(photo: Evil Erin)

Matt Yglesias analyzes the failure of the progressive block strategy, and chalks it up to progressives not picking issues that centrists care about.

He doesn't note his own role in that failure, vilifying the leader of the progressive block Raul Grijalva as the world's greatest monster unless he backs down. (Our own whip effort started to back Grijalva's efforts, which were already underway in the House when we started in June of 2009.)

I've said many times that it's impossible to expect progressive members of Congress to hold together if they don't have the backing of their natural fiscal constituencies the liberal interest groups and the unions. Without that support, they're left to raise money from PACS and other corporate sources to sufficiently fund their campaigns. That's why they take turns championing progressive bills that ultimately fail so they can pretend they do something, and then vote for bad bills that ultimately pass so someone else can be the failed hero. When Tammy Baldwin votes for one PhRMA-friendly bill after another, progressives can say hey, but she's so good on LGBT issues! Which never actually pass either, but the kabuki keeps activists sufficiently docile and donating to large organizations who fundraise off amping up outrage.

But it's also worthy to note that it's hard for them to withstand the assault of liberal pundits who sneeringly derided their efforts as naive, futile and purist. They should be proudly taking credit for their role in delegitimizing progressive opposition to the bill in liberal intellectual circles, much the same role that the same people played during the Iraq war. After all, it's TNR's stock in trade.

I'll leave it to others to analyze how corporate cash was laundered through foundations to underwrite the efforts of various opinion leaders in the health care debate, but it definitely deserves more scrutiny. . .

Monday, June 1, 2009

Kaiser Family Foundation Launches New Non-Profit Health Policy News Service

Menlo Park, CA In the midst of a major federal health reform debate and the ongoing financial turmoil in the media industry, the Kaiser Family Foundation officially launched Kaiser Health News (KHN) today to provide a new source of in-depth reporting on major health issues. KHN is staffed by experienced health policy journalists and editors, and will feature contributions from a wide array of leading health policy commentators and independent journalists.

[]

At the heart of KHN will be in-depth, explanatory stories about complex health policy issues and major developments in Washington, D.C., and around the country in the health care marketplace and health care delivery system. The news service will cover policy stories like health care reform, developments in major public health coverage programs like Medicare and Medicaid, and complicated ongoing policy challenges like the financing of long-term care, and it will examine the nation's health care system from a consumer perspective. KHN will also provide a synthesis of health policy news coverage through a daily health policy report, original programming from Kaiser's broadcast studio, and regular columns from contributing writers and experts. Jonathan Cohn, senior editor of The New Republic, and Howard Gleckman, senior research associate at the Urban Institute and former senior correspondent at Business Week, will be writing bi-weekly columns. Among others who will contribute occasional columns are: Michael Cannon of the Cato Institute, Jim Capretta of the Ethics and Public Policy Center, Judy Feder of the Center for American Progress, and Mark Pauly of the Wharton School at the University of Pennsylvania.

The development of Jonathan Gruber's much-vaunted model, which formed the justification for econo-wonks and politicians alike to support the Senate bill's voodoo claims about the excise tax, was originally paid for by the Kaiser Family Foundation in 1999 according to Gruber. It was given a facelift this year courtesy of the Small Business Majority, whose money comes from foundations including the Blue Cross Blue Shield Foundation. (h/t spanishinquisition)

And recall that Kaiser Permanente was the original sponsor of the Washington Post pay-to-play salons.

You have to wonder if any of that Kaiser cash underwrote other efforts at the Post after the parties fell through.

HCAN's efforts were funded by Atlantic Philanthropies, the Robert Wood Johnson Foundation and George Soros foundations, among others.

So, come on, pundits. Don't let the lameness of progressives in Congress get all the credit for shooting down the public option, rolling back choice, and teeing up constitutional amendments to overturn the health care bill around the country.

Stand proud.

Tags: Blogosphere, Jonathan Gruber, Kaiser Family Foundation, Matt Yglesias, Media, new media, Raul Grijalva, Robert Wood Johnson, The New Republic, TNR, veal pen

Doctor's Associates, Inc. v. QIP Holders LLC, 2010 WL 669870 (D. Conn. Feb. 19, 2010). My prior post on this case.

As a long-time vegetarian (over a quarter-century), I find America's obsession with "more meat" competitions simultaneously amusing and repulsive. On my personal blog, I have routinely chronicled the "burger wars" between heartland restaurants trying to outdo each other by offering bigger and bigger burgers. As far as I know, the current high-water mark is the Beer Barrel Main Event Charity Burger, a 123 pound burger that includes 80 pounds of meat. See the photo. If you're one of those people who thinks a burger can never have too much meat, good luck working on that bad boy.

Today's post involves subway sandwiches instead of burgers, but it turns out that subway sandwich restaurants' competition over claims of having more meat is no less stiff. Quiznos kicked off the war in 2006 by launching a "double meat" line of sandwiches. Quiznos ran two TV ads comparing the meat in its sandwiches to Subway's and set up a website soliciting individuals to make and submit their own comparative digital video ads. Subway was not amused and ultimately filed a seventh amended complaint (!) over Quiznos' ad campaigns. (What a patient judge).

The parties hotly contested every aspect of the litigation, and Rebecca does a thorough recap of the lengthy ruling. I'm going to focus on the court's discussion of the crowdsourced video ads published on Quiznos' ad campaign website, which Quiznos defended on 47 USC 230 grounds.

Citing the MCW v. Badbusinessbureau case from 2004, the court says "the critical inquiry with respect to CDA immunity in this case is whether the Defendants merely published information provided by third parties or instead were actively responsible for the creation and development of disparaging representations about Subway contained in the contestant videos."

The MCW decision was questionable even at its time, but it's bizarre to see the court reach into history for this obscure, archaic, unpublished and geographically distant (it was a TX precedent being cited in a CT court) district court precedent. To do this, the court bypasses dozens of more recentand more thoughtfulcases, including the multiple Ripoff Report cases that have expressly and implicitly rejected the MCW case. A more natural citation would have been the Roommates.com case, which also referenced legal distinctions between active/passive websites similar to the legal standard quoted above. However, if the court had followed Roommates.com, it almost certainly would have ruled for the defense, as Quiznos didn't require illegality or even channel users towards illegality. (Rebecca makes the same point). Therefore, I'm baffled how the court got to this legal standard citing this legal precedent.

Using this odd legal standard, the court says it's up to the jury to decide if Quiznos just exercised traditional editorial control or impermissibly "actively participated in creating or developing the third-party content submitted to the Contest website."

Unquestionably, sending this case to a jury is a 230 loss, but how bad is unclear. We'll never find out what the jury would do with the case because the parties promptly settled the case after this ruling. However, a plaintiff's ability to hold a case open through trial, rather than having it disposed of earlier in the proceedings, would itself represent a significant win for plaintiffs--it would mean plaintiffs can get discovery to fish for embarrassing facts, force the defense to incur lots of litigation costs, and get a chance to tell their sob story before a jury. (FWIW, I am not aware of any 230 case that has ever reached a juryam I forgetting something?) Nevertheless, I think very few courts will follow this precedent given the plethora of more persuasive precedents and the fact that Quiznos' crowdsourced ads were just one part of Quiznos' larger allegedly false ad campaign. Therefore, I don't expect this 230 loss to spread to many other cases.

I also don't think this case shines much light on the legitimacy of crowdsourcing ads. There's no reason to believe that crowdsourced ads are per se problematic. At the same time, if the advertiser uses the ads offline, clearly the advertiser "adopts" the ad and takes full responsibility for its contents. If the advertiser only publishes the ad online, 230 might be available but the advertiser still might tread cautiously due to the FTC Endorsement and Testimonial Guidelines, which basically ignores 230 and holds advertisers liable for certain types of third party advertisements anyway. I think 230 may nullify this part of the FTC guidelines, but most advertisers would rather not tangle with the FTC to establish the deficiencies in the FTC's thinking. As a result, I expect most advertisers will vet most crowdsourced ads, even if they only publish them only, as if the advertiser is legally responsible for the ads and not protected by 230.

BTW, the Subway v. Quiznos lawsuit isn't the only litigation over subway restaurants' claims of double meat. In an apparently unrelated lawsuit, last month a class action suit was filed over Blimpie's "Super Stacked" sandwich for overclaiming that it had double meat.

I confess some schadenfreude when I see lawsuits against meat pushers for overhyping meat quantities. I would not shed a tear if the meat pushers lock up each other in litigation death struggles and sue each other to oblivion. Of course, consumers can facilitate that outcome by refusing to patronize vendors who "compete" with each other by encouraging us to overconsume the Earth's resources.

Today, Rescuecom issued a press release declaring victory in its litigation against Google. But it's an odd definition of "victory" given that Rescuecom has apparently voluntarily abandoned its 6 year litigation effort without any new concessions from Google. The dismissal notice.

