is it a Flanimal or are we all a little Captain Pottie

I read recently that Ricky Gervais is being sued for plagiarism over his bestselling children’s book Flanimals, apparently writer and artist John Savage has claimed that Flanimals is based on his book Captain Pottie’s Wildlife Encyclopaedia.

He has lodged court documents that states Flanimals breaches the copyright in his book by being broadly the same in content and character, and that both books involve a whimsical take on the animal kingdom through the use of drawings and text.

I don’t see it, yes it is both those things but they are concepts and not subject to copyright, Judge for yourself. I think this is pure greed and jealousy and that he really wants a bit of that Ricky Gervais’s success if not his money I see this as destined to fail, however the courts are funny beasts.

A spokeswoman for Gervais has denied the claims and revealed the dispute has been going on for some time and dates back several years. They claim that the concept and illustrations of Flanimals pre-existed John Savage's work and that they have no claim to answer.

You can check out Captain Pottie’s Wildlife Encyclopaedia and just search Google for images of the Flanimals and compare for yourself, like i said I am not convinced. 

More derails on this story can be found here Ricky Gervais sued over best-selling book article the Melbourne Age.

What do you think,? Leave me a comment 

an incomplete guide to how not to compete with the internet

It is an interesting world that we live in these days, and no doubt this is an expression you may have heard many times before however it just always fits the scenario so well regardless of what the topic may or not be and this time does not disappoint. Today I sat down and proposed a set of hypothetical questions regarding challenging situations facing some company’s, none of the items or actions that I will question are criminal acts, some may present civil remedies if addressed in a court but none are illegal.

This may surprise some of you, after all I will use the words “stolen” and the expression “rob you blind” in a couple of the questions I propose to ask , but of course if these hypothetical situations were happening to your company then maybe you might see it that way too. Expressions and claims like these are often bandied about so their inclusion in my hypothetical questions does not mean the assertion itself is true and I suppose that is part of the problem as I see it.

The devil is in the detail in all of these questions as I explore real life examples of remedies that set to corrupt archaic laws and refashion their use to suit companies that refuse to adopt to a changing set of circumstances as man kind moves to the digital age and leave the analogue behind. I hope to illustrate the very inventive but morally corrupt ways that the companies that are experiencing the very things that I have questioned and what they are doing in response.

And although it is might seem strange that nothing on my list is illegal or criminal it should seem alarming that the companies facing some of these problems are turning to lawyers, politicians, the courts and international treaties to address the issues and provide solutions that their lack of vision have allowed happen to them. These companies armed with copyrights, patents and trademarked ideas and concepts are attempting to reinterpret existing laws and expand their scope to cover things that were never envisioned.

What do you do if your customers have abandoned your business model and embraced other technological solutions offered by others who have no respect for your intellectual property?

Well you might just sue your customers and sue and sue and ask law enforcement to prosecute the providers of the software that has provided the means for your customers to steal from you and then maybe lobby politicians to enact laws that protect your obsolete and analogue product’s business models because of all this supposed theft.

I feel the problem with the music industry is it’s not that people are not consuming or paying for music, it’s just under the old and very successful analogue model they consumed less and paid more, so why they ask can’t we they have the status quo but would prefer that if they customers consume more they pay more. The initial response to this change in landscape for the music industry was to hold on tight to the old model and to confuse consumption of a digital product as a lost sale and based on this premise present huge losses as a need to act to government and huge losses can only mean lost jobs a currency the government deals in.

It just popped in to my head “constraints”, I was thinking about how I could illustrate a point using an analogy that the music industry could understand about the economics of supply and demand and the different between a scarce item and an abundant one, and I could because its easy and its been done before.

But then I realised they must know this and all their actions show that rather than adapt to the realities and opportunities that new technology holds they would prefer to use technology to create constraints to the digital alternative by creating locks on others using the resources as if they are a recreation with the physical limitations of a scarce tangible product.

