Hey look, here's a story on which we at Techdirt actually agree with the RIAA. Shocking, I know. It appears that, for reasons that are unclear to just about everyone, the IT folks in the House of Representatives have banned the use of the perfectly legal and authorized music service Spotify because it's P2P technology. According to a report at Politico:

"To help protect House data, our IT policy generally prohibits the use of peer-to-peer (P2P) technologies while operating within the secure network," a spokesman for the Office of the Chief Administrative Officer told POLITICO this week. "While Spotify is currently not authorized, the CAO has and will continue to work with outside vendors to enable the popular services that improve member communication capabilities."

Not surprisingly, this has led to complaints from Spotify, but also from the RIAA, which finds the whole thing preposterous:

RIAA CEO Cary Sherman wrote to the Hill Tuesday to explain why Spotify shouldn't violate the House's IT policy and to lend a hand in getting the decision reversed: "These services are safe and secure, and assuring access to them not only respects the contractual relationship users may have with these services, but also achieves an important public policy goal of promoting legal, safe digital providers," Sherman wrote.

That's nice and all... though it's entirely possible the reason that there's a ban on P2P technology in the House is... due to the RIAA's own efforts in years past. You may recall that, the RIAA, MPAA and other copyright maximalists have pushed for Congressional hearings on just how evil P2P technology is, and why there need to be more laws about it. Ali Sternburg, at the DiscCo Project has the details:

It may be symptomatic of Congress being susceptible to lobbyists' generally oversimplifying and misunderstanding complex technology. As EFF's Parker Higgins tweeted in response: "The years of indiscriminately vilifying p2p technology are now coming back to haunt the content industry." In particular, the policy may be a consequence of three hearings on filesharing in the House from 2007 to 2009, which received testimony criticizing filesharing: "Inadvertent File Sharing over Peer-to-Peer Networks" on July 24, 2007, before the House Committee on Oversight and Government Reform; "H.R. 2221, the Data Accountability and Protection Act and H.R. 1319, the Informed P2P User Act" on May 5, 2009, before the House Committee on Energy and Commerce, Subcommittee on Commerce, Trade, and Consumer Protection; and "Inadvertent File Sharing over Peer-to-Peer Networks: How It Endangers Citizens and Jeopardizes National Security" on July 29, 2009, before the House Committee on Oversight and Government Reform. This context suggests that maybe those hearings caused technophobic Congressmen to panic, leading to a regulation that is now mindlessly enforced as a part of House IT policy.

She admits this is not definitely why it's banned, but it does seem notable. Perhaps, next time, rather than vilifying broadly usable technology, the RIAA and others might recognize that it can actually be the solution to their challenges as well. Nah... that'll never happen.

I hate Captcha systems. Now, I don't only hate them because they're only mildy effective while being creatively annoying, but also because I'm a toaster-class Cylon and I consider them an affront to my intelligence. Okay, that isn't true, but the fact is that Captcha hasn't evolved all that much in the past several years and it's generally an annoyance. You type in barely legible words, that occasionally have a strikethrough, and the best you can hope for is that the word combinations say something laughable so you at least get a little entertainment out of the experience.

Pictured: Security
Image source: CC BY-SA 2.0

Fortunately, one common user of Captcha is dismissing it from their site. Ticketmaster has decided that Captcha is now too hated to use. Are you ready for the massive change?

Ticketmaster has moved to ditch it in favour of a simpler system. It means users will write phrases, such as "freezing temperatures", rather than, for example, "tormentis harlory".

Oh. Okay, well that's...mildly different, I suppose. If you're wondering how this almost noticeable change in user input is going to be achieved, allow me to explain. See, instead of using whatever 8-year-old-boys-playing-Madlibs algorithm that's currently employed to generate the response words in barely legible form, the system will now be a sort of Q&A, chiefly used to allow advertising in the form of questions. For instance, you might be given the name of a well-known brand of gum followed by a request to input what the brand name is commonly associated with. You might also get to answer in multiple choice format. While the choice to include advertisements within the system may seem odd, at least everything will now be legible. Testing thus far appears to show positive results.

The average time to solve a Captcha puzzle was 14 seconds, while the new system was taking users an average of seven seconds to figure out.

Halving the input time is certainly an improvement. It remains to see how many advertisers want to be associated with a system not all that different from one almost universally hated.

A few weeks ago, we wrote about Rep. Zoe Lofgren announcing plans to via Reddit, to introduce CFAA reform, called "Aaron's Law." Since then, Lofgren has taken into account numerous concerns and thoughts from various stakeholders, many of whom discussed it directly on Reddit, and has now announced a second draft, also via Reddit. While the folks at EFF note that there are still some additional improvements needed, it is, certainly, an important step forward in much needed CFAA reform.

Of course, perhaps just as important is showing how this sort of public engagement in democracy can really work. The original draft of Aaron's Law did receive some criticism from some people (including mocking by some of our usual critics in our comments), without any hint of recognition that this is part of the process. It wasn't introduced on Reddit because it was complete, but in order to get feedback for these kinds of future drafts. That is an important point, and other legislators would do well in paying attention. And, of course, even this is not a finished product, but another snapshot as to where the process is now, with more ability for people to weigh in.

Thank you, Reddit and everyone else who provided feedback to the original rough draft bill to reform the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute – the laws the government used to unfairly prosecute Aaron Swartz. With the help of Internet freedom advocates, computer and legal experts, the draft has been revised and is available here. I have been in communication with Aaron’s father who supports this draft bill and approves of the name “Aaron’s Law.”

Like the first draft, this revised draft explicitly excludes breaches of terms of service or user agreements as violations of the CFAA and wire fraud statute. This revised draft also makes clear that changing one's MAC or IP address is not in itself a violation of the CFAA or wire fraud statute. In addition, this draft limits the scope of CFAA by defining "access without authorization" as the circumvention of technological access barriers. Taken together, the changes in this draft should prevent the kind of abusive prosecution directed at Aaron Swartz and would help protect other Internet users from outsized liability for everyday activity.