This development reminds me a lot of the American Blinds v. Google denouement, where American Blinds also simply gave up and dropped its multi-year lawsuit without any concessions from Google. Note to future plaintiffs: if you're going to threaten Google's $20B/year cash cow, chances are pretty good that they have the resources to outlast you.

Why did Rescuecom give up? According to Rescuecom's press release, "Google has recently confirmed to Rescuecom that it has removed Rescuecom's trademark from its Keyword Suggestion Tool." That, plus the fact that Google blocks trademark references in ad copy, means that Rescuecom feels it has "obtained two of the three things we initially sought in our complaint against Google." And if two out of three is good enough for Meat Loaf, apparently it's good enough for Rescuecom. At minimum, having low standards makes it a lot easier to declare victory when you give up.

However, this explanation is pretty hollow. Although the press release treats Google's removal of Rescuecom from the keyword suggestion tool as a new development, it appears that Google made this change IN 2005. Wendy Davis reports:

[Rescuecom CEO] Milman says he only learned last week that Google had stopped suggesting Rescuecom as a keyword. "Who knows what would have happened if they had told us back in 2005 that they had taken our name out of their keyword tool?" he said.

Hmm...I think I know the answer to that question! Then again, if getting out of the keyword suggestion tool really was one of Rescuecom's Big Three objectives all along, maybe they might have asked Google about it in 2005...or 2006...or 2007...or, well, you get the point. Spin it however they want, it's hard for Rescuecom to look good while dropping a lawsuit based on a 5 year old fact.

Nevertheless, I'm interested in knowing more about this removal. Does Google have a way for trademark owners to "opt out" of having their trademarks in its keyword suggestion tool? I would expect that option to become very popular if it were well-known. If anyone has information about how trademark owners can make an election with Google, please share it.

Given the completely disingenuous nature of declaring victory based on getting out of the keyword suggestion tool, there may be a better--and more self-interested reason--for Rescuecom to give up. Rescuecom is defending a trademark lawsuit brought by Best Buy over Rescuecom's competitive AdWords purchases of the "geek squad" trademark. Rescuecom was caught in the duplicitous position of making plaintiff-side arguments against Google while making highly contradictory defense-side arguments against Best Buy. As a result, every positive step in its Google case had the potential to degrade its position in the Best Buy case. By abandoning the Google fight, Rescuecom avoids this difficult dilemma.

As an odd byproduct of this development, Google and Rescuecom are now aligned in advancing the arguments that competitive keyword advertising in AdWords is legitimate. Isn't there a passage in the Bible about the lion and the lamb lying down together?

The roster of pending AdWords cases (I most recently double-checked the status of these cases on February 20, 2010):

* Ezzo v. Google
* Rescuecom v. Google
* FPX v. Google
* John Beck Amazing Profits v. Google and the companion Google v. John Beck Amazing Profits
* Stratton Faxon v. Google (not initially a trademark case). Check the status.
* Soaring Helmet v. Bill Me
* Ascentive v. Google
* Jurin v. Google 1.0 (voluntarily dismissed), succeeded by Jurin v. Google 2.0
* Rosetta Stone v. Google
* Flowbee v. Google
* Parts Geek v. US Auto Parts
* Dazzlesmile v. Epic

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First, if you have any questions for the Windows Phone 7 Series team, I'd be more than happy to ask on your behalf (as I do live around the corner from Redmond's campus and will be meeting with the team again at some point in the future). Post a comment and/or video response.

I was invited to a behind the scenes look at elements of the Windows Phone 7 Series developer platform. At Mobile World Congress (covered earlier in this channel), Microsoft provided a first look at Windows Phone 7 Series and I'm pleased to offer you the opportunity to see a live demonstration up close.

Yes, I got to play with the phone, too. It works as advertised even as a prototype. Unfortunately, we could not adjust the brightness settings in this particular device. The Metro interface is a bucket of win in my book.

Charlie Kindel partner group program manager, Windows Phone App Platform & Developer Experience was hosting an intimate reception this evening in San Francisco. I wasn't able to make it, but Microsoft arranged a somewhat more private meeting with Greg Sullivan from the Windows Phone team a little closer to home.

I met Greg a few years ago through the Longhorn Labs project (back when Microsoft Windows team leads worked actively with their most vocal community supporters). I'm not sure if I can reveal any more device details at this point, but suffice it to say

I want one.

• <a rel='nofollow' href='http://www.amazon.com/exec/obidos/ASIN/B000HCVR5S/lockergnome Word 2007 Version Upgrade</a></li></ul></p><p>Want to embed this video on your own site, blog, or forum? Use this code or <a href="http://blip.tv/file/get/L0ckergn0me-MicrosoftWindowsPhone7ScreenshotsAndLiveDemoVideoWalkth188.mp4">download the video</a>:</p><p><textarea style="width: 460px; height:60px;"><object width="425" height="350"><param name="movie" value="http://www.youtube.com/v/j9F4QJK1wFs"></param><param name="wmode" value="transparent"></param><embed src="http://www.youtube.com/v/j9F4QJK1wFs" type="application/x-shockwave-flash" wmode="transparent" width="425" height="350"></embed></object><br /><a href="http://chris.pirillo.com/">Chris</a> | <a href="http://live.pirillo.com/">Live Tech Support</a> | <a href="http://media.pirillo.com/">Video Help</a> | <a href="http://feeds.pirillo.com/ChrisPirilloShow">Add to iTunes</a></textarea></p><ul class="related_post"><li><a href="http://chris.pirillo.com/helping-ponzi-with-her-macbook-pro/" title="Helping Ponzi with her MacBook Pro">Helping Ponzi with her MacBook Pro</a></li><li><a href="http://chris.pirillo.com/img0823131736375jpg/" title="IMG0823131736375">IMG0823131736375</a></li><li><a href="http://chris.pirillo.com/fixing-computers-for-a-living/" title="Fixing Computers for a Living">Fixing Computers for a Living</a></li><li><a href="http://chris.pirillo.com/pay-off-student-loans/" title="Pay Off Student Loans">Pay Off Student Loans</a></li><li><a href="http://chris.pirillo.com/hidden-microsoft-security-gem/" title="Hidden Microsoft Security Gem">Hidden Microsoft Security Gem</a></li><li><a href="http://chris.pirillo.com/newspaper-industry-problems/" title="Newspaper Industry Problems">Newspaper Industry Problems</a></li><li><a href="http://chris.pirillo.com/how-to-take-live-skype-calls/" title="How to Take Live Skype Calls">How to Take Live Skype Calls</a></li><li><a href="http://chris.pirillo.com/texas-redbud/" title="Texas Redbud">Texas Redbud</a></li><li><a href="http://chris.pirillo.com/lids-com-coupons/" title="Lids.com Coupons">Lids.com Coupons</a></li><li><a href="http://chris.pirillo.com/geotag-your-photos-with-freeware/" title="Geotag Your Photos with Freeware">Geotag Your Photos with Freeware</a></li></ul> <p><iframe src="http://feedads.g.doubleclick.net/~ah/f/lpj2a0s0b83fm727ahojoknhc4/300/250?ca=1&fh=280#http%3A%2F%2Fchris.pirillo.com%2Fwindows-phone-7%2F" width="100%" height="280" frameborder="0" scrolling="no" marginwidth="0" marginheight="0"></iframe></p>

As of a month ago Trader's title had been downgraded to VP of Partnerships and Studio Services, although no top sales or business development replacement executive has yet been named.

Why is he gone? No one is saying. CEO Mark Pincus says only AT [Andrew Trader] and zynga have parted ways. He made an awesome contribution. We need to continue scaling the company. Trader hasn't yet returned a phone call asking for his comment.

Zynga's revenue growth has been nothing short of astronomical over the last 18 months, so it would be hard to blame him for not bringing in the dollars. Perhaps he took the fall for the Scamville saga although that has largely blown over now.

Trader was with Zynga nearly three years, so he's vested on a lot of his stock. Given how much money is at stake, the whole story about why the first cofounder of Zynga has left the building may never come out. Zynga raised $180 million in December 2009, at a rumored valuation of above $2 billion.

And no, I have no idea why he's holding a banana in the picture.

For that big screen device ... there's no diversity. You get exactly the Xboxes that we build for you. We may have more form factors in the future that are designed for various price points and options, but we think it's going to [be] important.

Steve Ballmer teases new Xbox 360 form factors, price points and options originally appeared on Engadget on Sat, 06 Mar 2010 05:21:00 EST. Please see our terms for use of feeds.

In Hung Tan Phan v. Lang Van Pham, the President of a group of Vietnamese Navy and Merchant Marine veterans sent an email to fellow veterans. In the email, he wrote that another veteran, Hung Tan Phan, had been disciplined by the Vietnamese Navy for abusive behavior in the final days of the Vietnam War.

