This could get interesting. The latest news in the ongoing Righthaven saga is that the judge in the Hoehn case -- who had ordered Righthaven to pay attorneys fees which it never paid -- has now ordered that all of Righthaven's "intellectual property," including the many copyrights in dispute, be turned over to the receiver for auction. As you may recall, Righthaven's domain has already been auctioned off, but now it appears the copyrights will be too.

Of course, this is a bit tricky, since it's unclear what, if anything, Righthaven actually "owns" here. Even the company (when it bothered to show up in court, which was increasingly rare) started to claim that it really only held the bare right to sue -- which is what sunk its cases, since that right cannot be separated from the other, enumerated rights under copyright law. But, as the court noted, even if there's a dispute over what rights Righthaven technically has under the agreements it made with Stephens Media's Las Vegas Review Journal, the company is registered as the copyright holder on hundreds of works. And those are all being auctioned off:

In connection with the Defendant’s judgment enforcement efforts, the Court appointed the Receiver to, among other things, seize the copyrights assigned to Righthaven by various entities (the “Copyrights”), as well as its trademarks and other intangible property, so that they could be sold at auction. (Doc. # 62, 66.) Despite the Receiver’s efforts, Righthaven has not transferred its intellectual property. (Docs. # 70, 81, 82.) The only property that the Receiver has been able to obtain and auction is Righthaven’s former domain name, <righthaven.com>, which was sold for more than $3,000 in a commercially reasonable auction (Docs. # 81, 82).

Based on the evidence submitted to the court by the Receiver (Docs. # 70, 82), Righthaven has failed to substantively participate in the orderly disposition and sale of its intangible assets as ordered on December 12, 2011. (Doc. # 66.) Moreover, Righthaven failed to appear at the originally scheduled January 5, 2012 debtor examination in this case, (Doc. # 71), and failed to appear at the March 5, 2012 hearing giving rise to this Order. (Doc. # 88.)

In light of Righthaven’s lack of participation in these proceedings, and Hoehn’s entitlement to relief (Docs. # 62, 66), this Court concludes it is appropriate to transfer such rights as Righthaven may still hold in Righthaven’s intellectual property to the Receiver, Lara Pearson. The Court deems Righthaven’s conduct in this case to constitute its consent to this Order.

This Court acknowledges that there is a dispute over what intellectual property rights Righthaven actually possesses. Nonetheless, the Court may use its powers under 17 U.S.C. § 201(d)(1) to transfer Righthaven’s copyright rights, whatever they are deemed to be, to the Receiver for auction pursuant to the Court’s December 12, 2011 order (Doc. # 66). While Righthaven has argued now that it does not have more than the bare right to sue, as this Court previously held, Righthaven does possess copyright registrations that can be assigned by operation of law. The copyright registrations to more than 275 works are in Righthaven’s name, can be transferred by this Court, and can then be auctioned by the Receiver.

The order then goes on to list out the 275 copyrights that are registered in Righthaven's name. Even if the transfers were a sham, the registrations still exist. What can actually be done with them is an open question, because the sham transfer likely means that the rights are still really Stephens Media's, and if there ever were a legal dispute that would be an issue. But, in the meantime, you may soon be able to "own" a piece of copyright troll history: one of the bogus Righthaven copyright registrations, with which you can legally do, well, absolutely nothing. Though, it could be fun to see if you could convince the Las Vegas Review Journal that it needs to pay up for continuing to host the article for which you hold the copyright registration...

Robots are getting better and better at performing simple repetitive tasks that most people think are fairly easy to perform. But if you're not paying attention to robot developments, you might have missed some robots that have been taught to do a few more impressive feats. Here are some examples of open source robots that we might want to keep an eye on.

• An open source robot surgeon called Raven is making some impressive progress in the field of medicine. However, its advancements could be threatened by the makers of the da Vinci Surgical System -- and various patents on robot surgery procedures. [url]
• PhillieBot is a one-armed robo-pitcher designed by engineers at Penn that threw a ceremonial opening pitch for an MLB game. The creators credit the open source robot operating system (ROS), but also admit that their robot won't be competing with human pitchers any time soon. [url]
• In 2010, Willow Garage modified its open source PR2 robot to do a laundry task -- successfully folding towels neatly. The towels don't have to be a specific size or color, but it does take some patience to wait for a pile of towels to be completed. [url]
• To discover more interesting robotics-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

The clause-by-clause review of Bill C-11, Canada's new copyright legislation, has concluded. Michael Geist tirelessly live-Tweeted the committee discussion, and as it progressed one thing became clear: Canada is almost certainly going to be saddled with a DMCA-style anti-circumvention law (more commonly referred to here as the "digital locks" law) that would make it illegal to bypass copy protections, even for the purposes of making a completely legal, non-infringing copy such as a personal backup of a DVD. Both the Liberals and the NDP brought forth amendments that would have fixed this by clarifying that bypassing copy protection is only illegal if it is for the purposes of making an illegal copy, but the ruling Conservative government was unwilling to budge. They also defeated an amendment that would have fixed the digital locks exception for people with disabilities—an exception which exists, but is largely toothless as currently written.

