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Chi-Chu Tschang’s article on Baidu illuminates how an unscrupulous search engine can exert a great deal of power once it attains dominance. Baidu has over 60% of the market in China, and can make or break an online business:

Salespeople working for Baidu drop sites from results to bully companies into buying sponsored links, say some who have been approached. Former clients say their rankings fall precipitously after they stop buying search-related ads from Baidu. At least one Baidu salesperson acknowledges they’re right. “The key is whether a company buys Baidu’s sponsored links,” says Zhong Hongjun, a salesman from a company that represents Baidu in the central city of Wuhan. “If they don’t, the search engine won’t find them. If they do, they’ll be in there.”

Some hope that consumers will punish Baidu for manipulating search results–a result that may mollify the concerns of Bracha and I in our article Federal Search Commission. It appears that Baidu is also getting into trouble for not managing its search results enough:

Peter Lu, managing partner at China IntelliConsulting . . . says Google’s traffic surged in November after the mainland’s largest TV network, CCTV, ran an exposé about a patient getting fleeced by an unlicensed hospital he found on Baidu. The report highlighted Baidu’s practice of mixing paid sponsored links from unlicensed hospitals and pharmaceutical companies with unpaid results. Baidu has since pulled all paid searches from unlicensed health-care companies, which the company said accounted for as much as 15% of revenue.

These events point to a new vacuum for search companies to occupy: safety certification where authorities fail to do this job. From StopBadWare to StopBadMedicine: it’s search engine as FDA.

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As thousands of law professors prepare to descend on San Diego this coming weekend for the annual meeting of the American Association of Law Schools (AALS), the lawprof blogosphere is again gurgling with advice for junior scholars.  Gordon Smith framed the conversation with a great post about scholarship from the point of view of someone who writes tenure review letters.  Dan Solove endorsed Gordon’s comments, and one in particular, as did Paul Caron - though Paul’s emphasis differed from Dan’s. 

I like most of Gordon’s points, but I differ in places.  Most important, as someone who has written my own share of letters recently (and read my share as well), it’s important to recognize out loud that tenure letters, like almost anything that academics write about the academy, reflect as much on the interests, ego, character, and background of the writer as they comment on the person and work under review.  As a Research Dean, I find myself giving lots of both formal and informal advice to junior colleagues, and necessarily what I say reflects my own tastes as well as my read of the academic environment.  Of course, law professors don’t have a monopoly on any of this;  wannabe law profs and appointments committees could learn a thing or two about attitude over at Rate Your Students, which Ann was generous enough to point me to below.  But junior scholars of any stripe need to walk a line between carving a scholarly identity on their own terms — and carving an identity on terms that are given by their seniors.

To the details, then; Gordon’s tips and some brief reactions: [Read more →]

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Here. Technically it is an “informal” rant to feel free to make yourself comfy before you read it.

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In a recent editorial in Nature entitled Towards responsible use of cognitive-enhancing drugs by the healthy, distinguished contributors have endorsed a “presumption that mentally competent adults should be able to engage in cognitive enhancement using drugs.” Against various Luddites who worry about the rat races such drug use could spark, the editorialists argue that cognitive enhancement is here to stay: “From assembly line workers to surgeons, many different kinds of employee may benefit from enhancement and want access to it, yet they may also need protection from the pressure to enhance.” Instead of the regulation encouraged by Francis Fukuyama, they would have us rely on robust professional standards to guide “appropriate prescribing of cognitive enhancers.”
[Read more →]

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Mira Burri-Nenova has just posted a working paper on SSRN: “User Created Content in Virtual Worlds and Cultural Diversity ”

User created content (UCC) has often been celebrated as a grassroots cultural revolution that as a genuine expression of creativity, localism and non-commercialism can arguably also cater for a sustainable culturally diverse environment. The present article puts these claims under scrutiny and in a more differentiated manner seeks to identify the value of UCC within digital game environments considering the constraints upon players and upon creative play that these impose. The article subsequently tests whether UCC in its dynamic sense of a creative and communicative process can be seen as a channel for the promotion of cultural diversity and if so, what the State should (and could) do about this.

