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Its a smokey heat.

The monsoon season begins.

About 5 miles from my back door.

Closed Captioning and You Tube

Closed Captioning of Commercial Television has been the law of the land since 1996. Its genesis was the Americans With Disabilities Act (ADA) which gave us wide doorways, grabbars, ramps and Handicapped Parking. Section 508 of the Workforce Investment Act of 1998 mandated electronic and information technology alternative delivery methods such as closed captioning by government agencies.
This included websites, which has not been adopted completely by the government, and the Flash/AJAX development crowd has swept under the rug.

Ars Technica notes that there is a new Accessibility bill introduced into the House of Representitives.
New bill mandates closed captioning for Internet video
This is a remix/refresh of the Communications Act of 1934.
While the bill can be read to only apply to commercially produced video, the line between personal and commercial has been blurring on the internet for some time. Video sharing sites like YouTube who are trying to monetize themselves may be considered commercial soon. Other sites who use pre and post roll advertisements are definitely commercial.
Most digital cameras allow you to make video, so you can be seen by millions. With this legislation, the cost of video sharing will go up. It is one thing to provide closed captioning for the twitter whore, it is another level of complicated to provide a text description of somebody doing the funky chicken while jumping off his garage.

When you have a video that gets viewed 10 million times, and the closest commercial television program only has around 5 million there will be blood. The recent Drudge Retort AP copyfight points this out quite nicely, and that is a text argument.
Sites that wrap commercials around video or use pre and post roll advertisements are gonna get whacked.

Robert Scoble and Fast Company TV probably need to budget money for captioning equipment.

If you think that this or similar legislation is not coming, just think about who gets the best parking spots at your local regional lifestyle center. Do you want to be that person who says that folks with disabilities are not equal to you?
We live in interesting times.

H.R. 6320 is here
The National Captioning Institute has a good page of the current law.
Section 508

Copyfight – AP vs Rodger Cadenhead – No Winners

This copyfight has no winners.

Rodgers did not win.  Rodgers conformance, compliance, or capitulation, is his alone. It does not apply to you or I. It is not  a victory in any real sense. The closest description is a cease fire. Hostilities will  resume.

In every case it was an excerpt, which is ‘Fair Use’ and does not require the author’s permission, regardless of how much they wish to the contrary.

AP did not win because they attempted to legislate “Fair Use” by intimidation.  The AP saying ‘quoting a headline and the lede paragraph of a story’ is infringement is crap. It is AP’s attempt to maintain control over it’s ‘product’, the hook and the summary, (also known as the AP Style) with a headline and first paragraph, with the rest of the story explaining the first ‘graf’. They would really like to make this Infringement, because if you quote that, the story is basically over, you have the sizzle and the steak, the rest is fat and bone.

AP will need a bunch more lawyers to file DMCA notices, because unless they go back to the teletype, and have their owner-members erect paywalls, it will be quoted.

Robert Cox  gets an atta boy for his work in resolving this specific issue, Back Story on How AP and Drudge Retort Come to Terms especially in the speed of getting a large organization like the AP to make a decision without months of meetings, focus groups, and balloting, but gets a big aw shit for trying to sell us insurance, regardless of his statement of no commission.

We didn’t win, as what we think about excerpting and Fair Use is no clearer today than it was last week.

A club for me

Definitely, my  kind of club

Quote of the day

“it’s important to get more people talking about word of mouth”
Jackie Huba :Church of the Customer Blog

An Open Letter to Jim Kennedy, Vice President; Director of Strategic Planning @ Associated Press

Dear Jim,
Let me call you Jim as we are kind of informal out here. You can call me alan. We are just folks out here.

(Be advised that my comments and opinions are here are mine, and are directed to you as the Vice President; Director of Strategic Planning, and are not personal attacks.)

The internet lives by the hyperlink. Think about that for a moment. Every bit of information available on the web in any format that you can see on your computer or hand held device has a hyperlinkable address. Without the hyperlink, we would not be having this discussion. That fact alone should let you know that once information hits the web, you no longer have any sort of control over its usage..

I am one of the many people who feel that you are wrong in your use of the DMCA. I thought that I had covered my thoughts sufficiently in my two previous postings.

The Death Rattle of the Associated Press
The Associated Press, Fair Use, Copyright, and the rest of us.

However a story at the New York Times website has compelled my to write again. We will get to that in a few moments. First some background.

