Al Jazeera English recently did a very well done episode on its Fault Lines program about attempts by Hollywood and the US government to control the internet. It's about 24 minutes long and includes interviews with a bunch of people who were involved in protecting the internet discussing what happened. The first half is about the SOPA/PIPA fight, and how it was basically about Hollywood trying to hold back the internet: Halfway through, it shifts to talk about the various cybersecurity bills and attempts to crackdown on Anonymous. Basically, it's about the government completely overreacting to what they believe are "threats" to the internet. Towards the end it also talks about how the government can and does abuse its powers, highlighting the case of Thomas Drake. It's a great video with some fantastic interviews, though it could do without the overly dramatic music. Still, it's good to see more people connecting the dots, and recognizing that much of what we're seeing these days is really just an attempt to "control" a platform that has been so successful because it was so wide open. Many of us believe that it needs to stay that way to remain a powerful tool for speech and for progress.

Brandon Boyd has seen both ends of the music industry. With his band Incubus, Boyd rode possibly the last big wave (nu-metal) crafted by the labels. Now, faced with heading out label-less for the first time, Boyd has a refreshingly realistic outlook on the challenges he and his band face in the future.

We are, for the first time since 1996, we are free agents again. We're without a record label. So what we're kind of doing is trying to get our bearings as to what we should do next, just as a band but also as a band that is kind of off in new territory again.

Fortunately for Boyd, he's not completely unprepared for life without a label. During the shakeup at Epic Records and Sony's restructuring, Incubus sort of fell between the cracks and dealt with "a real lack of direction and leadership just when we needed it most." Surprisingly, Boyd isn't bitter about the experience and notes that it left the band free to start exploring other options, including put more effort towards connecting directly with their fans:

So it was hard and it was frustrating but it was also very telling for us and perhaps educational. Because what we were forced to do was we were forced into ingenuity. And so we came up with this idea to set up shop in this art gallery in Los Angeles and do the Incubus HQ and fly listeners in from different corners of the world and do these live broadcasts on the Internet. And so we started getting these ideas about subscription-based live concerts online and it ended up being a really scary and stressful project, but the fruits of it are still kind of revealing themselves.

We have this HQ box set that we're putting out and the DVD set comes out I think August 14 is the release date. There's like the superfan all six nights on DVD mixed in 5.1 with the CDs and pieces of canvases that people were drawing on in the room while we were playing music. Like I said, it's forced us to think outside of that normal music industry paradigm that we had gotten so accustomed to. And so in that sense the lack of attention from our record label and the end days of our record label relationship were really good and very beneficial for us as a band because it gave us a sense of what we might be doing in the coming years.

Living through massive disruption turns some artists into doomsayers who demand the world repent of its "sins" and return to the "Old Way." Boyd lived through the so-called Napster years and came up with a completely different conclusion: adapt or be left behind. The upside of the old way was nice:

Linkin Park and Incubus were two of the very few bands who kind of like got a gust of wind out of the old paradigm of the music industry. But like survived out of it. There are so many bands that, bands in a traditional sense, bands who write their own music, and perform their music, that didn't survive that transition. That fell by the wayside with the industry. So it’s been frightening to watch something that you for a very brief moment almost learned to rely on, because we learned the ins and outs of how the industry worked, you know you poured your heart out into making an album and then the label puts the record out and you go out on tour in support of the album, and we even started doing it in the van and trailer. We'd make a record and get in the van with our gear and the trailer and we'd drive ourselves around the country and sell albums and T-shirts out of the back of the trailer. That was sort of our education and then once things started going really well, thankfully, we got a sense of what it looks like when all of the, when the engine is nicely greased and things are working the way they're supposed to.

But when that way was no longer viable, Incubus moved on, rather than hold on to the way it used to be:

And then it's like the millennium turns and the technology changed. And all of that became old. It became an antiquated model. And it was frightening at first but I actually have come to appreciate it. I'm going to actually use the pun, a living thing. It's a living system. Our technologies are a living system just like we are and our communities as human beings, and for us to expect them to remain constant is really just quite foolish. I mean anybody that's going to come to rely on the way that our music consumption is looking now is going to have the same hard lesson in less time than you think. I think that the technology is going to shift probably sooner than any of us really realize. And that's a really cool thing, because it keeps everyone on their toes. It levels the playing field, too. It's allowing for a really wonderful democratization of the music writing process and the music presenting and performing process. So what it's doing is it's making us try harder and it's making us expect the best of ourselves and the people that we work with. You know, do more with less.

