Earlier this year, we wrote about a ridiculous state law up in Washington that sought to place liability on service providers for the actions of their users, all in the name of "protecting the children!" The Internet Archive quickly sued to stop the implementation of the law, winning a quick injunction blocking the law from being put into place. The court made it pretty clear that the law appeared to violate Section 230 of the CDA, the federal law that grants service providers clear immunity from certain user actions.

While the case had continued to move forward, Washington has now decided to stop trying to defend the law, effectively letting it die. Of course, you might still wonder why it was passed in the first place, but of course, the answer to that is basic politics. Either way, some states like to fight these kinds of things through multiple levels of appeals, wasting taxpayer money all the way, so it's nice that Washington state seemed to know to stop digging early on in the process.

It's sometimes difficult to verify economic theories in the real world because it can be expensive to "test" really important policies. But as more and more people play increasingly realistic video games with active marketplaces, there may be ways to observe real economic phenomena in virtual economies. Here are just a few interesting observations on the topic of scarcity.

• Using 60TB of data from 400,000 Everquest players over 4 years, we can verify some economic behaviors in the virtual world and test economic policy decisions. Maybe these researchers should test out a bunch of virtual "fiscal cliff" scenarios.... [url]
• Retailers need to think a bit more about charitable programs that simply donate items to developing markets. Flooding a developing market with free goods isn't the optimal way to encourage market stability and create robust infrastructure. [url]
• Prize-Linked Savings (PLS) is a banking scheme to encourage people to save more of their earnings by offering a lottery prize for savings deposits. So instead of lotteries always being a tax on the mathematically challenged, in this system, people can at least earn some interest by gambling. [url]

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

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We noted after the election that Hollywood's absolute favorite elected official -- "Hollywood" Howard Berman -- lost his seat. He was often referred to as "the Representative from Disney" for his unwavering support of passing legislation that helped the big Hollywood studios and record labels over the public interest. For many of us interested in the public benefit, his loss seemed like a good deal -- but, of course, for folks at the big movie studios and record labels, it was a disaster. Just witness this unintentionally hilarious Politico piece by former MPAA exec and current Universal Music 'Executive VP of Public Policy,' Matt Gerson, which read like a love letter to Berman, where he reveals what everyone knew already: that Berman and the MPAA were apparently in constant communication, with Berman regularly being called into MPAA meetings to help.

I first met Howard Berman when I was with the Motion Picture Association of America. I remember Jack Valenti uttering a phrase that I would hear repeatedly over 20 years: “What does Howard think?” When we have an idea for a compromise, someone runs it by Howard. When we develop a strategy, someone is tasked to get Howard’s reaction. When we speak with his congressional colleagues, the usual response from Democrats and Republicans alike is, “Let me grab Howard on the floor and see what he is thinking.”

The article is also a little wacky, in that it both highlights Berman's supposed "attention to detail," as well as his apparently frequent failures to know the names of the people he was talking about.

Either way, you can understand why the legacy entertainment industry companies are sad to be losing such a close "friend," but aren't we all a little better off with Representatives who actually pay attention to what's best for the public, rather than just what's best for a few companies?

The next big case to pay attention to concerning software patents appears to be the CLS Bank v. Alice Corp. case, which is being reheard "en banc" (by the full slate of judges) at the federal circuit court of appeals (CAFC). The short version of the case is that it involves a patent over the idea of software that conducts a "shadow transaction" to make sure that there are enough funds to complete a real transaction, before allowing the real transaction to go through, thus minimizing "settlement risk" (the risk of the deal not actually being completed). Should that be patentable? Well, that's part of the argument. The district court tossed out the patent as being simply about an "abstract idea," which is not patentable, as abstract ideas are excluded from section 101 of the patent act, which lists out patentable subject matter. On appeal, a divided three judge panel overturned the lower court, and said that when you looked at the invention as a whole, it was patentable subject matter under section 101. The full CAFC has agreed to rehear the case, and the amicus briefs are flowing in, as people realize that this case is the next key battleground over software patents.

