Majority Opinion: ABC is not guilty of copyright infringement
CBS, the company that films and produces “Big Brother” filed a lawsuit against ABC for creating an allegedly rip-off show, “The Glass House,” which—CBS claims—violates its copyrights in June 2012. In case you haven’t watched “Big Brother” before, check out some season highlights.
You get the idea—hot people, inevitable drama, fierce competition (contestants compete for a six-figure cash prize) all packed into one big house isolated from the rest of the world for a couple months makes for American reality television par excellence, especially with camera crews recording contestants’ every gesture 24/7. The moment the contestants enter the house and the door is closed, they are left to their own devices. Producers and camera crews provide no input to the contestants but instead act as invisible observers for the show’s audience. There are no scripts or prescribed plots, though there are “challenges” during the show just in case cast members aren’t meshing well for the show or to stir up more drama just for fun. “Big Brother” has run for thirteen seasons and counting.
“The Glass House” is quite similar: about a dozen contestants of mixed gender and ethnic backgrounds live together and compete for a large sum of cash. Camera crews record everything, and—like in Big Brother—the public can interact with contestants and influence the show through online media.
Okay, so the shows are similar. But how do we determine if ABC infringed copyright?
Now the legal stuff begins. Luckily, these sorts of allegations aren’t new, and past court decisions have arrived at certain conclusions regarding evaluating copyright that can help inform our decision here. In particular, Rice v. Fox Broadcasting Co., from 2003 cited the “substantial similarity” comparison established in a 1994 lawsuit used to assess copyright violation. The comparison has two parts: an intrinsic test and an extrinsic test. The intrinsic test is softer and more intuitive. It basically tests whether any reasonable audience would find the two pieces under question similar with respect to their underlying ideas and concepts. The extrinsic test, on the other hand, is harder and more specific. The extrinsic test is an impartial, evidence-based comparison of the “‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events’” (Kouf v. Walt Disney Pictures & Television, 16 F. 3d 1042, 1045 (9th Cir. 1994)). Both the intrinsic and extrinsic tests must favor “substantial similarities” between the two pieces under consideration in order to establish true copyright infringement.
The intrinsic test is easy. Clearly, the two shows are pretty similar, and any ordinary viewer would recognize these them. The extrinsic test is more tricky, but still rather straightforward, as we shall soon discover. It will help to review the extent and scope of copyright protection. As per federal copyright law, 17 U.S.C. § 102(b) states, “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Given that the extrinsic test explicitly requires a comparison of the plots, themes, moods, settings, etc. of “Big Brother” and “The Glass House,” the only way in which the extrinsic test will favor “substantial similarity” between the two works is if the similarities that emerge from the aforementioned components of the show are articulable, concrete, and specific. This is where “Big Brother” fails. To understand why, we need to do recap some details.
1) In its statement against ABC, CBS underscores that “Big Brother” is the result of years of trial and error with regard to the selection of contestants, filming, editing, and generally structuring the show. In particular, CBS claims that ABC has stolen its “trade secrets” and basically blames ABC of stealing them and using them in “The Glass House.”
2) CBS seems to pride itself on the manner in which it has learned to create a show out of something entirely unpredictable. Because there are no scripts and set plots, nothing is predetermined ahead of time, but their “trade secrets” and other strategic decisions—the house with an attached pool/spa, character choices, etc.—enable them to create a product that sells.
CBS failed to demonstrate copyright infringement on both of these counts. First, the trade secrets it has developed are apparently pretty standard practices in the industry. Filming people 24/7 isn’t a new idea; in fact, the idea was first introduced to the media in Amsterdam during the early 1990s. And the other technical feats that CBS claims to have developed are not copyright protected. Moreover, there simply fail to exist any specific, articulable similarities between the shows. Let’s take, for instance, an argument CBS made against ABC. CBS claimed that ABC’s character choice too closely resembled theirs in the way character dynamics played out. If producers from CBS had told contestants in “Big Brother” to act in a well-defined, specific way, and if these same behaviors were present in “The Glass House,” there might be some evidence of specific, articulable similarities between the two shows. However, because there is no plot in “Big Brother” and because the creators and producers of the show have no influence over these interpersonal dynamics the moment the doors to the “Big Brother” house are closed, CBS can’t blame ABC for violating their copyright. The lack of plot, scripts, and other such specific features of the show doesn’t permit CBS to fault ABC for their own related events in “The Glass House.” Thus, the “substantial similarity” comparison fails the extrinsic test, and ABC has not been found guilty of copyright infringement.
Dissenting Opinion: ABC has committed copyright infringement
While a lot of people think that CBS’s lawsuit against ABC was anti-competitive and merely a sign that CBS was upset another network was trying to steal their audience, I – or at least, in my incarnation as Justice Herz-Roiphe – was inclined to see the situation differently. It’s true that CBS did include a lot of fluff in its complaint alleging copyright infringement against ABC – things like claiming that ABC was infringing because it was using the same camera angles as CBS did in Big Brother. However, putting aside all the fluff, it turns out that CBS has a legitimate gripe.
The logic used by Judge Feess in denying CBS’s application for a temporary restraining order was flawed. Judge Feess wrote that “CBS contends that the key ‘articulable similarities’ between the two shows are the ‘plot, themes, dialogue, mood, setting, pace, characters, and sequences of events’…Big Brother does not, as a concept, readily exhibit any of these elements.” Judge Feess argued that, because Big Brother was an unscripted reality show where all of those elements were determined by the contestants on the show, he could not find infringement. On this count, Judge Feess is clearly wrong: the producers decide which parts of the “story” are included in the episodes that air on television. With thousands of hours of footage available to them, it is easy for the producers to selectively edit the show in order to create compelling narratives. These narratives may be exaggerated versions of conflicts that do actually take place in the house, but they may also be wholly fictional, made clear to the viewer by selective editing and using music to cue emotions to the viewer. In this manner, Big Brother exhibits – and the producers have control over – a plot, specific themes, and a specific mood.
