As we noted recently, Mexico's executive branch surprised a lot of people recently by having its ambassador to Japan sign ACTA (just as people were claiming that ACTA was dead in the country). Of course, this came after the Congress had very specifically called for the Mexican President to reject ACTA (long before other countries and the EU Parliament began realizing ACTA was a problem). As we noted, Mexico's IP Office has been telling people that it's sure that it can convince the Mexican Congress to come around to supporting ACTA.

That may be a tougher battle than they originally expected, however. Both houses of the legislature have now passed resolutions condemning the decision to sign ACTA, sometimes with rather pointed language. From the InfoJustice writeup linked here:

The Senate resolution, sponsored by Sens. Francisco Javier Castellon Fonseca, Carlos Sotelo Garcia, Maria Beatriz Zavala Peniche, and Dip. Rodrigo Perez-Alonso Gonzale rejects the signing because it didn’t respect Mexican law on the approval of international economic treaties; it ignored the official Senate recommendation of September 6, 2011; and it violated domestic law and human rights.  This resolution asks the President to take the steps necessary to revoke Mexico's signature from the agreement, and it asks the Ministry of Foreign Affairs to prepare a report on the reasoning behind the signing of the agreement.

The Chamber of Deputies resolution, sponsored by Dep. Jaime Aguilar Alvarez rejects ACTA and calls the executive's disregard of the legislature on this matter an “authoritarian and unilateral stance.”

It does not look like the Congress is going to be convinced to support the ratification of ACTA any time soon.

According to Mathew Ingram at GigaOM, there is apparently a raging debate over whether or not Twitter would actually benefit as a service if users had to pay to use it. I'll admit to being a little bit surprised when I saw this, but digging into the details brought what I think is a wonderful conclusion as to why the answer is definitively "no".

This all more or less started (or at least really took off) when Dalton Caldwell, who founded Imeem, announced he wanted to create a for-pay service similar to Twitter. Caldwell states that services like Twitter don't realize their full potential in what he deems an "advertising-supported monoculture".

"All of these services are essentially in the same business: vying for the opportunity to sell you/your clickstream to advertisers. … I have no interest in completely opting out of the social Web. But please, I want a real alternative to advertising hell. I would gladly pay for a service that treats me better."

It's a concept that I think many people might first agree with...but only if they don't think about it for more than thirty seconds. The first flaw in this line of thinking is that users paying for the service is somehow a firm requirement to avoid what Caldwell calls "advertising hell". I don't think they do; rather, I think that each new service that comes out can be built upon and each innovation can make each service better, including in the way users are impacted by advertisements. As an example, Caldwell could have penned something similar in the 90's, bemoaning a Myspace that had clearly become a musical and bloated hell, so obviously we need to make a social media site that is paid for by users.

Except that's not what we needed. We needed Facebook which, contrary to all the status updates you may have read, does not charge users.

The second flaw in Caldwell's statement is the assumption that advertising does now and always will make us want to bang our heads against the walls in frustration. Certainly advertisements can be annoying, but we've talked repeatedly about how advertising is simply more content, and it can be good or bad. As digital ads continue to get better and better, this "advertising hell" may become an "advertising heaven." Or at least an "advertising purgatory," where the annoyance factor is minimal. In any case, if ads were wanted, then Caldwell's service loses out.

But perhaps that most articulate reason why a service like Twitter should not charge users to join in is made by venture capitalist Fred Wilson:

"Wilson maintains that a free model is the only way to get the kind of network effects necessary for a large consumer business. He also argues that charging users is contrary to the rationale behind such services, since the content being monetized is coming from those same users:

'When scale matters, when network effects matter, when your users are creating the content and the value, free is the business model of choice. And I don’t think anything has changed to make that less true today. If anything, it is more true.'"

What Wilson notes about the content being created by the users is the key point to me. Twitter is a great stage, but those of us that use it are the stars (to varying degrees). To charge the people who are creating the content on your platform seems completely backwards, particularly considering the effect that will have on how your service scales. 

Consider the recent story we ran about how an Irish rail operator used Twitter to reunite a person and their dog: does that happen if you have to pay for the service, reducing its user base? I don't think it does.

Digital cameras are getting better all the time, but our natural vision only seems to degrade over time. (Almost everyone over forty years old will suffer from some kind of presbyopia.) There may be technological solutions to improving human vision, but so far, projects like Google Glass are more about augmenting vision, not necessarily improving a user's sight. Here are just a few interesting projects working on useful eye prosthetic devices.