Recent events have catapulted you and the organization you work for, the Associated Press, into a highly visible position on the world wide web. Right now this is not a good thing. You have become the news. As your members will tell you, becoming the news compromises your ability to represent the news.

At issue is your organization’s filing a DMCA notice against Rodgers Cadenhead and the Drudge Retort website for Copyright Infringement. This is like using a thermonuclear weapon to clean leaves off your driveway.

The funniest thing here is the way it was done. They cut and pasted, (which may be either scrupulous attention to detail, lazy, or a gigantic infringment as most corporations, most notably in the news and entertainment industries would have the world believe) headlines and excerpts of the articles, providing a Hyperlink to the original story, which gives credit to the source, does provide an accurate, true, and correct quote of the source material.
You should be happy. Everybody else likes links.
These conventions such as Quote, Attribution, Credit and Byline, have been adopted from the news business because they are an elegant and fair method of establishing authorship, exchanging information, giving credit, and work to eliminate confusion between what was said, and what is being debated, or commented upon. So not every thing the news business is doing is bad.

This is pretty much the way most folks point to material for commentary. Also, in the case of weblogs, allows readers to read the materials we used to form our opinions and either agree with us or tell us we are full of crap.There really is no malice or a gigantic conspiracy on the part of the millions of folks who publish on the web. It is hard to get any group of any size moving in the same direction. Herding cats is easier.
You have succeeded however.
As you are discovering, folks out here are opposed to your action. The backlash that you are currently feeling is only the tip of the electronic iceberg. What the folks on the Drudge Retort site did was Fair Use as I have come to understand and use it.
Attempting to tell millions of bloggers how and what they can do especially regarding Fair Use and Freedom of Speech is doomed.

I don’t feel that you are fully understanding the arena that you are playing in. While you were using teletypes to broadcast your ‘content’ to your 1500 members, we were building a network unlike anything the world has seen, with over 100 Million members worldwide. I may be low on the figure on our end. Maybe you should have stuck with the teletypes.

The internet is an expanding series of computers, using open protocols, to exchange information. The visible portion you are seeing is the world wide web. It is a messy place filled with words, sounds, pictures and video. We are no longer passive consumers of filtered, homogenized, spoonfed, broadcasted information. We are creators, producers, and commenter’s of information, news, and opinion.
The internet is not just a cheap pipe for you to service your membership with your output.

You have two problems to overcome.

The first problem is your business model. You collect news and information, from individual reporters, homogenize it, stripping individual credit, rewriting it, and then sell it back to your members requiring your AP byline. Which in the days before the web was a cost effective model for smaller newspapers to inform their readers about world and local events.

However with the vast amount of individual reporting on events that can be uploaded to the web in moments, the ability to hyperlink that information, so that reader/viewership numbers far outstrip any dead tree or broadcast numbers you could possibly hope for, makes your relevance problematical. The most significant fact to understand is the vast majority is created on those computers by individuals. This material is known in the news industry by the pejorative term “user generated content.”
It is not a question of veracity or professionalism, it is a question of speed, and depth.

The second problem is attempting to control its dissemination once it shows up on the web. The current boycott postings should give you an inkling of just how fast folks can spread the word.

As you can see by the postings that are the subject of this lunacy, the speed at which things can be linked and discussed should make your nose bleed and your head hurt. Right now these folks are just boycotting AP Bylined stories. What should strike terror into your heart is when they expand it to include your 1500 members. Your members are already gasping for air, as their revenue streams are drying up, circulation is diminishing, and folks are getting their news from thousand of alternative news outlets. As more and more newspapers on the web open themselves up to reader contributions, your role will diminish.
Cheaper too, as most of us do not count ‘value’ in dollars and cents.

Now to your latest faux pas.
In a story on the New York Times website titled:
The Associated Press to Set Guidelines for Using Its Articles in Blogs
there were number of quotes that you made that require commentary:

According to the story:

After that, however, the news association convened a meeting of its executives at which it decided to suspend its efforts to challenge blogs until it creates a more thoughtful standard.
We don’t want to cast a pall over the blogosphere by being heavy-handed, so we have to figure out a better and more positive way to do this,” Mr. Kennedy said.

Gee Jim! that horse has not only left the barn but has traveled around the world. Any ‘standard’ you create is going to be problematic as your organization has no business or right to define Fair Use, for anyone you do not have a contractual relationship with, whom if I am close to correct, has the ability to post the entire thing, which is what you are selling. That being said, your thinking that you are going to release ‘thoughtful standards’ that will apply to the individuals on the web is disengeous, arrogant, and doomed to failure.

