intellectual property

Crossposed on rhizomicon.

The Hitler “rant” meme has been around for a few years, but recently it has been targeted on YouTube for copyright violations thanks to a new YouTube tool, Content ID. The original content is from The Downfall/Der Untergang {2004}, a German language film about the last days of Hitler.  The above video is an example of the meme and takes a few good jabs at the recent spate of copyright takedowns. Knowyourmeme has posted a video on how to resist these copyright “trollings”.

Exceptions to copyright infringement often hinge upon arguments to allow critique and creativity. While a Hitler parody may not be “high art” and many would scoff at its creativity, where should the lines be drawn? Old media rules of intellectual property are all about the property and gaining revenue streams from property right. Like it or not, those days are over and deep pockets for lawyers notwithstanding, taking that approach is in the long run futile. The music industry is slowly learning that the music is the loss leader. The real money is in touring, merch., licensing, and capitalizing on the relationship with the fanbase. Filesharing can feed the new model by providing an avenue to cut through the clutter.

So, how to deal with all of this “new” media stuff {which isn’t all that new nowadays} and social media when you’re trying to make a buck. Well, I’ve actually seen The Downfall. It’s pretty good, but not for everyone. If I were Constantin Film or advising them this is what I would tell them to do::

1. Get the film on a site like The Auteurs, which allows Internet pay-per-view
2. Use the parody videos to market the film on Internet PPV & DVD and capitalize on the ongoing buzz
3. Use inline ads on YouTube to get users to view/purchase

Everybody wins. Creative mashups live on. Low-cost marketing can drive additional revenues, albeit in dribs and drabs, but why leave those dollars on the table? What kind of capitalists are you?

While some in entertainment might balk at the idea of work being repurposed and parodies may do violence to the “brand”, don’t we live in an era of the death of the author.

Song:: Beastie Boys-‘Cookie Puss’

Twitterversion:: “Hitler rant” meme takedowns in force, but why not leverage the buzz, remarket, & allow creative expression?#ThickCulture @Prof_K

A few years back, I taught entertainment marketing courses with the sly Walter Benjamin subtitle of “The Work of Art in the Age of Infinite Reproduction,” which always brings up the tensions between art and commerce. Now, I’m involved in a social media startup and issues of intellectual property and users use, repurposing, and remixing of it is central to the value proposition.

I’ve thought about intellectual property {IP} issues for almost a decade now and how value is created and economic rents {profits} are captured. The music industry is changing, so that the actual music is becoming secondary to the music experience. The CD or MP3 is the loss leader, but the mainstream music industry has a hard time of letting go of the idea that IP rights need to be defended at all costs, even if it means suing college students and moms.

News of this documentary, Copyright Criminals {Amazon.USA}, came to me via Flavorpill {see link for video excerpts}.  It’s about sampling in hip-hop and brings up some interesting points about IP, copyright infringement, and the musical creativity. Here’s the trailer::

Here’s a sampling timeline showing the trajectory of the practice.

I’m looking forward to screening this. I’m not sure what the answers are in this area, but I think it requires a rethinking of intellectual property rights and creation of value that consumers will spend their money on. So, a lot of this is in the realm of marketing. I feel that rigid IP enforcement that isn’t contextualized is one of the problems with the music industry and serves to further alienate consumers/fans, as well as putting a damper on artistic creativity. Of course, the market could care less about creativity, just like so many consumers could care less about IP laws that are sporadically enforced or easy to circumvent.

In an interview, the filmmakers discussed how one of the challenges was the intellectual property used in the film would have cost $4M, but the fair use doctrine allowed the use. {Canada uses the fair dealing doctrine}. The following song is an example of a mashup that has been litigated literally out of existence, due to IP claims.

