Entries tagged "law"

A big fat lesbian party

I went to the 30th anniversary party for NCLR (National Center for Lesbian Rights) last Saturday thanks to a friend and donor’s generosity.

There were sexy acrobats hanging from sheets and lesbian hair from every era and to top it off, Martina Navratilova, the first real, out lesbian I ever saw and the best tennis player too.

In the mdst of the festivities they auctioned off a racquet of Martina’s from the 70s. It was used to win a Grand Slam in mixed doubles. It fetched (with a hug), more than $14,000 via live auction.

And the fearless leader let us all know, they’d “raised enough to cut off Antonin Scalia’s left ball.” It was like Eugene Levy stating that the Jewish media conspiracy had finally achieved it’s goal of worldwide domination via rugelach.

It was a room of many ethnicities, races, genders and finances. I’ve never before been at any hoo hah event where the folks with the most money didn’t seem to be treated like they were from a distinctly superior caste.

I wished I had a bank account with a million dollars in it so I too could write a cheque and give it to Kate Kendall to stuff in her shirt with the other spontaneous donations. Like she said, they can’t wait to close the doors on NCLR. But they won’t do it one day before we have full equality.

gay rabbis dude!

Conservative Jews use their own their own traditional process to accept out queer rabbinical candidates at Jewish Theological Seminary. Tradition is made alive and relevant through the interpretation of the present and the authority of living teachers, not just he connection between tradition and the present

Nuggety goodness:

As Solomon Schechter explained a century ago, “It is not the mere revealed Bible that is of first importance to the Jew, but the Bible as it repeats itself in history, in other words, as it is interpreted by tradition.” That is why the fact of Leviticus 18:22 in and of itself did not free the CJLS or any other Conservative Jew from the need to debate the matter of gay and lesbian ordination.

The eminent historian Chancellor Gerson Cohen urged Conservative rabbis in 1972 to shape the movement in a way that was clearly and authentically Jewish but that would “also reflect our own formulation of Judaism, a formulation that will respond to our situation, our needs as Jews in America.” That need is once again clear and urgent. How shall we undertake to meet it?

The proper way to do so, I believe, is not for JTS to promulgate a set of standards for Conservative belief and behavior. It is, rather, to engage Conservative Jews in discussion of what matters to them and why.

Tip ‘o the shtrummel to sra.

The conversation and distributed network is the paradigm of our times and of ancient tribal times too. It is the method for reonciling legal elements that are at odds. It is the way to split the gordian know. I’ve heard Reva Siegal, Yale Law Prof. suggest as much about the history of 14th amendment litigation. That viewed over time as a conversation it makes sense of the otherwise unreconcilable contradiction that there is no literal text in the US Constitution making women full citizens of the US although courts (generally) act as thought we are.

My guess at the secreat behind all of this ? No way for Jews to keep musical theatre without the queers.

Here’s an awesome mash-up: Avenue Jew (I would embed the video if WordPress didn’t make it so difficult to find my API key. Any geeks with ideas?).

About last night

10 Zen Monkeys’ EFF Fundraiser

Originally uploaded by Laughing Squid.

photo: Scott Beale / Laughing Squid

I had fun last night performing at the 10 Zen Monkey’s Fundraiser for the EFF. I even busted a few folks twittering during the set 🙂

Beth Lisick and Tara Jepsen did a really funny bit with their meshugenah ladies Carole Murphy and Mitzi Fitzsimmons and Will Franken was brilliant. We had a very fun argument afterwards about Israelis and Palestinians. I guess this is how comedians who aren’t easily categorized bond. Beats getting high and talking about failed sexual escapades and poop.

Video on the Net conference notes

I think it had it’s own special name for sponsorship purposes, but I can’t remember it. There was a day positioned as Hollywood+SV at the Video on the Net conference.

San Jose seems like it’s anythiing but a destination city, but it costs $18 a day to park there. For those kinds of prices, you’d think the buildings you park to visit could look a little spiffier.

I found it interesting that at the first panel I was at 100% of the questions were asked by vloggers. It was fun hanging out with Steve Garfield, Enric and many other vloggers including a really bright Canadian musician and podcaster named Vergel Evans.

Speaking with Brent Weinsten (the UTA digital agent guy) after his panel was probably the other most interesting part ofthings. He’s all about the Benjamins, which is what an agent’s job is. But he’s also more frank then all the other Hollywood folks that were there. That used to be my job (studio biz dev) and I don’t miss it.