The characters who appear on our televisions are not the same as the people who are filmed on the set – anyone who has been on a reality show can tell you as much. The characters who appear on television are fictional, and by virtue of extensive editing, they are entirely creations of the producers. As such, it falls to us to determine if the fiction that the producers of Glass House created was “substantially similar” – to use the legal jargon – to that created by the producers of Big Brother. We must determine that it is substantially similar both extrinsically (in terms of overall concept, mood, and feel) and intrinsically (in terms of plot, themes, dialogue, mood, setting, pace, characters, and sequences of events). Extrinsically, there is no doubt that the two shows are substantially similar. The concepts – putting strangers together in a house wired with cameras where they compete, strategize, and have romantic relations – and the attendant “feels” of the show are essentially identical. Intrinsically, the shows have many substantial similarities as well. The characters – not the actual recruited to be on the show, but the fictional characters that the producers make out the footage of them – are very much alike, as are the settings (houses with many cameras), themes (backstabbing, romance, competition), and sequences of events (competition, vote for elimination, reaction to that vote).
Imagine that we were presented with a series of books about a British wizard who attended a school of magic with a wise headmaster and a suspicious potions teacher and had to fight off a dark evil wizard. There is little question that we would be very inclined to find copyright infringement on the Harry Potter series. It is the same here. The fact that the works of fiction in question were created by using “reality” techniques makes no difference at all.
We are all familiar with memes and how rapidly they can explode online. But what exactly is it about a certain meme that elevates it from mere joke to a cultural staple? Is it possible to quantify the factors that constitute the success of a meme? For this project, I set out to do exactly that—through the attempted creation of a few memes on 4chan, I investigated the importance of certain factors that go into determining the success of a meme, such as shock value, inherent humor, current events relevance, and more. This discussion will be broken into three parts: memes I created, past successful memes, analysis and conclusions.
Disclaimer: The content and language in this report, particularly the replies of users on 4chan, may be offensive. This project is solely intended for academic purposes.
I: Memes created for this project
1. Spanish Shepard
Mass Effect is a popular role-playing game series set in space that already has a handful of memes associated with it due to humorous lines within the game itself. The game has no connection to Spanish culture, but a Spanish language version has been released. “Spanish Shepard” takes the face of the main character (Shepard), puts it on the body of “Blondie,” (played by Clint Eastwood in The Good, The Bad, The Ugly) and places him at the scene of the final level of Mass Effect. The following factors were kept in mind:
- Non sequitor humor (silliness)
- Factual incorrectness (“Blondie” is actually American)
- Bad Spanish (Google translated)
- Relevance to an existing Mass Effect meme culture
“Spanish Shepard” was therefore meant to test the validity of “silly internet humor.”
More can be found at http://imgur.com/a/D3IJ8
Four threads were created on 4chan’s video game board, “/v/,” over the course of two days. Two threads started by providing the image template and introducing it as “Spanish Shepard.” The other two started by reposting an existing example.
Reactions were mixed, with some appreciating the non sequitor humor, and perhaps surprisingly, some jumping on the factual incorrectness of the image.
Note the implicit understanding that this is a “meme,” despite the criticism.
Active references to the possibility of the birth of a new meme.
Correcting of Spanish.
Implicit suggestion that there is some sort of criterion for something to be a meme.
The full threads can be found in the archive linked at the end of this entry.
With these examples, we can reasonably place some weights on the importance of factors that went into “Spanish Shepard.”
- Inherent/Non sequitor humor (silliness)
Roughly half of those that replied enjoyed the humor, though it had no direct relation or relevance to Mass Effect at all. The “ridiculousness” of “Spanish Shepard” approached the point where something was inherently humorous, regardless of relevance.
- Factual incorrectness (“Blondie” is actually American)
Users were most critical of the fact that the premise of the image was incorrect—nothing about the image was actually Spanish. This suggests a framework of reason that goes into the success of a meme. Nonetheless, some users still found the image humorous, which suggests that enough inherent humor eclipses any factual issues.
- Bad Spanish (Google translated)
This prompted only a couple replies, but there was no indication that perfectly correct Spanish would have made the meme more successful.
- Relevance to an existing Mass Effect meme culture
This did not come up at all, which suggests that memes are independent of legacy.
“Spanish Shepard” can be characterized as a modest success—no independent propagations or reposts of the image were confirmed, but it prompted discussions of whether or not it had the potential to become a meme, as well as criticisms of why it couldn’t. It also provided a rough ranking of which factors are most important to a meme’s success, which will be explored further in the following examples.
2. Steph Jerbs
On November 4th, a user posted the following image on 4chan’s technology board, “/g/.”
The OP (original poster) took a picture of a portrait of a Steve Jobs tribute at his school to share with /g/, with the implicit understanding that the facial structure and body proportions were disfigured—prompting users to reply with the picture captioned with distorted Apple slogans, as if to emulate the speech of a person with autism.
The original thread died with only seven replies, and was not seen again. To clarify, I did not post any of the replies in the original post. I saw the thread and filed it away for later use as part of this project.
In December, I began reposting the image, with my own additions, as replies to various Apple-related threads on /g/. The full image set can be found here. http://imgur.com/a/Y5Hdd
The following factors were kept in mind:
- Offensiveness – The image directly makes fun of the speech of autistic persons.
- Relevance to existing anti-Apple culture on /g/
- Revitalization of existing content
- Accessibility of template
The results are somewhat surprising. Over the course of three days, I specifically targeted threads related to discussion of Apple products (numbering twelve in total), posting “Steph Jerbs” as replies, never starting a thread of my own. However, the image was largely ignored. One caveat to note is that I did not provide the template for the image. The goal was to see if the existing images would propagate on their own, not necessarily to encourage production of more macros.
Finally, three days after I stopped posting replies, I started a new thread providing the template for the image. One independent repost of an image I had posted earlier was confirmed. There was also one reference to the possibility of a new meme, and one other post suggesting the idea of the meme was not novel.
“Steph Jerbs” can therefore be characterized as a total failure, insofar as to say that only one other person was confirmed to having saved a “Steph Jerbs” image, with almost no discussion of the image’s potential as a meme.
