We just saw that amicus briefs are being filed over whether or not the Supreme Court should hear the case concerning whether or not an "innocent infringement" defense is a legitimate defense to an RIAA file sharing lawsuit. If you don't recall, a district court found that a teenager's claim of "innocent infringement" -- which knocks the potential statutory minimum down from $750 to $200 -- was a legitimate defense. An appeals court overturned the ruling, and said that the girl, Whitney Harper, should have known that downloading music was infringing because any CD has a copyright notice (even though she never saw the CDs of the music she downloaded).

I have no idea if the Supreme Court will take the case, but the JoelFightsBack website is pointing out that RIAA boss Cary Sherman, in a recent interview, appears to have undermined the industry's own claims in a recent interview with Vice magazine:

The time had come to shift over to a strategy that would be more effective. The lawsuits were obviously controversial in the media, but the reality was that most people had no idea that what they were doing was illegal at the time of those lawsuits. We did all sorts of surveys. We tried PR firms. We did everything to look at how to begin to change the culture of using illegal P2P. We realized that 1) none of the messages resonated, and 2) most people had no idea that what they were doing was illegal, let alone thought it was wrong. That completely flipped overnight when we started the lawsuits. It made an enormous impression and we were constantly generating dinner conversations about what you may or may not do with your computer. We think it would be very good if there were more such conversations about all the other things that can be done inappropriately with a computer. So we think it had a tremendous impact by very clearly searing in the minds of the public that maybe getting all of this stuff for free isn't legal after all.

That seems to undermine the claims that of course people knew it was illegal, doesn't it? Not surprisingly, the Sherman interview is chock full of other bizarre statements. Even just this one little quote is pretty funny with him trying to somehow redefine the lawsuits as a successful PR strategy. Of course, if they were actually successful in educating people, then wouldn't there be fewer people accessing unauthorized music today than when they started? Of course, the exact opposite is true. The rest of the article is filled with similarly laughable attempts by Sherman to pretend that the RIAA's strategy over the past decade has been successful, rather than a complete disaster that has helped the major record labels speed up their own demise.Permalink | Comments | Email This Story

Drew points us Shane Richmond's blog post about not being able to open legally obtained eBooks due to DRM. There's nothing new in this story -- which has been repeated thousands of times over the past decade or so, but it's just a reminder of the pointlessness of DRM and how the only thing it serves to do is to make the legitimate consumer worse off:

Can we pause for a moment to remind ourselves just how absurd this situation is? It's been a problem for so long that sometimes it's easy to take it for granted but we are being sold products that work in one set of circumstances but not others. And there's no good reason for the distinction. It's not as if this is a piece of software that needs to be re-written for each new platform -- it's just text.

The limitation is artificial and it's only there to prevent unauthorised copying but it's a wasted effort because anyone who intends to share these books can remove the DRM in no time. As always with DRM, it's the law-abiding customer who gets punished.

It really is amazing that anyone still thinks DRM makes sense.Permalink | Comments | Email This Story

You would think that UK Defense Secretary, Liam Fox, would have more important things to concern himself with than an upcoming video game release, but apparently he's calling for retailers not to sell the upcoming release in EA's Medal of Honor video game series. His complaint is that, in multiplayer mode, some players can play the role of Taliban soldiers. The game seeks to recreate the ongoing war in Afghanistan in a realistic manner. It's difficult to see how you could create a realistic game that doesn't include Taliban soldiers. It's not as if kids are going to play this game and suddenly think that it makes sense to join the Taliban...Permalink | Comments | Email This Story

Kevin Donovan points us to news of a proposed media law in South Africa that could seriously muzzle the press by letting the government easily declare certain information to be in the "national interest," and then setting potential jail sentences of 3 to 25 years to anyone who reveals that information. What's got people scared is how broadly defined "national interests" are: "all matters relating to the advancement of the public good" and "the survival and security of the state." Is reporting on corruption in the government potentially against "the survival and security of the state"? Possibly. And with the press revealing some scandals recently, the government hasn't been too happy:

But fears about the government's motives have flared since Aug. 4, when a Sunday Times reporter, Mzilikazi wa Afrika, was arrested on fraud charges. Days earlier, he and another reporter had written a front-page article reporting that the national police chief, Bheki Cele, had approved what the paper called a suspicious property deal with a politically connected businessman without competitive bidding.
The newspaper and Mr. wa Afrika said he was seized by officers who had no warrant for his arrest, even though he was on his way to turn himself in, and he was not provided access to his lawyer for hours. The police searched his home, he said, taking his reporting notebooks. During questioning the following morning, the police asked him if he had been trying to discredit senior A.N.C. officials, he said.

The article does admit that some of the reporting on the government has been sloppy at best, but that's hardly an excuse to potentially create a massive press censorship policy.Permalink | Comments | Email This Story

Last year, we wrote about a court ruling in Argentina that found Google and Yahoo liable for defamation claims, after a celebrity was upset that searches on her name had results that pointed to pornographic websites. There had actually been a similar decision in Argentina the year before as well. It seems silly to blame search engines if people don't like the search results on their name, but that's what happened. Thankfully, however, in an appeal to the first case we linked to above, involving Virginia Da Cunha, the court found that the sites could only be held liable if they were made aware of the "illegal content," and then failed to remove it. In other words, the court is effectively using a notice-and-takedown safeharbor setup. There are still problems with that, but it's a hell of a lot better than automatically fining Google and Yahoo even if those companies had no idea about the fact someone was upset with the search results. Still, it's not great. As another article notes, without an official safe harbor, the only effective way to win cases like this is to have the money to go to court. Even Google and Yahoo are still fighting a bunch of similar lawsuits and will have to keep going through the process, until there's a real safe harbor in place.Permalink | Comments | Email This Story

For years, we've pointed out how various state attorneys general seem to focus much more on grandstanding against certain companies, rather than actually helping in certain situations. What was really amazing was the incredibly clear pattern every time it happened. It would involve an attorney general who was running for higher office, going to the press and threatening some company, even if there was no legal basis whatsoever for the threat. It's as if every AG running for higher office has taken a page out of the playbook of Eliot Spitzer who used this strategy for years to get him headlines that took him right into the NY governor's mansion (which, of course, he then left due to a different sort of headline a few years later...).

