking of personal phone records of reporters and board members to uncover the source of boardroom leaks. Is that the new HP Way? We’ll see.