One panelist observed that the ignored giant is the already installed base of 17M set top boxes that show video which are game boxes.

I talked to Scheinman from Cisco a little afterwards, and the most interesting thing he said is that what is bridging the cultural gap btween SV and Hollywood is an empowered consumer that both industries aren’t sure how to deal with.


heather gold

2 sides looking to protect what they do and make more money somewhere.

8 women
1 black guy
1 yarmulke
in the room

rights:how do you get em

they all want the holy grail at the end of the “frothy market”

complex rights landscape

>>clearances. how to deal online?
cosumer prod market / creators of content

“myspace is about monetizing fragmentation”

cisco “what i want to do is solve the problems sarah is talking about”

how do you find anything

“its the mission of the network to have content find you” our mission: Cisco

Fox: we don’t have the time to build a lot of stuff

“we want to be in business with the elite”

UTA creating channel on veoh in the next few weeks as a legally safe, no tech effort , less searching way for them to look at stuff

>first time you can submit to them openly.

Cisco”The libertarian days of SV..this may mark a transition point”

time of change

fox + media cos say:
1>protect out content
2>monetize it when it gets viewed

brent” everything we do is based on the premise that premium content is worth more than non-premium content”

“get brands out there and promote a brand”

Jim/WB “this law suit (Viacom/Google) will help write the rules of engagement which we all need in this space

protect/>“consumers should find out content anywhere they go online…but we can do that in a way that we can control and monetize”

“future is superdistribution”

scheinman’s response to Jobs on DRM “Apple could create a standard”

weinbach “When co.s say protection what they mean is control”

wht’s really interesting is everything bt amatuer and repurposed media>>in this area protection is less important. (stuff made for the net) just have to make sure it includes some kind of monetiztion: spons or call to action

want the data says Fox chick. # of views etc

I think the word control has been used about 48 times by now.

What is scary: advertisers seeing the value of the “premium” content drop

Does the gift economy or fair use apply to comedy? Jay Leno sues Judy Brown.

Jay Leno, NBC studios, Rita Rudner and some other well-known comics have sued Judy Brown over her compilation joke books. Judy is well-known in the comedy scene as a teacher, but more as the writer of these books. She often posts to lists I’m on asking for jokes. She offers credit in the books when she does this and the chance to be then able to promote yourself in your bio as “published in ” Joke Soup or whateer book it is she’s writing. This also means you can say “xx ‘s work has appeared in blah blah book alongside Dave Chappelle, Ellen DeGeneres, Sid Caesar, Lenny Bruce…” etc you get the point.

When I walked into an Urban Outfitters in Santa Barbara and saw her latest book I thought “why didn’t I get my stuff into her? I could have been in this book.”

This idea of advancing yourself by association is a whole other blog post. Living in a Google world is actually making this more important to many people as it’s how you are found. It’s something that start-ups do, bankers, lawyers, academics and comedians do it too.

Judy asks and credits somewhat-known, lesser-known and unknown comics for submissions and credits them. I never knew how shw got the rest of her stuff. Leno’s suit claims she and others on her behalf go to clubs and crib their material without letting them know or getting permission. And she’s not paying anyone for their jokes.

I’m seeing mixed reaction on comedy listservs I’m on.

I’ve spent enough time around open source ideas and Cory Doctorow and friends that I generally like the life philosophy of giving and being open to have your stuff be out there. I’m far enough away from law school that my brain has thankfully forgotten all the details of the compilation law suits over the phone book and every detail of fair use exemptions to copyright (which allow for the free use of small elements of copyrighted stuff for things like journalistic and academic purposes).


1) the law as we have it now,
2) our ideas of how we want it to be, and
3) the practical realities of our lived lives that don’t really care much about the law

There’s a generally understood “code” among comics that you don’t steal another comics material (an unwritten law of kinds). It’s enforced by the respect or lack thereof of other comics. The truth as people like Cory have been talking about in tech circles and is true in comic circles as well, is that it is your ability to keep producing the material and the alignment of the material with you that creates your value. So “give away your information” and then people will pay for the hard bound copy or the DVD or to see you live. You’ll gain fans.

The practical reality of that for comics is a little tougher than coders. Any coder can get online and give their code away themselves. Comics haven’t been able to distribute themselves so easily, till the Net.