Twitterversion:: blog post on new documentary on music sampling and IP rights, Copyright Criminals. Links and trailer. Via @flavorpill  @Prof_K

Song:: Roger & the Goosebumps-“Stairway to Gilligan’s Island”

Crossposted on Rhizomicomm

I’m currently working on an ethnographic paper examining innovation in a global context.  The above map is a depiction of innovation clusters throughout the world, on the dimensions of patent growth and firm diversity.  As it turns out, the area I’m looking at is off the chart with very high growth and few firms.  The area is also one where western notions of property rights are out the window.  The main question we are addressing is how should firms innovate globally when their intellectual property {IP} rights are tenuous or uncertain?  The economic argument for granting exclusive property rights is to ensure an entrepreneurial entity has the incentives to commercialize an idea.  So, an innovator is allowed a monopolist position for a period of time, allowing for a path to cash and attracting investors, in order to ensure there is grist for the innovative mill.  In our research, exclusive property rights may exist, but aren’t enforced.  This begs the question, why is there growth?  Why would anyone invest in such a chaotic environment?  There must be some value in doing so.  Finally, I think it would be interesting to re-examine the above map with cultural dimensions, not in terms of sweeping generalizations, but nuanced, regional differences like the ones AnnaLee Saxenian found between Silicon Valley and Route 128 in Massachusetts.

Macleans had two articles on the buzz generated by Chris Anderson’s {Wired editor and proponent of the long tail} new book, Free: The Future at a Radical Price, which Russell has referred to. The first article talked Anderson’s ideas of “freeconomics,” where costs of storage and distribution are approaching zero and consumer behavior can go viral when the price is free.  It goes on to describe how critics were lambasting Anderson for his notions, including Malcolm Gladwell’s savaging of the book in the New Yorker. The other article invokes Frankfurt School critical theorist Walter Benjamin to highlight a trend where what is valued is what cannot be readily reproduced and digitized…the return of aura of the experience.

How does this relate to global IP concerns?

Let’s assume that we’re in an economic reality where intellectual “work” can often be readily digitized and reproduced infinitely.  We’re talking creative content, educational resources, biotechnology/genetic information, etc., so it would seem that the producers of music, film, news journalism, the university lecture, and the sequenced genome all have a dog in this fight.  Producers of valuable things want to profit from their efforts.  Their investors demand it.  Here comes Chris Anderson saying that the new economic model is to offer things for free.

Enter Malcolm Gladwell and other naysayers.  Gladwell asserts that Anderson is wrong on several counts.  The YouTube business model has failed to make money for Google, hence the “free” business model is untenable.  The logic of “free” is flawed, as capital-intensive infrastructures, costly complementary goods and services, and downstream costs often mean that goods simply cannot be free.  One can nitpick the flaws in Gladwell’s arguments.  He cites that the costs of clinical trials is what drives up pharmaceutical prices, which is true today, but the objective with biotech. is to use genomics to better target the use of molecules for specific therapies geared towards specific diseases and specific people, based on genetic profiling.  To use an “Obamaism,” the idea is to bend the innovation curve.

When IP faces rampant piracy or when property rights are not or cannot be enforced, globally, the potential of infinite reproduction puts pricing pressures towards the free, whether the producer likes it or not.  This is what’s happening to the firms in our research.  The successful global firms we studied are the ones that are embracing cultural particulars and negotiating as best they can their claims to IP revenue streams.

Interestingly, Chris Anderson has been accused of cribbing IP from sources like Wikipedia, acting like a veritable Web 2.0 Jack Sparrow.  The question I have is does this or should this diminish the value of his book by readers?  Is this a violation of some “authorly” ethics or is this just the new IP where everything is up for grabs and the key is deliver value.  Anderson even stated that one could get the information in Free by compiling blog posts and articles, but that the book adds value by synthesizing it.  He also practices what he preaches.  One can read Free for free, but just because it’s free, doesn’t mean it will be easy.  The free versions of the book text are limited by format or are DRM-protected.  Some consumers are complaining because of different expectations of what “free” means, but this approach is consistent to Anderson’s core ideas.  Being in Canada, I’ll have to jump through more hoops to read this for free, due to publishing restrictions, but I’ll figure it out and I’m actually looking forward to reading it.

