Category: Intellectual Property

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Yahoo! and YouTube

Mozilla switched to using Yahoo! for its search engine, and so I noticed something about how it shows YouTube results; something that may upset YouTube aka Google. When I was writing about lightsabers and 3D printing, I wanted to embed a clip from Return of the Jedi. The search on Yahoo! showed me a potential clip. I hit play to confirm that. It was good for my needs. I looked for the embed code, and it wasn’t there. There was a share button up top, but for the full page and codes, I had to go to the YouTube page. Now that is what happens when one embeds a YouTube video. But I wonder whether YouTube posters will be upset (or maybe even YouTube/Google) to find that a rival search engine maybe undercutting them. For example, it seems, I stress seems as I ran only one test, that a YouTube video that has an ad before a video lacks that ad when on Yahoo! Banner ads seem to be present on both, but they differ. I am guessing Google gets to serve those and maybe they vary depending on where the video is served. That would make sense given the targeting should vary depending on where the video is shown. Still if Yahoo! is taking content and showing it on its site, perhaps making money that way too (or at least keeping it from the Goog), will we see a replay of the early Internet cases on framing, diversion, etc., but with Google as the plaintiff? If so, is that an ironic moment where some folks will be saying Google just got Googled (i.e., I am thinking certain industries see being “Googled” as something other than being searched for; hey that may show that the whole genericisim question is less of an issue.).

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Goliath aka Google aka No Surprises in Hollywood versus Silicon Valley

This just in: Hollywood hates/fears/plots against Google! The Sony security breach and following leaks have yielded many insights, sort of. If anyone thought Hollywood executives were discrete, that was naive and now debunked. If anyone thought most people knew not to use work email for personal business, that too is shown false. (I am continually amazed at how many law professors have thought it “odd” or “paranoid” that I use different emails for work and non-work communication). And yes, Hollywood aka the copyright industry is quite savvy and plots ways to go after its competitors and/or threats. The revealed emails do show the details of the plans and that there was a code word, Goliath, for Google (which I take as a place holder for Silicon Valley). All of which seems very Dr. Evil. But let’s be clear. Strategies to go after state attorneys general or legislators and to push negative news stories are endemic. They are endemic to Hollywood, telecoms, Silicon Valley, Wall Street, pharmaceuticals, and really any major industry. I am not saying that these practices are great or that policy is well-made from them. But they are real and should be understood. And, for those interested in the open Internet debates there are some other lessons. If you thought SOPA was the end, think again.

Vigilance and support for many companies and groups that support your issue (regardless of what it is) matters. The game is afoot. It will not end. Disclosure moment: Yes, I worked at Google in the policy group, and I have also worked on a political campaign. And one thing that I know from my experience and research (check Jessica Litman’s work on the copyright industry for a great lesson in this industry’s ability to play the game) is that if ideas come from only one entity, they seem weak. For better or worse, trade groups, NGOs, etc. matter. I prefer those that are independent and offer some nuances, but overall the concerted voices of many can be powerful. No matter what issue you wish to see succeed, backing only one entity dilutes the power of the idea or makes it seem like one company or group is crying over its lot in life. Some other post may get into the public choice issues here. But for now, the Sony leaks show that nothing much has changed. “The sun also ariseth, and the sun goeth down, and hasteth to his place where he arose. The wind goeth toward the south, and turneth about unto the north; it whirleth about continually, and the wind returneth again according to his circuits.” Ecclesiastes, 1:5-6.

Hollywood will always lobby for its interests and so will everyone else. “So it goes.”

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Let the Games Begin! Lightsabers, 3D Printing, and Jedi Skills

Toys are a big area for 3D printing, and now someone is printing prototype lightsabers from a fleeting image in a trailer for the new Star Wars movie. As Gerard and I argue in Patents, Meet Napster: 3D Printing and the Digitization of Things, “Advances in 3D printing technology are launching an Industrial Counter-Revolution, and the laws governing the way things are made will need to make peace with the reality of digitized objects and on-demand fabrication.” These Hollywood-inspired designs may end up a case study for the ideas and issues we raise in the article. After all, Lucasfilm had a history of strong IP enforcement as does Disney, the new owner of the Star Wars franchise. And George Lucas is famous for having negotiated the merchandising rights to Star Wars and making a fortune from that revenue stream. There is, arguably, much at stake.

