Online Video is Booming

June 30th, 2008 | COMMENTS(0)

Every month, the stats seem to prove conclusively that online video is gaining in popularity. Bandwidth formats and implementation have improved to the point where online video is nearly as available and useful as cable or satellite video content. The New York Times recently reported that the number of Internet users watching online video reached 135 million in April 2008, up from 132 million in May 2007. That’s not a huge increase. What is impressive, however, is that the average viewer kept their eyeballs glued to online video for 228 minutes in April 2008, up from 158 minutes in May 2007.

There are probably a lot of reasons why more and longer video is being accessed on the web. In my opinion, a significant reason is that higher quality, long format content is rapidly making its way to the Internet. As if to prove my point, in the same section of the NY Times (June 23, 2008) reporting the increase in online video minutes, there appeared an article entitled “ABC Moves to Expand Its Reach on Video Web Sites.” According to the article,

[ABC] is expected to announce on Monday that full episodes of prime time shows like “Lost,” “Desperate Housewives” and “Ugly Betty,” along with short clips and game highlights from the cable network ESPN, will be accessible through the independent video site Veoh.com.

Like YouTube, Veoh features short, user-submitted video clips. But lately it has also mixed in material from large media companies like CBS, Viacom’s MTV Networks and USA Network.

If you haven’t checked out Veoh, you should. I really enjoy watching episodes of Season 4 of Lost, in streaming Hi-Def! The intersection between the Internet and broadcast/cable/satellite is getting fuzzier and fuzzier.

Digital Media + Las Vegas Hotel = Beauty, Efficiencies and Legal Issues.

June 1st, 2008 | COMMENTS(0)

It all sounds extremely cool and progressive. The Hotel Fontainebleu is a 63 story, 725 foot tall building set to open its doors in Las Vegas in Fall 2009. By all accounts, this will be an extraordinary hotel/casino, but it also promises to one of the most techno-cool hotels in the world. According to its teaser brochure and fact sheet, the Fontainebleu will offer a “Digital Media Program.”

DIGITAL MEDIA PROGRAM -

Fontainebleau guests experience a new
sensory landscape through an innovative
relationship with Apple.® The program
includes intuitive and simple options for
booking and pre-planning stays online
and interactive programming throughout
the resort. An iMac® in every guest room
inspires guests to share memories and
encourages personal expression.

I have a shiny new 24″ iMac on my desk at the Firm, and the thought of similar technology becoming a fixture in hotel rooms is quite compelling. My MacBook might stay in its case a bit more if I can just use the hotel-provided iMac to get my work done or access my email quickly via the Web. The partnership with Apple® seems very smart not only because Macs tend to be more user/consumer friendly, but also because the modern design aesthetic of Apple computers lends itself perfectly to the über cool and modern design of the Fontainebleu. Yet, putting iMacs in each guest room just to provide online booking services would be difficult to justify econoically. So, it is all the more intriguing to ponder what the Fontainebleu is hinting at when it describes a “new sensory landscape”, “interactive programming throughout the resort” and the notion that having “an iMac in every guest room inspires guests to share memories and encourages personal expression.

Regarding that last point, it seems providing such digital media savvy technology will encourage its use, perhaps in ways the hotel never intended. For example, the hotel bed will be well within range of the iMac’s built-in iSight camera. I’m not sure that is what the Fontainebleu is after by inviting guests to “share memories” and encouraging “personal expression”. A more palatable use of the iSight camera might be to encourage personal video testimonials about the hotel. Now, that would be cool and a very inexpensive way for the hotel to monitor and survey guest satisfaction and acquire valuable digital video testimonials for use in advertising campaigns. That would be smart! Along the same lines, the Fontainebleu might encourage guests to upload digital photos of themselves enjoying the hotel, casino, restaurant and other amenities. Such a collection of digital photos could be leveraged into a variety of marketing initiatives such as a website photo album, on-premises display throughout the hotel on a closed-circuit video network and, again, for use as free stock photography for marketing and advertising initiatives.