Is this commerce or is this anarchy?  The lessons being learned are similar to those in the second Macleans article.  The focus needs to be on the delivery of value, rather than the protection of rights.  Globalization is achieving what a thousand socialist mandates could not.  The erosion of property rights is forcing firms to figure out how to deliver value when an innovation is free.  Web 2.o has offered firms the ability to do what I have called “stagesetting” in several research projects and a case on Pixar.  Stagesetting is where a firm has a sequential approach to its ultimate strategic objectives.  We see firms trying to leverage network effects to create value for users through sites and technologies using social media.  Flickr has no value with hundreds of users, but has tremendous value with millions.  One can talk about MySpace, Twitter, and Facebook revenues in terms of advertising, but the holy grail is the data mining and finding what the exact value proposition is to generate revenues from business and institutional clients.  The “freemium” model of the basics for free, but added features are extra, is based upon stagesetting, where value is created.  What Anderson offers is a glimpse into a global economic reality and gives firms the incentives to rethink the nature of value…or they can try their luck in the courts, like the RIAA did with prosecutions of a Minnesota mom and college kids.

Twitterversion:: Will IP matter in global contxt?ChrisAnderson=Web2.0 JackSparrow decentrng IP auth,making value-creation salient. http://url.ie/23kj @chr1sa @Prof_K

Song:: O.P.P – Naughty By Nature lyrics

One of my students blogged about not being able to watch ABC’s Lost while studying abroad:

 “Interestingly enough, ABC was the first network to set up a deal with iTunes ‘to seek out alterative distribution venues for its show…’ I personally love that you can watch shows on online form ABC.com. Sometimes, I think its even better than watching it when it originally airs because the commercials are only 30 seconds and I can conveniently watch on Mac while I’m cozy in my bed. iTunes is also great though because when I was studying abroad in South Africa I had no television and ABC.com wouldn’t work outside the country, so I had to resort to buying shows online. I loved the fact that after I bought each show they were saved in my library and I could watch them whenever I liked, without any commercials.”

I’ve run into not being able to watch US content in Canada and was really frustrated when there was no legal way to watch shows like season 3 of The Venture Brothers, as they were being aired in the summer of 2008.  {There’s a possible workaround that I mention in my blog comment above.}  Canadian content in the US, such as the Trailer Park Boys (above) is a thornier problem, as one will need a Canadian web proxy for viewing.  Neither of these shows were available for purchase on iTunes when I was wanting to watch them.

I’m often asked, why is web content being geographically restricted?  A big issue has to do with intellectual property (IP) rights.  Here’s an exchange I saw on CBC about why the Hockey Night in Canada (HNIC) and the Stanley Cup cannot be available online to overseas web surfers:

“O: I have to ask becuase I have a [l]ot of friends who live overseas…

Every time I talk to them they ask me why they can’t watch the Stanley Cup online

AL: One of our most common complaints, for sure.

O: Oh really?

AL: Sure. Our agreement with the NHL is for Canada only. NBC and Versus wouldn’t like it if someone in Boise was watching an HNIC broadcast online, eating into their customer base. Ditto for someone in Sweden (although I don’t know who’s broadcasting competitively there).

I understand the frust[r]ation, though. We’re sending this online to a population that can watch it on main net and in HD.. why give them online? But it’s the way of the future and our numbers were, I’d say, solid for a first-time, and for games that were played in the evening (not online’s prime time by any means).”

The Balkanized Web

So, if you’re in Sweden & want to watch HNIC, you’re out of luck, despite the fact that you{and hundreds of others} watching in Sweden may have effect on revenues, since there’s nobody broadcasting it.

