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Back in April, we noted that some NY state politicians were trying to put in place a rather sneaky legal change that effectively would force Amazon to collect sales tax in New York, despite not having a physical presence there. The "trick" was to claim that if you had any affiliates in the state, you had a local presence. Affiliates, of course, can be nothing more than an advertiser. So, based on this change of law, effectively anyone who has an advertiser in NY is considered to have a local presence there and must collect sales tax. Both Amazon.com and Overstock have sued over this law, and Overstock has even gone so far as to cut off all NY affiliates in response (showing how the law probably hurts NYers a lot more than it helps them).

Saul Hansell, over at the NY Times, picked up on an odd fact, however. Just weeks after this passed, a separate bill was introduced to repeal it. Yet, that bill appeared to have no sponsor, but the state Senate actually voted and approved it. After some digging, Hansell got an explanation: saying that the original bill was part of a larger bill that was approved, but many felt that they wanted to address just this specific issue. Of course, it appears that the state senators' interest is not matched by the corresponding state assembly (who would also need to pass such a bill). Over there, they'd just as soon leave the matter as is, and let the courts (and taxpayers) sort it out.

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Ray Beckerman, as you may already know, is a lawyer in New York who not only has defended numerous people against RIAA lawsuits, but also runs the Recording Industry vs. The People blog, where he chronicles what's going on in these cases. While I believe he sometimes pushes the envelope too far in his claims about what the RIAA is doing, there's no denying that he's been a tremendous force in shining some much needed light on some of the RIAA's more questionable activities, while also helping those who are severely outgunned in various lawsuits.

As numerous folks have sent in, Beckerman has now also written up something of a primer for judges in The Judge's Journal, a publication of the American Bar Association targeted at judges. It basically explains the many problems with the way the RIAA conducts its lawsuits, noting how it often uses questionable means, weak evidence and general bullying tactics in filing its cases. It also relies on the fact that it comes off as more credible than an individual (often defending themselves -- sometimes in jurisdictions far from home). Beckerman highlights all of the problems with the way the RIAA runs its cases, and makes a series of quite reasonable suggestions for judges in how to handle such cases should they show up in court. It's a good guide, that also highlights many of the underhanded tactics that the RIAA uses in filing its cases. It's well worth a read if you haven't seen it elsewhere.

If I have one complaint, it's the same one I leveled against John Duffy recently. While the article does mention Beckerman's website, it does not mention that he represents many clients against the RIAA (including in ongoing trials). That would appear to be something of a conflict of interest, in that he's making a bunch of suggestions for how judges should basically side with his arguments in those cases. I guess I'm learning that such "disclosures" are generally not considered necessary in the legal community.

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Ray Beckerman, as you may already know, is a lawyer in New York who not only has defended numerous people against RIAA lawsuits, but also runs the Recording Industry vs. The People blog, where he chronicles what's going on in these cases. While I believe he sometimes pushes the envelope too far in his claims about what the RIAA is doing, there's no denying that he's been a tremendous force in shining some much needed light on some of the RIAA's more questionable activities, while also helping those who are severely outgunned in various lawsuits.

As numerous folks have sent in, Beckerman has now also written up something of a primer for judges in The Judge's Journal, a publication of the American Bar Association targeted at judges. It basically explains the many problems with the way the RIAA conducts its lawsuits, noting how it often uses questionable means, weak evidence and general bullying tactics in filing its cases. It also relies on the fact that it comes off as more credible than an individual (often defending themselves -- sometimes in jurisdictions far from home). Beckerman highlights all of the problems with the way the RIAA runs its cases, and makes a series of quite reasonable suggestions for judges in how to handle such cases should they show up in court. It's a good guide, that also highlights many of the underhanded tactics that the RIAA uses in filing its cases. It's well worth a read if you haven't seen it elsewhere.

If I have one complaint, it's the same one I leveled against John Duffy recently. While the article does mention Beckerman's website, it does not mention that he represents many clients against the RIAA (including in ongoing trials). That would appear to be something of a conflict of interest, in that he's making a bunch of suggestions for how judges should basically side with his arguments in those cases. I guess I'm learning that such "disclosures" are generally not considered necessary in the legal community.

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Yes, part of the business model for using free music to your advantage is recognizing how that free music acts as a promotional good for you, but the band BuckCherry seems to have taken that a bit too far. It definitely seemed quite suspicious when the band, signed to a major label, put out a press release about how angry they were that their latest music was leaked online. So, the good folks over at TorrentFreak did a little investigating, and tracked down the fact that whoever leaked the album just so happened to use the same exact IP address as the band's manager. Oops.

So, let's try this again. Using free music as a promotional tool can work wonders, but part of that is in publicly embracing the fact that your fans want to share your music. Not creating mock outrage about it.