A joke, like a piece of code, can have a life of its own and get easily separated from its creator.
So is Judy brown just like a blogger? A curator of comedy? Someone who’s turning people on to comics? Is she any different than Myspace or Youtube if they decide to sell or license compilations of comedy submitted on their pages as “self-promotion” ?

I hate the feeling of being stingy. Of not sharing stuff. At the same time, comedy and perfoming have shown me that you get paid when you feel you deserve to get paid and make a decision not to do the work unless you get paid. You also need someone who wants your work, of course, but that emotional feeling of self-worth, that decision is at the crux of what turns someone who wants your work into a customer.

At a minimum, it seems like a choice the comics should get to make themselves. If Judy didn’t ask for permission from all the comics in the books, then I’m glad I wasn’t in them.

What else can comics learn from coders and vice versa? When do you get paid? How much do you “give away”? Is the law a pointless thing unless you have Jay Leno’s money anyway? I’d love to hear your thoughts.

Rule of Law edges out Rule of Man

The US Supreme Court just handed down a decision that basically says that the President can’t do whatever he wants with the people held at Guantanamo. Technically a 5-3 decision, but Chief Justice Roberts would have voted on the side of unlimited Presidential powers if he could have.

You can see that these dudes long for the monarchy, the Pope or just daddy.  If only everyone else just understood, as they do that pleasing someone with more power is the safest way for us all to live we’d all be good boys just like them and everything would be ok.

Justice Stevens is 86, and there’s a big moment coming. How do you want to live America?

It’s not an either/or choice between strength through force and weakness through guilt.

Is $135,000 enough to get you to try the law firm crack?

Heather and the Dean

Law School graduation: The Dean was glad to see me go. So was I.

First year associate jobs are apparently paying up to that much according to today’s New York Times. So now you can make almost as much in your first year as you’ve shelled out for law school. That is if you work at a very top big firm in a major city, and if you can live on air then you can take a good chunk out of your loans. The discussion on the NYT message board is instructive. In it you can see fear about whether or not you deserve that money, frustration, and concerns about being valued. I think that the increased pay is really a loss of consortium payment for all the sex and happiness those folks will miss out on. Law school is the most effective (but expensive) contraception known to mankind.

Much of the whole system is painful and I’d love to see the incredible brain power and passion of all the people who work in law focussed on asking “what would work better than what we have” rather than politely bitch-slapping each other for not working as hard as we do in a system that isn’t really meeting anyones needs well.

People at law firms are often very very focussed on how much they and their peers are making. They often have major law school debt. They work extremely hard. Could they ever earn enough to make it worthwhile?

Here’s a little piece of my own WayBack Machine. A journal entry…

May 16th, 2002. That’s today’s date. I want to remember it as the day I bought my freedom. Today was the day I paid off my student loans. For some reason, i don’t want to tell mum and dad.

The loan payments have made saving impossible. I have not bought a home. I have no real investments. I missed the stock market boom and all the investment growth during the Net years. I had nothing to work with. The fact of law school debt never bothered me. It was the fact that I was *still* paying for an experience I didn’t really want in the first place. All these years the payments have been a reminder of just how deep the cost is when you mortgage your soul. When you do what you think you ”should” what’s expected. I did law school cause I thought it would help me get taken care of, and instead I found it cost me. It cost me my freedom. I cost me my self.

Today I cut my last tie with law school. Today I am a free woman.

…so why is the legal world so uncomfortable? Why does this profession rank #1 in depression, and high in alcoholism and unhappiness? I believe there is something very wrong at the heart of the entire system. But there is no room in law school to ask why, only how. When you’re a law student, you’re too busy learning the system and playing the system for grades to do anything else. My next solo comedy is about law school. It’s called The Law Project and in it I teach the class I always wanted to take. I often do workshops with audience as I love the “open source” writing process, so sign up for my mailng list it you’d like to get the heads up on the show and workshop invites.

Gay Rights, Canada You Surprised Me

I grew up in Niagara Falls, Canada, the honeymoon capital of the world–now I live in San Francisco, the gay Jerusalem. While I spent my teenaged summers selling souvenirs to honeymooners, marriage wasn’t something I thought I could participate in directly, until last Friday.