It is a brilliant paper.  Burri-Nenova manages to synthesize the current thinking on user-generated content and virtual worlds in wide variety of fields.  She presents a wonderfully sophisticated analysis of the policy issues presented.

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The New York post has a short account of a burgeoning dispute about this entitled: September 11 Condom-Nation. Like most mass media stories about intellectual property, a lot of relevant detail is missing. Here is the entire article:

A German entrepreneur has taken bad taste to new heights - applying for a federal trademark to use the Freedom Tower to market a line of condoms.

The request now before the US Patent and Trademark Office has 9/11 families howling and the tower’s owner, the Port Authority, scrambling to block it.

“It boggles my mind as to how someone could use the name ‘Freedom Tower’ on a package of condoms,” fumed Jack Lynch, whose firefighter son, Michael, died at the World Trade Center on Sept. 11, 2001.

“I find it very offensive. The idea that anyone would use something associated with 9/11 to promote any product is upsetting. But to promote condoms, that goes a step beyond.”

The Munich-based marketer, Torsten Blueher, has an application to use the slogan “Freedom Tower Make Love Not War” on condom packaging. He also has applied separately to use the tower’s name on dozens of other products.

The feds have yet to issue a final determination on the request.

PA officials have already begun efforts to block Blueher’s trademark application.

A few minutes at the PTO database showed that Torsten Blueher applied an ITU application for “Freedom Tower: Make Love Not War” for condoms in 2006 (see application; serial number 77001337) and has received two extensions of time in which to actually use the mark so that registration can move forward. He has applied to register “Freedom Tower” for as a mark for a wide range of products and services besides condoms, including alcoholic beverages, coffee and tea, clothing, jewelry, and incredibly enough, providing bungee jumping facilities.

I assume the opposition will be based on 2(a) of the Lanham Act, which precludes registration of a mark which “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

I guess the appeal of the mark to Blueher is that “Freedom Tower” references a (wait for it) massive erection.

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Context here.

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Last Sunday’s New York Times juxtaposed two interesting and seemingly contradictory pieces on art, money, and modern culture.  The apparent decline of music for music’s sake is lamented, but few stand in the way of the evolution.  The loss of art for art’s sake is more stridently resisted.  These are similar but not identical issues; they receive very different treatments.

In “Songs From the Heart of a Marketing Plan,” pop music critic Jon Pareles laments the demise of music for music’s sake, as licensing deals move to the forefront of musicians’ concerns with getting paid:

And as music becomes a means to an end — pushing a separate product, whether it’s a concert ticket or a clothing line, a movie scene or a Web ad — a tectonic shift is under way. Record sales channeled the taste of the broad, volatile public into a performer’s paycheck. As music sales dwindle, licensers become a far more influential target audience. Unlike nonprofessional music fans who might immerse themselves in a song or album they love, music licensers want a track that’s attractive but not too distracting — just a tease, not a revelation.

It’s almost enough to make someone miss those former villains of philistinism, the recording companies. Labels had an interest in music that would hold listeners on its own terms; selling it was their meal ticket. Labels, and to some extent radio stations and music television, also had a stake in nurturing stars who would keep fans returning to find out what happened next, allowing their catalogs to be perennially rediscovered. By contrast, licensers have no interest beyond the immediate effect of a certain song, and can save money by dealing with unknowns.

Elsewhere in the art world, traditional intermediaries continue to exert more authority, though financial pressures are challenging their role, too.  In “Whose Rules Are These, Anyway?,” Jori Finkel wrote about the bashlash in the (fine) art world against museums that sell parts of their permanent collections in order to pay the bills and stay open — rather than to buy additional works, as has been the traditional understanding.

The sale of artwork from a museum’s permanent collection, known as deaccessioning, is not illegal in the United States, provided that any terms accompanying the original donation of artwork are respected. In Europe, by contrast, many museums are state-financed and prevented by national law from deaccessioning.

