News:  David Brooks has a fun look at “The Alpha Geeks” in an op-ed in the NYT.  Here’s a cool passage:

“The jock can shine on the football field, but the geeks can display their supple sensibilities and well-modulated emotions on their Facebook pages, blogs, text messages and Twitter feeds. Now there are armies of designers, researchers, media mavens and other cultural producers with a talent for whimsical self-mockery, arcane social references and late-night analysis.

“They can visit eclectic sites like Kottke.org and Cool Hunting, experiment with fonts, admire Stewart Brand and Lawrence Lessig and join social-networking communities with ironical names. They’ve created a new definition of what it means to be cool, a definition that leaves out the talents of the jocks, the M.B.A.-types and the less educated.”

News:  Seeqpod is a search engine that locates music files on the Internet and allows you to play whatever you find on a music player that appears on the Seeqpod page.  The music is not stored on Seeqpod, as I understand it, but on third party sites that are identified in the search engine.

Warner Brothers Music has sued Seeqpod for copyright infringement.  Seeqpod will be invoking one of the safe harbors under the DMCA for search tools.  Ars Technica has an excellent discussion, as does EFF’s Fred von Lohmann.

Analysis:  I’ll have more to say after I read the complaint.

I’ve been meaning to blog about this video clip of Google CEO Eric Schmidt’s take on Web 3.0.  It’s a fascinating explanation and prediction of the next phase of the Internet.  His explanation is so good, I’d rather let you just listen to the explanation rather than attempt to paraphrase it.  You can tell this guy has a Ph.D.

We’re probably not yet there at Web 3.0, but the possibilities seem fast approaching.  We’ve barely had time to digest Web 2.0, but here’s a video with a good explanation of the history behind the term Web 2.0.

In my legal scholarship, I try to analyze complications created by new technologies for existing paradigms of law, usually in the area of intellectual property.  Right now, I’m continuing my exploration of how Web 2.0 affects our copyright laws.  Hopefully, I’ll have a draft soon to share online.

News: The General Counsel of NBC Universal Rick Cotton has stated that NBC supports the ability of users to reuse and remix copyrighted shows. As I reported last week, NBC already allows free download copies of many of its shows on its website. When you couple this free dissemination of NBC copies online with Rick Cotton’s statements, it appears that NBC has bought into the mashup/remix culture of user-generated content that relies upon preexisting copyrighted works.

Here are some of Cotton’s statements:

“They can choose to download commercial free episodes of our TV shows or watch free, streaming, ad-supported programs on our websites. We’ve offered fans material from “Battlestar Galactica” and “The Office” to create mashups. And we expect to expand those offerings both on our websites and on Hulu.com.”

“But, looking forward, one of the exciting characteristics of the new, digital world is that technology will allow us greater flexibility to respond to consumer desires.”

“It bears repeating that short-form mashups, parodies and the like are NOT the primary focus of content owners’ anti-piracy activities. Let’s be clear that sympathy for parodies and “re-interpretations” should not be used as a justification for inaction in addressing aggressively the wholesale trafficking in complete, unchanged copies of movies and TV programs. Having said that, most major content owners today want to see fans fully engage with their favorite content and are working hard to provide legitimate ways to do that.”

Full article

Analysis: NBC Universal should be applauded for its stance on remixes and mashups, as well as for allowing free downloading of many of its shows online. If I take Cotton’s statements at face value, he basically gives his blessing to noncommercial remixes of NBC’s copyrighted shows. I would not have expected this kind of position from a Hollywood studio.  But I hope NBC doesn’t scale back the free stuff and start selling all of its shows on iTunes (for more, see Mashable).

News: You know that the (copyright) times are changing when NBC is now allowing download copies of some of its most popular shows (instead of just watching them online). It’s part of “NBC Direct” (beta) and it’s all free. I’m assuming the free video downloads contain no DRM, but I haven’t verified that yet.

If you go to this menu, you’ll see that over 20 NBC shows are downloadable, including 30 Rock, Law & Order SVU, The Office, ER, and Heroes.