The top Ontario court ruled that gay and lesbian couples must be allowed to marry. With this decision, Canada becomes the second country in the world to marry same-sex couples. I’ve lived in the United States for 14 years, and this news took me by surprise. America is the birthplace of the civil rights movement, after all; it?s where the push for gay and lesbian rights started. But somehow it’s legally flourished in Canada. This made me rethink the relationship between the countries.

Today people think lesbian and gay Americans have all kinds of rights, but that’s not actually the way it is. In most of the US, gay people can be fired or lose their housing through permissible discrimination. And we can’t serve honestly in the military or even legally have sex in many of the US states. The closest anything comes to marriage here is Vermont’s kind of “separate but equal” status for same-sex couples. But people see a lesbian wedding on Friends and think we all must be able to get married. If it’s on TV it must be real, right? After all we have Rosie, and Ellen, and Ikea ads aimed at us, we must be powerful.

And while gay people already can’t get married anywhere in the US, a democrat recently introduced a constitutional amendment to Congress just to make sure. But hey, we’re going to get a cable TV channel to call our own soon, so no worries. America was founded, originally, on property rights. And any capitalist or expressive aspect of being gay has made incredible headway.

America, ironically, has this great tradition of individual rights, which makes it’s neglect of gay legal rights at the national level all the more surprising. It’s got a culture that celebrates the individual and individual expression. It’s a place where you can kick up your heels a little.

Whenever I have visited Toronto, since moving to the States, I’ve felt like the gay people I see are less out — more closeted. But now I realize that it’s not because of their concern for their legal status. They’re just being Canadian. Understated.

Canada was founded on the idea of peace, order and good government rather than life, liberty and the pursuit of happiness. Canadians are very proud of the value we place on tolerance. Everyone should be welcome and get along, just as long as you don’t kick up too much of a fuss. Standing out is not a real Canadian idea. Not surprisingly, it wasn’t the place where drag queens got fed up with police harassment in 1969, rioted, and started the gay rights movement. Canada doesn’t have the same strong history of civil disobedience as the US. But neither does it rely on the marketplace to take care of government or civic rights. So Canada has taken these ideas that individualistic Americans started and absorbed them into broad legal protections on a human rights basis.

The winning attorney cited a study that showed that last year over 65% of Canadians approved of marriage for gay and lesbian Canadians. She said that the decision shows that, “the law is keeping up with the culture.” But the culture in Canada has changed, in part, because of Stonewall, and ACT UP and Rosie and Will & Grace and the Ikea ads.

This historic decision leaves me confused. What does it mean to live in the United States? As a Canadian? As a lesbian? As someone who wants cultural freedom and legal protection. I love both countries. I choose to live here in the United States. But where will I honeymoon?

Paté and Joan

Paté & Joan were my law school salvation. I’ve never been sure if they are sassy chicks or righteous drag queens. One way or another, they find themselves, through a series of cruising and interior decorating accidents, enrolled in Law Skul…

I drew these each week to keep me from gnawing my right arm off, while I was stuck in the trap of Law Skul.

What Do You Want to Do With Your Life?
Dean’s Office
Career Options
Cafe 2
Job Interview
The Question is Moot
Paté & Joan’s Interpretive Guide to Law Skul Propaganda
Faculty Selection
The Horror
Fun with Facilities
Rights Swopping
Wife Shopping
Faculty Meeting
April Fools
To do List
New Year’s Resolutions
La Finale

Building a Web Business on Copyright Infringement

In this 1999 piece, which predicted the problem the yet-to-appear Napster would pose, I explain the different Internet content models from a copyright perspective, and analyze some of the implications for the future of the media/new media business. This piece was first published in the Silicon Alley Reporter, and then a revised version was published in Digital Mogul.

Infringement, the silent business partner on the Web
On just about any New York street corner, you can find CDs or videos you could buy in any store spread out on a blanket on the sidewalk–for a much better price. Some passersby ignore these vendors, either because they mistrust the merchandise, because they don’t know where it comes from, or because they have moral scruples about buying what appears to be stolen merchandise.
The street merchant metaphor is how most people think about counterfeiting. Piracy has always been a business for a few on the fringe, but has rarely been associated with highly valued companies in a U.S. government-regulated market. The Web has changed all that. Often indirectly, infringement has fueled the growth of web businesses, from home page aggregators like Geocities and Tripod, to tool creators like Real and Nullsoft. Here’s a quick look at the role of infringement in some of these web businesses, and some thoughts about how powerful copyright owners might react toward infringement in the future.

