Month: December 2007

It’s nice to hear that photographer Lane Hartwell is working things out with the band Richter Scales, after filing a DMCA takedown notice and having their video removed from YouTube because a photo of hers appeared in the video for less than a second. I wrote about this on the weekend because I thought her response was out of proportion to the harm done, and legally questionable as well, and I’m pleased to hear from at least one legal expert that I got it right in my original post.

Jason Schultz, who writes a blog called Law Geek — and who also describes himself as a fan of Lane Hartwell’s — has posted his analysis of what happened, and comes to virtually the exact same conclusion I did (for which I got a vast amount of flak in the 80 or so comments on my post, and on other people’s blogs as well). He says that while asking for permission is nice, it is not required when something qualifies as fair use, which he says the use of Lane’s photo does.

While the use of the photo might be seen as impacting Lane’s livelihood, Jason says that it is clearly “transformative,” and therefore is covered, and the video is clearly meant as commentary on the world that her photo is a part of, and therefore it is likely covered. The photo is also a published work, which would likely weigh in favour of fair use. Schultz also makes the same point that I did, which is that copyright:

“is and always has been a balance between the rights of original creators and the rights of the public and subsequent creators to use copyrighted material. No one person ever has absolute rights under the law to control every use of a copyrighted work.”

In the comments on my original post, and since then on lots of other blogs — including Shelley’s at Burningbird and Tara Hunt’s at Horse Pig Cow — the point is repeatedly made that I am missing the real point, which is that it was rude and uncaring of Richter Scales to not ask for permission and give Lane Hartwell credit. Tara says if people respond that way, creative people won’t allow their works to be on the Internet.

Maybe it was rude. But that doesn’t justify getting the video pulled with a DMCA notice. Richter Scales might have been wrong, but so was Lane Hartwell — you don’t go whipping out the DMCA just because someone was rude to you. And if people continue to do that, then creative people won’t create things any more for fear of prosecution. Lane’s full statement is here, and she is still wrong.

Note:

I’m not going to comment on the whole sub-drama involving a comment made by Mike Arrington on my original post, which referred to Shelley as having a sexist agenda. It was irrelevant then and it’s still irrelevant now.

The Digg-sale plot continues to thicken. First there were rumours that Digg was for sale — asking price $300-million — and then there were reports that co-founder Jay Adelson had gone to the Allen & Co. venture fund party, where those who want to mingle with those who want to sell. And now, Eric Eldon at Venture Beat says he has it confirmed from a highly-placed source that Digg is for sale and Allen & Co. is handling the deal.

It’s not at all surprising that Digg wants to sell. But is $300-million a realistic price? In a world where less than 2 per cent of Facebook sells for $240-million, maybe it is. But to whom? One theory (which I wrote about the last time this came up) is that an existing media entity like News Corp. might want to buy it, for the same reason that the New York Times bought BlogRunner.com — which has now been integrated into its technology page — and Conde Nast bought Reddit.com.

I know this will probably expose me to widespread ridicule, but I could even see Google being interested in Digg. There’s no question that Google is getting more social, as recent developments — such as the ability to share Google Reader items with friends — indicate. But much of what Google has tried in that area hasn’t gained much traction. Why not make Digg the foundation of further social networking from within the company? I don’t think it’s outside the realm of possibility at all.

Scott Karp makes a good point in a post today about Nick Denton taking the helm at Gawker again (something I also wrote about earlier today). It’s pretty much the same thing I’ve been saying over and over when I talk to companies — including media companies — about blogs and social media. Let me say it again: Blogs are just a publishing system. Just because something is called a “blog” doesn’t actually imply anything positive or negative about its content (or lack thereof).

Blogs can be used to practice journalism, they can be used to practice drive-by celebrity character assassination, they can be used as a gigantic time-sink so as to keep people from doing real work (and occasionally, as in the case of The Smoking Gun, they can accomplish all three at once). They can be about serious subjects, with well thought-out opinions, or they can be the blitherings of a know-nothing with a typewriter.

Asking whether blogs can be journalism is like asking whether pencils can be used for journalism, or whether people who type can be journalists. Sure, they can, but that doesn’t mean they always are. You could make the same statement and replace the word “blog” with the word “newspaper.” Do all newspapers practice the rigorous, fact-based, dual-sourced journalism people think of when they use the word? Hardly.

