September 07, 2008

Now blogging at

I can no longer sustain blogging in so many places, so I'll be addressing media business models and intellectual property issues (among many other things) on, my main blog, from here on out.

Feel free to cruise through the "back issues" of this blog, especially when doing research into IP law and the entertainment industry's too-slow transition to its digital future.

September 7, 2008 at 10:43 PM | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 29, 2008

Progress in on-demand programming

By Kelly Kilpatrick

With the tremendous growth of the capabilities of the internet over the last decade, companies have scrambled to meet the demands of customers who want what they want, when they want it. Searching for content has become easier, and companies are losing their shirts to webmasters who rip their movies and television shows and post them up on the web without permission. 

On-demand programming has been around for several years, but the content available has not always been what people were looking for. A few years ago, on-demand was limited to old television and shorts for free; everything else had to be paid for at a price that cost more than renting a movie at the video store. This is all beginning to change.

The newest thing in on-demand programming has shows available after they debut on television. AMC, for instance, has made their award-winning show Mad Men available the very next day on Time-Warner On-Demand. This ensures that viewers still get to see the newest show without having to work their schedule around television programming.

Of course, this is the way of the future—or one of them anyway. On-demand shows are still sponsored through advertising dollars, but companies are now given the exclusive rights to sponsor a show. Mad Men, for example, is typically sponsored by one brand per episode, with one interruption in the program. Rather than recording the program with a DVR or TiVo, viewers can save space and simply watch the program with one brief commercial break whenever they’re ready to do so.

Naturally, what follows is creating an interface with which subscribers can view the programming they pay dearly for each month on their other digital devices, something that has been in the works for a long time. However, the ramifications and ripple effect this will have on the future of creative content are mind-boggling, to say the least. 

For now, on-demand programming is continuing to serve more customers as the selection expands and customers learn about what is available. Although it may not always be the go-to medium for viewers at home, it is adjusting to the needs of a market that is in constant flux.

This post was contributed by Kelly Kilpatrick, who writes on the subject of Verizon ISP. She invites your feedback at kellykilpatrick24 at gmail dot com.

August 29, 2008 at 06:23 PM in Television | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 26, 2008

Movie studios in 'last-ditch effort to save DRM'

TechCrunch: Movie Labels To Launch New “Open Market” Play Anywhere Scheme As Last Ditch Effort To Save DRM.

August 26, 2008 at 11:21 PM in DRM | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 24, 2008

'Fixing' fair use

Kevin Smith at Duke University Libraries: "Fixing" Fair Use?

August 24, 2008 at 12:15 AM in Digital rights & copyright | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 22, 2008

Important ruling for fair use

Here's a significant victory for content creators, courtesy of the Electronic Frontier Foundation.

A judge's ruling today is a major victory for free speech and fair use on the Internet, and will help protect everyone who creates content for the Web. In Lenz v. Universal (aka the "dancing baby" case), Judge Jeremy Fogel held that content owners must consider fair use before sending takedown notices under the Digital Millennium Copyright Act ("DMCA").

August 22, 2008 at 10:19 PM in Digital rights & copyright | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

Hollywood losing its grip on television content

The Cinematic Internet from JD Lasica on Vimeo.

At the Intel Developer Forum Wednesday I was pulled aside and invited to interview Eric B. Kim, an Intel senior vice president and general manager of its Digital Home Group. Earlier in the day I heard Kim give a keynote talk with Patrick Barry, vice presdent of TV for Yahoo!

Kim talks about this significant new development in the 11-minute interview above. Watch it on Vimeo.

Intel is one of the few technology companies with the leverage to pull the major media companies (Disney, ABC, Blockbuster, CBS Interactive, Cinequest, CinemaNow, many others) and advertising agencies into this new two-way arena. (See the press release.)

Here's what I think about all this (and I'm most decidedly not speaking for Intel in any way here.)

Kim's quote that most stuck out for me was this: "We're bringing television to the internet." Notice what Kim didn't say: We're bringing the Internet to television, which has been the approach of the big movie studios until now. (Or, until recently, We're preventing the Internet from coming to TV.) I don't know whether Kim's turn of phrase was intentional or not — I suspect so — but the difference is a significant one.

Television is now becoming a part of the Internet universe. Not the opposite. The Internet is not a subset of an entertainment medium.

The Cinematic Internet

Yahoo's Barry gave a fascinating presentation about what he variously called "connected television" and "the cinematic Internet." While my colleagues in the user-created media space often scoff at the notion that people will want professionally made video in the age of YouTube and other video sharing sites, I think there's no question that people will want to watch amateur content on their TVs and portable devices, but they will chiefly want to watch high-quality video on their plasma and high-definition televisions.

