When one of the many judges smacking down Righthaven ordered that the company's intellectual property be auctioned off, we wondered just what that would actually include, since it's not clear whether Righthaven really owns any copyrights, or any intellectual property beyond its own trademarks. The righthaven.com domain name was the first item sold, and now Lara Pearson points us to the news that another selection of Righthaven IP is now up for sale on eBay.

The list itself is pretty amusing, apparently comprised of two porn movies and a selection of newspaper articles about sports (presumably from the Las Vegas Review Journal). Of course, as we noted originally, even though these copyrights are registered in Righthaven's name, it's likely that they aren't actually valid or enforceable, since the whole crux of the Righthaven saga is that many of the rights transfers to the company were shams, so the original copyright holders still control the works. Buying one of these registrations at auction is a way to own a piece of copyright trolling history, but it's probably not going to make you the legal owner of Ebony Amateurs Vegas Edition #10.

Also up for auction is the trademark on the name Righthaven itself. When righthaven.com sold, it was turned into a service offering "hosting with a backbone" in a somewhat ironic use of the domain. I suspect we'll see something similar happen with the Righthaven trademark, since the company's dismal reputation and long list of legal failures makes it a pretty unappealing brand for any purpose other than parody or satire.

For years, researchers have been looking at spider silk's properties to try to re-create it into supermaterials tougher than Kevlar or steel. We're still learning a lot about how spider silk is made and what its structures are, so it'll probably be a few more decades before everyone is wearing clothes made from spider silk. In the meantime, here are a few interesting articles on spider silk.

• Spider webs are amazing tough and resistant to damage. Webs can retain their original strength even if 10% of the web's spokes are cut. [url]
• The most stretchable spider silk ever tested belongs to the cave spider, Meta menardi. The silk strands from the stalks of this spider's egg sacs can stretch up to 7.5 times their original length. [url]
• Spiders don't actually produce much silk in their lifetimes, but silkworms are routinely used to produce commercial amounts of silk. So how about genetically modifying some silkworms to produce spider silk? Scientists are already trying to do this, but it's not so easy. [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

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

One thing that we've seen even among authors who totally "get" that ebook pricing is out of control, is that if they have deals with traditional publishers, those publishers are never interested in offering low ebook prices, even if there's growing evidence on the elasticity of ebooks, showing that the maximizing price is often less than $5. Joe Konrath's experiments showed that lowering your price significantly can create a huge uptick in net revenue. But the big publishing houses always talk about overhead and the costs of publishing a book... even to the point of claiming that $10 is too cheap.

That's meant that authors like Paulo Coelho, one of the best selling authors of all time, had to pirate his own book, by posting it online and pretending to be someone else. Even after releasing such works for free was shown to increase sales, his publisher resisted supporting these efforts.

However, perhaps the times are changing. Somehow, Coelho has convinced the US publisher of his first 11 books, Harper Collins (his most recent book came out with a different publisher) to offer ebook versions of 10 of his 11 books with them for $0.99. Now, this only applies to US and Canada (and right now it's only the Kindle, though other platforms should be supported soon). It also appears this is a limited time offering. Also, perhaps most importantly, Harper Collins chose not to include Coelho's most famous book of all, The Alchemist. So it's not a complete recognition of the way things are heading, but it is impressive. While Coelho is on the record repeatedly telling people to download unauthorized copies of his work for free, he certainly sees how this can help him "compete" with free:

This is a crucial decision for me. For years I have been advocating that free content is not a threat to the book business. In lowering the price of a book and equaling it to the price of a song in iTunes, the reader will be encouraged to pay for it, instead of downloading it for free.

[....]

It is my (open) secret wish that pricing for ebooks will follow this trend.

I think many folks would agree. It will certainly be interesting to see how well this does, though it's (unfortunately) probably unlikely that Harper Collins will ever reveal the results of its experiment. Hopefully it realizes that many buyers are invested in the experiment as well and it's willing to share the results. Alternatively, if Coelho really wants to get others to follow this trend, if any data he has would be useful to getting that message across, perhaps he'll publish it himself (or, hell, send it to us to publish!)