Among the current crop of AGs playing this game, there's been Pennsylvania's Tom Corbett (running for governor) who subpoenaed Twitter to uncover some anonymous critics. There's South Carolina's Henry McMaster (who tried to run for governor) threatening Craigslist management with criminal charges. But the two biggest users of this playbook have to be NY's Andrew Cuomo (running for governor) -- who has targeted social networks and ISPs for not censoring content -- despite no legal obligation to do so, and Connecticut's Richard Blumenthal (running for Senate) who has grandstanded with the best of them in going after tons of tech companies with almost no legal basis at all.

So, of course, I wasn't surprised when I heard, back in February, that Kentucky's Attorney General, Jack Conway, had started threatening local news/community site Topix. After all, Conway is running for the US Senate. Still, once Conway started the ball rolling, Blumenthal actually stepped in and led the ongoing gameplan. At issue? The company let people pay a small fee to "expedite" the process of reviewing comments for abuse. There is absolutely nothing illegal about this. A website has no legal obligation to monitor its user-generated content, and it doesn't lose its safe harbor protections if it does monitor such content. So I was a bit surprised to see Topix settle the charges and change its policies.

Thankfully, Topix's CEO Chris Tolles has written up a detailed post at TechCrunch, that is a nice behind the scenes account of how the whole thing went down, and what an incredible scam it is. It starts out, of course, with an attorney general (in this case Conway) going straight to the press, rather than to the company:

Through this press release, which accused us of requiring payment to review abusive posts, I discovered that the Kentucky Attorney General had allegedly sent a letter asking me to provide information regarding our terms of service and policies around payment for expediting reviews. (The letter to which the press release referred was put in the US Mail and post marked five days after this incident.)

Tolles tried to be totally upfront and open with the various attorneys general who jumped onto the bandwagon (23 in all at the time), explaining to them exactly how Topix worked, how they reviewed comments, why they did things the way they did -- knowing full well that nothing Topix did broke the law. How did that work out? Once again, the AGs went to the press and used the info he had given them (again, which showed how what they were doing was legal) to grandstand against Topix:

So, after opening the kimono and giving these guys a whole lot of info on how we ran things, how big we were and that we dedicated 20% of our staff on these issues, what was the response. (You could probably see this one coming.)

That's right. Another press release. This time from 23 states' Attorney's General.

This pile-on took much of what we had told them, and turned it against us. We had mentioned that we required three separate people to flag something before we would take action (mainly to prevent individuals from easily spiking things that they didn't like). That was called out as a particular sin to be cleansed from our site. They also asked us to drop the priority review program in its entirety, drop the time it takes us to review posts from 7 days to 3 and "immediately revamp our AI technology to block more violative posts" amongst other things.

Eventually, he realized this just wasn't worth fighting over. The amount of revenue from the prioritized review was minimal, and just not worth the fight. So he gave in to the demands just to make them go away, giving the AGs (now up to 34 of them) another "settlement" headline -- even though they never once claimed Topix broke the law:

Pissed off people, not illegality, is the issue to watch -- At no time during this process were we accused of breaking any laws. The Attorneys General have interpreted their mandate of consumer protections very broadly, and if a lot of people *think* you are doing something wrong, you are likely to be headed for a problem.

As Tolles notes, this has become such a successful practice for East Coast state AGs to attack California companies, that successful startups need to beware, because it's going to happen a lot more often, and even when they've done nothing illegal, it's often going to make sense for them to just settle. American politics at work.Permalink | Comments | Email This Story

Ah, trademarks. Someone who prefers to remain anonymous sent over the news that Madonna has been sued by a clothing designer for Madonna's new line of "Material Girl" clothing. Madonna, of course, had a hit song called "Material Girl" and has been referred to as the "Material Girl" for years. However, another company, LA Triumph, actually got the trademark on Material Girl when it comes to clothing, and it's been using it since 1997.

If you head over to the USPTO, you'll find that there have been 15 applications for trademarks on "Material Girl" or "Material Girls" (well, and one with "Material Girlz"). Most of the trademark applications are dead, but five live on. They cover a variety of different things, and since most are held by holding companies, it's a bit tricky to figure out who actually has the rights to what. However, it does seem clear that different companies have applied for, and received, trademarks on "Material Girl(s)" for clothing, cosmetics, personal care products and even a television show. This is a reminder, of course, that when you apply for a trademark, it's only supposed to cover the specific area in which you're doing business -- which can cause problems in cases, like this one, where people expand into other fields of business.Permalink | Comments | Email This Story

A whole bunch of you have been sending over this story about how the city of Philadelphia, in its desperate need for cash, is starting to demand that hobby bloggers get a business license if they've made any revenue at all. Not if they've made profit, but revenue. So, any blog that has Google ads and brings in a couple pennies could be required to get a business license. To make matters worse, the city has been relying on the fact that some of these bloggers are honest and reported the tiny bit of revenue they made, in order to send them demand letters that they go register for a business license. Nice way to convince people (a) not to blog and (b) not to bother with Philly. It really is amazing how confused various governments are in an internet age where it's easy for lots of people to make little bits of money on the side. They simply can't figure out that such things are not a "business." We've seen the same thing in the past with various local governments demanding that folks selling on eBay need to get an auctioneer's license. And then some people wonder why citizens are fed up with their government representatives?Permalink | Comments | Email This Story

