We're hearing more and more talk about how broken the patent system is, and recently came across a pair of videos we figured some of you might enjoy. The first is a comedic riff on Apple's recent page turn design patent, leading Ron Charles to post an amusing video of how Apple might explain its patenting of "letters": There are some good lines in there. "Everything we've done, is designed to be very capable, but also familiar. So our goal, was to take all the amazing things that people like to do... and own them."

On a slightly more serious note, economist Alex Tabarrok, has put together a video arguing for the end of software patents: It's not a bad video, though I think the analysis is a bit overly simplistic, in that it kicks off with the idea that pharma patents make sense. The more you dig into the details of pharma patents, the more you realize that's not true either. However, even granting that, the argument he makes is the commonly seen economics argument that, at the very least, things like pharma and software display such different economic characteristics that it's silly to use the same patent system for both. Specifically, the sunk costs of innovation for software tend to be relatively low, so the protection a patent grants might not be useful. It also notes how patents can impede innovation. One thing I'm happy it includes is a note about how you get less innovation when you don't have competitors pushing you to keep innovating. That's a point that often gets missed in these debates.

Either way, I figured folks might enjoy both of these videos.

People with pets sometimes go a bit overboard when it comes to spoiling their animals. There's nothing really wrong with that, but non-pet people might question how the treatment of animals can trump the treatment of people. Here are just a few pet-related stories to ponder.

• An organization in New Zealand is teaching dogs how to drive cars. Imagine the traffic problems if someone shouts, "Squirrel!" [url]
• Cats and dogs are training their owners to respond to their wishes, just like human babies do. Can you resist a cat's solicitation purr? [url]
• The technology for turning departed loved ones (humans) into diamonds has been around for several years, but pet diamondification is where the synthetic diamond memorialization market is heading. A diamond really isn't forever, but nobody wants to hear about the actual thermodynamic stability of diamonds. [url]

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

Back when we first launched the Insider Shop, we made two PDF ebooks available at any price you choose: Mike's Approaching Infinity (on new business models and the economics of abundance) and our Sky Is Rising report on the state of the entertainment industries. More recently, we launched three fiction titles by our own Tim Geigner—Digilife, Echelon and Midwasteland—also available on a pay-what-you-want basis. They were an instant hit, and we're in the process of preparing new ePub versions.

The thing we noticed right away was that a lot of people were choosing to pay, even though you can download all the books for free. Almost half of all book downloads were paid, with most people choosing the default $5 per book—even when buying four or five books at once—and several going above and beyond, with a few even paying $20 for a single title.

At this point, there's plenty of evidence that people will gladly, even eagerly, pay to support creators despite being given the option of getting something for free—and we're glad to add the success of our Insider Shop ebooks to the list. For those who want a closer look at the numbers, I put together a quick infographic:

Embed This:
<a href="http://www.techdirt.com/articles/20121210/12422821338/infographic-people-will-pay-to-support-creators-even-when-free-is-option.shtml"><img src="http://cdn.techdirt.com/i/ig/ebook-infographic.png" title="Techdirt Insider Shop Pay-What-You-Want Ebook Sales" width="560" /></a>

Thanks to everyone who has downloaded our ebooks, whether you paid $0 or $20 or anything in between! If you haven't gotten your copies yet, head on over to the Insider Shop and check them out.

Remember all the hubbub (now there's a word I never thought I'd use; thanks a lot, aging process) over Comcast's kind of, maybe plan to spy on subscribers through their cable box as they watch TV, fold their laundry, or engage in coitus? There was quite an outcry at the time, even as Comcast said that the plan was only to have the cameras be able to recognize when different types or numbers of people were watching the tube. People just didn't feel comfortable with corporations being able to spy on them. As a result, Comcast backed away from the plan -- the people had defeated the corporation.

All, apparently, so that hackers could spy on them instead. At least, that's what some reports are saying about Samsung Smart TVs and an exploit that would allow hackers to snatch social media credentials, access any files or devices connected to the smart TV...oh, and to use the built in cameras to spy the hell out of people as they do whatever they do while watching television.