But under the code of ethics of the American Association of Museums, the proceeds should be “used only for the acquisition, preservation, protection or care of collections.” The code of the Association of Art Museum Directors is even stricter, specifying that funds should not be used “for purposes other than acquisitions of works of art for the collection.”

Donn Zaretsky, a New York lawyer who specializes in art cases, has sympathized with the National Academy at theartlawblog.blogspot.com, asking why a museum can sell art to buy more art but not to cover overhead costs or a much-needed education center. “Why should we automatically assume that buying art always justifies a deaccessioning, but that no other use of proceeds — no matter how important to an institution’s mission — ever can?” he wrote.

Michael O’Hare, a cultural policy professor at the University of California, Berkeley, who has also broached the issue on samefacts.com, said in a telephone interview, “I see no reason for strict rules about deaccessioning, other than telling the truth to the public and not selling to international trafficking mafias.

“The National Academy is absolutely within their right to say, ‘We’re going to go broke or we’re going to sell off two paintings, what do you think?’ ”

Even Patty Gerstenblith, a law professor at DePaul University in Chicago known for her strong stance on protecting cultural patrimony, said her position had softened over the years. “If it’s really a life-or-death situation, if it’s a choice between selling a Rauschenberg and keeping the museum doors open, I think there’s some justification for selling the painting,” she said.

But several directors drew a much harder line, noting that museums get tax-deductible donations of art and cash to safeguard art collections for the public. Selling off any holdings for profit would thus betray that trust, they say, not to mention rob a community of art, so no exceptions for financial hardships should be allowed.

Dan Monroe, a board member of the directors’ group and the director of the Peabody Essex Museum in Salem, Mass., said that almost any museum can claim financial hardship, especially now that endowments are suffering. “It’s wrong to look at the situation from the standpoint of a single institution,” he said. “You have to look at what would happen if every institution went this route.

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Here is one example entitled “Israeli Air Force Strikes Terror Targets in Gaza 29 Dec. 2008″:

The YouTube channel maintained by the Israel Defense Force Spokesperson’s Unit is here. Text there explains:

The IDF Spokesperson’s Unit is the Israel Defense Forces’ professional body responsible for media and public relations in Israel and around the world. This is our new site that will help us do so.

We were saddened on Dec. 30, 2008 when YouTube took down some of our exclusive footage showing the IDF’s operational success in operation Cast Lead against Hamas extremists in the Gaza Strip. Fortunately, due to blogger and viewer support, YouTube has returned the footage they removed.

Newest update: Instead of removing the footage youtube has restricted viewing ability. We are in the process of opening up a blog so that you will be able to view the videos without problem there.

We thank you for visiting us and will continue to update this site.

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No, not this kind! Instead:

Hamster Paper Shredder

“An energetic hamster is powering an environmentally-friendly paper shredder by running on his wheel. And he’s certainly got his work cut out for him - as he has to run flat out for 45 minutes to shred one sheet of A4 paper. Happily, he is able to enjoy the fruits of his labor as the paper falls onto the base of his cage, providing fresh bedding for the exhausted pet.”

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If you like aleatory music, you’ll love the new iPhone app RjDj:

The application includes a set of entrancing songs that go on forever, using the iPhone’s internal microphone to ‘listen’ to the noises and voices heard in your proximity to dynamically create music.

I earlier blogged about this type of unexpected fixation of sound in the context of overheard conversations; I wonder if this raises any new copyright issues. It’s certainly more transformative than “Overheard in New York.”

The RjDj app reminds me a bit of Thich Nhat Hanh’s advice to approach both “garbage and flowers” with equanimity. It promises to turn even the most annoying loudmouth on the sidewalk into an instrument in an electronica symphony. I’m hoping it will be more popular than bubble wrap and less. . . er. . . edifying apps.