Of course, as often happens in these kinds of cases, you get amicus briefs with wildly divergent claims. For example, here we'll show and discuss the briefs from both the EFF and the Business Software Alliance (BSA). Somewhat surprisingly, both of those briefs agree on one thing: that the actual patent in question should be ruled invalid, as in the district court ruling. But that's about the extent of the similarities between the two -- who paint extremely different versions of the world of software patents today. The EFF brief explains how damaging software patents are to innovation and the wider economy while the BSA brief talks about how software patents are the greatest thing ever for innovation. One of these three-letter-acronymed organizations is wrong, and it's not the EFF.

The EFF brief is quite detailed in how, where and how much software patents are doing harm to innovation and the economy. It explains how there's been an explosion in the number of patents applied for, granted... and being used in litigation. They also detail how the costs associated with patent trolling have gone out of control, and how large companies like Google and Apple both spent more last year on patents than they did on actual research and development. If you read Techdirt regularly, you've seen many of the arguments and data they present, but it's a great overview whether or not you're familiar with the situation.

Meanwhile, the BSA takes a rather... different view of the world. And, by "different" we mean the view that Microsoft (the BSA's largest supporter) would take, whereby software patents are just freaking awesome. It does this by first rewriting history. It claims that the patentability of software is a long-settled matter without any disruption at all. It does this by completely ignoring the reality -- often espoused by companies who are BSA members, including Microsoft -- that software was not realized to be patentable subject matter until after the State Street case in 1998. As we've noted many times, even Bill Gates used to claim that if everyone was patenting software in Microsoft's early days, the industry would have stagnated rather than grown. Of course, now that basically every tech company out there is more nimble and innovative than Microsoft, it seems to want to stagnate the world.

It then talks up the importance of software to the economy and innovation -- which is true -- but falsely argues that this massive growth in innovation exists because of patents, rather than in spite of them. It keeps insisting that software companies rely on patents to have the incentive to innovate. This is laughable. Seriously. Whoever wrote it should be ashamed. I deal with software companies all the time -- including many very, very successful ones. And the people there all tend to hate patents with a passion. The idea that these patents have been any form of incentive is simply ridiculous. But they claim that without patents, innovation might grind to a halt:

Simple economics makes clear that, if patent protection for software were curtailed, the adverse consequences would be swift and severe. With less profit to capture from the commercialization of the fruits of research and development, businesses would divert their resources into other ventures, and software development would suffer. That would have a ripple effect on productivity across the entire economy. Advanced software allows factory workers to be more precise, cars more fuel efficient, and healthcare more effective. Any new obstacles to software development would carry a penalizing multiplier effect that could threaten the continued technological advantage of the United States. For these reasons, “[d]iscrimination against a form of innovation that is increasingly critical to technological advancement, indeed that in many areas dominates technological advancement, makes no sense.”

Once again, there is no evidence to support this. None, zero, zilch. Because it's simply not true. The "simple economics" the BSA describes is wrong both in theory and in practice. The software industry was built up and became super successful in a time before most software companies -- including most BSA members -- got any software patents at all. Ignoring that is simply historical revisionism being used for the sake of blatant protectionism.

They then go on to argue that, basically, CAFC had better not change a damn thing, because any change to such "settled" law, would be a disaster. Somewhat amusingly, they quote a decade old paper from Mark Lemley to support the argument that software patents are here and never going away and everyone should stop complaining. Why is that amusing? Because much of the EFF brief also relies on Lemley -- but a much more modern Lemley. That is, the key to the EFF's brief is suggesting that the judges at CAFC use this case as a chance to put into practice exactly what Lemley suggested earlier this year as an "easy" solution to the issue of software patents. Rather than worry about Section 101 and what's patentable, focus on Section 112(f), which (effectively) says that you can't claim a broader function (such as the idea of easing settlement risk with shadow transactions), only the specific implementation of the proposed solution or invention.

As Lemley noted when he first published his paper on the subject, all this really needs is for judges to enforce the law as written -- and the EFF is suggesting that now would be a good time for CAFC to start actually doing that. While the BSA filing gives lip service to Section 112, arguing that it is a good reason why the courts shouldn't redefine Section 101 to not allow software patents, I do wonder if BSA folks would really be that happy if the courts suddenly started tossing out tons of software patents for violating section 112(f) by describing a general idea, rather than a specific implementation.