The news isn't all bad—none of the more extreme changes lobbied for by the entertainment industry were accepted, and most were not even seriously considered:

The government's decision to leave the digital lock rules untouched is unsurprising but still a disappointment, since both opposition parties were clearly persuaded that such a change was needed. On the other hand, given the heavy lobbying by many groups demanding changes to fair dealing (all parties rejected calls for a new fair dealing test or limitations on education), user generated content (there were multiple calls for its removal), statutory damages (there were calls for unlimited damages), and Internet liability (there were calls for notice-and-takedown and subscriber disclosure requirements), the government's proposed amendments [were] relatively modest.

The bill is now on its way to the House of Commons for its third reading, with some of its best elements—expanded fair dealing, no notice-and-takedown—intact, along with its worst element: the digital locks provision. Though C-11 is not law yet, it's passage is all-but-guaranteed at this point, which means we may one day see a situation in this country like that in the US, where people have faced jail time for modding an Xbox (yes, that charge was later dropped, but a citizen never should have been dragged before a judge for modifying hardware they legally own in the first place). It's still important to make your voice heard: if you want to let the government know that you don't support the indirect criminalization of legal copying accomplished by the digital locks provision, today is the day to contact your Member of Parliament. Although the Conservative majority is putting its weight behind the bill, we learned with SOPA/PIPA that copyright and internet freedoms are not a partisan issue. It may be too late to stop the digital locks provision, but it would be good to see some serious debate in the House, and send a message that Canadians recognize what has happened: the Conservative government has used its majority to foist a bad law upon us at the behest of industry powers and U.S. diplomats, over the objections and best interests of the citizens it is supposed to serve.

Dave Gorman, a Flickr user whose photo was taken down by a bogus DMCA notice, is fighting with Flickr to get it to, if nothing else, change the way it handles takedown requests. Gorman's photo, along with all of its comments and views, was deleted based on the "strength" of a scatter-shot DMCA issued by Degban, supposedly on behalf of porn producers Wasteland.

Obviously, his photo was not property of Wasteland. While Degban's CEO continues to claim this is a result of having its software hacked (despite the fact that the alleged hacking occured 12 days after the takedown notice was issued), Flickr has basically responded with... nothing.

Flickr's system for handling DMCA requests is even more screwed up than the DMCA process itself, if that can be believed. Gorman, artist that he is, has crafted a handy flowchart illustrating just how screwed Flickr users are if they should find themselves on the receiving end of a DMCA takedown.



On the upside, if you are a US resident and the takedown is issued by a US-based company, all that will happen is the image itself will be removed and replaced with a message stating "THIS IMAGE HAS BEEN REMOVED DUE TO A CLAIM OF COPYRIGHT INFRINGEMENT." Once everything is sorted out, it's simply a matter of restoring the photo if the DMCA notice is challenged successfully. (Taken from Flickr's Help Forum.)

What does this mean?

-- US members will still receive a warning that contains the name of the complainant and now will include a link to the image where the content has been removed.

-- The original image will be stored by Flickr. Should we receive notice from the US Copyright Team to replace the original, we will be able to do so. *** Please note will be able to do so as long as the original photo.gne page is left in place. If a member chooses to delete the photo.gne page we'll assume that they're not interested further activity like restitution of the image. ***

-- The existing title, description, comments, tags, notes, etc. will be available. The image can still be added to sets and groups.

-- Blog This, Edit in Picnic, "replace this image" and the EXIF info will be disabled.

-- The image will be flagged NIPSA and as such will not return in search results nor be available in the API.


For the rest of the world

-- The existing process of photo removal will continue. We're going to begin reaching out to the other regional copyright teams to see if they would like us to enact this feature where they are. Given that the counter-claim process is unique to the DMCA, we'll need to work out how image restoration will work elsewhere.

Unfortunately, should you be a resident of any other country in the world, Flickr will continue to simply delete your photo and everything attached to it. Even if, as in Gorman's case, the DMCA takedown notice is successfully challenged, it is left up to the user to repost the image on their own. All attached comments are permanently gone, along with the view count, and anyone linking to that particular photo is left with a useless dead link.

Now, according to the terms of the DMCA, the service provider is supposed to replace the content it removed. Flickr is obviously not interested in doing that. It's not as if Flickr doesn't have the technology. Gorman pointed out on Twitter that Flickr has restored deleted accounts in the past, which means that a permanent backup of Gorman's entire page probably still resides on its servers. It even repaired external links for the user. But for some reason, Flickr is simply unwilling to fix this for Gorman or change how it handles foreign accounts.

Flickr did not respond to Gorman's emails. Yahoo!, which owns Flickr, did, but its "answers" were completely useless.

I have to communicate with flickr and Yahoo! separately. Flickr have yet to reply to a single email about it. Yahoo do reply. Eventually. It takes them 5 days. And then it's the kind of reply that doesn't actually reply to anything. Imagine typing a reply to someone who's asked 4 questions, knowing that you've not attempted to address 3 of them, and still ending it with the words, "we trust this answers your concerns"? It doesn't. And they know it doesn't. That's Yahoo.