Lang Van Pham received the email and forwarded it to at least one fellow veteran. He included the following introductory paragraph: Dear Kmap: Everything will come out to the daylight, I invite you and our classmates to read the following comments of [the] President of the Federation of Associations of the Republic of Vietnam Navy and Merchant Marine.

Hung sued Lang. Hung alleged that Lang, as the forwarder of an allegedly defamatory message, was himself liable as the publisher of a libelous statement. Lang moved to dismiss, citing CDA section 230 immunity. The trial court dismissed the case and Hung appealed.

The appeals court noted the general rule that CDA section 230 provides immunity from liability for all content providers for publishing information received from third parties. Subsection (c)(1) states that [n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The court then framed the question as whether by including an introduction to the allegedly defamatory email the forwarder had materially contributed to the illegality of the Internet message. In other words, whether Lang's cover note constituted active involvement in the creation of a defamatory Internet posting such as to to expose Lang to defamation liability as an original source.

The appeals court ruled for defendant Lang. The court held that, on these facts, Lang made no material contribution to the alleged defamatory message he forwarded.

The defendant here, like others, was able to successfully deploy the CDA to escape liability. Still, republishing defamatory (or potentially defamatory) matter is always a risky proposition. If you're intent on republishing potentially defamatory matter, speak with your attorney first to assess your risks and defenses [Hung Tan Phan v. Lang Van Pham, 2010 WL 658244 (Cal. App. 4th Dist., Feb. 25, 2010)].

The matter was remanded by the Federal Circuit to the District Court, and, as we blogged in December, several additional pre-trial rulings again favored the JMRI project, including a ruling on the eligibility of software code that is distributed for free for copyright infringement damages. The settlement was reached with a trial date on the not-too-distant horizon.

With the settlement, the Federal Circuit and District Court rulings will not be subject to direct appeal. Given the rarity of litigation over open source software, it seems unlikely that the reasoning of these two rulings will be questioned judicially in any other open source litigation for some time.

The settlement agreement is here, and the permanent injunction is here.

The explanation of the settlement on the JMRI site indicates that the proprietary software company has agreed, among other things, not to misuse the JMRI software at issue, or to register any domain names incorporating certain terms attributable to the JMRI project, and will make a payment of $100,000. Future disputes will be settled by mediation or arbitration.

Yahoo has replaced Google as the default search provider throughout the phone. It's crazy: the home screen widget, the browser, everything's been programmed to use Yahoo.

It is not unusual for carriers to work deals for specific software on its handsets. They take money wherever they can get it. But this deal is sure to confuse the customer, as Android phones are commonly called Google phones by many. Let's face it, Google makes Android, and one of its strengths is the tight integration with the company's online services. And search is certainly one of Google's big services, but not on the AT&T Backflip.

This is the equivalent of a Windows PC hitting the market that has Internet Explorer removed and Safari as the only browser. Some customers might be happy by that but most would be confused. Then to make matter worse, imagine that Internet Explorer couldn't be installed by the user to get around this major change. That seems to be the case with the AT&T Backflip, as early testers are reporting the inability to get Google search working in any of the Android programs.

There has been enough complaining about fragmentation in the Android space, so I won't rehash that topic. But there is something so fundamentally wrong when an Android phone has Google search removed. And replaced by Yahoo search? I guess this makes the Backflip the Yahoo Phone.

Related research on GigaOM Pro (sub req'd):

As Windows Mobile Stumbles, Which Smartphone OS Will Seize the Lead?

Yahoo has replaced Google as the default search provider throughout the phone. It's crazy: the home screen widget, the browser, everything's been programmed to use Yahoo.

It is not unusual for carriers to work deals for specific software on its handsets. They take money wherever they can get it. But this deal is sure to confuse the customer, as Android phones are commonly called Google phones by many. Let's face it, Google makes Android, and one of its strengths is the tight integration with the company's online services. And search is certainly one of Google's big services, but not on the AT&T Backflip.

This is the equivalent of a Windows PC hitting the market that has Internet Explorer removed and Safari as the only browser. Some customers might be happy by that but most would be confused. Then to make matter worse, imagine that Internet Explorer couldn't be installed by the user to get around this major change. That seems to be the case with the AT&T Backflip, as early testers are reporting the inability to get Google search working in any of the Android programs.

There has been enough complaining about fragmentation in the Android space, so I won't rehash that topic. But there is something so fundamentally wrong when an Android phone has Google search removed. And replaced by Yahoo search? I guess this makes the Backflip the Yahoo Phone.

Related research on GigaOM Pro (sub req'd):

As Windows Mobile Stumbles, Which Smartphone OS Will Seize the Lead?

Although Open Home is an $3.99 app, I'd really call it a platform. With it, you can skin or customize your Android interface, add Live Folders, shortcuts and such. And there's tons of custom skins, fonts, icon packs for sale in the Android Market to enhance it. There's even an experimental 3D cube interface in the latest version as you swipe to other home screens, the screen rotates like a cube. I haven't dropped the $3.99 just yet, but I did install Open Home Lite, which is free. It wasn't until after installation that I realized the software adds two extra home screens to the Nexus One. I don't have enough apps and shortcuts to fill up seven screens just yet, but I'm heading in that direction, so the extra space will come in handy. Each of the screens can hold a custom descriptive title as well check this old but relevant video to see how one user categorized the screens on his HTC Magic.

Aside from the extra home screens, Open Home adds dedicated search on the left and an interesting little slideout drawer on the right side of the screen. Simply tap and swipe the star to pull out the drawer. I'm thinking of placing the most used apps in the little drawer so that they're available from any of the seven screens. And I don't even have to give up my Live Wallpapers since Open Home supports them on my handset. Perhaps one of the best features of all Open Home allows for home screen rotation to landscape mode, something I wish Android would support natively.

I'll be playing some more with the free, lite version of Open Home, but I'm already inclined to drop the $3.99 it's a small price to pay for two extra home screens and customization features.

Images courtesy of Better Android Apps

Related research on GigaOM Pro (sub req'd):

Google's Mobile Strategy: Understanding the Nexus One

First, let me inventory the raw materials that got me thinking this way. Recently JC Hutchins posted that he had been dropped as an author by St. Martins Press and that they would not be publishing the 7th Son sequels. The post lives between a gut-check and a crisis of faith from one of the pioneering new media creator/ novelist hybrid guys. He also posted about monetary realities of writers pubishing via ebooks. Not that long before this, I had listened to JC's Hey Everybody interview with Pablo Defendini and Ami Greko from The New Sleekness blog. It's a really interesting discussion about the future of book publishing by industry professionals young enough in their careers to be less invested in the status quo and more willing to help a new future emerge. (Side note 1: I met Pablo and Ami at last year's Dragon*Con in the classic SF con fashion I wanted to meet them, saw them in a hotel bar, asked if I could sit with them, introduced myself and hung out for an hour. Try it, it works! ) Much in my thinking was informed over the last month by the Amazon/Macmillan ebook pricing wars of far too large a trail to link to anything. In that debate I did first run across Joe Konrath, his fiction and some of his posts with amazingly open and detailed statistics of what he sells and what he makes from digital publishing. (Side note 2: I bought, read and enjoyed his book Whiskey Sour as fallout from the debate).

There are many other bits of thought in the mix, such as my feelings about beginning my own novel during NaNoWriMo and thinking about hiring my friends at Sterling Editing to work on it and what I might choose to do with such a book when)it is finished. That's enough of a prelude, though. Time to hit it.

JC Hutchins struck a nerve when he basically waved the white flag on his current way of working.

Creating podcast fiction does does not generate direct revenue for me. Based on anecdotal and statistical data, very few people are willing to pay for general podcast content, much less podcast fiction. Since my goal is to make a living wage with my words, the current monetization models including in-show advertisements will not deliver this. Dedicating time and effort to my non-fiction podcast projects will deliver equally underwhelming monetary results.

It is also apparent to me that using the Free model to promote a tangible product, such as I did with 7th Son: Descent and Personal Effects: Dark Art, does not deliver sustainable sales results. I have friends some of whom are my best friends, the most talented people I've had the privilege to know and work with who have absolute faith in this model. I treasure their trailblazing efforts and enthusiasm. My faith, however, has been fundamentally rattled.

Put simply: The new media model viably supports only the most blessed and talented of authors. The time, effort and money I invest in entertaining you for free pulls my attention and talent away from projects that can generate revenue. While podcasting, podcast fiction, and most importantly your support and evangelism has positively impacted my life and career in ways I'll never be able to fully express, I cannot continue to release free audiofiction if I wish to make a living wage with my words.