In an e-mail exchange with Security Ledger, the Malta-based firm said that the previously unknown ("zero day") hole affects Samsung Smart TVs running the latest version of the company's Linux-based firmware. It could give an attacker the ability to access any file available on the remote device, as well as external devices (such as USB drives) connected to the TV. And, in a Orwellian twist, the hole could be used to access cameras and microphones attached to the Smart TVs, giving remote attacker the ability to spy on those viewing a compromised set.

The group that reportedly discovered the vulnerability, ReVuln, proudly stated that they would not publish any information about what they'd uncovered except to paying subscribers because screw everyone else (not an actual quote). They also have a company policy, apparently, that would prevent them from working with Samsung directly on a fix or even to disclose the hole, leading me to reach the logical conclusion that Dr. Evil is apparently running that company.

Even more fun, thanks to how Samsung designed the product, chances are any fix that could be produced would be difficult to implement.

Currently, the Smart TVs offer no native security features, such as a firewall, user authentication or application whitelisting. More critically: there is no independent software update capability, meaning that, barring a firmware update from Samsung, the exploitable hole can't be patched without "voiding the device's warranty and using other exploits," ReVuln said.

The company posted a video of an attack on a Samsung TV LED 3D Smart TV online. It shows an attacker gaining shell access to the TV, copying the contents of its hard drive to an external device and mounting them on a local drive, providing access to photos, documents and other content. ReVuln said an attacker would also be able to lift credentials from any social networks or other online services accessed from the device.

In other words, customers get to wait around until Samsung can figure this thing out on their own, since ReVuln won't help them out by company policy, or risk voiding their warranty on their smart TV that has a complete lack of security features. Nicely done, everyone involved.

You may recall Voltage Pictures not because it once made a movie that won the Oscar for Best Picture (Hurt Locker), but because it was basically the first Hollywood studio to embrace copyright trolling. This is the company whose boss, Nicolas Chartier, once said that anyone who criticizes his company for copyright trolling is a moron and a thief (and that was in response to a rather friendly and polite email to Chartier suggesting that copyright trolling might hurt the company's reputation in the long run). While some of its earlier efforts to sue thousands of people at once (in once case it sued nearly 25,000 people in one shot) have run into difficulties, Voltage just won't quit. A quick check of the records shows that it's still been filing new lawsuits in the US (among smaller groups) and trying to make the case for proper joinder by using the "swarm" theory: that if all the IP addresses are a part of the same swarm, they're all connected in the legal issue (of course, they miss the fact that this would likely also mean that the total sum that could be collected would be split among all defendants).

And, now, it appears, they've decided to try the same scheme up north. We had just noted that with Canada's new copyright law in place, it appeared that the copyright trolls were getting ready to pounce -- and that's now been confirmed. ISP TekSavvy initially released a blog post noting that Voltage Pictures was demanding a ton of information on many of its users. So far, the company is resisting, while notifying its users. It also noted that Voltage's strategy here is an odd one:

We are frankly puzzled by the approach that Voltage has taken. It seems contrary to the government’s intent with copyright reform, which was to discourage file sharing lawsuits against individuals, while still protecting copyright holders’ rights. The manner and the timing of this action also seems unusual given that the government recently created a roadmap for addressing file sharing and copyright infringement within its legislation. Its starting point is a notification system to subscribers to discourage infringement without immediate threats of lawsuits or disclosure of their personal information. That system is not yet finalized though. In light of these factors, Voltage’s actions seem odd to us.

It appears to us that a notice period is essential, especially in cases where large privacy disclosures may be involved. Without this notice, a customer could be the subject of a lawsuit and not even know about it. Surely this is in part why the government is seeking to enact such notice provisions in the policy.