That's the way it works now if you're going to succeed. It's artists vs. limited attention and limited entertainment budgets. A connection is vital and a willingness to explore every option is nearly mandatory if you're going to get anywhere.

What's more amazing about these statements is there is no mention of the music industry's favorite villain, piracy. Boyd sees what the real issue is: disruption. And rather than wait for someone to "fix" the "problem," he's moving as fast as he can to stay ahead of the curve. He's not letting his situation be dictated by others and because of that, he's got a good chance to keep his creative career going.

I personally, when all is said and done, I really welcome these changes. And they excite me. And they scare me at the same time, but I'm choosing to focus on the excitement.

It is a scary time to be an artist. Nothing'is guaranteed. But it's also a time when the field is wide open and the possibilities nearly unlimited. Focusing on the wrong aspect gets you nowhere, but being willing to look past everything that seems to be going wrong and make the most of what's going right.

It is often said that there are no new ideas any more. This adage is most often applied to fiction and other forms of entertainment. However, this story shows that the adage can apply to technology as well. Ralph Baer is the often ignored but historically recognized father of the home video game console. His invention went on the be licensed as the Magnavox Odessey which later inspired Pong. However, his efforts in the realm of television accessories were not confined to gaming. Via Gamasutra, we have the following video which surfaced thanks to the German Science Spiele Museum. In this video, Baer shows off what he calls Participatory CATV via an "all purpose box" in 1973.

While nothing in this presentation would seem all that new and innovative to modern audiences thanks to the proliferation of the internet, personal computers and smart phones, back in 1973, this was a massive leap for home electronics. For instance, the creative use of encoded audio signals when ordering a product from a commercial is very similar to such common place codes such as UPC and QR codes today. And while home education over the internet today seems old hat, using your cable television subscription to achieve the same end goal is actually quite remarkable.

Another interesting suggestion that was only touched on but not discussed to great length was the idea of ad supported gaming. Today we see this in many forms whether it is free games that include advertising to bring in revenue for the developer, or games sponsored by or acting as an advertisement for a brand. Once video games became a large part of the home, we saw Baer's prediction come true. 

All in all, what this shows is that few ideas are completely new. Many times, someone else will have thought of it before you, or at least thought of something similar. A lesson that some companies should probably consider prior to using patent law as a way to kill competition.

An amazing number of cupcake stores have been popping up everywhere over the last few years, in what's been called the "Cupcake Bubble". (Just check out CRMB on NASDAQ for one public company dedicated to cupcake bakeries -- or the reality show about cupcakes, Cupcake Wars.) These tasty treats are not only easy to make cheaply, but scaling up also doesn't require too much effort. As a result, there are tons of different cupcake choices out there, and stores are distinguishing themselves by offering cupcakes with a twist. Here are just a few examples.

• How about an ATM that takes your cash and dispenses cupcakes? Sprinkles, the "pioneer" of cupcake bakeries, has set up a 24-Hour Sprinkles cupcake ATM that is restocked day and night with a variety of freshly baked cupcakes. The machine also dispenses cupcake mixes, apparel, and... cupcakes for dogs(!) [url]
• The world's most expensive cupcake -- The Golden Phoenix -- costs over $1,000. The cupcake is made by Bloomsbury's Cupcakes in Dubai, and it's made from the finest chocolate and covered in 23 carats of edible gold sheets. [url]
• The Meatloaf Bakery in Chicago sells savory meat cupcakes. Each cupcake is a self-contained meal, and there are eight different varieties. For example, the "Wing and a Prayer Loaf" features ground chicken and celery topped with hot wing sauce and a blue cheese crust. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Trademarks are a fickle beast. It seems that no matter what you do, no matter what you name your product or service, no matter how you color your shape your logo, someone comes along and claims that you are infringing their own trademark. Sometimes the trademarks are within the same industry, sometimes they seem to have absolutely nothing to do with each other. Yet, for some companies it doesn't matter. All that matters is that you are using something they think is too close.

