Thursday, September 20, 2012

Some Suggestions For the Times

If it seems like I am critical of the NYtimes, please note that this is because I bear deep affection for that organization, and hope for the best. I know that the entire newspaper industry is in crisis, and I'd rather see venerated and important organizations like the NYTimes make the transition to the digital world (largely) intact, rather than watching them collapse and hoping someone else fills the void.

That having been said, I am very much of the opinion that a simple paywall is not going to get them the money they need to continue to operate, and I'm also of the opinion that online ad revenue will not fill this gap. So, as a result, they need to start selling services that actually represent value above and beyond the basic delivery of news. Additionally, as seen below in other posts, I think that their slow creep towards interest pieces and magazine style focus pieces is really detrimental to their mission. However, that is neither here nor there. Fundamentally, here is a list of things I'd be willing to actually pay a monthly fee for, rather than pay for simple access to news:

1. Access to the writers room. I'd be willing to pay a subscription fee if it meant I can post questions to articles that somewhat reliably get responses from the authors of the various articles. To be specific, I don't need my own questions responded to, but, using a reddit-style upvote system to bring the most common questions to the top would suffice.

2. Access to the op-ed page. The same as above. Individual editorialists vary on their responsivity to the community - both Paul Krugman and David Brooks have published and responded to letters I sent to them - but this should be formally instituted with priority access given to paying customers.

3. Story suggestions. There are a lot of stories that get covered in my sphere of business, specifically, law and technology, that simply are not touched on by the NYTimes. It would be great to have an upvote system where users could submit and vote on stories, and the top ten on any given week would be seriously considered for coverage by the news staff.

4. Sponsored forum events. Everybody loves an AMA, and I know many people would pay good money for the chance to do a livechat, once a week, with a chosen editorialist, writer, or guest.

5. Customized paper delivery. Here's what I'm not willing to pay for: the same printed newspaper received by hundreds of thousands of people that is basically the same content I can get online. What I will pay for is a twenty page, computer assembled newspaper delivered to me daily that has stories that are relevant to me. Thinking this through, many, many people would be willing to pay for this service, which, though clearly technologically tricky to execute, is not infeasible, and would become something of a status symbol very quickly.

6. Ad-free online browsing. I simply do not understand online services that charge you for access but still force ads onto your screen even behind the paywall (I'm looking at you, Hulu). If I was guaranteed ad-free newspaper browsing, not having stories chopped up onto 8 pages, and not having a two inch news column surrounded by 8 inches of ads, I would be far, far more willing to pay for online access. As it stands now, however, I have absolutely no incentive whatsoever to pay twice - once in cash, and once with my eyeballs - for a relatively fungible experience.

The theme across all these suggestions, it should be noted, is acknowledgment that I myself am a human being with my own interests and that I want to interact with the paper, not just read it. The the above features go beyond the mere delivery of news and recognize these two facts. What is certain, however, is that by simply insisting on paywalls for news delivery, the NYTimes will find that it is beating on dead horse.

Monday, September 17, 2012

Uncritical Reporting of Thiel Fellowships in NYTimes

Update: This post was put on Techdirt as of 9.20.12.

 Yesterday, the New York Times had a headline article about Thiel Fellowships.
The program is very interesting, and I was hoping to garner some insight into its success.

However, I was left severely disappointed at the lack of any critical examination of the program, which is still quite controversial. The whole piece read like a PR blast. For instance:

1. The program encourages high achieving indidivuals to skip college in exchange for $100,000 over two years of fellowship grant, plus access to Thiel's network. While many projects discussed in the article were interesting, there was virtually no information about the sustainability of any of these projects or whether or the fellows had achieved any academic success - such as publications - or business success.

2. The article entirely omitted any examination of the fact that Thiel himself has an undergraduate degree from Stanford and a law degree from the same -- this was relegated to a parenthetical. Surely some examination into this seeming contradiction is merited.

