Wednesday, April 23, 2003

Trademark Ramifications of Spoofing Continued This will be interesting. Madonna has reportedly uploaded "decoy" files to peer-to-peer networks, in order to discourage piracy. Users who believe that they are downloading Madonna's new album receive instead a recorded admonition from Madonna herself advising the user to respect the copyright in her work (not precisely in those words). When the record companies began 'spoofing' the P2P networks, I wondered aloud what precisely might happen if it became known that an artist was disseminating low-quality or no-quality versions of one's own work under one's own trademark, and I referred to one possibility as self-tarnishment. Well, from a branding point of view (which is what I had in mind when I said what I said), we are seeing something of a backlash against Madonna. Look at the comment thread here filled with threats never to buy her records again. Also, her website has been hacked. Whether she makes this back with re-gained sales, hard to tell. The trademark analyis is more complex. This assertion that Madonna is possibly abandoning her mark may go too far. In any event, how Madonna could be said to abandon her mark to the point that she couldn't prevent another recording artist from naming themselves Madonna is hard to imagine. The trademark analysis may hinge on the legality of a 'normal' transaction on a peer to peer network and the user's expectations. When someone is downloading a copy of an album from a peer to peer network, and they believe that they are downloading an unauthorized copy of a copyrighted work (or have an objectively unreasonable belief that they are authorized to download the work), is that transaction even considered to be lawful commerce? Does the law protect infringers from being deceived? On the other hand, if these P2P transactions are legal, well, then, the spoofer might have some problems, trademark and otherwise. [The Trademark Blog] I love reading these law blogs! It's like reading Scientific American, not really getting it all, but at lest understanding the implications. 1:02:20 PM

Projections Don't Matter I saw a presentation this week with the usual hockey stick revenue projection... what I like to jokingly refer to as the $1m, $4m, $10m, $1 billion slide. The team didn't make the mistake of talking about their projections as overly conservative (which they clearly weren't) but they did click right through the slide as if it told the whole story and warranted no further discussion. Revenue and income projections just aren't that important for an early stage company, I can "predict" with 100% certainty that they will be wrong. The important questions, needless to say, are by how much and in which direction; simply looking at a 5-year projection of an income statement gives no way to tell. I would much rather see a slide of key assumptions that will drive a company's economic model than I would the result of those assumptions spread into an income statement. My advice to entrepreneurs presenting to VCs would be to focus on the most important financial drivers of your business. Depending on the specific model, these could include the price of the product, the cost to build or serve the product, the customer acquisition costs, the cost savings inherent in scale, the capital expenditure and development costs required to build the product and so on. Explain and defend the margins that should be realizable once the business gets to scale. And give a sense of what kind of market share you should be able to realize over time. But save the projected income statement for your business plan... it really provides no information content during a presentation. [VentureBlog] Now that I've completed a large portion of my business/marketing degree, I can absolutely understand why this is true. In this last paragraph, he basically listed the 4Ps of marketing: product, price, place, and promotion. 12:52:09 PM

Nerve-wracking, inflexible, and unintuitive. via Scott Rosenberg: There is an interesting survey on Radio UserLand usage among the bloggers at Salon.com. Reading the responses for the question "what do you like/dislike about the existing Salon/Radio features?", one gets the impression that using Radio is not a very pleasant experience. The words cumbersome, nerve-wracking, inflexible, and unintuitive are used to describe the software and the words pathetic, sporatic, and impersonal are used to describe the support. One respondent: "ask other bloggers, not Userland, when you need technical help." Hmmm... didn't Dave Winer say open source software makers were the ones who did not care about users? Sounds like us open source guys are not alone ;-) But seriously folks, I bet that many of those complaints also apply to Blogger, Movable Type, and, of course, Roller (OK, I have no idea about Movable Type). Blogging software makes web publishing a lot easier for non-geeks than it was with tools like FrontPage, but we've still got a ways to go. The responses for "what additional functionality is needed in Salon/Radio?" are interesting as well. Better get on it UserLand, Salon just did your market research for you. Good ideas for Roller too. [Blogging Roller] Of the twelve (count 'em, 12!) respondents to this survey, few use a news aggregator... not sure I can consider this conclusive data, though, can you? 12:30:11 PM

