If you visited Google on Saturday, you may have noticed that the logo looked like the following:



As happens regularly, Google had chosen to redesign its logo to mark a certain day. In this case, July 24, 1860 is the birthday of famous and influential Czech artist Alphonse Mucha and Google decided to memorialize Mucha with a logo designed in his style. Nothing special there, of course. But it got lots of people looking up Mucha, and one of our readers (who prefers to remain anonymous), quickly came across this recent interview with John Mucha, Alphonse's grandson, and the head of The Mucha Foundation, which "manages the legacy" of Alphonse Mucha, and helped set up the Mucha Museum in Prague a few years back. But what struck the reader was the following part of the interview:

I was reading that the copyright has expired on Mucha's works. What does that mean in practical terms? Does it mean that anybody can, I don't know, create a mouse pad with his images on it?

"It means that the rights are in the public domain, with two exceptions. Exception one are works that have not yet been photographed or seen. And there are quite a few of those. There, once we photograph them or we make the images available, those images have their own copyright.

"The other exception is, we have the biggest and possibly best quality archive of all the images. Because these images were created within the last five years with the latest technology, they all have their own copyright of 75 years.

That sounded wrong to our reader, who questioned how that could make sense, seeing as Mucha has been dead for over 71 years. Now, I'm certainly no expert on Czech copyright law, so anyone out there who is an expert, feel free to chime in. But I'm assuming that the situation is similar to one that we discussed a year ago. In the US, thanks to Bridgeman vs. Corel, it is mostly believed that a photograph of a copyrighted work does not receive a new copyright (technically, it only applies in the court where the ruling was made, but the ruling has been followed by other US courts as well). However, in Europe, I believe the question is more or less unsettled -- so many claim that a photograph of a work can itself get a new copyright.

This seems silly, if you think about it. Copyright is supposed to cover the creative work added. Photographs, in general, are given copyright protection on the basis of the idea that the composition involved some creative choices (framing, lighting, aiming, etc.). In fact, the copyright is technically supposed to just cover those creative choices. A direct photograph of an artwork involves no such creative questions. However, as it is "unsettled" law in Europe, then some like to claim that photographs of artwork create brand new copyrights. That seems to be what the younger Mucha is claiming here, though assuming this issue hasn't clearly been settled in the Czech Republic (and I can find no detailed info either way), then such a "new" copyright on a work so old could, conceivably, be challenged.Permalink | Comments | Email This Story

For years upon years, we've seen the press parrot the "findings" of various entertainment industry "studies" about copyright or file sharing, and usually, as you dig into the details, you discover that the report's methodology is laughable. You would think that, with the GAO highlighting how bogus most of these reports are, earlier this year, that the press would be a bit more cautious about simply repeating the findings. No such luck.

A bunch of you have been sending over various versions of the story about a new study, sponsored by the movie industry in Australia, suggesting that practically all BitTorrent traffic was for infringing files, with the number 99.7% of the traffic being thrown around by otherwise respectable publications. Thankfully, TorrentFreak actually bothered to look at the details and rips apart the problems with the study, noting that each of the four questions the study "answers" appear to be based on bogus data.

None of this is to suggest, of course, that the majority of BitTorrent usage is not likely to be infringing works. I don't think anyone doubts that it is most widely used for such things. The question, however, is whether or not it's really just 0.3% that's not infringing. It's possible, but the study used here doesn't seem to support the claim.Permalink | Comments | Email This Story

Earlier this year, we wrote about the ridiculous hoops that filmmakers need to go through these days just to get "E&O" or "errors and omissions" insurance. Basically, the lawyers want to make sure that anyone displaying the movie won't get sued, so they force you to get this kind of insurance. To get E&O insurance, you basically have to go through the movie, frame by frame, and show how every single possible bit of content that might possibly lead to a lawsuit has been "cleared" by the rights holder. This includes some ridiculous things like, if your movie shows someone walking down the street, that the businesses seen behind them have signed a legal "ok." It's pretty ridiculous, and many indie filmmakers just don't bother -- making it more difficult (if not impossible) to get their films into traditional distribution channels.

Of course, these days, there are more ways around this -- such as releasing the film yourself online using BitTorrent or some other system. TechnoMage points out that this is the path taken by notorious pranksters, The Yes Men for their latest movie: releasing it via BitTorrent, and asking for donations. Of course The Yes Men have some advantage in that they're already pretty well known, but the legal troubles they faced in getting the movie out were interesting. There's the unique situation in that they're currently being sued by the US Chamber of Commerce for their prank fake press conference, where they pretended to be US CoC officials changing the organization's policy on global warming. The movie includes footage from that event -- and lawyers flipped out about showing such footage while the lawsuit was ongoing.

Of course, stuff like that may be unique to The Yes Men -- but other situations, involving copyright, are not. Take for example this bit of info:

"For us to get our 'errors and omissions insurance' required for any distributor to take it, we had to clear the rights on all sorts of stuff we should not really have had to... including music written in the 17th century, which apparently because of some kind of law in Austria was not public domain according to the interpretation of insurance industry lawyers!

This is a problem many face. It'll be interesting to see if more indie filmmakers jump on alternative distribution platforms not just because they're more efficient, but also because it gets them around having to deal with overbearing E&O insurance issues.Permalink | Comments | Email This Story

Late last year, we wrote about a legal fight, where Random House was fighting some of its authors who claimed that their old publishing contracts did not cover ebooks. Those authors wanted to go off and publish ebooks via other partners (or even directly themselves). Random House tried to claim that even though the contracts didn't specifically cover ebooks, that it was more or less implied. The problem, of course, was that Random House had already lost a case about this very issue years back. So, this April, the company was forced to concede with the one author they were fighting -- though it claimed this was an "exception."

Except some other big name, old time authors know better. They've been realizing that they could be free to take their ebook versions elsewhere, and now they're doing exactly that. A bunch of really well known authors, working via their agents, have decided to route around their publishers and offer some of the most popular books of all time as ebooks directly on Amazon's Kindle, without going through a publishing house. Among the books released through this effort are works from Philip Roth, Martin Amis, Vladimir Nabokov, Hunter S Thompson, John Updike, William Burroughs and Saul Bellow along with many others. Basically, some of the biggest names in literature from the 20th century.

Of course, more recent authors won't have this luxury directly, since new publishing contracts for books cover ebooks as well, but it will be interesting to see how well these new ebooks do for authors -- and if it leads to more authors realizing they can just self-publish outside of the traditional publisher system. I'm still not sure that makes as much sense, say, as going "indie" from a music standpoint, as publishers still offer a tremendous amount of value that's hard to recreate, but at the very least, it could open the door to more specialized "indie" publishers, who are more author-friendly.Permalink | Comments | Email This Story

There's a very famous perception experiment, which many of you have probably seen. If you haven't, you should watch it here before reading on:



I will admit that the first time I saw it (at a conference), I totally missed the gorilla. Totally. Of course, once you've seen it or know about it, it's hard not to see it. And, by this point, so many people have seen it, that the overall video test has lost much of its power. So the folks behind it decided to see what would happen if they knew you were looking for the gorilla, and came up with the following:



Basically, they assumed that people were now looking for the gorilla, and got people to more or less focus on that, and miss the "new" changes. Once again, I have to admit I totally missed the changes. As the researchers are pointing out, this suggests that even if you're "expecting the unexpected," it's often difficult to notice it actually happening. As the researchers behind the videos note, many of the folks out there who use their original video to teach people to "expect the unexpected" are missing the point:

"A lot of people seem to take the message of our original gorilla study to be that people don't pay enough attention to what is happening around them, and that by paying more attention and 'expecting the unexpected,' we will be able to notice anything important," he added. "The new experiment shows that even when people know that they are doing a task in which an unexpected thing might happen, that doesn't suddenly help them notice other unexpected things."