AdamR writes in to let us know that owners of Samsung Blu-ray players have been discovering that the latest firmware update means that movies from Warner Bros. and Universal don't play. Instead, they just lock up thanks to the DRM built into Blu-ray. Isn't that great? Pissing off legitimate customers is always a way to win people over. Of course, you have to wonder if Warner Bros. and Universal are upset with Samsung, but really they should only be upset with themselves for supporting a DRM technique that could block legitimate customers from watching their movies.Permalink | Comments | Email This Story

Fresh off its legal lightsaber battle with Wicked Lasers, LucasFilm's legal department has moved on to pulling a Jedi Mind trick... literally. David Canton points us to the news that LucasFilm has filed a lawsuit against a Nevada company called Jedi Mind. Not surprisingly, they're not particularly happy with the name, and are charging the company with trademark infringement, false designation of origin, trademark dilution, breach of contract and unfair competition (under California's law). Apparently, a Jedi Mind is no match for a good legal department... Of course, this case seems a lot stronger than the lightsaber one, and my guess is that Jedi Mind is going to have to backdown quickly, or it's going to lose pretty badly. Even auctioning off the lawsuit papers probably won't help...

THREsq has a lot more details on the lawsuit, noting that after receiving a cease & desist from LucasFilm's lawyers last year, Jedi Mind had agreed to phase out the use of the name. The lawsuit (and the breach of contract claim) comes from its failure to do so. The other interesting point: Lucas doesn't actually hold a trademark on "Jedi" or "Jedi Mind." It does hold trademarks on Jedi Knight, Jedi Power Battles and Jedi Training Academy but that's not quite the same thing... Still, the company claims that's enough to wield the force over Jedi Mind.


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AdamR points us to yet another sickening example of the serious sense of entitlement held by entertainment industry execs. Steven Levitan, a Hollywood producer of various TV shows is apparently pissed off that Hulu might be going public. He apparently complained on Twitter about how unfair it was that the makers of the shows wouldn't get a cut of any IPO proceeds:

"Some estimate Hulu IPO could bring in $2 billion. What do the content providers get? Zero. What is Hulu without content? An empty jukebox"

Yes, and where are those TV shows without Hulu? Most of them are shared online via unauthorized means where the content providers get nothing. When they're on Hulu, at least they do make money. Hulu is going public because of the service it provides, not because of the content. If it does well in the IPO, then it has more money to invest in the service which, in theory (if they don't muck it up -- and there are signs that they are very much mucking it up), should help the content providers make more money. To claim that they shouldn't go public without giving some of those proceeds to the content providers is totally missing the point, and shows a fundamental misunderstanding of how technology and capital markets work (from a Hollywood producer? what a shock...).

But, really, this is yet another example of the entitlement mentality. Yes, the content producers made the content. That's great. But they didn't build Hulu. They didn't invest in Hulu. They didn't pay the bandwidth costs or develop the interface. They didn't pay the salaries or negotiate the licensing agreements. Yet now they just want money handed to them... even though the company already does, in fact, pay content providers for the content that it licenses? Pure entitlement. Levitan is asking for money he doesn't deserve. Anyway, if he really wants to feel better, he should be happy to note that Wall Street doesn't think much of the IPO idea.Permalink | Comments | Email This Story

In our recent post about musician Joe Pug and other artists looking to get away from ridiculous service fees on tickets, commenter berick pointed out that Bob Dylan has come up with an interesting strategy to not just get around service fees, but scalpers as well: no pre-bought tickets to the show, just pay cash at the door:

When Bob Dylan says his just-announced, surprise show at the Warfield in San Francisco next Wednesday, August 25 costs $60, he means it costs $60 -- no service charges. No scalpers. No secondary market. In fact, perhaps as an effort to combat all complaints about the ticketing industry at large, there simply won't be any advance tickets to the show. Fans will pay $60 -- cash only -- on their way inside the venue, and that's that.

Of course, the downside to this is that if too many people show up (a decent possibility) you might not get in at all... Still, it's interesting to see how musicians are trying to get around activities that are seen as anti-consumer when it comes to pricing live shows.Permalink | Comments | Email This Story

Warner Bros. has certainly been aggressive over the years in lawyering up any time anyone does anything that appears to be Harry Potter related. For example, you might remember when the studio sued to stop a Bollywood movie called Hari Puttar: A Comedy of Terrors, which sounded like an Indian version of Home Alone more than an attempt to copy JK Rowling's creation. Warner Bros. failed to win that case, but now it's taking on one that might have a bit more life.

Apparently, the company is quite upset and pulling out the legal guns against a condom maker who is offering "Harry Popper" condoms in Switzerland. While you could have a strong "moron in a hurry" argument that there's no likelihood of confusion here, the condom company's decision to anthropomorphize the condom with round glasses and waving a magic wand in its "hand" probably doesn't help its cause:



I doubt anyone is confused into thinking this is somehow supported by either Warner Bros. or JK Rowling, it certainly does appear to be an attempt to build on the name recognition...Permalink | Comments | Email This Story

As someone who flies all too frequently, I'd be lying if I said I wasn't a bit spooked by a report that the Spanair flight 5022 crash from two years ago may have been caused -- at least in part -- by malware on a computer that failed to detect three technical problems. Apparently, the computer which monitored those things got some sort of trojan horse, and may have failed to set off the necessary alarms because of this. As for how the computer got infected... it sounds like investigators still are not sure, but someone sticking in an infected USB stick or some other remote network connection seem like the most likely culprit. Of course, the reports seem woefully lacking in details. It's unclear how a trojan would block some software from alerting the crew that there was a problem with the aircraft. Honestly, the report seems to raise a lot more questions than it answers, and if it's actually true, it makes me wonder why we're relying on software that can be disabled via some random malware to watch for life-and-death safety issues on airplanes...Permalink | Comments | Email This Story

A few months back, a research report came out noting that e-voting machines in India were not secure. I had seen it at the time, but considering how many stories we've seen of e-voting machines with security problems, I let it pass and didn't write it up. However, the story has just taken a distressing turn. One of the researchers, Hari Prasad, who had obtained the e-voting machine from an anonymous source in the first place, has been arrested and taken into custody because he will not reveal who gave him the machine:

The police did not state a specific charge at the time of the arrest, but it appears to be a politically motivated attempt to uncover our anonymous source. The arresting officers told Hari that they were under "pressure [from] the top," and that he would be left alone if he would reveal the source's identity.