As our discussions have continued, it is clear that many believe a thorough revision of the CFAA and substantial reform of copyright laws are necessary. I agree. “Aaron’s Law” is not this complete overhaul, but is a first step down the road to comprehensive reform. If we succeed in getting this draft bill enacted into law, it will be in honor of Aaron Swartz, and should be seen as a beginning of a concerted effort to bring reform to these broader issues. To be successful, that effort will likely take substantial time and require sustained and intense support from all of you in a push that will need to exceed our stoppage of SOPA.

I see “Aaron’s Law” as common sense fixes that should be enacted to stop the kinds of abuse Aaron was subjected to from affecting others. I intend to introduce a final version of "Aaron's Law" as legislation soon, and in talking with my friend Sen. Ron Wyden of Oregon, I understand he wants to introduce it in the Senate as well. I will be urging my colleagues in the House of Reps to become cosponsors. The chances of success – whether for "Aaron's Law" or other proposals – will depend greatly on the degree of positive public engagement and support to change the law. As SOPA showed, when the Internet speaks, lawmakers listen. I think with enough constructive support we can have an opportunity to pass "Aaron's Law."

Many thanks to all of you – Zoe

Whether or not this actually works for this bill -- or whether or not this really is the full type of CFAA reform that we need (and I do think it's as good step in the right direction), it's fascinating to watch the process itself.

The fast food industry is always trying to be more efficient about its services. There have been lots of different ways to accomplish quicker fast food, and adding technology to the restaurant recipe sometimes works, but oftentimes doesn't (eg. uWink Bistros). Here are just a few examples for getting your hamburger orders filled faster.

• Momentum Machines has a hamburger-making robot that can churn out about 360 burgers in an hour, each custom made to order. This hamburger chef can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop, ever... until you are full. [url]
• In 2003, McDonald's tested some automation equipment for grilling its burgers and cooking its french fries. We covered this story about a decade ago, but we don't seem to be living in an all-robot McD's future now. Oh well. [url]
• If you're in San Francisco, you can get an In&Out Super Duper burger delivered to you for just $10, fulfilled by TaskRabbit via a simple web-based order form. It's not available any time, so there's no option to get french fries during the Renaissance. [url]

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

So, the FTC got some press today for announcing a high profile "settlement" with social networking startup Path. You might think that this is entirely about the news that came out a year ago, about Path uploading entire user address books to its server. If you don't recall, that story got a lot of press coverage. Basically, Path, like tons of social networks and mobile apps, had a feature which was "see if your existing friends already use this app and connect to them." But, to do that, it needed to know who your friends are. The process it used to do this was to upload your address book in the background and then compare it to their user base. This was, certainly, a somewhat questionable practice on privacy grounds, but it was something that lots of companies did, because it was a simple way to use the "find your friends" feature.

Of course, as soon as the story about Path went viral, most companies who were doing this very, very quickly dropped the practice, and figured out other, less privacy-invasive ways to connect you to your friends. That's a good thing. So, does the company need to be punished? It seems like negative publicity and the market took care of everything.

Well... if you look at the details of the Path "settlement," it wasn't even really about that issue at all. Yes, Path agreed to have outside privacy audits for the next 20 years (which is the FTC's go to "punishment" plan), but the hyped up $800,000 payment actually had nothing whatsoever to do with the uploading address books. Instead, it dealt with a different issue. During the investigation, the FTC also found that Path likely violated COPPA, the silly and misguided law that basically means most sites put in their terms that they don't allow anyone under 13 to use it. Of course, in practice this has significant unintended consequences, including not letting perfectly reasonable services be available to kids and (more likely) parents teaching their kids to lie about their age.

It turned out that for a brief period of time, Path did not exactly follow the COPPA rules, and actually let a few thousand kids under the age of 13 sign up. So, they may have violated the rule. But... Path had discovered and fixed this well before the FTC investigation began. The company claims it was just an oversight that their system did not automatically reject users under the age of 13.

So... the company made a mistake, caught it and fixed it, without having the FTC get involved at all. And there's no evidence, at all, that it misused the data it collected here. And yet it needs to pay $800,000? Why? For a big company, $800,000 may be small beans, but for a startup, that's significant money.

Oh, and even more bizarre: as noted earlier, lots of companies did similar things to Path, but the FTC only went after Path. When asked why they only went after Path, outgoing FTC boss Jon Leibowitz gave a non-answer, saying that they're just a small agency and so they have to "pick and choose which malefactors you want to go after." So they chose the one most likely to create headlines -- and forced them to cough up $800,000 over a "violation" that was the result of an accident, which the company had already discovered and fixed, and for which no abuse was found. That doesn't seem like good policy. It seems like vindictive choices by the FTC focused on the maximum potential to create headlines, rather than actually protect people's privacy.

While technology has reduced costs for many areas of legal practice (e.g., research), the centrality of electronically stored information to complex civil litigation has sent discovery costs skyrocketing. Hence the rapid proliferation of e-discovery vendors like so many remoras on the Biglaw shark. Nobody seems to know how large the e-discovery market is — estimates range from 1.2 to 2.8 billion dollars — but everyone agree it’s not going anywhere. We’re never going back to sorting through those boxes of documents in that proverbial warehouse. New amendments to the FRCP specifically dealing with e-discovery became effective way back in December 2006, but if the e-discovery vendors (evangelists?) at this week’s LegalTech tradeshow are to be believed, we are only in the technology’s infancy in terms of its development and impact on the legal profession.

At LegalTech, we attended a “supersession” presented by e-discovery provider Planet Data, promising to present “judicial, industry, legal, and media perspectives on where legal technology is taking litigation and how it affects you.” Don’t be jealous….