First, it’s important to put some context in place. Tradition and law dictate that copyright protects original works of authorship fixed in tangible medium, as long as there is some element of creativity to the work to be protected. This includes literary, dramatic, musical and other artistic works. As a copyright holder you have a variety of rights associated with each of your protected original works. So if you own, say,¨the copyright to Star Wars, that would include: the right to reproduce the work and all of its copyrighted characters; create associated derivative works (such as “The Phantom Menace”); distribute the copyrighted work through any medium; perform any copyrighted work publicly; and display the copyrighted work publicly. If you own a copyright or a trademark, you can also choose not to have it copied or associated with something you don’t like. In other words, you have a right to control the way it’s used. This legal structure forms the basis of what I’ll call the Vault model, which vertically-integrated media companies follow. The major film studios, publishing companies, and record labels have spent years understanding how to create or acquire libraries of copyrights and obtain value from them over the life of those works. A media company would take something out of the Vault only under its own auspices, and only for satisfactory compensation. Ensuring that someone does not profit from these kinds of intangible assets in an unauthorized fashion is more difficult than, say, GM protecting its cars from theft. The business models of established media companies are focused as much on capitalizing on long-term rights libraries as they are on creating the next hit.

The Web, however, is in its infancy. It is driven in its early days by the ironic combination of short-term financial opportunism and forward-looking infrastructure plays. These infrastructure businesses, focusing on creation tool and hosting, often implicitly rely on the easy illegally copying and distribution of protected digital content. A variety of web plays have ¨benefitted from online piracy through a number of ways: direct aggregation, distributed aggregation, distributed serving, and tools.

Direct Aggregation
There is garden-variety direct piracy online, just as there is on a New York street corner. It mostly shows up in the form of Direct Aggregation: a site hosting unauthorized copies of files, such as an MP3 version of Ricky Martin’s Livin’ La Vida Loca, or a pirated copy of “The Matrix.” The Recording Industry Association of America, or RIAA, represents all of the major music labels, and works to enforce the copyrights of these Vault companies. The trade association has been shutting down around one hundred sites a week, and those who directly copy and host unauthorized music on their sites have been the easiest target. RIAA President Hilary Rosen says that a Cease and Desist letter from the association usually accomplishes the task of getting the unlicensed files removed. Some uncooperative sites, including an Arizona-based ISP and Washington state-based music archive, were sued. This sort of pirated Direct Aggregation benefits a company only until it gets caught. They take advantage from the Free Ride period that the speed of the web has created for its denizens.

Distributed Aggregation
The International Lyric Server was one of the earliest users of the distributed aggregation technique, as it collected content through the submissions of thousands of different loyal users over time. There was something exciting about the way it came together and grew, but the Harry Fox agency sued it and the site was shut down in 1998. It appears the site may relaunch through a partnership with songfile.com. If so, it appears someone recognized the site’s brand recognition is worth something to a web business.

Community sites like Geocities also follow the distributed aggregation model. They create a place online where people with various interests can make their own web sites. These community sites are loaded with infringing content, from photos of celebrities to pirated songs and movies. President of Warner Brothers Online, Jim Moloshok, put out the call to fellow media companies to pay attention to the value they were losing online. As reported in Variety this past March, Moloshok told attendees at Variety’s Interactive Marketing Summit in Rancho Mirage, Calif. that the Web is “being used to build other people’s brands.” Moloshok stated that bootlegged Warner Bros. material represents 4.2 percent of the content in GeoCities’ total community. If Warner Bros. were compensated on a dollar for dollar basis for the unauthorized use of its material it would be worth $147 million,¨Moloshok said. Warner Bros. has no intention of filing suit against GeoCities or its members over the postings, since to do so would mean alienating loyal fans, Moloshok said. Warner Brothers decided that the best route was to join ’em instead of shut them down. So far, 250,000 people have signed up for acmecity.com, the studio’s own online community. Moloshok was not available to comment further.

Nick Edgar, Manager of Communications for Geocities says Geocities takes the violation of intellectual property very seriously. “If it is brought to our attention, we will take it under review and at the appropriate time notify¨the web page owner, Edgar said. “We don’t just shut down their site unless it’s a clear violation. Given that major media companies now applaud these fan sites, community sites have been able to build massive numbers of page views on what is technically infringing content, without yet paying any licensing fee to major copyright holders.