Barry spoke about "enabling the cinematic Internet, merging television and the Internet in a way users will love." He said, correctly, that over the past 25 years "interactive television" hasn't achieved what it should have achieved. It's been, frankly, a novelty (a kind word meaning: a bust). And it has failed, in my view, because it has been in the hands of marketers and business functionaries with no grasp of what serves the needs of viewers. ("Want to buy the dress Jennifer Aniston is wearing?" Please.)

Barry smartly identified the chief television values we've seen over the past 50 years:

  • ease of use
  • reliability
  • high fidelity (professional quality)
  • entertainment

He then laid out the contrasting Internet values we've come to cherish — and now are coming to expect in our consumer electronics devices (thank you, iPhone, Archos and other trend-setters):

  • personalization
  • community
  • relevance
  • openness

Said Barry: "The ethic of the Internet, we think, is critical to bring to the television experience. Openness is a fundamental value of the Internet that's been completely absent from the television experience."

Well said.

A Powerpoint slide drove home this point. Consumer electronics has evolved this way

  • 1.0 analog tv
  • 2.0 digital TV
  • 3.0 Internet connected

"The Internet changes the game."


Barry described the the "widget channel framework" in a way that emphasized its openness:

  • openness is a huge driver of growth and innovation
  • free and fair access for developers
  • creates user choice

Open access

The fight is not yet over. We still won't be able to program our own Web shows on these devices for a few years (at least I'm skeptical), despite Intel and Yahoo's embrace of an open media standard. Comcast is not yet ready to give up control over the content coming into our living rooms. But we will prevail, and fairly soon. Openness is a prime directive of the Internet, and the studios will be able to hold back the tide for only so long. Now the challenge is to get more high-quality content produced for the Web.

This development was, in the end, inevitable. But it wasn't always obvious that the Internet would win. Following is some context of how far we've come over the past three years.

The media powers' grip on control loosens

In my 2005 book Darknet, I interviewed Warren Lieberfarb, the man responsible for the DVD. The chapter is temporarily unavailable on the Internet Archive but I think some key excerpts deserve republication here:

Hollywood looks at interactive media as an opportunity to shop or upsell merchandise, but the studios get nervous about true interactivity because they lose control over the entertainment experience.

Warren Lieberfarb, the visionary former head of Warner Home Video, thinks it won't be long before we'll be able to purchase and store our  own personal collection of movies and transport it from device to device, anywhere within an extended home domain.

"I see a very, very, very big transformation that's going to change the balance of power in media," he says, choosing his words with care. "It will step away from the broadcast and cable networks to specialized niche programming that will be accessible through on-demand services. That is the revolution. And nothing is going to stop this." ...

"All this is going to bypass the broadcast and cable networks," he says. "The whole notion that you sit at a television at a designated time and you tune in to watch what they say you watch—it's over. It's going to take a while, but it's over."

Just as the Internet and the proliferation of low-cost digital tools have reshaped other media, so the new technologies will transform our notion of television. A few years from now, when you say "television," it may no longer be synonymous with the box in your living room because you also will be watching it on your handheld mobile device or tablet PC. "What's on TV" may no longer be synonymous with network and cable programming because you'll be able to access video feeds from a wide range of new content providers. When you do watch television in your living room, you'll still wield a remote control, but you may be watching it on a stand-alone digital box or one that's hooked up to a media-center device or wirelessly connected to a PC, giving you the power to pull niche material from a gushing fire hose of sources.

"People are going to discover that content doesn't have to be produced by the major media companies," Lieberfarb says. ...

Lieberfarb is not saying the old order of Big Media programming will be overthrown by a cabal of camcorder-wielding Young Turks. But he is saying that the major media companies will no longer exercise exclusive control over what Americans watch on TV.

"There is this attitude in the media industry that we're the ones that make the big-time media that people want. Yet it's always been dark horses that the establishment didn't see that have created the changes in the media landscape. HBO was a dark horse. CNN was a dark horse. ESPN was a dark horse. So were VCRs. And the technophobia in the media industry, the resistance to changing business models, the gut instinct to use their monopoly power to extract financial benefits—all this will not serve the media companies well in the coming era." ...

Formidable business interests will oppose a mass rollout of easily accessible on-demand media for the public because it threatens their existing business models, Lieberfarb says. In the years ahead, vertically integrated media companies will use their marketplace dominance and their clout in Congress, the regulatory agencies, and the courts in an effort to maintain their role as exclusive intermediaries, as gatekeepers of information and entertainment.

"That's why I think audiovisual media, available online on demand, will take place from the edge"—here he holds his hands wide apart—"and not from the center of the media industry. Change is not going to come from the media conglomerates that have too much at stake in protecting the status quo." ...

How to put television's pieces back together? We need to arrive at a new place of user participation and interaction. The tools are at hand: a converged cable TV and Internet gateway that lets subscribers pay a small monthly fee (80 percent of Americans already pay for cable TV or satellite) in return for a high-speed freeway ramp connecting us to hundreds of niche video channels created by entrepreneurs, amateurs, and independent professionals.