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For as far back as I can remember, there have always been folks who insist that micropayments are the solution to the "free" content question. That is, they believe that the solution to "free" content is to set up a system where content can be accessed for such a low price that it's "close enough" to free and people don't mind. However, as Clay Shirky pointed out many years ago, it's not that easy at all. As soon as you add in some cost, even a small one, it creates mental transaction costs that go beyond the payment itself. Basically, just the fact that you need to think about whether or not it's worth it, creates a disincentive to consume that content. And, indeed, most micropayment schemes haven't gone very far. Last year, VC Josh Koppelman named this phenomenon "the penny gap" to explain how the "gap" in getting someone to go from $0 to $0.01 is much bigger than the gap from getting someone to go from $0.01 to $0.02 (in some ways, it's the same as the difference from going from 0 mph to 1 mph -- inertia is a powerful force).

However, Andrew Parker is questioning whether the real problem isn't an economics issue, but a usability issue. That is, if it were really easy to pay that $0.01, people wouldn't mind so much. In other words, a big part of that "mental transaction cost" that Shirky talks about is (according to Parker) the effort needed to establish that payment (a login, supplying payment info, etc.). As proof that this may be the case, Parker points to the early distribution numbers for the iPhone App Store which show more $0.99 apps sold than free apps downloaded. His point: since the iPhone makes it so easy to get an app and pay for it, the "penny gap" or the mental transaction costs really aren't that high.

This is a really good point -- and it is a testament to what a good job Apple did with the App Store to make it so seamless to the user. You absolutely can reduce the mental transaction costs, and that shrinks the penny gap significantly. However, I wouldn't be so quick to jump to the conclusion that micropayment solutions will become that big a deal. First off, these are only the initial results from App Store sales, when you're dealing with early adopters. I'll be interested to see if the results remain this way over a longer period of time.

Even more importantly, though, there may be other hidden costs that should deter certain publishers from focusing on micropayments. Mainly, you are driving away the ability of your users to share and promote your content for you. In other words, you're shutting off one of the best tools to get your app more widely used and recognized. So, even removing the transaction costs from the equation, going to a micropayment solution over a free one doesn't always make the most sense.

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For a little over a year, there have been stories about how the entertainment industry has been pressuring Congress to make universities responsible for stopping copyright infringement on their network. This got a lot of attention late last year when Congress tried to tie such a mandate to a provision granting financial aid to students. In other words, the threat was that if universities didn't act to stop file sharing, their students wouldn't be eligible for financial aid. This got plenty of attention, and the bill never passed. The most interesting part of it, though, was that much of the reasoning for the bill was driven by MPAA claims that 44% of all illegal file sharing took place on college campuses.

There was just one problem with that: the number was completely wrong. Earlier this year, the MPAA admitted that it had made a small mistake, and the number was actually something like 15% (and even that could be argued).

You might think that would allow our Congressional representatives to focus their attention on something a bit more important -- but with super low approval ratings, the people they actually represent matter a lot less than their biggest campaign donors. So, of course, the bill to turn universities into copyright cops is back once again. It is somewhat toned down, but will still require universities to basically be the mouthpieces of the entertainment industry, repeating their propaganda and ignoring that the problem is the industry's obsolete business models rather than any legal issue.

However, as you read William Patry's post on this above, you see that the MPAA is also positioning the legislative history on the law so that next year or so, they'll be able to come back and insist on mandatory filters at universities. Basically, it looks like the MPAA tried to bite off too big of a chunk when it pushed for this law last year, so this year, it's taking half a bite, but getting everything ready to get the rest of what it wants next year.

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Back in June, we noted how sad it was that we were all so happy that Garfield creator Jim Davis didn't freak out about the derivative comic strip "Garfield Minus Garfield." In this day and age, we're so used to creators sending out cease and desist letters and claiming "ownership" that it was refreshing to see a content creator actually happy about someone building (or, in this case, subtracting) off his work. This should be the norm -- but instead it's a unique thing. Witness the silly spat over who "owns" Flat Stanley, for example.

However, the Jim Davis/Garfield thing is getting even better. It appears that Davis' publisher, Ballantine Books, has worked out an agreement with the creator of Garfield Minus Garfield to publish a book of those strips as well, and they're doing it in conjunction with a 30th anniversary Garfield book. And, once again, Jim Davis seems thrilled about the whole thing:

"I think it's an inspired thing to do. I want to thank Dan for enabling me to see another side of Garfield. Some of the strips he chose were slappers: 'Oh, I could have left that out.' It would have been funnier."

I look forward to a day when the idea that someone being thrilled that they inspired someone else's creative works as a derivative of their own isn't newsworthy. In the meantime, kudos to Jim Davis, Ballantine... and, most importantly, Dan Walsh for his creativity in coming up with Garfield Minus Garfield in the first place.

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For a while now, we've been covering the lawsuits surrounding "AutoAdmit." If you haven't been paying attention, AutoAdmit is a message board system used by law school students, many of whom apparently used it to be what, at best, might be called juvenile jerks. For example, there were certain threads insulting various female law students (in incredibly crude terms), which those students insisted cost them jobs. This point is rather difficult to prove -- because there are many reasons why the women might not have been able to get jobs, and any firm that won't hire someone because of juvenile messages on a message board probably isn't worth working for (also, a few months back, someone sent us some evidence that one of the women actually had gotten a job at a law firm, despite her complaints of not being able to).