Analysis: The speed with which the video market is evolving is dizzying. Last year, I never would have expected NBC to allow free downloads of its shows. Presumably, by allowing the free downloads NBC has licensed at least a user to collect the episodes for personal use on her computer, if not also some other noncommercial re-uses. I don’t see a specific statement by NBC on terms of use, though.

The free downloading of NBC shows is also a little surprising, given the rather hard-line copyright position expressed by Rick Cotton in this NYT debate.  I wonder what the difference, as a practical matter, between NBC allowing copying of its free broadcast shows and third parties doing it on their own with their own devices for those very same shows.  If the market for free TV shows eventually adopts a free download practice, then the “piracy” rhetoric seems hollow.  (Movies are different since they are not usually free, either online or offline.)

News:  Flickr and The Library of Congress announced a joint project called “The Commons.”  It includes wonderful photographs from the 1930-40s and 1910s — for which there are “no known copyright restriction.”  Apparently that means in this case of the 1930s-1940s photographs they were taken for the US government and did not get copyrights (I’m guessing).  For the 1910 photographs taken by a news service, they are simply too old to be conceivably under copyright protection today.

This is a terrific idea (and I love the incredible photos), but the copyright description by Flickr and The Library of Congress is a little bit vague.  They don’t come out and say that you can freely copy and re-use the photos, at least not on my first reading of the site.  They simply encourage you to add tags to the photos.   

Analysis:  I would think the more common use that the public wants to make of these old photos, however, is copying and disseminating.  If there is “no known copyright restriction,” the Library of Congress should come out and say that it’s in the public domain, free for all to use and copy. 

The closest they come to stating that is a statement buried in their FAQ, which I’ve copied below:

Enjoying and Re-using Photos

Q: Can I reuse the photos the Library has made available on Flickr? What are the rights and permissions on these? Can I reproduce these pictures? 
A: Although the Library of Congress does not grant or deny permission to use photos, the Library knows of no copyright restrictions on the publication, distribution, or re-use of these photos. Privacy rights may apply.  For further information see the rights, see the Farm Security Administration/Office of War Information Collection color photographs rights information and the George Grantham Bain Collection rights information.

Q: Are higher resolution copies available?
A. Yes. Higher resolution TIFF versions of the photos are available through the Prints and Photographs online catalog. Example: Click on the ”Persistent URL” link in the data information for the photograph (the URL looks like “hdl.loc.gov/loc.pnp/fsac.1a35075″) and when the new catalog record displays, click on the picture for the larger images.

Q: How do I get copies of these pictures?
A: You can download and print copies of the pictures yourself.  Higher resolution TIFF files are available through the Prints & Photographs Online Catalog.  Alternatively, you can purchase copies through the Library of Congress Photoduplication Service.  For further information on purchasing copies, see the Reproductions information page on the Prints & Photographs Division Web site.

Magical. That’s the best word I could come up with to describe last weekend, which I spent with people from Mazda along with a handful of talented bloggers (Beatrice, Chris, John, Matt, Robert, Sarah, and Tony) in Monterey, California. The Mazda meet-up was hosted at the five-star Bernardus lodge, nestled in the scenic Carmel Valley.

I’ve been to Monterey plenty of times, having lived in the Bay Area for several wonderful years. But this visit to Monterey was like none other that I had before. Every minute was so unbelievably, pinch-me-is-this-real amazing. I knew things would be different when Mazda had a chauffeur waiting to pick up my sister and me from the airport. We were then whisked away in a new CX-7. After five hours of flying coach, the new leather seats felt — and, yes, smelled — so good.

From the moment we stepped foot on the grounds of the enchanting Bernardus Lodge, we were treated like VIP like you wouldn’t believe. (But who were we? We were just bloggers. I keep on asking that question.) A cheerful, fetching young concierge greeted us with glasses of wine. Then Melanie Froysaa, the Mazda rep behind the entire event–and one of the most warm and gracious people you’ll ever meet, greeted us, making sure to get us on time for our massages and spa treatment, all onsite. Let me just say, I now know the best way to cure the terrible feeling you get after sitting over five hours on a plane is to get an immediate massage. I felt like a new person. Rejuvenated.