Sample song below the fold . . . .
[Read more →]

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As the $700 billion bailout for banks falters, the US needs to be very careful about future investment programs. Though I’ve endorsed a broadband stimulus proposed by Yochai Benkler, there should be at least some window of opportunity for consumer groups and others to make demands of telcos in exchange for the money. For example, as Randall Stross wonders, what exactly is the profit margin on text messages?

Text messaging is a wonderful business to be in: about 2.5 trillion messages will have been sent from cellphones worldwide this year. . . . [T]ext messages are not just tiny; they are also free riders, tucked into what’s called a control channel, space reserved for operation of the wireless network. . . . The public assumes that the wireless carriers’ costs are far higher than they actually are, and profit margins are concealed by a heavy curtain. Senator Herb Kohl, Democrat of Wisconsin and the chairman of the Senate antitrust subcommittee, wanted to look behind the curtain [and has been stonewalled].

Srinivasan Keshav, a professor of computer science at the University of Waterloo, in Ontario, said: “Messages are small. Even though a trillion seems like a lot to carry, it isn’t.” Keshav, whose academic research received financial support from one of the four major American carriers, discovered just how secretive the carriers are when it comes to this business. Two years ago, when he requested information from his sponsor about its network operations in the past so that his students could study a real-world text-messaging network, he was turned down. He said the company liaison told him, “Even our own researchers are not permitted to see that data.”

Admittedly, cross-subsidization can be a good thing. If the text windfall is subsidizing rural or inner-city broadband, I might be happy to see it. But we deserve to know the full details of the inner workings of the telcos–especially if they want investment in a broadband rollout. Sadly, the FCC has done a terrible job making even its own inner workings transparent.

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At Ad Broad. Here’s an excerpt:

My life as a Mad Man began as a lark. On August 26, just after AMC lawyers changed their minds about closing down Mad Men twitter accounts (persuaded in part by bloggers and journalists who couldn’t believe AMC would toss away a brilliant promotional idea that did not cost them a cent) I went on Twitter to see which character was still available, and signed up @francine_hanson. I found a nice photo of her on the AMC website and started to tweet, trying to engage @betty_draper. But she wouldn’t tweet back. Instead, she sent me a nasty direct message. So I went back on twitter and registered @bettydraper; now I had a Betty to play with.

Naively, I believed at that point the Twitter Mad Men were connected with AMC, that we were in some sort of “playoff” for jobs as twitter-writers for the show. Surely no one would do this for free, I thought, as days went by and I realized how much, how VERY much time it took to properly twitter a character (the reading! the rewatching shows! the historical research into what was around in 1962 and what was not!)

By the time I learned that what I’d signed up for was a volunteer effort⎯I was too hooked to quit. There is a thrill that comes with taking on another persona, interacting with the world as someone else, especially if that someone is as complex and interesting⎯ and as sexy and glam⎯as Matthew

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Format wars buried two victims this year:  instant photographs, and VHS videotape.  Curiously, the demise of Polaroid and instant photography is accompanied by poignant farewells in The New York Times, for example, while in the pages of the Los Angeles Times, for example, just about no one is shedding tears over videotape.   

Why the difference?  Why the elegies for some analog formats and “good riddance” to others?  Why has vinyl gone from a cult-ish post-CD afterlife to a full-blown revival?

There is a connection (or there are connections) between the answer(s) to those questions and the puzzles of copyright law, but I’m not sure what the connection is.  I’ve always thought that “digital changes everything” was technologically over-determined as a framework for understanding the direction that copyright law should take.  Analog formats won’t go away – large numbers of people don’t want them to.  But format isn’t irrelevant, either.

Hmmm.

Technorati Tags: polaroid, vhs, instant photography

Yesterday’s NFL game between the Pittsburgh Steelers (31) and the Cleveland Browns (0) prompted one of the Pittsburgh Post-Gazette’s sportswriters to note that the Browns’ quarterback narrowly missed a Blutarsky.  The QB, one Bruce Gradkowski, achieved a passer rating — a measure of the player’s efficiency — of 2.8.  If you’re not an NFL fan, that’s an atrocious number.  