The guys behind the videos have done some other unique experiments as well, which you can find on their website. The other one I really like is this experiment involving a guy asking a pedestrian for directions, where the guy asking for directions is secretly "switched" with someone else in the middle, and 50% of people don't even notice:


Permalink | Comments | Email This Story

Frankly, the concept of "Crown Copyright" has never made much sense at all. We've discussed it here a few times in the past, but it's the concept that some countries have for government documents being covered by copyright. Thankfully, this is one area where the US actually leads the way: it has no such thing. Documents produced by the federal government in the US are automatically considered public domain (state government documents aren't always public domain, but that's another discussion for another time). But in many other countries that's not true, and those documents are covered by "crown copyright." This makes little sense no matter how you think about it. If the purpose of copyright is to give incentives to create the content, it seems obvious that a government should not need copyright.

Instead, it seems to show how some now view copyright: as a tool to restrict information, rather than as an incentive to create information. For example, Glyn Moody points us to a rather depressing discussion of how information obtained via a Freedom of Information Act request in the UK might not be publishable because of copyright. Yes, you read that right. Even though the laws are there to free up government information, once that information is distributed to the requestor, it can be locked back up via copyright. So it's not really a "freedom of information" situation at all. It's just a "here's some information you can't share with anyone else."Permalink | Comments | Email This Story

We've already covered the bizarre story of Homeland Security effectively working for Disney in seizing some domains of sites that were used to file share movies (way, way, way outside of Homeland Security's mandate), and covered the sneaky attempt to defend those moves by conflating copyright infringement online with counterfeit drugs being sold online. It's also still not clear that Homeland Security even has the legal right to seize those domains as it did. Now, one of those sites targeted by Homeland Security, NinjaVideo is trying to fight back, and appears to be trying to crowdsource a legal defense fund to handle the fight. I honestly don't know anything about NinjaVideo or what the site did, so I have no idea if it has a strong or weak case. I also do wonder how many people will really step up and support the site -- though if many do it could make for an interesting case study on its own as well. Either way, it's worth watching to see how successful the site is in raising money for its fight -- and then in the legal fight itself.Permalink | Comments | Email This Story

It seems like every few days or so we're seeing lawsuits attempting to stretch the hot news doctrine further and further. News organizations who support hot news as a concept really have no idea what sort of can of worms they've opened up. Since the infamous (and ongoing) theflyonthewall case, we're seeing hot news pop up in all sorts of weird places. The latest, as sent over by Eric Goldman, is that Costco is being sued by "Banxcorp" for hot news violations (along with copyright violations and a bunch of other things) for republishing Banxcorp's data showing national average money market and CD rates.

But, of course, such data is factual information, right? And, indeed, the judge seems to realize this quickly and, for the most part does not buy the copyright claim. However, the judge leaves a little wiggle room, and refuses to dismiss the copyright claims in response to Costco's motion to dismiss. He does note that the data is not copyrightable, and the final values are not copyrightable, but suggests that maybe, sorta, possibly Banxcorp could convince the court that the methodology it uses in converting the raw data into final values could have enough creativity to be covered by copyright. But, he still sounds skeptical. So now everyone has to waste time filing motions for summary judgment, and we'll have to see how far this goes.

But, of course, Banxcorp doesn't just rely on copyright. Now that "hot news" is back with a vengeance, more and more organizations are realizing they can effectively claim copyright on some facts by hiding it under a hot news claim. Costco tried to get this dismissed by arguing (1) that the hot news claims are pre-empted by the copyright claims and (2) that there was no real hot news claim. Once again the court refuses to dismiss this, suggesting that Banxcorp has properly hit on all the prongs needed to file a hot news claim, though it notes that these can and probably will be "revisited" during motions for summary judgment. So the hot news claim lives on to another day. Watch out folks. Repeating a reported average financial rate may put you in hot water for hot news. How long until this comes back to bite a newspaper who is in favor of hot news?


Permalink | Comments | Email This Story

Ah, the unintended consequences of bad legislation. It's no surprise that many people have pinned a lot of the blame on the financial crisis on the ratings agencies (mainly Moody's and S&P). After all, they were the ones who went out there and said that collections of slices of dices of the worst mortgages around should be rated as top notch, sure-fire, investments. And there were clear conflicts of interest in how the ratings agencies did their ratings. But, in the end, the ratings agencies were really just giving an opinion -- and opinions are (last we checked) supposed to be protected by the First Amendment.

The real problem came from the government writing those agencies' ratings into the law. Basically, the government, in a really short-sighted attempt to avoid financial problems, required certain institutions had to maintain a percentage of "highly rated" or "investment quality" bonds, in order to engage in certain activities. Suddenly, these "opinions" weren't just opinions, but had important legal consequences. If a ratings agency downgraded an investment, it could legally force some holders of those bonds to have to sell them to maintain its investment ratios. With that, those ratings also took on the sheen of something objective and factual, rather than a random opinion put forth by a bunch of guys (mostly guys) who might not know what's really going on, and who have some serious conflicts of interest.

However, with the new financial reform bill in place, apparently one provision is that rating agencies can be liable for getting the rating wrong. Planet Money explains the unintended consequences this creates:

Under the new law, ratings agencies can be sued for making bad ratings decisions, if the ratings are included in formal documents that companies file with the SEC when they issue bonds.

That's making the agencies nervous. As a result, they're telling the issuers not to include their ratings in the formal documents filed with the SEC, according to the WSJ.

That's a particular problem for asset-backed securites -- bonds made up of bundles of consumer loans such as mortgages and auto loans. Federal law requires those bonds to include ratings in their formal documentation.

Because of that, the issuance of asset-backed securities has vanished. So, basically, the government requires these ratings be used on these types of financial instruments, but makes the ratings agencies liable if they make a bad guess in doing their ratings. You can understand the reasoning, but no ratings agency can be perfect. It's really making a guess, and eventually you're going to make a bad guess.

I really wonder if the part of the law making ratings agencies liable would stand up to a First Amendment challenge. But, in the meantime, asset-backed securities are on hold. Now, some may argue that this is a good thing, because "asset-backed securities" were part of the problem in the financial crisis. But that's definitely throwing out a very large baby with a little bit of bathwater. Yes, there were massive problems from asset-backed securities, but that doesn't mean the concept of asset-backed securities themselves are bad. In fact, they can be quite useful.Permalink | Comments | Email This Story

We've written a couple of times about RightHaven, the new operation set up by the publisher of the Las Vegas Journal Review to shakedown any site that reposts its stories. There were some oddities in the way RightHaven was acting, starting with the fact that it gives no warning to sites and doesn't send a DMCA takedown. It goes straight to suing... and then quickly demands a settlement fee. Of course, most of the sites its suing aren't competitors to the LVJR at all. In fact, they're usually organizations or people written about by the newspaper, who want to post the publicity -- with links back to the original -- on their own sites. In many cases, it would seem that they have pretty strong fair use claims, but fighting a copyright infringement lawsuit in federal court is expensive, which is exactly what RightHaven is counting on.