• Paul Bach-y-Rita is a neuroscientist working on brain plasticity, studying how various senses can be re-mapped in the brain. People with vision problems might be able to learn how to see via tongue sensations. The brain might be able to process visual information in many different ways. [url]
• A retinal implant that could allow the completely blind to perceive light and shapes is in early trials -- in rats. There are several kinds of retinal implants that could potentially help people with degenerative retinal diseases, but the technology is still primitive compared to natural vision. [url]
• Sheila Nirenberg's TED talk on eye prosthetics describes how technology could be used to help the blind see again. Nirenberg's strategy to create software that can translate signals (from images) into input that the brain can understand could also be useful for other senses like hearing. [url]
• Steve Mann has been wearing a camera attached to his head for quite some time now -- as an exploration of wearable computing. Recently, though, he was assaulted for wearing a digital camera, and he's blogged about his experience trying to live in a society that may not be ready for people wearing personal computer vision systems. [url]

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

As various uprisings have occurred in the middle east, we've seen the regimes in Egypt and Libya try disconnecting the entire country from the internet, after realizing that opposition forces were making use of the internet to coordinate. In neither case did it prevent regime change soon afterwards. Soon after the situation with Egypt, we noted that Syria was actually trying to go in the opposite direction, trying to make use of the internet to communicate its own story... and to keep track of protestors. Of course, in the year plus since then, the situation in Syria has obviously gotten significantly worse and more contentious. And... late last week, it was noted that Syria appeared to remove itself from the internet for about 40 minutes. It was brief, but it at least suggests that someone in the government is toying with the idea of shutting off the internet. Of course, given the two examples of how well that's worked so far, it probably doesn't bode well for Syria's leadership.

A little over two years ago, we wrote about singer Marian Call and the fact that she did a bunch of experiments that helped her connect with fans and give them a reason to buy. As we noted, what she demonstrated is that it takes a lot of experiments to figure out what "works" for a particular creator and their fans. Some ideas will fail, and some will succeed. Since that time, I've checked in here and there on her career and it seems to be going great. I'd missed, however, that she launched a Kickstarter campaign last month, and thankfully Aaron deOliveira clued me in, thanks to a blogpost on Popehat about Marian Call's Kickstarter campaign, which has a few really cool features. So many artists are doing Kickstarter campaigns these days, that there's usually not that much to write about with them. But Marian (not surprisingly, given her willingness to test out "crazy" ideas, decided to take things a bit further with Kickstarter, and turn it into even more of a game than it normally is.

That is, she created Marian Call's European Adventure Quest, in which she effectively "gamified" Kickstarter, such that the more she earned, the more levels would be "unlocked." The main idea was that she would tour Europe and record a live album, but the more she raised, the more places she would visit and the more cover songs she would do (she usually does originals, but people have requested covers, and she was worried about the licensing fees if she didn't raise money in support). She's even got some nice retro video game graphics to show her progress: The campaign is actually just about to end (within a few hours), but it just recently surpassed $55,000, which means that she'll be performing and recording "Particle Man" by They Might Be Giants... and she'll be doing it live at CERN, which is so awesomely appropriate.

One of the things we get concerned about, at times, is that people get so focused on how others have been successful with things like Kickstarter that they stop being additionally creative on their own and merely copy others' projects. But Marian is showing how you can continue to be creative above and beyond the basics of Kickstarter, and do so in way that is fun and better connects you with fans (while also getting those fans to support you in a big way). It's always great to see these kinds of inspiring examples.

One of the things we regularly hear from people who are apparently allergic to any business model that leverages free to make more money elsewhere, is that content creators have to change their business model, stop giving stuff away for free, and start charging. This is seen in lots of places, including the mad dash by many newspapers to try putting up paywalls on their news. We've long argued that doing so can really piss off readers, not just because of the cost, but because taking something that was once free and making it now cost money often changes how people look at the product itself.

The folks over at Planet Money have yet another brilliant podcast where they give an amazing example of this, showing how the impact can be incredibly long lasting as well. It's the story of why so many US veterans hate the Red Cross. Apparently, for a period of time during World War II, the Red Cross stopped giving doughnuts away to service members for free, and started charging $0.02 per doughnut. And, to this day -- seventy years later, many WWII veterans (and many who came after them) have a distaste for the Red Cross, and nothing will shake it.

