by Fred -

Kickstarter Fulfillment and Product Development: A story of Dogfood and Data Validation

You could think of this post as telling the story of two Kickstarter projects. Since its a long post, here’s a quick summary:

  1. I recently ran a Kickstarter project.
  2. I wanted to share all the financials and details of how I shipped my rewards.
  3. I discovered we could do a better job helping creators process their backer’s addresses.
  4. We recently deployed a change to backer surveys that should do just that.

So I hope this post will educate Kickstarter creators on how to smoothly fulfill their rewards, but also shed a little light on how we do product development at Kickstarter.

The Kickstarter project was pretty simple — I FOUGHT SOPA AND ALL I GOT WAS THIS STUPID T-SHIRT— and the other project was actually a Kickstarter built by our product team, which we (and I use “we” loosely, Jed, Tieg, Daniella and Meaghan did all the work) shipped last week:

The address confirmation tool helps backers validate their addresses when filling out reward surveys from creators.

Just as Netflix or Amazon ask you to confirm your shipping address if it doesn’t precisely match an exact address, Kickstarter will now ask backers to confirm a more precise one so that creators can feel more confident about shipping their rewards off. This feature also has the benefit of cutting down some of the data correction creators might face when shipping rewards.

The development of this feature is a good example of the of “dogfooding” your own product, which is software jargon for the act of actually using the tools you’ve built.

Dogfooding is one of the best possible ways to understand and improve your product, so I’m always interested in getting feedback from people that have run their own Kickstarter projects.

The SOPA shirt project was pretty straightforward. It only really had two reward tiers, but as with all Kickstarter fulfillment, there were a lot of details to get right.

Getting one of those details right — backer addresses — made me realize we needed a better way to ensure we were delivering valid backer mailing addresses to project creators at the most crucial part of their project: reward fulfillment.

I also want this post to serve as a bit of a guide for fulfilling Kickstarter projects on a similar scale. So first, some details on how I planned to fulfill my rewards.

Estimating Income and Costs

To determine my actual net dollars from Kickstarter, Amazon, and the credit card fees, I had to download a CSV of my account activity from Amazon’s FPS platform, sum the pledges and subtract the credit card fees for each pledge.

The total cost of CC fees was 4.8%, Kickstarter’s fee was 5%, so I yielded 90.2% of actual pledges, or $3,497.

I had a chicken and egg problem trying to estimate which shirts to even offer in the survey.

Since different shirt sizes and different colors were different prices (the cost per shirt varies from $6.32 for a Grey Small, to $12.95 for a White XXL), it was crucial to a rough estimate of what the shirt size and color choice distribution would be.

I knew a lot of people were going to order large and medium shirts, but if I had too many XXLs, it might not have been affordable to offer the white shirts. And if it turned out that I couldn’t afford the white shirts, I didn’t want to even offer the white shirts in the survey.

So I took a look at Yancey’s shirt distribution. For his project he had the following distribution of sizes:

  • S: 13%
  • M: 26%
  • L: 30%
  • XL: 21%
  • XXL: 10%

These ratios enabled me to estimate what the distribution of sizes would be for my shirts. I guessed that 2/3rds of my backers would want the grey shirt, and the rest would want the white shirt.

Using these numbers and the bulk costs from ApparelSource.com, I was able to determine that I could afford to offer both the grey and white shirts in my survey.

Here’s what the actual distribution of sizes turned out to be:

  • S 13.85%
  • M 29.44%
  • L 32.90%
  • XL 15.58%
  • XXL 4.33%

My numbers weren’t far off from Yancey’s — I ended up having fewer XXL than me which surprised me. The grey / white distribution ended up being 77% grey, 23% white.

I threw together a quick graph using ggplot2:

One observation is that the distribution of white shirts looks like it skews smaller. Anecdotally, that might be explained by women preferring the white shirt (again, anecdotal), and since women’s sizes tend to run smaller, the distribution of white shirts had proportionally more smaller sizes.