Wired is now running a profile of Righthaven, where the company's CEO (who was or is the general counsel for LVJR) is pretty upfront that this has nothing, whatsoever, to do with stopping infringement. It's entirely a way to squeeze money out of people. And he's rapidly expanding. Apparently, he's filing new lawsuits every day, and the publisher of the LVJR has given him the right to sue on behalf of other newspapers he publishes, while they look to sign up other publishers as well. This is, clearly, a blatant abuse of copyright law, and not at all what the law intended to do. Between this and the shenanigans of US Copyright Group, is it really too much to ask that the courts or Congress recognize that copyright law is being blatantly abused in a quasi-shakedown system?

Along those lines, JC was the first of a few of you to point to a blogger who was just sued by Righthaven. Because of this, the blogger has taken down their entire blog, because it now represents too big a liability. Again, this is not what copyright law is supposed to be for.Permalink | Comments | Email This Story

As various broadband providers drool over the idea of implementing broadband caps, they've mainly focused on the claim that they're doing so to make "bandwidth hogs" pay "their fair share." Sometimes they sprinkle this with claims of poverty over having to provide unlimited access to people who actually use it a lot. Of course, none of this is true. The various metered broadband plans almost always end up increasing everyone's bills, and there's little to no evidence that bandwidth hogs are a problem, either technologically or economically speaking.

For the most part, broadband caps are really about protecting video revenue. Many broadband providers these days also provide television, and that business is a total racket these days, with TV companies rolling in cash. Internet TV breaks up the artificial monopolies and the monopoly rents they can extract, so the last thing the broadband (and TV) providers want to do is make it easier for consumers to route around their television programming and access it directly on the internet.

As if to highlight that very point, Canadian telco giant Rogers decreased its already very, very low broadband caps just as Netflix announced that its streaming service was coming to Canada. The timing may be slightly coincidental, but it certainly highlights the point. Rogers doesn't want you streaming videos on Netflix if it means you might not watch Rogers' own TV programming.Permalink | Comments | Email This Story

Time for another webinar! This coming Wednesday, July 28th at 11am PT/2pm ET we're going to be running a webinar, sponsored by Verizon, about using "free" as a part of your business -- a topic that we obviously discuss quite a bit around here. I'm going to kick off the webinar with a brief talk about the economics of "free" and how to use it proactively for a variety of businesses (not just "entertainment" or "content"), and then we'll have two guests talking about some real world examples. First up will be Simon Morris, VP of marketing and product for BitTorrent Inc., who will talk about various business models that use "free" as a component, highlighting examples of what works and what doesn't. Then we'll have Phil Libin, CEO of Evernote, who will share a detailed case study of how Evernote does "Freemium," and what lessons they've learned in implementing a Freemium type of solution to make money. And, of course, we'll have some discussion and Q&A from attendees as well. Please note, we're using a different technology for this webinar than our past webinars. The link above may take you to a "preferences" page before the signup page. Unfortunately, I'm told there's no way we can avoid this, so click through to get to the actual signup, and we look forward to having you join us next week!Permalink | Comments | Email This Story

We've been covering the ridiculous lawsuit that Facebook has been pursuing against Power.com for a while now, specifically worrying about how, if Facebook prevailed, it could mean that violating an online terms of service in accessing your own data, could make you a criminal. That outcome seemed ridiculous, but the way Facebook read federal computer fraud statutes, it was possible. Thankfully, the court has shot down that argument.

But it's not all good news. In the same ruling, the court did say that Power.com (an aggregator of data from various social networks) still may have violated computer hacking laws by changing its IP address. That's because Facebook had blocked Power.com's old IP address to try to block the site from accessing user account data. As the EFF explains:

In other words, it may be a crime to circumvent technological barriers imposed by a website, even if those measures are taken only to enforce the terms of service through code. There's nothing inherently wrong or unlawful about avoiding IP address blocking, and there are valid reasons why someone might choose to do so, including to sidestep anticompetitive behavior by other Internet services. As long as an end user is authorized to access a computer and the way she chooses doesn't cause harm, she should be able to access the computer any way she likes without committing a crime.

Of course, given the way the DMCA handles circumvention for copyright (it's not legal even if for legal uses), perhaps there's some precedent for this kind of ridiculous, totally counter-intuitive outcome.Permalink | Comments | Email This Story

RedGhost was the first of a few of you to pass along Jalopnik's detailed story of Toyota's long patent battle with Paice and its founder Alex Severinsky, over patents on hybrid engine technology, which was just settled. We've actually covered the story before, last year when Paice -- who had already won a court battle -- aimed to get a second crack at the apple, by taking the case to the ITC, which potentially could bar the import of Toyota vehicles into the US if it found that Toyota infringed. Toyota settled the case the day the ITC was to begin its investigation, and it did so for one reason: the potential liability from a possible injunction isn't worth the uncertainty. So you pay to make it go away.

But, of course, the reality of the situation was that everyone admits that Toyota invented its technology entirely independently. This is not a case of Toyota "stealing" or even "copying" an idea from someone else. That's not even in dispute. What people should be asking is why it's okay for a company that actually successfully built something for the market place have to pay a company that did not? Even Paice admits that "the market for hybrid cars 'did not take off' until Toyota 'revamped its vehicle program' with technology Paice patented almost a decade earlier." In other words, even Paice and Severinsky know that the success of the Prius was not because of his technology, but because of what Toyota did with it. As the blog Treehugger noted last year:

So if a company has a technology that could be a huge boon for drivers and the environment and they sit on it for a decade, does a competing company that finally does something with it and makes it a success really need to be sued repeatedly for using it? Paice seems to be somewhat at fault for not being effective enough with a smart technology.

Therein lies the rub of the patent system. It does not encourage innovation. It punishes it.

Furthermore, I have to point out some huge problems with Jalopnik's coverage of the story. Even though it notes that everyone admits that Toyota came up with these inventions independently (which, by the way, suggests that they never should have been patentable in the first place), it repeatedly makes statements that make it sound like Toyota copied the invention:

The Prius incorporated -- and continues to incorporate -- a version of Severinsky's technology. It was used without license or permission...

In what kind of world do we live in that people think it's okay to think someone needs a "license" or "permission" to use a technology that they, themselves, came up with, and which isn't even found on the market anywhere else? It's mind-boggling. Toyota didn't "incorporate" Severinsky's technology. Severinsky doesn't own the technology, and the technology in the Prius is not Severinsky's at all. Toyota incorporated its own technology, which Severinsky claimed infringed on his patents. The differences here are important, because writing it the way Jalopnik did implies that Toyota actually "took" something from Severinsky. This is why so many people are confused and think patent infringement is about copying or even "stealing."

Finally, Severinsky's quote about the settlement is equally bogus:

"Finally," he said, "people understand the merits of what I invented and give it the proper value. Toyota is the leading technology company and finally appreciates the value of the invention."

Um. No. Not at all. They invented this on their own and actually successfully made use of it -- unlike Severinsky. They didn't recognize the merits of what Severenski did. They did their own work, and made it a success in the market place.

