Category Archives: 法 | legal | 법률학

Lady Gaga, the lawyer and the Irish Web 2.0 debacle

The Irish Independent ran the story of Ate My Heart Inc.; a company owned and controlled by popstar Lady Gaga who

‘demanded I roll over and hand over my domain name and trademark’

This action was taken against an Irish-based cookery blogger. This surprised me for a number of reasons:

  • The two brands and domains whilst similar couldn’t be mistaken for each other, giving the Ate My Heart legal team a relatively weak positon if it ever went to court
  • You would have a harder time differentiating the Lady Gaga brand from the many social accounts run by dedicated Lady Gaga fans
  • Lady Gaga and her management seem to be exceptionally savvy about the use and abuse of social media; and its power hence the community that they run

It also reminded me of IT@Cork / O’Reilly Publications debacle that broke out over the use of web 2.0 in 2006. IT@Cork was a small local group interested in business technology who decided to host a session on web 2.0. They invited Tim O’Reilly along to speak alongside other representatives from web 2.0 firms. They were legalled by CMP who run the Web 2.0 Expo and Web 2.0 Conference with a cease and desist letter.

The subsequent online firestorm caused Tim O’Reilly to come back off holiday and broker a smarter solution.

Ate My Heart could have reduced their risk and had a win-win situation like O’Reilly eventually opted for, but instead went all in on a relatively weak legal position, hoping presumably that the blogger would buckle rather than publishing their letter online and calling them out, but they chose not to.

I guess the implicit message to Irish Lady Gaga fans were that they didn’t matter all that much.  From a PR perspective, something to keep an eye on in case clients take a similar gung-ho approach to reputation management through litigation; not everyone will be as lucky as Lady Gaga was on this occasion.

Archived from blog posts I wrote for PR Week

Brand extension or violation?

I saw this on the way into work yesterday morning at the café-bar around the corner from the office. I just imagine the lawyers in Sunnyvale hitting the speed dial button for the corporate travel agent and booking a business class return flight to Hong Kong.

Network analysis and why people are so afraid of the Draft Communications Bill

This is going to be a convoluted long post, so I just decided to pick a point and start.

The Draft Communications Bill, what is it?

The Draft Communications Bill is a piece of legislation that builds upon work done by the European Union and the previous Labour administration. It is designed (as the government sees it) to maintain capability of law enforcement to access communications. It builds on a number of different pieces of legislation.

Communications Data Bill 2008 – sought to built a database of connections:

  • Websites visited
  • Telephone numbers dialled
  • Email addresses contacted

This data would be collected by internet service providers. The current government had described these plans at the time as Orwellian.

Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or public communications networks and amending Directive 2002/58/EC – requires data retention to identify users and details of phone calls made and emails sent for a period between six months and two years. This information is to be  made available, on request, to law enforcement authorities to investigate and deal serious crime and terrorism.

The UK already has used non-legislative means to force 95 per cent of internet access through a filtered system, predominantly BT’s Cleanfeed which blogs blacklisted sites or pages. It has been used to filter child pornography, there were discussions about using it to block content that was deemed to glorify terrorism and has the potential to block content in a similar way to other more authoritarian nations. In a well-known case Cleanfeed had blocked a Wikipedia page on The Scorpions Virgin Killer album originally issued in 1976.

In addition, the UK government had evaluated (and rejected) internet connections being filtered for pornographic content by default – apparently due to a lack of appetite from parents for content filtering.

The Digital Economy Act of 2010 allowed sites to be blocked and allowed prosecution of consumers based on their IP address which was problematic.

So there is already a complex legal and regulatory environment that the Draft Communications Bill is likely to be part of.