Buying the Shirts

ApparelSource seems to operate multiple websites with basically the same layout and offerings. They had the best prices on CANVAS shirts I could find, though oddly, the prices varied between their different sites by a couple of cents. Some sites had them in stock and others didn’t. This made no sense to me because they’re all being shipped from the same warehouse.

I ordered one of each shirt style to confirm they were the style I wanted, and then prepared to make the bulk order.

My order was extremely specific (13 Small White, etc.) so I think it raised some flags on ApparelSource’s side. I had to spend some time working out the best way to pay them. It turned out paying them via PayPal was the easiest way.

This is a version of the sheet I used to calculate costs. I think working with something like this sheet is crucial for staying sane when fulfilling any Kickstarter project.

Printing

Yancey had also suggested I check out Kayrock so I dropped them a line to get a quote. Kayrock had a source they recommended for buying the actual shirts which would have saved me over $1,000, but I wanted to stick with my choice of CANVAS shirts from ApparelSource because I had already tested their quality.

In the original email Kayrock had quoted the print job as “plastisol ink, no shirt rolling, no double hit, no handling fee, no rush fee, no production prepress, no color change fee“, and gave me the quote of $479 + $80 for printing and setup.

What they didn’t tell me, was that if I didn’t use their apparel quote and instead had the shirts shipped to them directly, they were going to charge me $0.40 cents per shirt of handling. This added $100 to the total cost, so my Kayrock fees were $660.

Despite this issue, their work and responsiveness over e-mail was very good, and I would recommend checking them out if you’re interested in some great NY screen printing.

Once Kayrock finished printing the shirts that I had shipped directly to them, I headed to Greenpoint to pick them up myself so I could start packing and sending t-shirts from Kickstarter HQ.

Backer Addresses and Postage

In general, backer addresses tended to be malformed in a couple of ways. The first was that people tended confuse “Line 1” and “Line 2” — they either put their Apt # first, then street, or their Street then company.

I also ran into problems with 20+ addresses from the North East because their zip-codes were had their leading zeros removed.

Zip codes like 06897 became 6897 when opened in Google Docs or Excel because they were converted to numbers.

In addition someone put “Meow, Meow” as their address. They didn’t get their shirt.

To save on shipping, I did my research and chose First Class mail, which let me specify the ounces for each package. After weighing each style of shirt in an envelope (I correctly assumed the labels weren’t going to add any more weight), I had three tiers:

  • S / M white – 5oz – $1.98 postage
  • M / L shirts – 6oz – $2.15 postage
  • XL, XXL shirts – 7oz – $2.31 postage

Sorting by whose shirts had already been delivered (all KSR staff, some friends and family), and removing those people from my CSV yielded 183 packages, summing to $370. I’d recommend keeping careful track of the rewards you ship vs. the rewards you intend to hand deliver.

The cost to ship the same shirts using flat rate envelopes would have been $942.45, so I managed to save a lot by carefully weighing and picking First Class mail instead.

After having lunch with my mom on a Saturday, she offered to help me stuff envelopes and ship the shirts. This was actually a lot of fun and I always forget how rewarding manual labor can be when the majority of my day to day work involves keyboards and LCD screens.

My mom suggested to come up with a color coded system to manage shirt sizes & colors (envelopes marked with Blue represented a Large White shirt, for example). This worked well, but only because I had access to many different colored Sharpies.

Fulfillment would have been chaos without some kind of organized system for tracking sizes and colors.

Tyvek envelopes are great, until you realize they’re a little pricey; Staples sold 50 for $28, so $0.56 per envelope which added to the shipping cost. I probably could have ordered them for free from USPS if I had planned the shipping session in advance. In general I highly recommend using Tyvek envelopes as they’re much lighter, waterproof, and probably more durable than the cardboard flat-rate envelopes.

Endicia Software

I’m not sure how I would have addressed and processed all the envelopes without Endicia which is batch mailing software. I get the feeling many other creators have used it to fulfill their rewards. Endicia is free to use for 30 days, and then $15 a month to keep using it afterwards.