So will Disney try to stop this fun? If so, who will the target be? Thingiverse, a repository for 3D printing files? FDM, the company that makes the printer hardware? The source of the PLA filament (the materials for the object)? What about the tinkering that has come from just a brief view of the new lightsaber (it has a crossguard which has caused online debates about that design)? The designers at le FabShop offer:

As Makers, we couldn’t help but try to find out by ourselves if this “crossguard” design was a good configuration or not… So we decided to build one, with our army of 3D printers. Of course, the “darkness” of the movie sequence and the lack of details on the weapon itself left a lot of place for imagination and interpretation.

A dozen of 3D printable lightsabers being already available for download on internet, we decided to make one that would be completely customizable. The modular system we invented makes hundreds of configurations possible. From Yoda’s lightsaber to Darth Maul’s.

To me that sounds like some creative work and cool ways to let people play with designs to come up with a range of lightsabers. Of course, others might disagree (as I might if I were the corporation trying to make money selling the merchandise).

Then again, as we say in the article, “Advances in 3D printing technology are launching an Industrial Counter-Revolution, and the laws governing the way things are made will need to make peace with the reality of digitized objects and on-demand fabrication.” So maybe the Disney/Lucasfilms folks will work with these tinkerers and fans. Streamed official lightsabers might be possible. Or a customized lightsaber shop at Disney stores or even in licensed partnership with le FabShop would be great. If so, someone like me is more likely to order that specialized toy for me and for others as a gift and thus rely on expertise and safe materials a bit more than designing my own lightsaber.

Wait, designing my own lightsaber? That was evidence that Luke’s Jedi skills were complete. Maybe I need to get to work on that. Thank you le FabShop!

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The Creativity Cliff: Another Reason Extended Copyright Terms Are Not About Authors

Quality of life and creative capacity at the end of life are other reasons to doubt that long copyright terms are important for authors. Ezekiel Emanuel’s “Why I Hope To Die at 75” caused a stir for his views on graceful death and quality of life. Part of his argument is that creativity, on average, diminishes late in life. Those who pursue prolonging life as if they are “immortals” “operate on the assumption that they will be … outliers” such as one of Emanuel’s colleagues who still publishes papers that change policy at 90. “But the fact is that by 75, creativity, originality, and productivity are pretty much gone for the vast, vast majority of us.” (Emanuel picks 75 because that is his trigger age for not fighting death). The article has a graph that indicates truly creative, novel ideas and work decline after the early to mid 60s for most people. Emanuel is quick to point out that there are many other ways to be productive and contribute to society after creativity slows down or goes away. Nonetheless, if he is correct that “This age-creativity relationship is a statistical association, the product of averages; … [and] The age-creativity curve—especially the decline—endures across cultures and throughout history, suggesting some deep underlying biological determinism probably related to brain plasticity”, it suggests that there is what I would call a creativity cliff.

If the creativity cliff is real, it suggests that giving more incentives to create late in life is unwise. As I argue in The Life and Death of Copyright, the idea that authors need copyright after death to provide for heirs is absurd and unsupported. When I presented the paper, many asked but what if I am old and want to leave something to my children, isn’t copyright an incentive? It may be an incentive, but it is not sound, in part because of the creativity cliff. In general, as Hal Varian has noted, very few works ever generate a steady income stream. That is true regardless of when one creates. Copyrighted works are part of winner-take-all markets and “Such markets end up fostering over-entry into the field because too many people believe they will be the one to sit at the top of the market when only a few or arguably one can do so.” As Emanuel points out, many of us hope to be outliers and “immortals” who have excellent quality of life and tremendous creativity late in life, but by definition that can’t be true. Thus those who say they need copyright as an incentive to write as they see death approaching labor under the illusion that they are the outliers. I laud the effort and probably will write until I die, but that is not a sound basis for policy.

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Will The Nobel Committee Follow Oscar and Restrict Selling Medals?