Prasad was taken from his home and driven to Mumbai, a 14-hour journey, where he is to be interrogated. Alex Halderman, who has done lots of research on e-voting machines over the years, and worked with Prasad on the research on the Indian e-voting machine was able to speak to him while he was being driven to Mumbai. Prasad worries that his arrest will create serious chilling effects on other security researchers, and plans to stand up to authorities to hopefully prevent such chilling effects from occurring. You can listen to excerpts from the call in the following YouTube video:



The initial post, written by Halderman, also gives plenty of background on the machines. The Indian government has refused to let researcher review the machine, and insists that it's tamper-proof. Even after the initial report came out proving this not to be the case, the government has continued to insist the machines are fine and have no problems. Here in the US, it's quite troubling how much the government has relied on e-voting machines without allowing security researchers to really test them, but at least they don't arrest those who have been able to access and test the machines. This is a hugely troubling move by the Indian government, and hopefully getting more attention on such a questionable arrest will make the Indian government regret this decision -- and open up the machines for real security testing.Permalink | Comments | Email This Story

For many years, we've been troubled by the effort by some fashion designers to add a totally unnecessary copyright to fashion design. We had noted that the fashion industry was actually a great example of a creative industry that was thriving without copyrights. It's quite innovative and has a ton of competition, which is what we'd like to see -- so it never made sense that some politicians keep introducing a bill to extend copyright protection to fashion designers. This year, Sen. Chuck Schumer is back again with another attempt at extending copyright to fashion, and he's been able to sign up a large number of co-sponsors. In the past, similar proposals haven't gone far, but there's a feeling that there may be some momentum behind it this year.

Thankfully, some in the mainstream press are calling foul. Over at Newsweek, Ezra Klein has a fantastic column questioning the need for this bill and highlighting just how ridiculous it is. My favorite part is the following:

But perhaps the strongest argument is that America's apparel industry doesn't seem broken--so why try and fix it? "America is the world fashion leader," said Steven Kolb, director of the Council of Fashion Designers of America, the lead trade group in support of the Schumer bill, "and yet it is basically the only industrialized country that does not provide protection for fashion design."

Run that by me one more time? We're the world leader in fashion, so we should change our policy to mimic our lagging competitors?

Klein quotes Jamie Boyle, pointing out that:

"Intellectual property is legalized monopoly," says James Boyle, a professor at Duke Law School. "And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it's necessary."

Indeed. The supporters of this bill don't seem to realize that copyright is supposed to be about "promoting the progress," not about "protecting an industry." The comments from Steven Kolb show that fashion designers want this not to promote the progress, but because they feel blatantly entitled to extra protectionism. Yet, as Boyle points out, this can seriously harm the public. There should be a high burden of proof to show that any such expansion of copyright law is necessary, and the evidence (as even Kolb implicitly admits) is totally lacking.Permalink | Comments | Email This Story

Hans Pandeya is the guy who, as head of GGF, last year made a big splash by supposedly agreeing to buy The Pirate Bay as part of a plan that never made any sense to try to "legitimize" it. It wasn't long before many folks realized that the whole thing seemed questionable, and there were all sorts of allegations of insider trading and other questionable behavior in the sale. And, of course, as people waited for the one thing that mattered (the money) it became clear that the deal was falling through.

A few months back, however, Pandeya showed up again, this time in the US rather than Sweden, with a new company called Business Marketing Services, which was the result of Pandeya taking over the OTC stock symbol of an effectively defunct penny stock. However, he claimed he was still buying The Pirate Bay, supposedly from GGF -- except of course, GGF never actually owned The Pirate Bay, so the whole thing appeared to be a joke. Pandeya took exception to our coverage, demanded we correct the errors in the post, though he refused to explain what was in error. He also told us that he had "put the acquisition on hold," which is a funny thing to say when there's no evidence that there was any actual acquisition in the first place.

It looks like Pandeya's at it again, telling TorrentFreak that he's buying the BitTorrent community Demonoid. But, again, this appears to be wishful thinking. Demonoid hasn't agreed to any deal. Pandeya appears to be representing GGF again, and claims he now has money. It's not clear what happened to "Business Marketing Services," of course. Pandeya still talks big, saying he'd still like to acquire The Pirate Bay and IsoHunt, and claims that this time he's got money -- but he's said that before and these things haven't panned out.

So, a basic tip for Mr. Pandeya: talking about buying a website is not the same as actually buying that website. Also, saying you have cash is not the same as actually having the cash. So far, we've seen lots of claims from Mr. Pandeya, but no real follow through, so it's difficult to believe that this time around it will be any different.Permalink | Comments | Email This Story

Last week, the reports from the ACTA negotiations in Washington DC suggested that many of the negotiators favored releasing the latest text, knowing that even if it wasn't released, it would almost certainly get leaked anyway. However, the negotiations have ended and guess what? It appears that the text will not be officially released (expect the "unofficial" release shortly...). Once again, it looks as though it was the US negotiators -- who keep insisting they're all for transparency -- that have blocked the release, perhaps once again using transparency as a bargaining chip to try to get other things they want. They don't get what they want, the document doesn't get released.