However, since we're dealing with a bunch of law students and lawyers, it wasn't long before the lawsuits began flying. First, the women filed lawsuits against the message board, various anonymous posters and an administrator of the message board. Of course, the administrator pointed out (correctly) that he's clearly protected, and eventually he was dropped from the lawsuit -- but not before he lost his job. So, of course, he sued back for the wrongfully targeted lawsuit against him. Quite a mess.

Wired News is running an update on the case, where it reveals that one of the anonymous law students who made the juvenile comments has now been identified to the women filing the lawsuit, meaning that he won't be anonymous much longer. This is a bit surprising, since we've seen a series of lawsuits lately that US courts believe it's important to protect anonymity, even in cases where the content in question is "unquestionably offensive and demeaning."

However, what's more interesting, is the rest of the article from Wired, where it explores the "Pandora's Box" this case has opened up concerning a bunch of issues involving free speech, anonymity and the limits of both. And, of course, since we have a bunch of lawyers involved, there's one downright scary suggestion: create a DMCA-like law that allows someone to demand a takedown of content they find defamatory. If you thought false DMCA takedowns were a bit much, can you imagine how many such defamation takedown's would be sent on a regular basis? As we've seen time and time again, many people (falsely) assume that any content they don't like is defamatory, and already send cease-and-desist letters at the drop of a hat. If you added a notice-and-takedown provision, this would be abused to no end.

But, in the end, as the article notes, it's unclear what good any of this has done. The lawsuit is wasting a lot of people's times, and is doing a lot more to harm various reputations than the original thread ever really did. Yes, it was offensive, demeaning, juvenile and idiotic to some extent. But, opting to file a lawsuit almost seems guaranteed to make the situation a lot worse -- and, frankly, seems to do a lot more damage to the law students suing, than any random obviously childish thread on an open message board would ever do.

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Various safe harbors for service providers that protect them from the actions of their users make a lot of common sense. It's simply wrong to blame a service provider for the actions of its users. We don't blame the telephone company when someone commits a crime using the phone. And we don't blame the car company for providing the getaway car. Nor do we ask those companies to do anything to block those actions. That's because we all realize how silly that is -- to blame a tool provider for the actions of its users. Yet, for some reason, when we move online, that concept gets confused. While most of the focus has been on safe harbors concerning copyright or defamation, when you toss in a bit of "but think of the children!" it gets even more ridiculous.

We've already seen this with US politicians bullying ISPs into blocking "objectionable" content, even though they have no legal basis for this (and, in fact, such blocking will only make it more difficult to track down those actually responsible). And, now we see it in the UK. UK MPs are claiming that Google needs to vet all of the content uploaded to YouTube "to protect children from harmful content." Seriously.

I guess it's only in the techie community that we recognize that the phrase "to protect the children" is almost always followed by a plan that does the opposite.

The politicians seem concerned that occasionally, questionable content is found on YouTube, and it might take them (gasp!) 24 hours to take it down. Apparently it has not occurred to those behind this demand that perhaps they should be focused on using the content being uploaded to track down those actually responsible for the objectionable (illegal?) content, rather than demanding that Google proactively hide the evidence. Next up, we'll be expecting the report where politicians demand that telephone companies "proactively" review all telephone calls to make sure there is no objectionable content "to protect children."

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Various safe harbors for service providers that protect them from the actions of their users make a lot of common sense. It's simply wrong to blame a service provider for the actions of its users. We don't blame the telephone company when someone commits a crime using the phone. And we don't blame the car company for providing the getaway car. Nor do we ask those companies to do anything to block those actions. That's because we all realize how silly that is -- to blame a tool provider for the actions of its users. Yet, for some reason, when we move online, that concept gets confused. While most of the focus has been on safe harbors concerning copyright or defamation, when you toss in a bit of "but think of the children!" it gets even more ridiculous.

We've already seen this with US politicians bullying ISPs into blocking "objectionable" content, even though they have no legal basis for this (and, in fact, such blocking will only make it more difficult to track down those actually responsible). And, now we see it in the UK. UK MPs are claiming that Google needs to vet all of the content uploaded to YouTube "to protect children from harmful content." Seriously.

I guess it's only in the techie community that we recognize that the phrase "to protect the children" is almost always followed by a plan that does the opposite.

The politicians seem concerned that occasionally, questionable content is found on YouTube, and it might take them (gasp!) 24 hours to take it down. Apparently it has not occurred to those behind this demand that perhaps they should be focused on using the content being uploaded to track down those actually responsible for the objectionable (illegal?) content, rather than demanding that Google proactively hide the evidence. Next up, we'll be expecting the report where politicians demand that telephone companies "proactively" review all telephone calls to make sure there is no objectionable content "to protect children."

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