We now go back to the factors that went into this “meme:”
- Offensiveness – The image directly makes fun of the speech of autistic persons.
Perhaps most surprisingly, offensiveness played no part in the success or failure of the image. 4chan is known for being a crass and offensive community, yet in the case of memes, the failure of “Steph Jerbs” would suggest that offensiveness is not an important factor in determining the popularity of a meme.
- Relevance to existing anti-Apple culture on /g/
Though I limited my posts to only threads related to Apple, this also seemed to have little effect, suggesting that relevance to existing culture plays a minimal part—a conclusion that aligns with what we saw in “Spanish Shepard.”
- Revitalization of existing content
This was included because, as we will see later, many currently popular memes enjoyed a period of hibernation between their first introduction and their eventual hit. However, “Steph Jerbs” would suggest that this is not all that important.
- Accessibility of template
The template was provided from the get-go in “Spanish Shepard,” and was not provided in “Steph Jerbs.” However, neither produced any independent derivations, suggesting that the accessibility of the template is not a large factor in a meme’s success.
We now have a more refined idea of what makes a meme successful—the greatest importance seems to be its inherent humor, while details like relevance to existing culture and factual correctness seem to take a backseat to humor. Smaller details like accessibility have minimal effect that would require further study to illuminate, while offensiveness seems to have a much smaller effect than would be expected.
3. “Do you really have to…”
Adult swim, a late night television network, produces extremely eccentric video shorts for its viewers to enjoy in the early hours of the morning. One such example is the “Tim & Eric’s Show,” and one episode features a dwarf person singing on what appears to be the set of a talent show. Video here: http://www.youtube.com/watch?v=7x_usQD33Xw The song’s catchphrase appears at 0:50, and the lyrics are: “Do you really have to pee in a girl’s mouth / to make babies?”
I took this phrase and attempted to turn it into a meme, with moderate success. The goal was to turn this into a stock phrase of the form “Do you really have to X to Y?” With that in mind, I prepared a list of derivations that drew on existing memes. Examples:
I then posted a thread on 4chan’s Random board, “/b/,” beginning with the original phrase and replying with the rest.
The following factors were kept in mind:
- Generality: the phrase offers no constraints on the type of content it may be used for. It only has to be of the form “Do you really have to X to Y?”
- Inherent humor/shock value: the original line is quite creepy and humorous
- Accessibility of template: since it is just text, it is easily accessible and requires minimal effort to produce a derivation
There were additional challenges for this case in particular however, because I was posting on /b/:
- The sheer volume of posts would make mine easily lost
- /b/ now features ID hashes for each unique user in a specific thread, which would make it obvious that I was the only one posting
- 444444444 GET was happening (where users all spam in an effort to try and “get” the post number 444444444)
Despite these challenges, the meme was a moderate success! I posted two threads in two days, and each received numerous independent derivations, totaling over 25 people who independently created new content based on my original post. There was also no mention of the phrase “becoming a new meme,” which, counterintuitively, is a good thing—the meme becomes organic, not a “forced meme.”
Now going back to the factors that went into this meme, we can see why each factor was important:
- Generality: because the premise is free, there is virtually unlimited possibility for derivations
- Inherent humor/shock value: the rhetorical nature of many of the derivations makes it generally humorous
- Accessibility of template: this is closely related to generality, but the text-based nature of the meme requires extremely small effort on the user’s part to spread.
- Added effect: the general nature of the meme made it easy to reference other existing memes within it, solidifying its potential as a new meme
What we can take away from “Do you really…” is that generality and ease of integration into the existing meme framework seems to be the most important factor in determining the success of a meme. There was no specific cultural relevance that accelerated its development, and the original context of the meme (peeing in a girl’s mouth to make babies) became less important as more derivations came in. The value of the meme is in its general, rhetoric nature, not in any specific circumstance.
II: Past Successful Memes
We can now take a look at other memes to see how these factors fit into their successes.
This is perhaps the most general of the popular memes today, as it only requires the specified text to be prefixed by a “>” sign, highlighting the text as a green “quote” on 4chan. Because of its wide-spread use in other contexts (“>” is used in emails to designate quotations as well), it’s origin as a meme is hard to pinpoint, but its popularity can’t be understated. Generality here is the only factor, as there are no cultural references or inherent humor built into the “>” mechanism. Instead, the humor comes from the content of the story that comes within the greentext, which may vary.
The inherent humor in this meme stems from the shock value of having a children’s cartoon be used in such a vulgar way. There is also an aspect of generality to this in that the phrase can be used to refer to humorous situations in a general sense, as the link shows. Here again, cultural relevance is not an important factor.
This meme is general in that it can be used as a reactionary post for a variety of situations. As the link shows, the phrase can also be modified and applied to other existing memes to facilitate its spread. There is great value in the humorous phrase “rustled jimmies,” but I would argue that the humor is secondary to its generality. It is the generality that enables the humor to spread easily to other situations, thus creating a meme. One thing to note is that like “Steph Jerbs,” “rustled jimmies” also went through a phase of hibernation between its first introduction and eventual success. But “Steph Jerbs” was highly specific, while “rustled jimmies” is not. Therefore this suggests that a hibernation period is not an important factor in a meme’s success.
Another point to take away from these successful memes is that none of them are particularly offensive in any specific way. In order to further explore the concept of offensiveness in memes, it is worthwhile to analyze the memes that came out of the Connecticut Sandy Hook elementary school shooting.
Though distasteful, we can gain useful insights into meme culture by viewing the Sandy Hook shootings through the lens of what factors go into making a meme successful. In the days after the shooting, /b/ was filled with numerous threads making jokes about the shooting, with many striving for meme-status. It would take far too long to systematically analyze the failures of each one, but suffice it to say, none of them really made it past a couple of days. This is evident in the volume of threads and posts relating to the shooting on /b/: after the first two days following the shooting, the number of threads relating to the event dropped significantly. Twenty-four of these threads are saved in the archive available at the bottom of this post.