Perhaps the hotel will go in a different direction, allowing guests to upload their own digital video and photo content to a hotel-hosted service for creating galleries of personal memories of their stay at the Fontainebleu. The hotel might also allow guests to access their digital memories remotely, making it easier for them to share their experience with other potential guests.

It can go in many interesting directions, but this Digital Media Program will obviously require some interesting legal work. It should not be difficult to structure click-through licensing agreements and releases that will give the hotel broad rights for the commercial use of contributed digital media. More interesting, I’m sure, will be the process of thinking of all the ways such technology can be abused in a hotel/casino environment. That will certainly be an interesting Terms of Use (TOS) agreement!

fontainebleau.jpg

A teaser video is available on the hotel website. It does mention, curiously enough, that the Fontainebleu will feature a 5,000 square foot chocolate factory. Whether its digital media or chocolate, Las Vegas acknowledges no boundaries!

How-to Video is Still Hot

May 30th, 2008 | COMMENTS(0)

In January 2000, I was watching the Super Bowl with my good friend, Kelly Smith, knocking around a bunch of ideas that ultimately became the business plan for RocketVox. Back then, we described the company as the Web’s Premier How-To Video Service. Looking back, its clear we didn’t know how pioneering the RocketVox concept really was - Internet video was still relatively novel, high-speed Internet was not nearly as ubiquitous as it is today, and commercial acceptance of Internet video was in its infancy. A lot has changed in eight years, but at least one thing remains the same. How-to video is still popular and remains a content genre users frequently seek out.

RocketVox paved the way for today’s players, such as ExpertVillage and Videojug. These companies combine professional and amateur instructional video and successfully create communities of contributors and viewers. I still believe, however, that high-quality, professionally produced video content remains the most compelling content on the Web. An excellent example of such high-quality content is “Life Is Like”, a series of webisodes (32 so far) produced by AOL and featured on their AOL-Living property. Alright, full disclosure time. “Life is Like” is hosted by my sister, Rachel Campos. Despite my inherent bias, I can easily put that aside and be amazed by how effectively AOL has leveraged “Life is Like” to create a rich, vital community of parents interested in tips and tricks for making parenting and home life easier, rewarding and fun. In a genius move, AOL has managed to pivot from “Life is Like” and create a brand new web property, Parent Dish, featuring guest bloggers on topics such as kids, parents, family time, health, and celebrities. And yes, my sister is also a guest blogger!

GMC - Home Life - AOL Living.jpg

“Life is Like” is not the only high quality how-to video product on AOL Living. Other great productions include “Cooking with Tyler Florence”, “Entertainment with Michele and Gia” and “Home Improvement with Eric Stromer.” Although users can access these videos from the main AOL Living page, AOL has teamed up with a sponsor, GMC, to create the GMC Trade Secrets page featuring tabs that allow users to easily access all of AOL’s well produced how-to video products.

There is a lot of video on the web nowadays, and although entertainment content is still a huge draw, how-to video remains highly popular and easy to commercialize. Check it out. Maybe you’ll learn something!

Hollywood May Soon Be Going to the Internet

April 29th, 2008 | COMMENTS(0)

Five years from now or sooner, a major motion studio will open a major motion picture on the Internet. It’s a bold prediction, I know, but there are significant precedents suggesting I may be correct.

In 2001, BMW launched an ambitious online marketing initiative in the form of an Internet movie series called “The Hire,” comprised of eight short films. It was high quality production, starring Clive Owen and featuring star directorial talent such as David Fincher, Ridley Scott, John Frankenheimer, Ang Lee, Wong Kar-Wai, Guy Ritchie, and John Woo. Although the series was designed to showcase BMW vehicles, the plot was so compelling and the production quality so superb, that a viewer could easily forget they were watching an advertisement. Therein lies the genius of “The Hire.” By aiming for the production quality of a major Hollywood production married with the episodic short film format, BMW created an instant phenomenon driven by the sense of free high-quality entertainment and anticipation of what the next episode might bring. It was a hit and an instant classic all at once. BMW claims “The Hire” received more than 100 million film views during its four-year run run which ended in 2005.