It just means that because technology allows us to have unlimited access to resources of music and film that we should pay the prices that a locked and closed physical world allowed. I am not arguing that content should be free and that although I would prefer that price I understand that content needs to be made and that a return on capital is required.

What do you do if you’re a company that feels that some one has innovated just a little too much and that now you can’t compete on equal terms any more?

Well you can do what a lot of successful companies have done rest on your laurels and use your arsenal of patents to sue them for damages and then extort exorbitant licensing fees from them or just become a patent troll acquiring and suing the real innovators.

This approach undermines the very reasons that patents exist they are meant to foster innovation and provide some recourse and artificial property rights in exchange for sharing the knowledge of said invention, however it would appear that everybody has to play the game for it to work.

What happens is that you may not seek to patent your inventions and to share your ideas however the cost of doing this is that others can accuse you of patent infringement of their intellectual property or worse having your own intellectual property ideas patented by others. So you as a company keep building this impenetrable fortress of patents, it is as broad as possible to fend off others and it can also be used to sue others in the hope of a big settlement if the competition gets too tough.

In the early days of software development in the United States of America business practices could not be patented and software was correctly viewed as a business practice. Software innovation boomed with out the need to constantly patent and defend, this has of course changed and software has been patentable for a while now, I don’t think that it has had the intended outcome that proponents of patents would argue it has and seems that the courts are dealing with business disputes that should have no legal standing at all.

What do you do if you hear negative feedback about your company and although it may be true and you don’t want others finding out about it?

These days the easy and most efficient way is to accuse them for defamation in the hope that they will just shut up and go away, well that if is you know who they are but even if you don’t then that’s OK just sue the service provider that hosts the content, exert a bogus copyright or trademark claim and have a DMCA notice issued.

The internet has opened up the opportunity for people to blog and comment on issues of concern, the same way that the invention of the printing press allowed the expansion of expression to the masses. The internet has broadened this concept allowing two-way interactions on a level never before experienced. However not all commentary is complementary and some although the comment in question may very likely be true, it may question the companies policies and procedures in ways the company would prefer nobody else knows. Companies use varying methods to tackle the issue, but surprisingly talking to the aggrieved customers about the issues is seldom one of the approaches taken. No these type of organisations rather than dealing with the root issues will very quickly send a lawyer's letter demanding retraction of the comments or commentary at issue. Many people fearful of courts and the legal system reluctantly compile with the demand and the problem goes away for this company free to continue the practice that first aggrieved their customer with no one the wiser.

However some people choose to ignore these legal threats knowing that one they are telling the truth and the law is on their side. This is where is gets deceptive and bogus copyright claims are used to issue a DMCA takedown notice against the web hosting company or the ISP. To maintain safe harbour under US copyright law these must be complied with, the aggrieved party can issue a counter notice, but then it starts to get real tricky. If however the ISP and web hosting firm don’t buckle under this pressure and remove the content, the company may then try defamation or slander against you.

These are not what these laws or the courts were designed for and it is an abuse especially so as the large percentage of these cases happen in the home of free speech the USA. I would always advocate that companies attempt to deal with their disgruntled customers and fix the issues that have caused the complaint or comment on the first instance.

What do you do when the world has changed so much that you find out that not only are you not competing any more but that you never have really known how to compete at all?

I think this is a one for the newspapers and how they have adapted to the digital landscape and I have to say not well, I have written quite a few articles on how I feel about newspapers and their failure to accept the reality and adapt.

Hiding in your shell and demanding that all others do the same, or adopting an ostrich position with the head placed firmly in the sand is not in my opinion are not a sound business models yet any astute observer may have noticed this stance.

The most successful news aggregation and distribution models favoured big media. There were considerable barriers, being the high costs of entry, technological restraints as well as government regulation that conspired to keep news gathering and distribution in the hands on the minority. The news was owned by big media, they traded in this commodity, they controlled access and content, they were the licensed purveyors of news and if we wanted access we played by their rules. The internet changed this and big media have failed to adapt as yet, I think they will but paywall’s don’t appear to be the answer or does trying to lockdown content with the Hot News doctrine.