This is pretty big stuff in the world of podcast fiction. Hutch was one of the pioneers of the form and his getting picked up by St. Martins was considered a watershed and a validation for the medium. So if he can't make it in this world, what does that say about all the other podcast novelists who are less engaged, have less of a fan base, less sheer horsepower? Does it mean this medium is screwed?

I am positing that Hutch had a terrible misfortune of timing, that he arose as a viable author at exactly the wrong moment in publishing history. As he started down his path it seemed like the end game was to get a book deal with a major publisher. For writers of the last 100 years, this was the reasonable career success path for authors, and practically the only one. In the last few years though a sea change has happened so rapidly and thoroughly to flip that Hutch got his boat capsized in the process and he will be far from the only one. As crazy as it may sound, for a certain kind of author at this point I think a major publishing contract may seem like winning the game but is in fact losing it.

The red flags I got from the JC Hutchins post started here:

Examining the lead up to, and release of, the novel, I cannot see how I could have promoted it any better than I did. I literally went broke promoting this book and Personal Effects: Dark Art (another novel that will not have a sequel; it also underperformed). I conceived numerous brand-new online marketing campaigns that dazzled you and others. I asked you to purchase the novel, and many of you did.

If JC is literally going broke promoting 7th Son and Personal Effects book, I think a reasonable question to ask is What is St. Martins Press' role in this? If JC is willing and able to put so much of his own time and money into the promotion of the books, what value is he getting from the big publisher that is worth giving away 90% of the sale of the book to them? 50 years ago, and 20 years ago and 2 years ago, this made sense. It was pretty much impossible to get a book published and into the hands of the world in any significant way especially in a way that a writer could make a full-time living without a major publisher contract, especially one paying advances at a level to be a livable wage. Nowadays, especially due to the markeplace enabled by the Kindle, Nook, Sony Reader et al, that's a different equation.

Joe Konrath's post about the money he makes from the Kindle store shows a really clear pattern that he summarizes with:

My five Hyperion ebooks (the sixth one came out in July so no royalties yet) each earn an average of $803 per year on Kindle.

My four self-pubbed Kindle novels each earn an average of $3430 per year.

If I had the rights to all six of my Hyperion books, and sold them on Kindle for $1.99, I'd be making $20,580 per year off of them, total, rather than $4818 a year off of them, total.

So, in other words, because Hyperion has my ebook rights, I'm losing $15,762 per year.

For a writer with an engaged audience, like JA Konrath has and like JC Hutchins has, there may well be more money in their books self-published primarily through the Kindle and other ebook stores. An interesting bit from the Konrath numbers above, that's from making 35% of the sales price for his direct books. When it changes to 70%, he'll be making twice as much per book as he posted above for the self-published ones.

Let me say it again: for a writer who is engaged with their audience and reasonably prolific (because you need new books to keep this engine turning), we may be at the turning point where a better living is available through self-publishing than a big New York publisher book deal.

There are certainly authors that this model will not work for. During my preparation for last year's Podcasting for Working Writers panel at Dragon*Con I talked to both James Patrick Kelly and Kelley Eskridge on this topic and they both raised the point that for a number of old school writers, the idea of engaging at the level of podcasting and doing large parts of their own publicity is anathema. A reasonable chunk of authors don't want to get out in the limelight and picked this career specifically so they don't have to engage. They write their books, maybe do a few conventions a year, do some bookstore events and that's it. Back to the keyboard where the serious work happens. That's fair enough and those writers will always need a publisher to do the parts of this business that would make them unhappy to pursue.

I think of the classic big publisher and big record label model as basically serving the function of the bank or maybe as VC. The manufacturing and distribution of the creative work was too capital intensive for an individual so this company would lend that money to the process, make the books or records show up in the store, do some publicity and keep most of the money. They insulate the creator from the process and from the retailers and fans. What publicity efforts exist, the big media company acts as a semi-permeable membrane to let a little of the public through, but not a lot. Ultimately in this model, the relationship with the fans of the buying public is owned mostly by the retailer and the publisher or label, very little by the writer or musician. For the author that doesn't want to feed and water that relationship, that's perfect.

For the other kind of author, a JC Hutchins or Mur Lafferty or Scott Sigler, going with a major publisher outsources to a third party a relationship with their fans that these writers are really really good at maintaining. When Hutch is paying his own money to publicize his books and his his own direct line into his own fanbase, what can the big publishers do for him? They could give him large enough advances to keep his bills paid while future books are written, but obviously they aren't willing to do that because sales aren't high enough. JC's books earn money, but not enough money to keep him in that system. For me, the real question is Did St. Martins Press do 9 times the work than JC did to get the work promoted? If not, what did they do to deserve a 90/10 split?

Last November for NaNoWriMo I began a novel that I have literally been thinking about since 1991 when I was 23. While I came nowhere near finishing it that month and am nowhere near finished now, I have a goal to finish this novel in 2010. I've already been thinking about what happens when I finish the book. Do I try to find an agent and then try to have them place it with a major publisher? Since I don't have any plans beyond that one book and thus don't necessarily have a writing career in mind, how does that affect my decision making? At the moment I'm leaning towards not bothering to place the book with any publisher at all. I'll pay Nicola and Kelley at Sterling Editing to work with me to get it publishable and hire a book designer and/or artist to hone the final product and then publish it to the Kindle store, Smashwords, the Nook store and whatever else seems reasonable at the time. I'll probably release it via Podiobooks.com at the the same time, do my publicity via that and the other usual online suspects and let it ride. The key point to me is that the energy I could spend in placing my book at a big publisher could be spent selling the book to readers and I'll probably make more money that way in the long run. This isn't the way things worked for the 19th and 20th century and it may not be the way it works in the future, but March 2010 it is the way it looks to me now. The validation of having a major publisher decide I'm their sort of writer doesn't do anything for me. I don't need the book contract to pay my living, I'd end up doing mostly my own publicity anyway so what the hell does the publisher have to offer me anymore? Rather than have them put out a $15 Kindle book that I see a buck or two from and no one buys with a print version that is on and off the shelves in head-swimming time on a death march to the warehouse remainder store, I'd rather put out a $5.99 ebook version that I see $4 from each one and more people buy. I have a whole rant on how the true function of ebook platforms is to enable impulse buys, but this current post is already too long. That must come later.

When I interviewed Cory Doctorow in 2006, one of the things he said is that the generation coming of age now is the first one to arise without a stigma attached to self-publication. Since I've been paying attention to the world of science fiction and writers in general, a giant shift has happened. When I joined GEnie in 1992, the notion of self-publishing your work meant that it was unreadable tripe and the very thought of it was risible to any serious author. Nowadays, it might well be the most rational economic choice available. If you aren't already in the system and earning livable wages from advances on your books, and you are the sort of writer and person with that drive a JC Hutchins, a Scott Sigler, a Tee Morris, a Mur Lafferty, an Alec Longstreth, someone willing to do more than thrown the manuscript over the wall and wait for finished copies to return it might be time to take the reins yourself and just do this. The costs are low which means the cost of failing is low. The traditional publishers aren't paying that much anyway so the opportunity costs are low. Just do it. Lynne Abbey, CJ Cherryh and Jane Fancher did. The writers at Book View Cafe did. I will. Don't pin your hopes on a big publisher with economic drivers that are different than yours. Just do it yourself, work the people yourself and keep as much of the money as you can.

Tags: akismet, amazon, ebooks, jakonrath, jchutchins, kindle, macmillan, publishing, sterlingediting, stmartinspress

Now that AT&T has joined the Android revolution, the first question new Android users will ask is what Android apps should I download? Luckily we've created a simple guide to get you started:

First we'll start with the operating system version of the Motorola Backflip at launch, which is version 1.5 the latest and greatest to date is 2.1 (with majority of users on 1.6). This may affect your ability to download some apps as they are compatible with higher versions of the OS. Why is the OS version so out of date? Motoblur Motorola tricked out the software for social networking ease however they have not released Motoblur on the latest and greatest Android OS. Don't fret an update is coming soon.

Now that we're over the OS hump, we'll recommend some of the best Android apps for your Motorola Backflip many for free!

ASTRO File Manager

Browse and Search files on your SD Card and phone with Astro File Manager.

Advanced Task Killer

Close individual or all apps and background services with Advanced Task Killer.

Meridian Player

Meridian Player for Music & Videos.

Dolphin Browser

Dolphin Browser allows you to browse the web using Tabs and create shortcuts using Gestures.

Handcent SMS

Handcent SMS offers text messaging like on iPhone, get T9 text capabilities and text signatures.

Shazam

Shazam... simply awesome! Get any song by simply letting your phone listen to it!

i Music Tao

i Music & i Music Tao allows you to download free MP3s.

Pandora Radio

Stream music for free with Pandora Internet Radio.

Gmote

Turn your AT&T Backflip into a media remote with Gmote and even control your computer via phone!

