A Different Kind of "Wardrobe Malfunction"

Any list of most influential books of the 20th century must include George Orwell's 1984. And the world that is described -- with oversight of private lives, double-speak, and torture -- is one that seems, given the modern world, to be coming closer and closer.

So it not surprising that Amazon, which is trying to convert readers from paper-and-binding physical books to its new Kindle e-book reader, would want to offer the classic work. In keeping with the Brave New World of Web 2.0, Amazon allows alleged copyright holders to essentially self-publish, by uploading works to its Kindle site, to then be purchased by Kindle owners.(*)

(*-The economics of Kindle publishing are interesting, and worth further exploration: apparently Amazon claims 70% of revenue from newspaper sales, and a right to further distribution. Nonetheless newspapers are lining up to be part of this "new revenue stream" despite getting the short end of the proverbial stick. Well, if there's one thing that the last 10 years have proven, it's that newspapers can adapt to a post-local-monopolistic world. Oh wait.)

But self-publishing(**) carries its own risks, including the possibility that a judgment-proof entity can upload content for distribution that it does not actually own. That's exactly what apparently happened when MobileReference, which is owned by an entity called SoundTells, uploaded its version of 1984 and Orwell's "Animal Farm"; unfortunately for Amazon, Houghton Mifflin Harcourt, not MobileReference, owns the American rights to both Orwellian works.

(**-Amazon also allows its Kindle owners to effectively "self-publish" but sending themselves via email a text that is then converted to a Kindle-friendly-format. Undoubtedly some of these conversion are of text for which the Kindle user in question does not have proper rights. Amazon's exposure there, however, is not certain.)

What happened next re-defined the oft misused concept of irony: Amazon removed the illicit copies of 1984 from its Kindle storefront, which made sense because Amazon was at risk for copyright infringement damages. But Amazon didn't stop there. It also took the unprecedented step of deleting copies of the books from individual Kindles. Poof! (***)

(***- Amazon did have the common sense to refund its customer's purchases. It should also be noted that even under the terms of its license agreement with its Kindle customers, Amazon did not have the right to delete material because it granted to its customers the right to a "permanent copy of the applicable digital content.")

There is no clear analogy in the 'old-fashioned' world to what Amazon did. If a book seller went to your house to reclaim a illicit copy of a physical book, you would have an action for (among other things) trespass. Even recalls in the case of faulty products depend on customer's voluntarily returning the goods in question to the manufacturer (or retailer) for a new product or refund.(****)

(****-"Voluntary" recalls refer to the voluntary action by the good manufacturer, not the end-user.)

Even given the apparent violation of the terms of its own (self-serving) license agreement(*****), Amazon will probably not face extensive litigation risk; it probably sold very few copies of the illicit texts through MobileReference, and Houghton Mifflin may not pursue the matter.

(*****-In fairness, most 'shrink-wrap' license agreements are self-serving; courts generally have allowed them to be enforced despite the fact that few, if any, users actually read them. Instead, a click-through "I Agree" page is usually binding.)

But the incident does create a business problem for Amazon: one of the the good features about the Kindle is that you keep a record of your reading on Amazon's computers (in case you delete -- either accidentally or otherwise (i.e., for memory space reasons)). But the ability of a corporation to delete your personal reading material -- for copyright or other reasons -- brings to mind its own version of "Big Brother."

It also reminds one of the infamous Justin Timberlake/Janet Jackson "wardrobe malfunction" incident in 2004 at the Super Bowl. At the time, TiVo's flacks rushed out with the statement that the incident was the "most watched" event in the history of the recording device; but in a case of shooting-oneself-in-the-foot, that very metric raised the question of how TiVo's management knew that fact. And what else did they know about the viewing habits of their customers?

A few days later, a more-chagrined TiVo had to reassure its customers that the individual information of viewing habits were not being monitored; but the spectre of such monitoring -- and what it means for privacy -- still lingers in the air five years later.

