Recently, we covered an example of the somewhat pervasive mentality that the Android app store is a haven for evil, evil piracy. Nevermind that the claim that Android is "built for piracy" is completely insane. Unfortunately, perception is real enough to cause Google to exert more strict control over it's Play Store, and the resulting hardship on innocent bystanders is as predictable as a drive-by shooting.

Wired tells the story of the Cory and Andrew Trese, two brothers who are the very epitome of indie developers, and how they have found themselves under attack by Google as a result of this crackdown. Let's be clear in saying that these guys are not pirates, they're not some mega-corporation, and they don't have time to fend off unnecessary attacks resulting from an overreaction to a non-problem:

"The Trese brothers are so indie, they don't even know it. Their games are marketed through a simple Blogspot blog and unpretentious older brother Cory Trese routes all of his regular email correspondence through the address of his wedding photography business. Trese Brothers titles like Star Traders and Templar Assault might not feature cutting-edge graphics or revolutionary gameplay, but the ambitious scope of their games and steadfast dedication to constantly improving them has won them a small but loyal following. With a growing reputation for floating above the needs and desires of everyday people, Google's relationship with salt-of-the-earth devs like the the Trese Brothers are exactly the sort they ought to be cultivating. Instead, Google is about to chase the Treses off of their platform."

These are the good guys. The small-business types working overtime everyone likes to talk about. But when Google recently brought their app store under more strict control, allowing them to be more heavy-handed in what they allow on the platform, the Trese brothers began getting messages saying that they were somehow in violation and their apps would be dropped from the store.

"Cory Trese started receiving seemingly-automated emails from Google last week, informing him that he and his brother's games were violating the spam provisions of the new developer terms and conditions. Trese was dumbstruck.

"I was terrified, frankly," Trese told me. "I started trying to figure out how we got flagged. Maybe we update too often.""

 

It should be pointed out that the notion that frequent updates triggered the spam notice from Google is pure speculation...because as Google is now tasked with aggressively policing their app store, they're finding less time to respond to app developers questions via email or the support message board. The Trese brothers have been trying to get a response to no avail as of the time of this writing.

And this is the problem with a shotgun approach in responding to perceived issues with piracy on platforms: you end up taking out innocent bystanders in the process. We saw it with Megaupload, where artists and users used the service legitimately but were caught in the DOJ's ocean-spanning shotgun attack. We see it every time bit torrent technology is attacked, despite artists and users that also use it legitimately. Actions taken against perceived piracy problems need a scalpel approach, so that innocents like the Trese brothers don't have their creative output stifled.

Update: Commentors and Cory Trese himself stepped into the comments section to add some further clarification. It appears that the issue had to do with keywords in the description of Trese's games that still coincide with Google's tightening the ropes on their app store (thanks for the comments, guys!). Bottom line, it would appear that there is still some heavy-handedness and a lack of communication with app developers in this case, though Cory did say that Google reached out to them once news of this had got out.

Getting a tenured professorship position has been the dream job of a multitude of highly-educated researchers, but as funding cuts have hit public universities, these careers aren't looking as attractive as they once did. The academic system may soon be looking at some significant changes if the promise of tenure no longer serves to compensate underpaid educators. Here are just a few complaints about the current system, and feel free to suggest some solutions in the comments....

• Associate professors are unhappy (significantly less satisfied than assistant or full professors)... with the monotony of writing research grants, publishing and teaching. Maybe it's a mid-life crisis, or just the realization that there's not much appreciation for teachers in general. #firstworldproblems? [url]
• The problems with academia are nothing new -- graduate education has been called the "Detroit of higher learning" for a while now. Full-time professors probably shouldn't complain too much around grad students and adjunct professors, though. [url]
• Tenured CS prof Terran Lane explains why he resigned from his position to go work at Google. "We're being paid partly in cool. If you take away the cool parts of the job, you might as well go make more money elsewhere." [url]

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

At the moment, the patent system is seriously malfunctioning. The high volume of low quality, poorly defined patents, particularly in the software and IT industries, is catalyzing the explosion in patent litigation. And lately, the problem has been getting much worse. In fact, the amount of litigation involving software patents has tripled since 1999 and a software patent is more than twice as likely [PDF] to be involved in litigation as its non-software counterparts.

Our broken system affirmatively penalizes innovation. Empirical research has shown that the more money a company invests in R&D, the more likely it is to be punished with infringement litigation. This weakens our economy and harms our nation’s global competitiveness. Just ask America’s most prolific legal scholar, Judge Richard Posner. Furthermore, last year’s patent “reform” legislation, the America Invents Act (AIA), did little to solve the fundamental problems at the heart of the current explosion in litigation. As Richard Waters of Financial Times wrote last year, the AIA did little to fix the broken system:

Yet, while there was general agreement that an overhaul was badly needed, the law that was eventually passed did little to fix what is widely seen as the current system’s chief weakness: that it leads to the issuing of too many patents that lack real innovation and that clog up the legal system once their holders seek to enforce them against alleged infringers.

As a result, we have arrived at another inflection point as patents, and the problems surrounding them, are again in the headlines. Although the Samsung vs. Apple trial, and its fight over who owns the rights to a rectangle, is getting a majority of the recent headlines, another major patent battle is looming. This Monday opening bids were submitted ahead of an August 8 auction for some 1,100 patents belonging to the now bankrupt Eastman Kodak Corporation. Given the rampant patent litigation in the high-tech space, the thought of 1,100 more litigation weapons flooding the marketplace is troubling. The situation gets even more worrisome when one looks at the parties lining up to bid.