Not long ago, an organization was formed to promote the creation and use of open source hardware, hardware that has an open spec and design that others can copy and modify. This organization, Open Source Hardware Association, upon creation, had the community vote on a logo to represent the initiative and brand any hardware meeting its qualifications. Unfortunately, another open source organization, the Open Source Initiative, feels that the logo chosen by the OSHWA community is much too close to its own. According to the complaint, OSHWA's logo looks too similar to OSI's logo. You can see the two below.

The main similarity that has OSI complaining is the keyhole shaped opening in the middle of the two logos. Because of this similarity, OSI feels that people might associate its organization with the products of OSHWA. OSI feels that it could be problematic as it doesn't want its brand diluted.

Perhaps it should be approaching this dispute differently. The OSHWA logo was chosen by the community. Which means that on some level, the open source community felt inspired by the work of the OSI and wanted to pay homage to it. Perhaps the OSI has recognized that fact as it is offering OSHWA a licensing offer. Unfortunately, OSHWA feels that even that license will not work.

OSI has indicated that they would grant a trademark license to OSHWA. This would give OSI the means to protect their trademark. However, accepting such a license would establish OSI as the owner of the crowdsourced ‘gear’ logo. It would make OSI responsible for deciding where and when the logo can be used, effectively giving OSI control of defining what can and cannot be labeled as open source hardware.

Such a license would limit OSHWA's autonomy as an organization. Something that neither it nor its community want. So it is weighing other options as well. These include ignoring OSI's complaint or sourcing a new logo. Fortunately, it looks as if OSHWA and its community are leaning more toward the latter than the former.

But while it is busy dealing with this conflict, it cannot continue with its core mission of promoting the use of open source hardware. This dispute has even been scaring some people away from participating until it can be worked out.

Dave Vandenbout, who runs X Engineering Software Systems in North Carolina, was putting the gear mark on open-source boards, but is suspending that until the issue is sorted out. The gear logo told people that the board is open-source and they can build upon it if they wish.

"If it is found that the Gear logo infringes OSI's trademark, then I suppose I could receive a cease-and-desist letter. That might be pretty disastrous for me if I had to actually scrap my inventory," Vandenbout said.

This is certainly not a good way to start an open source movement. If this dispute keeps up, it might undermine all the effort its founders and board have put in to building a brand. If it cannot build confidence in hardware makers now, it might not recover. Fortunately, it is doing all it can and keeping the community informed about new developments. Something that will really help it stay strong.

OSHWA has stated in an update to its blog post that it is going into renewed talks with OSI and hopes to come to a conclusion that will be agreeable to all parties. Hopefully, it will also keep both parties out of the court room. Yet, I find it a tad disappointing that two organizations whose main stated goal is promoting the use and building upon the work of others through open source are even having such a dispute at all. You would think that such a philosophy would transcend the nature of their core work to other areas such as trademark.

We've been noting some questionable behavior on the part of Craigslist lately, including its change in policy in which it tried to claim an exclusive license to everything you post on the site. This was of dubious legality already, and it appears that Craigslist has realized that it was going way too far. It's now dropped the exclusivity requirement, though has remained (typically) quiet about its thinking. Hopefully this is a sign that the company is actually paying attention to the public outcry about its recent bullying techniques. Craigslist (and Craig himself) have such a great reputation for being "good" players on the internet, it would be a shame if they hurt their reputation with moves that are so antithetical to the open internet.

Yesterday we did our live streaming interview with Rob Reid about his book, Year Zero, which was a lot of fun. During the course of the video, we discovered (via some tweets) that people in Germany were blocked from watching. As I said in the video, I assumed that this was part of the dispute in Germany between YouTube & GEMA, the German collection society that is demanding huge fees for any music that is played on YouTube. Because -- unlike every other major collection society -- GEMA had refused to come to the table to negotiate a license, YouTube ended up pulling basically all music videos in Germany. I thought perhaps something related to that was why Google Hangouts weren't allowed. Though, I couldn't figure out how that made sense, since we weren't playing any music (Rob's offer to sing, notwithstanding).

However, as pointed out by Ruquay K Calloway, the actual story may be more bizarre. While YouTube has been rightfully proud of launching Hangouts On Air (the feature we used to broadcast live) worldwide, Germany is actually missing from the big list.