The latest reports are that this meeting closed some of the substantial gaps, and negotiators are hopeful that they'll wrap up the details next month in Japan. The reports also claim that the next version of the text that will be released will be the final "take it or leave it" version of the agreement. That's downright ridiculous. With every released or leaked draft so far, many people have pointed out serious problems with it, and how it will contradict various local laws. It's simply preposterous to hide such an agreement (especially since there will be no Congressional review of it in the US -- since it's been called an "executive agreement" in order to get around Congressional oversight) when it could have serious implications for many people around the globe. For an administration that has promised us transparency from the beginning, the ACTA negotiations have been the exact opposite. What's really disappointing is that the negotiators don't seem to care. Perhaps that's because they know that by keeping their mouths shut and giving trade groups everything they want, there are lucrative jobs waiting for them whenever they want.Permalink | Comments | Email This Story

A few weeks back, we covered the "debate" that composer Jason Robert Brown had with a young fan of his, concerning the reasonableness of sharing digital copies of his sheet music online. For some reason, Brown keeps appearing in the press over this issue, which is a bit unfortunate, as there are plenty of folks who understand the issues at a deeper, more nuanced level than he does, and could do a better job presenting his case. However, the latest appearance of the story was at NPR. There's really not much new there, as it rehashes the basics that you're probably already familiar with.

However, what I did find interesting, was that the NPR piece mentioned an email that Alex Feerst, from Stanford Law School, sent Brown, suggesting that Brown was mistaken about some of his arguments. Brown got permission to publish the email a few weeks ago (though I just found out about it via the NPR story), and it's well worth reading. Much of it will sound familiar to regular Techdirt readers, as it covers much of the same ground, such as pointing out that copyright is designed to promote the progress, not to protect an artist's moral rights. It also does a nice job pointing out how copyright is regularly abused by industries trying to hold onto an obsolete business model, and that we shouldn't confuse promoting the progress with propping up obsolete business models or middlemen. As I said, the whole thing is well worth reading.

One part, early in the email, stood out to me, because it helped crystallize why so many of these discussions about copyright break down, which is that defenders of today's copyright system often conflate two very separate issues, which makes it difficult to move the debate forward: that is, they inherently link together the "this is how I get paid" part with the idea that "this is my right." As Feerst eloquently explains:

In your email, you shift from this idea, the zero-sumness of a physical object, to the broader point that you deserve to be paid for your work (right around where you say "The way I support myself and my family. . ."). But these are two separate points, one correct and one not, that you have run together -- (1) songs are like objects, when they are taken by one person, another person is deprived of their use. This is not accurate -- you may have been deprived of money, but not use. You can keep playing your song. (2) You deserve to get paid for your work. I agree with this completely. But your story conflates using the song and paying you for your work. They are not the same thing. It's not hard to imagine a world in which these are separate -- e.g., you get a generous monthly stipend that you are happy with from a patron on the condition that anyone can play your music, trade your sheet music, etc.

These two issues -- payment and ownership/control of copies should be conceptually separated. They are connected under our current system, but they are not naturally or necessarily connected. We can unfasten them and toggle them separately to see what happens. If we could imagine other ways for you to get paid for your work (maybe we can't, but assume for argument's sake we can) as an artist, then whether or not people "take" your song is beside the point. You only want to stop people from taking things because you need to get paid. If you got an acceptable income from your work, you would probably not care about who plays or doesn't play your song. This is because, unlike a screwdriver, it is not bound by physical world zero-sumness. In fact, you'd probably prefer such a system because you'd get paid and at the same time a greater number of people would hear your song. I think your teen correspondent mentioned a similar point.

This sort of thing comes up, quite frequently, in statements from people along the lines of "this is how I make my living," or "I have a right to be paid," both of which implicitly make this conflation error. Copyright grants you a right to exclude, not a right to get paid -- and there is no guarantee that "how you make your living" must always stay the same. At one point, most people made their living farming. Now they don't. The world changes, and people change how they make their living. So I think it really is important, when people make these arguments, to point out how conflating those two issues is a major flaw.

Further on this point, reading the comments on Brown's post, a lot of people take offense at one of the comments Feerst states, specifically:

So, although it may sound odd, it is not necessarily your right to get every possible penny from your work. Rather, our system is designed that you get enough to create, which promotes progress. But money that does not go toward promoting progress is not an entitlement.

I think that many people are misunderstanding what Feerst is actually stating here. It is not that artists should only get "just enough" money and then everything else must be free. Instead, he is arguing (quite correctly, from a Constitutional standpoint) that copyright is only supposed to help you get to that point. That is the very basis of copyright. But, creators are free to make use of other business models to make more money beyond that. The problem here comes in where too many seem to think that the only way to make money is to rely on copyright.

As such, it often feels like copyright has become a crutch. Because content creators use it to earn some part of their living, they start relying on it for all of their earnings, and fail to flex their "creative business models" muscle and let those atrophy, as they increasingly rely on the gov't granted monopoly privilege of copyright to act as a de facto business model.

Unfortunately, Brown's responses to Feerst's carefully argued points suggest he does not actually understand these points. He goes back to "but this is how I feed my family" multiple times, even in defending copyright lasting well past death. What he ignores, is that if he were working a 9-to-5 job as a banker or a construction worker, if he died, his family does not get to keep collecting his salary. Now, it is entirely possible to make an argument that content creators deserve special treatment that keeps their estates making their money after they die (a belief I do not agree with). However, Brown doesn't even try to make that argument. He just says:

"I've got bills to pay and I don't pay them by working at a hedge fund. If I were to die tomorrow, the lifestyle that I have built up for my family would be severely endangered, but at least the continuing royalties from the performances of my shows might pay for my childrens' college educations."

Yes, but if you did work at a hedge fund, well, then your family wouldn't continue to get your salary. That's the point that Feerst is making, and Brown totally ignores it with an incredible sense of entitlement that for some reason, because this is how he feeds his family, it has to continue.

Brown also brushes off Feerst's point about how Brown's own musical talent and creations are built off of "raw materials" that he "received" from others for which he does not pay royalties. Brown explains this away by pretending that those "raw materials" are "abandoned in the street," so it was okay for him to take them without paying. Yet, later on, he complains about the idea that anyone could ever use his raw materials for their own works without paying. It's quite a double standard.