Of course, as we've also noted in the past, the lesson that Toyota seems to have learned from all this is to get as many hybrid technology patents as possible and to work hard to hinder the innovation of everyone else's hybrid technology.Permalink | Comments | Email This Story

Regular Techdirt commenter Max Davis (who I believe may be involved in this lawsuit) passed along the news that all the big US mobile operators have been sued -- including AT&T, Verizon Wireless, Sprint and T-Mobile -- under the claim that their MMS platforms are really illegal file sharing networks, and that these operators are no different than Limewire or Gnuttella. Yes, seriously -- the email Max sent repeatedly refers to MMS and Limewire as if they were the same. Here's the complaint:



Honestly, the whole lawsuit seems ridiculous. Here's the crux of it:

Defendants, and each of them, enabled the transfer/transmission and publication of this copyright protected content via mobile devices by building and implementing a peer to peer file sharing network with the dedicated purpose of enabling end users to share multimedia files via this MMS network. Defendants, and each of them, profited from these activities by charging the transmitter and receivers of this content a fee or flat rate for the transfer/transmission that resulted in the publication of said content. Despite charging the transmitter and receiver a fee for the delivery of this copyrighted content, Defendants, and each of them, failed to compensate the holder of the copyrights for this content that was necessary in generating the MMS data revenue. Furthermore, Defendants, and each of them failed or refused to provide a system where an adequate accounting of the transfer/transmission and publication of this copyrighted content could be made.

Basically, this company, Luvdarts, made MMS content, and it got distributed via MMS. Since recipients of MMS can forward the MMS data they receive, such content got forwarded around. Since the mobile operators receive revenue for MMS data, Luvdarts is effectively claiming that they are profiting off the infringement of Luvdarts content. This makes no sense. It's like saying that any email provider is infringing on the copyrights of email writers by letting recipients forward emails. You know those chain emails that get passed around? Imagine if one of the authors of those then sued all the big email providers. It would get laughed out of court. Hopefully, this lawsuit gets laughed out of court too.

The one oddity is that the lawsuit claims that the mobile operators do not qualify for DMCA safe harbor protections, because they're "not service providers" as defined in the DMCA. Specifically:

The transmission of this MMS data is not covered by the exemption for Internet Service Providers as set forth in 17 U.S.C. §512 because the wireless carriers are not Internet Service Providers as defined by §512 while providing a dedicated MMS network for multimedia file sharing.

Really? If you haven't read your §512 lately, why not go take a look and explain how a mobile operator offering MMS is not covered. It certainly seems covered by the definition:

Definitions.--
(1) Service provider--
(A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

Help me out. Where are mobile operators offering MMS features excluded? Looks like yet another frivolous lawsuit. But, of course, Luvdarts is demanding the statutory maximum of $150,000 per infringement, and claims "9,999 to 100,000 counts of
infringement" (broad enough range there?). Good luck, Max.Permalink | Comments | Email This Story

We mentioned, when the recent FCC report on broadband came out, that it seemed notable that the first politician out of the gate complaining about it, Rep. Cliff Stearns just happened to have had massive financial support from the biggest broadband players around when it came to raising money for his political campaigns. Given that, it seemed worth looking into the sponsors of a new bill designed to prevent the FCC from implementing net neutrality rules. Now I'm still not convinced the FCC really has the authority to do what it's trying to do, but I find it even more troubling when a group of Senators get together and call a new bill the "Freedom for Consumer Choice Act (FCC Act)," and it seems like they're all funded by AT&T. Somehow, I don't think that AT&T is supporting "freedom for consumer choice" when it comes to broadband. Over the years, they've done exactly the opposite, and worked hard to limit competition.

So, let's see. The bill's main sponsor is Senator Jim DeMint. Over the course of his career... AT&T is the second largest contributor to his campaigns. Ditto for Senator Tom Coburn. John Cornryn no doubt knows that AT&T is the 4th biggest contributor to his campaigns over the years, and Orrin Hatch must be happy that AT&T is the fifth largest contributor to his campaigns over the years (amusingly, AT&T is the only non-healthcare company in the top 8 on Hatch's list).

There are three other co-sponsors who don't have AT&T among their top contributors, but apparently they all want to start. If you drill down and look at campaign contributions this year all three -- John Ensign, Jeff Sessions and John Thune see AT&T appearing on their list of top contributors after being absent in previous years.

Funny how that works.

Now, of course, you could argue that AT&T contributes to politicians who have the same views as AT&T, rather than that these politicians are responding to AT&T's bidding. But, either way, it's hard to argue with a straight face that this particular bill has anything to do with protecting consumers, when it's pretty clearly designed to protect AT&T.

I've seen people suggest in the past that elected officials should have to wear "sponsorship patches," like Nascar racers, to show who funded their campaigns. While I think the idea was a joke, I have to admit, it's growing on me. Also, a special thanks to Karl Bode for inspiring me to write this post, in noting that none of the press coverage of the newly introduced bill seems to note the AT&T contributions to these Senators...Permalink | Comments | Email This Story

We've been following a lawsuit over Bratz dolls for a few years now. It involved a guy who worked at Mattel (not in a position designing dolls). While there, he had an idea for a new line of dolls, and eventually negotiated a deal to create those dolls for competitor MGA. The new dolls became The Bratz, one of the few super successful doll lines to challenge the success of Barbie dolls. Somewhere along the line, Mattel realized that the guy had worked at Mattel, and claimed that his employment agreement meant Mattel owned pretty much all rights to Bratz dolls, and that MGA owed Mattel a billion dollars. A court sided with Mattel and didn't just say that MGA and Bratz infringed, but effectively handed over all rights to Bratz dolls -- including future plans. This made absolutely no sense to us. At the very least, if the court found that Mattel owned the rights to the original design, at most Mattel should have only been able to get damages for those original designs. Giving them rights to later designs makes no sense at all. MGA appealed noting that giving Mattel all of its plans, as demanded, would result in "devastating and irreversible consequences." After sounding skeptical late last year, Judge Kozinski in the 9th circuit has now soundly rejected most of the lower court ruling (pdf).

The ruling itself is a really good read, especially if you're interested in the difference between ideas and expression, and making sure that copyright only covers the copyrightable part of an expression. A common misconception is that copyright covers an entire work. In some cases, that's not true. Only parts of a work may get copyright protection:



Among the notable parts, the judge is troubled by the lower courts ruling that Bryant's design work that was done after hours automatically is given to Mattel. As he notes, the employment agreement says inventions that are developed while employed belong to Mattel -- and the definition of inventions does not include "ideas." And, since IP system defenders are always quick to point out that inventions and ideas are not the same thing, the judge notes that it's not at all clear that the employment agreement covers the idea of the Bratz dolls. At the very least, the court says the lower court shouldn't have ruled on summary judgment that the idea of Bratz dolls automatically belonged to Mattel. The court also noted that the terms of the employment agreement were ambiguous, such that it wasn't at all clear or obvious if things done on personal time were covered by the agreement.