The software allows you to import a CSV, but the requirements are very strict. The fields must be (in the following order):

  • Name
  • Company
  • Address1
  • Address2
  • City
  • State
  • Zip

In order to correlate each person with a label and envelope with a t-shirt, I merged their size and color selection into the name field. So it looked like this for a XXL Grey shirt:

John Smith XXL/G
3105 Sturges Ridge
Santa Rosa, California 95401

This might have been a little odd for backers (are there privacy implications for exposing their shirt size to the post master?), but Endicia didn’t allow any other fields, so there was no where else to put this information on the label.

I bought $500 worth of postage, but only ended up using $370, and was able to get a refund for the left over balance when I canceled my Endicia account.

Printing Labels

Printing labels from Endicia is very scary. You are shown this dialog box (but replace 7 with 180, worth $370):

I did one test print of a label and it seemed OK, so I went with through with the big batch. After that Endicia automatically opened a file inside my /tmp/private directory with a number of rejected addresses, most of which had the ZIP code problem. This was a time consuming and stressful process because any mistake would mean lost money on postage.

After I was done printing the postage from Endicia, I realized I could have sent the batch to a PDF instead of the actual printer, and it would have mitigated some of the risk. Without storing my labels somewhere, if my printer had gone off line or my computer would have crashed, it was unclear how I would recover labels that were still stuck in the queue. I hated trusting the printer software this much, but the overall process went pretty smoothly.

Internal Kickstarter Post-Mortem

Once I shipped my shirts, I wrote up an internal email to Kickstarter staff detailing my fulfillment process. That email became the kernel for a number of discussions about how we could better improve the data processing creators face when delivering their rewards to backers.

One solution to the dirty-address problem was to use an external service to validate the addresses supplied by backers.

Using an external service to validate backer addresses turned out to solve two problems.

First, it would ensure backers had the chance to confirm a valid address, which is always a good thing. Second, it would add a hyphen and the 4-digit add-on to US zip-codes, converting zip-codes like 11217 to strings such as 11217-1142.

That extra hyphen would prevent applications like Google Docs and Excel from converting zip-codes like 06897 into numbers like 6897 (technically, the application would recognize the cell as containing a string so it wouldn’t attempt integer coercion).

Preventing zip-codes from losing their preceding zero would mean software like Endicia wouldn’t reject addresses from the North East. So we decided to give it a shot.

First, Jed did research on what external services we might like to use. Strike Iron emerged as one of the best options, so we began sending legacy addresses to their API in order to evaluate how many they’d be able to validate and correct. This back testing showed that Strike Iron would be able to supply valid addresses for the vast majority of the sample of the surveys we tried. It also showed that Strike Iron would even be able to suggest corrections for many otherwise undeliverable addresses.

Since then, its been really exciting to watch Jed and Tieg build the actual data flow, and I’m super proud of how it turned out.

So even though this is a somewhat behind-the-scenes change in the way Kickstarter processes data, its exciting to know that it will make the lives of many creators just a little bit easier.

by Fred -

Visualizing SOPA on Twitter

When I heard that Tyler Gray at Public Knowledge was looking for someone to do some analysis on tweets that mentioned SOPA, I thought I might try Cytoscape (an open source tool used for biomedical research, but handy for large scale data visualization) to show some of the relationships between people discussing the controversial bill on Twitter.

The result is a graph of the most active users referencing SOPA

Public Knowledge worked with the Brick Factory to set up their slurp140 tool to record approximately 1.5 million tweets which Tyler sent me in the form 350mb CSV file. I first used Google Refine to clean and narrow the set down to only tweets which were replies to someone else. This left approximately 80,000 tweets which I then imported into R. I then ranked all of usernames by how often they appeared both as senders and recipients, and then picked the approximate top 1,000 users. Since replies are sent from one user to another, the graph is directed: each edge has a direction with an origin and an arrow pointing at the recipient. There are 1,021 nodes identified by their Twitter usernames, and 1,757 edges a good portion of which are labeled with the content of their tweet.