Gorman did receive a phone call from Flickr's senior community manager, but found that conversation to be nearly as useless as Yahoo!'s incomplete answers:

When I asked Zack if he could tell me why the rules were different for non-US based customers he said that he couldn't tell me. I asked if he knew and couldn't tell me because he wasn't allowed to or if he couldn't tell me because he simply didn't know. He replied that he couldn't tell me that either. When I asked if he thought they could replace the photo he said he didn't know. I told him that I knew they had managed to replace a whole account that had been deleted recently, and he told me that replacing an account was not the same as replacing a page. I asked him why he thought they didn't have to comply with the terms of the DMCA and replace the photo and he told me he wasn't able to answer questions like that.

I don't believe Zack's employers are giving him the tools required to do his job.
"If it's possible to replace the photo, will you do so?"
"Ack... I ... um... that's tricky... I can't say yes to that."
"But the only reason you wouldn't say yes to that, is if you can imagine a situation in which you discover it is possible but still don't do it?"
"Yes."
"And can you imagine that happening? Can you imagine one of your engineers saying that he can replace the photo... and you deciding not to do it?"
"Well... no."
"So promise me that if it's possible to replace it, you will replace it."
"I don't think I can do that."

Following this disheartening phone call came Flickr's official response to Gorman's situation, and it appears that the photo service is not going to deal with this at all.

"After reviewing your recent correspondence, we have no further comments to make regarding this case, and consider it closed."

That's no way to run a social service on the internet. Your users are from all over the world, and while it is extremely difficult to play by the hydra-esque rules of a multitude of rightsholders, there are a million better ways to service the needs of your customers—and Gorman is indeed a paying customer with a Pro account. If the comment thread on Gorman's picture is any indication, Flickr is going to start leaking users simply because it refuses to budge an inch on its so-called DMCA response policy.

Last month we suggested that copyright holders stop freaking out over Pinterest. At the time, we noted there were two areas that people were panicking about: one was the terms of service and the other was whether or not Pinterest itself was violating the copyrights of images that are "pinned" by its users. We focused on the latter issue (and pointed out it was stupid) and breezed past the first issue by noting that the terms of service issue was silly, because the terms are mostly boilerplate language used by pretty much every online site.

Unfortunately, it appears that not everyone reads Techdirt (tragic, that) and the freakout has continued -- and it only seems to have grown over the past few weeks. We keep seeing more and more articles giving the terms of service issue attention. So many of the articles point back at a silly blog post by a lawyer describing how she "tearfully deleted" her Pinterest boards after reading the terms of service. For whatever reason, this story went viral, despite the fact that even the way she wrote it suggests this is one of her first forays into internet terms of service and copyright issues. She also notes in her post that "you have no right to reproduce this article or any portion thereof" which is a copyfraud statement, overclaiming rights. Yes, I do have the right to produce "portions thereof" in situations where it's fair use, and I will do so -- such as here, when I am commenting on her article.

Either way, her "tearful" post covers ground that's been covered many times before. This same issue comes up every so often when people read online terms of service for the first time. In the past we've seen similar freakouts about Twitpic, Google Plus and other sites as well.

Thankfully Nancy Sims, the copyright librarian at the University of Minnesota Libraries, puts the smack down on the FUD that people are kicking up concerning Pinterest's indemnification, right to share and copyright license clauses. She notes that these elements are found in just about every user-generated content site's terms of service, and goes through the details of Tumblr, YouTube, Facebook and even her own University's terms of service:

Tumblr

Indemnity: "Subscriber will indemnify and hold Tumblr, its directors, officers and employees, harmless, including costs and attorneys' fees, from any claim or demand..."
Right to share: "Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party [...] (c) infringes any intellectual property right of another or the privacy or publicity rights of another..."
License of copyrights: "...hereby grants and agrees to grant Tumblr a non-exclusive, worldwide, royalty-free, transferable right and license (with the right to sublicense), to use, copy, cache, publish, display, distribute, modify, create derivative works..."

Full Tumblr Terms of Service

YouTube

Indemnity: "...you agree to defend, indemnify and hold harmless YouTube, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees)..."
Right to share: "You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.." AND "You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein."
License of copyrights: "you license to YouTube all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service" AND
"you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content..."

(Not to mention points 9 and 10, in all their caps-locked glory.)

Full YouTube Terms of Service

Facebook

Indemnity: "If anyone brings a claim against us related to your actions, content or information on Facebook, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim."
Right to share: "You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law."
License of copyrights: "For content that is covered by intellectual property rights, like photos and videos (IP content) [...] you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."

(Props on their use of human-readable language!) 

Full Facebook Terms of Service 

And finally, from a user agreement for uploading content onto a server the University of Minnesota Libraries hosts! (Yes, I think these are reasonable terms of use, because I was involved in drafting them! (Although I'd still simplify the language a little.))