Apparently Watson, of DNA discovery fame, is selling his Nobel Medal. Christie’s estimates the price at $2.2 million. I will go into the reasons for the sale below. But first, I wonder whether the Nobel Committee will put in a restriction on selling the medals. The Oscar folks, (aka the Academy of Motion Picture Arts and Sciences) placed a restriction on awards granted after 1950: the recipient or heirs had to offer it the the Academy for $1 before selling to anyone else. Unrestricted Oscars have been sold for $510,000 (1993, Vivien Leigh’s Oscar for “Gone with the Wind”) and $1,540,000 (1999 David O. Selznick’s Oscar for “Gone with the Wind”) among other prices. Whether the Nobel folks see the award as their key asset (as AMPAS does) or they have other objections to its sale will determine what they do.

For those wondering why sell the medal, Watson made some comments about race in 2007. According to Irish Central, in an interview with the Financial Times, Watson said he was “‘inherently gloomy about the prospect of Africa’ because ‘all our social policies are based on the fact that their intelligence is the same as ours – whereas all the testing says not really.'” That statement resulted in boards and other groups choosing not to work with him. In short, he needs the money.

Given that Watson has said he will give some of the money to science charities, I wonder whether he might set up fund in honor of Rosalind Franklin, the woman who took the picture that allowed the structure of DNA to be seen and died four years before the Nobel for DNA’s discovery was made. (The Nobel prize is awarded only when one is alive). Nonetheless, her credit has been lost. Then again if Ms. Franklin were alive, she might not be happy to have a fund created in her name by someone who has Watson’s current reputation, let alone the DNA discovery problem.

Correction: Earlier version mistakenly listed Crick as the Nobel medal seller.

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Oh Barbie, Not Again! Mattel’s View of Women and Science

Apparently, Barbie again thinks that women are limited when it comes to science. Mattel seems to be trying to get on board with with STEM and women. They commissioned a book Barbie: I Can Be A Computer Engineer. Unfortunately, according to The Sydney Morning Herald, the book has Barbie as only able to design and not code, and she seems not to have a sense of computer security. The online outrage has prompted a recall of the book. The writer claims that Mattel required Barbie to be “more polite.” Mattel has claimed the book, which came out in 2010, does not reflect current Barbie views. Nonetheless, The Herald points out that The book came out last year and there is evidence that the book was commissioned in 2011. Furthermore, the real point is that Mattel should be able to do better here. As the Herald points out that other offerings such as Rosie Revere Engineer and the Hello Ruby project manage to show females doing well with technology and gaining skills such as coding. So will Mattel and Barbie ever catch up to more modern ideas? After all, critical views of Barbie and Mattel’s views on women in math and science have been going on since at least the late 1990s.

Maybe the Internets and buying power will force a shift. As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, people should take on Mattel and Barbie with online protests, boycotts, reworking of the brand image (which apparently happened with a remix app that lets “people [] make their own wry comments by rewriting the book”), and more. That might signal competitors that a market exists while also telling Mattel that they are losing the next generation of consumers. Plus The Herald notes that Barbie sales are down. That may present and opportunity for this sort of action to have force. As STEM grows in attention, and moms start to buy more toys that foster new views of femininity, maybe other toy and doll makers will take off and challenge Barbie. Given Mattel’s power, it may alter course and swamp those new entrants, or it may buy them. A more likely outcome is that a few new offerings emerge, but Barbie stays the course. Still, if some criticism spurs even niche options, today’s world of Internet sales and bespoke toys can support that niche until it maybe becomes more.

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Will The Disruptors Be the New Dominants?: On Uber, AirBnB, and other seeming upstarts

Loving your online, decentralized model may not work when you care about safe drivers, clean rooms, and other real-world issues. Claire Cain Miller brings up this problem in today’s New York Times. She points out that AirBnB and Uber are trying to follow “a religion [from] Silicon Valley: Serve as a middleman, employ as few people as possible and automate everything. Those tenets have worked wonders on the web at companies like Google and Twitter. But as the new, on-demand companies are learning, they are not necessarily compatible with the real world.” I agree. In The New Steam: On Digitization, Decentralization, and Disruption, I point out that “transactions costs related to safety, quality, property rights, contracting, and knowledge may be more acute in a digitized, decentralized world.” Ms. Cain Miller (apologies if Miller is the preferred last name), hits on some great points about the differences between the types of harms in the online and offline world. As she looks at it, the lack of humans is a problem for the reality of the services and relates to politics: “The belief that problems can be solved without involving people is probably why many of these companies did not meet with regulators and officials before starting services in new cities.” I think there is something more going on here.