Visualizing networks this large is more of an art than a science

I’ve tried to strike a balance between visual complexity, aesthetics and readability of tweets, but you’ll find that this isn’t always successful. Sometimes tweets run into nodes, sometimes edges run into labels, and sometimes the graph feels like a total mess. But that messiness is part of what made the SOPA debate on so interesting over the last month.

Thousands of people participating with plenty of cross talk.

The colors and sizes of the nodes and edges are coded in the following ways:

  • A node and its label size is maps to the number of tweets both posted by a user and and mentioning a user. (Ex: @BarackObama is a huge node because so many people were tweeting at him about SOPA).
  • Node color represents the number of outgoing tweets. The greener the node, the more replies a user posted. (Ex: @Digiphile sent a lot of tweets mentioning SOPA.)
  • Edge thickness represents “edge betweeness” which is how many “shortest paths” that run through it. This is a rough measure of how central a given tweet is in a network. (Ex: @declanm and @mmasnick have a thick line connecting them because many other nodes are connected to the two through that tweet.)
  • Edge color represents the language of the tweet. (Ex: Tweets in English are blue, Spanish are yellow.)

The nodes are positioned using an “force directed” algorithm which is typically designed for undirected graphs, but I found it to be the most visually compelling of Cytoscape’s layout options. To learn more about force directed graphs, take a look at this d3 tutorial visualizing the characters in Victor Hugo’s Les Misérables.

To really browse the graph visit GigaPan where I’ve uploaded a 32,000 x 32,000 pixel version.

I highly recommend GigaPan’s full screen mode. I’ve also created a couple snapshots on GigaPan that highlight interesting nodes: @BarackObama, @GoDaddy, and @LamarSmithTX21 and @DarellIssa.

If you really want, you can also download the 36mb gigapixel file, the Cytoscape source file, and the PDF vector version of the network graph.

Thanks again to Public Knowledge, The Brick Factory for providing the infrastructure to record the tweets, and everyone who has helped fight against SOPA and PIPA over the last couple of months, especially those who tweeted about it.

– @fredbenenson
by Fred -

There’s No Such Thing as a Compulsory License for a Photo

My friend Andy has a terrific post up about his ordeal settling with the photographer Jay Maisel over the threat of a copyright lawsuit. Chances are if, you’re reading this, you know about that. If you haven’t ready Andy’s story, go and read it and then come back.

There’s one pointed question I’ve seen crop up in a number of conversations about the settlement:

Isn’t it wrong that Andy chose to pay the licensing fees for the music but not for the photograph?

This question makes the assumption that Andy could have paid the licensing fees to Maisel like he did for the music. He couldn’t have. This is because Jay Maisel refused to license the image and there’s no compulsory license for photography like there is for musical compositions.

A compulsory license is what it sounds like: the owner of the underlying musical composition is required, by law, to license it to anyone who wants to use it at a predetermined rate. This prohibits song writers from picking and choosing who gets to perform their works. It also allows Andy to license, at a fair rate, the underlying song compositions from a Miles Davis album to make a new album of original recordings (remember, copyrights to recordings are different from copyrights to the compositions of a song).

The copyright of photographic works, unlike works of music composition, is not subject to a compulsory license.

This means that photographers, unlike song writers, can forbid anyone from reusing their work, whether it is for a poster or for an album cover.

Now, artists like Jay Maisel obviously enjoy this absolute control over their work because it lets them dictate who uses their art and when. Song writers, unfortunately aren’t afforded to this their published works.

So while no one could have prevented Andy from recording an album of remixed music written by Miles Davis — not even Miles Davis himself if he were alive — the same does not hold for a photo of Miles Davis.

Remember, Maisel admitted he would have refused to license to Andy the rights to the photo. So Andy’s only option, short of not using the photo at all, was to use the 8-bit remix cover and wager it was a fair use.

That Andy could, in one case, hire artists to legally remix music by paying a compulsory license, but in another case had to make an expensive and risky bet on fair use (a bet that didn’t pan out) feels unfair.

Put another way: why are composers required to license their compositions at a fair rate to anyone, but yet virtually every other type of artist doesn’t have to play by the same rule?

I doubt anyone would argue that song composition is a lesser art or any less deserving of full royalties than other arts.