In essence, the Draft Communications Bill gives the capability to build a database of everyone’s social graph. Everyone you have called, been in touch with or been in proximity to.  It requires:

  • A wide range of internet services, not just ISPs to keep a record of user data for 12 months
  • That retained data to be kept in safe and secure way; just like say credit card information or user names and passwords
  • The ability to search, filter and match data from different sources allowing a complex near-complete picture to be built up of our digital lives. Which would be of interest to hackers, criminals, private investigators or over-zealous journalists (a la the recent News International phone hacking scandals)

What the government have been keen to stress is that the process would not look at the content inside the communication. If we use the analogy of the postal service, recording all the external information on an envelope or parcel, but not peaking inside. The reason for this can be found in a successful case taken by Liberty and other organisations against the UK government in 2008. Article eight of the European Convention on Human Rights focuses on respect for private and family life, home and correspondence.

During the 1990s, the UK government had intercepted calls, faxes and electronic communication placed internationally by people in Ireland via a specially built microwave communications tower in Capenhurst. The Electronic Test Facility was uncovered by Richard Lamont in 1999 and was subsequently covered by Channel 4 news and The Independent.

Once the Electronic Test Facility came out into the public domain, the court case followed.

There are concerns about how this information can be used indiscriminately to build up a Stasi-like picture of the UK population. This is more sensitive given the controversial  black list provided to the construction industry by The Consulting Association. Latent public anxiety about commercial services like Facebook and behavioural advertising also contribute to this mindset.

Why all the power?

Modern police work and intelligence work doesn’t look like Spooks, James Bond or Starsky and Hutch. In reality, it looks more like The Wire. Investigations revolve around informants and painstaking investigation work.

A key part in this is network analysis. Understanding the structure of  relationships between participants allows them to be caught. A key part in the film The Battle of Algiers shows how French paratroopers looked to break suspects to find out the structure of their terrorist cells. If they can break them fast enough before conspirators flee, the French could roll up the terrorist infrastructure. The film’s main protagonist who instigates this policy is a portmanteau of numerous counterinsurgency specialists including Jacques Massu, Marcel Bigeard and Roger Trinquier, all of whom had been involved in the French counterinsurgency campaign from 1954 – 57 which had successfully  rolled up Algerian separatist networks in the capital Algiers.

Move forward five decades and the US counterinsurgency work in Afghanistan and Iraq puts a lot of focus on degree centrality and social network analysis as part of its efforts to dismantle al-Qaeda and other fellow travellers.

Secondly, good operational security techniques from the use of stenography or encryption of communications if implemented well can be difficult even for governments to crack. If you know the network structure, this gives you two options to gain information on the communications:

  • Look at the communications metadata: how much is going on, where is it being sent to, is the volume larger or less than normal. These can all be used as indicators that something maybe happening, changes in power within an organisation (who is giving the orders)
  • Focus resources on cracking communications that would be deemed important, for instance those to a particular number

The all-up data picture would be deemed important to provide a better picture of network analysis. When I think about myself for a minute:

I have a range of different online identities, many of which are due to the limitations of the service on which they are held or when I set them up.

I have one main UK mobile phone number, but I have had different ancillary ones:

  • Work phones
  • Temporary PAYG numbers to sell things on The Gumtree and Craigslist
  • SIMs that I have used for data only on my iPad and smartphones over the years

Now, let’s do a thought experiment, imagine a gang of drug dealers each with a set of pill boxes like old people have labelled up for each day of the week. In each section of the box would be a SIM card. They would then swap those SIMs in and out of their phones on a regular basis making their communications hard to track if you were just following one number. They could be using regularly changed secondhand mobile phones so that the IMEI number changes as well.

The SIMs could be untraceable, they could be bought and topped up for cash if they were bought outside the UK. I can go into my local convenience store here in Hong Kong and buy and top-up them up for cash or a pre-paid credit card with no one asking to see my ID.

Untraceable UK SIMs could be acquired along with bank accounts from students going home, paid off electronically, perhaps even with the debit cards attached to the accounts and the accounts topped up with ATM deposits.

But if you interrogate a database once you have one or more numbers and look for numbers that appear on a network in the same location immediately after the number you know disappears you are well on the way to tracking down more of the mobile graph of the drug dealers.

Now imagine the similar principles being applied to messaging clients, email addresses or social networking accounts in order to provide the complete network analysis of the gang of drug dealers created in the thought experiment.