The format of the panel, comprised of an industry analyst, the editor-in-chief of the National Law Journal, and an e-discovery attorney, was a sort of moot court argument presided over by Michael Baylson, U.S District Judge for the Eastern District of Pennsylvania. The hypothetical scenario involved a discovery dispute between a “global insurance company” and “numerous and various” businesses who allege they were not informed of kickbacks to their insurance brokers. In the promotional material for this panel session, this was described as a “thrilling hypothetical.” True fact. (As Miss Jean Brodie might say, “For those who like that sort of thing, this is the sort of thing they like.”)

Anyway, in this pretend discovery dispute, the faux defendants produced hundreds of documents by way of a “stringent technology-assisted review.” The imaginary plaintiffs, on the other hand, produced a mere couple thousand documents by conducting personal interviews and keyword searches. Each side was deeply, hypothetically unhappy with the other. Judge Baylson observed that there were three ways to resolve this dispute: 1) depose those individuals actually involved the review (i.e., the IT guys); 2) appoint a Special Master; and 3) sjbfwbfoe&%ubfo44…. Huh? Sorry, nodded off there for a sec.

So anyway, among all the discussion of the work product doctrine and predictive coding algorithms, there emerged an interesting question: should lawyers be held to a standard of technological competence? Judge Baylson and the “attorney” for the plaintiffs, Anne Kershaw, had emphatic responses.

During the discussion, Judge Baylson noted, delicately, that there is a wide range of levels of technological savvy to be found among the judiciary and that attorneys would do well to account for these variances in tailoring their arguments. Relatedly, there is a movement afoot, spurred on by a series of recent ethics opinions, and embodied in recent changes to the ABA Model Professional Rule 105A, to hold lawyers accountable for their relative (in)competence regarding all matters technological. Under the new Rule 105A, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” But this is an after-the-fact approach: whether a lawyer ought to be found in violation of an ethical obligation for a technological lapse. Prompted by panel member David Brown, executive editor of ALM, the question was raised as to whether there should be, along with bar passage, character/fitness, the MPRE, etc., some “technology bar exam” requirement as a condition of licensure. Judge Baylson and Anne Kershaw responded with a resounding NO, but for different reasons and from different perspectives.

Judge Baylson (our paraphrase):

If you look at the federal docket, you have a great many civil rights cases and employment discrimination cases that make up a huge percentage of the caseload. The discovery process in these cases — the vast majority of these cases — do not typically involve the sort of electronic discovery complexities we’ve been discussing here. There is not nor should there be a one-size-fits-all approach to this matter of technological prowess.

Anne Kershaw (visibly scoffing):

“Technology” is too complex, too quickly evolving, to lend itself to standardization of this type. There are some things for which people use different words, and other times the same word is used to describe different things. I have to ask 150 questions just to understand what they are trying to say. It is the job of a good lawyer to ask hundreds of questions and crystallize the issues so she can take them to the judge and the opposing party for resolution.

So that’s a relief. Ted Olson can relax.

More stories from Above The Law:

• Where U.S. Copyrights Go To Die
• Law School Offers Straight Cash To Make Students Study For The Bar
• Facebook Sends Most Of America An Offer To Settle A Class Action Lawsuit For $10

We've been reasonably concerned about the growing fragmentation of online video, especially as Netflix is trying to directly take on HBO, Showtime and others, while still offering them an online outlet for their content. There's been plenty of buzz about Netflix's new series, House of Cards, starring Kevin Spacey and directed by David Fincher. Most people are talking about how Netflix spent a supposed $100 million on the series, and how it's trying to be for Netflix what The Sopranos was for HBO. However, what's probably more interesting is the fact that Netflix is releasing the entire first season -- all 13 episodes -- at once today. It's something of a recognition of how many people view TV series today.

Netflix, of course, understands this quite well, as its streaming service has become quite popular with people as a way to "catch up" on the hot TV shows from last year that people missed when they were first aired. A growing number of people really really like just being able to "binge" on a TV show and watch them all over a short period of time. However, some purists worry that releasing all of the episodes at once takes away from some of the suspense and enjoyment. At the very least, it limits the "watercooler" moments the day after something airs, but with so many people just recording stuff and watching it later, that social moment was under attack already anyway.

It will be interesting to see how well the show does, and how people react to all 13 episodes being available at once. Perhaps my brain is still stuck in the "old way" of television, but this strikes me as quite different than something like movie windows, which feel really stupid. A "series" that dribbles out content once a week (but lets anyone catch up with full episodes later), seems perfectly reasonable. I almost wonder if releasing all the episodes at once takes away from long term buzz for the show as a story arc grows across a season. Also, it may make for a different kind of commitment from viewers. People who might jump in knowing that they're really only committing an hour, may be more fearful about recognizing they may be about to get sucked in to something much longer.

So we just wrote about how CEA had taken away CNET's ability to name the "best of show" product at CES (then re-named the Dish Hopper with Sling as the Best in Show as CNET staff had originally intended). Somewhat surprisingly, given the publications' reluctance to say too much about all of this so far, CNET, itself, reported the story, talking about itself in an almost creepily bland manner, and never even noting the oddity that it is reporting on itself. However, one tidbit stands out: See that byline? It just says "CNET News staff" rather than naming whoever wrote it. I cannot recall ever seeing that before on CNET. At the very least, it raises some questions. Is this a form of a "byline strike" that some journalists have used to protest management practices at other publications? Is it CNET cowardice in reporting on stories that reflect poorly on CNET? Is it a random cry for help among CNET reporters, blinking furiously as a signal to the outside world, while trapped inside their CBS-imposed-editorially-compromised prisons, letting us know they're alive and want out? I'm betting on that last one.

Oh, the benefits of incumbency.