The whole podcast is worth listening to, as it actually explains why the Red Cross did this (apparently, it didn't want to, but officials put pressure on them when the US entered WWII, because Allied soldiers paid for their snacks, and were annoyed that the Americans were getting free doughnuts). And for decades now, the Red Cross has tried to make up for this -- often showing up at places where veterans are with tons of free doughnuts -- but to little avail.

The program works through a few theories on why this simple change has resulted in so much animosity. They conclude that it was much more than just a "price" change, but a "category change."

Chalk it up to something called categorical change, says Uri Simonsohn, a University of Pennsylvania business professor. Price changes, people can adjust to. But this was different.

"Imagine, for Thanksgiving, you go to your parents' for dinner and after a nice dinner they say, 'That's going to be $10 per person,' " Simonsohn says. "You would be upset."

The problem isn't the price — $10 for a good turkey dinner might not be such a bad deal — but that you're being charged in the first place. It changes the relationship. For the veterans, the Red Cross went from being a little like Mom, to being the corner store

That is, these are things that people, inherently, don't think they should be charged for. Switching those things from free to fee isn't just about the price, but about the concept itself. Now, some will argue that this doesn't necessarily apply to things like newspaper paywalls, since people are already used to paying for newspapers. But, I do wonder if that's really true -- especially for the younger generation. They're not defining a newspaper website as a newspaper website, but rather as "information online." And, to them, that information is free. Period. It's going to be pretty damn difficult to get over that "category shift."

Creative accounting from legacy players is nothing new. We have seen many repeated examples of ways in which legacy publishers, labels and producers try to limit the amount of money they pay out to the artists they depend on for their incomes. We have the fact that Return of the Jedi, despite being the 15th highest grossing film of all time, is still not profitable. There is also the crumple zone inducing idea from the major labels that digital sales are licenses except when they are not. So would it be a surprise that we would find a similar situation within the legacy publishing industry? 

Enter Harlequin, publisher of fine romance novels. Harlequin has been accused, according to a class action lawsuit, of using some very creative accounting to reduce the ebook royalty rates paid to authors from 50% of the net receipts to a paltry 3-4% rate:

This lawsuit results from Defendant Harlequin Enterprises Limited, the world’s leading publisher of romance fiction, depriving Plaintiffs and the other authors in the class, of e-book royalties due to them under publishing agreements entered into between 1990 and 2004. Harlequin required the authors to enter into those agreements with a Swiss entity that it created for tax purposes, and that it dominates and controls. However, Harlequin, before and after the signing of these agreements, performed all the publishing functions related to the agreements, including exercising, selling, licensing, or sublicensing the e-book rights granted by the authors. Instead of paying the authors a royalty of 50% of its net receipts as required by the agreements, an intercompany license was created by Harlequin with its Swiss entity resulting in authors receiving 3% to 4% of the e-books' cover price as their 50% share instead of 50% of Harlequin Enterprises' receipts.

What this means to the authors can be illustrated by an e-book with a hypothetical cover price of $8.00. The “net receipts” made by Harlequin Enterprises Limited from the exercise, sale or license of e-book rights would be at least $4.00, of which authors would be entitled to $2.00 based on their 50% royalty. Computing the “net receipts” based on the “license” between Harlequin's Swiss entity and Harlequin Enterprises, Plaintiffs’ 50% royalty amounts to only 24 to 32 cents.

Basically, these authors are just not happy with these reduced royalty rates. The authors claim that Harlequin Switzerland was set up for no other purpose but to syphon out as much money as possible before calculating any royalties for the authors. Hardly something that any publisher should do if they actually care about their business. 

There was once a time where such a tactic would not have reached the point of a lawsuit. There was a time when publishers actually had a strangle hold on publishing and could force any terms they could conceivably get away with. However, with the introduction and proliferation of self publishing, that stranglehold is weakening. As authors are looking at the deals they are getting from publishers vs the deals self published authors are getting from the likes of Amazon and even Apple, they are beginning to lash out. 

Of course, if Harlequin were smart about this, meaning it realizes the mistake of using such accounting methods, it would seek a quick settlement that results in the authors getting paid their proper royalties. If for some reason, as many publishers claim, it cannot afford to pay authors the true 50% then it will see a quick decline of new authors and a drop off of existing authors. Then, it will fail.