How does this fit in with the people?

Under the previous Labour administration councils were given wide-ranging surveillance powers that were used to deal with incidents such as putting the wrong kind of materials in the recycling bins. This annoyed and educated British consumers on privacy. The Draft Communications Bill smacks to many as a similar kind of snoopers charter.

The internet itself, has been political and has become political. If one goes back to the roots of the early public internet, one can see the kind of libertarian themes running through it in a similar way to the back to the land efforts of the hippies which begat the modern environmental movement. This was about freedom in the same way the American pioneers could go west for physical freedom the internet opened up a new virtual frontier where one could make one’s own fate. It was no coincidence that people involved in ‘the hippy movement’ like Stewart Brand and Kevin Kelly were involved in setting the political tone of the internet.  Or that the Grateful Dead have had an online presence since 1995.

When these freedoms have been overly curtailed or threatened, internet users have struck back; sometimes unsuccessfully. The Pirate parties that sprang out of The Pirate Bay | copyright discussion have had limited political success, which has misled many to believe that the internet isn’t a political issue. What they managed to do is highlight the issue and their concerns to a wider range of people, in a similar way to how far right movements put immigration on mainstream political agendas across Europe.

It is also coupled with a decline in trust in authority, partly due to the financial crisis and the cosy relationship with the media which came to light during the phone hacking scandal.

Even The Economist realised that something was going on and called internet activism the new green. It takes mainstream political systems a while to adjust to new realities. It took at least two decades for green issues to become respectable amongst mainstream politicians and it seems to be even harder for them to grasp the abstract concepts behind the digital frontier.

The signs are all there for a change in the public’s attitude; when you have The Mail Online providing critical commentary of the Draft Communications Bill and providing recommendations of encryption software readers can use to keep their communications confidential you know that something has changed.

How does this differ from what companies can derive anyway?

This is probably where I think that things get the most interesting.

Network analysis tools are available off the shelf from the likes of, IBM or SAS Institute. They have been deployed to look for fraudulent transactions, particularly on telecoms networks, and are also used to improve the quality of customer service. Many of them get inputs directly from social network such as Twitter and Facebook.

Deep packet inspection software and hardware again is available off the shelf from a number of suppliers. Companies like Narus and TopLayer Networks pioneered deep packet inspection for a wide range of reasons from surveillance to prioritising different types of network traffic. The security implications became more important (and lucrative) after 9/11; now the likes of Cisco and Huawei provide deep packet inspection products which are used for everything from securing corporate networks, preventing denial of service attacks and in the case of Phorm – behavioural advertising.

Skyhook Wireless and Google have location data that services can draw down on providing accurate information based on cell tower triangulation and a comprehensive map built-up of wi-fi hotspots.

Credit information can be obtained from numerous services, as can the electoral role. If this data is put together appropriately (which is the hard part), there is very little left of a life that would be private anyway.

Companies are trying to get to this understanding, or pretend that they are on the way there. Google’s Dashboard shows the consumer how much it infers about them and information that consumers freely give Facebook makes it an ideal platform for identity theft.

One of the most high-profile organisations to get close to this 360 view of the consumer is Delta Airlines who recently faced a backlash about it.

So what does this all mean?

We should operate on the basis that none of our electronic information is confidential. Technology that makes communication easier also diminishes privacy.  The problem isn’t the platforms per se but our behavioural adjustment to them.

More information
Giant database plan Orwellian | BBC News
Directive 2006/24/EC (PDF)
Written answers on internet pornography – They Work For You
UK government rejects ‘opt in’ plans for internet porn – TechRadar
Internet Filtering: Implications of the “Cleanfeed” System School of Law, University of Edinburgh Third Year PhD Presentation Series TJ McIntyre Background Document for 12 November 2010 Presentation (PDF)
Councils’ surveillance powers curbed | The Guardian
The new politics of the internet Everything is connected | The Economist
Blacklist Blog | Hazards magazine
UK government plans to track ALL web use: MI5 to install ‘black box’ spy devices to monitor British internet traffic | Mail Online
Most UK citizens do not support draft Data Communications Bill, survey shows | Computer Weekly
How Britain eavesdropped on Dublin | The Independent
Cases, Materials, and Commentary on the European Convention on Human Rights By Alastair Mowbray
U.S. Army Counterinsurgency Handbook By U S Dept of the Army, Department of Defense
Draft Communications Data Bill – UK Parliament
Deep packet inspection (DPI) market a $2 billion opportunity by 2016 – Infonetics Research
Google Dashboard
Big Brother Unmasked… As Delta Airlines – smarter TRAVEL