At this point there are many unanswered questions. How does Voltage intend to proceed? How will the courts rule if customers should retain legal counsel? Under what conditions might the court order the disclosure of customer information? If Voltage is successful, how many more notices will Canadian ISPs receive? Is there a limit to what the court will allow?

The move by Voltage has a number of people confused. One of the really good features of Canada's new copyright laws is a cap on how much someone would have to pay at $5,000. That takes away a troll's ability to demand huge sums, while also limiting its ability to wave a big stick about them being liable for $150,000 in possible statutory awards (as they do in the US). Besides, as Teksavvy notes, the Canadian government was already worried about trolling when it passed the new law.

In the end, it's unclear if Voltage is so wedded to the idea of copyright trolling that it simply doesn't understand what's going on in Canada. Either way, it makes one thing clear: I will now go out of my way to never watch a movie from Voltage. Who would support a company that sues its fans?

Ah, Europe. After years (decades!) of arguing about it, the EU Parliament has finally approved a unitary patent system -- in which inventors will be able to file for a single patent across much of Europe. There are good reasons to want to do this, rather than having a fragmented system which required getting multiple patents in so many different places, having a single system could be a lot more efficient. But, of course, the devil is in the details and the details here are bad. There are two major concerns, both of which should have been easily avoidable because the EU can look at the absolute mess in the US. Instead, they seem to have decided to head in the exact direction of the US's mess.

The two key issues:

1. Software patents: There's been growing support in the US to finally recognize that broad patents that cover software on general purpose computers are a problem, and that something needs to be done about it. Europe, for the most part, has had much more limiting rules concerning software patents -- but less so in Germany. The new unitary patent system will more or less default to the German setup, in which software patents are much more possible. And, as we discovered in the US following the State Street decision in 1998, when you suddenly clarify that an entire area is patentable after people long believed it was not, you leave open a huge space for trolls to rush in and patent everything under the sun to be used against companies which actually innovate.
2. A patent specific court: This part may be even worse. Despite the clear evidence that the US's decision to set up a single appeals court for handling patent appeals resulted in a form of judicial capture leading to a massive expansion of patentable subject matter (and, along with it, the number of patents granted and the number of bogus patent trolling cases), the EU has decided that as part of the Unitary Patent, it will also set up a "specialist" court for dealing with patent disputes. The thinking here may appear to make sense on the surface: patent disputes can get technical quickly, and you worry about judges having little technical understanding. However, as we've seen quite clearly with CAFC, having a patent-specific court means having judges who deal an awful lot with patent lawyers, but rarely deal with actual innovators. The end result is that they often believe that the patent system works fine, and are happy to expand it (which also helps job security).

Of course, that doesn't even mention the fact that the new system will make patents a lot cheaper to get, meaning that there will be a lot more patent applications filed. Combine it all and you have a recipe not for increasing innovation, but for the opposite: massively increasing patent trolling and patent litigation that is a clear deadweight loss to society, innovation and economic growth. It's a bad, bad move for Europe. Rather than strike out on a clear path for open innovation, they're following the US's footsteps, despite all of the evidence that the path leads over a cliff, rather than towards some wonderful innovation nirvana.

I recently joked that it felt like the main purpose of Kickstarter seemed to be to convince the world they wanted simplified wallets and fancy ink pens. If you don't spend much time on Kickstarter, you may have missed that those two categories seem to account for a somewhat-larger-than-expected percentage of projects that people find interesting. The wallets, in particular, fascinate me, because there are an absolutely insane number of new wallet projects, with nearly every single one claiming to have reinvented wallets. I had no idea that the wallet market was open to such disruption.

Of course, it may be open to an entirely different form of disruption. As Nick Bilton at the NYTimes recently pointed out, as his smartphone has been able to do more and more, he's beginning to think that wallets may be becoming entirely obsolete. There's almost nothing he still needs to carry on his person since nearly everything that used to be in his wallet can now be taken care of via his smartphone:

Printed photos, which once came in “wallet size,” have been replaced by an endless roll of snapshots on my phone. Business cards, one of the more archaic forms of communication from the last few decades, now exist as digital rap sheets that can be shared with a click or a bump.