Now that the barriers to entry are no more that a PC and an internet connection these huge media conglomerates are hemorrhaging money, and blame their woes like the other industries that I have covered in this article on the internet.

If only the horse drawn buggy industry had fought so hard the carbon emissions debate would not exist, as we all caught the buggy to work. These industries need to realise that they need to adapt and adjust to the new medium pretending you still hold the reigns on control is just embarrassing as is their actions to date. The internet has made many people rich, not because they stole from legacy industries but because they adapted to the changing landscape and most importantly worked out who their customers were and who was going to pay, these are not necessarily always the same.

What do you do if you find that commercial success has eluded you and all the hard work that you have done is being stolen from right under your nose?

Monetize piracy and turn to the tried and true extortion ratchet. Success used to be measured by sales or ratings but in reality the only true gauge to a company is in cold hard cash and the actual dollars and cents. These days although you have had a sum what successful and acclaimed product and yet not see any of the financial rewards that you feel are owed. So it is a no surprise that when these companies are approached by lawyers who having watched the successful abuse of the legal system by the RIAA in suing thousands of people who had downloaded non authorised content, decide to use the same approach.

The produces of the Hurt Locker have done just this

The company that produced "The Hurt Locker" is suing thousands of so-far unidentified people it says illegally downloaded the Oscar-winning war movie.

The lawsuit, filed Monday in U.S. District Court in Washington, D.C., by Voltage Pictures LLC, seeks damages and an injunction against 5,000 people it claims used an anonymous file-sharing protocol called BitTorrent to distribute copies of the movie, in some cases months before its release in U.S. theatres. Below is further details on the tactics from arstechnica article you can read the full article here

The move is part of a new international approach to recouping some of the money believed lost to online piracy. It is spearheaded in the US by a new entity calling itself the US Copyright Group, which has filed a host of such lawsuits in recent weeks against P2P users, mostly involving smaller independent films. The Hollywood Reporter first noted the lawsuit campaign, which isn't designed so much to stop piracy as to monetize it. t's pretty much straight from the RIAA playbook, though RIAA cases rarely ventured beyond the KaZaA network. BitTorrent could be more problematic, in part because each person often serves up only small bits of the files in question.



What sets these cases apart are that the parties believe they can make money; the RIAA always said it wasn't making anything on its campaign, in part because it actually pursued people like Jammie Thomas all the way through the court system, and on multiple occasions. This is obscenely expensive at the federal level, and it's not clear if the US Copyright Group really intends to take named lawsuits all the way to trial.

This is basically a extortion ratchet and nothing more.

What do you do if you’re in an industry that once dominated the world but now you are seeing other countries lax enforcement of intellectual property rob you blind?

Lobby politicians and take over trade treaty negotiations to implement a new world order all under the guise of an anti counterfeiting trade agreement.

Below is further details on the tactics from arstechnica article you can read the full article here

ACTA began in Berne, Switzerland on September 9, 1886. European countries came together and signed one of the first major copyright treaties, the Berne Convention for the Protection of Literary and Artistic Works, in part due to the influence of French novelist Victor Hugo.



Berne was revised many times over the next few decades, but it largely stuck to its original mission of dealing with copyright in books and artwork. In 1961, the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations added a major new set of copyright guidelines to address the needs of TV and record producers and actors—a case of the law changing with the times.



When the Internet crashed in upon the analog world of copyright in a terrifically disruptive wave, rights holders wanted Berne and Rome updated for this strange new digital era.



This new digital world put copying technology into the hands of the public, and the public went to town.