The Wall Street Journal reports that both Apple and Google are leading competing consortia in an effort acquire these patents, which largely pertain to digital photography – a key component in smartphones. The consequences of this will potentially open up another front in the smartphone patent wars. Although Google’s consortium appears defensive, as it is made up of its partners in the Android ecosystem, Samsung, LG and HTC, and defensive patent aggregation firm RPX (which pledges never to assert its patents offensively), Apple’s consortium is headlined by the notorious (and massive) patent assertion firm, Intellectual Ventures, and Microsoft.

The partnership between Apple, the main litigant in the global “thermonuclear war” against Android, and Intellectual Ventures, the king of the patent trolls, is particularly troubling for many reasons: two of which are explored here.

The Sketchy History of Recent Patent Auctions

As many observers of the patent world may remember, there have been two major recent patent auctions in the IT space, where failing companies’ patent portfolios have been put on the auction block. In the case of Novell, which was in the process of being acquired by Attachmate, 882 patents were sold to a consortium of bidders, including Apple, Microsoft, EMC and Oracle. In the case of Nortel, the former Canadian Telecom giant that fell on hard times and went bankrupt, its patent portfolio was eventually purchased by Rockstar Bidco, a consortium of companies that included Apple, Microsoft, Sony and EMC. In both cases competition concerns were raised, particularly from supporters and users of open-source software, that prior commitments made by patent holders and new commitments made by the purchasers, not to use patents against open-source software (or to abide by prior FRAND commitments) would be honored.

However, despite these concerns, the antitrust regulators world over – relying on pledges from the parties involved in the transaction – stated their belief that the prior commitments from Novell and Nortel regarding the use of their patents would be honored by the new owners.

As Michael Tiemann of the Open Source Initiative (OSI) commented on the Novell transaction:

When the OSI first learned of this proposed transaction, we were alarmed that four companies with dominant market positions and a mixed attitude towards open source software could redeploy what the open source community had considered to be a friendly asset–Novell’s patent portfolio–into a weapon against open source software. We are delighted that you have made clear that the [german antitrust regulator] cannot allow a transaction that would create or strengthen a dominant position on markets in which such investors are active, and we are happy to provide the additional information you have requested about the proposed restructuring of this transaction.

In the US, the DOJ approved both deals (plus Google’s Motorola acquisition) but said it would continue to monitor the wireless device space because it remained concerned as to whether or not prior pledges would be honored:

The division’s continued monitoring of how competitors are exercising their patent rights will ensure that competition and innovation are unfettered in this important industry.

All three of the transactions highlight the complex intersection of intellectual property rights and antitrust law and the need to determine the correct balance between the rightful exercise of patent rights and a patent holder’s incentive and ability to harm competition through the anticompetitive use of those rights.

However, soon thereafter, the President of the company behind the Apple and Microsoft backed bid – the Rockstar Consortium – publicly repudiated new commitments made by the companies that established it, saying: “We are separate. [Apple and Microsoft's pledges] don’t apply to us.”

This is made even more troubling by other comments that the head of the Rockstar Consortium, John Veschi, made in the same article, which included doozies like:

“Pretty much anybody out there is infringing… It would be hard for me to envision that there are high-tech companies out there that don’t use some of the patents in our portfolio.”

And this revealing comment that articulates Veschi’s justification for holding the rest of the industry hostage:

“A lot of people are still surprised to see the quality and the diversity of the IP that was in Nortel… And the fundamental question comes back: ‘How the hell did you guys go bankrupt? Why weren’t you Google? Why weren’t you Facebook? Why weren’t you all these things, because you guys actually had the ideas for these business models before they did?’ They were within a Bell Labs-y kind of environment, and maybe the wherewithal of turning them into businesses wasn’t necessarily there.”

So, to recap, the commitments that gave worldwide antitrust regulators the confidence to approve these controversial deals are being repudiated by the individual with the power to ignore them, and who thinks that:

1. Everyone in the IT industry infringes on his patents.
2. Because Nortel – his former employer where the Rockstar patents came from – had some ideas, but was less successful at implementing them, he has the right to hold the rest of the IT industry hostage.

Apparently, the purpose of the patent system is to allow unsuccessful companies the right to extract billions of dollars from companies that are more successful. (Again, how is this not a net drag on innovation?)

But the very fact that he claims EVERYONE in the IT industry infringes on his patents seems to be prima facie evidence that many, if not most, of these patents were not novel, and therefore invalid… unless he is contesting that every IT company stole Nortel’s ideas, which is laughable. But I digress…

What we do know now is that patent commitments made to competition authorities are suspect (and, of course, commitments are made to be broken), particularly when patents are controlled by NPEs outside of the direct control of the original purchasers.

Loose Nukes

To fully understand the problems posed by Intellectual Ventures’ involvement in this new consortium, one must also understand the tectonic shift in the underlying foundations of the patent system. Although the explosion of low-quality, poorly defined patents – particularly in the software space – has long been identified as a problem that greatly increases litigation risk and the overall deadweight loss to our economy, the problem has been largely isolated until recently. It was once thought that the threat of Mutually Assured Destruction (MAD to borrow the Cold War acronym), meant that the big companies with large patent portfolios would not sue their peers because they would be sued back and everyone would lose. However, the rapid growth of huge non-producing entities (NPEs) that exist solely to exert other people’s patents (usually acquired through bankruptcy) against successful companies greatly changed the precarious MAD equilibrium that once existed.