Right now like the movie Untraceable, you are hanging upside down above the roto tiller, but there is no pole to save you as more and more folks log on and the cable continues its inexorable downward path.

You then went on to say:

“As content creators, we firmly believe that everything we create, from video footage all the way down to a structured headline, is creative content that has value,” he said.

Since you are charging for it, it had better. Your job depends on that. And getting your members to believe that and keep those checks coming. However, that value is not measured in dollars and cents
out here. Today it may be ‘hot news’, but tomorrow it will line bird cages or wrap fish.
Also from the story is this:

One important legal test of whether an excerpt exceeds fair use is if it causes financial harm to the copyright owner.

You have already been paid for it at least once. It will be real hard to make a case for financial harm on that basis alone, irregardless of what percentage of a piece turns out to cross the Fair Use threshold, which at this point in time is decided on a case by case basis, requiring court action. Good Luck with that.

The final comment in the story attributed to you:

“We are not trying to sue bloggers,” Mr. Kennedy said. “That would be the rough equivalent of suing grandma and the kids for stealing music. That is not what we are trying to do.”

Actually, Jim you are. At the very least you are implying that we are thieves with your current interpretation of Fair Use, just like the RIAA and the MPAA.

So you can either step back and re-examine your policy, or you can hire a bunch of lawyers. Because we will hold bake sales, yard sales and tip jars, to fight this.

Your electronic pen pal
alan herrell – the head lemur

P.S. You need to double Irene Keselman’s salary, because anybody who can pull a rabbit like “Hot News Missapropriation” out of a hat, will get snatched up by some Intellectual Property Law Firm inside of 6 months tops.

The Associated Press, Fair Use, Copyright, and the rest of us.

Yesterday I mentioned the Main Stream Media Meltdown of the AP filing DMCA takedown notices against against Rogers Cadenhead and his community site Drudge Retort.
Shelley Powers left a comment that made me think.

“Rogers did not post enough information for any of us to form a knowledgeable opinion. What he’s done is trigger a pile on.
AP could be wrong, could be right — but we don’t have all sides of the story, we don’t even have the 7 posts, or have read all the communications.
I would think that people would appreciate getting all sides of the story before forming an opinion, wouldn’t you?”

He did post enough information on his site. The links are at the bottom of the page.
DMCA Takedown Request is here:
The Alleged Infringement is here:

AP is working under the theory that it is infringement based as far as I can see on the last sentence of the Copyright Office Fair Use definition:
“Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
This sentence should have special meaning for Shelley from the Lane Hartwell Copyright dustup.

Which strictly interpreted would give the AP the ‘right’, as every bit of AP work does have the All Rights Reserved Disclaimer. This however does not give them a free pass relating to Fair Use.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.
Source: US Copyright Office Website

As far as the AP side of the story, this note has appeared on numerous blogs. I stole this from Matt Ingram

AP wants to fill in some facts and perspective on its recent actions with the Drudge Retort, and also reassure those in the blogosphere about AP’s view of these situations. Yes, indeed, we are trying to protect our intellectual property online, as most news and content creators are around the world. But our interests in that regard extend only to instances that go beyond brief references and direct links to our coverage.

The Associated Press encourages the engagement of bloggers — large and small — in the news conversation of the day. Some of the largest blogs are licensed to display AP stories in full on a regular basis. We genuinely value and encourage referring links to our coverage, and even offer RSS feeds from www.ap.org, as do many of our licensed customers.

We get concerned, however, when we feel the use is more reproduction than reference, or when others are encouraged to cut and paste. That’s not good for original content creators; nor is it consistent with the link-based culture of the Internet that bloggers have cultivated so well.

In this particular case, we have had direct and helpful communication with the site in question, focusing only on these issues.

So, let’s be clear: Bloggers are an indispensable part of the new ecosystem, but Jeff Jarvis’ call for widespread reproduction of wholesale stories is out of synch with the environment he himself helped develop. There are many ways to inspire conversation about the news without misappropriating the content of original creators, whether they are the AP or fellow bloggers.

Jim Kennedy

VP and Director of Strategy for AP

Posted by: Paul Colford | June 13, 2008 11:43 AM

I have problems with the communication reportedly from the AP saying the words are from Jim Kennedy, VP and Director of Strategy, but is posted by someone calling themselves Paul Colford.