We've been following the legal fight between SAS and World Programming Limited (WPL) for quite some time. If you don't recall, WPL essentially recreated some functionality of SAS's offering, not by copying the software itself or the source code, but basically by reading SAS's manuals about what its software did. The UK's High Court said this did not infringe, and the case got kicked up to the European Court of Justice (which has been pretty good on copyright issues lately). In the fall, the EU Advocates General recommended that the court make clear that software functionality is not subject to copyright, and it appears that's exactly what the court has now done.

In a relatively short ruling, the court points out that, while software itself may be covered by copyright, "the ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright." Basically, the EUCJ properly recognized the difference between protecting the idea (not copyrightable) and the expression (copyrightable). The court points out that actual code can still be covered, but the features generated out of that code is a different story:

As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

Also important in the discussion is whether or not the software maker could use a license agreement to effectively prohibit this. This is a question that courts have been dealing with for a while: can you effectively remove exceptions to copyright -- or can you effectively expand the power of copyright -- via an overly inclusive license agreement. Here, thankfully, the court rejects that idea:

Consequently, the owner of the copyright in a computer program may not prevent, by relying on the licensing agreement, the person who has obtained that licence from determining the ideas and principles which underlie all the elements of that program in the case where that person carries out acts which that licence permits him to perform and the acts of loading and running necessary for the use of the computer program, and on condition that that person does not infringe the exclusive rights of the owner in that program.

[....]

It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program.

It's always nice to see courts getting copyright rulings right (or, at least, mostly right). It's been much rarer in the US, but it seems like the EUCJ has really been thinking a lot more carefully about copyright law lately.

Sheri Candler points us to a fascinating case study by Peter Broderick, about how the independent documentary film Hungry For Change was able to leverage the use of "free" to make over $1 million in just two weeks. The summary:

The release of HUNGRY FOR CHANGE was unprecedented. The film:

• premiered online (having never screened publicly before)
• was available worldwide
• was absolutely free (for 10 days only)

The results were remarkable:

• 453,841 views around the world during the 10 day premiere
• over $1.02 million in sales of DVDs and recipe books in the first 14 days

The full case study is worth reading, but these are some of the key points: The filmmakers, James Colquhoun and Laurentine ten Bosch, had done things in the past like allowing free public screenings of an earlier movie they had made. Anyone who registered was able to host their own screening of the film, free of charge. Those who registered got a "screening resource pack" to help facilitate the process. Normally, movies that offer screenings charge for them, but the filmmakers here believed that they would make that up in other ways, and there's evidence to suggest that was true. On top of that, the filmmakers kept their website updated regularly with new content -- making it a good way to continue to connect with fans over the long term, rather than having the movie be a one-off experience.

They also tried different DVD pricing schemes, and found that "free" had pretty cool results, in that it increased both sales and connections with fans:

In December 2010, FOOD MATTERS DVDs were put on sale from the website for one week at half price. This resulted in 4600 sales, the best week in 2.5 years of sales. In October 2011, the filmmakers took a more radical approach with even better results. They allowed all comers to watch FOOD MATTERS for free for 8 days. This stimulated direct and indirect sales of 9800 DVDs, twice as many as were sold when it was offered at half price. Even more impressive, over 37,000 people joined the mailing list during this event.

So, with the new movie, they were even more committed to "free." They decided to release the movie for free, globally, online. The results were really impressive:

Global Reach - The Free Worldwide Online Premiere was an instant hit. On its first day (March 21st) there were 45,211 plays. Tens of thousands of people watched the film each day. The premiere ended with a bang with 58,292 plays on the final day (March 31st). Altogether there were almost half a million views from more than 150 countries across the globe in just 10 days. These are astonishing numbers for an independent film that had never been seen before, had no paid advertising, and was not available through any retail channels.

Subscribers - There were 229,000 sign-ups in 14 days, a significantly greater number than FOOD MATTERS had gained in the previous 4 years. James estimates that less than 30% of the HUNGRY FOR CHANGE sign-ups were FOOD MATTERS subscribers, which means that at least 160,000 were new subscribers, almost doubling James and Laurentine’s already substantial online following.

