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A day late, but I value a good, spirited conversation, so I hope this makes its way to you…

I wasn’t advocating “infinite protection” merely posing it as something that, by your prior statement, seemingly has no effect on “someone else creating something and sharing it [presumably by their own free will].”

You seemed to state (I don’t mean to mis-state your intent) that if someone didn’t share content then it doesn’t really matter (“boo f*cking hoo”) because someone else would not be effected and would continue to create something else (new) and share it.

I guess I don’t agree that “re-mixing and compounding” is truly the basis of new creativity and is in fact a bogus side-effect of an actual lack of creativity masked by easily accessible tools to churn out such pablum.

The best evidence of the positive effect on creativity as a result of strong copyright protection is the incredible wealth of content created over the last 100 years — a wealth of content that is being misappropriated by today’s “re-mix and compound” culture that simply does not want to properly license the works that they seek to compound.

I understand (though I don’t agree with) the contention that limiting copyright length “would spur creation more than anything else.” I just don’t see any evidence for this. Why is it imperative that the “same people” continue to be creative? If everything becomes simply re-mixing and compounding (apologies for begging the question) where is the “actual new content” that would allow for further re-mixing (assuming that is the epitome of the creation you are advocating)?

The facts at hand show that creativity has been its greatest during the time of strongest protections. We can argue “limited,” but 14 years just seems arbitrary and unfair to content creators who will be the only ones to lose in that scenario. And for what?

I worry that the disdain for “the man” (i.e. corporations) clouds reasoned thought on this matter. Creators should have the right to enter freely and willingly into contracts with corporations to further their success and strong copyright is the mechanism that creates lasting value over which to contract for.

Anywho, gotta log off, but cheers for the healthy exchange

about 24 hours ago on 'Free speech doesn't mean free stuff': Congress begins copyright reform with a plea for civility

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NOOOOOOOOOOOOOO!

I want a SMALLER iPhone, like a 3" display that I can tether an iPad, laptop or smart watch to.

2¢

2 days ago on If Apple made a 4.5 inch iPhone...

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I think you mean “magical tax evasion.”

2 days ago on Senate probe accuses Apple of avoiding billions of dollars in taxes with offshore havens 1 reply 20 recommends

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Well that settles that ;)

4 days ago on 'Free speech doesn't mean free stuff': Congress begins copyright reform with a plea for civility

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What do you mean, “nope?”

Unless you were trying to say “how many of those people had previously bought a copy of the song and later ‘downloaded’ an arguably ‘legal back-up’ from a torrent instead of having never bought a copy and simply ’downloaded it instead of buying it,” then, yes, “all of [them] downloaded it instead of buying it.”

4 days ago on 'Free speech doesn't mean free stuff': Congress begins copyright reform with a plea for civility 1 reply

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And if they don’t share it, boo f*cking hoo. Someone else will create something and share it.

If this is true, then why do you have a problem with content creators protecting their works infinitely? If those works are protected infinitely — i.e. “not shared” — and regardless, someone else will create something and “choose” to share it, why are you so intent on depriving individuals who choose to protect their creations? By your own logic, the protection of works indefinitely spurs more creation than limiting copyright does, as limiting would not induce “someone else to create something” and merely encourage them to “recycle” pre-existing creativity…

5 days ago on 'Free speech doesn't mean free stuff': Congress begins copyright reform with a plea for civility 1 reply

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Thank you HL, I gave up writing a comment with a similar bent. There is nothing to contract for if the rights are not protected for extended periods of time.

What exactly is so wrong with licensing copyrighted material for inclusion into non-fair-use derivative works? It boggles my mind…

And how devoid of creativity have we become where the inability to copy and “re-mix” works somehow results in the inability to create new content? Black is white, up is down… and it all just seems like everybody are whiny cheapskates who can afford internet access, but not rewarding those who create content that is appreciated.

5 days ago on 'Free speech doesn't mean free stuff': Congress begins copyright reform with a plea for civility 1 reply 1 recommend

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How many of those people downloaded it instead of buying it?