From the experience of “The Hire,” BMW in 2007 launched a second online film marketing initiative called Hammer & Coop. Designed to showcase it Mini line of vehicles, Hammer & Coop was a combination of TV commercials and a 6-episode short film series parodying vintage TV series such as Knight Rider and Starsky and Hutch.

In 2006, Pirelli decided to showcase its line of high performance tires using the Internet film genre pioneered by BMW. At pirellifilm.com, visitors can watch the first two installments, The Call, starring Naomi Campbell and John Malkovich, and Mission Zero, starring Uma Thurman.

Pirelli plans to release one film per year. According to its website:

“With this revolutionary project Pirelli enters the world of cinema. Pirellifilm is a unique new communication tool that intends to launch high quality short films through several channels. The protagonists will be today’s stars of stage and screen who will interpret the famous Pirelli claim - “Power is nothing without control” - in a different way each year. This extraordinary project, which is planned for several years, intends to support the Pirelli image and positioning and to maintain brand leadership.”

The first film, The Call, is a dark film. It begins with a telephone ringing at the Vatican, waking a priest (Malkovich) who is whisked away to perform an exorcism on a car possessed by a demonic Naomi Campbell. Malkovich is assisted by four Pirelli P Zero tires, and the successful exorcism ends with the admonition “Power means nothing without control.”

I enjoyed much more Pirelli’s second film, Mission Zero, in which Uma Thurman drives a brilliant yellow Lamborghini Gallardo Spyder through a well choreographed, action-packed chase scene. Yes, the tires get much more than a cameo, but its a thoroughly enjoyable short film.

BMW and Pirelli have ushered in a new era in Internet filmaking. It will not be long before the 8-minute short film gives way to the 2+ hour film format. As Internet-enabled set top devices such as the Apple TV, the PS3 and Myka become more prevalent in living rooms and home theaters, and high definition content via the Internet becomes more widely available, film studios may soon find themselves planning an online premiere for the next blockbuster films. Stay tuned!

The Jedi Mind Trick of the Law

April 13th, 2008 | COMMENT(1)

I’ve negotiated countless agreements during my legal career, complex corporate finance transactions, sticky licensing agreements, simple loan agreements and everything in between. And though every deal is different, and every client’s needs are unique, there is always one constant. Someone is always trying to pull the Jedi Mind Trick of the Law (JMTL) on me or my clients. It’s easy to spot. Question a contract provision and someone on the other end of the deal will say something like, “Oh, that’s standard,” or “that’s just boilerplate the lawyers say has to be in the document.” With just those words, and not even an Obi Wan Kenobi wave of the hand, they expect your mindless acceptance of their terms. There are other variations on this powerful force weapon, and we’ve all heard them. “We aren’t going to change our contract.” “All the other executives have the same contract, and so should your client.” “Our Warranty is standard.” “This Force Majeure clause is just the same as in any other contract.”

To fight the JTML, we need to go back to square one.

The Most Fundamental Rule of Contract Negotiation (MFRCN): EVERYTHING is negotiable, nothing is standard and nothing is necessarily “boilerplate.”

Price, repayment terms, venue, jurisdiction, notice provisions, word choice, grammar and punctuation, its all negotiable. Yet, I’m constantly amazed by how often I run into the JMTL. Of course, opposing deal counsel always try to use it. I’ll admit to using it myself. We’ve all done it. My own clients sometimes bring me documents prepared by the other side’s lawyer, assuring me of the other side’s assurances that the major aspects of the agreement are standard or just boilerplate.