My grandfather passed away at 96-years-old just last year. While he remained "with it" for quite some time, in the last few years of his life, he suffered from pretty serious dementia. So, a few months ago, when I saw this somewhat viral video of a dementia patient in a nursing home suddenly being "revived" by listening to the music he grew up with, it was really quite amazing. I just wished I'd been able to test that out with my grandfather earlier. If you haven't seen the video, it's worth checking out (especially if you've ever had to deal with a loved one suffering from dementia):
So I was definitely interested when Bas told me that the folks who made that clip were trying to put the finishing touches on a much longer documentary about bringing personalized music to dementia patients... and were doing so with a Kickstarter campaign. These days, that's completely understandable, but what struck me as most unfortunate and distressing is that the main reason why the filmmaker needs to raise $50,000 is because of the expense of licensing the music so that it can be shown in the film. It's clear from the video just how powerful this film is, and just how useful it might be to get lots of people to see it. And yet, copyright holders are often very, very stingy about licensing music for films -- especially documentaries. As we've discussed in the past, the difficulties documentary filmmakers have in licensing music for their films -- even if the song is a key factual component of the story -- are incredibly disturbing. Rather than helping to spread the music, copyright holders are locking it up.

In this case, in particular, it appears that they're basically locking up this entire film, unless they can raise $50,000. That's not how copyright is supposed to work. The video explanation of what the filmmaker is trying to do is great, but the fact that it's copyright holding things up just seems really disturbing (he explains that's the issue about five minutes into the video):

It's too bad that (1) fair use is such a mess that this kind of thing isn't automatically seen by all involved as fair use, and (2) the copyright holders here, knowing the importance of such a project, can't offer up a free license for the filmmaker.

We live in a litigious society. That's not a secret. So it's no surprise that, in the aftermath of the Aurora, Colorado Batman shootings, lawsuits will be filed. But as always the question is: who do you sue? Well, if the linked TMZ article is accurate, Torrence Brown Jr., who was in the theater, but not directly injured (though a friend of his was killed), has lawyered up, hiring an attorney named Donald Karpel to sue Warner Bros. for making the movie too violent. He's also apparently planning to sue the theater for not properly guarding the emergency exit, which is apparently where Holmes left and re-entered with the weapons. Oh yeah, and the doctors of shooter James Holmes for not properly monitoring him.

This certainly seems like a frivolous lawsuit. Going after Warner Bros.? For what? That's likely to get laughed out of court. This seems like a clear case of a "Steve Dallas lawsuit," named for the famous Bloom County comic strip in which lawyer Steve Dallas gets beat up by Sean Penn after trying to take a photograph of the star. He then explains why the proper target of a lawsuit is not Sean Penn, but the "Nikolta Camera" company, because "a major corporation with gobs of liquid cash ... was criminally negligent in not putting stickers on their camera which read, 'warning: physical injury may result from photographing psychopathic Hollywood hotheads." In a coincidence that you simply couldn't make up, it turns out that Karpel once represented (no, seriously) a paparazzi photographer beat up by Sean Penn. Life imitates comic strips.

We've talked about the problem in which classified documents that are leaked and widely available to the public are still considered classified by the government, even though the concept is ludicrous. It leads to absolutely ridiculous situations, such as government employees not being able to look at documents available on Wikileaks, even as everyone else in the world can easily log in and see them. Or the case (linked above) in which lawyers representing Guantanamo detainees weren't allowed to look at these documents -- which anyone else in the world can see -- which relate to their clients. Even the NY Times called this situation "absurd." And it is. In the business world, people commonly sign "non-disclosure agreements," but they're always considered null and void if that same information becomes public by other means. It's bizarre that the government doesn't recognize the same policy.

However, in a lawsuit we first discussed last year, where the ACLU sued the State Department for failing to declassify (under a FOIA request) documents that were already widely available on Wikileaks, a judge has ruled against the ACLU, and said that the documents remain classified. Once again, this is absurd. It's as if everyone is actively denying reality.

The ACLU relied on the part of the test that questions whether the disclosure of the information "reasonably could be expected to result in damage to national security." Seeing as anyone seeking to "damage" our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you'd think that the ACLU's argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should "defer" to the judgment of the administration on this question, and that it's possible that the official release of these documents could impact national security. I don't buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new "threat" involved just doesn't pass the laugh test.