However, one picture appeared with regular consistency in each of the threads, and continues to do so: a picture of a young Adam Lanza in a blue polo shirt in what is presumably his home, looking at the camera with an eerie grin on his face. More so than any elaborate joke or copypasta, this image appears to have survived as a general and ubiquitous meme-characterization of the event.
In my view, this picture is not offensive—it merely depicts the person responsible for the shootings. To use the terms of this analysis, the picture is “general” in the sense that it can be used as a general representation of the event. This result is similar to the Aurora Colorado shooting, after which many memes initially appeared, but ultimately died out. In the end, the one meme that emerged from the Aurora shooting was a picture of the shooter James Holmes sitting in a courthouse—a general classification of the event.
The fact that the resulting memes from these events were general pictures, and not more offensive copypastas (of which there are plenty), speaks volumes about the importance of offensiveness in determining a meme’s success—that is to say, offensiveness is not an important factor.
III: Analysis & Conclusion
Throughout this report I have introduced some possible factors of what makes a meme successful. Keeping in mind that this project only produced three “memes,” these results are meant to be broad classifications, and readers are encouraged to take them as merely suggestions, not conclusions. However, combined with the analysis of past successful memes, I am reasonably confident that this is on the right track.
Factors (in proposed order of importance):
- Inherent humor
- Cultural/current events relevance
- Accessibility of template
- Factual correctness (where applicable)
- Revitalization of existing content
Our examples have shown that the most successful and popular memes all share an element of generality, in that they can easily be applied to a number of situations. Following this is the inherent humor, which is harder to quantify but relatively easy to identify—we know it when we see it.
This suggests that for a meme to succeed, it must first be general. This can be thought of as its “raw potential.” Then follows the humor index—after a certain threshold is reached, the meme explodes. Other factors like cultural relevance (the shootings) may also cause the meme to take off, but their thresholds are placed much higher.
I envision the metric for measuring a meme’s success to be something like this:
The red curve represents the meme’s raw potential, that is, the generality. The more general it is, the greater chance it has to take off. The horizontal green line represents the humor threshold—once this level is met, the meme can take off, but until such condition is met, it cannot gain momentum. The bounds are normalized at 0 and 1—the most successful meme in history would asymptotically reach 1—memes that are both insanely humorous and incredibly general. Rickrolling might place highly on this metric, in which case we can specify an arbitrary second horizontal line, and say that once a meme’s success value crosses that line, it is able to “break out” of the internet and into the real world.
If we were to place current memes onto this graph, most would sit on the plateau right near the humor threshold—mediocre in quality, local in scope. “Spanish Shepard” might be on this plateau, while “Steph Jerbs” would be in the pit close to zero, while “Do you really…” might place just above the humor threshold—only time will tell if it truly takes off.
Again, this model is meant to be a rough way to graphically organize the successes and failures of memes. The exact mathematics of this model would need a more in-depth study and quantification of the humor and generality of memes, but an exponential function to represent the generality, combined with a polynomial factor to include the humor threshold, might do the trick. Some might say that it is futile to attempt to quantify such intangibles, but economists have spent decades trying to quantify utility, so why not the success of memes? Generalizing with models can be a useful tool to eventually understanding the sociology of memes.
Memes appear all around us online as ubiquitous jokes that seem to have no specific origin or reason as to why they are popular. Through this project, I have attempted to illuminate some of the factors that determine a meme’s success, and the results are simpler than one might expect—humor and generality. Things like cultural/current events relevance and offensiveness might seem relevant at first, but I contend that they take a back seat to more important traits (and in the case of offensiveness, no seat at all). In this we see that online memes are eerily similar to biological ideas of evolution and spread. An analogy might be made between memes and viruses—their most important traits are that they are able to spread, supplemented by a baseline value for effectiveness (in a meme’s case, humor).
Once again, this project was meant to be a broad introduction to the quantification of memes, and what kind of metric one might use to do so. The limited sample size hinders the validity of the results, but my hope is that this will provide a stepping stone to those that wish to pursue this idea further.
Zip file of source threads: https://dl.dropbox.com/u/86113/engineering_a_meme_threads.zip
Edited for size of pictures. Added archive link. Fixed graph axis error.
As final project, our group took to experimenting with the merits of Arnold Schwarzenegger’s muscles, The Wanted’s unknowingly witty lyricism, and the world of meme culture that has exploded across the internet in the last couple of years. The final result of the project took shape in two forms: (1) a video (see below) that uses clips from the film original “Pumping Iron” and an audio mash-up of “Glad You Came” and Kanye West’s “Stronger” and (2) a blog incorporating Playing off of the source material’s assertions of masculinity, the video is meant to explore questions of copyright, vidding and the culture of remix.
The opening bit takes directly from the movie, a “steal” we considered essential to our recreation of Arnie’s character into a ‘cumming’-ecstatic beast. In pairing the “Glad You Came” song to these clips of Arnie, we meant to introduce a sexual connotation that related to the source material but deviated significantly from the song’s intention. In that sense, the work is purposefully referential to the culture of vidding that the course touched on. With respect to copyright law, we found our work to pass all tests: it is made for educational use, is significantly transformative in its combination of several audio and video sources for a whole that is a new invention and this work bears no effect on the potential market for any of the copyright source materials involved.
The second piece of the project translated into a meme-centric blog using the same catch phrase from the “Glad You Came” song. The Tumbr can be seen here. The blog drew from a number of image sources, most prominently Google image searches and our team’s more personal finds from friends’ Facebook pages. In each case, issues of fair use are relevant but we found the degree to which the GLAD YOU CAME meme-tagline could have transformative effect on the interpretation of these images. In all cases the (albeit crude) message implies a sexuality to which none of our subjects, with the exception of a couple of team submissions, have verbally consented. To be clear: the works were not meant to bully or attack the subjects: instead, to develop a meme that was significantly transformative of the original intentions of each picture manipulated by suggesting that the facial expressions were orgasm-based, not unlike our video tries to establish.
When people find out about Apple’s Find My Friends app for the iPhone, they usually say, “That’s pretty creepy.” They then immediately download the app onto their phone.