What Nick Denton is looking for seems to be the prototype of a new kind of journalist, practicing something close to what Jeff Jarvis calls “networked” journalism (which Jay Rosen is also working on). An excerpt from the job posting Nick put up for a Gawker reporter:

“At its most elevated, the new Gawker hire may experiment with a new form of reporting, unique to online, in which ideas are floated, appeals made to the readers, and the story assembled over the course of several items, from speculation, and tips from users.”

Nick’s brand of Fleet Street-style journalism may not be to everyone’s taste, but there’s no question that it’s journalism. The fact is that until recently, only a small group of people had the tools required to engage in journalism. Now, the tools are virtually free, not to mention instantaneous. The combination of those two things has up-ended the journalism business — such as it was — and continues to do so.

According to the one-man investigative team known as Brian Stelter — formerly known as the guy behind the blog TVNewser, who beat the pants off most of the media reporters at the major dailies while he was still in school — the new editor of Gawker is none other than the founder of Gawker Media, the secretive and unpredictable Nick Denton himself. Stelter says he has it confirmed through several sources.

I wrote about Gawker recently, after the site’s top writers left — including Choire Sicha and Emily Gould. Both said they were tired of the incessant snarking at Gawker, which likes to take shots at the rich and/or powerful (and in some cases whoever happens to wander into the crosshairs). And even Denton himself has said that he wants Gawker to break more news, rather than just sniping from the sidelines.

Something similar happened at Valleywag.com. Although the site was popular, it wasn’t a crucial read. Then Denton got rid of young Nick Douglas and took the reins himself as editor, until he lucked out and hired former Business 2.0 writer Owen Thomas. The new team have plenty of snark to throw around, but they also get scoops, and that’s the real secret (although in some cases they turn out to be less than, well… true).

Scott Karp at Publishing 2.0 says Nick is one of those trying to create a different form of journalism. But the big question is the one posed by a commenter on the Valleywag post: Will Nick pay himself based on page views, as he recently started doing for his writers? According to several reports, that’s another reason that Sicha and Gould left.

As Ionut Alex. Chitu at Google Operating System and others have noted, Google appears to be pushing the idea of user profiles further and further into its various businesses — from Google Reader, where it just launched the ability to share your saved items with friends (provided they are on your GTalk contact list, that is) to Google Maps and other services. It seems fairly obvious that Google wants you to use your profile page as a kind of portal into all of your Google-related social activities.

This looks to me like an extension of what Google has been talking about internally when it comes to a unified social network, which was (or perhaps still is) code-named MakaMaka. I think the OpenSocial effort — in which Google is trying to get sites to agree on a uniform standard for exchanging personal information from within a social network — is also an aspect of what the company is up to, and a unified profile (based at Google, of course) is sort of the other end of that chain.

I think what Google would like us to do is to have a profile that gets extended through the various places that Google touches our online lives — which for me goes all the way from Gmail and GTalk through Google Reader and Picasa to Google Calendar and Google Docs (and, of course, search as well) — and becomes a kind of Facebook-style portal. Such a portal might have a news feed associated with it, might have photo-sharing built in, might have messaging built in.

All of it would be tied in to search, of course, so that when someone searches our name, the Google profile is what they find. Does that mean we can add Facebook and MySpace to the list of companies Google is going to kill, along with Wikipedia and Microsoft? Hardly. But if I’m right, it will certainly be interesting to watch.

Via David “DigiDave” Cohn (who got it from Dan Gillmor), I came across a mind-boggling piece of commentary from the Atlanta Journal-Constitution, in which former NBC correspondent and journalism instructor David Hazinski argues that “citizen journalism” needs to somehow be regulated by traditional media. As far as Hazinski is concerned, only “real” journalists can make sure that the citizen kind don’t go around making things up and not playing by the rules. As he puts it:

“While it has its place, the reality is it really isn’t journalism at all, and it opens up information flow to the strong probability of fraud and abuse. The news industry should find some way to monitor and regulate this new trend.”

Did you get that last part? The news industry should find some way to “monitor and regulate” this new trend. With what, Dave? A central tribunal of some kind that can pass judgment on who has committed acts of journalism and who hasn’t? Seriously, you can’t make this kind of stuff up. As Dan points out, the news “industry” can barely seem to regulate or monitor itself, let alone everyone else.

Hazinski trots out the old “a guy with a scalpel isn’t a ‘citizen surgeon'” argument, which completely misses the point. Journalism is not surgery, for one thing — or presumably it would be regulated like medicine is, with licensing and testing requirements, and a professional body with the ability to remove a licence. If you go to Afghanistan and start writing about what’s happening, and your work is published somewhere, and you try your best to be fair and accurate, what are you? To Hazinski, you’re nobody.