The contractual obligations are keeping the web content geographically bound, despite the web being decentralized and global.   The marketing limitations are keeping content from being legitimately purchased on iTunes {and sites like it} or through pay-per-view/video-on-demand via the web or cable/satellite means.  Geographic restrictions are frustrating audiences, leaving revenues on the table, and limiting the building of global audiences.

It’s clear that broadcasters are keenly interested in revenue streams, but still don’t get it, in many respects.  This Globe & Mail article really shows a lack of creativity in terms of addressing the “what should be online?” question.

“Even in the U.S., where NBC and Fox launched Hulu.com to showcase their programs online, the ad revenue generated from that business is still a mere fraction of network TV revenues, Mr. Eiley said.

In Canada last year, online advertising revenue from TV shows was about 1.6 per cent of total TV advertising revenue. The trend is troubling for broadcasters, since audiences are increasingly demanding online programming. Mr. Eiley said the networks are left with unattractive options for online content – either pack more commercials into Internet shows or charge for content.”

There are several issues going on.  Content as IP is being treated as an asset that must generate revenues, but what about trying to get more people interested in that asset in order to foster future revenue streams.  The networks aren’t always being creative about using Web 2.0 to help build buzz and audience.  They should be trying to leverage Web 2.0 to build audience, but how can you really do this when so much of what is being produced and aired is pure, mind-numbing kife.  

Over the holidays, I saw CBC really hyping Being Erica {see trailer below}, which {to me}, when I saw it in February was like watching a slightly less neurotic Ally McBeal being inserted in a sort of Coen Brothers-esque time-traveling world of suspended quirky disbelief.  Sort of.  The network used a prequel blog and Facebook, making it seem like they were really pushing to not just get the word out, but to get people hooked on the idea of Erica, because they know her.  Plus, even if you couldn’t watch the shows on CBC online, you could purchase episodes of the entire season on iTunes {above}.  

The ratings are so-so for Canada, high 500Ks down to 511K, and it looks like it will get another season, albeit with fewer episodes.  This type of support is a luxury that wasn’t afforded to Douglas Coupland’s jPod.  Not that I’m bitter, CBC.  Not at all.

1. What are your thoughts on TV content on the web?
2. What are some creative ways to use Web 2.0 to deal with IP issues and revenues?

Many of us post to Facebook, perhaps unaware of what can happen to that content and who has rights to it.  All of this came to a head a few days ago, as Facebook’s new terms of service (TOS) came to light and were met with a range of reactions from dismay to outrage.  

I’ve been reading Convergence Culture and being in Jane Jacob’s adopted home, I couldn’t help but think of how the social space of Facebook relates to how social interactions are shaped by governance and polity in online realms, as well as the idea of a commons that is a privatized space, as opposed to a public one.

While I’m resigned to the fact that there is no privacy online and I don’t know whether to laugh or cry when I hear that Facebook is being used by collections departments to locate unstealthy credit defaulters (true story), I do bristle at the idea of content being appropriated by companies hosting these web commons.

Why?  I’m using the private space of Facebook, why should I feel that what I post is still my intellectual property?  Am I being unreasonable?  After all, I push the boundaries of fair use quite a bit.

Can social network sites really be sites of democratic action, when they can ultimately be censored, not as a matter of public policy, but rather corporate TOS?  On the other side of the Web 2.0 fence, how much freedom should an organization grant users?

I feel that what any site engaging in Web 2.0 should do if they want to use content posted by users is…to simply ask them for permission.  It’s simple good manners and building of social capital.  I do think privatized social spaces or commons can be used for civic engagement, but I find emerging technologies being developed up here in Canada that allow content to be fed from multiple sites (e.g., MySpace, Facebook, Twitter, LinkedIn) into one location to be rather interesting.  More on this in a future post.  I feel the overlap of Web 2.0 with open source will make us all rethink ownership and privacy and force organizations to ponder what intellectual property really means, what the risks are in terms of what the courts are stating, and how to implement processes.  Or not.  That devil inertia.