ShopSavvy

Scan bar codes of products in stores to find best pricing nearby or online with ShopSavvy.

Google Shopper for Android

Photo scan products to get pricing and details with Google's Shopper

Aloqa Always Be A Local

Aloqa location-based app finds places nearby you versus you searching for it.

Abduction!

Abduction! Is an additive game using your phone's accelerometer.

Robo Defense

Robo Defense is a classic tower defense game for Android phones.

Mystique. Chapter 2: The Child

Check out parts 1, 2, and 3 of the Mystique 3D horror puzzle game series.

Wixel

Like words games? Try Wuzzle for hours of fun!

Jewellust

Kill time with addictive Jewellust game

Solitaire

You can't forget a classic time-killer like Solitaire.

What the Doodle!?

Guess what others are drawing while they guess your drawing all online with What The Doodle!?

BlackJack Pro

Satisfy your Vegas crave with Blackjack Pro!

If you download all these apps you might run out of space on your Backflip! Do check these apps out and tell us what you think in the comments.

Apple Stacks The Deck Against Amazon's Kindle App

Jay Yarow | Feb. 26, 2010, 11:00 AM | 5,634 | 34

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Tags: Gadgets, Amazon, Kindle, Apple, iPad, eBooks, Big Tech, Media

AAPL Feb 26 2010, 05:20 PM EST

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When Apple's iPad goes on sale in a few weeks, its iBookstore will have a distinct user-experience advantage over e-book competitors like Amazon's Kindle App.

That is, the iBookstore will let you seamlessly buy books from within the iBooks reader app, with the iTunes account it's already aware of.

Meanwhile, rivals like the Kindle app and Barnes & Noble e-reader will require you to boot up their apps, then click a button to boot up the iPad's Web browser, shop for e-books in a Web store, sign in and pay with a non-iTunes account, relaunch the e-reader app, and sync up your new e-book. Not as elegant.

It's not a huge difference, but it's the kind of small simplicity advantage that has helped Apple's iTunes music store maintain a lead over its rivals, including Amazon.

People who use the Kindle app on their iPhones today will know that this isn't a new thing: Since the Kindle iPhone app launched last March, users have had to leave the app to buy e-books.

Amazon didn't built the app this way from the beginning. We have learned that when Amazon first submitted its Kindle application for the iPhone to Apple, Amazon included its own payment system within the app, so customers could just pay for e-books and download them right in the app.

When Apple spotted the payment system, it told Amazon to get rid of it, according to a source familiar with Amazon's operations.

Why? It's a rule Apple smartly instituted at the App Store's beginning, forbidding third-party e-commerce of digital goods within apps.

That is, it's okay to use an iPhone app to buy physical goods -- as you can in Amazon's main iPhone app, or the Fandango app, etc. And developers are welcome to use Apple's in-app purchasing system -- and give a 30% cut of revenue to Apple -- to sell digital goods within apps.

But Amazon, Barnes & Noble, and other vendors are prohibited from using their own e-commerce systems within apps for virtual goods. Thus the trip to the Safari browser to buy books.

It's obviously a rule Apple itself is allowed to break -- it's Apple's iPhone, and it can do whatever it wants, as we've seen recently with Apple's recent raids on thousands of sexy apps. But it does put competitors like Amazon on uneven footing.

Obviously, Amazon is never going to want to give Apple a 30% cut of e-book sales, so it's not going to implement Apple's in-app purchasing system. So it's indefinitely stuck sending its customers into the browser to make purchases. (Meanwhile, on the new BlackBerry Kindle app, you can buy e-books directly within the app.)

Assuming the iBooks app and the iBookstore have similar selection, pricing, and e-reader features, this one simple step could give Apple a substantial advantage over Amazon.

See Also: 10 Burning Questions About Apple's iPad

Today we've exposed a new API in our javascript library as a temporary fix for our customers who are doing funnel tracking. Have you ever found it tedious to place lots of track_funnel calls all over the code base and wished you could just use events to track your funnel steps? We hear you:

mpmetrics.register_funnel takes two parameters: funnel_name and a list of events.

Let me give you an example:

mpmetrics.register_funnel("Status update", ["Impression", "Sign up", "View feed", "Update status"]);
mpmetrics.register_funnel("Tweet again", ["Impression", "Login", "Update status"]);

Please note since this is a new addition to our javascript library you will have to update your library or version it.

Explanation

"Impression", "Sign up", "View feed", "Update status", and "Login" are all events you are tracking using mpmetrics.track() already. When you fire off say "Update status" you are tracking that funnel step in both funnels "Status update" and "Tweet again" but as different steps: 4 and 3 respectively.

The beauty of this new API is that you can define your funnels in a singular spot, use events as your funnel steps, and easily reorder your funnels manually or dynamically in code. It's very simple: track your events and then define an ordered list of them as your funnel steps using mpmetrics.register_funnel. One thing to note is that step 4 in the funnel will not be tracked unless the user absolutely has done steps 1, 2, and 3 previously as this is how funnels work (they must be done in order) however the event itself will always be tracked.

Check out http://mixpanel.com/api/docs/guides/funnel-analysis for a similar explanation (towards the bottom).

If you have any questions, please let me know in the comments and we'll answer them and probably update our post to clarify how it's used.

Permalink | Leave a comment

Scherillo v. Dun & Bradstreet, Inc., 2010 WL 537805 (E.D.N.Y. Feb. 17, 2010)

I teach my Cyberspace Law students that the most effective online contract formation process is a "mandatory non-leaky clickthrough agreement":

* mandatory = the user cannot proceed to the destination without going through a screen soliciting their consent to the user agreement.
* non-leaky = there are no alternative ways the user can reach the destination. I realize this is redundant with "mandatory," but I remind students that a seemingly mandatory process can have leaks. For example, if customer support representatives will manually set up user accounts occasionally, the mandatory online process has become leaky because now a few users reached the destination without consenting to the agreement.
* clickthrough = the user manifests assent to the contract by clicking, and the user is told that the click signifies assent.

There are other ways to form online contracts (e.g., email exchanges), but if executed properly, the mandatory non-leaky clickthrough process should do very well against contract formation challenges. But even this description leaves open a number of user interaction judgments. Does likelihood of contract formation vary if:

* the agreement terms are presented on the clickthrough page itself or are only available for review by hyperlink?
* the agreement terms are presented in a scrollbox? If a scrollbox is used, must the user be forced to scroll through the scrollbox?
* the user is asked to check an additional box, such as a certification that the user has read the agreement?

In all of these cases, I believe the contract should be properly formed whether the answer to these questions is yes or no. However, I'm now a fan of adding a bonus mandatory checkbox as part of the formation process after reading today's opinion. A user mounts a sophisticated challenge to a mandatory non-leaky clickthrough process, and the bonus mandatory checkbox helps squelch the challenge. I think the court would have enforced it without the checkbox, but it sure put the user in an awkward/untenable position.

Scherillo bought a financial report about a company from Dun & Bradstreet's Small Business Solutions website. Scherillo alleges that the report painted an overly rosy picture of the company, leading him to make bad investment decisions that cost him money when the company tanked. Scherillo wants D&B to cover his investment losses.

Scherillo is almost certain to lose on the merits. Indeed, this case brought to mind one of the earliest cyberlaw cases, Daniel v. Dow Jones, 520 N.Y.S. 2d 334 (N.Y.C. Civ. Ct. Spec. Term 1987). (This case is a fun read--see how the court discusses electronic networked communications almost a quarter-century ago). That case involved Dow Jones' publication of an ambiguous report via a dial-up online service that led the plaintiff to make a bad investment decision. The court said that any tort claim for publishing inaccurate information required the plaintiff to show that it had a "special relationship" (analogous to a fiduciary relationship) with the information vendor, and an ordinary customer-vendor relationship did not qualify as a special relationship.

Interestingly, D&B would rather hear the case in NJ rather than keep it in NY and hope to benefit from substantive NY law that surely would doom Scherillo's case. (Perhaps NJ has a similar law). To move the case to NJ, D&B invoked the venue selection clause in its user agreement. Let's look at the online contract formation process. The court says:

"since 2007, the SBS website has included a page that requires users to register before purchasing a Dun and Bradstreet product ("the registration page"). On the registration page, users input information, including their e-mail address and name. The bottom quarter to third of the page contains a scrollable text box with the title "Terms and Conditions" [which contained a mandatory venue selection clause designating NJ]. Directly below this text box there is more text that reads: "I have read and AGREE to the terms and conditions shown above." Immediately adjacent to this text is a much smaller, empty box ("the terms and conditions check box"). Also at the bottom of the page is another box containing the phrase "Complete Registration" ("the Complete Registration box"). Clicking on this box completes the user's registration. McDonald testified that if a user clicks on the Complete Registration box without checking the terms and conditions check box, the user is unable to complete registration and is returned to the registration page."

