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

We hear it all the time, whenever anyone talks about an industry being "destroyed" by new technologies: "how do we save x industry?" where "x" can stand for "recording" or "news" or "movies" or whatever. We saw it just recently when a professor wanted to "save" the newspaper industry by changing copyright law in ridiculous ways. It's also why we jokingly called our last event "Techdirt Saves* Journalism." The whole concept of "saving" an industry is so preposterous, which is why we wanted to mock it with the title of our event. I was reminded of this when reading this recap of the Association for Education in Journalism and Mass Communication (AEJMC) event, where Dan Gillmor was quoted saying:

"I'm not even slightly interested in saving the industry."

And it got me thinking about understanding the mindset of "saving" an industry more deeply. The truth is, whenever anyone seriously (not mockingly) refers to "saving" an industry, invariably, they're really talking about saving a few legacy companies in that industry from whatever disruptive innovation is shaking things up. It's never actually about "saving an industry," because the "industry" almost never actually needs to be saved. The industry may be in the process of being changed (often radically), but that's not the same thing as needing saving.

What's telling is that, through all of this, you almost never hear start-ups talking about asking for help trying to "save the industry" that they're in. That's because they know "the industry" is just fine, and in all of the upheaval there's really tremendous opportunity. So, anytime anyone talks seriously about "saving" any particular industry, challenge them on what they really mean, and see if they're actually just talking about saving a few companies, rather than saving an actual "industry."Permalink | Comments | Email This Story

Just about a year ago, we wrote about how actress Felicia Day had turned her web production, The Guild into a big success, by building a community of fans, connecting with them, and then coming up with some interesting ways to make money from that, including a unique sponsorship deal with Microsoft. Reader tuna points us to a Fast Company profile that updates us on how the last year has gone, and it sounds like things have only improved over time.

One of the keys to the success is that she chose the sponsorship deal with Microsoft, in large part because it let her retain creative control over the project -- allowing it to remain authentic and true to what her fans wanted and expected.

As buzz built, Day and her company, Knights of Good Productions, signed with ICM new-media head George Ruiz. "At one point, there were 25 different offers on the table," Ruiz says, "including from some major studios and networks and even a director with several $100 million films."

Day turned down every one. "She said, 'George, don't make me take this deal!' " he says. So by the time Microsoft came calling, the agent had a new approach: The Guild is not for sale, but you can license it.

The Seattle-based behemoth bit. Microsoft pays an undisclosed fee to debut each season exclusively on the company's Xbox Live, MSN, and Zune platforms (season four debuted in mid-July). "There is a common perception about Microsoft," says Day. "Especially when we first signed with them, the fans had reservations." But she was impressed that it got what she was doing and didn't want to interfere. "Microsoft doesn't even give me notes [on scripts]!"

This is a key point that often gets lost in business model discussions. When we talk about different offerings, it's amazing how much people discount the importance of authenticity as a scarcity. We see it all the time with companies who want to sponsor something, and then have tremendous level of control -- losing all of the authenticity and, with it, much of the value (and, eventually, audience). It's nice to see a situation where a company (in this case, Microsoft) properly recognized when not to get too involved.Permalink | Comments | Email This Story

Recently, we'd been discussing how the concert business for (non-arena) musicians was still doing well for some, but that everyone was getting more and more frustrated about fees and services charges added to ticket prices. We also wrote about how the band The Pixies went direct to fans with concert ticket sales, avoiding some of the annoying middlemen. It looks like more artists are starting to wake up and take notice.

Singer Joe Pug, who you may recall took part in our CwF+RtB experiment last year, and has been experimenting with more fan friendly business models for a while, is trying to do the same with a new $10 Tour. The idea is that all of the shows (with a couple of specific exceptions) on his next tour will cost only $10 -- and he's testing out selling at least some of the tickets directly with no fees at all, and if that goes well, will try to do so for other shows.

