Law n Thangs

Arthur recently emailed me asking why I chided Lin for the In The Heights soundtrack having iTunes-only exclusive tracks, and it got me thinking (hopefully) blog-worthy thoughts:

The short answer is, I wanted to see the exclusives on AmazonMP3, since that’s where I buy music these days, but that’s not really the point. I’m more generally worried about Apple entrenching their market power with exclusives, because that’s can be a vicious cycle of increasing monopolization. If you’ll permit me to be a little lazy, here’s an relevant excerpt from a paper I wrote:

There is anecdotal evidence that the iTunes Store enjoys market power. Lily Allen, a popular British singer, has complained that she felt compelled to offer Apple exclusive content in order to secure promotional placement in the iTunes Store. While monetary payment for promotional placement has been customary across the music industry for some time, Apple has been able to force the payment into a potentially more valuable form, i.e. a strong competitive differentiator from the other download stores. Without market power, it is unlikely that they would be able to extract such exclusive deals.

Apple also benefits from what we may call the “catalog” barrier to entry, similar to the “applications” barrier to entry recognized in Microsoft. As the biggest download store, the iTunes Store is the only truly necessary distribution point in this market, and as a result, Apple has accumulated the largest catalog of licensed downloads, which then leads users to make it their primary destination when searching for music to download. While there is not as much work involved in re-encoding songs for rival services as there was to re-code for rival platforms in Microsoft, there is still some burden, and the more dominant Apple’s market share becomes, the less artists and labels will see benefits in distributing elsewhere. It is also likely that music consumers place more value on comprehensiveness than operating system consumers, because the future needs of the former are much less predictable than the latter. This would lead to warier consumers who would view Apple as an even more compelling download store than Windows is an operating system.

So Apple gets two hits of market power from exclusives: the direct hit from those who want to buy that particular exclusive, and the halo hit of being the store that has all the exclusives. I realize this doesn’t actually explain what’s wrong with Apple getting that market power, but that’s not usually hard to see with entrenched monopolies. They don’t have much pressure to innovate, so they often don’t. Even Apple, with as hardcore a rep for innovation as you could imagine, has done all of just about nothing with the iPod or iTunes since they became dominant; the only changes have come as a tangential result of innovation in markets where Apple has no power, specifically set-top boxes (AppleTV) and cell phones (iPhone). Those new products brought us some remote capabilities for iTunes and the iPod Touch, but the core capabilities for acquiring, managing and playing your music collection have not changed at all. That may be because it’s good enough for most of the customers, but so is Windows, and that’s never stopped Apple from pushing ahead with OS X…

There’s definitely much more to say on this, and after the bar exam I hope to say some of it, but for now I’ll just ask you to call your local musician and tell them to vote No on iTunes Exclusives (if their label is so charitable as to give them any say in the matter).

evan :: Jul.22.2008 :: Notions :: 1 Comment »

In no uncertain terms, this new Girl Talk is the shit. It’s hilarious, insightful and joyful in all the right places. If I know you, expect to endure this soon: “Here, let me play this bit for you…see, isn’t that crazy…the way he cut in that track is like whoa…c’mon, laugh/smile/gasp, goddamit!”

Gregg Gillis, d/b/a Girl Talk, is not really the new Eddie Murphy in any intelligible way, but his recent albums (Night Ripper and the new Feed The Animals) make me feel just like the first time I heard Raw or Delirious. Here is this continuous aural experience for what seems like hours, where every 10 seconds something happens that forces you to grin like a loon while forcibly stifling an involuntary “oh no he di’int.” It’s quite literally drugs- you want to feel like this all the time, and you want to share the experience with all your friends. But then you do, and you stand there unsatisfied, both with the reaction you’re getting and your own enthusiasm for the work. The problems are limitations we’re all familiar with in comedy: the joke just isn’t as funny the second time, especially if the second time is right after the first, and it’s awful to have to explain why it’s funny. The former is satisfied just by giving yourself a break from the material, but the latter is a barrier everyone has to surmount on their own; you really to have to recognize the samples to appreciate the “jokes.”