Yes, the big firms in the space will engage in lobbying, but part of their story (and practice) will have to be about how they meet the issues of labor, safety, and more that they affect. As I put it:

[E]ven with digitization, economic questions will remain, but we must understand what they are and why they persist to see what the future may be. Douglass North captures a paradox that goes with transaction costs. Greater specialization, division of labor, and a large market increase transaction costs, because the shift to impersonal transactions demands higher costs to: 1)measure the valuable dimensions of a good or service; 2) protect individual property rights; 3)enforce agreements; and 4)integrate the dispersed knowledge of society.26 Standardized weights and measures, effective laws and enforcement, and institutions and organizations that integrate knowledge emerge, but the “dramatic increase in the overall costs of transacting” is “more than offset by dramatic decreases in production costs.” Digitization forces us to revisit these issues. With digitization, we are seeing an abundance of person-to-person transactions, but with the problems of impersonal transactions.

In simplest terms, AirBnB , Uber, et al. may face some rocky times, but there is a good chance they will figure out how to address the current issues and end up being the dominant firm, not the small disruptor. As Ms. Cain Miller notes, AirBnB has added hotlines and insurance. Uber has also increased its insurance requirements. If the disruptors continue to address a decent amount of the issues North calls out, my bet is that “this era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.”

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Makeup as the Killer App for 3D Printing?

A woman named Grace Choi seems to have come up with a way to 3D print “lipstick, lip gloss, eye shadow, blush, nail polish, brow powder—pretty much everything except foundations and face power” at home. Her company, Mink, uses FDA approved inks (vegetable or edible). The goal is that a consumer could take a picture or using an online image of the makeup, the software would match the color and print out just enough makeup for that application. If the prototype holds up, this product could be one to bring 3D printers into many homes. But is it the killer app for all of 3D printing?

Put differently, a fair question that comes up when I talk about 3D printing is will it really be a device in every home? The answer depends on what one means by the question. First, at this point, you need a different 3D printer for different outputs (e.g., makeup or something in plastic as opposed to metal or ceramic). If Mink takes off, yes, a type of 3D printer could be in many, if not a majority, of homes. But as Gerard, others, and I have said, this device is not a replicator. So until a 3D printer is able to have multiple mediums in one printer, the spread of the devices will probably vary depending on the medium of the output. As such the killer apps for each medium will be specific to the device. That said, Mink may have a larger importance for 3D printing and home technology.

Mink could be a sign of where home inventors and makers are headed. Ms. Choi hit on her idea and took about a month to work through 20 printer prototypes, sort the ink issues, and have her working Mink printer. Granted she is a Harvard MBA and apparently has family support, but her approach could lead to new players in her field and others. As reported by CNBC, Ms. Choi, “Much of the make-up sold by high-end labels starts with the same base substrates, or ingredients, as cheaper ones.” This point is part of what motivated Patents Meet Napster. The core things needed to make many products are easier and easier for anyone to obtain. If Mink is priced at $300 to start as promised, that price will likely drop over time. If women adopt the technology and then tinker with it to improve on the hardware or the design colors, they may be inspired to launch their own companies and tinker with other technologies to get there. Like car and computer enthusiasts, cosmetic enthusiasts may find that playing with making what they want and love can lead to new products and businesses. And if that happens at scale in one sector, it may spur adoption in others. So maybe 3D printed makeup is not a pure killer app for 3D printing, but maybe it does not have to be to still have some great effects.