All of them?

5 days ago on 'Free speech doesn't mean free stuff': Congress begins copyright reform with a plea for civility 1 reply

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The pricing of non-N4 handsets are not “inflated,” they are “retail.” The N4 is basically sold at “wholesale” direct from the “middleman” (e.g. Google Play Store) so there is no “brick-and-mortar” retailer to take the retail-portion of the price to cover costs of operations.

When Samsung or Apple make an “unlocked sale” at $650 through their own stores/websites, they are simply capturing both the wholesale profits and the retail profits. When Samsung or Apple sell inventory to a retailer (BestBuy, carrier shop, etc…) they sell at wholesale prices, and only see the wholesale profits, leaving the retail profit to the retailer (and leaving it up to them to take any haircut on the actual sale price by discounting).

That retail price is “subsidized” by the retailer or carrier by selling the handset at a discount below retail which is recouped in the cost of service over the lifetime of a contract.

Just a point of reference: Conventional cost-to-wholesale-to-retail markup is about 2.2×. Thus, if something costs $100 to make, it would wholesale for $220 and retail for $484. The wholesaler (likely the manufacturer in electronics) would see $120 profit after covering the cost to build but before accounting for amortized development costs, and the retailer would see $264 (before any discounting). Actual retail net profit all depends on what is left after covering costs of operating their business.

7 days ago on Google turns the Samsung Galaxy S4 into a Nexus phone, coming June 26th for $649 1 recommend

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The proof that conspicuous consumption is a player in ownership is in the fact that it gets discussed in examples like these ones. If it is as small a factor as some say, than I wonder why it gets brought up at all?

Do you buy Apple products because they are new and cool?
Posted by Tylers86 on May 15, 2013 01:26 am

I’m not sure how your positing a question is proof that such questions get brought up by anyone other than yourself…

7 days ago on Do you buy Apple products because they are new and cool? 1 recommend

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Apple is already “guilty?”

I guess there is no need for a trial on the merits then…

7 days ago on US DoJ calls Apple's ebook antitrust defense 'unconvincing,' presents Steve Jobs email as evidence

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“You’re storing it wrong.”

19 days ago on Samsung says microSD slot makes up for Galaxy S4's storage shortcomings 26 recommends

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But an iPhone 4S is $549 off-contract already and had an estimated build cost of $195 nearly 2 years ago (one has to imagine that that is closer to $150 today with economies of scale and the more commodity nature of once high-end components).

Putting aside development costs now long recovered, that is between $356-400 in profit being split in some manner between Apple and the Carrier. That exact handset, in a refreshed poly-case, could be sold with $150 profit margins for Apple alone, ordered direct from Apple for $300. And that still includes the extra cost of finely finished glass and steel construction. I bet a polycarb cased version could likely be produced for $100-125 per handset and sold direct for $200-250.

I am not saying that I think that is what Apple should do necessarily, but I think it is exactly what they should do if they wanted to crush the low/mid Android market, go for both marketshare and halo-status and still retain healthy profit margins.

Cheers

19 days ago on The US Tech Press and readers just don't get the point of the "low cost" iPhone

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I might also add that, taken to the extreme, Apple could actually decimate low/mid-end Android sales by producing an “extremely-low-priced” handset, say something that costs $50-100 to make and sell it direct, contract-free for $150-200. It could basically be the guts of a 4S with a “retina/5-aspect” display (lower quality like the older iPod touch?) in a “new” polycarb body.

The key selling point, as most people claim, is that it would be iOS and have access to the App Store.

They could make a killing if they went totally vertical for the low and mid end and left the high end to the carrier-subsidized sales model. I’d still rather buy subsidized, high-end $800 phones for $300 so ATT would have no problem, and they still will be getting the same monthly profits on plans from the new “low cost iPhone” users who “bring their own.”

19 days ago on The US Tech Press and readers just don't get the point of the "low cost" iPhone 1 reply

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We might be “talking past each other.” Whether Google or LG is taking the $100-150 profit (that N4 costs somewhere between $150-200 to make) isn’t the point.