Well, you could pass another international treaty with tougher terms. But WIPO—why, there's too many nations who won't go along with further copyright restrictions, the whole process is (relatively) open and involves NGOs, and it's slow. These are all drawbacks. Instead, what about a smaller and separate process, with no unnecessary oversight, little transparency, and a "coalition of the willing"? Oh, and if you can set it up in such a way to avoid legislatures in countries like the US, that would be a big bonus.

So here we have ACTA a way to enshrine copyright protection on a global level through a back door so to speak.

What do you do if you see an innovative service that helps their users do the things they want to do with their own data by accessing your site with their user’s authorisation when these are your customers?

The problem is not that every case is the same, but that no two cases can ever be the identical and that the facts are never easy to determine, judges rely on precedents set in other rulings to guide decisions in interpretation of complex systems. So if a precedent is set using a dodgy application of law as a justification that justification can be argued and extended and that is what I feel is happening in many cases.

There is a case where Ticketmaster was able to have software banned because its use could violate the terms of service of its website. This software was able to utilize the limitations of the site and exploit them for optimal output. This is obviously something that should be praised and however it was not illegal to do so difficult to stop. Ticket scalpers were able to game the system using this software and so instead of getting Ticketmaster to fix its site they banned the software using corruption of existing laws to make violating the terms of use a criminal act.

Now in many jurisdictions ticket scalping is illegal so that there was no additional law required but this was not just about stopping ticket scalpers what if customers could use the software system themselves no this had to be stopped. So how do you outlaw the items used in a crime? Well you just corrupt another law in a case of if the end meets the cause, then who cares about the means.

So it would now appear that a company can write new laws into existence, in asserting non compliance to terms and conditions. But take this further and suddenly the justice system can be used against anyone whom fails to read yet alone obey a terms of service created by a private body, does this not sound creepy?

So you can sue a competitor for computer hacking and abuse for violating your terms of service, if they allow your customers to use their software to access your site if you say no and obviously can’t technically stop it. I think that no one should be held criminally liable for not obeying the terms of service on a website; however this is an end game that is being played out in increasingly more in today’s digital landscape.

So that is it a big list of what to do’s if you feel you no longer can compete since the internet has revolutionised the world. What do think do you have an opinion?

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be careful in New Zealand free speech is no more, don’t mention the World Cup

Next year New Zealand will be hosting the Rugby World Cup, these days there is a world cup for everything under the sun, but it appears that for business hoping to win over any rugby fans better be careful with what words they use to promote their event or promotion. New Zealand has a little-known of law that restricts using the words 'rugby', 'world' and 'cup' to promote fundraisers, promotions and special events that are not authorised by the Rugby World Cup committee and each breach could cost up to $150,000.

The bill that outlaws this is The Major Events Management Act 2007, (MEMA) and it was passed basically to give the Rugby World Cup unfettered control of the key words associated with the event. We are told that in all seriousness that common sense will be used when considering the act, pity common sense could not prevail prior to the passing of this blatant removal of New Zealanders rights.

The major problem with laws like this is that the World Cup of what ever sport or activity is a celebration of the event and that community support outside of the official sponsors is crucial for success this tends to amputate that type of support. I would ask what harm can the local school in Edendale near Eden Park using signage using the words "Rugby World Cup" to promote a sausage sizzle do.

Will local car rental operator suddenly steal the cups thunder if they are allowed to use the words that describe an event that is happening in their locality? Will travel agencies be able to promote the Rugby World Cup because if they dare use the actual words describing the event then they most probably will the fall foul of the law?

Again the organizers say they are looking only for malicious breaches, and that they are not going to be overly heavy-handed. They assure us “We'll use common sense”.

Hard to use common sense in this when the whole concept is so ludicrous, that the mere act of describing an actual event in your promotion is illegal. Worse still this act not only applies to this event but may others deemed to need protection from profiteering, god help the community for getting behind a local event. It is said the act is there to stop other companies coming in and pretending to be associated or piggybacking, and that might seem fine but the method and application is all wrong.