Will the companies controlling the pipes into our houses also control what comes through it? Will they continue to be our visual gatekeepers? "No," Lieberfarb says firmly. "People will be able to access any Web sites delivering movies and video."

We are not there yet, but we are getting tantalizingly close.

In Darknet, I also wrote about the Intel vice president who broke federal law (and why the law is broken) — it's online here.

I wrote about Hollywood's efforts to lock down digital televisions with weapons such as “certification” and “renewability”—new forms of copy control that are about to enter the living room by stealth. It's online here.

An important chapter looked at how the tech and consumer electronics industries gotten too cozy with Hollywood (online here), a dalliance that this new development signals may be coming to an end.

Also: The life and death of Replay TV, the original upstart in the digital video wars.

And a hat tip to Intel — because it's important for people to know who their allies are. Wrote this in Darknet four summers ago:

On the major public policy issues of the digital age, the high-tech industry has splintered into different factions. Some hardware makers such as Intel, for instance, oppose the law that makes picking digital locks a federal crime regardless of the circumstances. Intel also filed a friend-of-the-court brief on behalf of Eric Eldred and fought gallantly in late 2004 against the anti-innovation INDUCE Act. And it hosted a Digital Rights Summit to shine a spotlight on the threats posed to innovation.

In just three years, we've come a long way. But still have miles to go.

What I like about broadband-enabled television is that this is no longer a marketing concept. It's real technology — and it works.

The point I think a lot of commentators have missed about Intel's efforts in this area is this: personalized television will give us a large degree of control over our media experience — something that was decidedly missing in past experiments with "interactive TV." You want to view your content (not NBC's or CNN's) on your TV set? Go right ahead.

We've been able to do that — to some degree — by jumping through a number of technological hoops that most people won't bother with. Cinematic television has the potential to change the game in a way that other broadband television solutions (like Apple TV) simply don't.

Don't pay much attention to the marketing jargon: cinematic television is a misnomer — there's nothing cinematic about your Flickr photos, Twitter feed or favorite sports teams — but it is an important step forward into the era of Internet television. (This is not your father's Web TV.)

Related coverage:

USA Today: Intel, Yahoo partner on Internet-TV widget project.

Yahoo blog: The Cinematic Internet is coming to a living room near you.

How much more would you love your TV if you could monitor your eBay auctions, keep tabs on the 5-day weather forecast, and check the score of the Giants game — all at the same time you are watching the new season of “ER”?

Yahoo Connected TV: Introducing the Cinematic Internet.

In a skeptical post, Matt Griswold has this: Yahoo and Intel Unveil "Cinematic Internet."

Bonus: We got a chance to preview some coolio gadgets powered by Intel chips: MIDs (a bit bigger than PDAs) and Netbooks (these are Internet-enabled handheld devices a bit smaller than notebooks) like the Medion by Akoya, the Eee PC, the Acer and the Sharp Willcom. Most of these will first roll out in Europe.

Also, here are some photos I snapped with my cell phone of the doings at the Developer Forum.

Disclosure: I'm a member of the recently formed Intel Insiders consulting group.

Cross-posted to

August 22, 2008 at 02:46 AM in Television | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

Internet radio booming but threatened

San Jose Mercury News: Internet radio booming but threatened. Excerpt:

With a growing audience of up to 54 million monthly listeners, Internet radio is one of the biggest trends in digital music. But if you believe the industry's leaders, it's threatened with extinction.

They say the rates they have to pay the recording industry are bankrupting them. They're appealing the government-set rates, pressing Congress to change the rate structure and pursuing negotiations with the industry.

Now a congressman has stepped in to oversee the negotiations and Webcasters are ramping up the rhetoric.

"We're very supportive of paying royalties, but this structure is wrong, unfair and unaffordable," Tim Westergren, founder of Oakland-based Pandora, said in an e-mail to the Mercury News. ...

Small, independent AccuRadio owes about $67,000 a month in royalty fees this year, though its monthly revenue is only $40,000 to $50,000, said CEO Kurt Hanson.

The current fee structure is a disgrace and amounts to legal extortion imposed by the federal government on behalf of record companies.

August 22, 2008 at 02:44 AM in Music, Radio | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 14, 2008

Ruling is victory for supporters of free software

NY Times: Ruling Is a Victory for Supporters of Free Software. (Thank God.)

A legal dispute involving model railroad hobbyists has resulted in a major courtroom victory for the free software movement also known as open-source software.

In a ruling Wednesday, the federal appeals court in Washington said that just because a software programmer gave his work away did not mean it could not be protected.

The decision legitimizes the use of commercial contracts for the distribution of computer software and digital artistic works for the public good. The court ruling also bolsters the open-source movement by easing the concerns of large organizations about relying on free software from hobbyists and hackers who have freely contributed time and energy without pay.