What's most distressing about this is that it shows a government that is not dealing in reality, but is dealing in a fantasy land, where it pretends that if it sticks its fingers in its ears, and hands over its eyes, it can pretend that the documents, which are very, very public, are not at all public. I want a government that deals in reality and not fantasy. Unfortunately, with this situation, we have the reverse -- and, bizarrely, the courts are saying that an executive branch that lives in fantasyland is just fine.

It's really great to see that Judge Richard Posner has decided to take on our broken patent system in a big bad way. He's had a long-term interest in intellectual property (and even wrote a very good book on the subject, which I keep on my desk), but he's rarely had to rule on patent issues, in part because of our ridiculous setup in which all patent cases are funneled to the Federal Circuit, which historically has been "captured" by patent expansionists (including some former patent attorneys, at points). However, Posner made it clear to a nearby district court that he was interested in maybe heading over to hear a patent case if one arose, and he got a big one: a key patent battle between Apple and Motorola over smartphone patents. As you probably know by now, he dismissed that case with prejudice, and slammed both parties in the process.

While the dismissal was technically over failures in how the damages calculations were done, the rulings and statements he made certainly hinted at the failings of our patent system. Since then, he's not held back on the issue, giving an interview where he questioned the need for patents in "most industries." And, now, he's written an opinion piece for The Atlantic, in which he explains that there are too many patents, and that the system is broken. Basically, he dives in and explores his earlier statements that few industries probably need patents. He starts out by explaining why he thinks patents work in the pharma industry (something that I'm not sure is really true, but let's accept it for now), and then notes that the conditions that make patents work there simply don't apply to most other industries:

But few industries resemble pharmaceuticals in the respects that I've just described. In most, the cost of invention is low; or just being first confers a durable competitive advantage because consumers associate the inventing company's brand name with the product itself; or just being first gives the first company in the market a head start in reducing its costs as it becomes more experienced at producing and marketing the product; or the product will be superseded soon anyway, so there's no point to a patent monopoly that will last 20 years; or some or all of these factors are present. Most industries could get along fine without patent protection.

The key thing that he realizes -- which many patent system supporters ignore -- is that for patents to make sense, you have to have a situation where the invention wouldn't otherwise be created. But in a dynamic industry, where there are many normal incentives -- innovation to beat the competition, for example, or merely innovation to build a better product for you own needs -- it's not at all clear why patents are needed. In fact, because every single party other than the one who gets the patent is blocked from making use of their own efforts, the patent system creates a massive amount of waste. Sure, the "first" one to get to the patent office gets "ownership," but every other person is denied ownership of their own innovation.

In an industry in which teams of engineers are employed on a salaried basis to conduct research on and development of product improvements, the cost of a specific improvement may be small, and when that is true it is difficult to make a case for granting a patent. The improvement will be made anyway, without patent protection, as part of the normal competitive process in markets where patents are unimportant. It is true that the easier it is to get a patent, the sooner inventions will be made. But "patent races" (races, induced by hope of obtaining a patent, to be the first with a product improvement) can result in excessive resources being devoted to inventive activity. A patent race is winner take all. The firm that makes an invention and files for a patent one day before his competitors reaps the entire profit from the invention, though the benefit to consumers of obtaining the product a day earlier may be far less than the cost of the accelerated invention process.

He goes on to discuss the problems of the way the court system handles patent cases, noting that judges don't understand technology, and juries are even worse. Yet, most patent trials demand a jury trial, and juries quite frequently side with the patent holder, "believing that they must be worthy inventors defending the fruits of their invention against copycats -- even though, unlike the rule in copyright law, a patentee need not, in order to prevail in an infringement suit, show that the defendant knew he was infringing."

He goes on to highlight a few other issues, including the terrible job the Patent Office does in reviewing patents. He notes that the examinations are "perfunctory," and that this has resulted in way too may patents being issued, which only exacerbates the problem. I actually think he understates it there as well, because the more patents are granted, the more likely you are to get bad patents, and with bad patents come bad decisions and massive victories for some useless troll. And that just encourages people to apply for more bad patents, which overloads the system even more.