For more detailed dismantling of Dave’s attempt at an argument, see Dan Gillmor’s post, and Mike Masnick has some thoughts at Techdirt too.

According to a piece at Wired, the person who got the “Here Comes Another Bubble” video pulled down from YouTube was photographer Lane Hartwell, who saw one of her images — of Valleywag writer Owen Thomas — pop up in the hilarious video from Richter Scales. Was she flattered? Hardly. She was mad as hell. Ms. Hartwell has apparently had many photos taken and used without permission from her Flickr account, to the point where she has made all her photos private.

In the Wired piece and a previous article on the topic, she says that she contacted the group that made the video to ask them to remove it but got a “cavalier attitude” in response. So she hired a lawyer, who filed a notice with YouTube under the “notice and takedown” provisions of the DMCA, and the video was gone (it initially remained at DailyMotion, but now it’s gone from there too — although it’s still at Metacafe).

In the Wired piece, Ms. Hartwell says that she’s a hard-working photographer, that this is her livelihood, and that people keep taking her photos and using them without attribution. All of of that is totally understandable — but I still think she was wrong to force YouTube to take down the video. Her lawyer says that Richter’s claim the photo is covered by “fair use” provisions is “laughable.” He’s wrong too.

Based on the most recent rulings on the issue, the courts look at four things when they consider copyright infringement and fair use: 1) the “purpose and character” of the infringing material; 2) the nature of the copied material 3) how much of the original work was used and 4) whether the infringement might affect the market for the work. I think it’s pretty obvious that Ms. Hartwell’s claim fails all of these tests.

The Richter Scales video was parody satire — an artistic work of commentary. So it’s covered. The photo was previously published in Wired, so the video is covered. Ms. Hartwell’s shot is on screen for less than a second. Covered. And no reasonable person would conclude that the video would damage the market for her work. Her attitude might, however. Based on her post about why she took her photos off Flickr, I wouldn’t hire her.

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period. Mike Arrington has some thoughts here, including some comments from a copyright lawyer.

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I confess that I don’t really know anything much about databases — apart from the fact that if my WordPress mySQL database goes wonky, all hell breaks loose — but I think the announcement of Amazon’s Simple DB is a pretty major deal, if only because it seems to be the third leg of a stool that also includes Amazon’s S3 distributed storage service and its EC2 “elastic computing” server platform.

Unless you’re a total geek you probably don’t need to know what either of those do, but what’s interesting is that they are the building blocks of a “cloud computing” model of the kind that Sun Microsystems co-founder and former CEO Scott McNealy used to talk about with such zeal back in the day (and Eric Schmidt too, for that matter). It gives Web companies all the tools they need to outsource pretty much their entire infrastructure.

In other words, while everyone was talking about it, Amazon has gone ahead and done it — although Google could just as easily do some of the same things if it wanted to. In many ways, Amazon seems to have the back end, with the actual infrastructure of servers and computing power and databases, while Google has focused on the applications such as Web mail and calendars and Google Docs and so on. Interesting times.

When it comes to virtual-world style social networks for young kids, there are two big players: Webkinz and Club Penguin, the latter of which was bought by Disney for $340-million earlier this year (interestingly enough, both of them are Canadian — Webkinz is an offshoot of a Toronto toy company called Ganz, and Club Penguin was started by a couple of years ago by a group of Web designers living in Kelowna, B.C.).

Both sites have made their reputations in part on how wholesome and family-oriented they are — historically, neither one of them accepted advertising, for example. Webkinz recently broke with that tradition, however, and started including advertising on its pages, and there has been an outcry about this that made it into the New York Times. Henry Blodget at Silicon Alley Insider says that a “greedy” Webkinz has “trashed its brand” and “infuriated” parents.

To me, however, the story seems a little more complicated than either the Times piece or Henry’s post are willing to admit. The always level-headed Anne Zelenka has a good roundup of the events at GigaOm, and from her description it’s clear that the reaction to the Webkinz move is considerably less black and white. In fact, the only ones who seem infuriated are a lobby group called the Campaign for a Commercial-Free Childhood.