Revenue - Everyone who viewed HUNGRY FOR CHANGE was given access to three special offers: the DVD for $34.95, the new recipe book for $49.95, or the DVD and the recipe book for $74.95. Each order came with free bonuses and free shipping. In the first 14 days, over 20,800 orders were placed totaling over $1 million in sales. Although most purchasers had already seen the film for free, many wanted to buy a copy for themselves or purchase it as a gift for family or friends.

There's so much in this case study that highlights key points we've made over the years. The filmmakers used the film to connect (and also have used and continue to use their website to further that connection) -- and that clearly drove people to support the film monetarily as well. Even if people didn't necessarily pay immediately, just building that connection to the work and to the filmmakers can end up paying nicely over the long run.

On top of that (as you hopefully know), I love it when content creators come up with creative bundles of offerings. In this case, the idea of doing a cookbook to go with the movie makes a ton of sense, given the topic of the movie. And even if the cookbook might seem "expensive" as a standalone, it sure looks like plenty of people were willing to pay.

Finally, the fact that so many people were willing and happy to pay for the DVD even after watching the film for free online speaks, again, to the ridiculousness of silly movie release windows. For years, we've been arguing that the DVD of the movie you just saw should be available to buy as you leave the theater. People are more than willing to pay for the DVD, even if they already saw the movie. In fact, it seems clear that lots of people want the DVD right after seeing the film. Striking while the iron is hot makes a tremendous amount of sense, but the classic Hollywood response is to worry about piracy, and make fans wait months before the movie is available on DVD... at which point the people have already forgotten about it.

Either way, once again, Broderick's case study of the movie is really a worthwhile read, so go check it out.

Shoegaze legend My Bloody Valentine has never been mistaken for a prolific band. With their last album (Loveless) having been released over two decades ago (1991 to be exact), anyone who's been holding their breath waiting for a followup has probably been revived enough times that friends and family are considering adding a DNR order to their living will.

Now, at long last, there are signs of life. On May 7th, Sony Records is set to release remastered versions of MBV's two full albums and several EPs [exclamation points!]. Not only that, but MBV co-founder Kevin Shields is strongly hinting at an actual new My Bloody Valentine album [more exclamation points, tempered with a "we've heard this before over the last 20 years, but still..."!].

While the new remasters will be appreciated, it's a project that's been in the works since 2004. Most of those familiar with Kevin Shields' perfectionism (the obsessiveness that saw the band go through 19 recording studios and nearly as many producers while recording Loveless, nearly bankrupting Creation Records in the process) probably chalked up this extra-long delay to excessive amounts of knob twiddling. But in an interview with Pitchfork, Shields points out that this time it wasn't him:

The [remastering] process actually started in 2001, when we managed to come to an agreement with Sony, who inherited us from Creation. Part of the Sony deal was that I wanted all of the EPs made into one package because, back in 2001, you could get the albums pretty easily but not the EPs. So it was basically a compilation of all the EPs, and that was it.

Then we decided to do Isn't Anything and Loveless as well-- if we're gonna remaster [the EPs], we should remaster everything. In 2002, I tried to start working on it, but the studio that had the tapes, Metropolis Studios, lost them; the analog multi-tracks were all missing for a year. Only after I started threatening to get Scotland Yard involved did they magically, suddenly reappear. The true story is as yet to be determined, but we'll fight that one out in the near future.

Tapes going missing isn't completely unheard of. When bands lie dormant for years at a time, the labels generally don't place a premium on keeping everything sorted out, especially when they can do things like issue faux-remasters by pressing the "+Loud" button while the CD is in the tray. Shields points out that Warner (who handles American distribution) did exactly that when issuing supposed vinyl "remasters" in 2003:

For example, in America, Warner Bros. licensed Loveless and Isn't Anything to Plain Records, and they basically just ripped [the audio] off the CD and put it on vinyl [in 2003]. They did an awful, terrible job. It was done without my permission, and the sound quality was 100% wrong. It was a rip off to anyone who bought it. But I didn't know anything about it until they were in the shops. We actually got an injunction against it being imported into the UK at the time because it was technically a bootleg but, in America, Warners operate under their own law, so it might have been slightly legal in the United States.