Check out the page yourself as I saw it in Google Chrome on Feb. 18 (with cropping). The formation process looks pretty standard to me.

Scherillo attacked the formation process by saying he never consented to the agreement because "it was possible for him to unknowingly and involuntarily 'check' the terms and conditions check box." Not only that, he lined up Sean Chumura, "a cyberwarfare and computer forensics expert" who is also [LINK NSFW] helping Perfect 10 in its lawsuit against Google, to testify that "it was possible for plaintiff, while 'tabbing' through the registration page, to inadvertently hit the space bar and thereby 'check' the terms and conditions box."

[Snarky paragraph alert] First, this may prove the adage that you can find an expert to testify about ANYTHING. Second, Scherillo alleged $75k of investment losses. For a low-value lawsuit like that, he needs a cyberwarfare expert??? Third, I believe Chumura has a MySpace page. Really...? I wonder if he uses an AOL.com email address too. The MySpace page also reveals that its author appeared to attend the Dan Quayle school of spelling.

OK, back to the case. The judge was no more tolerant of this nonsense than I am. He resolves the factual dispute by saying:

even under plaintiff's theory--that, while "tabbing" through the fields on the registration page, he accidentally hit the space bar key and thereby "checked" the terms and conditions box--plaintiff would have seen the check mark appear in the box and then still would have had to hit the "return" key (or clicked the "complete registration" box with the mouse) to complete the registration and advance to the next screen. Plaintiff would have had an opportunity to see that he checked the box inadvertently before he then hit the return key on the "complete registration" box. Thus, to accept plaintiff's theory, the Court would have to find that plaintiff hit two keys accidentally-the space bar and the return key-and that he was then involuntarily and unexpectedly sent to the next screen where he nonetheless proceeded to enter his credit card information and complete the purchase of the report. This alleged chain of events is simply not credible.

Therefore, Scherillo's click on the "Complete Registration" box manifested Scherillo's assent to the terms, even if Scherillo chose not to review them. The court says that the fact that the terms were in a scrollbox is immaterial, and the fact that some sites require the user to scroll through the scrollbox before proceeding doesn't affect the effectiveness of D&B's implementation.

I believe this court would have upheld the formation process even without the bonus checkbox, but you can see how the checkbox defused the withering assault of a cyberwarfare expert. Thus, you might consider implementing the bonus checkbox to discourage similar silly attacks against your contract formation process in the future.

As expected, HTC has unleashed a slew of Android smartphones here at the Mobile World Congress in Barcelona, and I have to admit they're looking really good.

While not exactly groundbreaking, HTC Desire is the top-notch phone that competes primarily with Google's Nexus One (also made by HTC), as it has similar looks and pretty much the same specifications.

Here's a quick overview: It's an Android 2.1 phone with a 1 GHz Snapdragon CPU, 512MB or ROM and 576 MB of RAM memory, a 5 megapixel camera (with flash and autofocus), GPS, and the usual connectivity options: Wi-Fi, Bluetooth, 3G. It also has a beautiful AMOLED 3.7 inch screen (multi-touch is supported) with 480800 pixel resolution.

What makes it different from the Nexus One is the lack of trackball, and HTC's Sense UI, so the choice between the two will be strictly a matter of personal preference. I will update this post with some hands-on experiences as soon as I lay my hands on it.

*Update: After trying out the HTC Desire, I'm definitely a bit disappointed with the speed of the device. It's fast, but it's not exactly flying. This is not due to the hardware, though; HTC's Sense UI is faster and more fluid on the new HTC HD Mini, which is based on 600 MHz CPU and Windows Mobile 6.5. However, as far as Androids go, HTC Desire is still on top of the food chain, partly due to HTC's Sense UI, which is getting better and more flexible with each new iteration.

Tags: android, Desire, htc, Mobile 2.0, trending

Earlier, I posted a video asking which format you prefer our YouTube videos to be recorded in. Going a step further, I can't help but wonder what it is that will make the community one big happy bundle of joy. What do you want to see? What directions do envision our community taking?

For instance, if I post an article or video related to Apple, the Windows fans go ballistic. Likewise, whenever I posted something Windows-related, the Mac fanboys blow a gasket. It's like there's no happy medium these days. I cannot possibly make everyone happy all at once. I'm not even going to try!

However, I DO strongly believe that what we're doing is about the community, not just for the community. So I want to know what YOU think. What do you want to see more of in the coming months? What things can you live without? Leave a follow-up comment here, or drop me an email with your thoughts.

• What is Homeland Security monitoring now?
• Is it difficult for a printed book to keep your attention?
• Could a mobile phone series based around Windows 7 be a big hit for Microsoft?
• Hawaii has said YES to Google!
• What, exactly, is the appeal of so-called reality shows?
• Very soon, Apple will have sold their ten millionth song.
• Redwood trees are being threatened by a lack of fog.
• We definitely need a tax cut!
• Could Intel and Nokia be entering into the mobile phone fray?
• Where can you go online to listen to music, and read the lyrics at the same time?
• What 97 things should every programmer know?
• What will you look like with a 4G network?
• What could possibly be better than Google.
• New research reveals that burglers have changed their shopping lists dramatically.
• Even Barbie is a Geek!

Don't forget to stop by our software center to see what new deals we have for you today!

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As expected, HTC has unleashed a slew of Android smartphones here at the Mobile World Congress in Barcelona, and I have to admit they're looking really good.

While not exactly groundbreaking, HTC Desire is the top notch phone that competes primarily with Google's Nexus One (also made by HTC), as it has similar looks and pretty much the same specifications.

Here's a quick overview: it's an Android 2.1 phone with a 1 GHz Snapdragon CPU, 512MB or ROM and 576 MB of RAM memory, a 5 megapixel camera (with flash and autofocus), GPS, and the usual connectivity options: WiFi, Bluetooth, 3G. It also has a beautiful AMOLED 3.7 inch screen (multitouch is supported) with 480800 pixel resolution.

What makes it different from the Nexus One is the lack of trackball, and HTC's Sense UI, so the choice between the two will be strictly matter of personal preference. I will update this post with some hands-on experiences as soon as I lay my hands on it.

*Update: after trying out the HTC Desire I'm definitely a bit disappointed with the speed of the device. It's fast, but it's not exactly flying. This is not due to hardware, though; HTC's Sense UI is faster and more fluid on the new HTC HD Mini, which is based on 600 MHz CPU and Windows Mobile 6.5. However, as far as Androids go, HTC Desire is still on top of the food chain, partly due to HTC's Sense UI, which is getting better and more flexible with each new iteration.

Tags: android, Desire, htc, Mobile 2.0, trending

Continue reading Nokia N900 gets new firmware, new games coming too (video)

Nokia N900 gets new firmware, new games coming too (video) originally appeared on Engadget on Tue, 16 Feb 2010 07:59:00 EST. Please see our terms for use of feeds.

While the saga between TechCrunch and Fusion Garage continues, the latter company is moving forward with the launch of the controversial web tablet, now called JooJoo. While it's not the magical tablet that inspired this blog (In African, the word joujou' means magical device.') Fusion Garage thinks they've got a winner on their hands.

For the same $499 that Apple intends to charge for an entry-level iPad with 140,000 available apps, Fusion Garage will provide you with a browser-based tablet without any capability to run and install local applications. It also lacks a 3G wireless option of any kind, relying solely on WiFi.

But what does the JooJoo have that iPad doesn't?

For starters, a 12.1 inch LCD touch screen in a widescreen aspect ration that we're more accustomed to seeing these days. And you can use all of that screen to render full HD quality video but only from your favorite video sites since the device has only 4 GB of SSD storage not nearly enough to store HD content of any real duration. It has the front-facing camera for videoconferencing that so many people feel is lacking in iPad as well as a USB port, though what one might do with that port is still unknown. As for the software, it's a Linux variant running a Webkit browser that will support both Adobe Flash 10.1 and Java.

So, do they have a winning device?

They may have had one before the iPad announcement, but not now not at that price point and limited functionality, anyway.

You can pre-order the JooJoo now which is expected to ship in 8 to 10 weeks though the site has indicated that time horizon for some time. If you're considering a JooJoo you may want to contact them for an update on a ship date, though the latest word from company executives is late Februrary.

Will you JooJoo?

[JooJoo]

Related articles by Zemanta

• Fusion Garage Files to Dismiss TechCrunch Lawsuit as JooJoo Wars Escalate [Lawsuits] (gizmodo.com)
• Controversial Joojoo Tablet Release Set For Late February (huffingtonpost.com)
• Fusion Garage says JooJoo tablet is on track for Feb. launch (seattlepi.com)
• JooJoo CEO pledges to ship this month, claims deal with leading phone maker (Paul Boutin/VentureBeat) (techmeme.com)
• JooJoo will be manufactured by Malaysia's CSL Group (venturebeat.com)

Will You JooJoo? is a post from: The Magical Tablet

Did you really think book publishing would go the way of the music industry and publish eBooks without DRM? Amazon already wraps their eBooks in DRM for the Kindle and now, Apple will do the same for publishers in its iBookstore.