I really don’t mean to imply that Girl Talk just does musical jokes, though; I mean to call it comedy of the highest order. The Internet is littered with mashups that amount to nothing more than knock-knock jokes, but Girl Talk is like the Daily Show: not just funny because it’s true, but also true in spite of the funny. An amusing revelation is no less a revelation. Girl Talk pokes the tracks he samples with as sharp a stick as Jon Stewart ever wielded, but instead of lampooning, he’s celebrating. He takes out all the context and holds up the fragment, but instead of saying “look how ridiculous,” he says “look how excellent.” It’s aggressively optimistic, but it is just as trenchant as any cutting parody. He’s giving us a whole new perspective on the tracks he samples, not only by juxtaposing them so drastically, but by taking only a few bars of any one track. He’s giving you just enough to appreciate what is truly great about a particular hook or phrase, while weaving it in and out of an undeniably funky tapestry. You’re left with a renewed love for your old favorites, but there’s also a sneaking suspicion that the original artist may have grievously overused that sampled bit. It’s work in the best tradition of recontextualization, but it’s also enormously fun. Just like great comedy, you never stop wanting to laugh, or in this case, dance.

No one track does the album justice, but this one has a particularly inspired use of one of my old favorites, Aphex Twin’s “Girl/Boy Song”: Girl Talk – Shut The Club Down

Stay tuned for Part 2: the obligatory IP wonkery. It’s not for nothing that Girl Talk’s on the Illegal Art label

evan :: Jun.28.2008 :: Notions, The Roll :: 1 Comment »

Mashable is dead right about Billy Bragg’s Bebo beg (say that five times fast): royalties to musicians from social networks just weren’t part of the deal. Nick Carr calls it exploitation, sharecropping even, which just ain’t so, and would be offensive to me if I were a sharecropper or a descendant of one.

Bragg characterizes the musicians who post content on the site as “investors”, but that only holds if every one of us is an investor in every service we use. As hard as it may be to face, musicians are not magical fairies who bless everything they touch; sometimes they are just users like the rest of us, who poop and join new websites every day.

The radio analogy that Bragg makes is facially a wee bit less useless, but it is no more correct. There is no choice made by the artist there; radio gets to play your stuff whether you like it or not. That’s why there’s a statutory license, to approximate for the deals everyone would make individually. With the opt-in nature of social networks, there’s no need for such a thing. That’s not to say that they wouldn’t like to have one; I bet the sites would be willing to pay a reasonable statutory share of their ad revenue from each artist page if it let them force every artist to have a page…

Don’t get me wrong; I think artists make enormous contributions to the value of the web. I just don’t really know how to decide who’s an artist anymore, so if they’re going to get paid, I think they’re going to have to stand up and ask for it up front. Turning around and asking for a tithe after the content has spread throughout the tubes is a sure way to clog them up.

evan :: Mar.25.2008 :: Notions :: No Comments »

So one of the talking points about Microsoft! has been the question of government, i.e. antitrust, approval. While many think it passes muster behind a fervent desire for somebody, anybody to really compete with Google in search, I’m not quite so sanguine about a merger to duopoly in a market with such importance to our information economy. But that’s not what’s stuck in my antitrust craw here. Nobody’s talking about Microsoft!’s resulting dominance of web-based email services. They may a distant 2 and 3 in search, but they are the clear 1 and 2 of webmail, with Gmail running 3rd by a big margin. For all its technical excellence and geek cred, Gmail just hasn’t made significant inroads on the years of accumulated Yahoo and Hotmail accounts.