Some – admittedly clever – companies, such as Apple, recognized that they could acquire patents, take a perpetual license to them, and then sell them off to NPEs such as Intellectual Ventures (or as they have already done with Digitude), who are then incentivized to attack the original purchasers' competitors (because the purchasers have a license and its competitors don’t). This strategy allows the original purchaser to attack their competitors and make money off of the patent sale to the NPE (and often they take a cut of the litigation and settlement revenue as well) all the while insulating themselves from the threat of countersuit (the NPE is immune to the threat of counter-assertion because they don’t make products and therefore do not infringe on anyone’s patents).

To extend the nuclear war metaphor to encapsulate this new phenomenon, if the old paradigm was Mutually Assured Destruction where corporations, like nation states, refuse to attack each other because of the threat of personal annihilation, these new NPEs are akin to stateless terrorist entities with nuclear weapons, who are immune to direct threat of attack. Also, much like stateless terrorist organizations, these NPEs move in the shadows and cover their tracks. Intellectual Ventures, by one scholars account, has at least 1300 shell corporations – so its activities are difficult to track. So, we therefore see “states” discretely selling “nukes” to “terrorist cells” with the understanding that they will be used against their foes who cannot directly attack them back.

The bankruptcy portfolio auctions, however, are a variation on this theme, and are more similar to loose nukes from “failed states,” wherein weapons of business destruction flood the marketplace as one entity fails, and the remaining entities with the most to lose – enterprises that actually produce value – must scramble to keep these loose nukes out of the hands of less reputable actors.

DOJ Should Review Newest Auction with Recent Trends in Mind

These patent consortiums allow companies like Apple and Intellectual Ventures to work together to acquire more patents that will be used in the thermonuclear war against Android. As the case of the prior auctions make clear, the commitments that competition authorities have relied on in the past to ensure that these consortiums don’t use patents “anticompetitively” (which is semi-ironic, given that new patent thickets are valuable because they give you the right to harass your competition) are suspect at best, particularly because Intellectual Ventures will filter the patents through a network of “legally distinct” shell companies – companies that “companies” will likely claim prior commitments don’t apply to them – before they are used against Apple’s Android competitors, which they surely will be, given the incentives of those involved.

Given the Justice Department’s prior concerns and recent micro and macro trends in the patent ecosystem, it seems that it is completely appropriate for the DOJ (and competition authorities around the world) to review this upcoming transaction from a different lens than it did just 6 months ago. The world has changed.

Cross Posted from Project DisCo

It's becoming all too common that when the US has some sort of diplomatic event going on with another country, that country pulls some sort of stunt as a "peace offering" of sorts to US diplomats. We saw it with Colombia rushing through its own version of SOPA right before a visit from Obama. And now, the Ukraine appears to have seized Demonoid with the timing designed to coincide with Deputy Prime Minister Valery Khoroshkovsky‘s first trip to the US. Demonoid may well be breaking the law (we'll wait for the details on that, though the report claims that the site was careful to stay on the right side of Ukrainian law), but the timing is once again suspicious, as is the willingness of other countries to kowtow to US diplomatic pressure in cases like this.

There have been plenty of artists inside and outside the system recognizing that, yeah, it sucks to not get paid for every copy of your work, but on the bright side, at least people are watching/listening/reading. Hit children's book Go The F**k to Sleep built buzz with unpaid copies roaming the internet. A former WB record exec claims "File sharing leads to more sales." Canadian rap star Drake leaking tracks all over the internet to get fans listening and talking. Why? Because the more people you can expose to your art, the better. But if you ask Hollywood about file sharing you get the alphabet in response: SOPA, PIPA, E-PARASITE, TPP, ACTA. Piracy is killing the motion picture industry, full stop.

Contrast that with this statement from Indian filmmaker Anurag Kashyap, who works in a country where piracy is omnipresent, rather than just an over-inflated set of numbers to wave at easily impressed Congressmen:

While chatting about his experiences in Kanpur, where he's spent some part of his life while he was studying for the IIT entrance test, the topic veers to the menace of piracy in Indian cinema. But surprisingly, Anurag is one of the few filmmakers who feel that piracy is justified. "Main aaj jo kuch hoon, piracy ki wajah se hi hoon. It was through pirated versions of my movies that people got to see my work," he says and goes on to elaborate, "I feel that cinema is something that should reach the maximum number of people. If the audience does not get to see affordable cinema, it will turn to cheaper, pirated entertainment."

Unlike the hysteria we're used to, often conflated with knockoff fire extinguishers and child pornography, Anurag views piracy as more than simply a necessary evil, but an actual necessity. That is, if your aim is to have your work seen by as many people as possible. Obviously, if your aim instead is to do everything in your power to make sure that every set of eyeballs that come in contact with your work have paid upfront, then you'll take a much dimmer view of file sharing.

Anurag's not done yet, either:

"If we want to see a successful Hollywood today, often we have to take the help of piracy because it's not necessary that that film is legally available in your city. That's why filmmakers need to understand that their work should reach more and more people, because today cinema is not all about entertainment. In fact, I feel that we filmmakers should use cinema as a tool to make a strong impact on society. And if people are watching such meaningful cinema through piracy, I believe it only helps to deliver the filmmaker's message to the masses."