But Shields states that the missing master tapes wasn't the result of simple oversight:

The contract we did in 2001 basically gave me ownership of the tapes, and then the Sony regime that existed when that contract was signed left. And when the new regime came in, the tapes disappeared. That was relevant because even though I was the owner, it would only revert back to me if I remastered from the original tapes-- if the tapes were gone, I couldn't remaster from them and hence I couldn't ever own them.

[Fun note: Pitchfork asked Sony to comment on this and got this smiley chunk of PR spam in reply: "We have really enjoyed working on these hugely iconic re-issues with Kevin, and can't wait for the release." We know this isn't true because no one enjoys working with Kevin Shields. (HAHAHA ONLY SRS. 19 studios! Thousands of pounds!!! Engineers not being allowed to listen to vocal takes!!!?!)]

So, keeping the tapes away from Shields meant preventing him from reclaiming control of his band's output or being compensated for any interim sales. In fact, despite continued interest in My Bloody Valentine's catalog, the band is still operating in the red:

Also, you don't get paid if you don't own it-- you know, we've never been paid one penny from the United States from any of the records we've ever made. In the record company's world, we're always in debt. But the strange part of the story is Loveless alone sold enough copies in its first year to put us out of debt. But somehow Warners have managed to create a situation where, hundreds of thousands of records down the line, we're still in debt. That's why the compilations aren't coming out on Warner Bros. They're extremely in breach of contract as well at the moment.

Despite all of this, Shields remains largely pragmatic about this situation. It's not that it isn't unfair or stupid or flat out ugly. It's just that it isn't uncommon:

I'm no victim here-- this is just the way it is for everybody. It's a bit like being in the middle of a battlefield and getting shot in the arm and going, "Why me?" I mean, to put it very, very, very simply: The corporate system is fully psychopathic, and any creative people who enter into business with any of these organizations come up against a lifetime of issues. You just deal with it as you go along. It'll keep on happening until people reorganize the organizations.

Shields expands on this, pointing out that this two-decade gap between the original albums and the reissues could have been a lot shorter, if there had been any sort of cooperation from the labels involved.

Well, the organizations are [psychopathic], but probably 70% of the individuals in them are decent people. But a significant controlling minority have no empathy. They don't give a shit. If you put them in a situation where they can't make any decision but one that is in your favor, they will-- but that can take years. That's the game. Most people just give up with time and go, "I'm a victim." The only reason I've got the reputation for delays and spending a long time on things is because I just don't stop. We've had incredibly huge obstacles in our way-- no tapes, no royalties, no cooperation on any level-- and we sort it out.

Apparently, this is what it takes do a proper reissue: eight years, two labels, Scotland Yard and Shields' willingness to keep pushing on despite the labels' best efforts to keep him and his music as far apart as possible. I eagerly await the naysayers who will point out that the label system is still the artists' best friend, preferable to self-publishing, Kickstartering, etc. while simultaneously pointing out that "Screw the artists! They signed a contract!" Fun stuff, this cognitive dissonance.

The United Nations recently announced the lateset members to its "multistakeholder advisory group" on the issue of "internet governance." As they state, there are 56 members in the group, 33 of which are new. Considering that this is a group that is supposedly planning to act as stakeholders for "governing" the internet, you would hope that it would actually be representative of, you know, internet users. In fact, the press release from the UN states:

"The Advisory Group members are from all stakeholder groups and all regions, representing Governments, the private sector, civil society, academia and technical communities."

But when you look down the actual list, a different story appears. It looks like the list is pretty much dominated by government "IP" officials, as well as people from telcos, and then people in the domain name registration field. And then there's an exec from the world's largest patent trolling firm, Intellectual Ventures. Oh, and the VP of Global Public Policy Europe for Disney. Because I'm sure we're all comfortable letting Disney determine how the internet should be governed. Are these really the people we want "governing" the internet? There is at least someone from ISOC (the Internet Society), but I'm having a hard time seeing this as a group of people who should actually represent the public in terms of "governing" the internet.