Posner has some suggestions, some of which I think might improve things a small amount, some of which probably won't. While he definitely recognizes that there's a problem, I'm not convinced he's really gotten to the heart of it yet -- though I'm hopeful that will come, as he spends more time on the subject. Here are his suggestions:

reducing the patent term for inventors in industries that do not have the peculiar characteristics of pharmaceuticals that I described; instituting a system of compulsory licensing of patented inventions; eliminating court trials including jury trials in patent cases by expanding the authority and procedures of the Patent and Trademark Office to make it the trier of patent cases, subject to limited appellate review in the courts; forbidding patent trolling by requiring the patentee to produce the patented invention within a specified period, or lose the patent; and (what is beginning) provide special training for federal judges who volunteer to preside over patent litigation.

I know there's a lot of support for that first suggestion, and I definitely can see how it might be helpful, but it does feel like a cheap way out to just "carve out" certain industries. It's treating the symptoms, not the problem. Also, if that happens, I'd bet that patent lawyers will quickly work out loopholes and workarounds. The compulsory licensing system, again, seems like an iffy suggestion. Beyond the fact that some might deem it unconstitutional (because the Constitution specifically says that patents and copyright are about the right to "exclude" -- and a compulsory license eliminates that), it still does keep the same basic friction. It certainly wouldn't stop patent trolling or bogus patents. Eliminating jury trials might be helpful at the district court level, but many of these cases end up on appeal anyway (and, again, some might debate the legality of taking away the right to a jury trial).

The idea of expanding the authority of the USPTO to make it the place where patent cases are heard has a pretty big problem, in that the USPTO tends to be very pro-patent already, and you're basically asking it to police itself. Requiring a patentee to produce the product is an idea that I know has a lot of support around here, but I'm not convinced that it makes sense. You could see situations where someone really does just focus on ideas/research and wants to pass those on to others to make. Perhaps a slight adjustment to that would be not that the patentee has to produce the product, but that they have to either produce it themselves or partner/license to someone who is producing it. Finally, I also worry about the suggestion of "special training." Because who's going to do the special training? Chances are, it'll be patent attorneys. It's not going to be software geeks. We've already seen what happens when we have "specialized" judges. It's called CAFC, and it massively expanded patents.

So what might actually be effective? Here are a few of my own ideas that I hope Judge Posner will consider at some point:

• Independent invention defense. In his article, he even mentions that copyright already (effectively) has this. Copyright infringement has to involve copying. Patent infringement does not. The fact that so many patent infringement cases involve independent invention is lost on most people who don't understand the system. Adding an independent invention defense would fix a very, very large percentage of the problems with the patent system today.
• Independent invention as evidence of obviousness. This is very similar to the idea above, but slightly more nuanced. Patents are only supposed to be given if something is both new and non-obvious to a person of ordinary skill in the art. For the most part, patent examinations focus much more on the "new" part, and not whether the idea is "non-obvious." Some people think that if an idea is new then clearly it's non-obvious, but that's not the case. Often there are obvious ideas that don't go anywhere because the technology/market/etc. just isn't ready yet. But if a number of different people "of ordinary skill in the art" are all coming to the same solution at around the same time, that certainly suggestions the invention itself is an obvious next step, and all such patents should be declared invalid.
• Actually asking those skilled in the art. Patent examiners are often very skilled and highly educated, but they're working in the patent office, not out in the field innovating. It's not as easy as many people think to really keep up on the state of the art if you're not working on it. Just think how many ridiculous patents we see all the time. Many of those bad patents could have been prevented if a patent examiner just went to people in the field and asked them. I know that some people criticize this idea, because they claim that (1) everything looks obvious in hindsight and (2) this will just lead jealous others to insist something is obvious to deny a patent, and then copy the idea themselves. Neither of these are convincing. I'm not saying to just ask, and if someone says it's obvious, the patent is dead. Rather, the patent examiner could ask a few people for an explanation of why it's obvious, and then determine if the reasons are convincing. Already, inventors effectively have "advocates" who argue for them that a patent is valid, so why not create the same sort of thing on the other side -- setting up a true adversarial process -- by seeking out experts who can explain why something may be obvious.
• Get patents going back to the different circuit appeals courts, rather than funneling them all through CAFC. Having a single "patent" appeals court was an experiment, and I think it's clear that it's failed. The court, constantly spending time with patent lawyers, but not with innovators, clearly has an expansionist view of patents, and multiple judges refuse to recognize that patents could have any downside. Spread the cases around a bit, and hopefully you get some more judges who get past the cover story and see the real problems.

There are some other suggestions that I think might be helpful at the margins. But these suggestions would help address many of the biggest problems with the system today.