3. Similarly, the article totally failed to examine the fact that, at best, this program can really only be successful in a narrow slice of fields -- computer software being the largest. For applied sciences generally, however, and especially engineering and medicine, you simply cannot be an autodidact and a viable career candidate - I'm not allowing someone without an MD to replace my hip, and I'm certainly not allowing someone without engineering qualifications to design my hospital. Too many professional organizations, professional licenses and research areas require formal schooling for this model to be scalable in our most key STEM disciplines. And yes, clearly some fellows are studying applied engineering, such as solar cells, or going into biotech, but there was no critical examination in this article, whatsoever, of whether it is feasible to be an autodidact in these fields which typically require years of graduate level tutelage, even for students well into the genius range. For instance, there was a story about a fellow who was studying gerontology and having great difficulty raising funds - is this, perhaps, because serious VC is not willing to give funding to someone in this field who does not have an MD or equivalent bio degree? I know when raising money for tech startups, VCs frown upon so-called "non-technical" founders - I'd be very surprised if this was not also the case in biotech and electrical engineering.

4. A huge part of Thiel's argument, from what I gathered, is that the network he introduces his fellows to is a large part of the importance of the program. This article seems to be ignoring the fact that, for the vast majority of us, including Thiel himself, these networks are actually formed at institutions of higher learning.

5. The biggest indicator, I think, of the laziness of this article is that the lede is about a student who left Princeton to become a Thiel Fellow, and the "cost" of Princeton was not even the primary factor in this decision. I should certainly say so. Choosing a Princeton student is an exceptionally poor example, as Princeton is renowned for having possibly the best financial aid department of elite American schools, excepting the military academies. Princeton was the first school to completely eliminate student loans as of 2001, and they give extremely generous aid packages. So, from the very get-go the author's credibility was sincerely lessened in my eyes. Additionally, the statement that this article is being written "[a]t a time when the value of a college degree is being called into question..." is highly cynical and glib. What is being questioned is whether colleges are teaching the right things
and whether the current college model is appropriate for all students, or if more alternative forms of higher learning need to be explored. What absolutely no one questions is that college degree holders outperform college dropouts, high school graduates, and especially high school dropouts across a wide spectrum of important metrics, including not only lifetime income, but health and divorce rates. This American Life has an interesting and tangentially related piece on the lasting impact of education on young people this week. Fundamentally, the debate is not whether higher education is unnecessary, it is about how higher education can more fundamentally meet the needs of different types of learners and address growth fields in the economy.

So, New York Times, I'd love to see you take a second shot at this. I'm deeply interested in alternative education methods, however, this article was entirely uncritical. It was a fluff piece that, somehow, made the A1 Sunday Headline online -- which baffles me.

Instead of merely talking about how fantastic the fellows are (I'm sure they are), how exciting the program is (I'm sure it is), or what a fascinating iconoclast Mr. Thiel is (this goes without saying), let's see some critical examination of this program. It has been going on long enough that we should be able to see some verifiable data, comparing fellows' progress to the peers they left behind in school, or, if nothing else, some success stories about gainful employment, fundraising, papers publishing, products brought to market, etc. Instead, this seems like a retweet of corporate PR.

Friday, September 14, 2012

The Trademarkability of Red Soles

A recent decision came down, wherein Louboutin was allowed to keep its trademark on red soled shoes. I think this is a very poor decision, and misunderstands the basic point of trademark law.

Copyright law and patent law (whether or not you agree with their efficacy, overall) are at least explicitly designed to protect creators and their business interests. However, trademark law differs in that its primary purpose is consumer protection: trademark exists to allow for product marking so that consumers can be confident about the origins of products and all their attendant considerations, ranging from quality of product to the reputability of the company supplying said product. For instance, you want to know that the batteries in your remote control won't explode, and if you see the label "duracell" or "energizer" on the battery, you can be reasonably sure that there is a responsible company behind their manufacture. 

However, the consumer is actively harmed by the court's grant of the exclusive right to make shoes with red soles to Louboutin. Not only is it unlikely that the sort of consumers who are going to spend that type of money on shoes are likely to unintentionally buy knockoffs -- we can all reasonably expect that Nordstroms is not stocking its shelves with counterfeit goods -- but when these consumers do buy knockoffs, they know quite well they are doing, and it is an intentional act. However, that is beside the central point, which is the fact that now, if someone who cannot afford to buy a red-soled pump from Louboutin wants to buy a red-soled pump from a competing manufacturer, the competing manufacturer would be committing trademark infringement by supplying said shoe. Which is ridiculous in my eyes. So, as a result, this trademark decision simply favors those with disposable income over those who may be fashion conscious but not made of money, and I simply cannot see any conceivable counterbalancing consumer protection concern.