Either way, Feerst's contribution here is definitely a good one, in highlighting that conflation of "getting paid," vs. "use" -- and pointing out that the two may be connected, but often are not, and certainly do not need to be connected.Permalink | Comments | Email This Story

Paul Graham has written one of his typically worth-reading essays about why Yahoo! went from the darling of the internet world in the mid- to late-90's to whatever it is today (an also-ran's also-ran). I don't have much to say on the main point of the essay, so if you're interested in that, go read it. However, what did catch my eye, was one little aside about trying to get Yahoo to buy Google soon after Google came on the scene:

I remember telling David Filo in late 1998 or early 1999 that Yahoo should buy Google, because I and most of the other programmers in the company were using it instead of Yahoo for search. He told me that it wasn't worth worrying about. Search was only 6% of our traffic, and we were growing at 10% a month. It wasn't worth doing better.

I didn't say "But search traffic is worth more than other traffic!" I said "Oh, ok." Because I didn't realize either how much search traffic was worth. I'm not sure even Larry and Sergey did then. If they had, Google presumably wouldn't have expended any effort on enterprise search.

Whenever we talk about innovation and things like patents, one common refrain is that no innovation would occur without patents because big companies would immediately copy the technology and destroy any up-and-comer. We've pointed out plenty of times that this simply isn't true. For a truly disruptive innovation, big companies often won't even notice you until you're way ahead of them -- at which point copying is fruitless. Hell, for nearly the past decade now, Yahoo's tried every which way to "copy" Google, and it got them nowhere in terms of actual market share (actually, it got them so little that they recently gave up and outsourced it all to Microsoft).

The problem is encapsulated in the little exchange between Graham and Filo above (and, I've actually heard nearly an identical anecdote from some folks at AOL who looked at buying Google in '98/'99 as well). If a company is big enough to be the "feared" competitor that people always worry about, it's because they're making a lot of money from something. When a disruptive innovation comes along, they usually don't care because they're blinded by the cash cow that they already have. In fact, the really disruptive innovations are scary to these big companies, because it they usually look like they'll undermine the cash cow. Elsewhere in the post, Graham notes that before Yahoo! bought his company in '98, he showed Jerry Yang a new offering he was working on that would optimize revenue on shopping search -- but he notes that Yang didn't care:

Jerry didn't seem to care. I was confused. I was showing him technology that extracted the maximum value from search traffic, and he didn't care? I couldn't tell whether I was explaining it badly, or he was just very poker faced.

I didn't realize the answer till later, after I went to work at Yahoo. It was neither of my guesses. The reason Yahoo didn't care about a technique that extracted the full value of traffic was that advertisers were already overpaying for it. If they merely extracted the actual value, they'd have made less.

Real innovations threatens cash cows, and one of the most difficult things for any company to do is undermine their own cash cows. So stop worrying about some big, successful company copying your idea. If it's really innovative, they probably won't even notice it... until it's too late.Permalink | Comments | Email This Story

Well respected author and professor Lewis Hyde, who has done tremendous work in the past on the concept of "gift economies," apparently has a new book out that sounds quite interesting -- though may cover some well-tread ground for folks around here. It's all about how the bastardization of intellectual property law has locked up and diminished our common cultural heritage, and why that's a problem. The book is called Common as Air.

The review, linked above, explains that the book goes through the history of how cultures used to be about sharing, and how the originators of our intellectual property laws were quite concerned about it being used to lock up culture:

The United States' Founding Fathers supported far less restrictive commons than have come to pass. Hyde writes about "John Adams attacking the Stamp Act as a tax on knowledge, Benjamin Franklin encouraging skilled artisans to smuggle technical expertise out of England, James Madison explaining why unlimited copyright undermines civic and religious liberty, and Thomas Jefferson trying to get a prohibition on patent monopolies written into the Bill of Rights." Copyrights and patents originated as brief tradeoffs, minimal, transient monopolies granted to stimulate and reward invention.

Hyde charts corporate interests' erosion of these views, restricting sharing of even long-iconic creativity, the prolonging of copyright terms and the widening boundaries of exclusive ownership. These days, the Sonny Bono Copyright Term Extension Act of 1998, lobbied for by major media companies, assures personal copyrights for life plus 70 years and corporate rights typically enduring from 95 to 120 years.

Frankly, it sounds like an excellent companion book to James Boyle's The Public Domain. The one complaint in the review is that Hyde does a great job explaining the problem, but does little to suggest a way to fix things. The reviewer points out that this leaves the reader "saddened -- and frustrated -- by his demonstration of what's been taken." Of course, considering how frequently I hear similar feelings from folks reading this blog, I would imagine many of you might find the book quite interesting.

By the way, if you'd like to see a lecture of Hyde talking about some of the concepts in this book, the following hour-long video discusses some of the concepts that are also covered in the book:


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We recently wrote about the LA Times being barred by a judge from publishing a photo of murder suspect Alberd Tersargyan that was taken -- with permission -- in the courtroom. As pretty much every legal expert who commented on the case noted, there was almost no way the judge's ban would hold up under a First Amendment review, as it was clear prior restraint. And, indeed, it didn't take long for an appeals court to overturn the ruling and note that it was, indeed, prior restraint. The First Amendment wins again...Permalink | Comments | Email This Story

Last fall we wrote about how a company named Ultramercial had sued Hulu, YouTube and WildTangent over patent 7,346,545 for requiring people to watch an ad before being able to access content. It resulted in an interesting discussion in our comments, where some patent system defenders insisted that the patent was perfectly legit. Unfortunately, the court disagrees with those folks. It has ruled that the patent is not valid (the ruling covers Hulu and WildTangent -- YouTube was dismissed from the case). Perhaps most interesting is the fact that the court chose to use the "machine or transformation test" for judging the patent. While some have read the Bilski ruling to "reject" the "machine or transformation" test, that's not quite true. It just said that's not the only test. The court in this case went through an explanation for why it felt this was still an appropriate test:

It is important to note, however, that even after the Supreme Court's decision in Bilski, the
machine or transformation test appears to have a major screening function--albeit not perfect-- that
separates unpatentable ideas from patentable ones. Indeed, four of the Justices, listed on Justice
Stevens's concurring opinion, would have taken the machine or transformation test to its logical limit to
hold that business methods are categorically unpatentable. Id. at 3257 (Stevens, J., concurring). Joining
a concurring opinion, Justice Scalia, who signed on to parts of the plurality opinion as well, would not
hold all business methods unpatentable, but would agree with Justice Breyer that "not [] many
patentable processes lie beyond [the] reach [of the machine or transformation test]." Id. at 3258 (Breyer,
J., concurring). In sum, at least five (and maybe all) Justices seem to agree that the machine or
transformation test should retain much of its utility after the Supreme Court's decision in Bilski.
Therefore, even though the machine or transformation is no longer the litmus test for patentability, the
Court will use it here as a key indicator of patentability.

And, using that test, the court finds this particular invention not patentable subject matter. It also points out that the patent is really just covering an abstract idea (the reasoning used by the Supreme Court to reject the Bilski patent):

At the core of the '545 patent is the basic idea that one can use
advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting
through a sponsored message instead of paying money to download the media. This core principle,
similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used
the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart,
therefore, the patent does no more than disclose an abstract idea.

I'm guessing this will likely be appealed, so it should be an interesting case to follow. You can read the full (quite clear) decision below:


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Ah, Comcast. Apparently the company sent an email to a user telling him that they had boosted the speeds on his broadband connection (which Comcast is trying to rebrand "Xfinity"), only to email him again a couple days later to admit they didn't really mean that. I guess it's nice that they were willing to 'fess up about making the mistake, but it still seems a bit mean to pull the rug out from under customers that way:





Of course, if the initial email was titled "Great News!" shouldn't they have titled the second one "Bad News!"Permalink | Comments | Email This Story

It should be no surprise that various malicious typo squatters have targeted The Pirate Bay with fake sites that try to install malware, however Torrentfreak looked a bit deeper and found that one of the typo squatters, a company called BladeBook, appears to be trying to trademark the actual name, as well. Apparently, BladeBook's Craig Pratka first filed for the trademark the same day that it was announced that The Pirate Bay had been sold to GGF, a deal that eventually fell apart (as did the initial trademark application).

However, the guy appears to have refiled a trademark application on "Pirate Bay" and "Pirates Bay" earlier this year, describing the business as:

Provision of telecommunications access and links to computer databases, computer networks and the Internet, namely, providing users online access via a website to third party websites featuring downloadable audio-visual media content in the nature of full-length, partial-length, and clips from motion pictures, television programming, sports events, videos, music videos, music, and interactive games. FIRST USE: 20020611. FIRST USE IN COMMERCE: 20070111

This isn't the first time this has happened of course. Last year we wrote about someone else trying to trademark the logo. And while some who don't understand trademark law think that this is "fair game," considering the amount of unauthorized file sharing facilitated by The Pirate Bay, that misses the point. The folks behind The Pirate Bay have never had any problem with people using their logo or name or anything. What they do have a problem with is someone trying to lock it up so that others can't use it. That seems entirely consistent. Also, since trademarks are an entirely different type of law from copyrights, the comparison doesn't fully work either, since trademarks are supposed to be about preventing consumer confusion.Permalink | Comments | Email This Story

We've never quite understood the general fears about Google Street View's photographs, since they're photographs of public places. However, many still seem somewhat freaked out by it all, and especially in Europe, they've continually put new rules and restrictions on Google's Street View operation. Apparently, in Germany, people can specifically request that Google remove images of certain buildings. Of course, this is silly, and to prove that point, a German photographer is going to go photograph all of those buildings that have been excluded, then upload them to Google's Picasa image hosting service, link them up to their GPS coordinates, and then "re-connect" them with Google Maps.

He's basically doing a good job of pointing out how incredibly silly it is to say that you can't photograph something that's in public view. Anyone can photograph it, and with today's technology, those photographs will likely end up online. Pretending that opting out of Google's Street View protects any sort of privacy is folly, so congrats to Jens Best, for coming up with a simple and effective way of showing that.Permalink | Comments | Email This Story

Apparently, a federal district court is allowing a guy to sue NCSoft for making the super popular online game Lineage II too addictive. Seriously:

Craig Smallwood, the plaintiff, claims NCsoft of South Korea should pay unspecified monetary damages because of the addictive nature of the game. Smallwood claims to have played Lineage II for 20,000 hours between 2004 and 2009. Among other things, he alleges he would not have begun playing if he was aware "that he would become addicted to the game."

Smallwood, who did not immediately respond for comment, alleged that the company "acted negligently in failing to warn or instruct or adequately warn or instruct plaintiff and other players of Lineage II of its dangerous and defective characteristics, and of the safe and proper method of using the game."

This sounds like the sort of case that should be easily dismissed, but not so fast according to the judge. You can read the judge's full ruling here:



Reading through the details, the story just gets more and more bizarre. Not only does Smallwood claim that NCSoft failed to alert him to the addictive nature of the game... he also gets upset when he was later banned from the game. It's difficult to see how both of those issues can co-exist, though, he uses it to explain how the "addiction" and the sudden forced cold turkey cut-off meant that he was "unable to function independently, he has suffered
psychological trauma, he was hospitalized, and he requires
treatment and therapy three times a week."