Over four years ago, ICE ran an investigation into mod chip sellers in the US titled "Operation Tangled Web". During this investigation, ICE agents raided 32 locations in 16 states. Very little information was released at the time regarding who was targeted and if any charges were brought up. Since then, almost no information has been released about the operation. Thankfully, an eagle eyed John Doe found a press release from April 10 that details the names of ten individuals officially indicted on charges of violating the DMCA's anti-circumvention clause. The charges are as follows:

The indictments generally charge that the defendants knowingly manufactured, imported, offered to the public, or otherwise trafficked in technology, products, services, devices, components or parts thereof, which were primarily designed to circumvent technological measures designed to effectively control access to a work copyrighted under Title 17 of the United States Code, for purposes of commercial advantage or private financial gain.

Other than this information and the list of names, there is no other publicly available information on any of the ten cases. What really makes this announcement interesting is its proximity to the US Copyright Office considering proposals that would provide a jailbreaking exemption for game consoles. If that proposal is accepted by the Copyright Office, then the actions performed by these ten individuals would be legal for others to perform for the next three years. However, it is unclear how such an exception would effect the charges brought against these individuals. It is really sad to see ten people's lives being dragged through criminal courts for performing an action that should be perfectly legal.

While I can understand why developers feel the need to conform to Apple's sometimes ridiculous (and often arbitrary) rules for iOS development, sometimes it really seems like Apple goes to highly questionable (and potentially legally questionable) lengths to reject certain apps. The latest, via Hackernews, is that Apple has been rejecting apps that make use of Dropbox's cloud storage system. The reasoning is particularly ridiculous:

Reason for rejection is the fact that if the user does not have Dropbox application installed then the linking authorization is done through Safari (as per latest SDK).

Once the user is in Safari it is possible for the user to click "Desktop version" and navigate to a place on Dropbox site where it is possible to purchase additional space.

Apple views this as "sending user to an additional purchase" which is against rules.

Dropbox is trying to work around Apple's excessive rules, but the whole thing seems a bit crazy. At some point you have to wonder when Apple is going to trip various antitrust rules about using its dominant position on the platform to hurt other companies. It seems developers are eventually going to recognize that, even with Apple's giant market, it might just be easier to focus on more reasonable and open platforms.

Following our post about the NY Times highlighting how the FBI seems to spend an awful lot of time foiling its own terrorist plots, some of our commenters pointed us to the news that the FBI has done it again (just in time to coincide with our story), arresting five individuals in a plot that appears to have been coordinated by the FBI itself. Even though some of the "anarchists" arrested expressed concerns about how resorting to violence would help, the FBI helped supply fake explosives and that appears to have convinced the group to move forward with its "plot." Prior to that, they seem to have had little actual ability to do much of anything, other than thumbing through The Anarchists' Cookbook and talking about what they'd like to do.

Folks who have been online for a while probably recall the infamous Rimm Report from back in 1995, which was the first mainstream attempt to claim that evil "cyberporn" (yes, that's the word they used) was taking over the internet and threatening children everywhere. Of course, that report was based on ridiculously faulty research, but many have sustained this moral panic that online porn simply must be evil. Enter UK tabloid The Daily Mail, who apparently has decided that this is an issue that needs attention, in the form of some moral panic reporting based on a couple of loosely sourced anecdotes. The story appears to be written by the mother of a kid who's going through the initial stages of teenagerdom/puberty, and his mother can't handle it, so she blames the kid's changes on access to porn online.

Martin Robbins, over at the Guardian does a pitch perfect satire in response, mocking The Daily Mail's article. Here's just a snippet:

As an infant, I was exposed to breasts almost every single day. Thirty years later, breasts have taken over my life. Not a day goes by without some stray breast seeping into my consciousness. Occasionally I catch myself glancing at the breasts of my female friends, and I habitually pour milk all over my cornflakes. Worse, breasts have served as a gateway drug for vaginas.

I used to think I was alone, but extensive new research in the form of almost three anecdotes published by the Daily Mail - a seedy gossip website specializing in celebrity erotica, catering to men too old to buy Nuts and too married to run up hard-to-explain credit card charges on proper porn - has revealed the devastating impact that breasts have been having on other young children.