But more interesting is the discussion of how much of the IP would belong to Mattel even if it's determined that MGA infringed. Kozinski clearly has problems with the decision to assign all current and future plans to Mattel, pointing out that this seems to be based on a misreading of the case law. He notes that the law does allow appreciation in value to go to the rightful owner, but mainly if that appreciation in value is due to external factors. He finds it quite troubling that Mattel should be given all of the value created through MGA's hard work:

Even assuming that MGA
took some ideas wrongfully, it added tremendous value by
turning the ideas into products and, eventually, a popular and
highly profitable brand. The value added by MGA's hard
work and creativity dwarfs the value of the original ideas Bryant
brought with him, even recognizing the significance of
those ideas....

It is not equitable to transfer this billion dollar brand--
the value of which is overwhelmingly the result of MGA's
legitimate efforts--because it may have started with two misappropriated
names. The district court's imposition of a constructive
trust forcing MGA to hand over its sweat equity was
an abuse of discretion and must be vacated.

The next part highlights that just because there were similarities between the original ideas and the Bratz dolls, it doesn't mean Mattel should get all ownership. If it is determined that Mattel holds the copyright (again, still somewhat in dispute), it should only be limited to the parts of the dolls that are covered by the copyright. Here's where the narrow protections of copyright law come into play:

In order to determine the scope of protection for the
sculpt, we must first filter out any unprotectable elements.
Producing small plastic dolls that resemble young females is
a staple of the fashion doll market. To this basic concept, the
Bratz dolls add exaggerated features, such as an oversized
head and feet. But many fashion dolls have exaggerated
features--take the oversized heads of the Blythe dolls and My
Scene Barbies as examples. Moreover, women have often
been depicted with exaggerated proportions similar to those of
the Bratz dolls--from Betty Boop to characters in Japanese
anime and Steve Madden ads. The concept of depicting a
young, fashion-forward female with exaggerated features,
including an oversized head and feet, is therefore unoriginal
as well as an unprotectable idea....

It's true that there's a broad range of
expression for bodies with exaggerated features: One could
make a fashion doll with a large nose instead of a small one,
or a potbelly instead of a narrow waist. But there's not a big
market for fashion dolls that look like Patty and Selma Bouvier.
Little girls buy fashion dolls with idealized proportions
--which means slightly larger heads, eyes and lips; slightly
smaller noses and waists; and slightly longer limbs than those
that appear routinely in nature. But these features can be
exaggerated only so much: Make the head too large or the
waist too small and the doll becomes freakish, not idealized.

....

The
only unprotectable elements the district court identified were:
(1) the dolls' resemblance to humans; (2) the presence of hair,
head, two eyes and other human features; (3) human clothes,
shoes and accessories; (4) age, race, ethnicity and "urban" or
"rural" appearances; (5) standard features relative to others
(like a thin body); and (6) other standard treatments of the
subject matter. And it reasoned that the doll's
"[p]articularized, synergistic compilation and expression of
the human form and anatomy that expresses a unique style
and conveys a distinct look or attitude" is protectable, along
with the doll fashions that expressed an "aggressive, contemporary,
youthful style." But Mattel can't claim a monopoly
over fashion dolls with a bratty look or attitude, or dolls sporting
trendy clothing--these are all unprotectable ideas....

This error was significant. Although substantial similarity
was the appropriate standard, a finding of substantial
similarity between two works can't be based on similarities in
unprotectable elements. When works of art
share an idea, they'll often be "similar" in the layman's sense
of the term. For example, the stuffed, cuddly dinosaurs... were
similar in that they were all stuffed, cuddly dinosaurs--but
that's not the sort of similarity we look for in copyright law....

MGA's Bratz dolls can't be considered substantially
similar to Bryant's preliminary sketches simply because the
dolls and sketches depict young, stylish girls with big heads
and an attitude. Yet this appears to be how the district court
reasoned

When we wrote about this case earlier, it kicked off quite a discussion. Many people insisted that because Bryant designed the dolls while employed by Mattel, Mattel easily deserved all of the benefits accrued by MGA. It's great to see Kozinski point out that this is not true, and recognize that there's a big difference between ideas, expression and execution, as well as highlighting the difference between copyright covering an entire product and just the protectable parts of a product. While one would hope all judges would understand this, clearly, many do not.Permalink | Comments | Email This Story

As the Australian government pushes forward with plans to have ISPs spy on users as part of its effort to control and censor the internet, some have made a freedom of information request to see the details of the plan... and the government provided the documents with 90% of the content blacked out. Yes, the government is censoring its plans about censorship. Even better is the "reasoning" for this. Government officials defended the move by saying it:

"may lead to premature unnecessary debate and could potentially prejudice and impede government decision making".

Yes, how dare the people make their views known in a way that lets the government know they don't approve. That would be a representative government, and apparently Australia doesn't believe in such things.Permalink | Comments | Email This Story

Over the last few months, we've watched as the entertainment industry has started to turn its legal guns on digital locker sites, like Rapidshare, as being "the new front" for unauthorized distribution of works. They've even been able to get US politicians to condemn Rapidshare as being one of the "most notorious" sites out there. There's just one eensy weensy problem: courts around the globe keep finding what Rapidshare does to be perfectly legal.
RapidShare is just a digital locker, has no index or search engine, and is pretty active in trying to stop infringement on its site. In May, a US court rejected a request for an injunction against Rapidshare, which followed a German appeals court basically saying the same thing. Now there's been another ruling in Germany that, once again, says that Rapidshare is legal, and notes that it "takes all reasonable measures to prevent movies from being distributed."

To some extent, I find this amusing. The entertainment industry has kept suing anyone doing anything they don't like, rather than spending any real effort adapting. So each new generation of tools used for file sharing responds to the legal rulings, trying to make sure they don't run afoul of what got the previous generation. Sooner or later, that meant that these sites would pass all the legal checkboxes -- even if they can still be used for unauthorized infringement. So where does that leave the entertainment industry? They could have spent all this time perfecting new business models and adapting -- and done so in a way that embraced what people were doing. Instead, they've bullied their way around, pissed off tons of people, and helped define exactly how one can build a system that isn't guilty of contributory infringement, that will still be used for unauthorized file sharing.Permalink | Comments | Email This Story

Rob H was the first of a few of you to send in the story of how a music publishing company, Bourne Music Publishers, threatened 10 year-old actress Bethany Hale, for creating a short video of her acting as Charlie Chaplin accompanied by her singing the song Smile, which was the theme for Chaplin's 1936 film Modern Times. Hale had created the video and posted it to the charity site JustGiving as part of a campaign to raise money for a hospice. Modern times indeed. Of course, when Chaplin wrote the song, he was given a government-granted monopoly that he knew would put his work in the public domain by now. Until the government and lobbyists extended copyright again and again and again.