All very good points. First and foremost: sometimes you don't have a legal option because of licensing issues, regional blocking, "you people are all pirates," GEMA wants its cut, etc. But beyond the logistics is the fact that if you're an artist and you want to have an impact on people, it behooves you to get your creations in front of as many people as possible.

Here's a filmmaker working in a country where piracy is an absolute given, so much so that the government has taken some very surprising steps in an effort to curb it, including blocking file lockers and video sites at the ISP level. And yet, despite massive infringement, all he sees is the upside. He's doing this for a living and yet he's not loudly wondering where his boom mike operator will get his next meal or saying something asinine about a future full of cat videos, all the while attempting to recast record box office receipts as the Fifth Horseman of the Creative Apocalypse.

And before you write off Kashyap as just some dude you've never heard of from somewhere else, here's a brief recap of his work (via the Wiki):

As a filmmaker, he is known for Black Friday (2004), a controversial and award-winning Hindi film about the 1993 Bombay bombings, followed by No Smoking (2007), Dev D (2009) Gulaal (2009) That Girl in Yellow Boots (2011) and Gangs of Wasseypur (2012).

As a screenwriter, he wrote the scripts for the Filmfare Award-winning Satya (1998) and the Academy Award-nominated Canadian film Water (2005).

In 1999, Kashyap won the Best Screenplay award for Satya at the Star Screen Awards. The next year, his short film Last Train to Mahakali won the Special Jury Award at the same awards. His feature film debut Black Friday won the Grand Jury Prize at the 3rd Annual Indian Film Festival of Los Angeles (2005), and was a nominee for the "Golden Leopard" (Best Film) at the 57th Locarno International Film Festival (2004).

He was listed on the The DNA power list: Top 50 influentials, a list of 50 most influential Indians in 2011. Kashyap currently serves on the board of Mumbai-based NGO, Aangan Trust, which helps protect vulnerable children around India.

It seems that those who value their own work as art over commerce are the ones who see how file sharing can pay dividends in the long run. Those who tend to view their work as a P&L sheet can only see the negative. You don't have to like or condone piracy to see the possible upside. Kashyap almost seems to view it as a distribution system that reaches places he can't, free of charge. Hollywood, however, seems to be too busy playing the victim to draw that same conclusion.

Honestly, the MPAA needs to hire someone who actually understands a modern media strategy -- rather than a media strategy from the last century. It seems like nearly everything they do or say is calculated to piss off the public, rather than convince them of anything reasonable. Every chance they have to say the right thing, they say the wrong thing. Every chance they have to take a step towards making a connection with the public, they go the other way. We've seen how they call their biggest fans criminals. We've seen how they attack the internet. The latest is their Quixotic campaign against Richard O'Dwyer.

TorrentFreak, which lately has been on a streak of finding and publishing leaked info from the legacy entertainment industry, has done it again, publishing the MPAA's talking points document for responding to press inquiries about O'Dwyer, the UK college student that the US government is trying to extradite from the UK for running TVShack.net. They also have the MPAA's plans to find sock puppets to attack O'Dwyer. The two documents are from July 19th, so it's quite recent, and they try to respond to Jimmy Wales' recent involvement in trying to stop the extradition process. As with any good propaganda, the MPAA appears to take comments out of context to twist them against O'Dwyer. For example, it quotes that the site reminded people of how much money they were saving by watching free videos, rather than paying for movies. But nothing in that statement says that the videos they were watching were infringing copies -- just substitutes for going to the theater.

The sock puppet document is the really telling one, in that they admit that that the "overall media coverage has been and will continue to be challenging." Now, when pretty much everyone sides with O'Dwyer and against the MPAA, a normal, sane organization might think that its strategy is (perhaps) a mistake. But the MPAA instead decides to double down by trying to find sock puppets to publish blog posts and editorials about why O'Dwyer is a dirty stinking criminal:

To counter these assertions, the MPAA and its allies need a coordinated effort to focus more on the criminal activity involved in the operation of TVShack and other similar linking sites. Ideally, this would be done through third parties – but finding third parties – especially in the United Kingdom – has been very difficult so far, so the MPAA must be prepared to respond to media requests on the issue and set the record straight to counter the misinformation campaign by our opponents.

The thing is, the only "misinformation campaign" is coming from the MPAA itself, with these talking points and "how can we get stooges to spin this" document. The folks supporting O'Dwyer have no such things. They just speak the truth.

Furthermore, the documents completely ignore the legal arguments that make the O'Dwyer case incredibly questionable. They, of course, highlight the recent surfthechannel.com ruling in the UK to support the argument that O'Dwyer was breaking the law in the UK and the US. But that ignores the many questions raised by that ruling, and the fact that multiple similar cases went the other way or that similar US cases also seem to be going the other way too (though, that last one came out after this document was written).

There are also some laughable claims about how the decision to go after O'Dwyer was made by Homeland Security and ICE. However, as documents in other cases have shown, ICE relied heavily on claims from the RIAA and MPAA, despite little evidence to support those claims.

Separately, the MPAA weakly tries to hit back on the claims about internet freedom by saying that "this case isn't about Internet freedom. It's about a man profiting from theft." Funny, he hasn't been charged with "theft" as far as I can tell. It seems that the MPAA has trouble with ever being truthful -- even when claiming its providing facts to counter misinformation. And, as the Posner ruling recently showed, being a third party site that has embeds of infringing videos isn't infringing itself -- so arguing that O'Dwyer is some sort of master criminal is pretty laughable.