Aggregation sites like Lycos, Tripod, Angelfire and Geocities have developed proprietary tools to help monitor the subject matter on their servers to insure that they remain, as much as possible, clean, well-lighted places.¨This means filtering and taking down hate speech, obscenity, and pornography. These types of content are more likely to disturb the user base and advertisers far more quickly than the notice of an inappropriate use of a copyright is likely to come to the attention of a copyright holder.

Geocities is the grand old lady of online community and free home pages. By Internet standards, it’s old and established. Its popularity Yet, Edgar cautions, “You still have to remember that the web is still the wild wild west.” Like all web companies, it tips its hat to the legal vagaries of its actions and the future in its prospectus when it filed to go public: “The Company could also be exposed to liability with respect to the offering of third-party content that may be accessible through the Company’s Web site,” the prospectus states.

The Web needs content to grow. The tools that enable people to build web pages or web businesses for either personal use or legal commercial use, are the same tools that can be used to quickly and anonymously infringe copyrights. Marc Andreessen, one of the creators of the Netscape browser (née Mosaic), says that the team included the ability to easily save images ¨from web pages because it “just seemed like a good idea,” especially when they saw some of the uses people came up with for embedded images. “I’m not aware that image libraries or content companies ever got upset over it,” Andreessen said.

Web tools, especially consumer browsers, search engines, directories and players all benefit when they become a favored way to pirate content. People need clay to sculpt with these tools, and in the beginning, the most exciting stuff to play with, indeed most readily available, was music, pictures, and even movie clips that belong to someone else. To the RIAA, there may be a perception that tools like RealNetworks Real Jukebox, Nullsoft’s SHOUTcast, and mp3.lycos.com are being released at least in part to further ease the pirating process. (This infringement helps the labels to a degree–it woke them up to the fact that the web is a serious market opportunity, not just a threat).

The law is pretty clear, according to Larry Iser of Greenberg, Glusker, Fildes, Claymond & Machtinger in Los Angeles: Any technology can be sold or distributed as long as it has non-infringing uses. In other words, almost anything besides little executable files that do nothing but allow you unauthorized access to a piece of software, for example, are perfectly¨legal. The RIAA found that out when it failed in its attempt to permanently stop the sale of the first commercially available MP3 portable player in the U.S.: The Diamond Rio.

New tools that make it easy to spread piracy crop up all the time. Real Networks’ Real Jukebox makes it simple to compress and store music files on your PC, but a security feature that ties your files to your own PC is an option that can be simply disconnected by clicking a box. Steve Haworth, vice president of communications for Real, said “We make every reasonable effort to get our users to act legally. We inform them of what their rights are.” Rosen said Real’s actions haven’t matched their publicly stated intentions. “I don’ t have any objection to people ripping CDs off to their hard drives. It’s when you can pass that music from the hard drive to a bulletin board that the sense of fair play ends. Some of their product actions haven’t matched their publicly stated intentions,” she said.

mp3.lycos.com has become one of the most popular parts of Lycos, because it helps people find pirated MP3 files, most of which are the RIAA says are infringing copyrights. Soon after, the RIAA contacted Lycos, and since then, they have worked together in an example of a new cooperative era between the RIAA and major web sites. Like other tools oriented companies, Lycos says it can’t control what people do with the tool, similar to the way gun makers
say “Guns don’t kill people; people kill people.” The RIAA is trying to shift the focus of its efforts from stemming piracy to enabling new ways of listening to music. “It’s not about people down, it’s about trying to expand the opportunities and collect on them,” says Rosen.

Distributed Serving
Another way for tool companies is to profit is when a community or content uses the tool. Some of the coolest companies on the Web–Hotline and Nullsoft, for example, are pushing the self-publishing and community models to a new level, allowing anyone to stream high-quality audio, or easy host their own community and file sharing system.

Hotline, a Canadian company, has created a communication system used by 2.3 million users which works through custom protocols independently of the World Wide Web. People use it to chat and swap files–anything from songs to software products to movies. “I don’t think that commercial software is going to be around much longer, says Jason Roks, vice president of business development. It’s becoming [like] shareware. People want to try it before they buy it. Roks, like many other technology and web businesspeople, suggest that traditional media face the same need to create a “workaround” to find profit in the future Internet economy.

