Textual Fisticuffs

Imagine something with me for a moment. Imagine that you are an amateur filmmaker, citizen journalist, something of that nature. The sort of creative individual, newly empowered by affordable technology, that makes politicians and old media types crap themselves in terror. You have a great idea for a new project, some fresh oeuvre sure to cause further soiling of three-pieces in boardrooms across America, and all that’s left to soort out is wardrobe.

Imagine yourself making a journey to your local place of garment commerce and buying a new pair of Levi’s. You may make your own selection of cut, button fly vs. zipper fly, none of these are vital to the story, so go nuts. Buy apricot-colored jeans if you like, I don’t care. Now take your jeans into the fitting room to try them on. But before you do, read the tag:

Jeans Usage Rules

We know that people like you love our jeans and sometimes want to use things like their color, cut, and general styling (“Garment Content”) to make things like musical performances, videos, and other cool things (your “Item” or “Items”). We’d like to make that easier for you. So long as you can respect these rules, you can use our Garment Content to make your Items.

What can I do?
Here are the magic words from our lawyers: on the condition that you follow the rules below (“Rules”), Levi’s grants you a personal, non-exclusive, non-transferable license to use and display Garment Content and to create derivative works based upon Garment Content, strictly for your noncommercial and personal use. This license is limited by the conditions and restrictions below, so please read them. We can revoke this limited-use license at any time and for any reason without liability to you.

What are the Rules?
In order to make sure we can continue making jeans we love to make and you love to wear, there are some Rules that apply to our license grant for your Items. It’s tough to predict everything people will do, but there are some things that you can’t do.

You can’t reverse engineer our jeans to access the assets or otherwise do things that the jeans don’t normally permit in order to create your Items.
You can’t use Garment Content to create pornographic or obscene Items, or anything that contains vulgar, racist, hateful, or otherwise objectionable content. Whether the content is “objectionable” is up to us. And like the old saying goes, you know it when you see it.
Except as described here, you can’t sell or otherwise earn any compensation from your Item, including through advertisements in the Item.  This means you  can’t charge money in exchange for your Item, post it on a site that requires subscription or other fees to view the Item, or post it on a page you use to sell other items or services(even if they have nothing to do with Garment Content or Levi’s). You also can’t use Garment Content in an app that you sell in an app store.
You may post your Item to a page or website that has advertising, but only if you do not earn any money from that advertising.  For example, if you post your video on Youtube or Vimeo and there happens to be an advertisement next to it, then as long as you don’t get paid for that advertisement, the fact that there is an advertisement on the page doesn’t break these Rules. But enrolling in the Youtube partner program (or other similar programs), where you are entering into an agreement to get paid, is not allowed. On a similar note, if you create and distribute a free app, then you can’t earn any money from advertising in that app.

I don’t know about you, but it’d be a cold day in Hell before I bought another pair of Levi’s.

This is pretty much what Microsoft is doing to the machinima community. Machinima artists use video games as costumes or puppets, and now Microsoft has announced that they are delighted to let artists continue to do so, so long as Microsoft is the only one to make any money as a result.

You can’t tell me that the existence of machinima using Microsoft titles is somehow cutting into their bottom line. In fact, they’ve made pretty good use of the Red Vs Blue guys in the past to advertise the Halo. Further, machinima (or at least good machinima) is pretty clearly a derivative work, so I can’t see Microsoft winning any sort of lawsuit over intellectual property. So what gives? I’ve got a pretty vivid imagination, and I can’t come up with a single explanation for this behaviour that doesn’t involve an excess of lawyers and a complete lack of common sense.

A few days ago Microsoft announced some forthcoming changes to the End-User License Agreements (EULAs) for their various products. Henceforth, agreeing to the EULA will mean surrendering your ability to participate in a class-action lawsuit against Microsoft regarding the product you’ve just purchased. But it’s okay, says Assistant General Shyster Tim Fielden, because doing it this way means you’ll get even more money than you would if you won a class action! Yay money!