The JMTL is a powerful weapon, indeed. When used effectively, it prevents the target from being able to access that portion of their brain where the MFRCN is stored. With access to the MFRCN disrupted, the target is perfectly positioned to accept a bad or less favorable deal.

A strong will (and/or Leverage, a.k.a The Second Most Fundamental Rule of Contract Negotiation) can defeat the JMTL. Armed with a strong will and/or Leverage, one can shrug off the JMTL and insist that everything is on the table and up for negotiation. Clearly, not everyone is so equipped.

JMTL has long been used in connection with online agreements, such as Terms of Service, Terms of Use, End User License Agreements and similar agreements. Recently, Adobe was discovered using a built in JMTL in their EULA for the Photoshop Express web service. The EULA is presented as a standard agreement and so users click right through, often oblivious to the deal they’ve just struck with a website provider. I’m sure countless users clicked right through Adobe’s EULA, failing to read the following:

Use of Your Content. Adobe does not claim ownership of Your Content. However, with respect to Your Content that you submit or make available for inclusion on publicly accessible areas of the Services, you grant Adobe a worldwide, royalty-free, nonexclusive, perpetual, irrevocable, and fully sublicensable license to use, distribute, derive revenue or other remuneration from, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other Materials or works in any format or medium now known or later developed.

Wow! Great deal for Adobe, bad deal for users. Adobe gets to use your content for free and make money from it without paying you a dime. Chalk one up for the power of the JMTL. Wait! Not so fast! Some strong willed, careful readers fended off Adobe’s JMTL and complained. Adobe responded by changing their EULA.

Yes, the use of “boilerplate” is a powerful force for neutralizing a contract party. It has been studied in depth, which may surprise many of you. For an in-depth analysis of boilerplate, I heartily recommend “The Strategy of Boilerplate” by Robert B. Ahdieh (Michigan Law Review, Vol. 104, p. 1033, 2006 Available at SSRN: http://ssrn.com/abstract=907414). The use of “boilerplate” continues largely because bargainers place precedent and convention ahead of their best contracting interests. To make this point, Ahdieh’s article begins with a powerful quote from Thomas Schelling, the Nobel Prize winning master of bargaining and negotiating behavior:

Precedent seems to exercise an influence that greatly exceeds its logical importance or legal force. . . .Sometimes, to be sure, there is a reason for a measure of uniformity, and sometimes there is enough similarity in the circumstances to explain similar outcomes; but more often it seems that there is simply no heart left in the bargaining when it takes place under the shadow of some dramatic and conspicuous precedent.”

Schelling developed the theory of “focal points” or “Schelling Points“, as they’ve come to be known. Schelling Points are solutions toward which people gravitate without communication, mainly because the solution seems natural, conventional, special or relevant to them. Schelling believed this to be important in coordinating social interactions. Schelling’s most famous example of this was asking students to assume they needed to meet a stranger in New York City and to determine where and when that meeting should occur. Schelling found the most common answer was noon at Grand Central Station. For whatever reason, and we can probably think of many, that time and location is deemed conventional by many and so by default it became the logical choice for the hypothetical meeting. Importantly, that choice had almost no customized relevance to the real needs of either party to the meeting. Building on Schelling’s theory, Ahdieh applies it to support his theory for the widespread use of boilerplate:

The use of boilerplate in bargaining may play an important role in facilitating agreement at an equilibrium favorable to a particular party. Because of the multiple equilibrium dynamic of bargaining, some extrinsic mechanism will often be needed to define the parties’ ultimate point of agreement. In this exercise in coordination, boilerplate may offer a “focal point” of sorts, facilitating resolution of the game.

There it is. The JMTL is just another Schelling Point. One party introduces boilerplate into the negotiations and attempts to convince the other side it is so natural or conventional that acceptance of it is best and will lead to the least conflict and a better deal. If this kind of negotiation is accepted, boilerplate is adopted.