Similar to other Web apps that spread virally, Hotline gained thousands of users before any thought was ever given to a business plan. Like the pre-VC MP3.com, it has lived within its slight means, and with only 12 employees in its Toronto home, it is profitable. Now the plan is to build market share, and try to figure out a way to make money from the people using the software.

Nullsoft is the Sedona, Ariz.-based maker or Winamp and SHOUTcast, a music player and serving system that are beloved by their young and tech-savvy fans. Winamp was not originally created to support a business, but as a challenge to teenage programmer Justin Frankel. The player chalked up about 5 million downloads before it got a business model behind it. Winamp is probably being “pirated” as much as the music that’s out there, but because the company wants to give away the product, rather than sell it, it does not concern itself with infringement. Besides, enough users like the product and the community enough that they choose to pay for it.

Getting Clean
The genie is out of the bottle, and piracy is rampant. So when does the average web business worry about “getting clean,” or need it ever? Traditional media companies think long and hard about how to protect the intellectual property they create and purchase. But that hasn’t really applied to the Web, for many reasons. Even the most careful companies that envision themselves as entertainment or media companies, as opposed to technology companies, operate in unknown territory. Now that the Digital Millennium Copyright Act has passed, web casting companies like Broadcast.com, have to pay a license retroactively for content they offered from the beginning. And Web companies and ISPs may want to think more proactively about considering their practices in filtering content and copyright infringement.

With the release of The Phantom Menace, Lucasfilm made a preemptive strike, notifying 170 ISPs that if their users hosted pirate copies of the film, they’d face prosecution, as well as risk Lucasfilm halting development of further Star Wars sequels. If you publish infringing material, you are a contributory infringer under plain old copyright principles, Iser said. “If a recalcitrant server refuses to take an infringing movie file down, if I were [the MPAA], I’d try to interest a local DA to bring criminal charges as a test case. All you have to do is put someone in jail and you’ll deter pirating big time.

Will the hens ever come home to roost? Well, it depends whom you ask. The RIAA, MPAA and other enforcement agencies certainly have gained something close to job security for the moment. “We have to remember that a lot of hot growth companies [in the technology sector] had their comeuppance in the market based on intellectual property litigation. Lotus and Borland stock prices were immensely affected by that look and feel copyright litigation. I can still remember the CEO of a top software company telling me in the old days that we were all friends: “Nobody sues anybody in this industry.”
Especially as consolidation continues web companies themselves will find themselves spending a greater percentage of their time enforcing their intellectual property right, and ensuring that they can profit from their brands, trademarks, and hard-won relationships and customers. The concept behind practices like “framing” will be questioned as a fundamental building block of web ventures like Zinezone. “Framing” takes a framed site one step further by ensuring that any site that a user links gets framed by the previous site’s branding, name, advertising, and navigational elements. This means that Zinezone can gain revenue from banner impressions while users are exploring the content of direct competitors like Geocities and Tripod. Don’t you think that VCs or investment banks or attorneys would catch that in an IP audit of a company filing for IPO? Hank Jones, a partner at Arnold, White & Durkee in Austin, has represented software and web companies venturing into he public markets. “Most smart companies do self-scrutiny in anticipation of savvy investors and their counsel or adverse third parties.” “It’s unclear that the marketplace or internal management are forcing hot growth companies to prove they really own all their assets.”

As quickly as the Web business moves, the legal system grinds at a conversely slow pace. “There’s such a desire for places to put money these days, that people are turning a blind spot to it, says Rosen. If someone of Wall Street found out that GM wasn’t legitimately paying for the steel that held their cars together, they might pay attention to the potential liabilities.

These digital times make it necessary for the meaning of intangible concepts like stock options and intellectual property to be viscerally felt by the¨business community and consumers alike. It’s no small coincidence that the abstractions of the market capitalization are the strongest force propelling the infrastructure over which the infringing actions are taking place. The RIAA now seems as concerned with spreading values as much as enforcing law standards. To the consumer force driving online piracy, the choice isn’t as much about deciding whether to buy from the street vendor, it’s more like finding money on the ground and deciding whether or not to keep it. This will be a battle to shape beliefs or to build a market in response to them.

Copyright © 1998-2024 Heather Gold.

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