It turns out that it may be a different ridiculous regulation, however. There's an old "broadcasting law" in Germany that was put on the books decades ago to stop pirate TV stations. And it says you can't broadcast to more than 500 people without a special license. And, because that's impossible for every one-off person seeking to use a tool like Hangouts on Air, it appears that Hangouts On Air is just off-limits in Germany. So, I'm sorry for all the Germans who wanted to watch the video live, but perhaps an effort should be made to wipe that silly rule off the books already.

As promised, below is what I filed today with the White House in their request for comment on the upcoming "Joint Strategic Plan on Intellectual Property Enforcement." After talking it over with a number of top entrepreneurs and venture capitalists, we decided to file the comment jointly, as a group. Among those signing on to this statement are Evan Williams (Founder of Twitter), Dennis Crowley (Co-founder and CEO of Foursquare) Erik Martin (General Manager of Reddit), Alexis Ohanian (Founder of Reddit & Breadpig), Ian Rogers (CEO of TopSpin), David Ulevitch (Founder & CEO of OpenDNS), Ben Huh (CEO of Cheezburger), Drew Curtis (CEO of Fark) and many others.

The key to our filing is to point out that if the White House really wants to deal with infringement, the absolute best way to do so is to encourage and enable greater innovation. Innovation to provide new ways to create, to promote, to distribute and to monetize content has time and time again been shown to be the only consistently successful path to reducing infringement. Legal enforcement has never been shown to be a successful long-term strategy. And that's because infringement is, almost always, a situation where the business models and the services have not yet caught up to what the technology allows, and what the public would like to be able to do. Encouraging new tools and services to close this gap takes away the incentives for infringement.

Unfortunately, most of the focus to date, instead, has been on increasing the power of law enforcement, which actually is counterproductive in that it tends to have massive collateral damage in terms of both potential attacks on free speech, but more importantly by creating chilling effects on the very innovation that is needed to respond to widespread infringement. Similarly, we are equally worried about the nature of attempts at regulatory change (SOPA/PIPA, ACTA, TPP) developed in backrooms with little to no input from the innovation community, which will again lead to stifling of innovation.

If you have not yet filed your own comments with the White House, please do so today before they close comments (either 5pm ET or midnight ET depending on which page you believe -- so I'd assume 5pm to be safe). You just need to go to this form, where you can file a short (2,000 character) comment directly, or you can upload a longer filing if you have more to say. If you want another example beyond what we filed, also check out this detailed filing from CDT. Once all the filings are in, we'll look at highlighting a few of the more interesting ones if we get the chance next week.

For quite some time the RIAA and MPAA have been going on and on about how Google can just "fix" its search results by either removing or punishing sites that are deemed as "pirate" sites. We've explained why this is not as easy as the entertainment industry thinks it is, but it appears that the pressure has gotten to Google... and they've just announced that they will, in fact, be punishing sites that they deem as bad players, based on the data they have of how many "valid copyright removal notices" a site gets:

We aim to provide a great experience for our users and have developed over 200 signals to ensure our search algorithms deliver the best possible results. Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify.

Since we re-booted our copyright removals over two years ago, we’ve been given much more data by copyright owners about infringing content online. In fact, we’re now receiving and processing more copyright removal notices every day than we did in all of 2009—more than 4.3 million URLs in the last 30 days alone. We will now be using this data as a signal in our search rankings.

The company notes that it's just one signal of many and that they will only demote the results, but not remove those sites from the index. In fact, they point out, correctly, that "Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law."

As I understand it, the plan is that for people who search for, say, "watch dark knight rises free online," Google will try to push results that are likely to be unauthorized down the list, and try to have more "authorized" results higher up in the list (though, with a search query like the one above, there may not be any "authorized results" that provide what the person is searching for).

It's that last point where this gets to be troubling. Part of the reason people are searching for such things is that there isn't an easy and legitimate way to get that content. The best result would be for Hollywood to get its act together, realize that its whole windowing procedure is a disaster from the consumers' perspective, and provide more of what consumers want. Instead, the end result is going to be that people do these searches and just get equally frustrated. I don't see how that's good for Hollywood or for Google.

My other concern is that things things that later turn out to be quite legitimate and massive opportunities for authorized and legitimate content, are quite frequently demonized as tools of piracy early on. Imagine an equivalent of this announcement today in the early days of the VCR, when the MPAA insisted that it was evil and infringing. Imagine if when you went into a store to buy a VCR, the store instead pointed you to the movie theater down the road. That might be what Hollywood thought it wanted, but the end result would have been a much smaller home movie market -- not a market that ended up being bigger than the box office market just a few years after Hollywood insisted it was illegal.