Either way, whether the court deals with these specific issues or somehow dances around them (again), it's clear that the CLS Bank v. Alice case is one worth following if you care about software patents.

We've seen all kinds of DMCA abuse to take down content people didn't like, but this one might be the strangest. Thanks to an anonymous reader who sent over a post on Google+ by Jared Smith talking about a DMCA notice he received for a piece of comment spam. Yes, a piece of comment spam. His assumption is that the company stupidly hired someone to try to help them boost their Google rankings, and that company went about comment spamming, not realizing that would actually hurt their Google rankings. Then, in trying to clean up the mess, they realized they needed those comments (which were just a URL) to disappear. Enter the remote censors' favorite all-purpose tool: the DMCA notice. According to Smith, the notice claimed that it was over their "URL copyright" which, you know, isn't actually a thing. It sounds like he still took the comment down (and, as someone who deals with tons of comment spam, I can understand why), but is annoyed that someone is abusing the DMCA this way. Of course, this is a bogus takedown, but that's the nature of the DMCA takedown process these days...

Last week, we covered the key fight at the ITU's World Conference on Telecommunications (WCIT) and it was all over just one word: would any new international telecom regulations apply to "recognized operating agencies" or just "operating agencies." The difference may sound minor, but it could mean a world of difference. If it's just recognized operating agencies, then the rules are limited to giant national telcos. If it's all "operating agencies" then the rules could apply to, well, just about everyone who runs any kind of internet service. This is a huge difference. As the debate rages on -- and even as the worst proposal from Russia, China, Saudi Arabia and others is now off the table -- reports started circulating that the US had announced that it was prepared to walk away from WCIT entirely if there was continued movement towards significant changes in internet governance. That was seen as a pretty big threat, because a US rejection of the overall process might doom it from any sort of acceptance. However, in an emailed statement, US ambassador Terry Kramer is claiming that the reports that he's made such a threat are simply untrue (and not particularly helpful):

In the past few days, a small number of media reports have characterized the United States as “threatening” to withdraw from the WCIT negotiations. These speculative reports are inaccurate and unhelpful to the Conference. The United States has made no such threat, and it remains fully committed to achieving a successful conclusion to the WCIT.

To be honest, whether or not it's "helpful," it seems like it might actually be a lot more effective. As some are beginning to point out, almost everything about the ITU is a mess, and it's time that the US stood up and told it to stop messing where it doesn't belong. That article quotes former White House CTO Andrew McLaughlin describing why the ITU has no business regulating the internet.

"What is so bad about the ITU?" Mr. McLaughlin asked in a speech to the New America Foundation in Washington on Nov. 29. "It's just simple things like the nature, structure, culture, values and processes of the ITU. They are all inimical to a free and open Internet, and they are all inconsistent with the nature of the technical infrastructure that now characterizes our communications networks." Voting rules let repressive governments "engage in horse trading that has nothing to do with the technical merits of the decisions under consideration."

Indeed. So why are we even playing the game?

Last week we had the incredible story of the comedy routine that copyright troll John Steele and Prenda Law tried to pull on a courtroom in Florida, leading to the case being dismissed and the judge planning to dig deeper into the potential "fraud on the court." If you have not read that post and accompanying transcript do so now. It is one of the funniest things ever to come out of a courtroom.

And, of course, it's not over yet. The defense attorney in the case, Graham Syfert, who has been getting pretty good at exposing bad behavior by Steele and Prenda, has filed a motion asking for sanctions, and it's a good one. You can see it here or read the embedded version below. Syfert kicks it off by showing, in massive detail, that the letter from Paul Duffy -- claiming to be the sole principle of Prenda Law -- denying any involvement in the case is likely bogus on multiple levels.

Mr. Duffy’s signature is on the subpoena issued out of the United States District Court for the Northern District of Illinois, relating to Civil action 1:12-CV-20920-PAS in the Southern District of Florida. (See attached Exhibit “B”) This subpoena revealed the name of the internet subscriber with the IP address of 96.254.186.43, and produced the name of the Defendant to Prenda Law, Inc., at 161 N. Clark St. Suite 3200, Chicago IL 60601, the same address listed on the letter where Paul Duffy stated that he did not represent anyone involved in this case.