Either way, Bourne Music Publishers apparently doesn't care much for charity. It demanded $2,000, plus another $200 every time she performed the song. That certainly would take away from the hospice that she was trying to raise money for, so now her Chaplin appreciation film is a Chaplin-style silent film instead.Permalink | Comments | Email This Story

The UK was one of the first to embrace speed cameras, but it looks like things are starting to go in the other direction. Chris Clark points us to a (video) news report from the BBC highlighting how funding is drying up for speed cameras in the UK, and multiple cities have been ditching them (and, by the way, not noticing any increase in accidents or casualties). The video, of course, shows police and other speed camera supporters insisting that speed cameras save lives, and that taking them away will lead to harm... but they don't actually present any evidence. What is clearly presented, however, is that governments are increasingly less willing to fund speed cameras, and most of the money today is for upkeep, rather than installing any more.Permalink | Comments | Email This Story

theodp writes "The CEO of Xpitax has been awarded U.S. Patent No. 7,756,761 for Tax return outsourcing and systems for protecting data, which covers 'systems, methods, and various tools that facilitate the outsourcing of [U.S.] tax return preparation services to a servicing group outside of the country.' There is a need, explains the patent, 'to outsource tax return preparation services to India, to thereby reduce the per-return labor cost experienced by the accounting firm.' The patent proposes 'using PC anywhere or Citrix' to help scratch that itch.Permalink | Comments | Email This Story

It's been nearly five years since the famous DARPA "Grand Challenge" showed off some successful autonomous vehicles traveling 132 miles without a driver (this was a year after a similar attempt ended with no vehicles making it). The DARPA Urban Challenge followed, and not surprisingly, there's still plenty of research going on in the space. Slashdot points us to the news that two autonomous vehicles are now attempting to drive from Italy to China over the course of the next three months.

It's not quite the same as the Grand Challenge situation (which had no one in the car, and no lead vehicles or anything like that). In this case, each autonomous vehicle will be following a "lead van." Also, each of the autonomous vehicles will have a "driver" sitting in the driver's seat who is supposed to be able to quickly take over the vehicle should anything go wrong (which sounds like it might be a tougher job than you might imagine, as I would imagine boredom sets in pretty quickly). However, it will also involve real roads with real traffic. In other news, governments between Italy and China are recommending drivers stay off major roads for the next three months...

That said, the folks behind this project admit that "failure is part of the plan." They fully expect problems to arise, and part of the idea is to figure out where those failure points are, so they can work on correcting them. In fact, in a "test drive" before the caravan left, they already experienced problems when a car got between the lead van and the autonomous vehicle in a traffic circle.Permalink | Comments | Email This Story

Phillip Vector was the first of a few of you to point us to the current copyright "fight" that is going on between Tommy Wiseau and "The Nostalgia Critic," an online movie critic, whose real name is Doug Walker, who does video reviews of older movies. Unfortunately, the specific details on this are not entirely clear. I've asked "The Nostalgia Critic" to see the details, but haven't heard back, so the following is what I've pieced together from what's out there. First off, there's Tommy Wiseau, a guy whose claim to fame appears to be that he's made what's considered to be one of the worst movies ever made, The Room. It's been referred to as "The Citizen Kane of bad movies." It's one of those movies That is so bad that it's become a sort of cult classic for people to watch and laugh at.

So, apparently after a bunch of people asked, Walker did one of his video reviews of the movie. While it got taken down, others have put it back online. Here's the first part:





As you'll notice, in the review, he uses lots of clips from the movie itself, which he talks over and discusses (warning: it's long, and both the movie and the review get... cringeworthy often). Not surprisingly, he does mock the movie quite a lot. Apparently, Tommy Wiseau then issued a takedown. Here, the details are a bit fuzzy as the only "explanation" is that the Walker then made another video mocking Wiseau for claiming copyright infringement, but without providing details:



In that video (you have to get to about a minute and a half in before it gets to this point), Walker claims that his review was clearly fair use because it's a review, and also covered by the "satire/parody clause." He then goes on to mock the person who emailed him, who apparently was Wiseau himself using an alter ego.

Honestly, looking over the details that are available, I have two thoughts: the first is that this is not a clear cut case of fair use, as Walker suggests (even if it should be). The second, is that even if it's not fair use, Wiseau probably shouldn't have made the copyright claim... though, one could argue that it'll only act as greater publicity for his movie.

On that first one. Just saying it's a "review" doesn't automatically give you fair use rights. And there's no fair use for "satire," only parody -- and it's not clear that the review is actually a parody (or, for that matter, satire). Going through the four factors for fair use... you could make an argument either way as to whether or not it currently is fair use. It would really depend on the judge, and I'd actually guess that the sheer amount of the movie that is used would probably tilt the scales against fair use.

That said, I think this should be fair use, but it's not really clear that it is. Even so, this seems like the kind of thing that movie makers are better off embracing, rather than fighting. All the takedown has done is angered a whole bunch of people. Of course, you could argue that perhaps Wiseau is embracing the "this is such a bad movie, it's good" concept to such an extreme that he thinks the takedown will actually drive more business to the movie -- which might actually be a possibility. Whether by accident or by plan, this kind of takedown, might actually be a strategic use of The Streisand Effect to get his own movie more attention.Permalink | Comments | Email This Story

We already wrote about the recent Congressional committee hearings on intellectual property enforcement, where IP Czar Victoria Espinel blamed China. However, there were other speakers there as well, and perhaps the most interesting was from John Morton, the assistant secretary of Homeland Security's Immigration & Customs Enforcement (ICE) division -- the group that recently started working for Disney and seized a bunch of domains using questionable legal theories. We're still trying to figure out what the hell immigration and customs enforcement has to do with internet file sharing, and here was a chance to set the record straight.

In his opening remarks to the event, Rep. Howard Berman (who has been called the Representative from Disney, so it fits that he's happy that ICE now works for Disney) highlighted how this operation was "innovative thinking." (pdf):

Most recently, I was interested to read about the initiative
undertaken by Immigration and Customs Enforcement, or ICE, to seize the domain names of
Web sites that were unlawfully offering first-run movies. That is exactly the kind of innovative
thinking the Vice President called for -- and I am curious to hear from Assistant Secretary Morton
on how it came about, the obstacles that you faced, and how we can scale Operation "In Our
Sites" to enterprises that facilitate the theft of music, books and other products prone to
counterfeiting.

Note the sly trick (lie) from Berman here: suggesting that copyright infringement and counterfeiting are the same thing. You'll see this quite frequently these days (hello, ACTA), because it's easier to show actual problems from counterfeiting -- and nearly impossible to show problems from infringement. So by simply pretending they're the same, everyone can pretend that the "harm" from infringement is much worse. Note carefully that whenever anyone talks about the specific "harm," it always relates to counterfeiting. But when they talk about the "problem" they talk about infringement. It's amazing that no one calls them on this stuff.

Morton's talk was basically anchored with this kind of deception. You can read the whole thing here (pdf) or the embedded version below:



Let's dig into some specifics:

Simply put, American business is under assault from those who pirate copyrighted material and produce counterfeit trademarked goods.

And, we're off, with a simple conflation of two totally different things. Counterfeiting and copyright infringement are not the same at all.

Criminals are stealing American ideas and products and selling them over the Internet, in flea markets, in legitimate retail outlets and elsewhere. From counterfeit pharmaceuticals and electronics, to pirated movies, music, and software, these crooks are undermining the U.S. economy and jeopardizing public safety. American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk -- and organized criminal enterprises are profiting from their increasing involvement in IP theft.

Except, of course, you cannot "steal" ideas. And notice how the paragraph moves seamlessly back and forth between counterfeit goods and infringement. If infringement on the internet is the real problem, then why are they talking about "health and safety" which has nothing to do with people watching movies online. Furthermore, the whole "selling them over the Internet" may apply to counterfeit goods, but I thought the whole problem with content online is that people aren't "selling" it but giving it away for free? Why conflate the two unless your sole purpose is to confuse?