Find My Friends takes location sharing to its inevitable conclusion. You know how it’s always such a pain to have to update your location manually (on Foursquare, Facebook, or Twitter) whenever you arrive somewhere in order to let your online friends know where you are? Well, Find My Friends solves this problem with a simple solution: it shares your location with your friends, all the time. That is, if you add a follower on Find My Friends, he will be able to look up where you are at any time of the day, without alerting you that he’s checking up on you. (I think Google Latitude does the same thing as Find My Friends, but does anybody actually use that?)
The implications of this app are incredible. To be honest, over the course of the month that I’ve had it, I’ve really enjoyed this app. I don’t have to text friends about getting to lunch or class at the same time, because I can see if they’re already there. And no longer can friends just mutter an excuse about “attending to some business” and sneak out of the door on a Thursday night. Sometimes, I don’t even bother looking up from my phone to see if a friend is sitting across the room from me. I just look it up on Find My Friends.
All of this sounds like Big Brother’s wet dream. Who would have thought that people would be not only able, but also willing to share their every movement with others? Who would have thought that locational privacy would be a commodity that we prize so little? Will our GPS data really only be used by us? The sum of our privacy is probably a combination of where we are, what we are doing, and what we are thinking. Find My Friends makes it seem normal to have people always knowing where you are, and perhaps even, by extension, what you are doing.
To point out the madness, I tried to think up a way to tangibly demonstrate the problem of oversharing. The result is this video.
To make this video, I followed two of my friends on Find My Friends over the course of 48 hours (Friday, Nov. 30 and Saturday, Dec. 1) by taking regular screenshots on my iPhone. Then, using Google Street View, I basically made a stop-motion video retracing their steps through New Haven. In essence, I recreated their day (or at least the time they spent outside) through the information I gleaned from Find My Friends. You’ll see that I also threw in a few Facebook pictures to illustrate that using other social media, I can add context to their locations as well.
It’s worth noting that Find My Friends doesn’t keep a log of users’ movements, so I had to manually take screenshots in order to keep track of my friends. If you’re curious, both of the friends are sophomores, one in JE and the other in Saybrook. I’m not revealing information beyond that, but you can probably infer a few more personal details from their various destinations.
I hope that people come away from this video a bit troubled by how easy it is nowadays to knowingly overshare and make your every movement a public affair. I certainly came away from this project with that impression. I also came away from this video with a newfound respect for the editors of stop-motion videos and a lasting hatred of screenshots.
The video’s production was hampered by a number of technical limitations. Google Street View does not cover all of the streets in New Haven, so I had to choose my source material carefully to make sure that nobody had to, for instance, walk all the way down High Street. In addition, my original intention had been to retrace my friends’ movements over two or three weeks, but I cut it down to two days when it became apparent how impractical that task would have been. I had also originally intended to follow four of my friends instead of two, but iMovie had no option for a four-way split screen (this says as much about the problems with appliancization as it does about my technical ineptitude). Finally, the compression artifacts and graininess of the video is due the fact that it was apparently necessary to convert the format of screenshots several times before I could import them into my video.
Finally, it might be worth making note of the blatant copyright infringement in the musical accompaniment of my video. It seems to me that this video could qualify for fair use on the grounds that it is educational and has no effect on the song’s market value, but we all know that YouTube doesn’t care about fair use. I’ll just write “No Copyright Infringement Intended” right here. That should keep those DMCA complaints away.
Check out our new website, Yalies, Law, and Technology: Personal Stories. The goal of the project was twofold: First, we wanted to bring the course material beyond the confines of our own classroom and see how what we studied in class applied to the lives of our friends and classmates. Second, we hoped to see how the stories of our classmates built on top of class material and forced us to think about what stories of individual lives can tell us about legal and cultural institutions.
We hope you enjoy hearing these stories and can send in your own!
~MH and JY
Our final projected consisted of interviewing four professionals, two in the start-up industry and two in Venture Capital. We interviewed them over Skype and recorded our interviews to get some answers to the top questions seniors ask about startups. We wanted to get some great advice from people who have been in our shoes and see how they would respond to the job market today. We compiled these valuable interviews into one youtube video that will be made public once we obtain permission to release the footage from all four interviewees. For now though, we leave you with a summary of our findings, a brief overview of the venture capital industry, and some biography entries on our interviewees.
—George Ortega, Sharon Ji, and Eric Li
1. What advice do you have for seniors who are interested in startups?
Seniors should join startups if they’re committed to learning in a small and challenging environment. Christiaan Vorkink urges seniors to join startups that are working to address a problem that means a lot to them given the intensity of work they could expect in a small startup environment that is constrained with few labor and financial resources.
As for seniors interested in venture capital, Yanev Suissa from NEA says there are three main ways to get into the industry: 1) work for a technology investment bank or technology investment banking group, 2) work for a buyer of startups, like Google or Amazon, or 3) work in a startup either as the entrepreneur or early-stage employee.
2. What if these seniors do not have the technical skills?
Joining startups without technical skills was unanimously judged to be difficult but certainly possible according to our interviewees. Stuart Wall urges non-technical entrepreneurs to find a technical co-founder and divide the equity stake equally since the technical aspects of a business are just as important as the marketing and product design elements a non-technical person would be in charge of. Christiaan suggests that seniors look for startups that need what you have to offer. If you’re non-technical, for example, a small startup that is seeking to build a prototype may not be the best option. If there is a product already created, as in a more developed startup, there is likely to be a need for your skillset as a liberal arts major. You can handle business development or become responsible for maintaining relationships with investors and customers. As Yanev Suissa sums it up, technical entrepreneurs are great and important, but they often don’t know how to build products and companies. That’s where you can come in to help.
3. Does consulting or banking prepare you for startups or venture capital?
While Ka Mo Lau didn’t think consulting or banking prepared entrepreneurs to become adaptive, Stuart Wall said his consulting experience had some transferrable skills, like a strong work ethic and sharp analytical skills. Yanev Suissa recognizes the importance of these two career paths but does point out that consulting and banking usually involve busywork, as younger associates are often “cogs in a machine.” Christiaan thinks that people should follow their main passions, whether that is consulting or starting a company. You should not postpone your plans because you want to get experience first. As both the venture capitalists and entrepreneurs attest to, the best preparatory experience for being a successful entrepreneur is being a failed entrepreneur before that and learning from your past mistakes.