Here's a simple test when buying luxury brands:

1. While you are holding the item you are purchasing, look around you.
2. Are you standing in a store, the name of which you recognize? Then it is real.
3. Are you standing behind a van or in front of a folding table on the street? Then it is fake.

Trademark protection over color choices in functional design elements is simply unnecessary for brand protection or consumer protection in the world of high fashion. There are plenty other ways to identify fashion brands, such as logos and tags, that accomplish brand identification perfectly well, without having the negative externality of limiting fashion choices for all but the very wealthy. Let me be very clear: I do not believe that competitors should have the right to claim that their own knockoffs are Louboutins - but I don't see a reason why Steve Madden shouldn't be able to make red-soled pumps under his own label as well. Personally, I'd also argue that this is a functional design element, and therefore ineligible for trademark protection as a matter of law - but that is another matter for another post.  

Thursday, September 13, 2012

Fair Use, Gotye and Star Wars

FYI, this is a repost of a post I wrote on my company blog.
Back in August of 2011, my girlfriend sent me a link to a charming music video that had just dropped.  

Within the next year, this video received several hundred million views, and propelled two young artists -- Gotye and Kimbra -- to international fame. Clearly, this was a huge win for them, and I'm sure this video generated tons of additional ticket, album and t-shirt sales, despite the fact that they probably made peanuts from the video itself. This video was a loss leader, driving traffic to paid services, while itself representing a largely sunk cost.

The video became a cultural phenomenon. And, as the saying goes, the sincerest form of flattery is imitation. Not surprisingly, some extremely well done remakes were created, which also received millions of views on YouTube. For instance, here is the talented band "Walk off the Earth" performing the song on a single guitar being played by five people. 

It’s pretty awesome, and has received more than 133 million views as of this pub date, making it one of the most successful YouTube videos of all time.

Here is a version of the song reworked about Star Wars, a video that I personally find to be even more moving than the original (Han shot first.) 

I'm sure many people my age agree, and it’s already reached nearly five million views.

You can react two ways to the creation of these videos: the first is to recognize that they are flattering forms of tribute and bring attention, and therefore additional opportunities for revenue to the original video itself. The second is to send DMCA (Digital Millenium Copyright Act) takedown notices to YouTube claiming that these videos infringe the copyrights of the& original artists.

Luckily, it appears that Gotye and Kimbra are perfectly happy to take the first approach, and, collectively, we should thank them for that. Technically, they would be within their rights to send takedown notices because these are clearly derivative works within the meaning of Title 17, the US Copyright code. An example of an artist taking the second

path is illustrated by the now notorious Lenz case wherein the Artist Formerly Known and Now Again Known as Prince sent YouTube a DMCA takedown for a video in which a child was dancing and, in the background, a Prince song was playing. Years of litigation and substantial cost was incurred, resulting in the court determination that a rights holder must consider fair use before sending a takedown notice.

The problem, however, is that very often, such considerations are just not made. Automated systems generate DMCA takedown notices and send them out en masse, but fair use determinations, by definition, need to be made by human beings using their reasonable judgment.

Now, there is a strong argument that both of the above videos are, in fact, fair use. However, the way that our copyright system is set up requires that YouTube would need to take down the videos upon notice from the original rightsholder, as fair use is a so-called "affirmative defense." This means that in order to make a claim of fair use, you need to hire a lawyer to write a response letter, and the default judgment is heavily in favor of the original rightsholder.

As a result, we have a system in which the first person to put up a new video on YouTube has the de facto right to send DMCA takedown notices to any imitators, even if there is no demonstrable harm caused to the original artist by the publication of the imitations. In other words, the fair use exception is a check built into copyright law out of respect to the fact that certain types of re-use and commentary on copyrighted works are necessary for society due of free speech considerations, and also, there is no actual harm done to the artists by the imitation of their works. Yet, because of the DMCA takedown process instituted in 1998, the default system now actively harms imitators, who need to have lawyers on retainer to send response notices to YouTube in order to have their own videos put back up. Personally, given that I'm of the opinion that most great art includes a remix of one kind or another, I'm not happy that our copyright system is predicated on the idea that imitation is harmful.

Because, honestly, I like the Star Wars version of the song better.