Finally, the GAO just dinged the government for buying into bogus industry claims about "lost jobs" and diluted innovation. So why is a government official repeating them?

Intellectual property rights are intended to discourage thieves from selling cheap imitations of products, which are often far less safe or reliable than the original products.

Please, let's be clear: Trademark law is designed to prevent consumer confusion over such imitations. Copyright law is entirely different and is designed to create incentives that "promote the progress of science." But, again, Morton is carefully conflating the two, because it hides the weakness of the idea that Homeland Security has any role in dealing with internet file sharing.

Intellectual property rights also protect the actor, director, writer, musician and artist from having a movie, manuscript, song or design illegally sold by someone who had no part in the artistry of creating it.

While true to some extent, again, "sold" over the internet? Wasn't the whole problem that all this stuff is available for free?

This increase in access to the Internet, while of great benefit for global communication and commerce, represents a very real threat to America's film and music industries. Their products are extremely susceptible to Internet piracy, especially as bandwidth increases. As a result of this growing concern, ICE counterfeiting and piracy investigations are increasingly directed to web-based criminals.

You know, cars represented a very real threat to America's horse and buggy industries. Would customs officials have blocked automobile manufacturing as well? The job of Homeland Security is not to pick which technology wins or to protect the business models of some legacy companies within an industry. And it's not actually a "threat." It's an opportunity for those who know how to embrace it. Remember, the movie industry continues to do quite well -- and it was the one who claimed that the DVD business would kill it. If this were a few decades back, would ICE be blocking all DVD imports because it represented a "a very real threat to America's film industry"? After all, that's exactly what the industry claimed, just as they are doing now. Why does Morton and ICE simply believe it this time when the industry has been wrong every single time about technology threats?

ICE has a legacy of engagement in IP theft enforcement -- stretching from our past years as U.S. Customs Service investigators to our present role as Homeland Security investigators. ICE is a leading agency in the investigation of criminal intellectual property violations involving the illegal production, smuggling, and distribution of counterfeit and pirated products, as well as money laundering violations.

Sure, the role is supposed to be about blocking counterfeit goods at the border. That's got nothing to do with file sharing online, so why dump it in there?

Representatives from the Motion Picture Association of America (MPAA) and RIAA assisted participating customs authorities with focused training, targeting and analysis...

Once again, we see biased industry players "training" government officials. Given the "training" we've seen both the MPAA and RIAA create for schools, why does it seem likely that they leave out certain important things (fair use, anyone?)?

ICE is an active member of the U.S. delegation negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The goal of ACTA is to work with other countries interested in promoting strong enforcement of IPR. ACTA aims to strengthen legal frameworks to bridge existing gaps between laws and dedicated enforcement....

Someone's off message. Remember, ACTA isn't supposed to be about changing legal frameworks or laws.

Last month, the IPR Center launched Operation In Our Sites, a new initiative aimed at Internet counterfeiting and piracy.

Please. Be honest: it was aimed at piracy. It had nothing whatsoever to do with counterfeiting.

On June 30, more than 75 ICE agents participated in this enforcement action, which resulted in the seizure of assets from 15 bank, PayPal, investment, and advertising accounts.

And, um, also raising all sorts of legal questions about Homeland Security's right to just seize domains. On top of that, as many are starting to point out, just because you seize the domain name, it doesn't mean you take down the actual site. And, all this will really do is drive file sharers further underground.

Interestingly, as the new owners of the domain name, ICE has been able to determine the number of visitors these sites have received since seizures. Within two days of ICE's enforcement action against these pirating web sites, over 1.7 million visitors saw the banner. This number is more than the daily total of "hits" the sites were receiving when they offered pirated movies and music. In other words, the government's warning banners have "gone viral," and Internet users are actually seeking the web site out to view the banners themselves. The resulting public education about pirating is a significant result of this enforcement operation.

You might want to ask those visitors what they learned. Because many learned that Homeland Security is focused on stopping file sharing, rather than important things like stopping terrorism. People who are visiting those sites aren't suddenly saying "hey, wow, now I know it's illegal and I'll stop."

The IPR Center recognizes that law enforcement cannot fight IP theft alone and we look to partner with private industry in our efforts. In a market economy, no one has a greater incentive for protecting intellectual property rights than private industry. Companies want to protect their investments in research, development, manufacturing, sales, marketing and product distribution.

No. They want to protect their profits. They want to protect the monopoly rents guaranteed by the government. It's really quite scary how Homeland Security admits that it's protecting the business models of certain industries over those of other industries. This is not the role Homeland Security is supposed to be playing.

I have no problem with Homeland Security stopping legitimately harmful or faked products at the border. That makes perfect sense. But no one has explained what any of that has to do with seizing domains from file sharing sites. Conflating trademark infringement and copyright infringement, and acting as if they're the same thing, while highlighting the harm of fake drugs and then lumping in downloaded music and movies is extremely disingenuous. It's too bad our tax dollars are being used to prop up companies who refuse to adapt, and the lengths to which government employees will go to, in an effort to rationalize such blatant extension of their mandate in order to help out key companies.Permalink | Comments | Email This Story

We've talked a lot about Amanda Palmer's various business model experiments on this site, as well as her efforts to connect with fans in new and unique ways. She's also written a guest post, participated in our own CwF+RtB program and done an interview with us where she announced her Radiohead Ukulele project. And, of course, she was recently (ecstatically) dropped from her record label, which is why she can do fun and bizarre things like playing Radiohead songs on a ukulele.

While we saw some people in our comments mock the Radiohead Ukulele project, and insist that it would be a clear failure, it seems that's not true at all. In fact, the early results suggest it's been an astounding success. In the first 3 minutes, the project brought in $15,000. Yes, 3 minutes. $15,000. And, of course, it continued from there. The offering included a "pay what you want" for the music, but also a variety of other tiers. Most of the packages sold out within hours.

In the link above, Amanda's tech guy (and regular Techdirt reader and commenter) Sean points out that they did the whole thing themselves, basically involving a team of four people and using some simple internet services like BandCamp (which, if you haven't been paying attention, keeps making strides in being a fantastic platform for musicians). I'm sure we'll start to hear folks explaining why this is an exception or a one-off or something like that. But, given how many times we've seen successful business model experiments like this, at what point are people going to realize that there are so many "exceptions" that it's now the rule?Permalink | Comments | Email This Story

Our recent post on recording industry accounting got plenty of attention, and it appears that more and more media sources are bursting the bubble of the myth of major record label deals. The latest is the BBC, which has a story about how a £1 million record deal isn't quite what most people think it is. Apparently, over in the UK, they throw around "£1 million record deal" like they throw around "$1 million record deal" in the US (despite the fact that the actual amounts are pretty different), and people think it sounds impressive. But, of course, as we've already noted, it's not really that impressive. Most of that money goes towards other stuff, and then the label keeps taking money that you earn to "recoup" the advance, even as it's taking most of your album sales revenue directly for itself anyway (and not counting that towards the recoup).

The article highlights a guy who won one of the big UK TV music competition shows... but has already been dropped from his label despite selling 500,000 singles and having a top 5 album in the charts. The final quote in the article basically highlights how a million dollar/pound recording deal really doesn't mean anything at all:

"What record companies are actually saying when they offer a £1m record deal is, 'we're going to pay the basic costs and, as long as you make it very quickly, then you can make a lot of money'.