Amazon can't make such an 'aggregation' claim; its records indicate clearly who bought what reading material, and what material is actively on the particular Kindle device.

It's simply, Jeff Bezos (and Jonathan Zittrain) might say, a question of "trust."

Patriots fall to 9-2 (Against the Spread)

While there's no question that the New England Patriots are still far-and-away the best team in the NFL, there's also no doubt that the rest of the league has a glimmer of hope after last night's game with Philadephia. The Eagles played with abandon, and emptied out their bag of trickeration against the Pats -- flea-flickers, flanker options, even an on-side kick (that may or may not have travelled 10 yards, but which was not challenged by the Patriots in any event.) Moreover they took Randy Moss out of the game and put the heat on Tom Brady, including one of the most vicious sacks (on the Pats' first offensive possession) of the year.

But what the Eagles game also showed is that the pressure is on the Patriots. In successive series in the second half -- with game on the line -- the Patriots (specifically Faulk, Welker, and Maroney) dropped a series of indifferently-thrown balls by Tom Brady. The defense, meanwhile was unable to get any sort of push on Eagles' QB AJ Feeley, and the journeyman was able to exploit the middle of the field. When Asante Samuel ran down Feeley's ill-advised pass with 4:30 left, all of Patriot Nation -- and the Patriots themselves -- let out a giant sigh of relief.

The Patriots may yet go undefeated, but it looks like the weight of history -- if not that of the 1972 Dolphins -- will be with them the rest of the way.

"It's a free ride when you've already paid..."

Back to the world of irony on Sunday night: less than a month after being featured in a Michael Lewis piece in the NYTimes Magazine on the vagaries of making a career as an NFL kicker, Adam Vinatieri missed two field goals -- including a 29-yarder with less than two minutes remaining in regulation -- that might have given the Colts the win, despite an atrocious effort by Peyton Manning (6 INTs).

As Lewis points out, Vinatieri is not statistically more accurate than other kickers in clutch situations:

The actual number [Vinatieri has made] is 20 out of 25 with the game on the line and a minute or less on the clock (or in overtime). Adam Vinatieri, in other words, is about as likely to make a clutch kick as he is to make an ordinary kick. And he is not all that more likely to make the clutch kick than the ordinarily good N.F.L. kicker. There are virtual unknowns who have a better clutch record: former Bears kicker Paul Edinger went 9 for 9, for instance. There are kickers famous for choking who were roughly as accurate in clutch situations as Vinatieri. (See Mike Vanderjagt.) As Aaron Schatz at Football Outsiders, who calculated the figures for me, says: "The sample sizes are too small to make a lot out of them. It's not really an analysis of clutch ability as it is an analysis of clutch history. And what separates Vinatieri is that he has almost half again as many attempts as any other kicker. That, and his clutch kicks are so memorable."

But for any fan of the New England Patriots, Vinatieri will always be identified with the greatest years in Pats history -- the Snow Kick, the 48-yarder to end the Rams' dynastic dreams, and the FGs to win the Carolina and Eagles Super Bowls.

On Sunday night, Vinatieri had no answers, although he took the heat by attempting to answer the reporters' questions. Life for an NFL kicker is painful, as Lewis pointed out. Even for Adam Vinatieri.

David Halbertsam, RIP

There are tributes and memorials to David Halbertsam (who died in a traffic accident last night in Northern California) all over the web this morning.

In looking back at his career, what stands out are the number of phrases or concepts - Vietnam (in 1965, well before Tet) as a 'quagmire', the 'best and brighest', the 'powers that be' - that he either invented or popularized.

In recent years, his sports books have seemed to have a Boston-bias, from the Ted Williams' Teammates to the profile of Bill Belichick.

He will be missed.

NFL's No. 1?

