Technology, Business & Cool Toys

My Razr’s screen just stopped working, putting me unexpectedly in the market for a new cell phone. I’m firmly on the Apple bandwagon, so the natural choice is an iPhone, But on the other hand, I’ve been less than impressed with the way Apple has treated people trying to extend the functionality of its phones, and I haven’t been paying close enough attention to the cell phone market to know if there are other phones of comparable quality that haven’t had the benefit of Apple’s Reality Distortion Field.

So: Is the iPhone worth the money? What other phones should I be considering? And if I do go with an iPhone should I wait for MacWorld to see what Uncle Steve might have up his sleeve?

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This is great:

Unfortunately, TechCrunch says that the video is being pulled from video sites because a photographer who owns a copyright to a photo featured in the video isn’t happy about it being used without permission. Michael Arrington is incensed about this, and argues that the photo is fair use.

Now, Tom is right that Arrington is wrong when he says that using the photo is fair use because it’s being used in a parody. Parody is a fair use defense for using the work being parodied. You can’t just incorporate any old work into a parody and claim fair use.

However, I think the fair use argument here is stronger than Tom suggests. If we take a look at our four factors, factor 4 clearly weighs in favor of fair use (including a low-resolution copy of the photo in a viral video isn’t going to undercut the market for selling the photo), factor 3 is perhaps slightly against fair use (the whole photo is used, but it’s a low-res version, and factor 2 seems pretty neutral.

That leaves the first factor, the extent to which the use is “transformative.” I honestly have no idea how courts would come down on this factor, but certainly it’s not crazy to argue that briefly displaying a photo in a video is fair use. I mean, there are lots of law professors willing to go to the matt for the idea that incorporating short video clips into a longer video is fair use. If that’s fair use, I don’t see how displaying a photo for 3 seconds is any different.

The bottom line, I think, is that we have no idea. The cost of litigating the question would be vastly more than the cost of creating either video or the photo, not to mention more than any possible profit either might make off of them. And as these issues get quietly settled instead of litigating, de jure copyright law drifts ever further away from de facto copyright law.

And Arrington is obviously right that as a policy matter, it’s stupid that copyright law interferes with this kind of creativity. It would be an unacceptable headache to clear the rights to every single image that one wanted to include in a video like that. On the other hand, it’s hard to see how requiring that the rights be cleared does anyone any good. Someone making an amateur video like that isn’t going to pay anybody royalties. He would just use a different image if someone said no. So the public gets a lower-quality viral video, and the photographer still gets nothing.

And I think Arrington is also right that people are going to just keep doing what’s reasonable regardless of what the law says, and at some point the law is going to have to catch up with practice. This certainly isn’t the sort of thing you could get changed in Congress by asking nicely. But on the other hand, professional photographers are going to have no more luck suppressing this sort of thing than the music industry has had combatting file sharing. And at some point it will become obvious that the law doesn’t reflect reality.

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Yesterday was “pretend to be a time traveler” day. I particularly like this suggestion, from the distopian future section:

Take some trinket with you (it can be anything really), hand it to some stranger, along with a phone number and say “In thirty years dial this number. You’ll know what to do after that.” Then slip away.

Time travel hypotheticals, along with teleportation, mindreading, and other such exploits are great for thought experiments involving rights theory in a classical liberal tradition. Two treatments of thought: In one, new abilities that create potential new types of conflicts or that upset existing institutions or rule arrangements are best left alone, dealt with by contract; if the old rules don’t cover ’em, it’s inconsistent with freedom to impose any new ones. In another, one takes a step back, more or less leaves things alone, but if conflicts arising in a certain area seem to be creating systemic problems with long-run consequences, try some new rules and institutional arrangements and see how it goes. Or eventually let settled and customary expectations evolve into the default rules. Rather like IP today. Or infanticide in past centuries. Fun to be had by all.

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Some of the best video on the Interne is Mr. Deity, a blasphemous but wickedly funny series of shorts about religion and politics. It started out as a independent viral video series, but was signed by Sony to promote their new Crackle video-sharing site last year. I was recently excited when they launched their second season; they’ve been releasing a new video every couple of weeks.