There is no disclaimer that Paul is writing for Jim, and this begs the question of whether or not Jim has his own email address or just a title. Jim Kennedy does work for the AP in that position according to the Media Center at the American Press Insitute. Paul Colford appears to be another Director of Media Relations at the AP according to this:

So the question beyond authenticity of authorship is the rambling assertion that they like bloggers, yet assert that licensing is the only true path to news nirvana.

The other nugget is the concept of “hot news misappropriation“, put forth by AP’s Intellectual Property Governance Coordinator Irene Keselman, whom if her LinkedIn profile is true is a part timer as she lists her own business as well but whose website seems to be MIA.

hot news misappropriation
It was bullshit yesterday and is bullshit today. Take for example the current situation. Every one of the alleged infringements were from sites that is paying the AP for content. The AP in reality has no standing here as it is no longer ‘hot news’. None of the infringements were sucked from the AP site. One could wonder if the AP wants to knock the RIAA off the top spot as the most reviled organization online.

Fair Use is an important part of our society, and is vital online.
Everything that is published in the United States is covered by copyright, and is also available for Fair Use. There is still no definite answer as to which percentage of an item consists of Fair Use, as some items cannot be easily chopped up into discrete bits such a photos, but a portion of a textual piece has been for many years even before the internet, has been used for criticism, comment, news reporting, teaching, scholarship, and research.

The only argument we are having is the percentage.

The AP cannot be allowed to win this one.

Headline of the Week

Enhanced Mahalo results in Yahoo thanks to Search Monkey

WOW!! Where can I get some Search Monkey! According to the latest spams, you can never have too much enhancements. Is is nasal, oral or anal? Inquiring minds want to know!!

The Death Rattle of the Associated Press

In yet another Main Stream Media Meltdown is the story of the AP filing DMCA takedown notices against Rogers Cadenhead and his community site Drudge Retort.

The Associated Press is an news organization whose function in life was to take original reporting from its members, homogenize it, (not unlike the production of Kopi Luwak, a coffee bean that is processed by running it through the digestive tract of an Indonisian marsupial, harvested from the resulting dung, and then offered for sale at a premium price as being unique) and offer it back to its members to fill in the spaces in local newspapers, whose own management think that news from elsewhere, having been stripped of origination credits, and ‘claimed’ to be accurate because it is the AP, is a good idea. I say ‘claimed’ as there is no link or credits to the original reports, which on the internet is silly, and is at the heart of this nonsense.

At one time back in the dark ages before the Internet, this was a good idea, as it gave local newspapers access to world events and reporting it could otherwise not afford. However with the Internet, the plethora of publishing tools, worldwide availability and the hyperlink, the AP is another business whose foundation is crumbling in the flood waters of websites, personal publishing, and the hyperlink.

According to this posting Rogers received this nugget:

AP feels otherwise. In a June 3 letter, AP’s Intellectual Property Governance Coordinator Irene Keselman told me:

… you purport that the Drudge Retort’s users reproduce and display AP headlines and leads under a fair use defense. Please note that contrary to your assertion, AP considers that the Drudge Retort users’ use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

There are a couple of things wrong here. First this is an opinion by AP, (opinions being like assholes, everyone has one and some of them stink, you decide) based on the theory that Fair Use does not apply to the AP. Everything that is published in the United States is covered by copyright, and is also available for Fair Use. There is still no definite answer as to which percentage of an item consists of Fair Use, as some items cannot be easily chopped up into discrete bits such a photos, but a portion of a textual piece has been for many years even before the internet, has been used for criticism, comment, news reporting, teaching, scholarship, and research.

“hot news misappropriation”

The second thing that AP asserts is “hot news misappropriation” What the fuck is that? Is this like calling a shopping mall a Regional Lifestyle Center?
My opinion, is that this is a bullshit semantic device to try to prop up the argument that the AP is not subject to the same Fair Use rules as every other organization or person in the United States. The French news agency AFP tried this with Google some time back, and it didn’t work.

Quoting a portion of a work is explicitly covered under the Section 107 Fair Use Provision of US Copyright Law. The bonus of the Internet is the ability to hyperlink to the original work. This lets you know that someone has done their homework, allowing you to decide whether or not the criticism, comment, news reporting, teaching, scholarship, and research, is true in as much as can be presented.
Let me give you an example. Here is US Copyright website Fair Use Statement.

Section 107 Fair Use Provision of US Copyright Law.

