November 2nd, 2009

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Ad Age 8 Things About TV Everywhere

http://adage.com/mediaworks/article?article_id=139995

I expect folks will like TV Everywhere. The question is always "compared to what." Unmentioned in the article is that cable operators generally include an "alternative media distribution" clause. Or, in other words, the largest cable ops can insist that TV Everywhere is the only means for distributing content available via cable online -- if one believes in cable market power.

As always, it's complex, messy and some sets of solutions will preclude others. The immediate question that grabs my interest is whether we should treat "over the top" distributors like Netflix and Hulu as covered by the statutes that prevent cable operators from denying programming to competing providers like DIRECTV. There is a near 100% overlap between broadband access providers and subscription television providers (that is to say, nearly all remaining broadband access providers also provide subscription television, not that all subscription television providers have broadband access -- although if you include resale agreements that set is pretty common). This creates a powerful incentive for existing MVPDs/broadband access providers to disadvantage "over the top" providers in the same way cable had an incentive to disadvantage DBS in the 1980s and early 1990s.
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Christie Monty Python Clip: Fair Use Or Copyright Theft?

Another fun one in the political speech v. copyright. Christie (the R Gubernatorialcandidate for NJ) used a clip of Monty Python for a political ad. More details (and the clip) here:
http://www.huffingtonpost.com/martin-lewis/chris-christie-rips-off-m_b_341598.html

I suspect that a court would find infringement rather than fair use here. This differs from the spat of election year "I'm a liberal/conservative musician and I don't want the conservative/liberal candidate to use my music" because the music cases are covered by public performance rights. Here, Christie has taken a significant segment of copyrighted material and used it to comment on his opponent. this would appear to exceed what is usually permitted by parody. But this is not a parody fair use case. It is a political speech case, which is somewhat different.

I also thought the ad was pretty funny.
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My Election Prediction For Tomorrow: Lots Stupid, Simplistic Analysis Mostly Wrong.

Well, here it is, another exciting election day. Off year elections are usually pretty bland, except that our so-called political reporters can no longer do anything but cover elections and "horse races." Every story is about process and whose ahead because this takes no actual research, values all sorts of insider baseball things known only to the regular punditry, and fills lots of time on 24-hour news networks very cheaply.

The handful of actual elections tomorrow generally have to do with local factors and candidates. The most significant nationally is NY's District 23 election. Bluntly, if the Ds could not take this in 2008, it is profoundly unlikely they could ever take this district -- particularly in an off year. 2008 was a high-water mark in which a strong anti-incumbent sentiment and a huge get out the vote mobilization effort produced a dramatic D turn out at a time when Rs were demoralized.

Yes, the result in NY-23 will have some broader significance, but it is much more a test of whether conservatives still have moderate Republicans to alienate in their few remaining Northeast strongholds. It may indicate that conservative candidates acceptable to the base can win in some of the swing districts as the tide of enthusiasm ebbs from its 2008 highs. Contrary-wise, a D win in the Northeast is not terribly significant for remaining R strongholds. But expect much broader national implications to get read into the result.

VA and NJ have governors races which are likely to turn on local discontents. In VA, the Democrat Deeds turned out to be a lackluster candidate who basically won because he was competing in the primaries against Terry McCauliff who embodies every quality that drove the Democrats to such vaunted heights in 2002 and 2004 when he chaired the Democratic party. In NJ, voters are absolutely disgusted with the corruption of the D machine and still unable to do anything about it. these races will be portrayed as somehow referenda on Obama, despite the fact that Obama has been absent in VA and Christie (the R candidate in NJ) has generally said positive things about Obama.

The real action is, of course, in Maine on Question 1. That this is such a squeaker is dreadfully disappointing. Here, pro-same sex marriage forces did everything right. They took the challenges seriously and campaigned thoroughly. The anti-same sex marriage ads, by contrast, have been fairly incoherent and appeal only to the irrational "ick" factor of those contemplating something that breaks with what they think is "normal." Losing this would be heartbreaking and would underscore the serious challenge that remains in turning around ingrained attitudes. That and, as Bujold observed in Brothers in Arms: "Some attitudes can only be outlived."

Washington, of course, is another place to watch, but the stakes seem much higher in Maine, where we are actually talking about marriage.