Further, Mr. Duffy has made appearances in Sunlust v. Does 1-75, 12-CV-1546 (N.D. Ill.), Sunlust v. Sadiq Majid, 12-CV-07868 (N.D. Ill.), and Sunlust v. Norbert Weitendorf, 12-CV-07826 (N.D. Ill.) and possibly other Sunlust matters.

The website www.wefightpiracy.com is the website of Prenda Law, Inc., lists Paul Duffy as the principal, and lists the work product that is the complaint in this matter as their own, stating “Below is a sample of individuals who chose to litigate the matter and are currently in court over their alleged infringment” and then listing the name of the Defendant, along with a link to the complaint in this matter. The complaint is held on Prenda Law’s website at http://www.wefightpiracy.com/userfiles/Nguyen%20(FL).pdf and the website reports an address of 161 N. Clark Ste. 3200.

Yeah. That last one is pretty damning. And, as of the moment I'm writing this, that link is still on Prenda's list of cases. A quick screenshot: When you claim that you aren't associated with a case, you probably shouldn't put the case up on your website listing "recent cases" that your firm has been involved in.

Of course, Syfert then turns his attention to John Steele, noting that Duffy's claims of not being involved might actually be true if John Steele -- who is not licensed to practice law in Florida and has already been warned by the Florida Bar about this issue -- is actually running the show, potentially even to the point of writing the "letter" that Duffy supposedly sent:

There is only one possible way that the letter is true, and filled with candor, and that would be if John Steele was using Paul Duffy as a “face attorney” using his identity to litigate, and therefore Paul Duffy doesn’t truly represent any Sunlust client. Another option is that that the letter was not even sent from Paul Duffy, and that it was created by John Steele, and was sent without with or without Paul Duffy’s permission.

A quick and dirty forensic examination of the PDF document, as sent by email by “Angela Van Hammel” of Prenda Law, reports that the PDF document was created by a computer user by the name of Kerry Eckenrode (the maiden name of John Steele’s wife) and was created by “Steele Law Firm.” Exhibit “C” attached gives the simple properties of this document and evidences that it was created on 11/20/2012 even though it is dated the 11/18/2012. It is possible that John Steele created the letter at the request of Paul Duffy, but it is unlikely that it was ever presented to Mr. Duffy for his approval, as he would know of his representation in the Sunlust matters.

It is unlikely that Paul Duffy would own or use a computer associated with John Steele’s wife, which would bear the the name of John Steele’s Illinois family law practice (a relatively new creation, post-Prenda Law and post-Steele Hansmeier). Regardless of whether it was created at the behest of Paul Duffy or John Steele was given carte blanche to create the document, it is common for John Steele to create documents and send emails with other attorney’s names to serve his own agenda, with or without their knowledge. When counsel filed his second bar complaint against John Steele, it was for the impersonation of a Florida attorney via e-mail. John Steele’s slippery and wily traits always resulted in insufficient evidence to prove this Mr. Syfert’s claims to the Florida Bar. The loyalty John Steele mysteriously engenders in those around him results in lies to protect him, and therefore insufficient evidence to show that he is violating his affidavit of no UPL attached as Exhibit D.

It goes on to note that Syfert himself, in Chicago to see a Cubs game, stopped by Prenda's offices asking to see Duffy, and the security folks had no idea who he was talking about. But when he asked about John Steele, the guards immediately knew who he was talking about. That would seem odd if Duffy is really running Prenda, as he claims. Furthermore, he notes that every time people try to contact Duffy, Steele seems to call them back. Syfert also notes how Steele's own actions in this particular case seem just a bit odd if he's really got nothing to do with the case:

John Steele wanted to make very clear that although Mark Lutz was looking to him for assistance that he had nothing to do with the case or with Prenda Law. In his Forbes interview, Mr. Steele is filing 20 lawsuits a month with hopes to increase to 300 and he is raking in millions for his efforts. Before this Court, his demeanor is that he is essentially retired, just a fan of bittorrent litigation, in town from Miami or from Chicago, because civil motion arguments as interesting as to him as a Cubs game. He projects that he is a passing acquaintance of Mr. Duffy, and has nothing to do with the case, but has the knowledge to allege that the principals of the Plaintiff were in India (even though that was also a lie). He also knew the correct pronunciation of one of the principals of Sunlust Pictures.