There is some precedent here. Corey Smith, who we've written about many times in the past, has used $5 tickets to many of his shows to help him build up his fanbase. In that case, the story went that this helped him connect with many more fans because at $5, it was easy for an existing fan to convince friends to go (or even pay for them to go), leading to many more people getting to see Corey live.

Still, what's most interesting to me is that more and more artists, like Joe, are recognizing how much people hate some aspects of the concert-going experience (mainly dealing with the middlemen who lump on all those fees) and realize that there's a really good way to better connect with fans: which is to cut out that middleman:

A few months back I bought tickets for a concert- which shall remain nameless- only to get manhandled by service charges and by their Newspeak cousins, "convenience fees". The actual price was nearly double the face of the ticket. Half of my money was going to the band I loved, the other half to horse-thieves. Reining in ticket fees has been notoriously difficult, even for artists of great influence. But in a small step, we negotiated to do SOME of the tickets directly through our website. We're going to try this for the Chicago show on 10/16. The first 50 tickets will be available exclusively at my website with zero fees. The amount charged to your credit card will be exactly 10 bucks per ticket. If all goes well we hope to roll out the no-fee ticketing for entire tours.
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You know what they always say: when there's a news article written about you, the facts are always wrong. Of course, in most cases, that's bad, and the fact checking you try to do afterwards is a bit useless. However, in some cases, you would think it would be good. Such as if you were a bank robber, and they had the description about you all wrong. Unfortunately, vanity sometimes gets the better of some people, and apparently a bank robber in Germany contacted the press and the police to correct the "errors" in their reporting on the crime, noting that they got "his age, height, mode of escape and accent wrong." Of course, emailing that info made it easy to track him down, and a few hours later he was in custody. Perhaps that's the trick in capturing overly vain bank robbers. Just get them to do their own fact checking by inserting errors into the police reports...Permalink | Comments | Email This Story

It looks like toymaker MGA has decided that if the momentum is turning in its ongoing legal fight with competitor Mattel, it might as well go all in. As you may recall, Mattel had sued MGA over its (extraordinarily successful) Bratz lines of dolls, because the designer who came up with the concept had done so while working at Mattel. This resulted in an amazingly broad ruling against MGA that required it to basically turn over everything having to do with Bratz dolls, including future plans, to Mattel. This made no sense. If Mattel was to get the rights to anything from MGA, it should have only been the original expression if they were actually produced under the Mattel employment contract (a point of dispute). Thankfully, the appeals court realized what a terrible ruling this was, and rejected most of it.

With momentum moving to MGA, the company has now filed headline-grabbing counterclaims against Mattel, concerning revelations, supposedly unearthed during depositions for the case, of widespread and potentially illegal corporate espionage done by Mattel on MGA and many other toy companies, including setting up fake personas so that people working for Mattel could get into toy showcases from competitors that were closely guarded secrets.

While it does make for a good story, it's not entirely clear what this really has to do with the case at hand. Corporate espionage happens all the time, as competitors try to get a leg up on one another. It seems like a bit of a tangent for MGA to even bother to bring this up now. Why not just focus on the key issue of retaining the rights to the lucrative Bratz dolls?Permalink | Comments | Email This Story

While there have been a lot of concerns lately about efforts to misuse "wiretapping" laws that forbid any recordings of people without their knowledge, it appears at least a few courts are recognizing how silly that is. Yet another court has now said that secretly recording a conversation -- in this case with an iPhone -- is okay, assuming there was no crime committed with the recording, and the recording was for a legitimate purpose. As the court noted:

"The defendant must have the intent to use the illicit recording to commit a tort of crime beyond the act of recording itself."