Then there's this:

Copyright law is a tool to protect the work of creators and makers, not censorship

They should try to tell that to some of the many people whom copyright has been used to censor over the years. The fact that copyright was supposed to be a tool to protect creators does not mean it can't be used for censorship. It is, regularly. The two things are hardly mutually exclusive. And, if the MPAA were being honest (ha ha, I know...) it would note that it doesn't represent the interests of creators and makers at all. It represents the studios, who do whatever they can to rip off content creators... while keeping the copyright for themselves. If the MPAA wants to spew bogus "talking points," (and get sock puppets to do so for it) perhaps it should start by figuring out how to defend its regular actions that block artists from getting paid.

In the end, though, this just highlights how incredibly tone deaf the MPAA and its communications staff is to public perception. Attacking Richard O'Dwyer, who has strong public support behind him is not a winning strategy by any means. I'm trying to figure out what the MPAA thinks it's accomplishing here and I'm drawing a blank. The more the MPAA seeks to demonize O'Dwyer, the worse it looks. Even if he is extradited and convicted, all they're doing is creating another hero/martyr, and more people who think the MPAA is an old, out of touch, unwilling-to-adapt monster, locking up college students. At best, I'm thinking the MPAA thinks this will act as an "education campaign" targeted at other sites running forums like O'Dwyer's. But that seems doubtful at best. Similar sites are all over the internet and have been for years. All this effort is doing is helping the MPAA dig its own hole deeper and deeper. It's like a perfect case study in how not to do communications strategy today.

We hear from copyright system supporters that bogus copyright takedowns are rare and we only highlight the "exceptions." Of course, it seems like there are an awful lot of these exceptions. The latest is that with the massive success of last night's Mars landing of the Curiosity Rover, NASA posted the video to YouTube for those who didn't watching the thrilling, suspenseful landing live... except, if you checked out NASA's own YouTube page a few hours later, you got this:
screenshot courtesy of Motherboard It's back now, but as Vice's Motherboard blog explains, this kind of thing happens all the time. They spoke with Bob Jacobs, NASA’s Deputy Associate Administrator for Communications, who said that this happens about once a month, and almost always happens with NASA's popular videos.

“We spend too much time going through the administrative process to clear videos slapped with needless copyright claims,” says NASA’s Bob Jacobs. “YouTube seems to be missing a ‘common sense’ button to its processes, especially when it involves public domain material paid for by the American taxpayer.”

Jacobs is quite reasonably annoyed at the lack of consequences for these bogus takedowns:

“There seems to be few consequences for companies that engage in such activities, which often include legitimate news organizations. We do agree that people who make false copyright claims against our material should be held accountable, regardless of their automated systems.”

What's amazing here is that Scripps is a repeat offender with NASA. Back in April, people noticed that it had forced the removal of NASA's (again, public domain) footage of the Boeing 747 that carried the space shuttle Discovery to the Smithsonian (its "final journey"). But, of course, there aren't many (or even any) serious consequences for these kinds of mistakes. While it's not clear what happened, it seems likely that Scripps replayed the footage itself somewhere, and via some semi-automated process uploaded it to YouTube's ContentID, in which it claimed copyright on all its works. But, of course, it was actually broadcasting public domain video from NASA. Unfortunately, YouTube can't recognize that Scripps is the latecomer here, rebroadcasting others' public domain material, and thus took down the material, only to have it corrected later.

Given that Scripps is now a repeat offender, it seems that perhaps YouTube should cut it off from automatically censoring others' videos.

Oh, and if you want to know one of the reasons we're so concerned about a possible broadcast treaty (which the US government is now supporting), it's because it actually would make these kinds of claims quasi-legal, in that broadcasters who broadcast public domain material could then claim a separate "broadcast right" over that footage. Even without that, we see operations like Scripps abusing the law. Do we really want to expand that power?

Now, since the video is back up, here's the actual (public domain) footage, in case you missed it (and if you did miss it, you should watch it, as it really is incredible):

The latest example of nutty trademark claims comes from Rimowa, makers of various luxury luggage cases, including the Topas briefcase that has been seen in various movies over the years -- including The Avengers. The case is distinct, and Rimowa actually cultivates its appearance in movies, hiring a product placement firm with the ridiculous name PRO.P.AG.AND.A G.E.M. to get its products into movies. As Marvel was working on the movie, it apparently got one of the Rimowa Topas cases itself, but also asked the product placement firm for some backup cases, which it provided on the condition that they be returned to the company after filming (which they were). However, with Marvel announcing its box set being packaged in a "replica" case, Rimowa is not happy: Rimowa has now sued Marvel and Buena Vista Home Entertainment claiming trademark infringement over the case. The lawsuit notes:

Images of the replica briefcase on Marvel’s advertising materials, and fan video from Marvel’s product display at this year’s ComicCon convention, show the plastic ‘replica case’ to be a close copy of Rimowa’s Topas attache case in every respect but quality -- from the proportions and coloring, to the style of the handle and latches, and, of course, in the use of the trademarked parallel ridges around the body of the case.