Then there's a second filing about sanctions, this time targeted at Matthew Wasinger, who really only played a bit role in the original hearing -- in that he was the lawyer who had, very briefly, represented Sunlust/Prenda in the case, but had asked to be removed from the case. He did not show up at the court that day, pissing off the judge who had not actually released him from the case. He later filed an apology, saying that he got mixed up, but the judge still considered sanctioning him. Syfert's motion there is interesting, in that he suggests that, in lieu of monetary sanctions, Wasinger should have to answer a number of questions about Prenda/Steele.

It is the hope of Defendant’s counsel and Defendant, by this motion, that a similar line of questioning to the one presented by the Court to Mr. Torres would clarify Mr. Wasinger’s position in this case. By requiring answers to these questions, Defendants counsel hopes that the responses serve as a warning to other potential “local counsel” representatives of Prenda Law to caution themselves in representing Plaintiffs in Federal Court without a reasonable disclosure of the facts surrounding the cases that they are accepting and ability to adequately protect the interest of their clients.

He then lists out fourteen questions, similar (though not identical) to the ones asked by the court of Torres in the hearing.

A few days after this was filed, Wasinger responded to the motion by again apologizing profusely and making a compelling case that his failure to appear was unintentional (since Jonathan Torres had been approved to replace him in a bunch of other cases, and there were indications he was appearing in this case as well). He also notes that his absence did not likely harm the case, seeing as his answers to the questions Torres answered would have been basically the same (i.e., he signed onto this case, not realizing what a clusterfuck it was, or what kind of confusing mess Prenda had gotten him into).

In response to Syfert's request to substitute answering questions for any monetary sanctions, Wasinger seems happy to help nail Prenda and warn others, but he wants to make sure that if he answers the questions, he won't still be on the hook for monetary sanctions.

The undersigned is willing to answer the questions set forth by Mr. Syfert in his Motion upon Order by the Court and a finding of this Court that answers to these questions would not violate any potential ethical duty to Sunlust Pictures. The undersigned would truthfully answer any questions as directed by the Court under oath. However, the undersigned is concerned about Mr. Syfert's request to leave open the possibility of a $500.00 monetary sanction if he is not satisfied with the answers. Since the answers would be provided under oath, it is respectfully requested that the Court denies this request.

And, finally, he once again asks to be removed as the attorney for Sunlust.

I expect there will still be plenty of entertainment value as this case moves forward. So far, the only thing that has happened is that the judge responded to Torres initial motion to be added as counsel and his near immediate request to be removed. Amusingly, she denied the motion to substitute as counsel, given that he's also asked to be removed, and then denies the request to be removed as moot. I'm sure the next few filings should be even more entertaining.

A couple of months back, Mike wrote about how Psy's relaxed attitude to people infringing on his copyright helped turn Gangnam Style into one of the most successful cultural phenomena in recent years, and that includes becoming the most-viewed video on YouTube ever.

Ah yes, the maximalists will retort, this free-and-easy, laid-back approach is all very nice, but it doesn't put food on his table, does it? If you want to make a living from this stuff, you've got to enforce copyright to stop all those freeloaders ruining your business. Well, maybe not:

With one song, 34-year-old Park Jae-sang -- better known as PSY -- is set to become a millionaire from YouTube ads and iTunes downloads, underlining a shift in how money is being made in the music business. An even bigger dollop of cash will come from TV commercials.

From just those sources, PSY and his camp will rake in at least $8.1 million this year, according to an analysis by The Associated Press of publicly available information and industry estimates.

The AP story quoted above goes on to give a detailed breakdown of where that money comes from. Interestingly, it's mostly from things not directly connected with either his music or video:

It is television commercials that are the big money spinner for the most successful of South Korea's K-pop stars. PSY has been popping up in TV commercials in South Korea for top brands such as Samsung Electronics and mobile carrier LG Uplus.