Sodastream is a cool new company that allows consumers to make their own carbonated beverages at home.  Given its popularity, largely due to its ease of use, SodaStream’s stock has been on a run the last few months.  It also possesses the potential to disrupt to established beverage companies like Pepsi and Coke.

Not surprisingly, SodaStream would like to advertise this fact.  In fact, it is so keen on advertising the relative benefits of its product over the more traditional route of buying pre-made soda from the store that the company ponied up for a Super Bowl commercial.  Unfortunately for SodaStream, the ad was rejected by CBS, not because it was too risque, but because it “disparages” other major advertisers (which is apparently more objectionable than borderline softcore porn a la GoDaddy and Mercedes).  As Ad Age reported:

The content of its planned commercial seemed to have concerned CBS because it was a direct hit at two other Super Bowl sponsors and heavy network TV advertisers: Coke and Pepsi.

We’ve discussed elsewhere CBS’s newfound affinity for the ban hammer, but this isn’t even the first time this has happened to SodaStream.  British regulatory authorities yanked Sodastream’s first major advertising campaign for “being too disparaging towards soda manufacturers like Coke and Pepsi.”

How disparaging was SodaStream that its ads were pulled from television?  Well, it simply pointed out that SodaStream was more environmentally friendly than drinking off-the-shelf sodas because, with SodaStream, “you could save more than 2,000 bottles a year.”  Wow, that is incendiary.  Not safe for public consumption!

It gets better.  Clearcast, the NGO — funded by the British broadcasters — that pre-approves most advertisements for British television, reportedly offered this rationale for pulling the ad:

The majority decided that the ad could be seen to tell people not to go to supermarkets and buy soft drinks, [and] instead help to save the environment by buying a SodaStream. [SodaStream] was also told that it constituted denigration of the bottled-drinks market.

Hypocritically, U.S. broadcasters have allowed Pepsi to air Super Bowl ads that bashed Coke directly, as Ad Age also pointed out:

Interestingly enough, Pepsi has scored big points with viewers over the years by showing Super Bowl ads with Coke deliverymen abandoning their employer wholesale for a sip of a Pepsi drink.

Moral of this story:  Pepsi and Coke can attack each other over trivial differences in their products, but don’t attack the business model of big incumbent advertisers.

Fortunately, there is an upside for SodaStream.  All the controversy that these ads have stirred has generated a buzz around them.  The SodaStream “banned Super Bowl ad” has already generated more than two million hits on YouTube in two days and generated a media buzz around the company itself.  And that’s without having to splash $3.8 million worth of cash for a Super Bowl commercial.  Another example of the Streisand Effect in action.

[SodaStream is running a commercial during the Super Bowl, but it was forced to replace Coke and Pepsi with fictional soda companies.  However, that ad only has a little more than 17,000 YouTube views in the last two days.]

Cross posted from Project-Disco.

It looks as if politicians just aren't going to let video games continue to operate without regulatory oversight. We've already seen Rep. Jim Matheson's bill, which would basically turn a voluntary system (the ESRB) into a mandatory one with fines handed out for violations. It's a cynically redundant piece of legislation which would score Matheson a cheap political win, if it only had a chance in hell of passing. (The bill is even more redundant than that -- Matheson had this same bright idea twice before, in 2006 and 2008.)

Now, at the current Judiciary Committee hearings on "gun violence," Sen. Charles Grassley has suggested that current rating system just simply isn't good enough.

"There are too many video games that celebrate the mass killing of innocent people — games that despite attempts at industry self-regulation find their way into the hands of children," Grassley said at a Judiciary Committee hearing called to examine the causes of gun violence in the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Conn., last month.

Really? Everyone's current scapegoat, Celebrate Mass Killing: Modern Warfare [Current Iteration] and its spinoff, Celebrate Mass Killing: Black Ops, tend to celebrate the killing of people trying to kill you. And only if by "celebrate" you mean, "advance the storyline," and if by "advance the storyline," you mean "reach arbitrary hotspot that prevents enemy re-spawning and allows your more capable squadmates to turn a doorknob or something in order to continue celebrating mass killings."

But more seriously, despite the attempts of the government to regulate tobacco and alcohol sales, these items still find their ways into the hands (and mouths) of underage persons. And despite the government's best efforts to keep porn out of the eyes and hands of youngsters, many, many teens have seen a thing or two and attempted even more. No system is perfect but I'm willing to put the stats of the purely voluntary ESRB (and the retailers involved) up against the stats of any government regulated, sin-tax-paying item.

As for actual dangerous items currently regulated by federal and state governments, here's where they line up. Cigarette sales to minors are at 8.5%, falling from 40% in 1997 (2011 statistics). If there's a national percentage on alcohol sales, it's very well hidden. Here's some information from various locales on underage sales compliance rates. Blount County, TN - 9.7%, Escambia County, FL - 5.8%, Fort Wayne, IN - 4.3% (liquor stores)/8.8% (bars and restaurants), Washington, D.C. - 9.5%, Salem, NH - 2.9%, Boulder, CO - 13%. So, overall, roughly in line with cigarette sales, if not possibly lower.

Both percentages are admirably low, but compare those percentages to what the ESRB has achieved without the threat of arrest or loss of a retail license.

According to stats released by the FTC (h/t to commenter DCX2 for tracking this down), underage teenage shoppers were only able to obtain M-rated video games 13% of the time, as compared to 38% for R-rated DVDs, 33% for R-rated movie tickets and 64% for music with a Parental Advisory sticker.

Grassley seems to feel that putting the government in charge of enforcement would keep fewer M-rated games from "finding their way into the hands of children." Perhaps he should first take a look at how effective existing regulation is at keeping cigarettes and alcohol out of minors' hands. According to the CDC, 39% of high school students had consumed alcohol in the last 30 days. Not only that, but underage consumption (people aged 12-20) represents 11% of the total amount of alcohol consumed yearly in the US. As for cigarettes, the number is only 19.5% of high school students.