I told my sister at that point, if the weekend ended then, it would have been a success. But the weekend didn’t end. It only got better and better. Unbelievably so. There were wine-tasting and bocce ball on the lawn, followed by an absolute feast prepared family-style for our group to partake on a long banquet table, sitting on the front lawn where the lodge hosts weddings, with the mountains overlooking in the background. The chef whipped up so many splendid dishes–caesar salad, mixed salad, grilled veggies, mozarella and tomatoes, prosciutto, lamb, chicken and couscous, halibut and snapper (both freshly caught)–I’m not sure I remember them all. But they all were so good. Heavenly.

Instead of babbling on about how great the weekend was, I’ve put together a short video above of some of the other highlights. If you like fast cars, you’re going to want to watch the end of this video. Trust me, that’s not me driving. Zoom. Zoom. Zoom.

News:  I’ve read over some of the negative comments posted by people on YouTube related to YouTube’s InVideo ad system.  Under the new system, YouTube will deploy ads that will pop-up at the bottom 20% of the video screen, lasting for several seconds.  If you click on the pop-up ad, you will be redirected to an internal ad video.  If you do nothing, the ad disappears.  Meanwhile, the original video you played will continue playing.  One thing to note:  the new InVideo ads will only be used on select “Partner” videos — the corporations and select users YouTube has deals with.

Some of the comments sent in to YouTube are filled with expletives, vitriol, and venom.  Here’s one thoughtful comment I read, though:  “‘OK by me. Someone has to pay the bills. Between users fees and advertising I prefer the latter.’ Yeah, but why does someone have to pay the bills with intrusive advertising now when they didn’t before? If YouTube originally had ads IN or BEFORE the videos, it would be just as unpopular as all the other video sites, and it would have never grown the massive user base that greedy baby boomer investors and marketers now salivate over. There is a reason young people latched on to YouTube…it offered something other than the “60% content and 40% marketing” formula that insults us from the television screen. Make no mistake- too much advertising and the real YouTube will soon be remembered as a historical curiousity; a good idea and an interesting phenomenon spoiled by greed. Don’t forget that we are here because we are tired of commercials. If YouTube doesn’t understand that or can’t support thier business in that way, then it’s time you guys found a new line of work.”

Analysis:  The comment has some force to it.  YouTube appealed to people because the videos were ad-free, and not filled with pre-roll ads so common on commercial sites.  I believe the commenter’s exactly right that people were/are tired of seeing commercials everywhere they go (except during the Super Bowl). 

But I’m not sure YouTube’s InVideo ads will ruin the original ethos of YouTube.  As I noted above, the majority of videos won’t have these ads.  One reason is for fear of copyright liability:  YouTube knows that inserting commercial ads into user videos that constitute copyright infringement will expose YouTube to a claim for vicarious liability, outside the DMCA safe harbor.  In other words, there are a bunch of unauthorized videos on YouTube posted by users.  YouTube can’t risk profiting from them with commercial ads because that would defeat any DMCA safe harbor defense for YouTube.

News:  YouTube’s own blog has a post asking people for feedback on the new internal pop-up ads within select partner videos on YouTube (discussion in the prior post below).  A number of the comments seem quite negative, as reported here.  Here’s one YouTuber’s video critique.

Analysis:  Personally, I like the internal ads, especially because, as I understand it, they will be deployed only on partner videos (and not the majority of videos on YouTube).  I don’t find the ads intrusive, and YouTube’s got to find a way to make money.  People can’t expect YouTube to offer everything for free to people, even free of any ads within videos.  The internal ads are much better than pre-roll ads that are so common on commercial sites.  If you watch television, you often see things scrolling on the bottom of the screen (like a news ticker) or watermarks at the corner of the screen.  I usually just ignore those things.   