Many lawyers and law firms actually perform the JMTL on themselves through a forms-based approach to a transactional law practice. A forms-based practice can lead to an unhealthy acceptance of “boilerplate”, which is dangerous. Many lawyers reach into a forms bank, find an applicable form, change the names and numbers, and assume their job is done. Such lawyers have little appreciation for the meaning, effect and nuance of each and every contract provision, and often fail to research changes in the law that may have drastically altered the applicability of the form. It is also highly likely they are ignoring or diminishing the importance of a client’s particular needs, goals or desired results. Forms can be useful as a starting point for drafters, but there is no substitute for a well negotiated agreement tailored to the client’s specific needs.

Every once in a while, an article appears in the American Bar Associations’s Busines Journal about the dangers of a forms-based transactions practice. These are important observations every practitioner should take to heart. My favorite is Howard Darmstadter’s 2002 article entitled “In the petrified forest.” Darmstadter cleverly takes on the area of commercial guaranty agreements, which are notoriously prone to the self-inflicted JMTL. I particularly enjoyed his observation that forms tend “to contain ossified bits of what was formerly a vibrant legal practice.” In less than a sentence, he captures the essence of the problem: a forms-based practice leads to sloppiness, lack of legal due diligence and creativity, and a grave disservice to clients.

Last week, we were all reminded about the dangers of boilerplate. In his 81-page legal memorandum to the Pentagon regarding interrogation tactics for al-Qaeda captives, Justice Department lawyer John Yoo concluded that federal laws prohibiting assault and other harsh interrogation techniques did not apply to military interrogators who questioned al-Qaeda prisoners because the President’s ultimate authority as Commander in Chief overrode such statutes. As the Washington Post reports:

Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail yesterday, saying the Justice Department altered its opinions “for appearances’ sake.” He said his successors “ignored the Department’s long tradition in defending the President’s authority in wartime.”

“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.

A “long tradition” prevented more careful legal research and reasoning. That is the danger of boilerplate. That is the danger of the Jedi Mind Trick of the Law.

Throttling Down!

March 27th, 2008 | COMMENTS(0)

Just three days ago, I commented on some new video distribution technologies that are impacted by Comcast’s intentional slowing or throttling of BitTorrent downloads. Well, today Comcast announced an end to that practice, as well as an alliance with BitTorrent to “address issues associated with rich media content and network capacity management.” Of interest to digital media lawyers is the following statement by Comcast’s CTO, Tony Werner: “We believe that P2P technology has matured as an enabler for legal content distribution, so we need to have an architecture that can support it with techniques that work over all networks.”

Today is an important day in the effort to advance legitimate digital media distribution.

Viewdle! The King of Video Search?

March 25th, 2008 | COMMENTS(0)

Google owns search, of this there is no serious doubt. Yet, Google may have a weakness - video. If you believe, as I do, that Internet video is fast becoming a home entertainment phenomenon, then being able to find what you want to watch is important. Google offers video search, but its technology is based on text metadata embedded in or attached to the video file. Adding such metadata accurately is still a human-powered endeavor for the most part. What this means is there is a huge opportunity for a company that can give Internet users intelligent, automated video search technology.

The king of video search could very well be Viewdle. The company was launched last and describes its primary product as a “facial recognition powered digital media platform for easily indexing, searching & monetizing video assets.” For the moment, it appears the company is focused on helping content owners easily catalog and search through their own video assets. After I cruised through Viewdle’s website, I couldn’t help but see the vast potential of this technology. If deployed as an Internet search engine, it could be formidable.

In many ways, Viewdle’s technology reminds me of what Virage was working on back in 1999. Virage has since been acquired by Autonomy Corporation, a UK based company. Virage’s facial recognition technology appears to have been deployed more toward the security and surveillance market. I suppose Virage could compete with Viewdle for Internet video search supremacy, but it appears Viewdle has the momentum and cache. Viewdle technology is currently used by Reuters and the company was named 2008 Startup of The Year by Plugg.