So, even a well-regulated market fails to prevent these items from being used/consumed by minors. Regulating the video game market will result in much of the same. Deciding it's now a crime to sell a minor an M-rated video game won't prevent a family member or friend from purchasing the latest "celebration of mass killing" for someone under the age of 18. Most people are going to feel that handing off Call of Duty to a 15-year-old weighs easier on their conscience than handing them a six-pack of beer, a pack of smokes or a gun.

But here's the key issue: the government can safely regulate tobacco and alcohol sales without fear of trampling on the First Amendment. Not so with games, although Grassley seems willing to put on his boots and start trampling.

Grassley pointed to evidence that a mass killer in Norway had played the popular "Call of Duty: Modern Warfare" game and had referred to the game as part of his "training simulation."

"Where is the artistic value in shooting innocent civilians?" Grassley asked.

Oh, I see. We'll know what art is when Grassley points it out. Once again, Call of Duty is labeled an "innocent civilian shooter," somehow missing the point of the game completely. Sure, one could argue that Grand Theft Auto is an "innocent civilian shooter," but just because you can do it, doesn't make it the overall point of the game. You don't advance the story by shooting innocent people. It's always an option, but it's never required. (Personal note: I'm fairly sure I've run over way more civilians than I've actually shot, but I rarely get the urge to drive up and down the sidewalk at 60 mph when I'm behind the wheel...)

Once you have a politician asking for regulation and questioning artistic value in the same breath, you've got a problem on your hands. The Supreme Court has already determined that government regulation of video game content is a violation of the First Amendment, but recent events have seemingly made it "OK" to push this dubious agenda again. The president has authorized a study into violent media (including video games), but it looks as if these legislators don't have any interest in collection actual evidence before making their move.

The Jonathan Coulton / Glee dispute has been getting a fair bit of attention lately, but it appears that Glee runs into this sort of issue quite frequently. Just a few weeks before all of this happened with Coulton, there was an article in Theater Mania about a choreographer pissed off that Fox refused to credit him for using his dance moves in a Glee rendition of "Let's Have a Kiki," by The Scissor Sisters. The song and the choreography (which was done by Brad Landers for free, without a contract, but with a promise to pay later if any money was ever made) became something of a minor viral hit last year, with a bunch of YouTube videos of people doing the same moves.

You can see the original below: And... the Glee version, starring Sarah Jessica Parker: It's pretty clearly a copy. Is there a legal claim there? Well... maybe. Choreography is copyrightable, and we've seen some lawsuits happen, but Landers was somewhat limited in what he could do because of the lack of a full contract and since he didn't register the copyright. In fact, despite Landers' complaints, one could argue pretty persuasively that he was made much better off by this situation. Thanks to the song appearing in Glee, that handshake deal finally paid off in terms of cash:

The Scissor Sisters, after receiving a sizable sum from Fox and Spirit Music for the rights to their song, paid Landers just as they had promised during that handshake.

What's interesting is that what upset Landers (and Coulton) was something that actually had little to do with copyright at all. Both were most perturbed by the lack of credit from Fox:

From the moment Landers saw the Tweet about "Kiki" on Glee, he has pursued one thing: credit.... Since, Landers has only pursued two things from Glee: confirmation that his choreography was being used in the November 29th episode, and some kind of documentation that stated his work was his work.

All of this raises a big question: why are Fox and Glee so averse to giving credit? It's been discussed many times before that credit or attribution is often much more important to artists than copyright itself. In fact, a recent study showed very strong evidence that credit has significant value to artists, often outweighing the value of any copyright claim.

So why doesn't Fox provide such credit?

It's free to do so. It basically costs them nothing, other than to add the names to the flashing credits at the end that nobody reads, or (better yet) in online notes to the show, which perhaps people will read. I've never understood why people are stingy with credit in such situations. Some suspect that (ironically) it may be copyright law itself that makes companies stingy with credit, since it opens up at least the potential of further legal ramifications. For example, if it's later found that a use is infringing, they can make a stronger argument that its "willful," potentially tripling any damages award. In other cases, it may just be general stinginess, and a feeling that the original creators don't deserve the credit, or that the people on the show would greedily prefer that they get the credit for such "creative" interpretations.

In the end, though, it seems like it would be a nice and neighborly thing to do to provide credit where possible, even if not legally required, and even if Fox wants to claim fair use. It would seem likely that such a simple free move would actually lead to much greater appreciation and support, rather than anger towards the show and its producers.

We recently wrote about how, after a decade-long dispute, Antigua appeared to really be moving ahead with its plan to set up an online site that purposely offered infringing works, violating US copyright law -- and doing so with the authorization from the WTO as a response to the US breaking an existing trade agreement that helped collapse the online gambling industry that was based in Antigua. We've already noted that the US government (as it's been doing for years) has threatened retaliation if Antigua goes forward with the plan, even though the WTO has given it the stamp of approval (and ruled against the US multiple times in this dispute, almost all of which have been ignored by the US, with the US flat out lying at one point and pretending it won).

And, of course, it's not just the US government upset by this: the big copyright players have started sputtering out angry screeds. Take, for example, this absolutely laughable historical revisionism from the Copyright Alliance, which talks about just how "unfair" this whole thing would be, since it impacts third parties. This may be the most tone deaf statement from copyright maximalists in a long time (and that's saying something, given who we're talking about):

First, it raises a question of fundamental fairness about the appropriateness of punishing an unrelated group for circumstances beyond their control. U.S. copyright owners have found themselves chips in a high-stakes international game with no recourse. In addition, TRIPs obligations implicate many downstream stakeholders -- distributors and licensees, for example -- who rely on stable IP rights to function, so suspension of these obligations would affect many individuals and companies in other sectors and even other countries.