According to the Los Angeles Times, sources in the book publishing industry have indicated that Apple's FairPlay DRM the same DRM used for its apps and its audio and video content will be made available to any book publisher who'd like to use it.

While there hasn't been an official announcement on its use, it's unlikely that many publishers will decline to use it except for maybe O'Reilly who is outspokenly against DRM.

Has DRM stopped you from buying eBooks?

Disclosure of Material Connection: http://dsclzr.us/0

[Los Angeles Times]

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• O'Reilly drops ebook DRM, sees 104% increase in sales (boingboing.net)
• Amazon Forgot to Mention That Publishers Can Skip DRM on Kindle Books [Amazon] (gizmodo.com)
• Amazon At War With Publisher(s) (mydigitallife.co.za)
• The Ebook Maze Today (rudyrucker.com)

Apple iBooks To Be Wrapped in FairPlay DRM is a post from: The Magical Tablet

Our tipster says the stores have been prepped and the promo is set to begin tomorrow. No word on how long it will run so you better get your new phones soon.

Scammers beware though, remember Verizon recently hiked its ETFs on most advanced devices to counter those that were taking advantage of Verizon's genius nature. It's no longer worth it to simply get two new phones, pay the ETF and hawk the other one on eBay for a quick profit.

- Lulu will take PDF files for a book. Blogbooker.com will try to create a PDF from a blog. Unfortunately, my blog made BlogBooker choke (I have 991 posts from my blog) even when I excluded comments.

- Blurb.com will try to create a book from a blog, but it only supports blogs hosted on WordPress.com, not other WordPress blogs. That will help some people who want to print their blog into a book, but not everyone.

- I had the best luck with FastPencil. In order to reduce the size of your exported blog, you'll first want to go to your comments section, click on the spam link and clear out any spam comments by selecting all the spam comments and clicking Empty Spam. Then you can export your WordPress blog (from the Dashboard, click Tools, then Export) as an XML file that you can download to your computer. From there, FastPencil lets you upload the .xml file and then select which blog posts to include in the book. You can also filter by time, which I had to do. Even my blog posts (no comments) from the last year and a half still made a 350+ page book, and FastPencil choked on turning my entire blog into a book.

FastPencil did a few things well. Included images were imported, and some formatting such as bold made it into the PDF. But other formatting, such as code formatting and newlines/spacing between paragraphs didn't make it. Embedded content such as videos or polls were likewise empty. Trying to import my entire blog also didn't work. But all in all, I was impressed with FastPencil. They also have nice collaboration tools (e.g. you can designate editors, reviewers, co-authors, and project managers to help in writing/polishing the content). The site also works through your web browser instead of as a downloadable program, which appealed to me. If you're used to WordPress, FastPencil won't be too much of a change.

It's still not a point-and-click affair to make a nice looking coffee table book out of a blog, but it's getting closer. Right now, the make a book niche feels like the early days of recordable CDs. Back then, CD-R discs were expensive enough that I would spend time to make sure that I used all the free space on the CD. Eventually prices dropped so much that you didn't feel bad about burning a half-empty or not-perfectly-polished CD.

If you've tried other blog-to-book services or websites, let me know your experiences in the comments.

With each new milestone in technological evolution we've seen a company emerge as the clear leader. In the current landscape, we observe this happening in several key parts of the marketplace including networking, search and operating systems.

Cloud computing is a new disruptive force that makes us ask the question whether we'll see the future of the cloud dominated by a single company. In this multi-part series, we'll take a look at a handful companies and envision what the world might look like, if, in fact, they win it all. We'll also analyze what it will take for a new company to rise up and claim the leadership role in this chapter of computing.

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Dominance Happens: A Bit of Recent History

There has been a love/hate relationship with companies that dominate markets. On one hand, it's us consumers that make it happen. But when they become giants we cheer as governement regulators and competitors knock them down.

Microsoft has faced this issue perhaps more than any company in the past few decades. When the browser battles were in full swing in the late 1990s, Microsoft was taken to court by the Department of Justice for antitrust violations.

In this note released in 2000 - Technology, Market Changes, and Antitrust Enforcement -Microsoft evaluated the idea of whether it was consistent with public welfare for a company to "win" a technology market, and what it means to have a network effect in technology.

Microsoft makes the point that no technology company will hold a dominant position for long if it doesn't innovate and expand the market definition. Additionally, if a company doesn't find the right balance of trust and pricing between its customers new technologies will find a way into the market and cause customers to defect.

Point: A Dominant Vendor Will Emerge in the Cloud

Taking these factors into consideration, we believe there are several points that can support the argument that a dominant player in cloud computing in the future. Due to the nature of market forces a single vendor will emerge as the clear leader in offering cloud solutions.

• First mover advantage: We're already seeing amazing things happen at first-movers like Amazon that are defining product and pricing. This gives them an advantage in fueling further growth and by learning and iterating the solutions in the market. Being first in an infrastructure-driven business will help them reach scale that others just can not reach easily - and potentially price it where others can't match.
• Vendor lock: Once you get started with an infrastructure provider it becomes interwoven into business operations. By the current nature of the cloud (e.g. little standards, a lot of innovation) being first with leading solutions adds more momentum to the first-mover that wins strategic customers.
• Strategic synergies: When we look at the combination of cloud computing and collaboration, we see a natural fit in services that meet more needs and take more market share. It may just work out that bundling works also in the cloud and creates the network effect that Microsoft is famous for. Cisco is also partnering across the landscape, with a focus on preparing the network for the cloud. By making it easier to manage your cloud with Cisco gear, it will provide IT leaders a reason to expand their relationships today, and stay tomorrow.
• Acquisitions and Partnerships: Companies that buy their way into the market will be a big factor in putting momentum behind their offerings. Companies to watch: VMware, Cisco, Oracle. These companies are already showing that the race is on to win the cloud through aggregation of capabilities. Cisco has a blog dedicated to Cloud Computing, Oracle is going on tour sharing its ambitions for the cloud

Counterpoint: A Dominant Company Will Not Emerge in the Cloud

Perhaps no single organization will have the ability to create a dominant foundation in cloud computing. Instead, we'll see many types of solutions as equal peers in the market.

In a way, this runs against the grain of existing technology landscape and our history with successful innovations. Maybe that is why we love the idea of the cloud itself?

• It's too big to own: One big reason to doubt a single dominant force in the cloud is that it feels like owning the Internet. Even Cisco with its strengths can't make such a claim. Perhaps the cloud is the perfect market, where the barriers of entry are low enough that continual evolution will occur.
• It's a movement, not a layer: Another argument against the cloud having a dominant player is its fuzzy definition. There are many parts and pieces to it, and it's not clear today what it would mean to "win" the cloud computing market.
• Portability will keep vendors in check: If customers demand solutions where they can move from vendor to vendor freely, it will impact the landscape. Companies with cloud solutions in the marketplace could be required by these customers to remove barriers to moving data and services between different entities. Additionally, standards and best practices may emerge that allow companies and individuals to move freely between providers. In this world, it will become a fluid market that prevents vendor lock and promotes pricing and trust as brand differentiators.

A Glimpse at Potential Futures

We've compiled a list of companies worth reviewing as candidates as possible dominant players in cloud computing. We'll be looking at their brand and the available assets that could be leveraged to achieve this position. Finally, we'll take a fresh look at what it might feel like if they succeed and shape the brave new world of cloud computing.

The list of candidates we're analyzing includes: Google, Microsoft, Apple, VMware, IBM, HP, Cisco, Amazon, Salesforce, Facebook, and our favorite, Insert new startup to our list by adding a comment below.

Please let us know what you hopes and fears are with the cloud computing marketplace. Any companies we should we add to our list (or remove)? What's your take: Is there one company today that is best positioned to win the cloud?

Photo credit: reddodo & savingfutures

Here's the official synopsis for Matthew Gordon Long's new film:

On a sun-dappled summer day a science expedition propels two children towards an enigmatic encounter at the edge of the their known world. Arriving on an isolated beach, they discover the wreck of a robotic squid submarine. The secret it holds within changes their lives forever.

Set in the nineteenth century, the film follows the two children as they pilot the squid sub all over Canada's West Coast, which is slowly turning into a hotbed for science-fictional weirdness. We love the look of the squid, the kid's "explorer" attire and the overall steampunk-lite feel.

Visit the The Anachornism website for more information, and we'll keep riding this mechanical squid for future details.