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CUT THE CORD!! HBO without Cable

O frabjous day! Callooh! Callay! It is about time! HBO has announced it will offer a streaming service in 2015. Earlier claims about the need for cable to market and to work with the cable industry seem to have fallen away. The claim is that there are 80 million homes that do not have HBO, and HBO wants to fix that. Can you say Netflix? Netflix subscriber numbers were flat today. Still, if HBO goes over the wall, I imagine that Showtime and others will too. So I may just succeed in cutting the cable. Atlanta has decent digital signals (though there should be more). The most interesting thing to watch: ESPN’s next move. It has a hold on cable a Brazilian jiujitsu master would respect. But if ESPN decides to go with a direct pay model, it could pick up many new viewers, especially the ones who are used to watching the special college version of ESPN they have for free while at some schools.

These markets may also be quite different. Some may prefer the ease of watching the pre-programed madness that is cable. Heck, if I am channel surfing and see that Ocean’s Eleven is on TNT, I will watch with commercials even though I own the blasted DVD. Oh yes, laugh. Because you know that you do it too. May not be Ocean’s but fill in the blank with Bridget Jones or whatever floats your boat; there is something oddly comforting or easy about finding a program in a guide and selecting it. It seems like a low-grade information overload problem. Rather than reaching for the DVD or searching Netflix or Amazon, having someone else narrow the options tips us into odd choices like watching that same movie for the umpteenth time with God help me commercials!

In any event, I hope the HBO experiment works. I know unbundling may threaten many offerings. But the current costs of cable are absurd and the best content is on just a few channels. I don’t think the new golden age of T.V. will suffer in this new world. It could grow as more people are reached with niche shows (that is how I see things like Breaking Bad and other winners that don’t need huge viewership to succeed). Subscriber shows should be a real thing soon. As I said before, Firefly could have been saved today, because enough viewers would likely have fronted the costs to get a 10-13 episode season. Add in many have the patience to just buy the series and binge, or stream on Netflix or Amazon or HBO, and maybe shorting cable companies is smart.

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3D Printed Cars: The Model T Redux?

3D printed cars were a growing possibility while I researched Patents, Meet Napster: 3D Printing and the Digitization of Things. Now a company discussed in the article, Local Motors, has exceeded expectations in a wonderful way. It has produced a 3D printed car in a total of five days. The car, called the Strati, weighs about 2,200 pounds and can go about forty miles per hour. The expected retail price is $20,000. Now that seems less cool. But here is the really good stuff.

The design time and total number of parts is super low. Apparently, the design started in May and was complete four months later. Total number of parts 49 compared to 5,000 for a standard car. As one of the engineers, James Earl, put it in the article: “The thing that this lends most to is customisation-ality, [sic] so you can get a car that really suits your needs with very little monetary input from the design side.” These facts, if they hold up, are why car makers, or at least auto-parts suppliers may be excited or scared out of their minds.

We now have customized cars, with few parts, at a low cost. Let’s assume the cost could go down if the company scales up. Let’s also assume that some of these techniques are incorporated into other auto-maker’s manufacturing. The vast array of auto-suppliers that were in deep trouble when Detroit took a dive could soon be unnecessary. That network of industries Detroit supports could shrink and, in essence, vanish. At the same time, if India’s Tata Corporation, which aims to make low-cost cars for the growing middle class in India, jumps in, Local Motors could find a partner with cash to go big with its technology. High-end makers may allow for bespoke BMWs or Jaguars. Really tall or short people could have cars custom-built to their height and sight lines. Then again, Google may want the tech for its golf cart-like self-driving cars. Lots of possibilities, yes? That’s the point. Something amazing is bubbling up and fast. Which brings me to another point.

Sometimes when I presented the paper, there’d the law professor response of “I just don’t think the tech is there yet.” That view missed what motivated the paper. For once, I wanted to be ahead of the curve on law and technology. Being at Google solidified my view that one can assume the tech will come. “Whether 3D printing will realize all the dreams it currently inspires is not the question” is part of how the article engaged with this point. Local Motors and cars. 3D printed guns. The dreams or nightmares are coming true. Expect some incumbents to fight, some to fear monger, and some to embrace the change. As I offer in The New Steam: On Digitization, Decentralization, and Disruption “this era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.” For now, the car-world could be plunging into the disruption and decentralization phase. As Local Motors and others ramp up their factories and break through the regulatory issues, new players may find it harder to play. Until then, let the games begin!