Wait, so suddenly the copyright players are concerned about "fairness" and the "appropriateness of punishing an unrelated group for circumstances beyond their control"? Really? So, um, I guess that means they're now against copyright term extension, which did exactly that. Or how about the very fact that IP agreements are included in international trade agreements -- which imposed significant and severe punishments on citizens of countries around the globe "for circumstances beyond their control."

Oh, and now "US copyright owners have found themselves chips in a high-stakes international game with no recourse." Welcome to the club. How about the whole of the public of the US and many, many other countries, who have found themselves exactly that: chips in a high-stakes international game with no recourse. The Big Copyright players, including those who funded and created the Copyright Alliance, have engaged in this game for decades, using the whole international trade game to force copyright maximalism through international trade agreements and then forcing draconian, anti-public laws on countries around the globe.

So, pardon me if I find it laughable that they of all people suddenly are whining when the shoe is (just slightly) on the other foot.

As for those "downstream stakeholders" who rely on "stable IP rights to function"... So, that must mean that the Copyright Alliance is against changes to copyright law, such as pulling works out of the public domain, which totally screwed over "downstream" merchants who were making use of those works. Oh, wait, they liked that ruling. Huh.

The fact is that the copyright industry has had the run of international trade agreements for a few decades. For an enlightening exploration of just how the big copyright players completely inserted themselves into international trade agreements, and used them as a key (some would argue the key) strategy for ratcheting up copyright laws around the globe, check out the book Information Feudalism by Peter Drahos and John Braithwaite. It tells the somewhat horrifying story about how a few powerful corporate interests effectively hijacked the TRIPS and WTO processes to use them to spread ratcheting up copyright and patent laws around the globe. We've seen that play out over the past few decades, and there's something absolutely ridiculous to see them now complaining when a single tiny WTO ruling goes against their interests.

Have they no shame?

And, of course, these same copyright maximalists have been instrumental in a number of international agreements since then that have only served to ramp up copyright rules and enforcement. Most recently, for example, we've talked about ACTA and TPP -- both of which would punish the public and harm downstream stakeholders, using them as an uninvolved pawn in a high-stakes international trade game with no recourse. Yet, somehow, the Copyright Alliance and their backers like that... because they're the ones pulling the strings.

Second, application in this situation seems to run counter to the purpose of cross-retaliation. Since the 1990s, Antigua has set itself up as a safe haven for offshore gambling. Licensing of gambling services make up a significant portion of the country’s revenues. Cross-retaliation as a remedy is, in theory, supposed to provide leverage to smaller, less-developed countries in trade disputes against larger nations. But the Antigua gambling industry is composed of large, international corporations.

Okay, now this one also makes me laugh. Notice these two paragraphs quoted one after the other. In the first one, the Copyright Alliance tries to argue that it's these poor "downstream stakeholders" who are impacted by Antigua's WTO-approved plans. In other words, "think of the poor little guy." In the second paragraph, it argues that this is unfair because it really benefits "large, international corporations."

Uh, guess whose copyrighted works are likely to be sold in this store? You guess it. Those large international corporations who funded and created the Copyright Alliance. It's so incredible dishonest to pretend that this dispute is about big companies in Antigua somehow harming the little guy in the US.

Really, the copyright maximalists apparently have absolutely no shame in historical revisionism and blatantly dishonest and misleading statements about the situation at hand.

Almost exactly two years ago, we mocked the ridiculous trend of big companies hiring famous pop stars as "creative directors." Polaroid had hired Lady Gaga to be "creative director" while Intel had named Will.i.am as "director of creative innovation." The latest example of this trend is Blackberry (they're no longer RIM!) announcing that known iPhone user Alicia Keys has been "hired" as "Global Creative Director." She claimed that she'll be working with app developers and providing various ideas.

As we said two years ago, it is a good thing that celebrity endorsers actually become more involved with the products they're endorsing, but it's somewhat insulting to suggest that these pop stars are actually being hired on as "creative directors." In fact, it's insulting to actual creative directors and the amazing work that they do on a daily basis. The value from a Lady Gaga, Will.i.am or Alicia Keys is in the publicity they bring, not in any sort of creative direction they provide (if any). It's also insulting to the intelligence of the public and the press who follow these things. If these were, say, music services, the position might be real, but in the three most high profile cases, it seems abundantly clear that this is just a way to make an endorsement seem like a bigger deal than it really is.

Valve's Steam platform has certainly been one highlight on competing with piracy here at Techdirt. As something of the iTunes of PC gaming, it provides a wonderful example of how a great platform and added value can give those who could otherwise be pirates a real reason to part with their gaming dollar. This isn't to say that the platform hasn't been associated with some issues, but Valve seems to be among those folks that get it right more often than they get it wrong.

Still, we won't shy away from pointing out where those problems exist. Neither will German consumer associations, apparently, as one has now sued Valve over the right for Steam users to resell the games they purchase on the platform. The Federation of German Consumer Organizations (VZVB) is going to court, stating that Steam users who have purchased games, own those games, and should be able to do with them as they please, including reselling them. Often times Steam users are limited in this regard due to the way downloads are associated with specific accounts, rendering any online component unplayable. Carola Elbrecht, project manager for VZVB's consumer rights in the digital world is leading the charge.

Because Valve forbids its users to sell or transfer their accounts to another person, the exchange of games that can only be played online is impossible, she said. This means that a Steam user only partially owns games, Elbrecht said. "If I pay the full price for a game, then why am I not allowed to do with it what I want," she added.

This obviously isn't a new question for us here at Techdirt. It's been a point of logical frustration for consumers that content producers often seem to want their output treated like property when it suits them, but as a service or license when it does not. This leads to, at the very least, the appearance of double-dipping on the part of content producers. For gamers, where used games are such an intregal part of the marketplace, the frustration often boils over. In my estimation, it's quite difficult to draw up a logical proof for limiting the rights to a product for the consumer while strengthening the rights for the producer. Such an arrangement is simply too one-sided in who is giving up whose rights.