Of course, for there to be a straight trademark infringement claim, (1) they have to be competing in the same market and (2) there must be a likelihood of confusion. It's difficult to see how either thing is true. A movie box set is not in the same market as an overpriced travel case. And no one's buying one thinking it's the other. In fact, I'd think that having the replica used for the box set would likely increase interest in buying a real Rimowa case. And isn't that why the company wants its cases in movies in the first place?

There's a separate "dilution" trademark claim, suggesting that this packaging somehow dilutes the company's trademarks, but again, I just don't see it. It seems to reinforce the value of the original cases, not take anything away from it. Of course, the company's actions have ensured that I'd have no interest in ever buying any of its products in the future -- in which case, filing silly petty lawsuits is likely to do a lot more harm to its brand than the fact that Marvel is playing up its style in the box set packaging for a hugely popular movie.

Every so often you come across a conclusion so badly drawn it makes you wonder how the person got from point A to... well, not exactly point B but somewhere well past point B, off in an ethereal realm inhabited by the denizens of overly-complicated word problems and their constantly variable forms of transportation. ("If a premise leaves the train station [Point A] at 10AM riding a bicycle at 3 mph for the first hour and increasing speed by .25 mph every hour for the first four hours before decelerating at a rate inversely proportionate to the incline of the grade [17%], at what time will the bicyclist's speed be exactly 1/4 the average flight speed of the Africanized honey bee? Show your work.)

On even rarer occasions, you'll find this counterintuitive "conclusion" not only applauded for its immaculate "logic," but expounded upon as though it were the genesis of a world-breaking thesis. The obliqueness (and obtuseness) begins with a simple bit of rhetorical questioning by Larry Crane of Tape Op Magazine: "Why does Youtube apologize to people who have illegally uploaded my content?"

I politely asked Youtube to remove a song by my old band that someone had posted without permission. They took it down but then apologized "sorry about that" and ran my business name as if "blaming me" for removing content. Really? Wow. Pretty damn impartial, huh?

Before we get to the title question, let's deal with the rest of the post. You asked YouTube to remove a song and they complied. What's the problem again? Oh, right. They apologized. Hmm.

They also had the temerity to name the business that requested the takedown. What did you expect them to do? Just simply write "This video is no longer available" and be done with it? Of course they named who did it. Do you know why? It's not to "blame" you, which, as the party responsible for the takedown, the "blame" is wholly yours. No, it's to inform viewers and uploaders and other interested parties that this video was taken down to comply with a takedown request, which is something YouTube needs to do to retain its DMCA safe harbors.

The other reason the takedown party is listed is because, sometimes, in rare cases, the takedown isn't legit. Sometimes it's just a clerical error. Or maliciousness. Or a faulty algorithm. This way interested parties can contact the party listed if they feel the takedown is in error. Again, this is a rare occurrence, one that has only happened a handful of times. Like here, for example. And here. And here. And here. Oh, there's also this one. And this other time. Another rarity. Once-in-a-lifetime experience. Well below the expected margin of error. Nothing to see here either. Anomaly. Freak accident. Outlier. In short, it's a handy way to tell at a glance who took the video down and decide whether or not the takedown might be in error.

But, back to the big question: Why does YouTube apologize to the infringing uploader? Good question. But you'll never get an answer because that apology isn't for them. It's not for you, either. It's for the viewer who clicked play and got a dry slab of info rather than the tune/video he or she was expecting. YouTube doesn't apologize to infringing uploaders. They send notices to their account inboxes and email addresses informing them that a video is being removed by request of the rights holders and gently reminding them that if they don't knock this shit off, their account could be deleted.

I'm really not sure how anyone could read that screen and decide that YouTube is oh-so-sorry for being forced to end the uploader's infringement party because of a few rights-holding killjoys. This apology is for fans and potential fans -- the viewers who came here expecting to be entertained and instead got a face full of "NOTHING TO SEE HERE."

Let me ask you a question, Larry. What wording would you use? "YouTube is robbing this artist no longer. Praise Jeebus." "Sorry about all of our infringement, but we're really just a pirate site in corporate clothing." "Enjoy the silence." "'Enjoy the Silence has been removed due to a copyright claim by Warner Bros. Records."

This [waves black and white avatarial arms in the general direction of above] is ridiculous enough. It's just Google-hating in search of a point. But then, someone else decides "ridiculous enough" isn't ridiculous enough. Chris Castle adds some invaluable commentary:

Larry Crane of Tape OP Magazine highlights what must seem like a curious practice by YouTube. First thing--it's Google, so understand that they don't care at all what artists think. Having said that, it will not be surprising to know that YouTube has long employed a tactic that can be thought of as Chilling Effects Lite. acting out of enthusiasm for the artist's music. 

Google hate? Check. Moving on.

YouTube leverages the fact that most YouTube videos are embedded in a variety of places, including the artist’s own home page.

Why would an artist embed an infringing video on their own site, especially if they're considering sending a takedown notice? Do they just want their media page to have a sort of "going out of business look?"

This distribution was accomplished by the efforts of the artist or the artist's manager, or the artist's record company or by fans of the artist.

So: if the person who uploaded the infringing video is a fan, you'll reinstate the video? Because the funny thing about uploaders, they don't tend to upload stuff they hate. They're usually fans and they upload songs that aren't on Youtube yet, not to violate copyright laws, but to share music they like. In this example, Chris lists fans as victims of Google's evil "name-and-shame" policy which leaves dead-end embedded videos littering their site but simultaneously wants to chastise fans for uploading the videos without permission, possibly to place on their fan sites. Which is it? Fans = victims? Or fans = infringers who don't deserve the apologies they're not actually getting?

