Why The Judge Who Struck Down Digital First Sale In New York Isn’t Helping The Copyright Debate

For those of you who were hoping that we might figure out a sane way to resell digital content in the same way there’s a thriving secondary market for used books, CDs, and movies, seem about to be disappointed after a New York judge, in a sweeping decision, rejected the idea that files are objects in the same way that other means of delivering content are:

The company believed that the lawsuit that followed was one of “first impression” insofar as the plaintiff — Capitol Records — might wish to have it declared that the first-sale doctrine didn’t apply to digital goods. Supporting ReDigi’s side was Google, which unsuccessfully attempted to file an amicus brief. Other tech companies also had a stake; Amazon, for instance, has gained a patent on a market for “used” digital music and movie files.

The record industry wasn’t seeking a big declaration. In its own papers, the plaintiff only said that letting users buy and sell previously purchased tracks on iTunes amounted to a “clearinghouse for copyright infringement.”
Nevertheless, on Monday, U.S. District Judge Richard Sullivan went swinging for the fences; unfortunately for ReDigi and those hoping for a vibrant e-market of used song files, the judge wound up completely rejecting the company’s position. He did so not only by turning to the law of copyright but also the law of physics, declaring the “impossibility” of what ReDigi was touting. “The first-sale defense,” he wrote, “does not cover this any more than it covered the sale of cassette recordings of vinyl records in a bygone era.”

This strikes me as a decision that goes against the interest of both consumers and content providers. If content providers want individuals to get on board with the idea that files are property, and that the transfer of them without compensation causes damage to creators, an important part of that idea is that files are distinct objects, rather than ephemera that can be copied at no loss to them from a production standpoint, or loss of their ability to sell other downloads. I also am not sure how Judge Sullivan’s understanding of physics transfer to cyberspace, but perhaps he’s never bumped up against the memory limits of an iPhone before. From a business standpoint, it would obviously be preferable to content companies if they were the only people who retained the right to sell those objects. But that’s an idea they had to surrender on with physical objects a long time ago, learning that it creates a more stable market and preserves product standards to let people resell objects they’ve purchased than to block the first sale doctrine and see illicit copies of textbooks, burned CDs, or bootlegged VHS and DVD copies of movies begin circulating among people who aren’t actually a market for those products in their new, unused form.

Digital resale, I’d think, actually represents an opportunity for content companies to get more of their money back from resale than the resale of physical objects. If resale can be brokered through the original venues that sold the tracks, movies, or books, those venues could write contracts with publishers, studios, and record labels that let artists and content companies get some money back from those resales, along with both the sellers and the venues. A stable and brokered secondary market is probably the only way to guarantee that people who sell files will really get them off their computers—I imagine iTunes could write its code such that if you resell a track through the service, then try to upload it to iTunes without paying for it again, the file would be disabled and you’d get a warning, in the same way Amazon could probably scrub all versions of a track you’ve resold from its cloud storage. Having both sides in the digital content debate acknowledge that files are objects could produce a kind of detente, in which content companies grant consumers some more rights to do what they want with the objects they’ve purchased in exchange for consumers’ acknowledging that if they’re getting money off resale, there is in fact value in individual copies of files.

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In Second Look, Few Savings From Digital Health Records

Health insurance companies are increasing premiums on some rates, with Ipsita Smolinski, health care analyst at Capitol Street, and Marc Schupan, Schupan & Sons.

But evidence of significant savings is scant, and there is increasing concern that electronic records have actually added to costs by making it easier to bill more for some services.

Health care spending has risen $800 billion since the first report was issued, according to federal figures. The reasons are many, from the aging of the baby boomer population, to the cost of medical advances, to higher usage of medical services over all.

Officials at RAND said their new analysis did not try to put a dollar figure on how much electronic record-keeping had helped or hurt efforts to reduce costs. But the firm's acknowledgment that its earlier analysis was overly optimistic adds to a chorus of concern about the cost of the new systems and the haste with which they have been adopted.

The recent analysis was sharply critical of the commercial systems now in place, many of which are hard to use and do not allow doctors and patients to share medical information across systems.

"We could be getting much more if we could take the time to do a little more planning and to set more standards," said Marc Probst, chief information officer for Intermountain Healthcare, a large health system in Salt Lake City that developed its own electronic records system and is cited by RAND as an example of how the technology can help improve care and reduce costs.

The RAND researchers pointed to a number of other reasons the expected savings had not materialized. The rate of adoption has been slow, they said, and electronic records do not address the fact that doctors and hospitals reap the benefits of high volumes of care.

Many experts say the available systems seem to be aimed more at increasing billing by providers than at improving care or saving money. Federal regulators are investigating whether electronic records make it easier for hospitals and doctors to bill for services they did not provide and whether Medicare and other federal agencies are adequately monitoring the use of electronic records.

Technology "is only a tool," said Dr. David Blumenthal, who helped oversee the federal push for the adoption of electronic records under President Obama and is now president of the Commonwealth Fund, a nonprofit health group. "Like any tool, it can be used well or poorly."

While there is strong evidence that electronic records can contribute to better care and more efficiency, Dr. Blumenthal said, the systems in place do not always work in ways that help achieve those benefits.

Federal officials say they are drafting new rules to address many of the concerns about the current systems.

A handful of lawsuits have been filed over the systems. In the fall of 2010, for example, Girard Medical Center, a small hospital in Crawford County, Kan., hired Cerner Corporation to install an electronic records system. The hospital was hoping to obtain federal financing for it.