Chung Yu-seok, an analyst at Kyobo Securities, estimates PSY's commercial deals would amount to 5 billion won ($4.6 million) this year.

This is yet another great example of how artists can give away copies of their music and videos to build their reputations and then earn significant sums by selling associated scarcities -- in this case, appearances in TV commercials. Now, not every musician may want to take that route, but there are plenty of other ways of exploiting global successes like Gangnam Style -- none of which requires copyright to be enforced.

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France's Hadopi graduated response approach, also known as "three strikes", occupies a special place in the annals of copyright enforcement. It pioneered the idea of punishing users accused of sharing unauthorized copies of files, largely thanks to pressure from the previous French President, Nicolas Sarkozy, who seems to have hated most aspects of this new-fangled Internet thing. Sadly, other countries took up the idea, including the UK with its awful Digital Economy Act, New Zealand, Spain and, more recently, the US.

Hadopi hasn't been going too well. Despite putting out some dodgy statistics, the Hadopi agency hasn't really been able to show that the three-strike approach is doing anything to reduce the number of unauthorized downloads. In the two years that Hadopi has been running, only one person has been brought to court -- and he was innocent, but fined anyway.

As we reported, with Sarkozy gone, the new French President and his team are looking for ways to cut the cost of this scheme. Numerama has details of a recent presentation from the French Minister of Culture and her advisor, Pierre Lescure, about the future of Hadopi (original in French) that confirms the "three strikes" approach is likely to be dropped:

[Lescure] strongly suggests that the graduated response will be abandoned, because it is considered illegitimate and ineffective. "It is likely that a significant proportion of Internet users who have stopped P2P downloads have turned to other types of unmonitoried methods (streaming, direct download) rather than legal offerings, whether free or paid," writes Mission Lescure. Sending out e-mails may be not stopped, but it seems certain that the criminal sanctions will be shelved.

That's probably as close as the French government will ever come to admitting that Hadopi is a failure. Unfortunately, it seems that it will be bringing in three other bad ideas instead:

To put pressure on intermediaries. It is necessary "to make hosts more accountable by forcing them to remove promptly illegal content and to prevent their reappearance, and by strengthening international cooperation in order to punish sites that refuse to comply";

De-list illegal offerings. It is necessary "to reduce the visibility of illegal offerings by acting on the listing in search engines, if necessary through legislation";

"Turn off revenue sources for infringing sites (the "Follow the money" approach), by making intermediaries (advertisers, online payment services) liable."

We've seen all these idea elsewhere -- the first time in ACTA, the second in efforts to make Google skew its search results, and the last in SOPA. They're all terrible in their own ways, but it's good to see France apparently realizing that punishing the public is even worse.

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Tom Townshend at MSN Music posits an interesting question: is illegal downloading dead? To be sure, asking any lobbyist fronting for the RIAA this question will result in a long-winded tongue lashing that compares today's "digital dimes" with yesteryear's "plastic money-printing machine." But the question is valid. Is piracy as much of a problem as the RIAA insists it is? Or has music consumption changed so dramatically that the old yardsticks no longer work?

Townshend points out some interesting stats on last week's chart toppers.

Last week AC/DC finally allowed their music to be available to buy digitally. Prior to the 19th of November, the only way to own the veteran Aussie rock giant's songs was to buy them on CD, vinyl or cassette. Or to illegally download them.

But no sooner had the group agreed to sell their back catalogue in downloadable form, two of their classic hits entered the Top 40 singles charts (with several more popping up in the Top 75.)

Two tracks, taken from albums released in 1979 and 1980 respectively, broke into the Top 40, three decades after their debut. As Townshend points out, anyone over the past decade-plus could have downloaded these tracks and still had them in perfect working order. It would have taken next to no time at broadband speeds, but despite this piracy "opportunity" (created by AC/DC itself), thousands of fans chose to purchase AC/DC's music from legitimate sources. After a decade of supposed widespread piracy, why would AC/DC's music still be in such high demand?

That's not the only anomaly in the charts, either.

This week's top 40 also features a new track from Rihanna's latest album, Unapologetic. And yet the song, Right Now, isn’t a record company promoted single. And neither is another of her tracks, Nobody's Business, which went in at number 63. The public have chosen to cherry pick songs from her new album rather than be dictated to by RiRi's promotional team. People power!