It may also have cash. This week, Viewdle announced it raised an undisclosed amount of financing from a venture capital firm based in Dubai, KIT Capital, which has a digital media focus. Momentum, cache, money plus killer video search technology make this a company to watch closely, in my humble opinion.


Daniel Craig

Oh yeah, why is there a link called Daniel Craig on this post? Roll your mouse over it and check it out. I’m trying out Viewdle’s “Name Widget”, which searches Reuters’ video assets for the most recent photographs of people referenced in text. And I was also thinking about watching Casino Royale again. Maybe tomorrow night!

Digital Media Distribution & the Law: Apple, Hulu, NBC, Myka, Comcast, BitTorrent & Vuze

March 24th, 2008 | COMMENTS(0)

As always, technological innovation advances the issues, the arguments and the law. I’ll start at the beginning. I’m a fan of Apple gear, and I particularly love the AppleTV (”ATV”). I have it hooked up to a 50″ plasma in my family’s home theater room, and we all enjoy watching our photos and videos on the big screen. As is always the case, however, the limitations of the ATV have finally accumulated to a level where I might actually have a beef with Apple.

For starters, ATV is an extremely closed universe. I can only access my own digital media, movies purchased and rented from iTunes, podcasts from iTunes, YouTube content and my Flickr library. For a while, this has been enough. Then I caught the Hulu bug. Hulu allows you to watch full-length episodes of TV episodes and, best of all, its free. The service is ad-supported and the video quality and controls are outstanding. One problem: How do I get Hulu to stream to my ATV so I can watch it on the big screen instead of my computer screen. I can’t. Well, put another way, I can but the alternatives are visually unappealing and unnecessarily complex or expensive. I could access the Hulu website through my PS3, but I don’t like entering the URL with the six-axis controller and I’m definitely not springing for an external keyboard. I could add a Mac Mini to my growing number of home theater components, but I don’t want more hardware and, again, I don’t want an external keyboard. Why can’t ATV include Hulu and other digital media content sources and just make my life easier and my ATV more useful?

Oh yeah, I forgot. Hulu is partially owned by NBC which recently pulled its content from iTunes. I guess it’s unlikely Hulu and Apple will agree to let ATV users access Hulu content directly like does with YouTube content.

Then, last Friday, technology shifted the discussion. I’ve just learned about a company called Myka now pre-selling a new device that could solve some of my problems.

Myka front.jpg
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Myka suggests a jailbreak for me from the closed world of ATV. According to the company’s website, the focus of the device is peer-to-peer (P2P) content, primarily though BitTorrent, which is itself controversial. Myka isn’t bashful about it, though, as BitTorrent’s logo is prominently displayed on the front of the device. The device looks a lot like a ATV from the front, and on the reverse has component video connections as well as HDMI and LAN inputs. What about content beyond BitTorrent? On its website, the company states:

And BitTorrent, with its content from major studios already available, is only the beginning for little Myka. We’re in discussions with major content owners, studios and TV networks, and Myka will offer a growing variety of content download services - all seamlessly directed right into the TV in your living room without the need for consumers to monkey around with compatibility issues.

So, I immediately had visions of a Myka box next to my ATV, and then it hit me. What about Comcast? Well, Comcast is my ISP and as many of you know, Comcast found itself in hot water late last year when reports surfaced suggesting it was blocking BitTorrent downloads. The Electronic Frontier Foundation then issued a report confirming Comcast was interfering with downloads. Then, a class action lawsuit was filed against Comcast in a California state court. The FCC then decided to look into the matter. Advocacy groups such as Free Press and Media Access Project have joined the fray, arguing degrading P2P traffic violates federal broadband policy. At this point, it appears Comcast is not blocking BitTorrent content, but only delaying or throttling it, relying on its right of “reasonable network management.” In recent hearings before the FCC, Comcast defended its network management practices, but it appears the FCC sympathizes with the company’s critics.