Same thing with the first MP3 players. The RIAA sued the Diamond Rio as being a tool for infringement. Imagine if when you went to buy an MP3 player, stores decided to instead tell you you should buy some cassette tapes instead. It enforces an older way of doing business, rather than a new way.

And this applies online as well. Obviously, there's still an ongoing lawsuit against YouTube for copyright infringement, and YouTube certainly gets a ton of "valid copyright removal notices." Would Google demote search results to YouTube based on this? In the past, Google has punished the search results for other parts of its own business, for violating its rules, so it's entirely possible that YouTube results could get demoted under this system -- though I would imagine that Google believes that the many other "signals" it uses to determine legitimacy would minimize the likelihood of this being an issue.

But... that might not apply to a new up and coming site. Take, for example, the cases of Veoh and MP3Tunes. What both of those companies did was deemed legal by the courts, but both companies went bankrupt due to massive legal fees from being sued by the legacy entertainment industry. Imagine if, on top of that, Google also demoted the results from those sites at the same time. Already, Google is facing antitrust scrutiny for what some companies claim was a policy that demoted Google search results to their pages. While I think those claims are pretty bogus, is Google just opening itself up to a similar antitrust attack on that point?

I recognize that Google has a tricky balancing act here -- trying to keep the entertainment industry off its back, and the governmental pressure that comes with that, while still providing the "best" search results for its users. And I'm sure that Google has tried to use an approach that minimizes the concerns I raise above. But we've already seen, quite clearly, how Google's automated systems often fail when it comes to copyright issues, and the risk for both abuse and bad results seems quite high. At the very least, it's going to bear very close scrutiny to see how Google handles legitimate sites, who get swept up in claims of infringement when they're actually providing legitimate services.

Back in April, we wrote about a horrible ruling that said that Facebook likes were not protected by the First Amendment. The ruling didn't make any sense at all, and we quoted two legal experts, Venkat Balasubramani and Eric Goldman, explaining why. The appeal in that case is moving forward and now both Facebook and the ACLU have weighed in to support the idea that a "like" is protected speech. Both filings are embedded below. Facebook makes the point quite clearly:

Liking a Facebook Page (or other website) is core speech: it is a statement that will be viewed by a small group of Facebook Friends or by a vast community of online users.

Facebook goes into the specifics of the case, which involved a deputy sheriff who was fired for "liking" his boss's campaign challenger in an upcoming election. Liking a candidate is no different than saying that you like that candidate, which is undoubtedly protected speech:

If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

The ACLU makes a similar argument:

“Liking” a political candidate on Facebook – just like holding a campaign sign – is constitutionally protected speech. It is verbal expression, as well as symbolic expression. Clicking the “Like” button announces to others that the user supports, approves, or enjoys the content being “Liked.” Merely because “Liking” requires only a click of a button does not mean that it does not warrant First Amendment protection. Nor does the fact that many people today choose to convey their personal and political views online, via Facebook and other social media tools, affect the inquiry.

This one seems like such a slam-dunk case that it's amazing the original ruling went the way it did. One hopes that the appeals court (Fourth Circuit, if you were wondering) recognizes the clear and concise arguments presented here, and dumps the original ruling.

We're used to hearing broad statements about the income of major labels, mostly about how little it is and why that needs to be "fixed." We've also shown how any disclosure about income from the labels is less than a one-way street (more of a cul-de-sac filled with vacant lots) when it comes to their own artists. When it comes to making a living by making music, it often seems that beyond very public Kickstarter campaigns, not many people actually know how much money is flowing to artists and from where.

Zoe Keating, who's been featured on Techdirt before, mainly due to run-ins with ASCAP and Universal, has opted to go fully transparent. She's uploaded a Google Doc, breaking down every source of income in detail. Hypebot breaks down the breakdown: 
 

Clearly, the best way to support Zoe (and other independent artists like her) is to purchases directly from the artist. Just by taking a look at the pie chart, it is evident that the vast majority (nearly 97%) of her recorded music revenue comes from fans purchasing her music as opposed to streaming it. Less than $300 came from Spotify, while more than $45,000 came from iTunes.

