Kelly and I just purchased Iron & Wine’s Passing Afternoon. Why? It was featured at the end of House M.D.’s season finale. I Google’d the lyrics, took the artist and song information and confirmed I had the right song by watching/listening to the YouTube video. The last step was actually purchasing: I checked iTunes, but their copy wasn’t restriction-free, so I headed over to Amazon. Bingo! No restrictions, $9 (for the whole album) heading Amazon’s way.

Granted, I’m also not the typical music consumer, but Kelly is. More and more, the songs she buys she discovers through commercials and TV/movie soundtracks. There are still songs that Kelly buys because she heard it on the radio, but even that’s XM, not FM. She may not care about the intricacies of why DRM is evil, but she does get annoyed when it’s hard to share music with her husband or sister. Fortunately, iTunes has made it easy to find restriction-free tracks. If iTunes doesn’t have it restriction-free, there’s a good chance Amazon will.

Questions to ponder:

• Does “advertising jingle” still carry the same stigma for musicians?
• As a follow-on, are all ads created equal? That is, is an advertising jingle always a jingle, or are there some ads that transcend crass marketing?
• How should independent musicians (and I’m not talking about the few with mainstream success, the “Death Cab for Cutie”s of the world) tackle this brave new world of distribution? What’s the best way to address the issue of piracy, especially if DRM is a dead end?
• Will record companies continue to use DRM, or will the DRM-free market develop into a strong enough force to bring them around?

The “Digital Millenium Copyright Act (DMCA)”:http://en.wikipedia.org/wiki/DMCA, a favorite in Congress, makes it illegal to circumvent encryption schemes, even if the end goal is perfectly legal. Switchfoot is helping their fans break United States law and circumvent measures their label has put into place to prevent piracy. And I applaud them for it.

The Wikipedia has a good article on the controversy around “Section 103′s anti-circumvention provisions”:http://en.wikipedia.org/wiki/DMCA_anti-circumvention, but I’ll attempt to distill my complaints against the law down to a few sentences. The Supreme Court established fair use in the case Sony Corp v. Universal City Studios. I can already see your eyes glossing over, but stay with me here because if the Supreme Court hadn’t ruled in favor of fair use, you wouldn’t have a VCR. You see, the movie studios at the time were outraged that folks like you and I could use a VCR to make copies of their movies, so they tried to sue the VCR out of existence.

So what is fair use? It basically means that we can ignore copyrights as long as the copies we’re making aren’t:

# going to make us any money
# on a large scale
# isn’t going to deprive the copyright holder of signifigant chunks of money

Music fans everywhere enjoy fair use when they make (for my parents’ generation) mixed tapes or (my generation) rip mixed CDs. And that brings us back to Switchfoot and the DMCA.

You see, the DMCA makes it illegal for you to make those mixed tapes if the record label has some sort of encryption scheme on the albums. Even though the end goal is clearly legal under fair use, you’d have to break a law to get to the end goal. And that really sucks.

DMCA is badly in need of revision–Section 103 needs to be overhauled to account for fair use or dropped entirely. But until that happens, the only avenue left to protest is a time-honored tradition in American history: civil disobedience. I, for one, salute Switchfoot’s attempt to assist their customers in breaking the law. That’s a start.

But the Christian music industry needs to begin waking up to the new opportunities in the age of digital music. Bands with a strong fan base like Switchfoot no longer need a label to get their music out to the fans, between sites like “CDBaby”:http://www.cdbaby.com/ and the “iTunes Music Store”:http://www.itunes.com/ (with an 80% marketshare and a distribution deal with CDBaby). Furthermore, Christian artists need to begin looking at the “Creative Commons”:http://www.creativecommons.org/ for copyrights that would maintain their rights as artists while allowing freedom of use for their fans.

Go read that if you want an easy, literary-based explanation of the problem. Stallman uses the example of Victor Hugo’s Les Miserables to explain, so if that tickles your fancy, don’t bother reading this post any further.

What I’d like to do is setup a similar analogy for the pharmaceutical world…

Dad and I have had a good number of conversations on this topic, since Eli Lilly tends to view patents very favorably. Patents are absolutely essential to the pharmaceutical industry–without them, there would be very little commercial production of medicine because there would be no financial incentive.

The problem is when patents begin to apply to ideas, rather than actual inventions. Used to be that patents were only applied to mechanical inventions, but with the emergence of software integrated into machinery in the past several decades, that distinction has vanished.

One of Eli Lilly’s best selling drugs is Prozac, or more specifically, the chemical compound known as Fluoxetine. Fluoxentine is part of a class of chemical compounds known as selective serotonin re-uptake inhibitors (SSRIs). SSRIs are all based on the same basic idea–prevent the brain from reclaiming serotonin. Serotonin is a nuerotransmitter that is generally lacking in cases of depression. By preventing the brain from reclaiming serotonin, the levels are raised back up, hopefully preventing depression.

The key here is that SSRIs are based on an idea, but you can only patent a specific chemical compound that implements that idea.

If pharma patents worked like software patents, the first company to create an SSRI could patent the *idea* of SSRIs, thus preventing any other company (including Lilly) from creating an SSRI. It wouldn’t matter if the SSRI created was an entirely different chemical compound from the original patented one; as long as it was still based on the same idea, the creator would probably need some good lawyers.

For folks used to traditional patents, the idea of patenting an idea may seem absurd (“but what about prior art?”, etc.), but that’s what happens in the software world. Part of the problem is lack of experience/knowledge on the part of the patent examiners–distinguishing between an algorithm (an idea) and two different implementations of that algorithm (i.e., the chemical compound of the coding world) requires quite a bit of programming knowledge. That’s just skimming the surface as to why horrible software patents slip through.