It’s true that there are parents who responded negatively in the comments on a popular Webkinz-oriented blog, called Webkinzmom.com, many of whom made the point that they pay for the toys that give them access to the website, and so there shouldn’t be advertising. If you read through the comments there and elsewhere, however, you find just as many or more saying they don’t mind at all — and plenty of people wondering how they can get the Bee Movie costumes for their Webkinz pets.

Webkinz also responded to the criticisms on Webkinzmom in a letter, in which the company said that it plans to only accept a limited amount of advertising, that it will only run ads for family-friendly products such as toothpaste or family movies, and that it will not allow any links from the ads to outside websites, so that parents don’t have to worry about their kids wandering out onto the Internet unsupervised. Most of the responses on the blog seem okay with these limits.

It’s a lot of fun to slam Webkinz for creating a PR nightmare, but there seems to be a bit more to it than that.

Via a Twitter post from MG Siegler at ParisLemon, I just came across a post on the Google Blog about a project the search giant is calling Knol, which stands for “a unit of knowledge,” apparently (who comes up with these goofy names?). I have to agree with the Lemon that this is potentially huge. What Google is describing sounds a lot like an expert version of Wikipedia, or essentially what estranged Wikipedia co-founder Larry Sanger has been trying to create in Citizendium: in other words, a more reliable Wikipedia, created and moderated by experts.

There’s a screenshot of what a Knol would look like on a topic such as insomnia, and it includes all the information that someone coming to a topic would want to know, according to Google — in other words, pretty much the same stuff that Wikipedia (or Squidoo or Mahalo) would have in an article about the same topic. The only difference that I can see is that Wikipedia entries seem to have more links.

One of the biggest differences, as MG Siegler notes, is that the authors of the articles are featured, with photos and a profile page. In addition to the ability to comment on the article — and apparently adding information Wikipedia-style, according to the Google blog post — readers can see other articles written by the same writer, and the articles have a star rating that refers to “peer” reviews, which are also visible in the sidebar.

I think this could be huge. A more authoritative version of Wikipedia, compiled by experts and powered by Google? Not only that, but as Paul Kedrosky points out, the pages come with Google ads, and authors get a revenue share — he says (and I agree) that it could hurt not just Wikipedia but Mahalo and plenty of others, especially if those pages start to rank highly in Google searches. Like I said — huge.

Soap Opera 2.0, starring Blognation founder Sam Sethi, ended with a blockbuster today: Sam lays all the blame for the failure of the British blog network at the feet of TechCrunch editor Mike Arrington, who split with Sethi in a nasty and public way exactly a year ago, an irony that Sam notes in his post on the end of his dream. Like Techfold, I have to say this is one of the most mealy-mouthed and insincere posts I’ve seen from an alleged business person since Conrad Black stopped blogging.

I’m not sure which is my favourite part — the part where Sethi admits that he lied to his own staff about funding being imminent (which ex-staffer Oliver Starr described in an earlier installment of this saga), but blames that lying on Mike Arrington? Or the part where he says he has called in Scotland Yard to investigate the term sheet that was leaked to Mike, the one that allegedly caused the VC to panic and pull the funding?

I just can’t decide. It’s like deciding which part of the train wreck is the best, or which accident victim is worse off. The only thing that’s clear is that Sam doesn’t bear any of the blame for what happened — anything wrong he did was something he was forced to do by Mike Arrington (Mike has posted a response here). What a graceless and insipid way to end something. If Sam was trying to win any support or respect with his post, he has failed completely.

Just came across something interesting from a few days ago that I somehow missed, but which could have serious implications for newspapers and their evolving relationship with Google: Search Engine Journal notes that Google News is tinkering with its algorithm and the way it ranks news stories. It wants to do a number of things, but one of the main ones is to promote the publication that first breaks a news story, rather than one of the follow-up pieces from newswires or larger papers.

That’s good for smaller local papers, since they will get more exposure and hence more traffic. It doesn’t say so in the Google News blog post, but I have to wonder if this is related to some of the criticism that Google got after they did the deal with Associated Press to host AP stories on Google servers and some people complained that local publications weren’t getting credit from Google News for the stories they were breaking.

Let me just say I’m glad to see Yahoo moving into the Web 2.0 social-media area, integrating its services with blogs through the Yahoo Shortcuts service/widget for WordPress — and I’m a huge fan of Alex King, the WordPress plugin genius who designed the feature (and also did the wonderful Share This plugin) — but this new Yahoo offering makes me very nervous. Why? Because of the potential for an outbreak of one of my least favourite features: pop-up links.