Interview with cut-up artist Girl Talk

Girl Talk’s work sits at the intersection of art and intellectual property law, like The Avalanches his work is made up of lots of other people’s work. When does copyright infringement become a new work in its own right? Why is Andy Warhol art and sampling theft?

Girl Talk Interview — Some Conference 2012 from on Vimeo.

The video is on Vimeo, so may not be available to all readers.

Olympic brand ambush marketing?

I wonder if Haribo is an Olympic sponsor? I wasn’t aware that they were and didn’t see anything obvious on their website to indicate that they were an Olympic sponsor. So I was a bit surprised to see these Gold Medal sweets that I thought would have violated the brand protection measures of the UK Olympic Act?
Are Haribo an Olympic sponsor?

Facebook: the Yahoo! patents case

I had delayed writing about this as I had a busy run-up to Easter and just about everyone of note in the Bay Area seems to have weighed in on the Yahoo! versus Facebook legal case over patents. Fred Wilson (aka A VC) channeled the concern that the start-up community in general over wide-ranging patents being a tax on innovation.

There is a certain amount of prejudice inbuilt against incumbents going on; Silicon Valley doesn’t make big money from existing large businesses but the new, new thing – for example:

  • IBM vs. Apple, VisiCalc, Oracle and countless Boston corridor enterprise technology brands before them
  • Beckman Instruments vs.the traitorous eight who went on to found just about every other semiconductor company from the late 1950s through to the early 1970s: Fairchild Semiconductor, Intel, Intersil, AMD, National Semiconductor, LSI Logic and venture capital firm Kleiner Perkins
  • Microsoft vs. Apple, Oracle, Sun Microsystems, the open source community
  • Google vs. Facebook and just about anybody else looking to make money from online advertising

I don’t necessarily hold this against them, it is the classic tale of David and Goliath that resonates at a deep level in the human psyche. It probably helped us move beyond being slightly smarter than the average ape and turn our use of tools into a decisive advantage with humans becoming the apex predator throughout the world.

What a lot of these arguments are failing to do is look at the underlying form:

  • Yes, the patent system is broken
  • Yes, Yahoo! has multiple business issues which would merit a series of posts in it’s own right
  • Yes, Yahoo! is unlikely to survive at least in its present form. Though for reasons that I have gone into previously  I don’t think that Microsoft is a suitable suitor (just look at what has happened to its continued inability to match Yahoo!’s previous returns on search with Microsoft AdCenter) and more controversially I didn’t think that it was serious about its takeover bid first time around
  • Yes, Yahoo! is likely to be outmaneuvered by Facebook and be on a hiding to nothing

But for me, the story isn’t about Yahoo! or the inequitable nature of patent laws, but about Facebook and its business practices in relation to data.

In the 1990s file formats: .doc, .xls, .ppt and others were used by Microsoft to leverage a competitive advantage. Competitor applications couldn’t open them; so your information was locked into using Microsoft Office software. This was one of the reasons why the web was so transformational; HTML opened up publishing of documents that had been previously locked into Microsoft Office – electronic versions of scientific papers, price lists etc.

Data portability is the document format of web 2.0 (or social web). During my time at Yahoo! we introduced the requirement to sign into Flickr using a Yahoo! ID, Stewart Butterfield and the team at Flickr worked hard to ensure that existing Flickr customers who didn’t want to have a Yahoo! ID could move their pictures off the service.