One reason is that the practicalities of compulsory rights for photographs (and other works) are hard to imagine. Music compositions are written, then performed, then recorded, whereas photographs are snapped and then printed. There’s no underlying right in a photograph (thank goodness) to its “composition” like there is for a piece of music. So that is part of why compulsory licenses for photos don’t exist.

But I think another part of the story is that the law has evolved the musical compulsory license as an implicit acknowledgement that music compositions are both maleable and fundamental components to our culture. Compulsory licenses make possible everything from karaoke bars to cover bands to remixes like Andy’s. The alternative — allocating complete power to composers over who reuses their work — yields transactional costs on culture that are simply too high. The law hasn’t felt the same way for the visual works.

So will other art forms, like photography, adopt compulsory licenses? I doubt it, but I can’t help but they’d be a great compromise in light of Andy’s settlement. I asked Andy over email whether he would have paid a mechanical license for the photo:

“Absolutely. If the laws and protocols for remixing photos were as clear and fair as covering music, I would’ve bought a mechanical license for the photo in a heartbeat. But the laws around visual art are frustratingly vague, and requiring someone’s permission to create art that doesn’t affect the market for the original doesn’t seem right. I didn’t think it would be a problem, especially considering the scope of my project, but I was wrong. Nobody should need a law degree to understand whether art is legal or not.”

by Fred -

Emoji Dick

I just launched a project on Kickstarter (an awesome NYC based startup that helps people fund their ideas) to translate Moby Dick into Emoji using Amazon Mechanical Turk. I’m calling it Emoji Dick:

This project will fund the production, via crowd sourcing, of a never-before-released translation of Herman Melville’s classic Moby Dick in Japanese emoji icons.

Here’s an example of an Emoji sentence from Moby Dick:

Each of Moby Dick’s 6,438 sentences will be translated 3 times by different Amazon Mechanical Turk workers. Those results will then be voted on by another set of workers, and the most popular version of each sentence will be selected for inclusion in the book.

I’m trying to reach $3,500, and you can give at the $5, $10, $20, $40, and $200 levels and get different awesome rewards, like their name included in the book, a CC BY-SA licensed PDF, the raw data, and either a softcover black and white copy or a limited edition color version.

If you want to support the project, just visit the page here. Thanks!

by Fred -

Copyright Commerce and Culture Blog Roll

Here’s a list of blogs that I’ll be requiring (suggesting?) my students to read:

A Copyfighter’s Musings
Copyfight
copyrighteous
Copyrights & Campaigns
Creative Commons
EFF: Breaking News
EFF: Deep Links
Free Culture @ NYU
Free Culture @ NYU List Serv (requires membership)
Freedom to Tinker
John Palfrey
LawGeek
Lessig Blog
Public Knowledge – Blogging, Events, and Action Alerts
Recording Industry vs The People
Slashdot
Techdirt
The Public Domain
Wendy Seltzer’s Blog

Please let me know if you have any suggestions. You can read the whole feed here live via Google Reader, or download the OPML file here, which you can then import as a folder into any RSS reader.

by Fred -

DeCSS and (My) Radicalization

Philosophy Club Poster

I made this poster for a meeting of the Philosophy Club at Wilton High School. Admittedly, my definition of “philosophy” was pretty loose and this poster’s point was pretty incoherent (apologies to MLK), but I had found myself talking about the 2600 DeCSS case Universal v. Reimerdes so much with my friends, that I figured it might be good to found a club where we could keep similar conversations going. Since our school didn’t have a debate club at the time (there were rumors about an ill-fated trip involving a school bus sinking in the Norwalk River), we didn’t really have any other venues to do this besides study hall.

Luckily, my father happened to be a working philosophy of science professor and had enough spare time to help us get the club off the ground. I think I organized the first session and ranted about the DeCSS case, but we later moved onto more academic subjects and discussions. The club was a high point in what was mostly a difficult period in my life and school. I think I still have some photos that we intended to submit to the yearbook and if those turn up I’ll try and post them. Unfortunately the club never survived after our class’s graduation as we were unable to find a faculty adviser or enough student interest. I would later use the skills I developed to launch Free Culture @ NYU, so I suppose I was on the right track.