It also has implications for the Creative Commons license, a framework for modifying and sharing creative works that was developed in 2002 by Larry Lessig, a law professor at Stanford.

That license is now used widely by organizations like M.I.T. for distributing courseware, and Wikipedia, the Web-based encyclopedia. In March,  the rock band Nine Inch Nails released a collection of musical tracks under a Creative Commons license. ...

August 14, 2008 at 12:13 AM in Free culture | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 11, 2008

Don't turn service providers into speech police

In today's San Jose Mercury News, Larry Magid has an interesting take on this issue: Painful as slander may be, don't turn service providers into speech police. Excerpt:

When Congress voted for the Communications Decency Act of 1996, most members thought it was just about pornography, says U.S. Rep. Zoe Lofgren. But one section of CDA had much broader implications, the San Jose Democrat told the Internet Education Foundation's second annual State of the Net Conference at Santa Clara University last week.

The CDA, which would have prevented the posting of material deemed "harmful to minors" was mostly struck down by the Supreme Court on First Amendment grounds. But the court let stand Section 230, which immunizes Internet service providers from being held liable for what their members post by stating that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The section was designed to protect service providers — at the time mostly dial-up services like AOL and Prodigy — from prosecution under CDA for distributing content posted by their members. It's analogous to holding phone companies harmless for obscene phone calls made by their customers or shielding the post office from liability for illicit material sent through the mail.

But Section 230 has also been used to protect social-networking companies and other Web sites with user-generated content whose business plans weren't even on the drawing board when the law was written back in the mid-'90s. ...

Thanks to Section 230, Craigslist won its case against the Chicago Lawyers Committee for Civil Rights over housing ads that included such terms as "no minorities" and "no children." Even though such ads in some cases violate the Fair Housing Act, the judge ruled that Craigslist "is not the author of the ads and could not be treated as the 'speaker.'" also can rely on Section 230 to protect itself against lawsuits and prosecutions stemming from the potentially libelous statements that are all too common on this gossip site, according to Michael Fertik, CEO and co-founder of ReputationDefender. ...

August 11, 2008 at 09:40 PM in Free culture, Internet regulation, Washington & public policy | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

An old rocker gets digital


NY Times:  Peter Gabriel, the rock musician, has become a powerful player in the emerging online music industry by helping artists find new ways to market their music.

August 11, 2008 at 12:06 AM in Music | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 09, 2008

'Sound Unbound'

MIT Press:

Sound Unbound: Sampling Digital Music and Culture. Edited by Paul D. Miller aka Dj Spooky that Subliminal Kid. Foreword by Cory Doctorow. Introduction by Steve Reich. If Rhythm Science (Miller's first book) was about the flow of things, Sound Unbound is about the remix--how music, art, and literature have blurred the lines between what an artist can do and what a composer can create. In Sound Unbound, author Paul Miller asks artists to describe their work and compositional strategies in their own words. These are reports from the front lines on the role of sound and digital media in an information-based society.

August 9, 2008 at 01:07 AM in Music | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

Copyleft, copyright and everything in between

MediaRights: Copyleft, Copyright and Everything in Between.

August 9, 2008 at 01:05 AM in Digital rights & copyright | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

August 01, 2008

FCC vote sets precedent on unfettered Web usage

NY Times: F.C.C. Vote Sets Precedent on Unfettered Web Usage.

August 1, 2008 at 09:33 PM in Washington & public policy | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)

July 30, 2008

Kevin Martin’s Open Network Manifesto


An open, unfettered Internet has gotten a boost from an unlikely source: Republican FCC chair Kevin Martin.

NY Times: Kevin Martin’s Open Network Manifesto.


Set-top boxes used with cable TV, [Martin] said, should be seen the same way as cellphones. Consumers need to be able to use any set-top box to access any sort of content.

This is important, he said, because of the rise of video programming on the Internet.

“Consumers can’t take content from the Internet and easily watch it on their televisions,” he said. He blamed cable companies from preventing set-top box makers, like TiVo, from being able to offer devices that can combine Internet video with cable offerings like on-demand movies.

“The cable operators won’t license a device that integrates Internet video content with their content,” he said. “I’m saying that’s wrong, and I am trying to get the other commissioners to address it.” ...

July 30, 2008 at 04:47 PM in Washington & public policy | Permalink | Comments (2) | Bookmark this entry on | blog comments on this post (0)

July 29, 2008

Facebook shuts down Scrabulous

NY Times: Facebook Shuts Down Scrabulous.

Hard to understand why Hasbro didn't come to an agreement to take advantage of Scrabulous's immense populatiry.

July 29, 2008 at 07:17 AM in Games | Permalink | Comments (0) | Bookmark this entry on | blog comments on this post (0)