Indemnification (sort of): "I agree that I am solely responsible for the Content and for any consequences of uploading it to the [Server] and making it publicly available..."
Right to share: "I am the sole creator and the owner of the copyrights and all other rights in the Content; or without obtaining another's permission, I have the right to deposit the Content in the [Server]" AND "The Content does not infringe the copyrights or other intellectual property rights of another, nor does the Content violate any laws or another's rights of privacy or publicity. The Content is solely my original creation or if not, those portions that are not my creation are used with the copyright holder's express permission or as permitted by law."
License of copyrights: "I grant [...] the following non-exclusive, perpetual, royalty-free, world-wide rights and licenses: to access, reproduce, distribute and publicly display the Content, in whole or in part, to secure, preserve and make it publicly available, and to make derivative works based upon the Content in order to migrate the Content to other media or formats, or to preserve its public access."

This kind of stuff is standard. Hell, even we've got some similar terms over at the Insight Community (and we had to fight with our lawyers to push back on some of them). All of these terms are pretty standard. They're basically meant to prevent the company from getting sued if you abuse the service, which is kind of silly since the companies are mostly protected by safe harbors anyway, and no tech startup would ever actually use one of these indemnity clauses against an ordinary user because they'd then lose every single other user they have.

I recommend people read the rest of Sims' article about all of this, as she notes that there's a tremendous amount of FUD making the rounds concerning Pinterest, which seems to be creating an unnecessary chilling effect against using the site.

We've noted before that with the complete takedown of Megaupload by the US government, tons of people who had perfectly legitimate files hosted at the site lost those files and all the inbound links to them. While the government won't do a permanent restore, I'm sure, apparently negotiations are ongoing to let people go in and "rescue" their data. It sounds like, as part of that process, the Megaupload crew has been reviewing details of their users, and they note that many of their users appear to be in the federal government itself. That's really not a surprise, since there were plenty of legal uses for Megaupload (as well as infringing uses). But it does suggest just how widespread usage of the site was. It will certainly be interesting, however, to see if data on government users comes out as evidence in any possible trial.

We've writen about Valve's approach to the market many times before. The company believes strongly that "piracy" is a service problem not a legal problem. It knows that it can easily compete with piracy by offering a better service, something that it regularly succeeds in doing. However, On The Media calls our attention to an absolutely fantastic case study found on Gamasutra, not (directly) about how Valve competed with infringement, but how it turned Team Fortress 2 from a fee-based game to a free-to-play game and increased revenue twelve-fold.

Of course, over the years, we've covered other online games going from fee-based to free and making more money for it, inspiring more and more other games to do the same. But what's most interesting here is the level of detail. In the case of TF2, it's clearly not about "give it away and pray," but a careful strategy that really does seem focused on connecting with fans and being awesome while giving fans a good reason to buy.

For example, the team at Valve connected with fans in a really cool way. It put out "teaser trailers" with product updates, and then scoured feedback to come up with ideas that fans might like in the game:

[Valve's Joe] Ludwig showed TF2's Sniper-focused update as an example. Each content update started with a teaser trailer that hinted at several possible new items or features, and Valve developers would monitor the community reaction in the forums to determine which aspects caught the players' attention. "We found people in the forums talking about how cool it would be if the Pyro could light the sniper's arrows on fire. To be honest, we hadn't considered it, but we were able to implement it by the time the update shipped," Ludwig said.

In another instance, players picked up on a blueprint displayed in passing within the teaser trailer for the Engineer-focused update of a mechanical hand item. Ludwig explained that "[The players] didn't realize it, but they were indirectly voting on the content of the update. When the update shipped, it included that robot hand."

Separately, Valve was very careful and deliberate about how they "went free" and moved to offering in-game purchases. Recognizing that there's an unfortunate incentive to then make in-game purchases make the actual gameplay worse (such as by making it "pay to win") the team made very strategic choices about how they would have in-game purchases, such that they were never required to play the game how you wanted:

Once Valve rolled out the in-game item system, it needed to get the players used to the idea of paying for them. "This wasn't a change we made lightly, but it was something we had to do to get our game into the free-to-play business model," Ludwig said.

"They had never paid for an item in TF2 at any point in the past, and we weren't sure how willing they'd be to pay now."

Ludwig outlined the players' possible objections to the item store, the first of which was TF2 turning into a "pay-to-win" game:

"We dealt with the pay to win concern in a few ways. The first was to make items involve tradeoffs, so there's no clear winner between two items. But by far the biggest thing we did to change this perception was to make all the items that change the game free. You can get them from item drops, or from the crafting system. It might be a little easier to buy them in the store, but you can get them without paying. The only items we sell exclusive to the store are cosmetic or items optional to gameplay."

In other words, this was entirely designed around the idea of giving people a good reason to buy rather than a negative reason that makes them feel forced to buy. Too many companies (hello most newspaper paywalls!) seem to think that "forcing" people to pay is a "reason to buy." It's not. It may get some people to pay, but it pisses off lots of people. Valve carefully structured its business model here to make people want to buy.