Of course, we still haven't seen any evidence that video games create a real addiction issue. Yes, people can get very into games, but to the point of being "unable to function independently" seems a bit extreme. Anyway, the court does dismiss some of the claims, pointing out that he fails to make the case for "intentional misrepresentation," "negligent misrepresentation," "intentional infliction of emotional distress" and "unfair and deceptive trade practices." However, the court does find that Smallwood can at least move forward on claims of "defamation," "negligence and gross negligence," and "negligent infliction of emotional distress," though the judge still does sound a bit skeptical that those will really go anywhere.Permalink | Comments | Email This Story

Our friends over at the always excellent Notcot were recently playing around with a microscope and noticed what certainly appears to be a typo on the US visa and border crossing card. The back of the card has very tiny etchings of every US president and every state flag -- but the etching of 6th US president John Quincy Adams appears to have a typo, calling him John Quincy Adames with an "e" added into the last name. Take a look:





That seems like a pretty big mistake. However, some are suggesting that it was done on purpose. In the comments to the Notcot post, two specific theories are presented: the first is that JQA changed his last name to distinguish himself from his father. Doing some quick searches around various bios of Adams, however, shows absolutely no support for this one. Even the White House's own page on JQA spells it Adams and makes no mention of such a change.

The other explanation makes a lot more sense. It's that this is a form of fraud/counterfeiting detection. Similar to how dictionaries would sometimes insert a fake word or phone books would insert fake people/numbers to try to "catch" if anyone was copying their work, perhaps the US government added the extra "e" on the assumption that counterfeiters would actually spell JQA's name correctly -- thus giving them a way to spot a fake. Of course, that's a pretty weak form of anti-counterfeiting, but in combination with some other techniques, perhaps it's useful. Either way, it's an amusing bit of trivia...Permalink | Comments | Email This Story

Hopefully by now, you've come across the "Autotune the News" phenomenon, where various news clips are turned into sometimes brilliant music numbers thanks to the magic of autotune and some very creative individuals. However, it seems that they're now taking it to the next level. Their incredibly popular "Bed Intruder" song taking the statements of Antoine Dodson on a newscast about his sister getting raped, hasn't just gone "viral," but it's actually hit the Billboard Hot 100 and is selling really well on iTunes:



Apparently some of the proceeds from the song are going to the Dodson family, as well as the makers of Autotune the News -- which perhaps answers some of the questions I had about who gets the songwriting "credit" and copyrights in such situations. I wonder if anyone used in a clip (or a news organization) would ever sue for infringement.

In the meantime, however, it looks like the "Gregory Brothers," the team behind Autotune the News, have figured out plenty of ways to turn their success into something more. They're already working on a pilot for Comedy Central, among other projects...

From a cultural perspective, though, this whole story again shows how culture is changing in very interesting and powerful ways. When we talk about things like "remixing" and "mashups," we tend to hear from a chorus of folks who brush off such things as mere copying and not worthy of being considered art in itself. But there's a lot more to it than that. What makes culture culture is the shared experiences around that work. This song is not only musically interesting, but also calls attention to a horrible incident that happened as well. And, again, some will brush it off as being meaningless, but the power with which it has interested so many people is not something that should be ignored.Permalink | Comments | Email This Story

In the late '90s and early '00s, the US Patent Office saw a massive jump in patent grants -- including tons of really, really bad patents, that have been tied up in huge, expensive lawsuits for years, wasting tons of judicial time and (more importantly) wasting a ridiculous amount of resources that could have (and should have) been going to actual innovation. Some of the research into what was going on showed that the incentive structure at the patent office was totally screwed up. Basically, the incentive was "when in doubt, approve." Why? Because patent examiners were judged on how efficient they were -- meaning how many patents they were able to complete their analysis of in the short amount of time they had. So here's the problem: if you approve a patent, you're done. If you reject a patent, the inventor (well, the lawyers) get an unlimited number of times to change the examiners mind, resubmitting modified applications. In other words, they can bury patent examiners in paperwork, dragging down their efficiency numbers. This isn't to imply that any patent examiner purposely decides to approve junk patents, but that it's impossible to ignore the incentive problem here.

Combine that with some ridiculously bad court rulings, that made things (software, business methods) that people previously considered unpatentable "fair game," along with some insanely large rewards in patent infringement lawsuits, and you had a recipe for disaster. Multiple studies showed that the cost of legal fights over patents greatly outweighed the actual value of those patents. And it was becoming a dangerous snowball: the more bad patents approved, the more bad patent lawsuits, the more bad patents filed, etc. What was interesting was that around 2004, as the debate on this started getting so much attention, the USPTO realized it had a problem and started adjusting things so that incentives were a bit more aligned. And, lo and behold, a lot more patents started getting rejected, and the approval rate went down. Many patent system supporters chided those of us who complained about the incentive structure by saying "see? everything's fine now, since the patent office knows to reject bad patents."

Not so fast.

Last year, the new bosses at the patent office decided that the number one problem was "backlog." No doubt about it, there is a huge backlog and the time it takes to get a patent is very, very long. But rather than realize that the way to decrease the backlog is to reject all bad patents (thus making it less lucrative to file bad patent applications), it appears to have gone back to the old system: implicitly setting up the system so that "when in doubt, approve," is the norm -- just to get through the backlog.

The numbers don't lie, and the always excellent PatentlyO blog has the numbers and the graphs to show that we haven't just increased the rate of patent approvals, we've shot way up, beyond anything seen previously -- making it look like the "correction" from the past few years was just an anomaly. Not only that, but the rate of patent approvals on a monthly basis seems to be increasing, which doesn't bode well for the future either:





Of course, the unfortunate reality is that this won't actually solve the backlog problem at all. You would think, with all the engineering/operations brains at the Patent Office, that they would understand that this will only make the backlog worse. Approving junk patents only makes it more lucrative to file ever more ridiculous patent applications, which only increases the backlog. In rushing through more patents, it only encourages a bigger and bigger backlog. In treating the symptoms, rather than the actual disease, we're making the disease much, much worse.Permalink | Comments | Email This Story