Each tragic case of boob trauma follows the same remarkable pattern. An ordinary little boy approaching his teenage years suddenly starts to change his behaviour: becoming withdrawn and moody and mysteriously growing about six inches in height. Detailed investigation of the child's browser history reveals that the cause is not the rough patch the parents have been going through, a recent change of schools, or puberty; but an addiction to online porn.

Of course, even more amusing is that Robbins goes on to point out that The Daily Mail's moral panic against porn might take on slightly more credibility if the publication wasn't well known for publishing nude photos itself (the links in the next paragraph may be slightly NSFW depending on your work environment):

The Daily Mail makes money from posting pictures of scantily-clad women on the internet. Sometimes these women are topless. Sometimes they are completely naked. Often the images are captioned with breathy descriptions of 'cleavage', 'dangerous curves', 'thigh-skimming' dresses. Sometimes the images are of disturbingly young girls, accompanied with phrases like the infamous "all grown up."

It's only worth a moral panic if it's not about the publication in question making money, it seems. I recognize that the UK tabloid culture involves moral panic articles like the Daily Mail's all too often, but you have to wonder how anyone takes such things seriously when those same publications are publishing naked photos online itself.

In the ongoing saga of collection society Access Copyright's negotiations with Canadian universities, one question comes up again and again: why? The Universities of Toronto and Western Ontario, and now the AUCC, which represents schools across the country, have all accepted terrible copyright clearance deals that see fees increasing when they should be going down, and that are full of onerous restrictions and highly questionable rights claims. Multiple observers have pointed out that the universities and the AUCC have an extremely strong fair dealing argument that they could take to the Copyright Board to push for much better terms—but instead they negotiated these lopsided agreements, and the AUCC abandoned its fight at the board. Nothing about these deals seems to be in the best interest of students, educators or schools. So why were they accepted so readily?

There's one glaring problem with the situation that's impossible to ignore, though it has mostly only been mentioned in passing: the lawyers. The AUCC was represented by Glen Bloom, and the University of Toronto was advised by Casey Chisick—both prominent Canadian copyright lawyers with a history of acting for clients who are against generous fair dealing provisions. Both Bloom and Chisick argued for narrow interpretations of fair dealing during a series of important Supreme Court cases last year. Both lawyers have also acted as lobbyists for the entertainment and publishing industries, and Chisick is actively registered as a lobbyist for the Canadian Musical Reproduction Rights Agency. Chisick also expressed his own views on the need for stronger copyright laws two years ago in the Globe & Mail, and this year in the Financial Post.

In short, these are both lawyers who have spent a lot more time working against fair dealing than for it, now acting for clients who badly need a strong fair dealing argument.

This alone is not necessarily so crazy. In law, it's often prudent to get a lawyer who has experience on the other side. Although it may seem like a conflict of interest on the surface, it's probably not a breach of professional ethics. However, even setting aside those questions, the fact remains: U of T and the AUCC, working with these lawyers, failed to assert their fair dealing rights to the degree that many observers think they could and should have. It certainly seems like, for whatever reason, they got bad advice.

Perhaps copyright is not something where lawyers can easily "switch sides". For example, in employment law, firms usually specialize on either the employer or employee side of things, and rarely jump back and forth. If the Access Copyright deals are any indication, copyright may need to be treated the same way: so many of its details (especially fair dealing) are open to interpretation and debate that the philosophical gap between the two sides is huge, and it's difficult if not impossible for a lawyer to effectively argue for both. Moreover, it is a minefield for genuine conflicts of interest: if a lawyer has an ongoing client relationship with a copyright collective, they have a strong incentive not to argue for fair dealing, since any pro-fair-dealing ruling makes their own job harder and reduces their other client's income.

Why did U of T and the AUCC not seek out lawyers who were prepared to make the argument they needed? Why did they accept these terrible deals despite multiple experts telling them they could do better? Why didn't their lawyers tell them that, under the current Supreme Court rulings on fair dealing, they have a powerful argument for lower fees? The whole situation is raising a lot of whys, and students and faculty across the country are starting to want answers. The deadline for universities to indicate their "intention to sign" the AUCC model license has passed was pushed to May 15th, but it's still not clear what that even means, and with resistance to the agreement growing, this deal might not be as done as Access Copyright and the AUCC want it to be.