That makes sense. The act of recording alone, shouldn't be a criminal act, as it really depends on what is being done with the recording. And, in an age where not only is recording everything easier, but for some becoming standard, requiring permission to record all audio seems like an outdated concept.Permalink | Comments | Email This Story

If you're unfamiliar with how our Insight Community works, companies use it to get insight and analysis from folks here in the Techdirt community. If you're a registered Techdirt user, then you're also a member of the Insight Community and are free to take part in this discussion. The top results can earn cash rewards, so this is a nice way to make some money for being smart.Enterprise 2.0 has been a catch-all description for the shift towards better collaborative software tools that help groups communicate in real time to increase employee productivity.  As part of this movement, IBM sees a progression away from a world centered on emails using Microsoft Word and Outlook.
Supporting this idea, IBM has a whitepaper entitled: "Collaboration 2.0 -- Taking Collaboration to the Next Level: From the E-mail and Document-centric World of 'Enterprise 1.0' to the People-centric World of Enterprise 2.0".  Register to read it, and IBM would like your feedback on it.
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Interesting critiques of this whitepaper include, but are not limited to, questions such as:

How can this whitepaper target its audience better?
What specific business communities would benefit most from employing Collaboration 2.0 tools?
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The type of insights we're looking for will generate useful discussions regarding the capabilities of collaboration tools.  You can also tell us about your experiences using collaboration tools (what you like or don't like about them).  Additionally, you can help us out by sharing this whitepaper with others and aggregating feedback on it.  Ultimately, we're interested in creating an interesting collection of opinions (and factoids) for folks who might be evaluating various online collaboration apps.  We may re-print your submissions as blog posts on other websites, and your insightful aphorisms may be quoted in future publications.    
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We've already seen how music industry execs and lobbyists cynically use "child porn" to their advantage (even, sickeningly, declaring "child porn is great") by lumping it in with copyright infringement in trying to force filters or other third party policing of the internet on politicians and companies. What's amazing is that they don't seem to have any shame at all in doing so. The latest example can be found in the "open letter" put together by a bunch of music industry trade groups (RIAA, A2IM, AFM, AFTRA, ASCAP, BMI, NMPA, SESAC, SoundExchange, the Recording Academy, the California Songwriters Association, the Music Managers Forum, and the Nashville Songwriters Association International) to Verizon and Google asking them to make sure their proposed "framework" for net neutrality still doesn't cover forcing ISPs to be copyright cops. It's no surprise why they sent this letter, but the inclusion of "child porn" with copyright infringement is really ridiculous:

The music community we represent believes it is vital that any Internet policy initiative permit and encourage ISPs and other intermediaries to take measures to deter unlawful activity such as copyright infringement and child pornography.

The industry seems to work overtime to try to link these two concepts together, despite the vast differences between them. It's really an incredibly cynical, exploitative and disgusting move by the recording industry, and people should really start calling them on it.Permalink | Comments | Email This Story

Tim Lee points us to Alex Halderman and Ariel Feldman's latest demonstration of the hackability of e-voting machines: they reprogrammed a Sequoia machine that was used in the 2008 elections to play Pac-Man:



The really important point is that they did this in three afternoons (and remember, these machines are often left totally unguarded, in the open at polling places for days before elections) without breaking any of the "tamper-resistant" seals that are supposed to alert anyone to any foul play. As Halderman noted:

We could have reprogrammed it to steal votes, but that's been done before, and Pac-Man is more fun!

So now my only question is whether or not they get a cease and desist from NAMCO.Permalink | Comments | Email This Story

Last year, when a workprint of the movie Wolverine leaked, we pointed out that the studio producing the film, 20th Century Fox, could have responded in a way that would have built up a lot more fans, by saying something along the lines of:

Hey Wolverine fans! We know that you're all looking forward to the release of the movie next month. We're excited too! By now you may have heard that an early totally unfinished version has been leaked online. It's missing a whole bunch of stuff -- including some amazing special effects -- and honestly, this version isn't a finished product at all. We think you'll get a much better overall experience by waiting for the full finished product, but we certainly understand that some of you just can't wait (trust us, we feel the same way!). If that's the case, please, feel free to check it out, but please remember that this isn't even close to the final version. If anything, think of this as a "behind-the-scenes" peek of just what a movie looks like before all the real "movie magic" gets put in there. If you do check it out, we hope you'll join us May 1st to check out the finalized version as well on the big screen the way we intended for you to see this awesome movie. It's just a month away!