News:  NYT has an article discussing this mashup video made by Guyz Nite about the Die Hard movies.  Guyz Nite is a “comic rock” group that tries to summarize the plots of the entire Die Hard movies in 4 minutes flat.  When FOX movie studio first saw the video, they sent YouTube a DMCA notice to have it taken down.  Well, afterwards, FOX had second thoughts and realized that the fan video was a great way to promote the upcoming Die Hard 4.  So FOX asked Guyz Nite to put the video back up, even paying the group and sending them some preview clips of Die Hard 4 to use. 

Analysis:  FOX made a wise decision.  User-generated content can often be great, free marketing. 

Book review: Andrew Keen has a book just out, provocatively titled, “The Cult of the Amateur: How Today’s Internet Is Killing Our Culture.” In the book, Keen launches into a tirade against YouTube, Wikipedia, the entire blogosphere, and all other user-generated or “amateur” content in our Web 2.0 world. Keen’s basic thesis is this: “[D]emocratization [on the Internet], despite its lofty idealization, is undermining truth, souring civic discourse, and belittling expertise, experience, and talent. … [I]t is threatening the very future of our cultural institutions” (15). Yes, according to Keen, YouTube is a big part of the problem.

Over the next few days, I’ll be reviewing this book. Today, let me begin with two points.

1. The rhetoric in the book. It’s filled with punchy writing and clever turns of phrase. The rhetoric is often fun to read, in part because it’s so over-the-top. But I think the rhetoric ultimately undermines Keen’s own message. Keen says he wants more detailed, reasoned professional analysis. But his own book sensationalizes stories and speaks with the same kind of overgeneralizations and rantings that Keen criticizes on amateur blogs. Keen is taking a contrarian view on Web 2.0, and because his book is being mass-marketed, he’s more likely to sell books if his position is more sensationalized or extreme.

2. Is Keen himself an amateur?: Keen decries the amateur and hails the professional expert as the source of “truth” (more on truth in a later post). But what kind of expert is Keen? From his own bio, he’s a Silicon Valley entrepreneur who once was a CEO of a dot com and who now is CEO of “afterTV LLC, a firm that helps marketers optimize their brand desirability in the post-TV consumer landscape.” Oh, and, of course, Keen has his own blog.

OK, so does that make Keen an expert in democracy, freedom of the press, journalism, the entertainment industry, the music industry, intellectual property, libel law, click fraud, identity theft, and child predators–topics all covered in his book? My point is not to attack Keen’s credentials, but to question his overall argument in his book–that “amateur” productions should be kept in check because they are ruining “our culture” (more on “our culture” later). If that were the rule, his book shouldn’t have been published at all.  The people at Doubleday should have edited out any bit of material for which Keen had no expertise.

Go here for details. Here are the list of approved movies you can spoof, some which give you the copyrighted clips to play around with and mash up. You have until May 21st, so get started!

Win $57,000 if you make the best commercial, determined by voters. You have until August 6. So far, there are only 132 entries, so you have a decent chance. More here.

You’ll be seeing more of these kinds of contests in the future. I wonder what advertising firms think.

News:  Finally, YouTube users can share in revenue for drawing viewers to YouTube, just like a corporate partner of YouTube.  But it’s only a select few, so far, including Lonelygirl15, LisaNova, renetto, HappySlip, smosh, and valsartdiary.  Here’s why they were selected, according to YouTube:  “Because they have built and sustained large, persistent audiences through the creation of engaging videos, their content has become attractive for advertisers, which has helped them earn the opportunity to participate on YouTube as a partner.”  (more here)  If you go to the Partners section, you can find a few more users who have been selected.

Analysis: I’m still waiting for my videos to take off.

I have just seen the coolest video interface ever made.  Once you scroll over, the video images scroll over with your mouse.  The look is similar to Windows Vista, only better.   You can find it on the Washington Post website, for a new feature called “On Being.”  Every Wednesday, the Post will interview people and post their videos discussing life; you can also add your own comment.  It’s meant to increase community, aka “social networking” in the Web 2.0 world.

News:  Google CEO Eric Schmidt gave a revealing interview/talk yesterday to industry and financial folks.  Schmidt tried to manage expectations on YouTube’s ability to earn money, saying:  “Looking at the traffic, user-generated video has tremendous interest. There is a large advertising opportunity to be built on that traffic. But an old joke in the Internet is that URL stands for Ubiquity first, Revenue Later.”