So, what's happening here? It looks as if the promotional money that labels constantly lament they'll never recoup is going to waste. Rihanna's handlers choose her singles... and the public chooses other tracks they like better. No wonder they're upset. First, the piracy thing, and now this -- a public that won't be told what to buy!

Why is Rihanna's label unable to pick hit singles? Possibly because "singles" don't exist anymore. Singles were an important concept when the endgame was album sales. But the public's not buying albums, they're buying single tracks, a very different creature. Album sales might be at an all-time low, but people are still buying plenty of music. They're just doing it on their own terms.

And the fact that this is happening to music by Rihanna, the biggest pop star in the world right now, is even more significant when you take into account that her last album, 2011's Talk That Talk, managed to return to the number one spot this year with just 9,578 sales – the lowest sales ever recorded for a number one album...

The structure of an album is a throwback to an analogue age. The number of songs on an album was dictated by the constraints of the physical format they were stored on. But what sense does buying 12 tracks in one go make, when you have memory space for thousands? And why buy that many songs if you only know you like one? You can always buy another later. And another.

Hence, "singles" are no longer something a record company should feel inclined to push on the public. Sure, there's radio airplay for promotion of albums, but even that market is broken up by YouTube, Pandora, Spotify, etc. Instead of a top-down delivery system fervently pushing consumers towards album purchases, it's bubbling back up from the bottom. Radio/labels may expose new artists, but the fans are choosing the tunes they like -- even 30 years down the road.

The people who bought AC/DC's Back In Black didn't want a whole album of AC/DC songs. They just wanted that one. And the same goes for Rihanna.

Album sales may be decimated, but single track sales are huge. The numbers put up by top-selling single tracks are on par with the heyday of the industry. The only difference now is that consumers aren't purchasing the other 7-10 tracks of filler surrounding the songs they like.

And in case you think it only takes a few hundred downloads to get a song in the charts these days, Rihanna and Calvin Harris's We Found Love has sold 6.9 million copies worldwide, so far. And it was only released in September of last year. In fact, a quick look down the list of multi-million sellers shows that singles from 2010 and 2011 shifted units not seen since the 1970s and 80s – the so-called golden age of the pop charts.

So, Townshend asks: is piracy dead? Is the industry still holding onto its belief that piracy is the only thing holding them back from the heady days of yesteryear? Maybe it's their metrics. Last year, when the RIAA was pursuing the creators of Limewire in court, its "smoking gun" was a chart that plotted the decline of the recording industry, laying the blame for the steep decline on Napster. The chosen measurement? A mysterious numerical concoction called "Album Sales Per Capita."

If the industry is going to continue to use the album as the yardstick, then yes, sales will never return to the level they once were. When music fans are picking up 3 or 4 tracks for $4-6, then it will never keep pace with the $14-18 they were spending for "bundled" tracks that lumped songs they liked in with songs they could live without. People are buying music in record numbers, but the industry still complains that things ain't the way they used to be. They aren't, but not because of piracy. At least not solely, and certainly not to the extent they claim.

If a band can break a self-imposed, decade-long internet holdout and return to the Top 40 charts three decades after the songs were originally published, then it stands to reason that every person that wanted a free copy of these tracks should already have those safely stowed on their hard drives. But they don't. Or if they do, they wanted to get the "real thing." Either way, people are paying for a lot more music than the industry is willing to give them credit.

Here's how Townshend puts it:

To continue to be told how damaged the music industry is by illegal downloading, while single sales soar, is somewhat galling. It’s like when you sit down to watch a DVD and are confronted with doom-laden orders not to buy pirate movies, even thought the only time you ever see such warnings is when you're watching something you've legally purchased. It's like being told off for a crime you've not committed.

Thanks for the trust and gratitude, guys!

Hey, if the industry wants to paint a dismal picture using lousy metrics and an outsized sense of entitlement, it's welcome to go right ahead. But don't expect outpourings of sympathy from the public generously putting money in its pockets, despite the easy availability of free options.