So what can New Zealanders do? I would suggest just ignore the whole event, if you are a business why waste your time courting fans of an event that obviously neither the organisers want or by their actions indicate they need. The community guarantees the success of this event so if the organizers don’t want your help why give it. Another option might be to use other alternative descriptive words such as “Global Football Goblet”, people are not nearly as stupid as the politicians or organizers must think they are and will get the link. Finally business could put their support behind inclusive community events that would welcome their involvement rather than greedy international sporting codes that think it fine to corrupt the English language for their own gain. 

What do you think? Is the corruption of generic words as trademarks going too far? Will you be putting your support behind the “Global Football Goblet”.

Is it still possible to own the News?

These days the media moves very quickly when it comes to reporting news, it would appear that well anything newsworthy (or not) such is our veracious appetite for information these days, occurs anywhere in the world, in only mere minutes the story in all its full glory is posted and disseminated on the internet for all to see. The reporting of the news however does not just begin and end with the big media these days.


The world definitely moved on with the invention of the printing press, it allowed for the beginning of the news bureau and the adaption of the newspaper; from there the distribution platforms expanded considerably with the invention of the photography, the moving picture, the telegraph, the telephone, radio and probably it’s most successful distribution platform ever television, well at least until the internet’s debut just over 20 years ago.

So with the exception of the internet, all of the most successful news aggregation and distribution models favoured big media. There were considerable barriers, being the high costs of entry, technological restraints as well as government regulation that conspired to keep news gathering and distribution in the hands on the minority. The news was owned by big media, they traded in this commodity, they controlled access and content, they were the licensed purveyors of news and if we wanted access we played by their rules.

However these days no sooner is something reported that it is tweeted, buzzed, posted in Facebook, emailed, linked to and added to countless other social media platforms. There are also blog’s, which serve as a valuable adjunct to mainstream media by allowing ordinary people to create and comment on the news and the issues affecting them. Some of this distribution of the news and opinion is happening without it being sourced from big media at all but independently created. However I would suggest that most definitely a larger percentage of all news and information that is being freely shared on the internet is being sourced from the traditional news organizations publications as they have moved online, in a bid to remain relevant to today’s consumers.

Of course it’s not always old media that is the first to report the news these days.  There are conflicts and disasters that occur in geographical locations that political unrest and censorship prevent the mainstream media access let alone the ability to report the news. This type of reporting used to be the preserve of the local media or dedicated foreign correspondents it was fraught with danger and getting the message out was only one of many dangers that faced the journalist. But interestingly these days the old-established media is using both its traditional news gathering techniques, but also borrowing from non traditional sources such as blogs and photo sharing sites.

So it used to be in our not too distant past that this dissemination of the news was the preserve of the big media/content barons and the news associations such as Associated Press, they spread the news to the masses but it's not theirs alone anymore.

OK you say, so people are breaking news on Twitter and other social media sites, that is no big deal! It’s definitely not news! And oh by the way nearly everybody is doing it! Is there a point to this or what? Well yes, there is a point and yes you would be right many people are posting and sharing breaking news on social media and yes I think that it is a good thing. The free expression of news and ideas can only be beneficial to a society, to a community, to mankind, we are all better off with free and unencumbered access to news and information. However, lately there has been a lot of talk about the online news by big media and how the bloggers of the world are just stealing their content and reposting it, sometimes as their own works.

Newspapers are going broke and it’s all our fault, why it’s our fault is a little unclear, but still apparently this will have to stop. There are outrageous claims that without the old-established mainstream media there would be no new news, and so the world’s established old media organizations are looking to build walled gardens around their News sites and we the reader if that’s what we want to remain, are going to have to pony up and pay and yes the News will once again be owned by big media.

But once they build their nice little pay sites, what stops those nasty little bloggers doing what they have always done, and just paying and stealing the content anyway. I don’t know but I suspect it might have some to do with enacting copyright.