4. What are common characteristics of young entrepreneurs?
The main common characteristics mentioned were persistence, action-oriented, passionate, adaptive, and tenacious. Entrepreneurs need to be completely committed to their companies and never take no for an answer. As Stuart Wall says, obstacles like getting no investor money or having an employee quit make the journey more difficult, but entrepreneurs need to have the crazy idea and faith that their business will still become successful. Having said that, having faith is not the same as leading blind when your idea no longer makes sense. Yanev Suissa stresses that the best entrepreneurs can pivot quickly to a dynamic environment in order to maximize their opportunities and grow their businesses the most possible.
5. What’s the next big idea?
The next big idea is what’s on everyone’s mind right now. Answers ranged from data analytics to education technology to payment processing to healthcare technologies. The most common answer was healthcare technology given that disruption in this area has been limited due to new legislation that has steered some innovators away. Christiaan Vorkink explains soon we will hopefully see a new healthcare system where a world of applications, services, and products will be designed to help people recover more quickly and live better and longer.
Here are some facts to put things in perspective in the VC industry. Below are information from a HBS case study on venture capital:
– Venture capital investing is a “hits” business, with a majority of the reward coming from a relative small number of spectacular success
|Payoff||Count||Total Cost||% of Cost||Value||% of Value||Average Payoff|
|1X to 3X||
|3X to 6X||
|6X to 10X||
|Source: HBS Case study on risk and rewards in VC|
– Returns on venture capital investments (individual deals with funds) are highest when market “over-value” individual companies over sectors, with the best examples being the Internet-stock bubble in 1999-earliy 2000
– Through returns to VCs have been low, the industry has been disproportionately responsible for creating some of the most important companies
- E.g. Federal Express, Google, Genentech and Apple
– The industry is very cyclical. Sometime it’s easier to start an internet company than others. It was great in 2000, as shown below.
- Source: HBS case study, NVCA 2010
– We are back in a internet investment height again right now. Should you be an entrepreneur and join the ride?
Ka Mo Lau, Paper G, CFO and Co-Founder
Ka Mo Lau is the cofounder and Chief Financial Officer of PaperG, an advertising technology company recently named one of Forbes’ 100 Most Promising Companies in America. Prior to PaperG, he spent time as an investment banker at Credit Suisse, as a consultant at IBM. He holds a BA in Economics from Yale University, and is a fellow of the Yale Entrepreneurial Institute. During his time as an undergraduate, he also served as the Executive Director of the Elmseed Enterprise Fund, the oldest student-run microlending organization in America.
(Source: Taken from YEI Institute)
Stuart Wall, SignPost, CEO and Founder
Stuart Wall is the founder and CEO of Signpost, a local advertising platform funded by Spark Capital and Google Ventures. Signpost is working to create the AdSense of local commerce and currently powers monetization campaigns for over 1,200 publishers. Stuart developed the concept while in business school at Harvard University and led the company through bootstrapped product development and initial fund raising. Stuart was previously a consultant in the Private Equity Group at Bain & Company where he provided strategic advice for large buyout funds.
(Source: Taken from Huffington Post)
Yanev Suissa, Venture Capital Investor, NEA
Yanev joined NEA officially in 2010, having worked with the firm since 2009. He currently works with the boards of Solidfire, Bridge International Academies, Bandgap Engineering, and Boulder Wind Power for NEA. In the tech space, Yanev focuses on earlier stage investments, including enterprise and cloud solutions, digital media, and consumer technologies. In the energy space, Yanev focuses on both supply and demand side solutions across all renewable technologies while simultaneously providing regular advice to energy companies within NEA’s portfolio.
Prior to joining NEA, Yanev was a Senior Investment Officer with the Department of Energy’s Loan Guarantee Program, where he helped form the group back in 2007. At the Department of Energy, Yanev was engaged in the underwriting of billions of dollars of debt for issuance to companies spanning all sectors within the energy technology industry. Prior to joining the DOE, Yanev served as a consultant working with a range of leading financial industry clients to assess growth opportunities. He also worked as an advisor to several successful startups around the world.
Yanev serves on the board of NYCVC, a group dedicated to building relationships and facilitating interaction among the next generation of New York venture capitalists. He is also the recipient of a series of fellowships, including the Kauffman Fellowship, the Presidential Management Fellowship, the Heymann Fellowship, the Kennedy Fellowship, and the Cravath Fellowship.
Yanev earned an MBA with distinction from the Oxford Said School of Business (Christ Church), a JD from Harvard Law School, and a Master’s degree from Sydney Law School. He graduated magna cum laude and Phi Beta Kappa from Yale University, receiving his BA in Ethics, Politics & Economics and Sociology.
(Source: Taken from NEA)
Christiaan joined True Ventures in 2008 after spending eight years working in and around early stage technology companies. His first foray into entrepreneurship came in elementary school when he and his best friend managed the largest downtown newspaper delivery service in the small town in New Hampshire where they grew up. After graduating college, he taught history for two years in suburban New York before moving to Boston to work in a variety of roles in support of local startups and in finance. Prior to joining True, Christiaan was a senior analyst in the venture capital research group at Cambridge Associates and worked in network development at BrightRoll, a True portfolio company.
Outside the office, Christiaan is an enthusiastic consumer of Mexican food, an aspiring urban gardener and an avid supporter of all but one of Boston’s four major professional sports teams. He is a graduate of Yale and MIT. Christiaan also serves on the board of directors of YMCA Camp Belknap, a summer camp for boys that he attended and worked at for a dozen years as a child and young adult.
(Source: Taken from True Ventures)
Here is our final project, a short film of our freshman year antics, edited together in the spirit of vidding. In addition to creating a nostalgic montage of youthful naivety, we hoped to create a video that shed light upon fair use.