Some may note that this isn't the first time VZVB has sued Valve over similar grounds. In 2010, a court ruled against them over whether or not refusing to allow Steam users to transfer their user accounts violated German law. The times, as they say, appear to be a-changin'.

The Court of Justice of the European Union (CJEU), however, ruled in July that the trading of "used" software licenses is legal and that the author of such software cannot oppose any resale. While the CJEU's case is not exactly the same as the current litigation against Valve, the VZVB reckons that the ruling gives sufficient basis for a new lawsuit, Elbrecht said. She expected the litigation to go on for years, and it will probably end up at the federal court again, she said.

At worst, the new ruling opens the door for this suit and perhaps sets a bit of a legal baseline in how to view these types of restrictions. It likely isn't any kind of slam-dunk case and there's no assurance any ruling will even go VZVB's way, but there's something else to consider: Valve has an extremely unsympathetic stance on their hands. While complex legalities and backdoor TOS language may rule the day in court, it likely won't in the court of public opinion. Sticking to their guns on something like this is a wonderful way for Steam to lose, er, steam in gaining a faithful fanbase.

Earlier this week we wrote about a strange move by Google: apparently agreeing to pay the French telecoms company Orange extra to deliver its traffic -- thus abandoning the principle of net neutrality it has championed for so long. And now here's another dubious decision: allegedly offering to pay French publishers 50 million Euros in order to settle the dispute over the display of news snippets in its search results:

According to the report, French publishers turned down the €50 million (USD $66.6 million) offer and demanded a figure of €70 to €100 million instead. They also objected to the way Google proposed to disburse the money. The company reportedly offered to spend a third of the €50 million in the form of direct ad purchases while using the rest for commercial advertising partnerships between Google and the publishers. The publishers reportedly complained that too much of the proposed money was contingent on sales figures.

This suggests that Google is trying to frame these payments as more of a partnership with the newspapers than an acquiescence to their demands. That's no surprise, because if it is seen to be paying a license to display copyright material in this case, the pressure to do the same elsewhere will inevitably increase. In fact, it has already adopted this "partnership" explanation for the deal it cut with Belgian publishers last month:

We have reached an agreement that ends all litigation and represents great news for both us and the newspapers. We continue to believe that our services respect newspaper copyrights and it is important to note that we are not paying the Belgian publishers or authors to include their content in our services. From now on, Google and Belgian French-language publishers will partner on a broad range of business initiatives

It remains to be seen whether publishers in France and around the world will be happy to "partner" in this way, or whether some will hold out for a formal recognition by Google that it is paying them for a license to display snippets from their publications. Let's hope not: it would be a truly awful precedent that would undermine not only Google's business model, but much of the Web as we know it.

Update: Right on cue, Eric Schmidt has just unveiled -- you guessed it -- a "partnership" with French publishers:

Today I announced with President Hollande of France two new initiatives to help stimulate innovation and increase revenues for French publishers. First, Google has agreed to create a €60 million Digital Publishing Innovation Fund to help support transformative digital publishing initiatives for French readers. Second, Google will deepen our partnership with French publishers to help increase their online revenues using our advertising technology.

So the price seems to have gone up slightly, from €50 million, to €60 million, plus unspecified amounts to "help increase" publishers' advertising revenue. But no mention of the dreaded "licensing" word in there, so maybe the French publishers blinked, and Google won this time. But expect the issue to come up again in other countries -- Germany, for example -- where Google might not be so lucky.

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It's almost that time of year again, when many of us lesser beings will gather together to watch super-human men on all manner of PEDs and deer antler urine sprays smack each other around while an oblong leather ball sits somewhere in the background. We'll leap for the pizza and chili like salmon during mating season while, between whistles, obligatory commercials with Avatar-like production budgets glow at us. That's right sports fans, it's [editor redacted] time!

Wait, hey! What the hell? I said it's [editor redacted] time! Oh, come on. I can't say [editor redacted]? Fine, what about a euphemism, like [editor redacted]? No, can't say that either? Maybe [editor redacted]? Damn it, this is stupid. I'm talking about something that rhymes with "Pooper Hole" (heh, got you, editor!).

Fortunately for our entertainment sensibilities, Samsung decided this year to combine a distaste for trademark stupidity and our concept of advertising being content in this gem of a spot.

Pictured: million dollar passive aggression

Yes, Samsung has decided to do a game-that-shan't-be-named commercial making fun of how the NFL is overly aggressive with their trademarks. I'd call Seth Rogen and Paul Rudd's delivery "brilliant", but that'd be like referring to Natalie Portman as "mildly attractive", and even I have some damned sense, people. The NFL likes to toss around a great deal of words and pretend like they're true even when they're not, especially when it comes to trademarks. This spot uses the absurdity of it all to highlight how aggressive they are. Maybe it will even open up an eye or two to the silliness of the ever-growing permission culture.

If you're going to send out a cease-and-desist based on a dubious trademark, one of the worst places you could send it is Reddit. Nothing stirs up this site more than a direct attack on one of its communities. What might have once seemed like a slam dunk suddenly becomes a minefield, one that a certain trademark registrant is currently navigating.

Four months ago, blogger Chris Vizzini sent a cease-and-desist to Reddit directed at the r/gaymers subreddit. The term in question is "gaymer" itself, which Vizzini registered in March 2008, and which cites his online forum, gaymer.org, as the first use in commerce. (His site went live in May of 2003.) According to the registration, Vizzini's "GAYMER" mark covers these goods and services.