Instead, they went ballistic, and got the FBI involved and made a big stink about how awful this was. In the end, however, some studies suggested that the leak and all the attention around the leak actually resulted in helping the movie at the box office. The movie did much better at the box office than better reviewed movies that matched multiple characteristics, including having loyal fanbases. There was at least some evidence that perhaps all the publicity around the leak got more people interested in seeing the movie -- even if Fox did little to position themselves to take advantage of that -- as we suggested.

Still, that makes 20th Century Fox's response to the latest film leak even odder. TorrentFreak points out that the Twilight-spoof film Vampires Suck was leaked a few weeks ago -- and perhaps because of the publicity around the Wolverine leak, this time the company is trying to threaten everyone and issue takedowns quietly, instead of going public with their displeasure. But, of course, that hasn't stopped the movie from being available, and TorrentFreak notes over 100,000 downloads of the movie. However, by staying quiet publicly about the leak, it seems like Fox doesn't even get the beneficial publicity. This response seems to make even less sense than the response to Wolverine.Permalink | Comments | Email This Story

As Righthaven continues to file lawsuits, it seems that various lawyers who are concerned about copyright, free speech and chilling effects online have been rushing to help defend some of those sued. I can't recall a situation (even with US Copyright Group) where lawyers have been so eager to take on a company filing copyright infringement claims. Of course, the really interesting part is how some of the lawyers are testing out a variety of defenses to the lawsuits, some which seem to have a much better chance of passing judicial muster than others.

For example, some are claiming that Righthaven has no standing to sue, since it waits until after it's found the infringement to "buy" the copyright to the article in question from Stephens Media/Las Vegas Review-Journal. Others have argued that the lack of any actual damages should get the lawsuits dismissed. Still others have challenged the jurisdiction.

One interesting argument, based on an earlier ruling on the legality of Google's cache, makes the reposting of these articles "fair use." Unfortunately, the fact pattern in that case does appear to be a bit different. It not only involved a guy suing over the Google cache, but that guy also first requested that Google scan his pages, then made the request to visit the cache himself. Still, in that case, Google argued that without a robots.txt blocking them from caching the article, the guy had given implicit permission:

"Even if Google could be viewed as having made or distributed these copies of Field's works, Field impliedly granted Google permission to do so. Field displayed his site on the Internet without including any label, including those that are industry standard, to instruct Google not to present 'cached' links to the pages containing his works," Google attorneys argued.

And, in that case, the judge agreed. So, with Righthaven, these lawyers are claiming the same basic thing. They're saying that the LVRJ gave an implicit license for a similar cache-with-link by putting the content up for free and by failing to limit the ability to copy & paste the text via technical means. On top of that, they point out that the LVRJ explicitly encourages people to "share" the articles on its site (something the LVRJ still does -- including quick links to share it with 19 different services).

This does raise some tricky issues. If Google's cache is, in fact, legal and not infringement, then how is just reposting a story with a link back infringing? But, if reposting a story is found to be fair use, you're about to hear a collective gasp of horror from some online content producers who don't want people copying their stuff. Because of that general conflict, I'm beginning to wonder if some of the Righthaven lawsuits are about to become a lot more important than we initially expected -- and whether or not Google might have a very strong interest in supporting some of the cases against Righthaven.Permalink | Comments | Email This Story

MTGlass points us to David Post's analysis of "the high cost of copyright," in reference to an article about the inability to make available a treasure trove of classic jazz recordings that the National Jazz Museum just acquired. The problem, of course, is copyright. The museum wants to make all the works available, and jazz afficianados, like Post, are eager to hear the music, but copyright law makes it almost impossible:

Mr. Schoenberg said the museum planned to make as much as possible of the Savory collection publicly available at its Harlem home and eventually online. But the copyright status of the recorded material is complicated, which could inhibit plans to share the music. While the museum has title to Mr. Savory’s discs as physical objects, the same cannot be said of the music on the discs.