But the real key here is just how much this effort increased revenue. Many people have assumed that taking a fee-based game and going free-to-play is really an "end of life" strategy to try to squeeze the last remnants of revenue out of a game, but Valve is showing it's not that at all. It was a strategic choice to maximize revenue. This is the same point we've made for well over a decade in talking about how to use free as a part of a business model to increase your market. When properly applied (which is not just "give it away and pray"), free becomes a revenue multiplier, and Valve's example of TF2 is really a perfect case study of how to do it right.

In January, a judge said that the UK could extradite student Richard O'Dwyer to the US to face criminal copyright infringement charges for the "crime" of linking to streaming videos hosted elsewhere -- something that had already been found legal in the UK multiple times. This is pretty important, because for it to be criminal infringement, it has to be willful, and if sites that were nearly identical to O'Dwyer's TVShack.net were found legal in his home country, where he lived and where he operated the site, it's difficult to see how there's anything willful at all.

Furthermore, since he's only linking there isn't direct infringement, only the possibility of secondary infringement. Now, there are aiding and abetting laws, but it would have to be aiding and abetting of criminal copyright infringement and that would require the users of TVShack to be guilty of criminal infringement -- meaning that they were profiting from willful infringement. And that doesn't seem likely either. There are so many holes in the case it's difficult to understand why ICE and DHS are ruining the life of a UK student with no clear legal basis.

Either way, as the UK government continues to kowtow to the US entertainment industry, the Secretary of State has taken the court's initial okay and approved the extradition. This is really damning for the UK government. Given the growing concerns about the overreach of the entertainment industry to take away basic freedoms, sending Richard O'Dwyer across the Atlantic on bogus charges just so the MPAA can stick his head on a pike somewhere isn't going to go over very well.

If there's a common trait of the various rightsholders groups around the world, it is their sense of entitlement. If anyone does anything with a work under copyright, they feel they have a right to regulate it and be paid for it. A good example is the claim by the Authors Guild that owners of Kindles weren't allowed to use an experimental text-to-speech feature, since that would infringe on the entirely made up concept of "audio rights" -- and hence, presumably, require further payment.

On the other side of the Atlantic, the Belgian rights group SABAM has already established itself as a copyright hardliner with its attempts to force ISPs and social networks to set up monitoring and filtering systems to combat copyright infringement. Its latest demand shows the same apparent indifference to the negative consequences of its action:

Twice a month, the library in [the Belgian town of] Dilbeek welcomes about 10 children to introduce them to the magical world of books. A representative of the library in question is quoted in the De Morgen report as saying there’s no budget to compensate people who read to the kids, relying instead on volunteers (bless them).

SABAM got in touch with the library to let them know that it thinks this is unacceptable, however, and that they should start coughing up cash for reading stories from copyrighted books out loud. The library rep calculates that it could cost them roughly 250 euros (which is about $328) per year to pay SABAM for the right to -- again -- READ BOOKS TO KIDS.

It's worth emphasizing that these are volunteers, so this is in no sense a professional "performance". It's just public-spirited people generously doing exactly what parents do when reading to their own children. Indeed, it's not hard to imagine SABAM trying to claim money for that too, one day.

Of course, if SABAM refuses to back down here, the likely outcome will be that many libraries throughout Belgium will cancel these reading sessions for children. As a result, fewer young people will be introduced to the world of reading, fewer of them will grow up to be readers, and writers will have fewer fans and less money. In other words, SABAM's attempt to extend its reach to new areas will harm not only children -- about whom it is obviously indifferent -- but also the very people it purports to serve.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Every time you think we're done seeing totally ridiculous arguments about file sharing, the old really silly ones pop back up. Musician Logan Lynn has written a pretty silly rant on Huffington Post entitled Guess What? Stealing Is Still Wrong. And, indeed, it is. But nowhere in the article does he actually discuss stealing. He discusses infringement. In silly black and white terms that assumes that every single download is absolutely a lost sale, that no one who downloads ever gives him any money and that his biggest fans are criminals. Crazy stuff.

The music industry has been ravaged by the digital age, the primary culprit being illegal file sharing on websites with practically zero regulation. The past two decades have been something of a Wild West on ye olde Interwebs. No rules, no accountability. By the time the music industry reacted to what was happening, it was too late.

Almost nothing in this paragraph is true. It's a nice fiction that the RIAA/MPAA have been telling the world, but it's simply wrong. The music industry? Growing. Zero regulation? Try 15 anti-piracy laws passed in the last 30 years. No accountability? Should I list out the tens of thousands of lawsuits that copyright holders have filed against those who were file sharing? If you can't get the basics right, it's kinda difficult to take your complaints seriously.

While performing at and attending the CMJ music conference in New York City in fall 2009, I learned that at that time, 91 percent of all new music was downloaded illegally over the Internet instead of purchased. Since then, things have only gotten worse. Record stores are closing, music rags are shutting down, and the glory days of rock and roll are over...

Actually the popular stat at the time was 95%, and it was bogus. And, there's a lot of evidence that the number has actually been dropping, not rising. Record stores closed because they sold CDs which are increasingly obsolete. Music rags are shutting down because music blogs are running rings around them online. The glory days of rock and roll were never quite as glorious as you think...

which I actually don't give even half a shit about. In fact, I'm glad the music industry got destroyed. It was fucked-up anyway, so who cares? Poor (filthy rich) record executives making hundreds of millions of dollars on the backs of artists. Boo-hoo. I'm crying for you. Really. I am.