Apple sells at “third-party retail” prices in their own stores. Sales at Apple stores make Apple more money than sales at BestBuy or Carrier Shops because they obviously sell stock to them at “wholesale prices” at which point the Carrier or BestBuy retain the retail markup (whatever that may be).

Apple cannot undercut those partners with existing iPhones, however a “direct from Apple” handset targeting the lower-end could be sold through Apple “at the wholesale cost” severely undercutting the competition who have not undertaken the arduous task of opening and maintaining Apple’s enormous retail footprint.

They would, like Google does through Play, be selling effectively a retail-priced $500-600 handset for under $300 simply by not entering into sales agreements with those third-parties that limit Apple’s ability to lower prices.

19 days ago on The US Tech Press and readers just don't get the point of the "low cost" iPhone

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I guess the better question is, “why does Apple care what their stock price is if they continue making money hand over fist, even if they didn’t ‘grow’ their marketshare 1% more, ever?” If they could stay at the current level of global interest in their high-end devices, they could continue to make 10’s of Billions in net profit every year, remain one of the most lucrative business in existence, and only “stock speculators” and people gambling on retirement investment would lose.

Think of it this way… if they were a private company, we wouldn’t be having this conversation, yet they would still be one of the most successful companies that ever existed.

This stock market obsession doesn’t make any sense…

19 days ago on The US Tech Press and readers just don't get the point of the "low cost" iPhone 2 recommends

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I actually think Apple “pulling a Nexus” would be the answer… but I don’t think most people understand what that really means.

The N4 isn’t priced the way it is because they don’t want to get stuck with unsold stock, it is priced so low because Google “cut out the middleman” (e.g. the retailer and the accompanying markup). Apple operates one of the largest retail networks, but in order to not undercut their third-party retail partners (carriers and BestBuy for example) they sell at “retail cost” in Apple Stores.

Apple could intro the mythical “polycarb” iPhone, it could cost $100-150 to manufacture and they could sell it “exclusively direct from apple.com/Apple stores” for $200-300 no contract as a BYOP handset. They would not be screwing their retail partners, they could give “Apple-quality support” through their own retail network (supposedly a problem with Nexus products) and at $100-150 profit per handset, they would be seeing healthy profits and they would not directly compete with higher-end Apple handsets sold by themselves or others.

Problem solved :)

19 days ago on The US Tech Press and readers just don't get the point of the "low cost" iPhone 1 reply 1 recommend

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Remixes are generally considered “parodies” legally

I think that is a dangerously vague generalization regarding “remixes as parodies.” It really turns on the “four factor test”:

Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn’t depend on whether you give credit to the source from which you copied. Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in section 107 of the Copyright Act. Those factors are:

The purpose and character of the use of copyrighted work
Transformative quality – Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way?
Commercial or noncommercial – Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes.
The nature of the copyrighted work
A particular use is more likely to be considered fair when the copied work is factual rather than creative.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its “heart,” may weigh against fair use. But “how much is too much” depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.2
The effect of the use upon the potential market for or value of the copyrighted work
This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair.

Here is a nice summary from Stanford re: parody cases:

Parody Cases

Fair use. The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song “Pretty Woman” (“Oh, pretty woman, walking down the street”). The rest of the lyrics and the music were different. Important factors: The group’s use was transformative and borrowed only a small portion of the original song. The 2 Live Crew version was essentially a different piece of music; the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher, who did not want “Pretty Woman” used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

Fair use. The composers of the song “When Sunny Gets Blue” claimed that their song was infringed by “When Sonny Sniffs Glue,” a 29-second parody that altered the original lyric line and borrowed six bars of the song. A court determined this parody was excused as a fair use. Important factors: Only 29 seconds of music were borrowed (not the complete song). (Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).) (Note: As a general rule, parodying more than a few lines of a song lyric is unlikely to be excused as a fair use. Performers such as Weird Al Yankovic, who earn a living by humorously modifying hit songs, seek permission of the songwriters before recording their parodies.)