The idea was that the customer’s data was their property and allowing them to freely move was as American as apple pie, capitalism and the free market. Allowing customer’s data to be portable fitted in with the web being free as in speech ethic that had predominated up until then. Portable customer data kept you honest and encouraged you to innovate as losing a customer was only one export click away.

In the case of Facebook; the data that really matters is your address book. Whilst Facebook eventually allowed consumers to download their profile information (after it had gained hegemony in the US social network sector), it holds on fast to your address book. Om Malk over at GigaOM wrote a really good post on how Facebook leeched off Yahoo! user’s address book to build its business, but didn’t allow Yahoo! users to transfer data back the other way.

This had a detrimental effect Yahoo!’s already weakened business. It wasn’t only Yahoo!, Facebook did the same on Plaxo and has been in conflict with Google over the same issue. In the Yahoo! patent case; Yahoo! is in the position of shooter and patsy – but like the dreams of conspiracy theorists looking for a dark hand moving the pieces around the board – Facebook is responsible.

So consumers and some companies got screwed on their address book; but what the great and good of the start-up community who criticised Yahoo! forget is where Yahoo!, Plaxo and Google have gone before their start-ups could be tomorrow. The problem is the over-reliance on Facebook Connect as a federated ID and as a marketing tool using consumer news feeds in their word-of-mouth marketing campaign strategies.

Federated IDs are not a new concept, Microsoft tried to have their Passport technology adopted in a similar way some ten years ago and it was stymied because of early adopter and technology sector mistrust.

Like Facebook, the businesses adopting Facebook Connect usually rely on some sort of advertising-related business model, either for their revenue, or for garnering customers; yet with Facebook Connect – Facebook holds all the cards on targeting information that means:

  • Your advertising platform will always be worse than Facebook’s because they have a better customer view – as we’ve seen in search this is likely to turn into a zero-sum game
  • For more e-commerce-based businesses, Facebook data could be used by rivals to directly target your customers – because Facebook already has your customer list. By using Facebook Connect you already gave it to them and they could even infer a good estimate of customer engagement were by how often and how long they logged in

It has the potential to be digital equivalent of the way Standard Oil used its dominant position as a buyer of railroad transportation to screw over rivals. By supporting Facebook in the Yahoo! patents case; I believe that leading players within the start-up community inadvertently darkened their own futures.

It is hard to imagine now, but in the mid-1990s Silicon Valley was genuinely afraid of Microsoft:

Another big factor was the fear of Microsoft. If anyone at Yahoo considered the idea that they should be a technology company, the next thought would have been that Microsoft would crush them.

It’s hard for anyone much younger than me to understand the fear Microsoft still inspired in 1995. Imagine a company with several times the power Google has now, but way meaner. It was perfectly reasonable to be afraid of them. Yahoo watched them crush the first hot Internet company, Netscape. It was reasonable to worry that if they tried to be the next Netscape, they’d suffer the same fate. How were they to know that Netscape would turn out to be Microsoft’s last victim?

That was Y Combinator’s Paul Graham on Microsoft back in the day and how fear of it partly sewed the seeds of failure at Yahoo! Great ideas couldn’t get funded if they where considered to fall anywhere near the purview of Microsoft – and Microsoft wanted everything, at that time the company mission statement was:

A computer on every desk and in every home running Microsoft software

Now the vision uses softer language that also takes into account technological change with Steve Ballmer describing it as:

…enabling people and businesses to realize their full potential

Microsoft still isn’t a cuddly business by any means. Let me show you: Some six years ago I spent a weekend in San Francisco on the dime of the agency I worked with at the time. The reason why I had a free weekend was that I was originally going out there to pitch an international brief for an enterprise technology company – and the weekend should have been very busy and productive in preparation fo the pitch early the following week.

The US folks had checked the substantial non-compete list that we had been provided with by Redmond and senior clients had been checked in with and they were ok with it.

Happy days, I was put on a Thursday flight from Heathrow to San Francisco with British Airways. I deplaned, got through immigration and got a taxi into town. I went to the hotel first; dropped by bags off and washed my face and then got a taxi to our San Francisco office down near the ball park.

