Blog Ipsa Loquitur

Oh, come on guys. From Reuters:

For the past year, studios have been flirting with stretching out the delays on when Netflix, Redbox and Blockbuster can rent new releases, but it looks like Warner Bros. is going to be the first to take the plunge. The studio plans to make the home entertainment companies wait 56 days from when new releases go on sale to offer DVDs and Blu-rays, according to a report from AllThingsD.

The move is seen as part of an ongoing effort by the industry to prop up a DVD market that has struggled to keep pace with plunging disc sales and a shift among many consumers to digital streaming.

I find it hard to believe that anyone at Warner Brothers thinks that an extra month’s wait is going to be the tipping point here. If making me wait for a few weeks didn’t work, and I haven’t purchased the DVD, how many more weeks do you think will make me buy the DVD? Months? Years?

Actually, here’s a fun story. I went back home to visit my friends and family between Christmas and New Year’s. During that time, we all watched a lot of Netflix together. Here’s a summary of our conversation after finding out that a movie we were looking for wasn’t on Netflix yet:

Me: “Oh, man, it’s not on Netflix yet.” John: “Yeah, I think it’s only been on DVD for a couple weeks.” Me: “Well, let’s watch something else.” John: “Cool.”

Do you notice how, at no point, either of us suggested that we put on our jackets, go out to the cars, drive to the store, and buy the movie? We were in no danger of doing any of that. I know sales of DVDs are way down, but keeping your movies off Netflix isn’t going to help. That article from All Things D has some fun statistics:

Spending on rentals, primarily via Netflix and Redbox, is up 10.9 percent. But that’s not enough to counter a 17.2 percent drop in movie and TV show purchases.

Market demand has shifted from a historically profitable sector to a new one. Do you attempt to sandbag the new market, or do you come up with a new product to meet consumer demand? You don’t have to choose one or the other, but Netflix and Redbox have been around for a long time. What have you guys been doing since then?

Don’t give me that Ultraviolet stuff. When I buy a movie, it comes with a voucher that I can redeem to watch the movie? Awesome! You know what else in the box lets me watch the movie? The damn movie. That I bought. How do you guys look at Netflix and think the killer feature is streaming, and not the “watch frillions of hours of TV and movies” for $8 a month?

Filed on under The News

The Stop Online Piracy Act (SOPA) is a terrible thing. It’s sort of like a turbo-charged, Mad Max version of the decade-old Digital Millenium Copyright Act, which I’ve written about before. Both SOPA and the DMCA address copyrighted materials posted to web sites, but they go about them somewhat differently.

Consider some scenarios: Viacom sees a clip of South Park on a video sharing site: completely hypothetically, let’s say YouTube. Pre-DMCA and pre-SOPA, YouTube might have been liable for contributory copyright infringement. They’d end up having to fight a “substantial noninfringing uses” battle like Sony v. Universal, the Betamax case. I’m not going to cover that again, but just know that that’s expensive and worrisome, and they could lose and go bankrupt. That’d be bad.

Enter The DMCA

The DMCA gives Viacom a private remedy: they don’t need to call the attorney general. It’s like trespassing. Sure, you can call the police and try to get someone arrested, but you can also just call your lawyer and start a private lawsuit. Under the DMCA YouTube is actually completely immune to copyright infringement suits for the infringing videos its users upload. Viacom has to go after YouTube’s users. But like I said, there’s a private remedy.

Specifically, there’s a DMCA takedown notice. Viacom sends a letter to YouTube, swears that the clip at whatever URL is infringing on their copyright, and orders YouTube to remove it. Viacom’s letter must list specific files at specific addresses, or YouTube can ignore it. For valid takedown notices, YouTube either removes the clip immediately, or they lose that immunity I mentioned. But if YouTube complies with the notice, they’re completely immune to the copyright violations of their users.

Enter SOPA

SOPA takes that general regime, which is unfair to both sides (a conundrum that the civilized among us know as a “compromise”), and makes it much worse for one side. Given that Big Copyright has spent $57 million lobbying for it to pass, you get no points for guessing that SOPA is worse for “everyone who is not an international media conglomerate.”

It takes that DMCA takedown notice thing, and makes it a fire-breathing monster. Now, in our scenario above, Viacom would simply send a letter to a court, swearing that YouTube contains an infringing video. The court, without contacting YouTube, would find the video infringing or not; if it’s infringing, the judge would then order YouTube removed from the DNS record. DNS is the system that lets human beings type “Google.com” into a web browser, instead of 72.14.204.91.

When a judge decides that there is an infringing video on YouTube, she can deactivate YouTube.com. The site just disappears off the internet. Poof. Not the video; the whole site. The Stanford Law Review has a good overview of the law as a whole.

SOPA sucks

So where the DMCA lets a copyright owner nuke any file on the internet, SOPA lets the copyright owner nuke any site on the internet. To say this moves the goalposts a bit is an understatement.