Now the reason I think nobody really sees an antitrust concern here is that the threshold question of market definition is a tricky one. Can we really say that webmail is a distinct market from all the ISP, hosting and corporate email accounts available to people? I do think the case can be made that the corporate market is distinct; most everyone I know makes a clear separation between their uses of work and home addresses, or at least actively uses both of them. The home market, where people can use a webmail address, or one given them by their ISP, or increasingly an address at their own domain from their hosting provider, is certainly more difficult to tease apart, but I think webmail is slowly but surely taking the field.

I’ve recently moved the whole clan over to Google Apps for our domains because it eliminates all of my maintenance hassles; anyone’s email client is misbehaving (I glare in your general direction, Leopard Mail), I just tell them to use the Gmail interface until I get around to it. I’m predicting soon they’ll just use that all the time. I think webmail clients are good enough now that they are clearly the right solution for almost everyone, especially when you can use them with your own domains. If these services are going to dominate the personal email market, then I think it could be entirely appropriate to put some conditions on the Microsoft! deal, like perhaps data portability, to ensure that competition isn’t entirely foreclosed.

Update 2/2: Tim O’Reilly is also concerned, and points us towards all the data-mining potential being discovered in email, which is an excellent point that I totally missed. I just assumed email was important enough already, but now that O’Reilly brings it up, I think we ain’t seen nothing yet.

evan :: Feb.02.2008 :: Notions :: No Comments »

[Ed: written a while ago, but seemed appropriate to publish as this nears]

Every time I re-read Souter’s majority opinion in Campbell, my goat is thoroughly gotten. It’s obviously the correct result, and it elevates important appellate precedents, but it just isn’t really honest about what needs to be done about fair use. It’s nice to carve out a more lenient standard for parodies in fair use, but to do this Souter places too much weight on the “market failure” approach. It’s still likely true that most copyright owners wouldn’t license a scathing parody, but that’s not why we like parodies and it’s not why we should protect them. We think parodies are important because they represent a fresh and separate perspective on work that has become common cultural currency. It adds to our collective discourse by presenting new views on that work, either in tension or agreement with the original. It should not matter whether a given parody is funny or even critical; what matters is that it is someone else’s opinion. We would do better to call it “commentary” and let it apply more widely, which has the benefit of being much closer in scope to the full spectrum of transformative uses we should protect (not to say that we shouldn’t protect consumptive fair uses, but that’s a whole ‘nother kettle of fish).

We’ve seen in Perfect 10 a case of copyright owners essentially developing a licensing market to preclude claims of fair use, and there is no good reason to imagine that this will not happen with parodies. Many copyright owners would be happy to license some parodies if they thereby got the ability to control all potential parodies. I believe the Court was worried about this, but they really should have been explicit about it, rather than gilding parody with market-failure leaf and leaving the rest of fair use on the shelf.

In short, we need fair use for all kinds of commentary because it must be independent to be effective. The problem is not that copyright owners won’t license parodies, but that they won’t license good parodies. A parody made under license, likely with the copyright owner having strong approval rights, is at best suspect, and more likely a complete sham.

evan :: Jan.31.2008 :: Notions :: No Comments »

As an initial matter, it seems like DRM is not incompatible with at least the distributional goal of Open Access. Getting more works of scholarship onto the network to reach where physical copies don’t is a big part of why people care about Open Access, even if they don’t especially care about copyright reform in general. Framed as “getting knowledge to those who wouldn’t otherwise have it”, Open Access has more intuitive appeal, and DRM would seem to help in this effort by alleviating some copyright holders’ fears of market substitution. Similar to “freemium” web services like Flickr, the copyright holder can make their money selling individual rights and privileges rather than bundling them with the basic access right.

The problem with this idea, beyond the basic “scraps from the table” opinion of OA users it implies, is that this DRM that will segment a market in rich countries may obliterate the market in poor countries. If you have a PDF that can’t be printed, but you can only afford to access a computer once a month for a few minutes, your access to that work is nominal at best. It may be enough for reference works and such, but it’s hardly living up to the ideals of Open Access, and we might want to find something else to call it.