As I walked in the door, I could see of the office general manager getting off the phone. Apparently my trip was a waste of time; someone at head office had a call with someone at Microsoft who asked us to withdraw at the last minute as the company operated in a space that Microsoft would like to enter in the next five years.

I ended up spending the Martin Luther King day weekend at the Hotel Monaco close to Union Square and spent much of the Saturday exploring the Asian Art Museum, the then Sony Metreon centre and shopping off Haight.

The point I am trying to make is that fear is relative, Microsoft is a changed but still fiercely ambitious and competitive business.

Facebook is much more than Microsoft. If we look at address books as an example; Facebook bought and closed down Malaysian start-up Octazen to close the door on others using their technology to import contact lists in February 2010.

Facebook is keenly competitive in the way that Microsoft has been, but it has learned from Microsoft’s mistakes; it has lawyered and lobbied-up much earlier in its development, so with Facebook there will be no humiliating Judge Jackson trial which gifted the start-up culture of Silicon Valley a second chance.

I believe that in the medium-to-long-term Facebook will have a neutron bomb effect on the Bay Area start-up finance community and at the moment they only have themselves to blame.

Although it may seem counter-intuitive to the start-up community at the moment, fueling Yahoo!’s patent duel with Facebook may make more sense in the long run.

More information
Yahoo! Crosses The Line – A VC
Will Yahoo Torch its Search Deal With Microsoft, Outsource Search to Google? – Search Engine Watch (#SEW)
Is the internet too perfect a market? – renaissance chambara
A quick primer re @blakei @yahoo #delicious – renaissance chambara
Yahoo-Facebook patent fight: more than meets the eye | GigaOM
Google Renews Battle Over Facebook Contacts, Removes Phone Directory Sync On Nexus S – TechCrunch
Why Scoble Got the Boot from Facebook: Plaxo’s New Feature – Mashable
What happened to Yahoo – Paul Graham
Steve Ballmer: Microsoft Venture Capitalist Summit 2008 – Microsoft News Center
Facebook Acquires Contact Importing Startup Octazen – GigaOM

UK government mulls short-term gain with a long-term loss

There was a great article by former Guardian journalist Bobbie Johnson on technology site GigaOM that I read this morning which talks about the inevitable censorship of online social media services like Facebook and Twitter. On the one hand this is potentially good news for law firms like Schillings who do reputational work but it isn’t good for the UK’s world reputation.

Yes the UK already has censorship; such as the D-notice, cinema classification board and the chilling effect of libel laws on old media.

But censorship for the good of (usually well-off) individuals rather than the national good puts the UK in a new category quite separate from more authoritative countries and will have a chilling effect on brand Britain in the eyes of many people abroad.

When one thinks about an aspirational Chinese middle-class or the very different legal structure and culture of American citizen; this will likely affect their view of the UK as a modern progressive state – which will then adversely affect UK economic activity. And if this isn’t important then why on earth do we have the huge carbuncle of the Olympics in the east end and the UK government investment over the years in the British Council or the BBC World Service?

More information
Google and Twitter may struggle to resist UK censors – GigaOM

Archived from my blog for PR Week.

Intellectual property and the EU

Intellectual property legislation has been in the news for the past few weeks as years of lobbying by industry bodies like the RIAA, MPAA and the IFPI have hit a consumer road block. In the UK, the Digital Economy Act which was largely due to the work of the lobbying team at the BPI squeezed in as a dying gasp of Gordon Brown’s Labour administration. This legislation has been in rallied around by the Conservative faction of the current government whilst ignoring consumer rights and many of the digital businesses that it thinks will help to lead the country out of recession.

At a European level, consumers were rallied to the issue of intellectual property by the widespread publicity given to the US SOPA and Protect IP bills that were going through the US parliamentary process. This acted as an entreé for the main course ACTA; which many countries signed up to by surreptitious process to run an end game around likely technology sector counter-lobbying. What this did instead was bring about a militant consumer and political reaction to the agreement which is likely to scupper it.