I'm going to assume that most of us are by now aware of the tragedy that occurred late last week, when an Aurora, Colorado theatre showing the new Batman movie was allegedly shot up by a James Holmes for whatever reasons people like him have for this kind of depravity. I'll refrain from discussing any details about the shooting, since that's not really apropros for Techdirt. However, I did notice something that seemed worth pointing out.

First, Reason has been keeping a running list of all the things politicians and media pundits are blaming for the shooting (hat-tip to E. Zachary Knight for the link). For those of you keeping score at home, based on the aggregate blame-machine that that article has counted up, the shooting can so far be blamed on: The Tea Party, a lack of Christianity throughout the country, bullying, Star Trek (not kidding), or Occupy Wall Street. And, of course, video games.

The organization responsible for the salvo against gaming is CNN, via Pat Brown, who stated his stance simply:

"Teenage psychopaths get inspired by [video games] and want to make it real"

Interestingly, I was somewhat heartened (as much as one can be in a situation like this) that I had not seen such a rush to judgment against violent video games in this case, particularly considering that this whole tragedy occurred mere miles from Columbine, where violent video games were skewered over a decade ago. But maybe there is a good reason we aren't seeing violent games being blamed in this case: because suspect James Holmes apparently didn't play them. He is apparently known for playing video games, but not of the violent variety (via TMZ):

"one of James Holmes' classmates at the University of California at Riverside played Guitar Hero with the shooter all the time, and "for hours."

The male student is telling friends he is "shocked," never having had a clue that Holmes had a propensity for violence. It's an interesting side note, because people with violent tendencies often act them out in various ways, and video games are definitely an outlet."

The point that needs to be made is that we're likely not going to understand what motivated James Holmes to do what he did for a long time, if at all, and the rush for media members and political forces to judge a tragic situation through their own biased viewpoints rather than to simply wait for the facts to bear themselves out is dangerous.

For years we've written about how lawyers send absolutely ridiculous (and usually ridiculously aggressive) cease-and-desist letters. This comes from a time when there were likely only two parties who were going to be a part of the discussion. The company or individual on behalf of whom the letter was being sent... and the recipient. In such a world, lawyers were taught to be aggressive and to make the strongest possible case for their client, often claiming things and threatening actions way beyond what is reasonable. The thinking tended to be that the recipient would either shut up and back down completely (they hoped), or if they lawyered up, there would be some sort of negotiation, and an end result where a middle ground was met.

The internet changed things. It added a "third party" to these discussions: the public. As a result of that, over the last decade, recipients of such overly aggressive threat letters have gone public with those letters, leading to both ridicule towards the sender, but also much more attention being given to that which was sought to be "ceased" and "desisted." Hence, the rise of The Streisand Effect.

Every time we discuss one of these situations, people often ask us something along the lines of "yeah, but what else is the individual/company supposed to do?" Especially when it comes to trademarks, people often toss out the (somewhat misleading and inaccurate) claim that the trademark holder has to fight back or they might lose their trademark. Beyond that being an exaggeration (they only need to try to deal with situations where there might be confusion, or where the mark is being made to seem generic), it also ignores that there are more reasonable ways to handle such situations. One, for example, is to offer up a free (or super cheap) license. Another is to actually be nice. But that happens so rarely that it makes news when it happens.

A whole bunch of you have been sending in this particular example, of Jack Daniels sending one of the friendliest cease-and-desist letters that you'll ever see. It was sent to Patrick Wensink, the author of a novel called Broken Piano for President, whose cover certainly makes use of the iconography around Jack Daniels famous whiskey. But, rather than get all threatening, the letter is quite nice, reasonable and even (somewhat surprisingly) accommodating. It starts out by admitting that they're flattered, not upset.

We are certainly flattered by your affection for the brand, but while we can appreciate the pop culture appeal of Jack Daniel's, we also have to be diligent to ensure that the Jack Daniel's trademarks are used correctly. Given the brand's popularity, it will probably come as no surprise that we come across designs like this one on a regular basis. What may not be so apparent, however, is that if we allow uses like this own, we run the very real risk that our trademark will be weakened. As a fan of the brand, I'm sure that is not something you intended or would want to see happen.