The polemical writings of Emannuel Goldstein, editor in chief of 2600 and the main defendant in the case, about the magazine’s choice to publish DeCSS had galvanized me. Goldstein articulated that the issues at hand in the suit were really ones of freedom, source code, and speech, not piracy and profits. As an early adopter of Linux (Slackware 3.3 anyone?) as well as a kid who loved movies and was incredibly excited about the potential of DVDs, the practicalities of the case were quite clear to me: why shouldn’t I be able to run whatever software I wanted to play my own DVDs? Who says I can’t read *that* source code? Jon Johansen, the teenager hacker who cracked the DVD encryption scheme, CSS (not to be confused with the other CSS), played the role of sympathetic hacker who I, not incidentally, looked up to.

Free speech on the internet, heck, freedom itself, appeared to be at stake, threatened by a very bad part of a very new law that sounded like it was bought and paid for by the exact interests suing our magazine.

During the case’s 2nd Circuit Court of Appeals trial in May of 2001, I wore a t-shirt featuring the censored source code while sitting in the audience. The Wall Street Journal interviewed me that day and it wasn’t until last year that I discovered my quote actually made it into the article in the paper:

Looking back, I now realize my interest and involvement in this case marks my early foray into the world of radical online free speech activism and copyright reform. I knew the 2600 case was important (clearly, I spent a disproportionate amount of time thinking about it, debating it, and following it closely), but I did not estimate how much these issues would continue to shape and influence my life and career. I’ve now been involved in this community for almost a decade, and it’s only beginning to get really interesting.

Obviously, I was not alone. This case and these issues not only radicalized a generation of free software developers and enthusiasts, but also trained them with a set of skills necessary to successfully navigate these issues in the future.

My friend and now colleague at NYU, Gabriella Coleman has written an article about our story called “Code is Speech: Legal Tinkering, Expertise, and Protest among Free and Open Source Software Developers”  published in the academic journal Cultural Anthropology. Biella’s paper is one of the best overviews of the conditions that precipitated the birth of a generation of internet and free speech activists. Biella concludes by arguing this type of political activism and legal autodidacticism represents a new kind of engagement with democracy, which of course, I completely agree with and am proud to be part of.

Download the PDF of her paper here, or look for it in your copy of Cultural Anthropology.

by Fred -

The Staggering Hypocrisy of the MPAA

MPAA shows how to videorecord a TV set from timothy vollmer on Vimeo.

This video is shot by my friend Timothy Vollmer at the current DMCA exemption hearings. The issue is whether Congress should allow educators and students the rights to rip DVDs for educational purposes. Peter Decherney succeeded in establishing this right for film historians working at universities, and is now seeking to broaden it to all educators and students.

In the video, a representative from the MPAA is demonstrating that it is “easy” to access and compile content from a DVD without the need to rip it using decryption software. Their suggested technique? A camcorder pointed at a flatscreen hooked into the audio signal.

This is evil and hypocritical a number of reasons. First, the MPAA has positioned themselves against camcording movies. Here, they’re showing how easy it is to do. They’re also one of the main organizations which have successfully lobbied for criminal penalties against people bringing camcorders into movie theaters.

Second, the software used in the presentation is VLC. VLC disables the MPAA’s price fixing scheme known as region encoding and can also decrypt DVDs, providing yet another example of where the MPAA thinks their own rules don’t apply to them.

Third, the MPAA has been leading the pack in attempts to close the “analog hole” through legislation and collusion with hardware manufacturers. The analog hole is precisely the phenomenon demonstrated in this video; since audio and visual data needs to be broadcast into an analog signal eventually (our brains are not capable of decrypting 1s and 0s into images and audio yet), there will always be a avenue in which to record media so long as our computers obey us.

“Closing the analog hole” refers to forcing manufactures to cripple hardware so that it is incapable of broadcasting analog signals and also incapable of recording them. It is the stuff of a dystopian science fiction plot not technical reality.