The video used the original works “Shots,” by LMFAO and “Levels” by Avicii. We felt that these songs were necessary to use in the background because they help to bring us back to freshman year. Many memories from our first semester here were accompanied by Avicii’s song. However, these songs are copyrighted works. If it were not for the fair use statute, it would be illegal for us to use these songs in our video.
Fair use exists as the lone, strong legal defense against copyright infringement, and allows for reproduction of an original work for such uses as criticism, comment, reporting, and education. This project was educational, as it was made for the Law, Technology, and Culture course; but even if we made the video in our free time, this derivative work would be fair use.
Section 107 of the Copyright Law of 1976 defines four factors that help courts to determine if a work is fair use:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for the value of the copyrighted work
Our video is a transformative use of the songs. The clips are edited to have a distinct beginning, middle, and end. Just like many freshman year night, the film begins with drinks, is filled with dancing and play violence, and ends with passing out. We edited the songs together to make a smooth transition between “Shots” and “Levels.” Some of the video footage is sped up to match the tempo of the music. We cut the clips such that important events landed on the beat. (Look at the swipes at the camera, or Jacob slapping the sink). Since the derivative use is transformative, this is a sign that it is fair use.
In theory, the strength of a copyright suit should be proportional to the amount of the original work used in the derivative work. Only the chorus of “Shots” is used, but most of “Levels” is playing during the video. But given other fair use considerations, this one does not play an important role in determining if our video is copyright infringement.
Lastly, our use does not interfere with the utilitarian basis of copyright law. Our Youtube video does not take away or hurt the market for either song because, let’s get real, it’s not going to get a lot of views, and anyone who wanted to hear the entirety of the original songs would not watch our creation.
Clearly, our montage is not copyright infringement, and addresses many aspects of the fair use statute. In addition, it brought Jacob and I back to all the stupid shit we did as freshman, and reminded us that we should continue to film ourselves when things get cray.
Say you wake up in the morning, after a hard night of partying, surrounded by empty bottles, your hungover girlfriend, and your laptop—with windows open to kiddie porn. How the hell did that get there? What the hell is wrong with you? And what legal conundrum will you find yourself in should the police discover your hoards of mysteriously downloaded child pornography? And if, by chance, you like making fannish vids of The Land Before Time set to Prince music, can you legally claim fair use? Yes.
This is the situation that our hero faces in our magnum opus, “Porn in the Closet,” a musical tribute to the great lyrical prodigy R. Kelly. Check out the original R. Kelly song here. “Porn in the Closet” is a scandalous synthesis of modern legal code and case law governing the legality of internet activity, privacy, and free speech in the United States today.
Allow us to explain the twisted tale of our “Porn in the Closet” protagonist. Poor P. Kelly (the “P” of course stands for “Porn”) wakes up to discover child pornography–for decency’s sake, here represented by Sesame Street characters with censored chests. Police officers who thermo-scanned the house, thinking P.Kelly had a marijuana growing operation, enter P. Kelly’s place with a warrant. Their warrant was unlawfully obtained, however, according to the 2001 Supreme Court Ruling in Kyllo v. United States, which found that thermo-scanning violates the Fourth Amendment’s protection against unlawful search and seizure. P. Kelly lets the officers in, and they discover the laptop full of kiddie porn hidden in the closet. The laptop was given away by the sound of a Skype call, which we may legally use in our video because this is created for educational purposes and is therefore not a copyright violation, but rather fair use!
While the officers, P. Kelly, and his girlfriend Polly ponder what do about the kiddie porn situation, two DMCA (Digital Millenium Copyright Act) Agents walk in. While DMCA agents typically issue take-down requests online, the artist formerly known as the Artist Formerly Known as Prince is particularly vengeful with protecting his music online. P. Kelly had created fannish vids, splicing footage from The Land Before Time movies with Prince songs. Thankfully, Judge Pierre Leval is on hand to clear up any confusion about transformative work and fair use. Judge Leval is in midget form, an homage to Chapter 9 of the original “Trapped in the Closet.” Our song is, of course, a parody and therefore fair use. Fannish vids are also, in fact, fair use, according to Section 107 of Title 17 of the U.S. Code.
And the rays from the sun wakes me
I’m stretchin’ and yawnin’
My laptop is there right beside me
And I hear her retching from the bathroom
Then along comes Polly, she kisses me
And unsurprisingly she’s hungover, skank.
Now I’ve got this dumb look on my face
Like, what have we done?
How could I be so stupid to have downloaded all this kiddie porn?
Must have blacked out last night
Oh, what was on my mind?
Met on 4chan, took her home
Didn’t plan to sing this song
My girlfag looks at me
Tells me to delete the kiddie porn
Keep trying to close windows
Police said “We have a warrant”
“Open up sometime today!”
“Shit think, shit think, shit quick: put it in the closet.”
“Smelled weed last night,
Got a warrant to search your place.
Thermo-scanned your house,
Think you have a growing space.”
“Grow weed? What, we don’t do that.
That was just my tanning bed.”
You’re not gonna believe it, but things get deeper as the story goes on
Next thing you know they hear my laptop with the kiddie porn
“This is child pornography
We’re going to have to take you in”
“Whoa, this isn’t our kiddie porn
Someone else must have put that there.
We’re not into that
We only watch porn between legally-consenting, and unionized disease-free adults”
I’m telling you now, I wish this was the worst part of my day
But then another knock
In walks an agent of the DMCA
We’re by the closet, like man, what the fuck is happenin’?
“We have a takedown request”
From the artist formerly known as Prince
Is this about my fannish vids? Those were transformative
Land Before Time needed a bit of Prince
Fair use from section 107 of Title 17 of the US Code
A midget said, “Vidding is fair use.”
“Oh I didn’t watch it”
And I’m like, “God it’s Judge Pierre Leval from the second circuit!”
“We needed a midget.”
She says, “Baby, we’re in deep shit.”
Another knock on the door.
We stop, all look at each other
Like, Who the hell is that
We say, “What else did we do?”
We need a jailbreak IRL
Did we eat Roger Whitmore?
Did we hack into mail?