“Music sales have been a consistent 60-70% of my total income,” Zoe told Hypebot. “The rest comes from concert fees and film/commercial licensing.”

Perhaps an unsurprising number, it nonetheless is a great reminder of why connecting with your fans is so important. If you can make that connection, it makes selling infinite items that much easier. As is pointed out by Hypebot, Spotify accounted for only $300 of Keating's income. This could be construed as being precisely what's wrong with Spotify, but Keating's take on this low number doesn't reflect that:

“The income of a non-mainstream artist like me is a patchwork quilt and streaming is currently one tiny square in that quilt,” Zoe said in her Google Doc. 

She also doesn't seem to be concerned, as others are, that Spotify and other streaming services will supplant tracks sales and reduce her income. 

Streaming is not yet a replacement for digital sales, and to conflate the two is a mistake. I do not see streaming as a threat to my income, just like I've never regarded file sharing as a threat but as a convenient way to hear music. If people really like my music, I still believe they'll support it somewhere, somehow.

This isn't to say she doesn't have any reservations about the streaming service. In her Google Doc notes, she points out that, at this point, she feels artists should view it more as "a discovery service rather than a source of income." This could change, though, if Spotify makes a few alterations. First of all, Keating would like to see it open its availability:

I've said multiple times what my issue with Spotify is: fairness. I care about making the playing field level for all recording artists: signed or unsigned. Let it be a meritocracy.

At this point, Keating is still unable to get one of her albums ("Into the Trees") onto Spotify due to the lack of a digital distributor who won't take a cut of her iTunes sales. In order to get her music on Spotify, she has had to run her albums through an aggregator (CDBaby, TuneCore, etc.) in order to make them available. As it stands now, her latest solo album isn't generating any Spotify income.

She also feels Spotify could turn itself into a better platform for musicians:

I wish Spotify would do more to facilitate the connection between listeners and artists - i.e. show that the artists is playing nearby, or add links to buy music. It's early days, so maybe this will happen eventually.

Away from the streaming front, Keating also addresses those who have suggested she leverage her success and sign with a major label to "extend her reach:"

My financial picture would be worse if I was on a record label. Some people say that if I was on a record label, I'd have a larger reach and therefore would be making more money. To this I'd like to point out that I make instrumental cello music. There is about as much chance of my music becoming mainstream as there is of me being elected President of the USA (hint: not possible, I was born in Canada and there are naked pictures of me at Burning Man). While it is probably true that the right label could help with the reach part, I don't think they could help me enough to offset their cut, and you know what….no label has ever approached me and the ones I've approached said no, so I'm guessing they think the same thing.

There's sure to be more discussions springing from this data and her comments. Having turned herself into a "data point," Keating is now encouraging all artists to do the same. As she points out, if we're ever going to figure out where the music industry's headed, we need to collect as much information as possible from where it is now. Hopefully, Keating's transparency will result in many more "data points" offering up detailed pictures of how they're making money by making music. 
 

Remember South Butt? They're the relatively small and vulgarly-named clothing manufacturer North Face took to court over trademark infringement. Soon after, South Butt decided to use the lawsuit as a marketing ploy and then responded in court with a hysterical legal filing. We said at the time that moving forward with a lawsuit was a poor choice by North Face, serving only to fuel publicity for what it misguidedly saw as a competitor.

Proving that learning a lesson is very, very difficult, North Face has taken the former owners of South Butt to court again. What happened at the conclusion of the original lawsuit was South Butt agreed to drop their brand entirely as part of an injunction. Then, according to North Face, they jumped right back into their old shenannigan ways, forming the company Why Climb Mountains LLC and registering for a trademark on their new brand Butt Face. As if all of this wasn't funny enough, the following is taken from North Face's filing, in which they are asking for WCM LLC to be held in contempt, to recover costs, and for disgorgement for trademark violations:

"A survey conducted by plaintiff shows that approximately 35 percent of respondents identify The North Face as being associated with The Butt Face trademark when shown a sample of contempt respondents' T-shirts. Not only are contempt respondents now engaged in the widespread sale and promotion of The Butt Face branded goods, but Why Climb Mountains, LLC also has filed for registration of The Butt Face trademark with the United States Patent and Trademark Office."