Copyright has in the past as is now been used to protect the economic interests of the creator’s of semi intangible ideas and concepts allowing them to assert ownership over said concepts for a pre determined period of time, and thus allowing them to profit from their work and stimulate the further creation of ideas and works by others in providing an artificial mechanism of protection from theft.

This has of course not has not yet happened, I am of course hoping that it will not happen, but coincidently some news headlines lately have floated the idea of hot news an artificial barriers (limited copyright) to prevent others from posting this news for a predetermined period of time.

So to my point, if big media owns the news, will I be able to post of said news in my own words to this blog, or will I be barred for a pre determined amount of time from reporting because NEWSDOTCOM owns that story.

Could this one day become a common headline in blogs around the world?

Breaking News, due to Copyright restrictions we are unable to divulge or report on today’s news, please bookmark this site and return tomorrow when we will legally be able to report on today’s news in the mean time feel free to peruse the many fine article of old news we have available courtesy of NEWSDOTCOM.

But as a caveat for being able to bring you the hot news of today tomorrow may you may also have to credit  the source of the said news that you can’t yet report, and worse still will need to provide a URL link to the hot news story that you can neither report or discuss until their monopoly access to this piece of hot news expires. It sounds scary doesn't it ?

And yes of course this all sounds a bit far-fetched, and yes I am clutching at straws to believe that all that I have written will materialize as reality, however I would like to point out that nothing changes all at once ( it won't happen overnight but it will happen type scenario) and that legislation used to protect the encumbered industries has a way of creeping up on us and can sometimes bring with it stifling unintended consequences and at worst create  state sanctioned monopolies thats real and only aim is to benefit its shareholders . The news was once owned, it was set free by the internet, let’s hope that an outdated business model dose not take it back to where is was before, kicking and struggling in the process because  it is you and I that will lose.

Like this article? have something to add?  please leave a comment I would love to hear what you have to says, thanks.

in Massachusetts the Sun Chronicle puts a price on free speech

I wrote an article a couple of week ago about internet forums and the problems that Masterchef was having with theirs you can read that  article here, well it would appear that they are not in this alone in dealing with this problem of rouge comments appearing in the comments sections of their website . I was alerted to this posting at the Sun Chronicle website from Massachusetts stating that they are reintroducing comments on their articles apparently the comment section  have been off the air for a few months due to inappropriate comments from some anonymous readers, you can read the full article here. So it appears they took the knee jerk reaction and just pulled the comments section, well after a couple of months absence it's is back but now with a twist. Under the new arrangement to be able to comment you now have to register, no big deal accept this time you need  to register with a valid credit card and a incur a one off charge of 99 cents for your right to exercise your right to free speech well at least at this internet site.

To enforce this change, all posters will be required to register their name, address, phone number and a legitimate credit card number. The credit card will be charged a one-time fee of 99 cents to activate the account. The poster's name as it appears on the credit card will automatically be attached to the poster's comments, as will the name of the community in which they live.

I can understand what they are attempting to do, but I don’t care how much it actually is 99 cents or 1 cent I am not handing over my credit card number just to leave a comment. Like I have said previously,

“The problem that these forums face is they will encounter comments that are not reasonably minded; some are racist slurs, hate speech, religious vilification, spam or any other sort of unsavoury, unwanted and most definitely uninvited speech.”

However although requiring registration is appropriate demanding payment for them to authenticate your identity is not. I still think that this approach is wrong and that it only stifles speech and removes a problem that the Sun Chronicle don’t really want to deal with by applying the appropriate resources, that they no doubt did with physical letters to the editor. I also wonder how the issue of credit card theft, and the rights of the people who post now that any aggrieved party can petition the courts to have the Sun Chronicle release the identity of any poster of comments.

Like I have said I always post comments under my name but I can understand why some people may choose not to want too, I applaud the Sun Chronicle actions in reopening the comments section just question the fashion and method that have chosen to use.

What do think leave me a free comment here, love to hear what you have to say.