Schmidt also joked about some of the perceptions that Google is arrogant and plays hardball in negotiations:  “I’m sure we’re arrogant.  But I have learned that as part of being a player in the media industry, part of negotiations is that everything is leaked and you are sued to death.”

Meanwhile, Viacom CEO Philippe Dauman defended his company’s decision to break off negotiations with YouTube, but left open the possibility of securing a deal:  “We may do a deal with them someday on terms that meet our criteria or we may not.”  Dauman couldn’t resist taking a potshot at YouTube’s user-created content:  “People aren’t going to spend money for user-generated content like a cat going to the bathroom.” More here and here.

Analysis:  There’s a lot of posturing here by two heavyweights.  Dauman’s quote about the cat videos is funny, but you shouldn’t underestimate the appeal of user-created content.  In fact, the majority of YouTube’s most watched videos are from ordinary users creating their own videos.  I think a lot of the appeal about YouTube is that it doesn’t provide all the same stuff on TV.

News:  Jake Coyle has a provocative piece about “TV Networks Embrace YouTube Model,” which discusses how more TV networks are trying to incorporate videos created by their fans. According to Coyle, “VH1, currently airing the third season of ‘Web Junk 20,’ will next month premiere the Jack Black-produced ‘Acceptable TV,’ which attempts to fuse TV with the Web. In February, Nickelodeon debuted a two-hour programming block called ‘ME:TV,’ featuring contributions from 10-year-olds. TLC last week began a six-part documentary series, ‘My Life as a Child,’ where children were given cameras to videotape their lives.”

Current TV, which is shown by cable and satellite carriers in some 40 millions homes, utilized user-created content in “pods” even before YouTube.  On the Current TV site, you can upload your own videos and ads for the network.

Analysis: One day, we should expect to hear that one of the big networks — ABC, CBS, NBC, or Fox — has gone with some user-created content.  It’s a natural progression from reality TV, and, since the networks seem to be running out of original ideas, I think users can fill the creativity vaccuum facing the networks.

News:  NBA announced a deal with YouTube to deliver basketball highlights on YouTube.  Also, the NBA is holding a contest for people to send in their best basketball moves.   See the video below.  (Sorry, my best BBall moves would not make anyone’s highlight reel.)  Even more exciting, on the NBA’s own site, users can apparently create their own mashups of NBA basketball highlights on NBA Highlight Mixer, through which you can synch in music from the NBA library.  This is fantastic!  I wonder what Mark Cuban has to say now.

News: USAToday ran an article “Mashups add splice to movies,” which discusses how people are taking movie trailers (and apparently sometimes the movies themselves) released by the movie studios and re-editing them in their own provocative ways. Writes Janet Kornblum: “The Shining is a romantic comedy, Mary Poppins features an otherworldly nanny who frightens innocent children, and Apocalypto is Mel Gibson’s secretly anti-Semitic tirade. It’s also a Zach Braff coming-of-age film. And have you heard about the Titanic sequel?” Movie studio Fox Atomic even has its own website, which allows users to freely mashup movies in the Fox library.

Analysis: Mashups are very dicey under copyright law, no pun intended. Fair use is judged on a case-by-case basis, but it is somewhat risky to take parts of someone else’s copyrighted work and use it in your own (especially when most of the end product is just other people’s works). This past week, the RIAA even had DJ Drama arrested for an alleged criminal violation of the Georgia racketeering statute RICO for his unauthorized commercial use of copyrighted songs in his mixtapes (more here). But that’s a pretty extreme case involving an entire commercial business of making mixtapes. The mashup videos on YouTube probably don’t make their creators any money, and I doubt the mashups compete against or substitute for the originals in the minds of viewers. This may explain why Fox Atomic has already embraced the mashup for its movies.  And the USAToday article doesn’t report any movie studios that have, as of yet, complained.  It might be that the mashup movie trailers help to promote the original movies, at least in some cases.