At the hearing, Comcast Executive VP David Cohen stated:

Comcast does not block any Web site, application, or Web protocol, including peer-to-peer services, period,” Cohen responded. “What we are doing is a limited form of network management objectively based upon an excessive bandwidth-consumptive protocol during limited periods of network congestion.”

Of course, Comcast is trying to manage its network, but it is also concerned about the sort ofinfringement that comes with BitTorrent, and there is evidence to support Comcast is concerned about this and is taking action. In the wake of US Supreme Court’s 2005 unanimous decision in MGM v. Grokster, software and hardware manufacturers need to be concerned about contributory infringement.

All of which leads me back to Myka and ATV. I suspect Comcast will soon be forced to stop throttling BitTorrent and other P2P traffic. I may be proven wrong, but that seemed to be the mood reported from the FCC hearing. Myka does face the risk of being sued for contributory infringement if it is perceived as a device that can be used to infringe copyrights. The Motion Picture Association of America has been on BitTorrent’s trail for some time, and isn’t afraid to go directly to the users. The MPAA can’t be happy about a device bearing a huge BitTorrent logo on the front of it and armed with an HDMI input obviously intended for big screen televisions like mine. Could the MPAA be so unhappy they’d try to block Myka from ever getting into consumers’ hands? Possible, but unlikely.

To be sure, there is a lot of legitimate content Myka can bring into the home in addition to what is already available through BitTorrent. Consider for example Vuze, which depends on BitTorrent technology to distribute its growing collection of high definition video content. With a Myka device, Vuze content could be instantly accessible in any living room or home theater; a far more satisfying viewing experience than a laptop of computer monitor. Yet, with Comcast throttling P2P content, Myka + Vuze + BitTorrent does not seem to be a promising combination at the moment. Vuze knows this and even includes a call to action page on its website encouraging users to complain to the FCC.

So know I’m back to the Grokster decision and its sweeping definition of contributory infringement. Myka, BitTorrent and Vuze are an example of how complementary technologies and content can combine to exponentially advance the efficiency, scale and reach of digital media distribution. Today, BitTorrent is at the center of the current “bandwidth throttling” storm, but the real challenge for BitTorrent is stay on the right side of Grokster’s bright line. Recall that in Grokster, the Supremes’ held: “One infringes contributorily by intentionally inducing or encouraging direct infringement,…and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” So far, BitTorrent is successfully walking the Grokster line, trying to stay clean and making the right deals with the right movie studios. Some have even predicted BitTorrent will be the next big “dot com” IPO. Indeed, it seems as if the Grokster decision is forcing technology companies and copyright owners to recognize the importance of working together for their own profitable survival, if not purely for the benfit of consumers. In that context, Myka’s co-branding arrangement with BitTorrent seems very, very smart. For a detailed, comprehensive and well-written discussion of stay clean strategies for P2P technologies and Internet distribution of TV programming, I recommend “Bittorrent, Grokster, and Why Entertainment and Internet Lawyers Need to Prepare for the Fair Use Argument for Downloading Television Shows,” Vincent, Charles B., Journal of Internet Law, Vol. 10, No. 11, May 2007 Available at SSRN: http://ssrn.com/abstract=979741

So, maybe a Myka is in my future after all. I will wait, however, to see if Comcast ends its throttling ways. For now, I’m pleased that new technologies are coming online to solve digital distribution problems, and maybe, just maybe, Grokster isn’t the innovation stifling decision many thought it was.

Supreme Court Will Hear Indecency Fines Case

March 20th, 2008 | COMMENTS(0)

QUESTION PRESENTED : Whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of “any obscene, indecent, or profane language,” when the expletives are not repeated.

That is how the FCC frames the issue in its petition requesting the Supreme Court review a lower court’s ruling striking down the FCC’s “fleeting expletives” policy. This week, the Court agreed to hear the case.