The reality is that they do slip through and thus we end up with patents for:

* Buying something online with a credit card
* The progress bar
* Multimedia
* Browser plugins

Entire companies are being created for the sole purpose of patenting some basic technology-related idea and then suing any software companies that might violate the patent. The startup funds go towards the lawsuits; under the current legal system, the potential damages and future licensing fees are lucrative enough to justify the initial investment. Even lawsuits based on patents which are later invalidated by the USPO can bankrupt smaller startup companies.

The looming threat to smaller startups should not be understated, as these startups are typically the engines of innovation in the American economy. They will be the Googles and eBays of tomorrow, and in a global economy, innovation is the chief advantage the American economy continues to hold over the rest of the world.

Here we go again–the entertainment industry is trying to strip away consumer rights so that they can make more money. Take note the groups aligned against the bill: consumer rights advocates *and* conservative lobbyists. My favorite quote, from Stacie Rumenap, deputy directory of the American Conservative Union: “It’s just plain wrong to make the Department of Justice Hollywood’s law firm.”

Duh.

“We were pleased to see that there is interest in the film (online),” the spokesman said. “At the same time, we work with the MPAA and our legal department to vigorously prosecute those who take our property and use (it) for their own purposes.”

–Miramax spokesperson

Translation: “Wow, it’s cool people like this (cha-ching!). Now we will hunt you down like the criminals you are.”

Oh the irony…

DVD Piracy Paranoia Proves Counterproductive

The interesting point this article raises at the very end is that the so-called “pirates” are actually those adherring to the free-market spirit. So how did this country get to the point where the government started opressing free market ventures and supporting monopolies and oligarchies?

On a side note, in thinking about free markets, I went down an interesting tangent of thought – in any economy, the goal is to make as much money as possible. Free market provides a level playing field and allows consumers to decide the winner.

On the other hand, the winner (ie, the company capturing the most market share) is inherently dangerous to the free market – monopolies exist to destroy free market, creating a market that they can have 100% control over. So free markets can give rise to their own destruction.

Granted, I’m not an economist, and I don’t think I’ve taken an economics class in high school, so I don’t understand any of this at all. I’m mostly thinking out loud, so if someone more knowledgeable wants to correct me, go right ahead.

I’ll summarize. During a hearing, Senator Orrin Hatch asked a witness, “Can you destroy their set in their home?” referring to a PC.

The witness, an employee of a company that helps record lables disrupt file sharing networks, replied saying that “nobody” was interested in that approach.

“I am,” replied Hatch, saying, “I’m interested in doing that. That may be the only way you can teach someone about copyright… That would be the ultimate way of making sure” no more copyright is infringed.

That was on Tuesday. On Wednesday someone discovered that the Senator’s web site (http://hatch.senate.gov) used code created by a U,K. company, Milonic Solutions. Milonic Solutions charges for the right to obtain a license, but Hatch’s site had the following comment in place of the license:

“i am the license for the menu (duh).”

So under Hatch’s proposed “solution”, Milonic Solutions would be able to legally (under U.S. law) destroy a U.S. government web site server.

Absolutely positively brilliant.

For those interested in poking deeper, here are the links. Follow them, come to your own conclusions, but please take action based on those conclusions.

What Started It All

• Laurence Lessig’s blog entry (be sure to read the comments)

Parties Involved

• Robert Half International
• Darby & Darby
• Dan and Tryna Fitzpatrick’s temporary staffing web site

Others Contacted by Darby & Darby

• Virtual Gal Friday, Virtual Office Services, along with the original complaint and the judgement
• The Star Wars Collectors Archive

Background Information

• A Wall Street article on similar actions, including the one taken against The Star Wars Collector Archive
• Jurisdiction and web sites

Contact Information

Dan and Tryna Fitzpatrick *
321-733-1700
info@virtualassistantjobs.com

Darby & Darby
Attorney Robert S. Weisbein
rweisbein@darbylaw.com
Weisbein’s Phone: 212-527-7715
Office Phone: 212-527-7700
Fax: 212-753-6237

Case Number: 03 CV 3086
Reference Number: 6565/62895

Robert Half International
OFFICETEAM
2884 Sand Hill Road, Suite 200
Menlo Park, CA 94025
Phone: 650-234-6000
Fax: 650-854-9735
Chairman, President and CEO: Harold Messmer, Jr.

A parting word: as noted in the Wall Street Journal, trademarks (well, any kind of intellectual property law) are tricky business. A company that knows of infringement and does nothing loses any rights to protection. Companies have the right to defend their intellectual property, but for crying out loud, use some common sense. At least have the decency to send a cease and desist letter.

*From the comments on Lessig’s blog entry, “please, I invite anyone to check the facts of the case!” Tryna (or perhaps Dan) goes on to write that they “would be happy to provide anyone with the information that they need so that you can see that our motives are true.”

Take that music industry. Your best customers are those “pirates” out there on Kazaa, Morpheus, LimeWire, and other networks – yeah, the ones you’re trying to sue, harass, and otherwise alienate.

Way to go.

If you’d just get out there with a viable service (a la Apple’s iTunes Music Store) and a decent price (something signifigantly less than purchasing a physical CD), you’d see that money start rolling in.

Now how the heck does someone patent DNA? I repsect Dr. Marco Marra for the position he takes, and applaud his choice to forgo personal glory and uphold personal ethics. I gotta think that the only entity with the right to patent a pre-existing DNA sequence would be God the Creator. Or Father Time, if you are an Atheist.

Regardless, no human should be allowed to patent a pre-existing DNA sequence. Things get more interesting when you start talking about gene splicing, recombinant DNA, and other techniques that create brand new sequences. But that’s not the case here, with the SARS virus.