But after receiving $1.3 million in payments, Cerner employees failed to get the system up and running in time for the hospital to qualify for federal incentive payments. The company then notified the hospital that it was abandoning the project, according to a lawsuit Girard filed against Cerner last year. The case is in arbitration. A lawyer for Girard and a spokeswoman for Cerner declined to comment.

Late last year, a physician practice in Panama City, Fla., filed a lawsuit against the health care technology firm Allscripts after the company stopped supporting an electronic records system called MyWay that it had sold to 5,000 small-group physicians at a cost of $40,000 per physician.

The lawsuit said that the system had problems and that the physician group was unable to meet the criteria for federal incentive money. A spokeswoman for Allscripts said it would defend itself vigorously.

The 2005 RAND report helped Cerner executives and others sell the new systems, despite criticism at the time that the analysis was too rosy. RAND said that the report was not influenced by its financial backers and that, in fact, it disclosed the corporate sponsorship prominently in the report itself.

The study was harshly criticized by the Congressional Budget Office for overstating expected savings.

The new analysis was not sponsored by any corporations, said Dr. Kellermann, who added that some members of RAND's health advisory board wanted to revisit the earlier analysis.

Dr. David J. Brailer, who was the nation's first health information czar under President George W. Bush, said he still believed tens of billions of dollars could eventually be squeezed out of the health care system through the use of electronic records. In his view, the "colossal strategic error" that occurred was a result of the Obama administration's incentive program.

"The vast sum of stimulus money flowing into health information technology created a 'race to adopt' mentality — buy the systems today to get government handouts, but figure out how to make them work tomorrow," Dr. Brailer said.

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American Majority Action Unveils Killer GOTV Digital Technology

As a movement, we have enjoyed unparalleled growth over the past few decades, particularly, over the past few years with the advent of the Tea Party.  We have more conservative thinkers, writers, talk radio hosts, and organizations than Ronald Reagan would have ever imagined.  Most importantly, we have more passion and grassroots activism than ever.  However, the most direct way to affect conservative change is to win elections; both primary and general.  Writers, thinkers, and speakers help galvanize and unify the conservative movement, but we cannot win elections on superior ideas and arguments alone.

The seminal ingredient to electoral success has not changed; it all boils down to turning out the vote and establishing an efficient and effective ground game to connect with the most consequential voters in a given district.  What has changed is electronic communication.  The only way to run an effective campaign in this era of mobile devices and social media is to create the perfect synergy between the venues of communication, the voter information, and the GOTV operation.

Let’s face it; the left has been drubbing us in the race to harness technology for GOTV.  The entire Google establishment is married to the Obama machine.  In fact, they have been outgunning us in GOTV in general.  We crushed the Democrats in the war of ideas and the political narrative in 2010, yet we dramatically underperformed our historic potential for success due to a lopsided GOTV disadvantage.  We underperformed our polling numbers in key states because of the superior ground game of the leftist union machine.  We will never fully succeed if we only seek superior ideas and passion, especially when we are already at a disadvantage in terms of time, treasure, and talent.

This is where American Majority comes into play.  As Erick always says, American Majority and AM Action are among the few organizations that he wholeheartedly endorses without any reservations.  They think of all the key elements of affecting generational change from the local school board on up to statewide office – and implement them with overwhelming effectiveness. And most importantly, in this era of intra-fighting between Tea Party organizations and personal egos, they are true team players.

Today, American Majority Action unveiled “Gravity,” the most advanced campaign management software and voter database system on the market.  Developed together with Political Gravity TM , a leader in conservative political software technology, this all-in-one tool will allow Tea Party activists and conservative campaigns to communicate with and target the exact voters that are needed to win elections.  The most unique aspect of this is that they are giving out free subscriptions to any authentic local Tea Party organization.  National organizations and candidates can subscribe for a dramatically reduced rate.  Freedom Works counts among the earliest prominent subscribers.

All of the information and the voter surveys were built from scratch to conform to the needs of conservative organizations and candidates.  This was developed by conservatives for conservatives and will not be shared with anyone else.

Specifically, Gravity users can walk through neighborhoods with tablets or iPhones (and Droids) and have access to the most up-to-date information on any voter within the region, and can filter it based on any data point; from policy issues to income to voting history.  Not only does Gravity display an instant Heat Mapping capability, it filters the heat map by voter intensity.  Then, when the targeted audience is identified, Gravity provides the activist with the best route to canvass those voters.  So if you’re canvassing for a Tea Party candidate against an establishment Republican in a low-turnout primary, you can instantly see all of the information about the most intense Republican primary voters and have access to the most efficient canvassing plan.  In states that have early voting, you can track through the heat map which voters (filtered by any data point) have not voted yet.  The entire operation can be monitored by the campaign managers with one bird’s eye view through the lens of this App.

There are numerous other features embedded into this one-stop shop that would normally cost campaigns thousands of dollars per item without the seamless connectivity, that Gravity provides for a rate that even a candidate for local office can afford.  It contains everything from hard ID’ing micro-targeting technology, VOIP technology, to automatic direct mailing and even a function to file FEC reportings – all in one App.  You can literally manage every aspect of a campaign from Gravity.  American Majority Action is working on some new secret capabilities that will be added to the system and out in the field for this cycle.  They will all be shared with Tea Party organizations that share their intrepid vision of limited government.

This is what it looks like to take conservatism to the next level.  This is winning.

Cross-posted from The Madison Project

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