This has tapped into an anti-American sentiment where IP looks like trade protectionism rather than legitimate concerns; and an anti-media industry sentiment driven by a number of elements:

  • A lack of trust in content and the media in general
  • The inability of businesses to adapt to consumers changing needs for consuming content and the long tail
  • A long-held feeling that consumers are getting gouged in terms of how much they pay for content
  • A perception that these companies are dishonest in their dealings with their artists – Kenny Rogers is currently suing EMI, Cheap Trick and the Allman Brothers have filed against Sony Music, Rick James and Chuck D have taken action against Universal, and Sister Sledge are taking action against Warner Music. This is further exasperated by labels enthusiasm for streaming isn’t matched by artists
  • Frustration and regional restrictions on content and predatory pricing – which becomes more transparent when you look at different Amazon sites and media news websites around the world

The media industry has increasingly tried to have a free ride by passing on costs and responsibility for enforcement to the online property owners like Google and other companies. A less talked about recent development was that the European Court of Justice found against Belgian music royalties collection society SABAM in a case it took against Netlog. It found that courts forcing social networks to monitor for illegal file sharing would strike the wrong balance between the rights of consumers, service providers and content owners.

Looking around the brute force lobbying tactics of the media industry aren’t working; they need to come up with a better, more attractive idea to consumers. One of the key problems in achieving this is they need to have the technology sector on board to make that happen so fence building is required. Media companies also need to get their house in order in terms of being seen to be fair with consumers and artists which requires extensive business re-engineering and a ‘mucking out’ of established management practices – these changes will then take a while to be communicated and believed by consumers.

Finally, the countries that have acted as key drivers around intellectual property rights need to look carefully at how they can achieve reputational damage reduction in Europe.

There is a lot of work to be done before a fair and adult approach can be taken to resolving intellectual property rights in the digital age.

Archived from the blog that I used to write for PR Week.

Gavin Bell’s TopShop tiger

My friend Nick Osborne sent this through to me. Author and web developer Gavin Bell was notified by a friend that this picture of a tiger which he has on Flickr with  a non-commercial creative commons licence:
Tiger face portrait in a square
Seemed to be the basis of this tiger on a Topshop dress:
topshop tiger
Other comparisons were done:
tiger tiger
And Dan Catt even created an animated GIF file to show the similarities. This case is similar in some respects to the AP | Sheperd Fairey dispute over the adaption of a Barack Obama photograph for the iconic HOPE posters.

No more excuses for tired looking presentations and blog posts

I see so many blog posts every day with a lot of tired clip art and see presentations that often use well-worn visuals. One of the things that Flickr does really well is aggregate lots of imagery that you are free to use.

A case in point is the photo documentary Documerica Project (1971-1977), the Environmental Protection Agency (EPA) hired a 100 photographers to go around the US and capture images relating to both environmental issues and everyday life within the US.
Subway Car.  05/1973
All of these pictures are freely available on Flickr as part of their commons initiative. You have museums, the US department of defense, NASA to name but a few organisations. In addition, thousands of people like me have included photographs under a creative commons licence.
Hitchhiker with His Dog "Tripper" on U.S. 66, May 1972
A hippy and a puppy, what’s not to like?

European protests against ACTA gain a bit of steam

La Quadrature du Net have dialled up their protest against ACTA (Anti-Counterfeiting Trade Agreement) in advance of the European Union bringing it into law. A report by the European Parliament has pointed out that ACTA is bad for EU countries. Or as La Quadrature du Net put it:

ACTA is an agreement secretly negotiated by a small “club” of like-minded countries (39 countries, including the 27 of the European Union, the United States, Japan, etc). Negotiated instead of being democratically debated, ACTA bypasses parliaments and international organizations to dictate a repressive logic dictated by the entertainment industries.

The big question is can the European Union hold out against the media industry lobbyists who are pushing for this on behalf of mostly US-owned major film studios and record labels? It has implications for the digital economy and the ability for foreign internet properties in countries like China to connect with European consumers – posing potential free trade issues.