The Dell Mini 5 tablet looks like an oversized smartphone, and kind of acts like one too. It has a 1GHz Qualcomm Snapdragon processor (which is the same CPU powering the Google Nexus One phone), and runs the Google Android operating system. But it's 4.8 inch display is larger than any screen you'll find on a cellphone anytime soon, making the Mini 5 much more attractive for surfing the web, watching video, or playing games. You can also make phone calls and surf the web over 3G or WiFi.

Final details on pricing, regional availability, wireless broadband partners, and a launch date aren't available yet. But Dell is showing off the Mini 5 tablet at Mobile World Congress in Spain this week, and letting a few details drop. Right now, for instance, the demo unit is running Android 1.6, but it's likely that by the time it's available to the public the tablet will sport a newer version of the OS, possibly 2.0, 2.1, or something even newer. Adobe Flash support is also on its way.

The user interface seems very snappy and the Mini 5 can run all Android Market applications as well as some custom Dell software. As far as hardware, you've got a capacitive multitouch display, haptic feedback, and a 5MP webcam with

The folks at SlashGear got to spend some hands-on time with the tablet, and you can check out their video after the break.

Post from: Liliputing

Dell Mini 5 Android tablet shows off in Spain

• Windows Phone 7: First Videos
  Closer look at what you can expect from a Windows Phone 7 experience. [Gizmodo]
• Apple to wrap digital books in FairPlay copy protection [Clarified]
  Remember FairPlay, the DRM scheme Apple mostly dropped after years of locking users into a crappy DRM scheme? Well it's staging a comeback in e-books. [LA Times]
• Malware Peddlers Look to Exploit Olympic Luge Tragedy
  Same old trick. Find what users are searching for, then fake 'em out! [Mashable]
• My 2009 Annual Report
  Math teacher Dan Meyer puts a year's worth of personal metrics into the incredible video below. [dy/dan]
• 
  
• The Smarter You Are, The Less You Click
  But then you probably already knew that, didn't you smartypants. [RWW]
• Sciencefeed
  It's like Friendfeed for Science! [via TechCrunch]
• Wi-Fi Turns Rowdy Bus Into Rolling Study Hall
  Internet on a school bus means students stop all that noisy horseplay! [NYT]
• Adobe AIR for Smartphones Wants to Be One Platform to Rule Them All
  Adobe's cross-platform desktop runtime AIR is on its way to mobile devices, starting with Android. [Gizmodo]
• Apple drops the ban hammer on iPhone hackers
  If you develop for the iPhone and App Store proper, Apple's not going to reward your spare-time hacking. [Boy Genius Report]

The Wall Street Journal reports that more changes are planned for Buzz in response to user feedback, including the option to block conversations and other filtering features.

Even as Buzz impressed some social media enthusiasts, it also angered some folks for various reasons the most significant being that it's a bit noisy and difficult to sort through, and that it isn't quite as privacy-friendly as everyone would have preferred.

The WSJ says Google assembled important company figures into a war room where they discussed ways to respond to user criticism. The first results were the big privacy tweaks that went live over the weekend an end to Reader and Picasa connectivity and Gmail contact auto-following. They also made it possible for users who aren't interested at all to remove the Buzz from Gmail completely.

Details about the coming improvements to filtering haven't been revealed beyond the option to block certain conversations, but we're guessing or at least hoping that the ability to collapse comment threads will be among the coming changes. That was by far the most requested feature when we pinged the Buzz crowd asking what features everyone would like to see.

There are a lot of improvements yet to be made. For example, unless you abandon the option of a vanity URL in favor of a numeric homepage, it's pretty easy for someone to guess your e-mail address. If you want it to stay private, that could be a problem.

We'll see what Google does in the coming weeks; we were expecting a large number of new tweaks and this update confirms that they're coming.

Tags: buzz, Google, google buzz, News, social media

(photo: plastic lemonade)

First, Sen. Richard Shelby put a blanket hold on all executive branch nominees to extort the executive branch into rigging procurement to guarantee that the company he favored won a bid on a defense contract. Oh, and he wanted the FBI to build a crime lab in his state, too.

And now Sen. Lindsey Graham is copycatting, placing a hold on the closing of Gitmo hostage to extort the Department of Justice into not having a civilian trial for Khalid Sheikh Mohammed. And Graham's not being subtle about it. In a well-researched piece for The New Yorker, Jane Mayer breaks some amazing scoops:

Rahm had a good relationship with Graham, and believed Graham when he said that if you don't prosecute these people in military commissions I won't support the closing of Guantnamo. . . Rahm said, If we don't have Graham, we can't close Guantnamo, and it's on Eric!'

[snip]

Graham told [Mayer], It was a nonstarter for me. There's a place for the courts, but not for the mastermind of 9/11. He said, On balance, I think it would be better to close Guantnamo, but it would be better to keep it open than to give these guys civilian trials. Graham, who served as a judge advocate general in the military reserves, vowed that he would do all he could as a legislator to stop the trials.

Okay, Senators Graham and Shelby? This is the U.S. Senate, not middle school. This blackmail thing? Its not like, Oh, the cool kids are wearing Hello Kitty wristwatches and you need to follow the fad.

There is zero logical nexus between whether or not to close Gitmo and whether or not to have civilian trials, so the only reason for making the kind of statement quoted above, is quid pro quo. While I'm not suggesting that this is a Hobbs Act violation (read the link, trust me), it certainly smells just as bad.

Kate Martin, the Center for National Security Studies director, warns, We can't have a situation where political pressure forces the federal government to forgo criminal prosecution. That would mean the system is fundamentally broken.

Message for Rahm, from Marcy Wheeler:

Remind me. Didn't Rove and the Bush White House get in trouble for this kind of tampering with DOJ issues?

Really, the White House needs to BACK OFF and let the Department of Justice and the federal courts do their job. And a bunch of non-lawyers with ZERO expertise in this area should NOT be part of the decision making process, much less driving that process. Hasn't Rahm done enough damage to the President with his mishandling of the healthcare bill? Why do you want him to screw up something he knows even less about?

1. The Answers market is in a land grab mode
Unlike eBay, where there's a general market for goods and you get huge network effects from having a critical mass of buyers and sellers, StackOverflow is all about niches. People who are searching for how to make sql server not go slow? aren't likely to bleed over to how to make swedish meatballs?.

This means that you'll have to fight for every niche. Similar to how general forums would have to fight for every niche. Just because you have a forum site that's big for gamers, you won't have much of an edge attracting foodies.

Finally, it's not like this is a new idea with no other entrants. Look at Yahoo Answers for a site that's still up with a similar model and look at Google Answers for another that couldn't be turned into a worthwhile business and closed.

2. Stack Overflow is like Starbucks
It really isn't. Starbucks can use capital efficiently because they have big capital expenditures securing land, building out stores, and purchasing coffee machines. Where's the capital intensity part of starting another answers site? Adding another server? Coming up with a new design?

It doesn't seem like Stack Overflow can efficiently use big money for anything but advertising itself. Which is kinda funny when the whole business is about getting page views to sell for ad crumbs. It also rings very much like dot-com. Remember when all you had to do was get eyeballs? Oh, it's free? Who cares, let's make it up on volume!

3. Stack Overflow wants to get on Techcrunch
If you're listing the publicity of Stack Overflow raises $10M in Series A by Fancy Schmancy VC as the 3rd pro for taking money, you're bound to be in trouble. The Techcrunch post you're going to get from this is going to scroll off the front page in 4 hours and nobody who's actually going to use your service is going to care.

Do you think people looking for an answer to how do I get the three gold rings in zelda? is going to give a hoot who's money you're burning to provide that forum? Or even that the advertisers you're hoping to attract is going to look at anything else than CPM and demographics for a clue on whether to invest? No.

4. The investor will give you advice, connections, and introductions
They may, but most of the introductions your typical investor is going to give you is how to get you out in 3-5 years. You can find a lot of advice in many places. Rarely is the quality of the advice associated with having money involved of largely superior quality.

And if you end up building something of considerable value, then the connections and introductions will come all by themselves. You usually have to work to fight them off with a stick when things are going great. And getting an intro to Mr. Very Important Person before you have anything of material value is usually not going to give you much anyway.

5. Taking money means big exit or IPO
I'd argue the opposite. When you take money, your exit is bound to be smaller unless you're playing the Web 2.0 lottery game (where a few lucky contestants gets bought for sums completely uncorrelated to business fundamentals). Taking money means giving up equity, which means there'll be less left over if you happen to build something that's valuable enough for others to buy.

And I don't know if you've heard, but the IPO markets aren't all that interested in eyeball companies without the numbers to back them up any more. Doesn't matter how many letters of the alphabet you've used for series whatever funding before you got there.

If you can build a great, profitable business, you'll have all the options to sell or go IPO. Taking VC only complicates that.

6. Taking VC will make your company successful
This one is funny. So if you're not loo