So the collective internet has been rather up in arms about the whole affair. I can’t say I’m surprised. Google, Apple, and Yahoo have gotten in on the act, too.

But not GoDaddy. There’s a giant thread on Reddit calling out GoDaddy for supporting SOPA. Why does GoDaddy support SOPA? Specifically, why does GoDaddy support SOPA when its customers hate it so much? They say:

“Go Daddy has a long history of supporting federal legislation directed toward combating illegal conduct on the Internet. For example, our company strongly supported the Ryan Haight Online Pharmacy Consumer Protection Act of 2008, the Protect Our Children Act of 2008, and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP).

Go Daddy has always supported both government and private industry efforts to identify and disable all types of illegal activity on the Internet. It is for these reasons that I’m still struggling with why some Internet companies oppose PROTECT IP and SOPA. There is no question that we need these added tools to counteract illegal foreign sites that are falling outside the jurisdiction of U.S. law enforcement. And there is clearly more that we could all be doing to adequately address the problems that exist.”

Yeah, the Hooters of registrars is really concerned about their image as an upstanding internet company.

Whatever, guys. My domains are registered through secureserver.net, a GoDaddy affiliate; I’m moving them all on December 29th.

Filed on under Legal Theory

History is full of tragic loves. Cleopatra and Marc Antony. Elizabeth Taylor and like half of Hollywood. Jennifer Lopez and Marc Anthony. Now, the failed marriage of AT&T; and T-Mobile. AT&T; had this to say for itself:

“The actions by the Federal Communications Commission and the Department of Justice to block this transaction do not change the realities of the U.S. wireless industry. It is one of the most fiercely competitive industries in the world, with a mounting need for more spectrum that has not diminished and must be addressed immediately. The AT&T; and T-Mobile USA combination would have offered an interim solution to this spectrum shortage. In the absence of such steps, customers will be harmed and needed investment will be stifled.”

This is one of the stupidest things I’ve ever read. “There’s lots of competition in the wireless industry. (ED: snort) We were trying to put an end to that, but you guys are being jerks about it. We’re taking our legal team and going home.”

Filed on under The News

Abnormal Use is one of my favorite legal blogs, because they cover products liability cases. If your chainsaw falls apart mid-tree and decapitates your lawn gnomes, or if your car’s GPS tells you to drive off a cliff and you somehow think that’s a good idea, you and your bizarre lawsuit will end up on Abnormal Use.

Their Christmas coverage is pretty fantastic, too. Here’s Steven Buckingham on the classic (if being played for 72 hours straight once a year means it’s a “classic”) movie Miracle on 34th Street:

Written and directed by George Seaton, and starring Maureen O’Hara, John Payne, Edmund Gwenn and a young Natalie Wood, the 1947 film is ostensibly a Christmas classic, but really, it’s a cinematic exploration of some of the worst legal malpractice I’ve ever seen.

But please, Steven, tell us how you really feel!

Let’s start out with the most glaring mistake / “legal strategy”: The state calls Santa to the stand. Kringle’s lawyer does not invoke the privilege against self-incriminating testimony. In fact, he waives it while boldly proclaiming, “We have nothing to hide!” Trust me, guy, you’ve always got something to hide. In your case, it’s the fact that your client assaulted the shrink. You might want to sweep that under the rug. Luckily, because the state phoned its performance in, Santa gets away unscathed.

Read the rest at Abnormal Use. And remember, the only thing worse than suing Santa is suing Santa and losing. Merry Christmas!

Filed on under Legal Theory

MG Siegler, writing for TechCrunch, on Google’s fatal mistake with Android: making it open-source

Open. Open. Open. Open. Open. Open. Open. Open. Open.

Every chance they get, someone from Google brings this up as a huge advantage of Android over rivals like iOS. Never mind the fact that a good percentage of the time it’s pure marketing bullshit — why exactly isn’t Google Wallet on Google’s own Galaxy Nexus device? — even when it’s true, there are some very real downsides. The user experience angle has been debated ad nauseam. More interesting is what we’re seeing now. A downside for Google.

It’s an article that raises a lot of interesting points, and also the very stupid one that “Google is surprised that its open-source project is being used for other projects.” Even if Google has a silly definition of what it means to be open, that’s not really proof that the Kindle Fire is a failure of Android as a platform.

Filed on under The News

From Wired

In February, Super Bowl XLVI will be the first instance of the biggest game of the year to stream live over the web, via NFL.com and NBCSports.com. The game will also be available to stream on Verizon smartphones through the league’s wireless partner’s NFL Mobile app. (If you’re on another wireless carrier, you’re out of luck; Verizon’s got the exclusive.)

Awesome. Every day, we get a little bit closer to that glorious future when first-run TV happens on the internet, instead of just pirated first-run TV happening on the internet. Don’t get me wrong, I’m thankful for Netflix Instant and Hulu and South Park Studios and all that other good stuff.

Filed on under The News