I’m obviously only touching the tip of the iceberg here, and probably others have covered this ground before, but the blog is for the musings, no?

UPDATE: as always, Google shows how well-trod the ground is, e.g. The role of digital rights management in Open Access

evan :: Apr.11.2007 :: Notions :: No Comments »

So Apple is now being sued for trademark infringement by TigerDirect (via Engadget). Cockamamie nonsense, I think. One thing did catch my eye, though:

“Tiger Direct contends that Apple’s use of the name has adversely affected its ranking amongst the Internet’s largest search engines, Google and Yahoo, bumping the company from its usual spot in the first three results.”

That’s a bold and dangerous claim. It doesn’t seem like they’re bothering with showing harm to their business or confusion of their brand within their industry; they just want to own that search term. Now, I don’t know what makes them think that even a tiny percentage of the people searching for “tiger” are looking for them and not this. I doubt they’re looking for the latest OS X release, either. The dangerous part of this idea is that there could possibly be a damages claim resulting from a change in placement in search engine results for a single English word query. That’s really just a step away from being able to sue the OED. Perhaps Tiger Woods could drop his last name and sue the pants off of zoos everywhere.

evan :: Apr.28.2005 :: Notions :: 3 Comments »

There’s an excellent article in Sunday’s NYT Magazine by Steven Johnson, excerpted from his new book Everything Bad Is Good for You. He may not have enough evidence to support the title’s broad assertion, but his argument represents a very important contrast to the forces of censorship and demonization. It’s about time someone stood up for the merits of modern television and video games, instead of just raising the First Amendment banner (which of course is still an enormously important concern here). I think this proposal in particular is excellent:

“What I am arguing for is a change in the criteria we use to determine what really is cognitive junk food and what is genuinely nourishing. Instead of a show’s violent or tawdry content, instead of wardrobe malfunctions or the F-word, the true test should be whether a given show engages or sedates the mind. Is it a single thread strung together with predictable punch lines every 30 seconds? Or does it map a complex social network? Is your on-screen character running around shooting everything in sight, or is she trying to solve problems and manage resources? If your kids want to watch reality TV, encourage them to watch ”Survivor” over ”Fear Factor.” If they want to watch a mystery show, encourage ”24” over ”Law and Order.” If they want to play a violent game, encourage Grand Theft Auto over Quake. Indeed, it might be just as helpful to have a rating system that used mental labor and not obscenity and violence as its classification scheme for the world of mass culture.”

Absolutely. The fact that we’ve had “prurience” ratings for years without even considering such a system is a testament to how far our concerns about our children have diverged from our goals for them. Do we really want to take a bat to the knees of their ability to understand complexity in order to preserve some small shred of their innocence?

To extend the argument a bit, it seems like the things we disapprove of children being exposed to are things we recognize that adults have a right to see. So in the process of helping them become adults, why don’t we give it to them straight? We can answer whatever questions the truth produces, rather than making up a web of white lies that then requires untangling right in the middle of adolescence, adding more confusion to a period that could certainly do with less. After all, having boobies in their yogurt commercials hasn’t destroyed the moral character of the Europeans. I really don’t see why we’re so afraid of them.

evan :: Apr.25.2005 :: Notions :: 1 Comment »

I’m totally green. As green as I wanna be. So green I’m golden, at least according to David Owen’s article in last week’s New Yorker. “Green Manhattan” is an excellent exposition of something I’ve always felt in my gut: density is frickin’ awesome for the environment. The worst thing we do to the environment is drive cars, and we do a awful lot of that. But in the city people do very little of that. On top of that we consume so much less land that, according to Mr. Owen, to accomodate NYC’s 8 million residents in a suburban density pattern, you’d need to cover the entirety of New England plus Delaware and New Jersey. That’s an awful lot of open space being saved from the terrors of landscaping and left to the conversion of carbon dioxide into oxygen. We also consume roughly 8 times less electricity per capita. The list of efficiencies inherent in apartment-living and skyscraper-working go on for quite a ways, but I think this quote from the article sums up the most important one:

Richard B. Miller, who resigned as the senior energy advisor for the city of New York six weeks before the blackout, reportedly over deep disagreements with the city’s energy policy, told me, “When I was with the city, I attended a conference call where somebody said, ‘We really need to raise energy and electricity prices in New York City, so that people will consume less.’ And my response at that conference was ‘You know, if you’re talking about raising energy prices in New York City only, then you’re talking about something that’s really bad for the environment. If you make energy prices so expensive in the city that a business relocates from Manhattan to New Jersey, what you’re really talking about, in the simplest terms, is a business that’s moving from a subway stop to a parking lot, and which of those do you think is worse for the environment?’”

The fact is, we in the city are the sacrificial lambs of this environment. We get by with less so that soccer moms can drive SUVs around with impunity and not worry about their precious shore houses being washed away by a flood of melted icebergs. I don’t want to suggest that there aren’t environmental problems in the city. Obviously the general level of pollution is bad and it would be better if there was more park space around, but the article makes the point that those are the problems we have to solve, i.e. urban densities are scalable, while suburban ones are not. Look at China, which now has over 100 cities with more than a million inhabitants, and I don’t believe that counts the millions of non-resident migrants that are in the cities working illegally. The U.S. has 9 such cities, and many are shrinking. Americans seem to have decided that they have a right to live in a cul-de-sac on a hill, and therefore have a right to cheap gas so that they can putter about to their heart’s content and never have to walk a block without their running pants on. Sure, we have more room to spread out than China, but the road don’t go on forever.

Of course, some Americans think that they have a right, not only to drive around, but to pretend to be farmers while they’re doing it. I can’t get started on farm subsidies, though, because I’ll just get to the point where I have to fly down to Kansas, rob five banks, and hand the money over to the MTA just to feel like there’s a shred of justice in the current federal budget.

evan :: Oct.18.2004 :: Notions :: 11 Comments »

Today, dear reader, I offer you an in-depth and challenging interview with leading anti-gay activist James Dobson (via BoingBoing). This piece exemplifies how the gay marriage controversy has raised the level of public debate in this country and I am proud to be present at the moment we as a nation deliberate on this complex and not-at-all-clear-cut issue:

FB: I never knew homosexuals had an agenda! I just thought they were ordinary people who were easily stereotyped as lovers of musical theater.
JD: So they and the gay-controlled Hollywood elite would have you believe. But the Forces of Gay are now closer than ever to destroying the divine institution of the civil marriage certificate, and with it, the family itself.

For real, though, I can’t even believe anyone thinks they have the right to question a person’s right to marry someone of their choosing; we’re talking about a basic civil right that ought to be guaranteed by the 14th Amendment if nothing else. Marriage as a civil institution is simply a protection of law, a state sanctioning of a private agreement, and cannot be exclusively offered to a certain class of citizens. Not allowing gay marriage is like not enforcing a binding contract because one of the parties was “of the Negroe persuasion.” As for all those closet cases who argue “it’s a lifestyle choice; you can’t choose to be black,” they’re just trying to rationalize away the 100GB of hot man-on-man action on their hard drive. Of course, it’s a spectrum and they aren’t necessarily 100% queer, but it’s a little too convenient that they’ve hitched their wagon to an argument that allows them the freedom to spend Saturday night in a Chelsea hairdresser’s torrid embrace and then confess it all on Sunday morning, because of course they can “choose to stop whenever they want.”

Luckily the youth of America are on the right side; over 70% of them support at least civil unions for gays, and that number will get higher as they disabuse themselves of received “wisdom” from their parents. So in the long run, there’s nothing to worry about. Certainly people should fight for their rights now, because that’s what you do with injustice, but time is their side.

evan :: May.26.2004 :: Notions :: 6 Comments »