Charles Hudson On Software Charles Hudson (of In-Q-Tel) describes very nicely in a recent post how and why software is increasingly moving from being sold as shrink-wrap to a service. The services or ASP model is unfairly maligned because of a number of unsuccessful attempts at it during the late 90's. Those failures had more to do with the product than the model. I think the most important point Charles makes is that we don't even tend to realize that many of the services we use today (PayPal, Yahoo) are really just hosted software. [VentureBlog] I think Charles is right, but I don't know what this means for desktop software. SOAP, .Net, and other desktop network APIs continue to take hold, as people recognize the inherent limitations of applications via web browsers. While software services are a simpler business model than the software upgrade model, the technical challenges and historical customer perspective of controlling "things in" the computer seem large compared to "things visited by" the computer. And many software tools aren't transactional in nature... If I sell you a word processor service, do I turn it off if you don't pay the bills? 12:28:39 PM

The Wine Known As Two Buck Chuck An attentive reader, inspired by the Spaldeen piece below on protectable rights in a public's nickname for a product, forwards this pertinent story from winebusiness.com. A $1.99 wine by Bronco Wine named Charles Shaw is popularly known as TWO BUCK CHUCK. A third-party has now come out with its own TWO BUCK CHUCK wine. Now all Blog readers will know what law governs rights created by nicknames (should it come to that), Ironic tidbit: Speaking of nicknames adopted as trademarks, the attentive reader works at MOFO. [The Trademark Blog] A favorite among my family and friends hits the blogosphere in a weird way... :-) 12:14:29 PM

Tabacco Company Tells it Like it is Licensed to Kill is the name of a new tobacco company founded in Virginia on March 19,2003. Whether it will ever really sell tobacco is another story. The company was founded simply to prove how easy it is to set up a corporation whose charter might not be all that welcome if the truth was actually told. Sure, it's kind of a spoof. Here's a clip from their corporate statement: "Licensed to Kill, Inc. is a tobacco company. We knowingly kill people for profit. And we're proud of it. In fact, it is the explicit aim of our corporation. Just check our articles of incorporation. We're not like other tobacco companies that try to obscure what their business is about. If you market cigarettes, you market death. It's that simple. In a country which effectively allows corporations to be formed without regard to their purpose, corporations are allowed to kill people to make money. Addiction to cigarettes may be lethal, but profiting from spreading death is perfectly legal. Truthfully, as a corporation, we couldn't care less about the health hazards of smoking our products. Our bottom line is and always will be boosting profits for our stockholders. That is, after all, what corporations are about. You could say that we're 'addicted to profit.' " Clever. [Adrants] God bless freedom of speech! Sometimes you have to go over the top to make your point. 12:13:33 PM

The Audi-Oh Nick's always on us to post more salacious gadgets; fortunately BoingBoing's saved us the trouble (at least for today) by finding the Audi-Oh, a pager-sized "digital music sex toy" that all but guarantees a good time when you go out to a club. From the Audi-Oh FAQ: Simply put, Audi-Oh listens to what you are listening to and vibrates along with the sound. You can also input sound directly from a device like a CD player and get the same results. Sound = Vibration. Music = Fun! How long until the people from Audi send them a cease-and-desist for trademark dilution? Read [Gizmodo] I can see this being HUGE in the rave scene... :-) 12:08:22 PM

An Advertising System for RSS The advertising problem? Again, if no one actually goes to the actual weblog to read the article, any advertising on the page will never be seen. Just like the above mentioned "traffic based" ad delivery system, there needs to be a technology capable of "attaching" ads to RSS newsfeeds as they are sent out. Again, this could be done manually but it would be very inefficient. Perhaps the simple auto-attachment of a Javascript might do the trick. [Adrants] Really, the server-side component that assembles the RSS feed needs to take several factors into account: who is requesting the RSS feed? Yes, I know what you're thinking… Most people describe about RSS feeds as a "fire and forget" delivery method, where everyone gets the same data. But I think we should be handing out unique RSS feeds for each reader, so that we can see who's reading what and how often. how often the weblog is updated? If there is only one weblog entry per day, then each entry should get an attached ad. if there are dozens per day, then some subset of those entries should have ads attached. In other words, if every entry has an ad, the signal to noise ratio drops considerably, thus diminishing the point of aggregators in the first place. Does the RSS feed include just the title, a short intro, or the entire piece? The kind/size of the ad should correspond to the kind/size of the entry. 12:07:51 PM