If this is alledging brand confusion, I'm at a loss as to exactly how North Face went out and managed to collect what has to be the world's most hurried morons in a single room as a method for getting 35% of them to think Butt Face and North Face were the same thing. WCM's lawyer seems to feel similarly skeptical:

""The South Butt and Olop [South Butt's sister line] are genuinely committed to the fundamental concept that the consuming public is perfectly capable of discerning the difference between a direction point on a compass and that part of the body from which solid waste is evacuated," [Albert] Watkins said in a statement."

The other interesting tidbit in North Face's complaints is that they believe...wait for it...that WCM's owners are simply using the lawsuits filed against it as publicity. They reached the same conclusion as we had years ago. But, in an apparent attempt to test a theory called "litigation through stubborness", they filed suit and gave their adversaries more ammuntion for publicity. It would be as though I had an ant problem in my kitchen because I left some honey out on the counter and my response was to cover the counter in honey while complaining about the ants marching in.

In the end, North Face likely would have been far better served to ignore South Butt along with its new iteration, Butt Face. On the other hand, if they had, I never would have had the pleasure of writing the headline for this article. So, you know, thanks for that I guess.

There has been some concern here and there about Facebook's face recognition technology, though I will admit that I still don't see it as being that concerning. It only works on people who you're already listed as being "friends" with -- not just randomly identifying people in crowds or anything. As such, it seems more like a handy tool for better providing info in images. Some have raised issues about Facebook opening it up beyond just friends, or potentially exposing ID info in photos to others, like advertisers. And while Facebook has a reputation for changing its privacy terms in ways that freak people out -- and which possibly expose info that people originally thought was private -- I'm still missing why the face recognition is so problematic. It's no different than what a user would/could do right now -- identifying an individual in a photo and tagging them. If facial recognition is a concern, why isn't that (human) action just as concerning? Both involve connecting an image to a name.

Perhaps I'm missing something -- and I fully expect readers here to clarify exactly what it is in the comments.

It certainly seems like governments around the globe also think that there are problems with the facial recognition -- and they may act on it. Here in the US, Senator Franken quizzed a Facebook exec on this issue. He properly noted that Facebook doesn't do a particularly good job disclosing that the facial recognition technology is there -- and that's something that could be improved. But is that a legal violation?

The bigger issue, though, may be over in Europe where there are a variety of investigations of the technology going on -- with Ireland and Norway leading the way and expressing concerns. Europe, of course, takes privacy rights against companies to a different level than we do in the US, though that sometimes leads to wacky, nonsensical outcomes, like German residents being able to blur their houses on Google Street View. But of course, the fact that anyone driving down the street can see what's there is ignored. It feels somewhat similar with facial recognition. If you're in a picture, you're in a picture. A human can identify you. Is there a major difference if a computer can also identify you?

In the right hands, social media is a powerful tool. It can send canine-themed rappers to Palin-land, for instance. Some governments have even taken to the internet to publically shame tax evaders. But now we have a story of a couple of authors who found that imploring their well-connected customers to shame plagirists on their behalf may be a better route than legal recourse.

Reader drew writes in about the story of two fiction authors, John Scalzi (whom you may recognize from when we wrote about his free ebook experiment) and CJ Cherryh, who found that there were people selling the authors' works under a different name on Amazon's site. They sent their DMCA notices and waited in frustration as their publishers worked with the site to get all of the infringing works taken down. This admittedly has to be frustrating for victims, but fortunately the authors weren't content to sit on their hands and be pissed off.

"Both writers also posted a request for their Facebook fans to write scathing one-star reviews of Mr. Farabi's books, and warn others about the scan. By noon on Sunday, July 15th, all six of "Mr. Farabi's books" had been pulled, and were no longer for sale on Amazon.com. Score one for irate fans and copyright holders!"

The point here is that if you truly connect with your fans, they will be willing to fight on your behalf in situations such as this, and that is a far cry from the theory that everyone on the internet simply wants everything for free. But it takes work and a willingness to connect with your fan-base, so that the fans are willing to support you in this manner. Still, that work pays off in the passion those true fans will demonstrate.

And content creators, be they authors, musicians, or movie-makers, have no greater ally than a passionate fan-base. Those fans, as demonstrated here, are a more effective anti-piracy weapon than any legislation you can dream up, because while some companies on the internet may or may not be interested in acting as the "copyright police," they will sure as hell listen to their customers.