Now, I really didn't want to include this much text, but I'm afraid that if I edited it in any way, I'd be accused of cherry-picking in order to obscure Castle's point. So, here's the whole thing and I welcome you to figure out the point on your own.

When YouTube gets a take down notice that actually results in YouTube removing the video–usually because the poster hasn’t filed a counternotice (which in YouTube’s case can be essentially anything from the poster indicating a pulse)–YouTube isn’t satisfied to just remove the video. (This would cause the video to go dark everywhere it's embedded. Instead, YouTube takes it upon itself to post a notice to the World of Free that campitalizes on the efforts made by the artist and those working with the artist (including fans) to use those efforts to YouTube's benefit. How? YouTube uses the same embed codes to post a notice that YouTube had to actually comply with the law. If that notice comes from an artist’s record company or the music publisher of the recorded song, then everyone who has the video embedded suddenly has a messge “apologizing” due to the fact that YouTube controls what replaces the embeded video that was removed. That “apology” is then flashed across the Internet including the band’s own webpage if they have embedded any YouTube videos. YouTube then feeds that “story” to the Google press who dutifully report on the incident as manufactured news.

The gist of it, if it even contains a "gist," seems to be that YouTube complies with the law in a way that is most advantageous to it, PR-wise. That's what I'm picking up and I had to cross out nearly every other word to do it. The specifics, all strung together, add up to nothing at all, other than a whole lot of words being wasted in order to state: "I greatly dislike Google and its subsidiaries."

"The video goes dark at every location it's embedded" because... it's embedded. Castle even states as much. But somehow, this devious code trickery adds up to something evil. And why is it evil? Because sometimes these videos are embedded at the artists' own sites. And when the artist (or their representation) issues a takedown, it causes videos on the artists' sites to go dark. Leading us back to one of our original questions: what the hell is this hypothetical band (let's call them "The Victims") doing embedding videos if it's just going issue a takedown anyway? It's like some bizarre copyright-infected murder-suicide, only with the murderer pointing the gun at his own head first.

And as for all the other verbiage about Google feeding the press reports about nefarious takedowns by evil labels, etc. etc. etc.? You know who usually alerts bloggers and musos and "the press" about overreaching or ill-advised takedowns? The fans. The same fans who are "victimized" by YouTube's takedown policy and the same fans who are being denied an apology by your insistence on playing the victim after YouTube did EXACTLY WHAT YOU ASKED THEM TO and COMPLIED WITH THE LAW.

Larry, Chris: You two deserve each other. Even when YouTube does everything right, it's still somehow a screw job.

For a few years now, we've been hearing pay TV execs (and some of their favorite Wall Street analysts) claiming that cord cutting in the US is some sort of myth, even as the numbers continue to prove otherwise. The latest stat is that, since the beginning of this year 400,000 households have cut the cord and dropped pay TV services. At what point will the TV guys realize that cord cutting is real? They still like to blame it all on the economy, but the fact is that the vast majority of these users are never going back. Until TV execs realize that's a fact, they're never going to understand how to adapt.

A few months ago, we noted that Samsung's new phones had rather odd designs... and the theory making the rounds was that, considering the ongoing worldwide fight it was in with Apple, it was trying to go out of its way to make the phones as un-Apple-like as possible. Of course, that resulted in ugly, weirdly shaped phones.

As you may (hopefully?) know, some of the patents in the fight are "design patents" rather than utility patents. When people talk about patents, they usually are referring to utility patents. Design patents are, in many ways, more similar to trademarks than to utility patents. But it creates odd situations where Apple gets to claim "ownership" of the concept of a rectangular device with rounded corners. It's also important to remember that design patents can't be for functional features, but only for design/appearance. That means that Apple has to insist that the basic design of the iPhone and iPad aren't functional at all.

As Matt Schruers highlights, that means that Apple is left in the awkward position of insisting that these basic concepts that are sort of obvious design choices to make such devices functional both aren't functional at all and that there are perfectly reasonable alternatives. For example, Apple's lawyers have suggested some "alternatives" in how Samsung could have designed its devices:

“front surfaces that are not rectangular, not flat, and without rounded corners; display screens that are more square than rectangular or not rectangular at all, display screens that are not centered on the front surface of the phone...”

and

“overall shapes that are not rectangular with four flat sides or that do not have four rounded corners; front surfaces that are not completely flat or clear... and profiles that are not thin”.

So what would that mean? Schruers explains:

Of course. Surely consumers would happily hold a large, thick, bumpy, sharp-edged hexagonal thing up to their head. They’ll no doubt appreciate the different “ornamental” approach while reading through their opaque screen. No functional drawbacks there.

Does that even sound like an object you would willingly put in your pants? Having a device that is not an unwieldy weapon-like object is a functional feature, not an ornamental design choice. One is not going out on a limb in concluding that if the object design increases your likelihood of getting strip-searched at the airport, those are functional drawbacks, and foreclosing functional features is not the purpose of design protection.