Matt Mason the challenges and opportunities of digital sharing | 知识产权挑战

Matt talks about how youth culture and digital sharing is changing business models.

‘Pirates’ are also a source of innovation

  • 3D printing is likely to expand piracy much further as they will be available to consumers and internet enabled in a decade’s time
  • Fighting consumers doesn’t work, though the entertainment industry continues to spend money lobbying western governments and trying to put kids in jail
  • Swedish pirate party is now the third largest political party in the country by membership
  • Dichotomy of pirate radio: in London Metropolitan Police try to close the stations down but also advertise on them. Pirate stations act as ‘idea and talent incubator’ in mainstream media
  • Entrepreneurs go for a gap in the market, pirates go for gaps outside the markets
  • America industrialised by ignoring European intellectual property rights
  • Hollywood was formed by film-makers who didn’t want to pay royalties to Emerson
  • Effective pirates add value in some way and become part of the new order
  • Remixing adds value, it gives new purpose to products that companies wouldn’t have otherwise realised – co-creation
  • Fashion trends are essentially piracy; then the market becomes saturated with copies people want something different and the trends move on
  • Convenience is a key competitive advantage over ‘piracy’ for instance iTunes
  • You can beat piracy through a superior experience – Wolverine pirate rips drove a hunger to see the film at the cinema. People who pirate a lot of stuff, buy more

Video is on Vimeo, so depending where you are you may not be able to see it.

Shanzhai on Tottenham Court Road

Shanzhai | 山寨 is a kind of innovation, ingenuity, craziness, imitation and piracy merged into product design. Shenzhen as the electronics workshop of the world is often considered to be the spiritual home of shanzhai, but its real origin is the ingenuity of the tinkerer and the often latent creativity in the engineer.
Dual SIM 'Vertu' Ferrari edition phone on sale in a Tottenham Court Road electronics store
This shanzhai business has become just as global as the major consumer brands. I took the picture above with my iPhone of a window display from one of the electronics shops on Tottenham Court Road. The label washed out on the picture but described the phone as:

Vertu Ferrari edition dual SIM good condition

If you look online you’ll see these phones described with language such as replica, but the ‘good condition’ phrase looked as if they they trying to pass the phone off as real, but secondhand. Who are the real crooks? The guys that make these ‘replica’ phones or the shopkeepers who take liberties with their product description?



A book store, Microsoft and the future of mobile

Back in 2002 I worked very briefly with colleagues who were trying to get their head around open source software in particular the so-called LAMP stack which threatened Microsoft’s server and tools business.  LAMP stood for Linux, Apache, MySQL and PHP. A quick surf of The Register will show you some of the approaches that Microsoft took to try and address the open source software threat:

  • Miscellaneous whitepapers
  • Heavy government lobbying (I’m sure that it’s no accident that the NHS uses Windows)
  • Studies including the infamous “Get The Facts” website (a tactic that they’ve repeated with the recent BS-riven Do The Math site)
  • Lobbying all that would listen to them that the GPL licence was bad for innovation
  • Patent assertions and providing indirect financial aid to SCO’s legal actions against the open source community

It has extended its legal efforts to deal with threats on the mobile landscape by looking to hamper the Android operating system by using its patent pool to demand licensing arrangements from the likes of HTC and Motorola. Barnes & Noble has also been using Android on its Nook eBook reader (think a colour Kindle on ‘roids), so Microsoft legaled them as well. The interesting thing is that Barnes & Noble didn’t roll over but have instead rolled out the big guns attacking on two fronts:

  • The validity of the patents
  • The nature of Microsoft’s practices (this is especially interesting as Microsoft has just finished the terms of its agreement with the US department of justice following the late 1990s anti-trust trial where it was found to be a abusive monopolist)

If Barnes & Noble succeeds it could change the face and direction of the market for mobile devices and influence other legal actions involving parties like Apple, Nokia and Samsung.

More content here:

Barnes & Noble Charges Microsoft with Misusing Patents to Further an Anticompetive Scheme Against Android – Groklaw

TechEye stirs up trouble for Microsoft in Barnes & Noble case – TechEye