"The short answer is that ownership is unclear," said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. "There was never any arrangement for distribution of copies" in contracts between performers and radio stations in the 1930s, she explained, "because it was never envisioned that there would be such a distribution, so somewhere between the radio station and the band is where the ownership would lay."

At 70 years' remove, however, the bands, and even some of the radio networks that broadcast the performances, no longer exist, and tracking down all the heirs of the individual musicians who played in the orchestras is nearly impossible.

And don't think these works are going into the public domain any time soon either. As we recently noted, sound recordings are locked away for much longer than other copyrighted works due to some quirks in copyright law.

Post uses this as an example of the "high cost of copyright," pointing out that many people who first encounter copyright understand the supposed benefits of the monopoly privilege, but it's more difficult to understand the "cost," side. Of course, I'd argue that this is more a problem of the fact that people have been taught to believe that copyright is designed to "protect the creator," rather than the much more accurate fact that it's supposed to provide for the public. The fact that copyright law is quite clearly getting in the way of this, the intended purpose of the law, suggests that such restrictions are not, in fact, legal. This is a clear case where such a copyright restriction is not "promoting the progress," at all, and in fact hindering our access to important cultural works -- perhaps forever.Permalink | Comments | Email This Story

You may remember last year when model Liskula Cohen went to court to get Google to hand over the name of a blogger who was mean to her, calling her a skank. Of course, in doing so, it brought a lot more attention to the blog which almost no one had read before. In fact, it seems clear that a hell of a lot more people now associate "Liskula Cohen" with "skank" due to her legal actions, than the blog. Eventually a court said Google should unmask the anonymous blogger -- which it did. The outed blogger, Rosemary Port, then claimed she was going to sue Google for $15 million for exposing her identity -- though I haven't heard whether or not any lawsuit was ever actually filed. Almost every legal expert noted that the case had almost no chance of succeeding. Still, it did raise some questions about how far Google should go to protect anonymous users of its site. The company's terms of service do make it clear that they can and will reveal people if necessary, but that doesn't mean it shouldn't fight for its users in many cases.

Either way, it looks like we're getting something of a repeat -- as another woman, this time a former model and actress, and now a consultant named Carla Franklin -- has gone to court to get Google to hand over the names of some YouTube users who posted some videos of her, and referred to her as a "whore." She's claiming that the comments hurt her job prospects -- though, one might imagine that going to court over someone being a jerk to you online might also hurt your job prospects.

Obviously, it's no fun to have people say mean things about you online. But, in weighing the pros and cons, at some point you have to wonder if just ignoring it makes a lot more sense than ramping up the legal response -- which is only guaranteed to get the whole situation a lot more attention (and cost a lot more money). Perhaps Ms. Franklin should take the advice that she was giving in one of the videos that she's upset was uploaded. According to various news reports (the video itself has now been taken down), in the video she advised people "Don't take things so seriously." Sometimes, that's good advice.Permalink | Comments | Email This Story

It's time for some morons in a hurry to start ordering some pizza -- but perhaps not a pizza pizza pizza. Michael Scott points us to the news that lawyers for pizza giant Little Caesars are threatening a Michigan restaurant with a trademark infringement claim, because it has an item on its menu called "Pizza Pizza Pizza." For years, Little Caesar's has used the slogan "Pizza Pizza." However, it's difficult to see how anyone goes into the Pronto! Restaurant, and sees the menu item "Pizza Pizza Pizza" and thinks, "gee, I must be getting a Little Caesar's pizza with 50% more pizza!"

One aside, by the way. It's really amazing how often reporters mix up and interchange different types of intellectual property law. In the first paragraph, the reporter claims that the complaint is about "copyright," when the quote from Little Casear's (held off until the final paragraph) shows that it's clearly about trademark law. I can understand some confusion if it's never actually made clear, but this involves an article where the lawyer specifically notes that it's a trademark issue, and the reporter calls it a copyright issue in the opening... and doesn't put the quote in with the details until the very end. That just seems like really bad reporting.Permalink | Comments | Email This Story