Furthermore, rather than being excessively demanding, such as by demanding destruction of the old books, the company just asks for any future printings to have a different design -- and does so noting that it's suggesting this in a neighborly manner, and is even willing to help pay for the costs of such a change if they do it for existing books (and e-books):

In order to resolve this matter, because you are both a Louisville "neighbor" and a fan of the brand, we simply request that you change the cover design when the book is re-printed. If you would be willing to change the design sooner than that (including on the digital version), we would be willing to contribute a reasonable amount towards the cost of doing so. By taking this step, you will help us to ensure that the Jack Daniel's brand will mean as much to future generations as it does today.

Now, I still think that the company is exaggerating a bit in suggesting that this would really diminish the trademark, and also you could see how the company could issue a license instead, this really is a much much better response than a normal legal threat letter. Nicely done, Jack Daniel's! Hopefully, other lawyers and companies start paying attention.

Update: Correcting this post as I misread how the situation ended, in which they were allowed to stay after they were almost ejected. I apologize for that wholeheartedly. The "tweets" in the middle were a little confusing and I read them to mean that they had been removed, but as many people in the comments pointed out that was incorrect. I'm sorry for the error, and, as always, strive to fix any such mistakes as quickly as possible.

One of the key things that we find in story after story around here is that those who have a particular business model seem to think that any disruption of that business model must be illegal (or, worse, immoral). Sometimes instances of this come from strange places. For example, the Swedish Young Pirates officially set up shop at a local municipal festival, where they had permission to make food and give it to attendees. They started making waffles and giving them away for free. What they didn't realize was that others at the festival were trying to sell waffles, and they complained. The end result? Almost bye bye, young pirates (see update above). Yes, they got were almost evicted from the festival not for breaking any rules -- but for annoying the existing waffle-sellers by disrupting their business models. Thankfully, they called the police, and were allowed to stay after first having to stop making waffles while everything was sorted out. It is, in many ways, the same story we write about all the time, just in a different context. Disrupting someone else's business model is not a crime -- and often (as in this case) makes things better for consumers. It's just too bad so many "officials" kowtow to the legacy players and seek to shut down any and all innovation... though, sometimes, in the end, they come through and fix things.

For years, we've noted that various governments have sought to be able to wiretap Skype -- and the company has always insisted that its peer-to-peer architecture made it impossible. Last year, however, some hackers suggested that there was now a backdoor in Skype. And now when a reporter for Slate, Ryan Gallagher, is pushing the company on this issue, it refuses to make a clear statement onto the ability to wiretap Skype calls. You can draw your own conclusions.

It is, of course, possible that this is just the tighter-lipped way of Microsoft, now that the software giant owns Skype, but it certainly is raising questions for those who believed that Skype was a safe way to hold conversations away from the ears of increasingly intrusive government surveillance. It seems like there's new incentive for others to work on truly secure voice communications.

One of the defining characteristics of the digital world -- and one of the problems for copyright law, which was conceived in an analog age -- is the importance of being able to build on the work of others not just indirectly, but directly, through mashups or the re-use of existing material. Stig Rudeholm points us to a fascinating feature in the Guardian about "sweded movies": home-made tributes to Hollywood titles that adopt precisely this approach of creative re-interpretation. The name apparently comes from the film "Be Kind Rewind", where DIY imitations of studio favorites are passed off as Swedish editions.

As the article's author, Ben Walters, writes, beyond the surface humor, there's something interesting happening here:

sweded movies are a form of talking back to Hollywood. Along with recut trailers and "supercuts" of familiar tropes, they represent a fledgling digital moving-image culture that presents a radical challenge to the mainstream movie industry. They are created as fun for fans but the ideas of entitlement and agency underpinning these videos will shape how we all consume -- and produce -- moving images in the 21st century. They are a taste of what comes after Hollywood.

He gives some examples of that "talking back":

see, for instance, the video The Star Wars That I Used to Know, which combines anti-Lucas sentiment with Gotye's music. The same sense of media-savvy pushback is evident in trailers that reconfigure The Shining as a family comedy or Mrs Doubtfire as a stalker horror; and in supercuts that point out how much Julianne Moore likes to cry or how often the word "fuck" is used in The Big Lebowski.

What's striking about these, he suggests, is the lack of traditional deference to Hollywood and its highly-paid artists. Films are no longer immaculate creations that can be looked at but not touched; instead, cinema has become a store of images, sounds and symbols to be constantly reshuffled, re-used and reshaped in new works of sweded art, offering yet another example of lowered barriers to creativity brought about by low-cost digital technology.

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