Computer services, namely, creating an online community for registered users to participate in competitions, showcase their skills, get feedback from their peers, form virtual communities, engage in social networking and improve their talent; Computer services, namely, hosting and maintaining an online website for others to discuss, receive and disseminate information concerning video games; Computer services, namely, hosting on-line web facilities for others for organizing and conducting online meetings, gatherings, and interactive discussions.

The response was immediate. The first option presented was to change the subreddit's name. Others looked to see if the trademark could even be considered valid, tracking down examples of prior use, one of them dating all the way back to 1991. Also discussed was the possibility of licensing the term for a nominal fee, the downside being that even if Vizzini did accept, it would do nothing to prevent him from pursuing others who used the word "gaymer."

While the trademark's description seemed to cover a large portion of Reddit's "goods and services" (with a few notable differences), the discussion focused on whether or not Vizzini should have been able to trademark what many viewed as a descriptive or generic term.

Then, redditor richielaw informed r/gaymers that there was a third option, one which effectively tossed the ball back in Vizzini's court and put him on the defensive.

Actually, you can fight it. We can file a petition to cancel the registration of "Gaymers" for the stated purpose. Under 15 USC 1064 you can file a petition to cancel a registration of a mark "within five years from the date of the registration of the mark, which in this instance is March 25, 2008. Further, you can file a petition at any time if the registered mark becomes the generic name for the goods or services for which it is registered.

Now, there is a fee involved ($300). The likelihood of success is hard to say given the fact that this mark has been in use for so long; however, if it can be proved that the mark is generic in nature (as it describes ALL gay gamers) or it is merely descriptive, then the mark might be cancelled...

This being Reddit, the comment thread was soon filled with redditors throwing money in the direction of richielaw and his plan to make the aggressive registrant actually defend his trademark. If nothing else, the pushback might make Vizzini think long and hard (no pun intended?) about actively alienating a large part of the very community he had been courting with his own site for the past decade.

And, as if facing the wrath of united redditors wasn't enough, the EFF has now joined the push to have this trademark cancelled.

[I]n a petition filed with the U.S. Patent and Trademark Office (USPTO) today, the group asks the USPTO to cancel the "gaymer" trademark registration so that people around the world can continue to use the word without interference.

The Electronic Frontier Foundation (EFF) and the law firm Perkins Coie represent the Reddit gaymers – members of the lesbian, gay, bisexual, and transgendered community who have an active interest in video games...

"This registration should never have been granted," said EFF Intellectual Property Director Corynne McSherry. "Gaymer is a common term that refers to members of this vibrant gaming community, and we are happy to help them fight back and make sure the term goes back to the public domain where it belongs."

"Trademarks have one primary purpose: to protect consumers from confusion about the source of goods or services," said EFF Staff Attorney Julie Samuels. "This registration isn't being used to protect consumers – it's being used to threaten free speech."

EFF's petition cites the same complaints the redditors discussed: that the word "gaymer" is both generic and descriptive and that it predates Vizzini's application for exclusive use of the term (in relation to the services listed above -- there's also an unrelated Gaymer line of ciders). Whether or not the USPTO will find this argument convincing remains to be seen. Many dubious claims have made their way unscathed through the registration office in years past. The main benefit of this action is it puts the pressure on Vizzini to defend his claim to the term, something he may have no interest in doing.

Unfortunately, this is all too common -- IP law being exploited to shut down speech. Vizzini most likely has no problem with what these redditors are saying, but rather where they're saying it. In hoping to corner the market on gaymer discussion, he's eliminated himself from the conversation.

Due to recent events and blame-shifting attempts by certain lobbying groups, video games are once again in the crosshairs here in America. It's unclear to me as of yet whether or not this will amount to a heavy dose of grandstanding noise and then die off, or if any of the crackpot proposals surrounding games will actually be enacted. The studies linking gaming with all manner of negative impacts are, at best, all over the place. Proponents of legislation will often claim that since there is no evidence that games don't harm youths, a proactive approach is the sensible one. Those on my side of the debate, i.e. people that prefer logic to grandstanding, prefer to suggest that it is incumbent upon those affirming a stance to provide evidence for it, as opposed to asking others to disprove a link that likely doesn't exist. In any case, whether you think legislation against games is warranted or not, one needs only to look to China's mainland to see what effect such legislation might have.

That's because China banned console gaming a decade ago. Due to a fear of harming the physical and mental growth of Chinese children, the government banned the manufacture, sale or import of all gaming consoles. The results are about what you'd expect, which is to say that there are all kinds of gaming consoles in the Chinese market, except they're either smuggled in or they're simply called something else in marketing material to get around the ban.

Beijing Eedoo successfully launched a multimedia entertainment console in the mainland market in April last year. But the company has changed the product name several times in order to avoid sensitive issues.

Jack Luo, chief executive officer of Beijing Eedoo, insisted his company is selling a "sports and entertainment machine", rather than a game console, to Chinese families.

That's certainly one laughably transparent way to do it, I suppose. The other is to sell pirated games along with smuggled systems, which a select number of Chinese businesses do. With so little competition, the margins are extreme. They love the ban on consoles. Unfortunately for those engaged in selling these black market consoles, the Chinese government appears to be waking up to the uselessness of their law and is said to be considering lifting the ban entirely.

Rumors have circulated in the Chinese media that some international companies have already sensed the government's changing attitude. They hope to figure out the Chinese authorities' intentions so they can make a rapid response, analysts said.

 

Sony Computer Entertainment (SCE), a subsidiary responsible for Sony's PlayStation business, set up a branch in South China's Guangdong province in June last year. The Guangdong branch will conduct training and research and development work for Sony.

 

Microsoft introduced its Kinect, a controller-free game console, to the Chinese mainland in October last year. However, Zhang Yaqin, chairman of Microsoft Corp's Asia-Pacific Research and Development Group, said Kinect is not used for games in China but for other purposes, such as medical treatment and education.