Ultimately this video demonstrates the insidiousness of the MPAA’s strategy: they want to force educators to use a technique that they’re simultaneously lobbying to prohibit.

End result? The precise strategy suggested by the MPAA, the analog hole, gets legislated away by the MPAA, and educators are left wasting money and time on multiple copies of crippled media.

UPDATE: Another way I’m thinking about this video: it proves that the MPAA knows closing the analog hole is impossible, thus exposing their attempts at legislation as disingenuous.

Props go to Tim for posting such a illustrative video (not to mention the nerve to post clips of Harry Potter under fair use!)

by Fred -

RiP: A Remix Manifesto Screening with Me & Aram

This Sunday UnionDocs is hosting one of the first screenings in NYC of the new Girl Talk documentary RiP: A Remix Manifesto. I’ll be part of the discussion afterward with my friend Aram Sinnreich.

Email [email protected] for reservations.
7:30pm, May 3rd 2009
322 Union Ave in Williamsburg.
L train to Lorimer / G to Metropolian / J,M,Z to Hewes.
Suggestion Donation: $5
Reservations will only be held until 6:55 pm.

Here’s the trailer:

I hope to see you there!

by Fred -

We Are One if You Are HBO

photo by jurvetson
photo by jurvetson on flickr

Techdirt is reporting that Against Monopoly is reporting that HBO is sending take down notices to people who have uploaded their own recordings of the Inaugural Concert: We Are One.  I haven’t been able to verify this, but if it is indeed the case, it would seem that HBO is misunderstanding their rights under copyright law. Note that I am not a lawyer, so this is not legal advice.

Since HBO merely owns the copyright to their recording of the concert, they can’t control what other people were doing with their own recordings from their own cameras. This is because a work is not entitled to copyright protection unless it is fixed. The actual performance that happened that evening wasn’t fixed or copyrighted until it ended up on HBO’s tapes (or hard drives).

If the content of the concert was in the public domain or free (e.g., The Star-Spangled Banner is in the public domain since it was created prior to 1923), then any audience member who recorded it had the right to make a recording of it and distribute that recording since they owned the copyright to the video. Putting aside questions of anti-bootlegging laws (which are arguably unconstitutional and not relevant to DMCA takedown notices), it is not clear that HBO can prevent distributions of privately filmed performances of public domain works that were performed in a public venue, which, if the Against Monopoly report is correct, is what part of what they’re trying to do.

However, according to the Wikipedia page, a lot of non-public-domain non-free content was performed.

Which means that by recording and distributing a live performance of say, a Bruce Springsting song, an audience member might be infringing on the boss’ copyright, but probably not HBO’s copyright. Does anyone know more about bootlegging laws and how they might or might not apply here?

So what right does HBO have to send takedown notices for other people’s works? Sending fraudelent DMCA takedown notices is itself a violation of the DMCA, so if you’ve been threatened by HBO for posting videos you recorded at the inaugural concert, you probably have the right to file a putback, and perhaps take action against HBO.

There are bigger questions, however, about the inaugural committee’s right to leverage tax payer money and support to sell off exclusive rights of a public event to a private entity such as HBO. I’m not clear on whether their status as a legal entity would entitle them to do this.

Anyway, while I would like to see HBO put the concert into the public domain along with other works of the federal government, that is probably impossible as the recording contains works that are in copyright, such as Bruce Springsting songs.

There is the possibility that HBO could put the video but not the audio into the public domain, but I do not think there is an easy work around for including both the audio and video. This is not to say, however, that HBO is justified in sending nasty letters to citizens interested in helping celebrate an important event.

I sympathize with the inaugural committee’s desire to produce and execute a fantastic recording of a historic moment in American history. I know that this kind of production costs money and there must be incentives for creating it. But I think the conflicts between HBO and citizens indicate that copyright is not the proper incentive here. It alienates too many citizens interested in documenting their own version of history, and given the context and content of our current president’s administration, sets the wrong precedent for sharing that history. HBO should be ashamed of themselves.