But if you click the link above, you’ll be hard pressed to find the latest video. It’s “Mr. Deity and the Voicemail,” Episode 3 of Season 2. It’s inexplicably #7 in the list of the dozen or so episodes released so far. Even more inexplicably, if you search on Google for “mr deity,” you’ll be hard pressed to find either the Crackle Mr. Deity link or a link to the latest episode. The top hit is the pre-Crackle Mr. Deity home page, which hasn’t been updated in month and gives you no hint that the second has started. The next link is a YouTube video of the first episode, with again no hint that a new season has started. Crackle finally makes an appearance in the third slot, but the Mr. Deity home page doesn’t appear on that search page and is way down the list of Google results on Crackle. Finally at #4, we get the unofficial fan blog, which actually gives you one-click access to the latest episode. And at the very bottom of the first page, we see that Digg has pointed to the latest episode. In other words, the only sites that give you ready access to the newest episode are sites not run by Sony or the Mr. Deity team.

The Yahoo results are even worse: Crackle didn’t even crack the top ten. To It’s credit, Microsoft’s Live Search actually does include the Mr. Deity Crackle page as its seventh result.

This is an amazing degree of incompetence. Sony has presumably invested a significant amount of money producing this content, to say nothing of creating their video-sharing website. Yet they can’t even get the official Mr. Deity page to show up on the first page of Google search results for “Mr. Deity.” Compare that to, say, our podcast, which is the top hit for “Tech Policy Weekly” without us having made any explicit efforts to improve our search engine ranking.

You shouldn’t even need SEO help to come up as the top search result for your own product’s name. But if for some reason you’re not coming up as the top result, it’s worth investing a bit of money in making that happen. Especially if the whole point of producing the product was to drive web traffic to your video-sharing site. By the same token, One I get to the Mr. Deity Crackle page, the latest episode should be at the top of the list and prominently marked so I can grab it without having to wade through a long, randomly-organized list of videos.

I really don’t get it. These companies are investing millions of dollars to build these sites, yet they seem unable to get even the most obvious details right. Any halfway competent consultant should be able to point out these problems and explain how to fix them. So why are they so broken?

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This from Mike Masnick is absolutely brutal:

[Universal Music CEO Doug] Morris is so clueless that he chooses the worst possible analogy to explain his position. Lots of entertainment industry execs have thrown up their hands and ignorantly stated that “you can’t make money from free.” That’s wrong, of course, but Morris takes it one step further up the ridiculous scale, with the following example: “If you had Coca-Cola coming through the faucet in your kitchen, how much would you be willing to pay for Coca-Cola? There you go. That’s what happened to the record business.” Hmm… and what is coming out of your faucet in your kitchen? That’s right… water. And how much are people willing to pay for water? That’s right, billions. In fact, it’s a larger market than (oops) recorded music. Can someone please explain how Morris keeps his job?

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The media business in general and punditry in particular are currently seeing an explosion of clever new ways to deliver content. One of the most intriguing is bloggingheads.tv, a “diavlog,” meaning a blog featuring videos of pairs of talking heads. For example, my friend Will Wilkinson had a fascinating discussion with BH.tv founder Robert Wright about libertarianism and what’s wrong with Ron Paul. (Incidentally, everything Will says about Paul is true, but he’s still head and shoulders above the other candidates)

What prompted me to plug them here, though (aside from the shameless hope that sucking up to them will land me an invitation to participate) is that they’ve recently had a significant technology upgrade. They ditched the irritating WMP-based format they had before and replaced it with a Flash-based video player. Meaning that at least Mac users can watch videos without having to install proprietary plugins. (Linux users might still be screwed). They’ve also introduced “dingalinks,” which are permalinks for video. Awesome.

But best of all, they’ve added a feature that lets you watch videos at 1.4 times normal speed. That means I can watch Bob and Will have 75 minutes of conversation in 54 minutes. It’s absolutely fantastic. The biggest flaw with video-based blogging is that it takes so long to watch videos. I can read faster than most people can talk, so it’s an incredibly wasteful way to consume punditry. However, it turns out that people are perfectly understandable speaking at 1.4 times their normal speed. So I saved 20 minutes at the cost of Will’s voice being slightly squeakier than normal.

They post interesting discussions from insightful people several times a week, so I encourage you to check them out.

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