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:


the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Source: US Copyright Office Website

News by its very nature is nothing more than a record of events, as told by people who have experienced it on site. News used to be the bailiwick of journalists, whose desire to report events was their calling. With the rise of aggregating news organizations like the AP, UPI, Reuters and even AFP, there was a period of trust in these organizations in giving us the whole story.

The internet has changed this. We are not confined to single sources for news and information. Here are some other thoughts on this
Jeff Jarvis, Marshall Kirkpatrick, Scott Rosenburg, Mathew Ingram

Organizations like the Associated Press need to change, or they will become a quaint exhibit in the Newseum
(Update Hot News Misappropriation is a legal concept) Hat tip to Matt Ingram. I still think is is a bullshit term.

The virtues of being an old fart

One of the virtues of being an old fart on the web is being able to watch folks scramble to proclaim that they have discovered the latest communication medium that will transform the world into the Technicolor world of kittens, butterflies and rainbows. Envision Whirled Peas and all that.
Same Old, Shiny New Wrapper. NOW WITH AJAX!!

For example, Dick and Jane Twitteriffic will have you believe that all problems can be solved in 140 characters. “I cum therefore I sleep”, ” i has can writers block” “i has to pee, BRB” while significant, declaratory, perhaps even sanitary in nature, is more suited to the advertising and PR industries whose worlds are crumpled around their knees, while the waters of user generated content are rising above their chins. There are a lot of things that can be said in 140 characters, but most of them have lifetimes just a little bit shorter than your laboratory bred elements.

With the invention of ‘Social Media’, which as far as I can see, merely means having a sort of conversation in your browser, with weblogs, posting and commenting, relieving some folks of the burden of remembering that email serves the same purpose.

The Social Media crowd which consists of Ad Men, PR Flacks, and Internet Consultants, want you to join in the conversation. However, they would like to be able to generate some fees before you open up that blog. (Just because millions of folks have blogs, doesn’t mean that you know what to do with one, and need professional help)

Hell, everybody who knows anything, knows that PR is the most important career in the universe. Just ask Steve Rubel, or his boss, Big Dick Edelman. And just so you don’t think that BIG PR is the only solution, stop by Brian Solis,(the new energizer bunny of PR 2.0 Social Media) or Todd Defren, (the birthmother of the Social Media Press Release)

The politicians have grasped the bit of the Interweb jackass of danger and are moving swiftly to shut off those troubling tubes of child pornography, (once again disguising ‘motion as activity’ in going after the symptom rather than the disease), while grasping for every bit of loose change they can get funneled through their websites. Too bad they staff out those sites.

The expository bulimics like Nick Carr and Andrew Keen would have you believe that anything shorter than say 5000 words means that your are a shallow, ignorant child of the 3 minute media fix, and cannot grapple with anything more complex than a simple bass line. As an added bonus they use the very medium aka, the Internet to put forth their arguments that the Internet is the demonic lovechild of MTV and the cathode ray tube, while providing Amazon links to their latest books. And of course Google is the root of all evil.

Some of the folks who actually get the circle of ends nature of the net, are getting sidetracked into Vendor Relationship Management, which is an upscale version of Money for Stuff. That you are allowing yourself to be tracked, categorized, packaged, and sold to the next advertiser with a checkbook, is a personal problem, and does not scale. Until you cut off their access to yourself, expect more money saving coupons to show up in your browser.

I could go on, but I must take my Economic Stimulus Check over to my local Regional Lifestyle Center,(aka The Mall) and buy more cheap shiny shit, to let all my peeps know that I am supporting a lifestyle and culture that is bankrupt, and just doesn’t have the sense to lie down and die.

Rage Boy is Right…

Conspiracy theory, my ass. Schools and teachers, the motor vehicle bureau, the IRS, the military, the line at the bank, the television set, the newspapers at the checkout stand, the news on your radio, the billboards along the highway, and now a hundred thousand cold-comfort Web sites. All are tuned to your brain at the deepest level and you have lined up for the coolest, latest-model implant. The carrier wave has been tuned at huge cost to deliver a single message: you are not free, you desire nothing but the products we produce, you have no world but the world we give you.

If you’re OK with this, then eat it up. There’s a bulimic’s dream-feast of killer kontent on the way. But if it already makes you want to puke, get angry. Write it, code it, paint it, play it – rattle the cage however you can. Stay hungry. Stay free. And believe it: win, lose, or draw, we’re here to stay. Armed only with imagination, we’re gonna rip the fucking lid off.

There’s your market.