I don’t just find pop-up links irritating — I absolutely loathe and detest them (I’m not the only one). In fact, I will go out of my way to avoid websites that use them. And I don’t particularly care whether they are informative or advertising-based. I don’t like Snap’s pop-up windows, even though the link is placed beside the text, because it is automatically triggered when your mouse moves over it.

I don’t really like Adaptive Blue’s links either, but at least they aren’t triggered automatically. And don’t even get me started on those text-link ads that pretend to be hyperlinks (except they have two underlines instead of one) and trigger a gigantic popup with a Microsoft search or an advertising link in it. As soon as I see those links on a site, I am gone.

To be fair, Yahoo’s widget just gives you the stuff — the stock chart, or the Yahoo search results, or the Flickr photos (which I must admit is kind of cool) — and you can then decide to include them right in the body of your post or attach them as text link pop-ups. For the love of all that is good and holy, please don’t do the latter. I’m begging you.

According to from Michael Geist — who Cory Doctorow at BoingBoing loves to call “the copyfightin’ prof” — a proposed update to Canada’s copyright law that he and many others fear could be a carbon copy of the DMCA won’t be introduced until next year. In another post, Michael notes that the Facebook group he set up that is dedicated to voicing concerns about the copyright bill has now passed 20,000 members.

Below, I’ve posted a piece I wrote for the Globe that was published in the paper on Thursday, about the role that Facebook and blogs have played in the opposition to the proposed bill (which may have convinced the government to delay passage of the legislation). I also wrote a blog post recently on the same topic at my Globe blog.

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The federal government doesn’t seem to have too much time for what some call — Facebook, MySpace, blogs and so on. Access to many such sites is restricted in many government offices, presumably because they are seen as time-wasting devices for the office slacker. Will Ottawa’s view of such tools change now that they appear to have helped derail the proposed revisions to Canada’s copyright laws? It might, although it’s difficult to say how. The feds may begin to see these sites as deserving closer attention, or they may just dislike them even more now.

Although the government isn’t saying why the proposed copyright legislation didn’t show up for a vote in the House this week — as it was widely expected to — it seems more than a little coincidental that a storm of negative publicity reached its peak just before Industry Minister Jim Prentice pulled the bill. That storm came from many different areas, but all of them were powered to some extent by “social media.”

University of Ottawa law professor and copyright expert Michael Geist got the ball rolling with a number of blog posts on the topic, as well as a video that he uploaded to YouTube that described how people could voice their opposition to the bill. That in turn led to the formation of a Facebook group.

Many of those opposed to the legislation, including Prof. Geist and Canadian copyright lawyer Howard Knopf, believe the amendments would have turned the Canadian Copyright Act into a virtual copy of the U.S. law, the Digital Millennium Copyright Act (PDF). Although the DMCA has been hailed by content providers as a valuable tool for preventing piracy, critics argue it has also been used to dismantle much of what consumers have come to see as “fair use,” a principle that is enshrined in the common law of many countries, including Canada, and allows copyright infringement to occur for artistic or creative purposes.

Continue reading “Canadian DMCA delayed, for now”

(This is a piece I wrote for the Globe that was published Wednesday. I’m posting it here for anyone who might have missed it.)

Apple CEO Steve Jobs gave Canadians an early Christmas present on Wednesday: the ability to download TV shows from the Canadian version of iTunes, the company’s popular online media store. This particular present comes with a catch, though. Let’s put it this way: you’re only going to like this new feature if your TV-watching diet consists exclusively of Canadian TV shows and hockey games, because that’s pretty much all that Apple has on its virtual shelves right now.

There are a couple of treats for younger viewers thrown in there, mind you: there’s the popular teen drama The Hills, for example, as well as episodes of South Park. And for the younger kids, there’s an animated TV show called Avatar: The Last Airbender. And if you like Degrassi: The Next Generation, you’re going to love the new iTunes store.

If you were hoping to watch the latest episode of Heroes on your iPod while you’re on the train or stuck in traffic, however, you are out of luck. The same goes for episodes of other top shows such as Lost, Battlestar Galactica and The Office. They remain stuck in your television.

Is this because Apple thinks that Canadians only want to watch episodes of Corner Gas, Little Mosque on the Prairie and old NHL hockey games? Not really. Although Apple isn’t saying, it’s obvious that the company just hasn’t been able to strike the kind of content-licensing deals that would allow any other shows to be part of iTunes.

Continue reading “iTunes Canada TV blockade ends, sort of”