It sure seems like you're complaining.

What pisses me off is having over 91 percent of my personal intellectual property stolen, often before it even has the chance to be finished and released to the world. As a professional musician, a lot of time, hard work, and money goes into making a record. As an independent musician, that money comes directly out of my own pocket. Being a starving artist honestly isn't all it's cracked up to be anymore, people, and getting ripped-off has always sucked.

You didn't have 91% of your intellectual property "stolen." First of all, the number -- whatever it is -- was a general number across the entire global market. That doesn't mean it's the same for all artists. This is basic stats. Second, if tons of people are downloading your works it's because they like your music and that's a good thing and then there are all sorts of ways to get paid.

Even when I was on a major label, I got totally screwed because so much money was put into the recording, printing, PR, and distribution side that trying to recoup from consumer sales based on that 9 percent of people obtaining the album legally was almost impossible. Everyone had the record months before it came out anyway, because of file sharing. The week before it was released, one site that posted download counts on files reported over 18,000 illegal downloads of my record before my lawyer had them take the file down. That alone comes out to $180,000 -- for my songs -- of which I saw $0. My record deal was a 90/10 split at the time, but guess what 90 percent of $0 is? You guessed it! Still $0.

First of all, the "numbers" posted on those sites are usually made up, not real. Second, assuming that every one of those 18,000 people would have paid $10 for the album is simply delusional. Some of them might have. Others might have downloaded first and then decided to buy later. Others might have downloaded, and then told 20 of their closest friends how awesome you are and told them to go buy your album. Or go see a live show. The assumption that this is $180,000 gone is simple fantasy.

Think of it this way: if you were a painter and were putting the finishing touches on your pieces for a show, wouldn't you be upset if someone broke into your studio, took your unfinished paintings, and hung them in their public gallery without your permission? Let's say you had some finished work hanging for sale in your own space, but every time someone saw something they liked, they removed it from the wall, tucked it under their arm, and left without paying for it? What if 100 people came to your show opening and 91 of them decided to steal one of your paintings off the wall? Then what? Paint faster to keep up with the demand?

Think of this way: if you were a painter and were putting the finishing touches on your pieces for a show, wouldn't it be awesome to find out that thousands of people were so eager to find out about your works that they were clamoring for copies online? Let's say you had some finished work hanging for sale in your own space, but every time someone saw something they liked, they made a copy and told a bunch of others about it -- and then paid you to do more paintings? What if 100 people came to your show and 91 of them liked you so much they decided to make copies and find out more about you and how they could support your future work? Then what? Things would be pretty good, right?

I know this is the part where all the kids and hipsters start to roll their eyes and say things like, "You just don't get it, grandpa," and, "It's freedom of speech," but I don't actually believe that stealing my intellectual property is your constitutional right. Sorry, everybody.

If you're going to mock those who are arguing against you, it helps to actually understand their argument. The free speech argument is not that infringement is free speech. It's that ridiculous laws like SOPA create massive collateral damage that do serious harm to free speech.

Next time you hear a song you like, I encourage you to purchase it instead of stealing it. Supporting independent musicians just feels better than robbing us of our livelihood. I promise! Hell, you could even go to your favorite local record store, buy a CD, and look at the cover art for hours. You know, for old times' sake.

Next time you have a fan come to your site, I encourage you to offer them proactive reasons to buy instead of just demanding that they hand over cash. Treating your fans as fans and giving them lots of ways to support you just feels better than treating your biggest fans as criminals. I promise! Hell, you could even offer up cool products and bundles, or try a name your own price offering, or any number of other cool new ideas. You know, for modern times' sake.

Already an also-ran laughingstock in the internet space, on Monday Yahoo decided to shoot itself in the remaining foot by following through on its silly threat to sue Facebook for patent infringement. That lawsuit is now official, and apparently even folks within the company are not at all pleased with the decision. As Kara Swisher has been reporting (in much more detail than most folks covering this story), apparently this effort was driven almost entirely by new CEO Scott Thompson with help from legal boss Michael Callahan. Almost everyone else was kept out of the loop. Much of the decision to sue was apparently also driven by an "activist" board member looking to goose the stock.

If that's the goal, it seems to have failed. The immediate reaction on Wall Street to the news was a collective "meh," with the stock dropping a bit after close.

Even more ridiculous are the insane hubris and delusions of grandeur found in the lawsuit and the statements about the lawsuit, starting with this whopper:

Facebook's entire social network model, which allows users to create profiles for and connect with, among other things, persons and businesses, is based on Yahoo!'s patented social networking technology.

Yeah, you see, if that were actually even close to true, then people would be spending all their days on Yahoo!. But they're not. They're spending them on Facebook, because Facebook innovated and built a better system while Yahoo languished and did nothing of consequence.