Back in October, we wrote about how California Attorney General Kamala Harris was threatening United Airlines over Twitter, because their mobile app apparently didn't prominently display the app's privacy policy. California has a silly law that requires privacy policies. Now, Harris has actually sued Delta airlines over the same thing. Of all the illegal things that Harris could be going after, is focusing on mobile apps that don't prominently display their privacy policy really the best use of her time and my taxpayer dollars?

The whole infatuation with privacy policies is, frankly, stupid. They do nothing to actually increase your privacy. Since the only thing they do is hold you to your own rules, they actually encourage companies to take your privacy less seriously, since to avoid possible liability, they're likely to craft privacy policies that aren't as strict. Furthermore, no one reads those things. Forcing companies to display a broadly written policy designed to limit their liability, which no one cares about and no one will read... just seems like a complete waste.

Of course, as we've discussed before, this is exactly what state Attorneys General do all the time. They pick some random issue they can grandstand about, and then pick on companies over those issues, putting all sorts of public pressure on them, solely for the purpose of generating headlines about how they're "protecting consumers" or some other bogus claim... and then they use those headlines for when they run for higher office. The Attorney General slot is quite frequently seen as a stepping stone to becoming governor, and so many AGs abuse the position with these kinds of legal threats and lawsuits almost entirely to be used as campaign fodder. It's sad and pathetic and does little to actually protect the public.

In Harris' press release about the lawsuit, she makes this silly claim: "Losing your personal privacy should not be the cost of using mobile apps, but all too often it is." But that's ridiculous. Just because Delta doesn't link to its privacy policy from the app doesn't mean that users lose their personal privacy.

The only encouraging thing here is that looking through the comments on the Ars Technica article linked above, they seem almost universally to be against Harris for filing such a silly and pointless lawsuit. Maybe, one day, we can hope that such pointless grandstanding is seen for what it really is: a cynical ploy to make an Attorney General look good in the press, rather than any legitimate legal issue.

Numerous people have talked about the ridiculousness of requiring airplane passengers to put away their iPads or other portable devices during takeoff and landing on airplanes. There used to be excuses about how it could impact the equipment in the plane, but no one actually believes that any more. Now, even FCC boss Julius Genachowski is getting impatient with all of this and has asked the FAA to stop procrastinating and start allowing the use of such devices. The letter, of course, was more polite than that, but makes it clear that the FCC is ready to get on with the show and would like the FAA to finally "enable greater use of tablets, e-readers, and other portable devices."

We've been talking a lot about the ITU and its WCIT (World Conference on International Telecommunications) lately, given the importance of various proposals on the future of the internet. While Vint Cerf, often considered the "father of the internet" for his early (and continued!) contributions to the core of the internet, has been quite outspoken for many months about the threats of the ITU towards the internet, now we can add the creator of the World Wide Web to the list as well. Tim Berners-Lee has spoken out against the ITU efforts at WCIT.

Sir Tim is director of a standards body himself - the World Wide Web Consortium. He said that governments can already influence changes but should resist further interference.

"I think it's important that these existing structures continue to be used without any attempt to bypass them," he said.

"These organisations have been around for a number of years and I think it would be a disruptive threat to the stability of the system for people to try to set up alternative organisations to do the standards." Accelerating access

[...] "A lot of concerns I've heard from people have been that, in fact, countries that want to be able to block the internet and give people within their country a 'secure' view of what's out there would use a treaty at the ITU as a mechanism to do that, and force other countries to fall into line with the blockages that they wanted to put in place."

When the fathers of both the internet itself and the World Wide Web are both speaking out against the ITU's efforts to have further control over the future of the internet, isn't it time to step back and ask what benefit the ITU would really provide. To date, none has been shown. Instead, we get vague talk about increasing "fairness" by diverting money from innovators to telcos who haven't innovated with the promise that this will lead to greater investment. Yet, the evidence suggests that this doesn't work, and historically, such transfers and subsidies tend to be pocketed by execs (or governments) rather than invested in infrastructure.

So, here we have two of the most visionary innovators out there -- who created the key platforms we rely on -- highlighting how the ITU process is the exact wrong way to go about things. Combine that with the key argument being made by the ITU being unsupportable based on history. And shouldn't we all be wondering why this big charade is happening in the first place?