"But you're going to have to make it very quickly.

"Now it seems to me that, if you don't make it in five minutes or on The X Factor, then you don't make it."

So there you go. A million pound/dollar recording deal covers your basic costs, and if you don't make it back in about five minutes, then you're basically a lost cause. Once again, those "big" record deals aren't looking so hot any more, are they?Permalink | Comments | Email This Story

For many, many years, we've pointed to the growing body of research on how the fashion industry thrives, in part, because of its lack of copyright. However, time and time again, we hear about attempts by big designers to add a special fashion copyright. This makes no sense. The purpose of copyright law is to create incentives to create new works. Yet, the fashion industry is thriving. It's highly competitive and very innovative, as designers keep looking to outdo one another. At the same time, the "knockoffs" help spread the concept of "what's fashionable" up and down the economic spectrum in record time. This is not an industry that needs "incentives" for creativity. The only reason to put in place such a law is to prevent competition, not to encourage more innovation.

Now, leading the charge for such copyright protection is famed designer Diane von Furstenberg, who beyond being a top designer, is also president of the Council of Fashion Designers of America (CFDA). CFDA has been the major promoter of such a copyright for clothing design, and runs a site called StopFashionPiracy.com. You would think that von Furstenberg would be quite careful to only to come up with her own design ideas. Not so fast. This story is actually about a year old, but Public Knowledge just brought it to our attention. It seems that von Furstenberg was caught blatantly copying another (less well known) designer's design.

Of course, as soon as the story broke in the press, von Furstenberg had her lawyer call up the other designer and offer to pay up. As the National Post, notes, the level of hypocrisy is striking:

Let's remember that when she and other designers accuse chains like Forever 21 and Anthropologie for alleged garment plagiarism and talk about the intellectual property issue in general, copycatters are vilified as "pirates." Yet when a garment from DvF's own brand is found to be uncannily similar to another designer's, it's positioned as an accident, an honest mistake.

We've seen this before, over and over again. The strongest defenders of monopoly rights so often are caught blatantly violating the laws themselves... and then twist themselves into knots to try to explain why their position is consistent -- insisting it was just a "mistake." Once again, all this really highlights is that the point of IP laws is to let incumbents keep down upstarts, rather than encouraging new creativity.Permalink | Comments | Email This Story

These kinds of lawsuits are coming fast and furious again these days. Glyn Moody points us to the news that 36 companies have been sued for patent infringement in Marshall, Texas (of course) for supposedly violating a patent (6,018,761) on spam filtering. The companies sued represent a who's who of corporate America, including Apple, Google, HP, RIM, Citigroup, Capital One, Alcatel Lucent, AIG, AOL, JP Morgan Chase, McAfee, Symantec, Yahoo, IBM and many others.

The patent itself is rather simple. So simple, I can repeat the entire claims section right here (not the abstract, the actual claims). Also, note how many typos there are. You would think, in such a short patent, someone would have caught typos like "usinig," "processine" and "usefiul.":

What is claimed is:

A method of obtaining context information about a sender of an electronic message using a mail processing comprising the steps of:

scanning the message, usinig the mail processine program to determine if the message contains a reference in a header portion of the message to at least one feature of the sender's context, wherein the sender's context is information about the sender or the message that is usefiul to the recipient in understanding more about the context in which the sender sent the message;
if the message contains such reference, using the mail processing program and such reference to obtain [sender] the context information from a location external to the message;
if the message does not contain such reference, using the mail processing program and information present in the message to indirectly obtain the [sender] context information using external reference sources to find a reference to the [sender] context information.

The method of claim 1, wherein the reference to at least one feature is a reference to a location where context information is stored.

The method of claim 1, wherein the reference to at least one feature is a hint usable to retrieve a location where context information is stored.


How could someone possibly approve this as a patent? This is about as basic a filter as you can imagine. Someone should sue the USPTO for fraud on America for approving this patent.

In the meantime, the press release announcing the lawsuit is funny as well. The lawyers claim "the company's patent is one of the building blocks for all email communications. InNova's complaint alleges that the defendant companies have used InNova's invention without permission for years." Please, don't make everyone laugh. It is not one of the "building blocks for all email communications." It's a basic filter that any first year programmer could have written in no time flat.

Oh, but it gets better:

"Email as we know it would essentially stop working if it weren't for InNova's invention," says Mr. Banys... "More than 80 percent of email is spam, which is why companies use InNova's invention rather than forcing employees to wade through billions of useless emails. Unfortunately, the defendants appear to be profiting from this invention without any consideration for InNova's legal patent rights."

First of all, actual spam filtering is a hell of a lot more sophisticated than the methods in this patent, and the idea that email would stop working without this patent existing is pretty laughable. This is such a basic concept that it boggles the mind that anyone thought it was patentable.

While the initial link above refers to InNova as a "Texas company," as per usual, it appears to be such in name only. There is no information as to who's actually behind the company, but it seems likely they're not based in Texas. The only reason the company is "based in Texas" is to file a lawsuit in Marshall. At the very least, InNova does have a very simple website where it pretends that it actually does something and has a "portfolio" of patents. Except, if you dig deeper, you see it's just this single patent. But my favorite part of the webpage is this opening paragraph:

Ours is a world of technology, where companies are measured, by their customers, their competitors and the media, by the quality, utility and innovation of their products. Because no single company has a lock on innovation, InNova Patent Licensing LLC offers medium- and large enterprises creative solutions to the problem of staying relevant in today's business climate.

InNova has no customers, competitors or products. All it has is a painfully ridiculous patent. And it's trying to lock down innovation. What a joke.Permalink | Comments | Email This Story

We recently noted that some members of the "no fly" list are suing the US government, questioning why they're "too scary to fly, but not scary enough to arrest," and complaining that there's simply no way for them to even find out why they're on the list or to get off the list. That's resulted in a Chicago Tribune editorial suggesting we dump the "no fly" list altogether. In fact, the editorial goes even further, saying we should go back to letting people fly without having to show a government-issued identity. The argument is that this is really security theater, and there are lots of other things in place that would likely stop a terrorist attack:

What no one seems to notice is that other improvements in security have made this one a needless burden.

The government required airlines to install reinforced cockpit doors to keep hijackers from taking the controls. It tightened security rules -- banning penknives, lighters, ski poles, snow globes, and liquids except in tiny bottles.

It initiated random pat-downs of travelers and gave extra scrutiny to those who did suspicious things. It deployed thousands of armed air marshals.

Equally important, travelers changed their mindset, meaning that terrorists can no longer count on passive victims. On several occasions -- starting with United Flight 93 on 9/11 -- passengers have acted to foil attacks.

With all these layers of protection in place, the rationale for the no-fly list has crumbled. Even if someone on the list can get on a plane, his chance of taking it over or bringing it down is very close to zero. And you know the other good thing? The same holds for an aspiring terrorist who doesn't make the list.

The government's tedious insistence on identifying all travelers and grounding some may convey an illusion of security. But we could live -- and I do mean live -- without it.

I have to admit I'm surprised to see an editorial like this in a mainstream publication like the Chicago Tribune. And while I agree that the no fly list is a joke, it should be admitted that many of those other "improvements in security" are equally as ridiculous, so citing them as the argument alone isn't very convincing.Permalink | Comments | Email This Story