It’s not as atrocious as a 0.0, the lowest possible score, which is apparently called a Blutarsky.  The name remembers the legendary academic performance of John Belushi’s character John “Bluto” Blutarsky in Animal House. 

Exactly how that connection was made may be lost to history (is it?), but it leads me to wonder: 

Are there other sports or cultural distinctions that have been similarly honored with names of fictional characters? 

One similar example is the Mendoza Line, usually defined as a Major League Baseball batting average of .200.  Position players who are hitting below .200 are at risk of losing their major league roster spot.  The Wikipedia entry for Mendoza Line reports that the name was bestowed by George Brett, in honor of the former major leaguer Mario Mendoza.  But Mario Mendoza was a real guy. 

A second example is the Oscar, the informal (but now trademarked) name of the statue awarded by the Academy of Motion Pictures Arts and Sciences in recognition of achievement in filmmaking.  The exact origins of the name are a bit misty.  But all of the stories link the name to someone named “Oscar,” who was a real guy.

“Blutarsky” for passer rating, however, is a remix or a cultural quotation involving a fictional hero (or anti-hero).  Intellectual property policy and theory implications to the side (I’ll leave those to others), surely, there must be others.

And stop calling me Shirley.

Technorati Tags: blutarsky, mendoza line, oscar

This year, part of our family’s annual orgy of holiday film-going included Marley & Me. I usually make a point of sitting all the way through the closing credits, and that’s a good thing, too, because it took me almost two hours to notice something worth blogging about the movie.

The song “Happy Birthday to You” appears in the film, but it appears to me that the producers did not clear the rights to publicly perform it.  The closing credits include a long list of songs used in the movie. The producers cleared the rights to the vast majority of those (the credit includes “used with permission of” references, or something equivalent).

For “Happy Birthday to You,” however, the credit includes an authorship line (written by Patty Smith Hill and Mildred J. Hill, or the reverse, or something equivalent), but no “used by permission of” credit. To me, that indicates that the producers did not clear the rights to the song. Why is this notable? Because the conventional wisdom has it that “Happy Birthday to You” is still protected by American copyright law, because the owners of that copyright have collected a lot of money in recent years by licensing its public performance, and because movie producers and their insurance carriers are notoriously (though often rationally) risk-averse when it comes to using copyrighted material in commercial films.

The first, obvious question here is whether I should trust my eyes. If you saw Marley & Me, and if you’re a copyright maven and therefore scanning the credits for copyright references, did I read the screen correctly? The second question is also straightforward: Is my inference regarding clearance of rights for “Happy Birthday to You” a correct one?

If the answers to both questions are “yes,” then what is going on? Is this a situation where Bob Brauneis’s recent paper, questioning in the in-copyright status of Happy Birthday to You, is having a real world impact? The paper is on SSRN here; the appendices and related information are here. Or is this something else?

As I finished this post, it occurred to me that I couldn’t recall whether the song is performed in the finished cut of the film (this tips my hand regarding the content of my review, if I were to write one), even though there is a birthday scene, and even though the song was performed in at least one filmed version of it. (Maybe I can trust my eyes, but not my ears, or at least my short-term memory.)  It would not surprise me to learn that the industry clears rights only for works that appear in the finished film, but it would also not surprise me to learn that rights for works that are performed by the actors (and/or that are part of the working script), as opposed to those that are added to the soundtrack later, are cleared in advance.

Updated Dec. 30, 2008:  Today, this happened a second time.  In Milk (a vastly better film than Marley & Me, in every respect), “Happy Birthday to You” is performed, and the songwriters are noted at the end of the credits.  But again there is no “courtesy of” or “licensed from” or any acknowledgement of permission sought and received.  Am I reading too much into the credits, or is there something in the air?

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Via Andrew Sullivan, the the long-awaited explanation of that classic A-ha video:

Which reminds me of Howard Jones’s Everlasting Love, the most visually literal video I can remember….

PS: There’s a law prof competing for Sullivan’s prestigious Hewitt award–be sure to vote!

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