For much of the technology upon which Facebook is based, Yahoo! got there first and was therefore granted patents by the United States Patent Office to protect those innovations. Yahoo!'s patents relate to cutting edge innovations in online products, including in messaging, news feed generation, social commenting, advertising display, preventing click fraud, and privacy controls. These innovations dramatically improve user experience, privacy, and security and enhance the ability to connect with users.

Again, if that's the case, why does Yahoo have a dreadful user experience that has been causing users to leave in droves for years, and why has it so totally failed to connect with users?

Yahoo! is harmed by Facebook's use of Yahoo!'s patented technologies in a way that cannot be compensated for by payment of a royalty alone.

Right, because no one cares about Yahoo any more and just tossing a bunch of money Yahoo's way won't bring back all the users they've lost to Facebook. Why? It's got absolutely nothing to do with Yahoo's patents, and has a hell of a lot to do with developing a product users actually want -- which is entirely unrelated to patents.

If this plan is actually based on some clueless exec's idea of how to boost Yahoo's share price, not only is that sadly mistaken, but it also kills off the only chance Yahoo might have had to boost its sale price going forward. Stupid, anti-innovation patent lawsuits against better, faster, more innovative competitors might seem like a short-term strategy that makes sense, but in Silicon Valley, it's the death knell of any company. It's when the last of the smart engineers -- the people you actually need if you really want to innovate -- know that it's time to brush up the resume and take jobs at more innovative companies. It's the last throes of any good Silicon Valley company.

And pretty much everyone realizes it.

As for the patents in question, here's the list:

• US Patents 6,907,566, 7,100,111 and 7,373,599: Method and system for optimum placement of advertisements on a webpage
• US Patent 7,668,861: System and method to determine the validity of an interaction on a network
• US Patent 7,269,590: Method and system for customizing views of information associated with a social network user
• US Patent 7,599,935: Control for enabling a user to preview display of selected content based on another user’s authorization level
• US Patent 7,454,509: Online playback system with community bias
• US Patent 5,983,227: Dynamic Page Generator
• US Patent 7,747,648: World modeling using a relationship network with communication channels to entities
• US Patent 7,406,501: System and method for instant messaging using an e-mail protocol

Last week, Brazil's citizens were in an uproar about the national performance rights organization (ECAD) attempting to charge a non-profit blog over $200 a month for embedding Youtube and Vimeo videos, and implicitly threatening to similarly bill other blogs. ECAD claimed that not only was this allowed by Brazil's currently-standing laws but that, despite collecting hundreds of thousands of dollars from Youtube itself every year, this new set of fees would not be a double-dip.

How quickly things change, especially for entities who find themselves staring down an angry internet. At first, ECAD seemed disturbingly untroubled by the uproar, including the memeification of its intention to stretch the definition of "public performance" to include all audible sound. But it suddenly changed its prohibitively expensive tune when hundreds of thousands of dollars were at stake.

None other than Google Brazil itself issued a blog post stating that ECAD's existing agreement with Youtube did not allow the agency to collect fees from bloggers, pointing out the obvious to ECAD's wilfully obtuse representatives:

These sites don't host or transmit any content when they associate a YouTube video to their site, and as such, the fact of embedding videos from YouTube can't be treated as a ‘retransmission'. As these sites aren't performing any music, ECAD can't, within the law, collect any payment from these.

Having been smacked down by its main benefactor, ECAD issued a statement of its own, claiming the whole thing was just an "error" and that it had no intention of setting up tollbooths on every website with embedded video:

1- Ecad has never had the intention to curtail the freedom on the internet, known to be a space devoted to information, dissemination of music and other creative works, and propagation of ideas. The institution also lacks a copyright billing strategy geared to embedded videos. Royalties collections for webcasting have been under re-evaluation since February 29th, and the case reported in recent days took place before then. Nevertheless, it resulted from an operational error of interpretation, which represents an isolated fact in this segment. (...)

2- Two years ago, Ecad and Google signed a letter of intent that guides the relationship between both organizations. The document details thatEcad can collect copyright fees for music coming from embedded videos, as long as it gives advance notice to Google/YouTube. As Ecad did not send such a notification, it becomes clear that this is not its goal. If it were the case, it would have sent the notification the letter of intent requires. (...)

Note that ECAD has left itself a bit of an opening for pursuing these fees in the future. Supposedly it can still go after blogs but only if it informs Google/Youtube of its intention to do so. It seems the only error it feels it made was getting caught. Everything else was simply a clerical screw-up and if all ducks had been properly ordered, it would have been free to bill websites for linking to Youtube.

As it stands now, ECAD has backed completely away from this plan. But, once the furor dies down and recedes into the past, I wouldn't be surprised to see this sort of tactic deployed again, if not by ECAD, than certainly by another "aspirational" performance rights organization.

(Hat tip to Techdirt's own Glyn Moody and his amazing Twitter feed. He's asked you all very nicely to follow him and this post is an example of why you should. So, follow this link to do exactly that..)

 

Now that the EU's ratification of ACTA has departed from the original script of everyone just waving it through, the European Commission is clearly trying to come up with Plan B. Some insights into its thinking can be gained from the minutes (pdf) of a recent Commission meeting, pointed out to us by André Rebentisch.