Fair use. Comedians on the late-night television show Saturday Night Live parodied the song “I Love New York” using the words “I Love Sodom.” Only the words “I Love” and four musical notes were taken from the original work. Important factors: The Saturday Night Live version of the jingle did not compete with or detract from the original song. (Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741 (S.D. N.Y.), aff’d 632 F.2d 252 (2d Cir. 1980).)

Fair use. A movie company used a photo of a naked pregnant woman onto which it superimposed the head of actor Leslie Nielsen. The photo was a parody using similar lighting and body positioning of a famous photograph taken by Annie Leibovitz of the actress Demi Moore for the cover of Vanity Fair magazine. Important factors: The movie company’s use was transformative because it imitated the photographer’s style for comic effect or ridicule. (Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998).)

Not a fair use. An author mimicked the style of a Dr. Seuss book while retelling the facts of the O.J. Simpson murder trial in The Cat NOT in the Hat! A Parody by Dr. Juice. The Ninth Circuit Court of Appeals determined that the book was a satire, not a parody, because the book did not poke fun at or ridicule Dr. Seuss. Instead, it merely used the Dr. Seuss characters and style to tell the story of the murder. Important factors: The author’s work was nontransformative and commercial. (Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).)

Not a fair use. An artist created a cover for a New Yorker magazine that presented a humorous view of geography through the eyes of a New York City resident. A movie company later advertised their film Moscow on the Hudson using a similar piece of artwork with similar elements. The artist sued and a court ruled that the movie company’s poster was not a fair use. Important factors: Why is this case different than the previous case involving the Leslie Nielsen/Annie Leibovitz parody? In the Leibovitz case, the use was a true parody, characterized by a juxtaposition of imagery that actually commented on or criticized the original. The Moscow on the Hudson movie poster did not create a parody; it simply borrowed the New Yorker’s parody (the typical New York City resident’s geographical viewpoint that New York City is the center of the world). (Steinberg v. Columbia Pictures Industries, Inc., 663 F. Supp. 706 (S.D. N.Y. 1987).)

To be fair, I will gladly walk back my assertion that “fair use” is unrelated to “freedom of expression” and would better state it as “fair use is not primarily concerned with freedom of expression where that expression is intended purely to profit another individual” however it does concern itself with the stifling of expression where that would be contrary to public policy concerns.

As always, much appreciation for a good intellectual round-table :)

23 days ago on A legal victory for 'appropriation art' expands when artists can remix each others' work 1 reply 1 recommend

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I think it is an example of a couple of different ideas…

First off, it is an example of the “case-by-case” analysis of copyright infringement, which is something of a double-edged sword — it is good that cases are looked at individually so as to limit unfairness, but it is “bad” in that it never provides “bright-line” guidance for the courts to easily determine infringement. And, again, the courts are not monolithic in their decisions.

Now, secondly, a cover of a song in its entirety is more a question of violating the copyright of the composition (i.e. the publishing rights) rather than the mechanical rights related to sampling an existing recording. However, both are forms of use that would generally require compensation to the original rights holders — e.g. technically, performance of a cover song in a bar requires licensing the song from the appropriate rights organization (though this is often done by the venue owner and not the performer), just as sampling a portion of a record in a new recording requires licensing the music from the rights holder.

So, in the Glee example, the argument is that there is no change to the lyrics and scoring, only in the performance (the slow-love-style) and that was “ripped off” from Coulton(?) but did Coulton have the rights to the mix-a-lot song in the first place to make a claim that his interpretation was original? I am sure Glee paid licensing money to mix-a-lot.

2 live crew, if I remember correctly, changed lyrics, integrated the music into a new composition that while it referenced the “oldie” was not a “cover” per se and thus was found to be sufficiently different — and under “fair use” was a form of satire (I assume).

If that is a fair representation of those facts, then it makes a bit of sense how those were decided.

In this case, is photoshoping a guitar on top of another’s photo more like a “cover” or is it more like “satire?” I don’t pretend to know…

23 days ago on A legal victory for 'appropriation art' expands when artists can remix each others' work 1 reply