Oh yeah, Schruers also includes this bit of prior art to emphasize his point:

Normally when we cover studies (or lack there of) linking violence and video games, it's to show the rather uninformed way pundits and politicians go about pretending there's an established causal link where one has not yet been proven. Whether it's the press taking the low road with sensationalized headlines about Anders Breivik, or politicians attempting to get ever more inflatted warning labels on games, or simple random accusations by judges in the face of evidence to the contrary. The theme in these types of stories is clear and ridiculously simple: if the average person plays violent games, they're going to desensitize that average person and cause them to commit non-average atrocities.

So it's a bit interesting to see a study on violent video games produce some more nuanced results, such as a recent study from the University of Luxembourg that showed what researchers are referring to as "the Macbeth Effect" in the average gamer:

The researchers had 76 people play violent video games for 15 minutes, after which they were told to select gift items for others. Those who were "inexperienced" with violent video games were more likely to select "hygienic products" like shower gel, deodorant, and toothpaste than those who played violent video games on a regular basis

"The need to cleanse to keep moral purity intact, the 'Macbeth effect,' is a psychological phenomenon in which a person attempts to purify oneself in order to cope with feelings of moral distress," said lead researcher Dr. Andre Melzer. "We find that the Macbeth effect can result from playing violent videogames, especially when the game involves violence against humans."

The reference is from Shakespear's Macbeth, in which Lady Macbeth obsessively washes her hands after participating in a murder plot. And, yes, I know that some of you will say that this effect primarily showed up in those that were "inexperienced with violent video games", but that's the whole point. Those that are inexperienced with violent games are so because they aren't the kind of people those games appeal to. The games themselves aren't corrupting the minds of these people, nor are they likely corrupting the minds of those that actually seek them out. There are simply some people who like those kinds of games and some who don't.

About a month ago, we were slightly encouraged by the public statement from the USTR that it was adding language to the TPP agreement that embraced "limitations and exceptions" to copyright law -- even as we believe that it's wrong to call fair use rights "limitations and exceptions" when they're really just enforcing the public's own rights to information. We also found it bizarre and ridiculous that no text was being shared -- and noted that the USTR would garner a lot more trust if it was actually transparent and opened up the language in question for public discussion. Others expressed some specific worries about even the nature of the statement.

That said, it was a big deal that the USTR would even acknowledge such things as fair use in a document like this, because historically it had never done so. It appeared to be a "step" in the right direction, but a relatively small one.

Late on Friday, however, the text of the current negotiations on that particular section leaked to KEI who posted it to their site, and while (again) at least this is on the table for discussion, there are reasons to be greatly concerned. As many public interest groups had wondered, it appears that the text focuses on expanding the "three step" test for these expansions of user rights. The three step test for user rights, as is written into the Berne Convention agreement is much more limited than most of what we conceive of as fair use (it's also a relatively recent addition to the Berne agreement, being added in 1971). It's this:

Members shall confine limitations and exceptions to exclusive rights to (Step 1) certain special cases (Step 2) which do not conflict with a normal exploitation of the work and (Step 3) do not unreasonably prejudice the legitimate interests of the rights holder

In other words, it's written very much from the perspective of maximizing the rightsholders' ability to limit the public, rather than the public's best interest. In short, it's the exact wrong approach towards limiting the excesses of copyright. Nearly five years ago, Bill Patry warned that certain international organizations were using the "three steps" test, as a way to stop real fair use from being implemented in various countries, and that appears to be the case with the leaked text. Here is the leaked text itself:

Article QQ.G.16: Limitations and Exceptions

[US:
1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

[US/AU propose: With respect to this Article and Articles 5 and 6, each party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. [NZ/CL/MY/BN/VN propose; US/AU oppose: Paragraph 1 permits a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws. Similarly, these provisions permit a Party to devise new] [US/AU propose; NZ/CL/MY/BN/VN oppose: its understood that each party may, consistent with the foregoing, adopt or maintain] exceptions and limitations for the digital environment.]

---
92 [US: For purposes of greater clarity, a use that has commercial aspects may in appropriate circumstances be considered to have a legitimate purpose under paragraph 2]
93 Negotiator’s Note: SG/PE: Can accept both versions of paragraph 1.

As you can see, item one, proposed by the US and Australia basically inserts in the exact three step test, which makes TPP more restrictive than other international agreements like TRIPS, which give countries significant flexibility in establishing fair use rights and other user rights.

It's also notable that, in that second section, many other countries have proposed allowing a form of user rights for breaking DRM and digital locks -- something that many of us think are important. But the US and Australia oppose that section.

Either way, if you look just at the sections supported by the US, you quickly realize that what the USTR is proposing here is less about support for fair use and other user rights, and defining the constraints on such things so that TPP member countries are not able to implement more user rights.

Needless to say, this is unfortunate (though, perhaps, not a huge surprise).

No wonder the USTR refused to release this text. As per usual, it seems, the USTR was saying one thing while meaning another. Yes, it actually is recognizing the existence of user rights... but only for the purpose of limiting how countries can implement them.

Finally, as Jamie Love at KEI notes:

Dear Congress: WHY IS THIS NEGOTIATING TEXT KEEP SECRET FROM THE PUBLIC?

Leaks are hard to come by, and do not invite as much scrutiny as official versions that are shared with the public.

And this particular text is a perfect example of why this text needs to be public. The USTR made public claims suggesting a much wider embrace of user rights, but without sharing the specific text it was proposing. Now that we see what text is being proposed, it's clear why that was. The USTR isn't looking to expand or protect user rights. Instead, it appears to be merely acknowledging them for the sake of limiting them as compared to existing agreements like TRIPS.