Beer Advertising Shocker! Puppies Instead of Boobs In a backlash from the mudwrestling jiggle-fest, Molson has a different approach: The Molson Man. A hunk for the ladies with an advertising twist. Sell the hunk to the ladies in Cosmo and sell the fact that the ladies are being sold to in men's magazines with this interesting copy: "Hundreds of thousands of women. Pre-programmed for your convenience. As you read this, women across America are reading something very different: an advertisement scientifically formulated to enhance their perception of men who drink Molson." [Adrants] I finish Integrated Marketing Communications today, and this ad story broke the same week we talked about appeals and creative briefs. 11:59:48 AM

Jeremy Zawdony says that he got a... Jeremy Zawdony says that he got a sneak peak at some stuff Inktomi was working on, and he says Inktomi knows "stuff" about weblogs. Intriguing. Can't wait to see what they are thinking. [The Scobleizer Weblog] Hmm... caching companies basically study the structure of the web to optimize delivery. Interesting that they would be able to use their core competency to see something interesting in the structure of the blogosphere... 11:58:38 AM

A Comprehensive Review of the Email Marketing Scene Emerging Interests: Email Marketing 101 and Then Some A great report, helpfully split into the following parts: Introduction Industry Overview Industry Overview Chart List Development and Maintenance Tips The Importance of Relevance, Frequency and Consistency Ensuring Readability Email Success Stories The Spam Battle Rages on Anti-Spam Tips and Resources Recommended Resources Email Terms and Definitions Posted by Robert Loch at 02:22 PM Comments: (post your comment) [marketingfix] I predict that email marketing has hit its peak. Email marketing is disruptive marketing at its worst. Weblog marketing is permission-based marketing at its finest. 11:56:20 AM

The good that MIT does I met Berkeley CS Professor Christos Papadimitriou yesterday. He told me an extraordinary story (which he allowed me to share). Papadimitriou is publishing a book this summer with MIT Press. The book is a novel titled Turing. As Papadimitriou describes it, in one chapter he has a single line from about a dozen rock-n-roll songs. The editors at MIT press decided to seek permission for each of the 12 comments single lines. They sent out 12 letters. They received 10 forms (which had to be completed before the request could be considered) and two replies. One reply, from the representatives of the Kinks, demanded $1500 (corrected) for permission to reprint a single line "help me, help me, help, me sail away" from the song "Sunny afternoon," and $10,000 for a more extensive quote. The other reply, from representatives of the Kobain estate (which I assume is within Courtney Love's control) forbids him from reprinting the line "polly says her back hurts" from the Nirvana song "Polly." MIT has nonetheless decided that these words are protected by fair use, despite these demands. That is rare in this business. Publishers are among the most conservative "fair users" -- not because they don't believe in free speech, but because they understand the burden of non-free lawyers. If a lawsuit is filed against a publisher for copyright infringement, the cost of answering the complaint can suck up the total profit from the book. Thus, however generous the Supreme Court thinks it is when it defends "fair use," the relevant "fair use" is the freedom publishers permit. It is a great thing that publishers like MIT can help set the standard. The law should make it easier for others to do the same. [Lessig Blog] In case this missed your radar last month, I'm clearing out my overloaded drafts folder... a big Hazah! to MIT for calling "bullshit" on our apparently diminishing fair use rights. But will it be hauled into court to set a legal precedent? 11:51:37 AM

Agitating for more RSS in government Tip o' the hat to Paul Ford of FTrain.com, who penned a letter to the United States Supreme Court on Monday asking that the high court make dockets, opinions and orders available in RSS format. He even cites my efforts here in West Virginia. Ford's letter to the court is part of a series of Four Letters to the United States, in which he urges the White House, the Senate, and the House of Representatives to increase public awareness of governmental activities by making RSS available. (Thanks to Radio's referrer logs for the pointer.) [Rory Perry's Weblog] This would be fantastic!!! 11:38:23 AM