Federal law makes it unlawful to “utter[] any obscene, indecent, or profane language by means of radio communication.” FCC regulations prohibit indecency in radio and television broadcasts aired between the hours of 6 a.m. and 10 p.m., but don’t apply to broadcasts outside those hours. Enforcement is usually by fines and/or keeping a long memory about the violation and taking it into account when license renewals come up. However, as a matter of policy he FCC doesn’t consider isolated or fleeting broadcasts of expletives to be indecent.

In 2002, the FCC tagged Fox when Cher dropped the F-bomb at the Billboard Music Awards. The next year, Nicole Richie did the same thing and the FCC dropped the hammer again. Also in 2003, Bono dropped the F-bomb at the 2003 Golden Globe, but the FCC’s enforcement Bureau did not sanction NBC, finding Bono’s was a fleeting and isolated expletive. The full Commission reversed that decision, but NBC was not cited.

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Photo: Getty Images

Fox is arguing the FCC’s citations against it are “arbitrary and capricious,” because prior to the Golden Globes’ the comments made by Cher, Richie and Bono would come within the “fleeting expletive” rule. The 2nd Circuit Court of Appeals agreed with Fox in 2007, finding the “fleeting expletives” policy is arbitrary and capricious under the Administrative Procedure Act.

This promises to be an interesting case as many observers doubted the Supremes would take the case. Now that the Court has agreed to review the case, the question is why. If this were just an APA case, it is hard to imagine the Court agreeing to review the case. Maybe the Court thinks the 2nd Circuit did not show enough deference to the FCC as the regulatory agency. I don’t think that is why the Court took the case. The answer must be that the Supremes think it is necessary to address The Constitutional issues implicit in the FCC’s “fleeting expletive” policy. In in its written opinion, the Second Circuit stated:

We note, however, that in reviewing these numerous constitutional challenges, which were fully briefed to this court and discussed at length during oral argument, we are skeptical that the Commission can provide a reasoned explanation for its “fleeting expletive” regime that would pass constitutional muster.”

There was no conflict in the circuits about this issue, so I think the Court wants to look into the Constitutionality of the FCC’s ability to regulate the broadcasting of nasty language. However this turns out, it promises to be an extremely interesting case.

Online Video for Law Firm Marketing

March 12th, 2008 | COMMENTS(0)

As the Marketing Partner for Stanislaw Ashbaugh, I’m always thinking about ways to let the world know why they should choose our law firm over any other. This week, I’m in L.A. for the Legal Marketing Association’s 22nd annual conference called Elevate ‘08. The conference officially starts tomorrow, but I had the opportunity this afternoon to walk through the Exhibitors and noticed the Hubbard One booth. They are holding a contest asking for ideas and concepts about using video for law firm websites. The person submitting the best idea gets an iPhone and A $500 gift certificate. Interesting and confusing. Interesting because it represents evidence that law firms are starting to catch up with the rest of the world. Confusing because I’m competitive. If I have a good idea for website video, why would I give it to Hubbard One so they can share it and use it with my competitors? For an iPhone? Well, maybe, but I passed.

It did get me thinking about how to use online video for Stanislaw Ashbaugh’s website. Hubbard One, a website development firm, is really pushing the use of online video on law firm websites. Hubbard cites a statistic that people remember 10% of what they read and 20% of what they hear as supporting online video that people see and hear. I agree that web video can be extremely compelling. Sadly, Hubbard’s video advocating the use of video is of such low quality it will probably discourage a lot of prospective clients.

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For law firms, web video has to be extremely well produced and must deliver something of real value to clients and prospective clients. It can’t just be eye candy. The law firm has to deliver really compelling and useful information and create a reason for website visitors to return, learn and ultimately hire the firm. I have some good ideas on the subject, but I think I’ll keep them to myself for now until I’m ready to launch it on our website. I can buy my own iPhone.

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