Discussion about the NFL draft centers around which quarterback will go first - LSU's JaMarcus Russell or Notre Dame's Brady Quinn. Quinn appears to be the more-finished product, although Russell has more "upside potential." SI's Peter King writes in the magazine this week:

The top of this draft looks a lot like 1998's. That year Washington State's Ryan Leaf was the big, strong guy with a great deep arm; Tennessee's Peyton Manning was the heady passer who hadn't won the big game in college. Manning went No. 1 to the Indianapolis Colts, Leaf No. 2 to the San Diego Chargers. Nine years later Manning sits atop the football world, and Leaf is a college golf coach in West Texas. "The repercussions of this pick will last for years," said Browns general manager Phil Savage. "You're picking a flavor, basically. Brady's probably the safer pick. He's been so well-schooled in every aspect of quarterback play, and we've had three or four years to evaluate him because he's played so much college football. And people in this league respect [Notre Dame] coach Charlie Weis. They'll listen to him about Brady. Maybe there's more upside with JaMarcus because he's so physically gifted. It's a tough call."

But a better analogy might be the 1993 draft, where the Patriots used the first pick to pick the bigger, stronger, Drew Bledsoe, and the Seahawks chose Notre Dame's Rick Mirer at #2.

While Bledsoe went to one Super Bowl by himself, and helped the Patriots get to Supe XXXVI, it's fair to say that he will ultimately be seen as a disappointment. Mirer, in contrast, lasted just 3+ years as a starter, and was a bust.

What's a Challenge Worth?

In the aftermath of the Chargers' meltdown on Sunday against the Patriots, Marty Schottenheimer has come under criticism from all sides. One play that stood out was the decision to challenge the ruling-on-the-field of the interception by Marlon McCree and subsequent strip by Patriots WR Troy Brown; the play was a 4th-and-5 with the Pats down by 8 points with just 6:25 left in the game. If the interception had stood (or, for that matter, if McCree had batted the ball down, giving the Chargers possession), the game likely would have swung to the Chargers.

Schottenheimer was criticized for throwing a challenge flag on a play that did not seem (at first glance, or later) to be ripe to be overturned. Further, the Chargers could have used the lost timeout later in the game when, down a field goal with under a minute to go, they tried to mount one final drive.

It's easy to criticize Schottenheimer, the owner of a 5-13 record in the playoffs. (He's also the holder of the dubious distinction of being the NFL coach with the most career wins (200) without a Super Bowl appearance.) However, if the call had been overturned -- as unlikely as that seemed to be given the replays -- the Chargers would have likely won.

But Baltimore Ravens Coach Brian Billick should be subject to even harsher criticism. With approximately 6 minutes left in the third quarter against the Colts, he challenged a fumble out of bounds that still left the Colts with a 3rd-and-4 at midfield; whether the call was correct or not, the Ravens needed the timeout (and the coach's challenge) much more than the swing of 7 yards.

As it turned out, the wasted challenge came back to haunt the Ravens. With the Colts embarking on what turned out to be the game-clinching drive, they reached midfield and a 3rd-and-5. After calling their final timeout, Peyton Manning threw a ball to Dallas Clark that appeared to be well-covered by the Ravens' Corey Ivy. But Clark reached out with one hand, tipped the ball to himself, juggled it against his thigh pad, and ultimately came up holding the ball with an apparent catch. With no challenge in reserve, Billick had no choice but to accept the proverbial 'ruling-on-the-field.' The Colts continued down the field, and ultimately finished the game with a final field goal.

With all the statistical analysis that goes into sports writing and watching today, I am surprised that there is not more written on the 'proper' use of a coach's challenge. But when a team's season is on the line -- and can be saved by the use of a challenge -- it seems reasonable to expect the coach to use it. Unless of course he's wasted it already in the 3rd quarter.

Ebay Buys StubHub

Reports this morning indicate that Ebay will buy StubHub.com for $310M. At the very least, this sale should give StubHub a larger defense fund for trying to fend off the lawsuit brought against the company (StubHub) just before Thanksgiving by the New England Patriots attempting to stop the resale of Pats' tickets.