The knocking gets louder
I pull out my Baretta
They pull out their Tasers
Said “Don’t tase me bro!”
Midget opens the door
I can’t believe it’s Brad Rosen…
I generally leave the blogging to my students, but a story “breaking” today leaves me compelled to write.
I’m among one of many that’s spouted “Google before you tweet is the new think before you speak.” In this case, a horrific story about a Judge making insensitive comments at a rape sentencing in 2008 is breaking throughout the mainstream media. Why four years later?
Because the California Commission on Judicial Performance just released its order censuring (‘publicly admonishing’) Judge Johnson.
In particular, I’m going to single out New York Magazine’s Adam Martin as most irresponsible reporter of the day.
“It’s only coming out now because the California Commission on Judicial Performance finally decided to admonish him publicly — he’s still on the bench, and hasn’t commented.” (emphasis mine)
No Adam, the exact comments came out in October 2008. Credit where credit is due, OCWeekly’s R. Scott Moxley broke the story on October 30, 2008.
There’s no mystery about Johnson’s thoughts. During the sentencing hearing, the judge explained that he did not believe the woman, whom we’ll call Jane Doe, had been raped. According to transcripts, he stated that Doe’s vagina had not been “shredded” during the sexual assault, an indication in his mind that she’d given some sort of consent.
“If someone doesn’t want to have sexual intercourse, the body shuts down,” the judge opined. “The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight.”
That statement is so outrageous it’s reminiscent of the cockamamie theories offered by defense lawyers during the sensational trial for the 2002 Haidl gang rape. Those lawyers hired doctors, flew them in from far-away places, paid them more than $750 per hour, and had them claim in court that the only way an erect penis could enter a woman’s vagina and rectum was if she consciously agreed to penetration. In essence, they argued (and a wise jury rejected) that successful penetration without massive tears means no rape.
Again, emphasis mine.
Moxley’s story was not hard to find: I was absolutely gobsmacked that no one would have covered the story back in 2008. So I went to Google News, typed in “judge derek johnson rape” and date restricted to 1/1/2008 to 1/1/2009.
It took me 15, maybe 20 seconds. (To add insult to injury, the story that Adam cites, from the LAist, correctly credited Moxley.)
So Adam — please tell me, when you say “It’s only coming out now” did you really mean that journalists are only paying attention to these kinds of stories now that national attention has been focused on to stories about the insensitivities towards rape? Or did you mean that the story was only coming out in NY Magazine now, as an apology for missing the story four years ago? Update: Moxley needs no such apology or disclaimer, as his coverage of the Commissions decision references his own previous story.
Stories may “pop” for a variety of reasons — and if the story was missed in 2008, be upfront about it. It should have gotten more media attention, but it didn’t. But don’t play the CYA game. The comments have been out for four years. (If anything, the “story” might be why the Commission only learned of the comments in May 2012 (see page 5)).
We live in a new online journalism culture, where everyone is copy-pasting as furiously as they can to get the story out. I believe bloggers are journalists — and I think as journalists, bloggers have an obligation to try and get their facts right. Is a quick Google News search too much to ask?
With the appliancization of the Internet, more and more consumers are accessing the web using a variety of non-browser based applications. Because the applications are built for specific platforms, the shift to apps gives more power to the owners of the platforms. Developers have to choose whether to build their apps for Android, Apple, Windows or a combination of the options.
So far, Apple has been falling out of favor among developers. With its much tighter restriction on which App gets approved, Apple is losing to the Android operating system where developers enjoy more freedom in designing their programs. As Windows mobile platform starts to pick market share, Apple might fall further since Microsoft plans to sets its restrictions on app distribution and approval process somewhere between that of Android and Apple.
In 2009, Google filed a complaint against Apple for rejecting its Google Voice app, citing the decision as outrageous and requesting FCC to investigate. Another bad press for Apple was when it rejected Google Latitude on the ground there was already another map app on iPhone, and it would be confusing for users to have two. Despite the negative PR, theoretically Apple should be allowed to choose whichever program it permits on its platform. Some would argue that Apple is just like a supermarket that provides platform for products, such as fruit and vegetables. The supermarket reserves the right to decide which products it takes on, and Apple should be allowed to do the same with apps from developers.
However, the fundamental difference between Apple’s platform and a supermarket is that unlike the supermarket, Apple does not purchase the apps from developers. Instead, it takes a 30% cut on the revenue generated by the program. Though Apple still has the right to decide who to partner with, it should not just arbitrarily decide which app to reject. Often the decision standard Apple uses becomes controversial, and its practices reflect excessive protection of the App Store revenue model. Earlier this year, Apple rejected a few apps that used Dropbox, because once a user is in Safari in the “Desktop Version”, it was possible for him to directly purchase additional space from the website without going through Apple’s App Store. This violated the App Store Review Guidelines that outlaw Apps using a system other than the Apple’s In App Purchase API to buy services. Dropbox saved developer’s apps by getting rid of its “create account” option in one of its APIs. However, it seems Apple is simply getting too much control over what external links can be referenced in an app.
Unfortunately, developers are losing in the battle in software distribution as well. Instead of the freedom of software distribution spreading to App stores, we are experiencing the opposite. A Forbes article compared the new distribution model to the Hollywood studio model where a few large companies, such as Warner Brothers, are in control of all the distribution. Just as Paramount and Columbia Pictures decide most all movies’ distributions, we will have Apple, Google and Microsoft deciding the fate of software. Apple gained additional leverage by introducing the Sandboxing requirement. Apps will have to be Sandboxed before introduced to the Mac App Store, and through the process Apple will have the power to determine whether to restrict certain resource access of the Apps. Software programs will be completely at Apple’s mercy in term of whether it could access internet, networking or write access.
As appliancization continues, platform and app store providers will act as the Gate Keeper to check for security issue, copyright violations and other regulations. App and software developers will lose more and more freedom as they become increasingly reliant on the distribution functions of Apple, Google and Microsoft. Unless developers rise up and revolt against Apple’s control, the Gate Keeper’s restrictions will dampen creativity, freedom of speech and innovation.