For instance, we permit arbitration wherever the customer lives, promptly reimburse filing fees, and, if we offer less to resolve a dispute informally than an arbitrator ultimately awards, we will pay the greater of the award or $1,000 for most products and services—plus double the customer’s reasonable attorney’s fees. Most important, this approach means customer complaints will be resolved promptly, and in those cases where the arbitrator agrees with the customer’s position, the customer will receive generous compensation, and receive it quickly.

So not only are you guaranteed at least a grand, but you’ll get twice what you paid your own shyster just to move some paperwork around! Good God, this is going to cost Microsoft a fortune, what the hell are they thinking!?

Ah, no.

Despite ample evidence to the contrary, Microsoft’s leadership isn’t stupid. They’re not making this change because it’ll be great for consumers. They’re making it for two reasons. First, individual customers going into arbitration with Microsoft and getting a small settlement doesn’t make headlines. Class-action suits do.

Second, a successful class-action suit forces a company to compensate everyone who was affected by whatever caused the suit in the first place, even those who can’t afford an attorney or can’t take time out of work to appear in court. But under this new EULA Microsoft will only have to compensate people who a) realize that they’ve been screwed, and b) have the wherewithal to hire an attorney and make a stink. This effectively excludes such broad demographics as the technologically unsophisticated, poor people, single parents, people who work two jobs, people who work night shifts….I could go on, but you get the idea. Microsoft will save millions of dollars by effectively disarming the portion of their customer base most in need of the protections offered by the class-action mechanism, ostensibly so that “customer complaints will be resolved promptly, and in those cases where the arbitrator agrees with the customer’s position, the customer will receive generous compensation, and receive it quickly.”

If you needed just one more straw to make the switch to Mac or Linux, this ought to do it.

Fellow Nokia fans, mourn with me. Our Finnish friends have tumbled from their place at the top, brought low by their Korean competitors and their Canadian CEO. At this rate their spot in James T. Kirk’s 23rd century stolen Corvette is in serious jeopardy.

I carried a N95 for four years and loved it. Barring the devices available only to people who lived in Japan, it was the absolute pinnacle of mobile technology at that time and came in an attractive, easy to carry form. It had stereo sound, dedicated media controls, and a 5mp camera when the competition was lucky to have 2mp. It had GPS, turn-by-turn and an accelerometer. It had multitasking before the iPhone even had third-party apps. It had a Python interpreter, for God’s sake!

I only switched away from Nokia when it became pretty clear that Symbian’s days were numbered and that Android was the future. I bought myself a Droid, thinking “No worries, in a couple years Nokia will have caught on and started making Android handsets, and then all will be well.” Given that they were already making Linux devices it was practically a foregone conclusion that Nokia would turn to Google for their next OS. But then came September 21st, 2010, when Stephen Elop (formerly of Microsoft) became Nokia’s first non-Finnish CEO and shortly thereafter announced that Nokia would begin making Windows smartphones, and I had a little Picard moment.

The results have been depressing but completely and utterly predictable. Nokia lost the top spot in smartphone sales to Apple in second quarter 2011, and has now lost the lead in overall phone sales to Samsung. It isn’t especially hard to see why.

Back in 2010 when Nokia realized that they were in trouble, there was some pretty evident market wisdom staring them in the face:

• When you’re winning you can afford to be closed. When you’re losing, go Open.
• Making your handset stand out from the pack is less important than making sure it has the same apps as everyone else. Differentiation is not as important as having Angry Birds.
• Two is company, three is a crowd.

For reasons that the Nokia board will no doubt take with them to the grave, they decided to ignore all of these truths and go with a fledgling, untested operating system with scant big-name app support, made by a company whose attempts to play in other people’s yards (e.g. Kin, Zune) could charitably be described as “horrific vomit-inducing failures”, in a market that clearly wasn’t looking for a third way.

I would love for Nokia to come to their senses, ditch Windows Phone, and use their amply-demonstrated industrial design chops to produce an Android device as gorgeous as the Lumia 900, but I just don’t see it happening so long as Elop is running the show. I think the best we can hope for is for Nokia to fade into pleasant, sepia-tinted memory alongside BeOS and the Amiga; A maker of great products that we remember fondly and whose winning characteristics we will defend vigorously long after they’ve ceased to matter in any way whatsoever.