This is a strange one. A few months back, we highlighted some comments from EA in which it postulated that deeply discounted games were bad for business. This comment from the head of EA's Origin digital distribution service was in response to Steam's sales that it holds regularly. In this comment, DeMartini claimed that such sales devalue the games and trains people to only buy cheap games. Perhaps this comment was a prophetic statement of sorts, because EA is now recognizing the reality of cheap games.

In a recent interview with the folks at MCV, another EA exec, Nick Earl, stated that people are making the switch to free games and there is no stopping it.

The future is not about one-time payments, the future is about freemium. A decent number of people convert to paying and they may not pay a lot but most of them actually pay more than you’d think.

I don’t know if freemium gets to console but I do know that humans like free stuff. I also know humans who will pay for something if they’ve tried it out and they like it.

I’ve wondered if freemium expands beyond the tablet, Facebook and smartphones, and out into consoles? I don’t think it’s impossible for that to happen.

It is actually quite refreshing to see someone in a large game studio willing to accept this fact, something that his counter parts in publishing are incapable of doing. But this is the reality. We have seen it happen in rapid fashion, particularly in the mobile space. Because of the nature of the market, game prices quickly dropped to $1 and then to freemium or free to play. These options allow for potential customers to limit the risk of acquiring a new game. This is also forcing the games industry as a whole to reconsider how it prices its software, which some still seem unwilling to do.

Another interesting thing about this comment is that Nick realizes that it is only a matter of time before free games come to consoles. This is something else we have observed with the recent announcement of the Ouya console. One of the Ouya's biggest selling points is that all games available for it must offer some form of free option, something not currently available on any current console. This idea and the low cost of the console itself led to a huge positive reaction from the gaming community, shooting the Ouya into record breaking pledges on the first day. So yes, people are shifting to free games.

As the market for games shift toward cheap and free options, it will be interesting to see what the current console leaders do in response. Will they all follow Nintendo's lead and continue on the course of "premium" prices for console games, or will they recognize that there are more ways to make money from gaming than retail sales? If they do continue down the premium path, they are quite liable to be left far behind when the market shifts. Something that EA seems to be preparing itself for.

The European Union has been secretly negotiating a free trade agreement with India since 2007 that is worryingly similar to ACTA. Intellectual property rights enforcement would include border detention and seizure measures of goods being imported by India, exported by India or in transit via India's ports or airports. This could affect the generic drugs that India produces for its people, as we noted last month. The European Union is eager to wrap the agreement up by the end of the year, according to Belgium's Deputy Prime Minister and Trade Minister Didier Reynders. He wants to gain access to public procurement, chemicals and pharmaceutical products, health care, technologies, life sciences, renewable energy, and urbanization. This sounds peachy till the matter of India's arbitration notices is considered. As public interest NGO Madhyam states,

All Indian IIAs (International Investment Agreements) contain a broad asset-based definition of investment stating that investment means every kind of asset. This broad definition is then followed by an inclusive or non-exhaustive list of assets, which includes direct investment, portfolio investment, intellectual property rights, rights to money or to any performance under contract having a financial value, business concessions conferred under law or contract. Such a broad definition of investment expands the jurisdiction of IIAs to virtually cover almost all areas of investment.

Fair and equitable treatment (FET) has emerged as one of the most litigated issues in investment treaty arbitration. At the heart of this controversy is the meaning of FET. Almost all Indian IIAs contain the FET principle without providing much guidance regarding its meaning. Thus, determining the content of FET is left to the discretion of investment treaty arbitration tribunals.

This is the problem: foreign corporations go in with promises of investment opportunities and exploit the people till the government pushes back, then the foreign investor takes them to an international trade court.

The stumbling block at the moment is that India wants the EU to ensure free mobility of professionals without restrictions such as experience whereas the EU wants greater commitment by India to allow foreign investment in services such as retail, legal and postal. Allegations of the existence of a 'Kashmir center' run by anti-India elements in Brussels aren't helping. Meanwhile, opposition to the treaty is mounting from unions, international NGOs, and David Martin MEP, rapporteur for the European Union's International Trade Committee, whose recommendations helped to pull ACTA down in July.

When will they learn to stop negotiating treaties that only benefit big business in secret? Opposition to this treaty will continue to grow as more details emerge.