Here's what the President of the European Commission, José Manuel Barroso, said about ACTA:

The President introduced the topic, commenting on the intensity and scale of the public debate and the organised campaign against the Anti-Counterfeiting Trade Agreement (ACTA). There were those in particular who felt that the agreement would lead specifically to an unwarranted restriction on freedom of expression and democracy on the Internet, and would distort the reasonable balance between intellectual property rights and other fundamental rights.

He therefore felt that the Court of Justice of the European Union should be asked to confirm the Commission’s position in this matter, namely that ACTA was consistent and compatible with the Treaties and with the Charter of Fundamental Rights of the European Union. He suggested that that day’s discussion should consider that point, but also the question of when would be an appropriate time to refer the matter to the Court, and the possibility of consulting Parliament and the Council with a view to adopting a common approach in this matter.

The suggestion that the anger over ACTA was somehow part of an "organised campaign" looks like a continuing failure to grasp that the protests were about all Internet users across Europe coming together to defend their online community. As for the "common approach" with the European Parliament, it's easy to see why the European Commission would want this: it would allow the referral of ACTA to the European Court of Justice to be framed in such a way as to increase the likelihood of a positive response from the court. It will be interesting to see whether the European Parliament acquiesces in this, or continues to take a hard line on the need for more searching questions to be asked.

Barroso's comments were followed by some observations from Karel De Gucht, the European Commissioner with direct responsibility for ACTA, who made some revealing remarks:

He noted that opposition had increased in the run-up to January’s planned vote in the US Congress on two legislative initiatives -- the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) -- aimed at increasing the protection of intellectual property rights on the Internet; in the end the vote had not been held, following a hostile campaign by social networks and the loss of White House support.

It's interesting to see De Gucht linking the growing hostility to ACTA with the storm generated by SOPA/PIPA, and giving the credit for stopping those US bills to a "hostile campaign" waged by social networks. You can tell this really worries him, because he says something similar about social networks and ACTA immediately afterwards:

Despite the signature of ACTA in January by the Commission, the Union Presidency and twenty-one other Member States, the intense media campaign which was unleashed in Europe, instigated largely by the social networks, had since led a number of Union Heads of State or Government to decide to delay signature or ratification of the agreement by their national parliaments. He added that the campaign had also had a considerable influence on Members of the European Parliament and, following recent contacts with various political groups, he now felt it would be difficult to muster a majority in favour of ACTA within the EP.

What's extraordinary is that no less than three other commissioners also spoke at the meeting about the importance of social networks, and the need to grapple with them.

Viviane Reding:

She concluded by highlighting the rising influence of social networks on the Internet and the need for the Commission to take account of this in its communication policy and in dealing with various dossiers. Instructions had already been given to the communication units in the Directorates-General.

Neelie Kroes:

She concluded by stressing the need for appropriate communication on the agreement, without waiting for the Court’s opinion, targeted particularly at the various stakeholders involved and social networks.

Michel Barnier:

was also of the opinion that the key role of social networks in public debate in Europe forced the Commission to think carefully about adapting some of its means of communication and that Members should discuss the matter as soon possible.

What emerges very clearly from this is that the most senior politicians in the European Union are completely nonplussed by the power of social networks to mobilize not just Net activists but ordinary Internet users, and are struggling to deal with it. I think we can expect to see attempts to neutralize that new force by "reaching out" to social networks in a variety of ways in the coming months. One area where that will clearly happen is for the forthcoming update on the EU's "IPR Enforcement Directive", generally known as IPRED. The Commission meeting referred to it explicitly:

As regards the planned revision of the 2004 Directive on enforcement of intellectual property rights, the Commission needed to adopt a prudent and balanced approach to this politically delicate exercise, and take account of existing texts on the protection of data and privacy in the areas of telecoms and fundamental rights.

The EC knows that it must be very careful here, because the measures already mooted for the next version of IPRED are very close to some of SOPA's bad ideas -- for example, turning ISPs into copyright cops. The European Commission has observed what happened in the US, and is clearly very concerned that the IPRED update will meet the same opposition from those mysterious, uncontrollable social networks as SOPA/PIPA did and ACTA is now doing.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

In one of the biggest letdowns in trademark history, Bethesda and Mojang have finally ended the dispute over the trademark status of the name "Scrolls". No massive court battle. No Quake 3 match. Just a simple settlement. In a very short post on the Mojang blog, Carl Manneh answers the two big questions about the dispute:

To answer the big question – yes Scrolls is still going to be called Scrolls.

To answer the second question – we aren't going to keep the trade mark.

So that's that. Which is probably just as well. After the initial ruling that gamers would most likely not be confused over the similar names, Bethesda's success in court was looking bleak. This was probably the best solution for all parties involved. Bethesda wins by not losing the appearance of control over the word "Scrolls", and not ending up like Tim Langdell. Mojang gets to continue calling its this game "Scrolls", while ceding the right to name any subsequent game "Scrolls". The only downside is that we lose the opportunity to set legal precedent on the ability to control individual words within a trademarked phrase.