As for cash, I rarely touch the stuff anymore. Most of the time I pay for things — lunch, gas, clothes — with a single debit card. Increasingly, there are also opportunities to skip plastic cards. At Starbucks, I often pay with my smartphone using the official Starbucks app. Other cafes and small restaurants allow people to pay with Square. You simply say your name at a register and voilá, transaction complete.

But wait, what did I do with all of the other cardlike things, like my gym membership I.D., discount cards, insurance cards and coupons? I simply took digital pictures of them, which I keep in a photos folder on my smartphone that is easily accessible. Many stores have apps for their customer cards, and insurance companies have apps that substitute for paper identification.

It's not entirely obsolete, but Nick makes a compelling case that it's heading in that direction. To be fair, many of the new wallets seen on Kickstarter are, in effect, responses to this trend. The most popular styles appear to be "simplified" or "minimal" wallets that shrink down what you have to carry, so that you can just take the few essential cards with you. But, it's possible that many people will be able to get by entirely without a wallet in the not-too-distant future.

This, in turn, reminded me of something else: about how disruption may destroy industries while making our own lives better in the process -- but that simple economics tends to do a bad job recognizing that. I've talked about how traditional economic measures might measure the wrong thing. So, if we're looking at wallets, for example, those in the wallet-making business might claim that this move towards the digitization/smartphonification of everything is "bad" for the "wallet industry." That's obviously silly, and most people aren't too concerned about the wallet industry. But that ignores just how many industries are being totally upended by the smartphone. Think of all the things you don't need any more due to the smartphone. A few months back, the Cato Institute put together a fun chart on "dematerialization" due to the smart phone, trying to make the argument that advances in technology, such as the smartphone, might also be good for the environment, since they lead to people needing a lot fewer physical devices, since they're all packaged into that tiny device in your pocket: Of course, what this also points out is the nature of disruption and innovation. Disruptive innovation, by its nature, destroys entire industries or segments of industries by making them obsolete. If you simply measure the economic impact on the fact that those industries are no longer present, or that those products are no longer being sold for hundreds of dollars, you could argue that there's a negative impact on the economy. But, if you flip it around and look at (a) how much better our lives are, in that we have access to all that at the touch of our finger tips in a single smartphone, and (b) that as compared to buying all those other devices, individuals actually get to keep more money to themselves (though, not necessarily in their now obsolete wallets) to be spent in more productive ways, it seems like it's actually a really good thing.

But this is something that we often struggle with from a policy standpoint. While no one claims to be missing "the fax" industry, lots of industries at risk of disruption will do all sorts of things to angle policy makers into blocking that disruption, by arguing about the economic impact of their own industries, and falsely implying that, if they're disrupted away, all of that money somehow "disappears" from the economy. But the nature of innovation is that we make things obsolete by making other things better and more powerful and changing the way we do things. The end result is, generally speaking (and, yes, there are exceptions), better for everyone, enabling them to do more with less and do so more productively. Whether it's a "wallet" or the entire list of things in the graphic above, progress has an amazing way of destroying old ways of doing business, and we shouldn't fear or worry about that, we should celebrate it.

Well, well. The saga of copyright troll Prenda Law continues, getting more and more ridiculous by the day. First there was the comedy routine in a Florida courtroom, where Prenda denied representing the client, while at the same time effectively controlling the case by hiring the lawyers, and where John Steele (who clearly is connected to Prenda) just happened to show up in the courtroom. Then there's the Alan Cooper saga, where a caretaker of one of John Steele's properties in Minnesota began to worry that Steele was engaged in identity theft, and had falsely named him as the CEO of AF Holdings and Ingenuity13, two companies involved in Prenda copyright trolling cases.

A California lawyer, Morgan Pietz, who is apparently representing clients sued by AF Holdings and Ingenuity13, thought all of this was interesting enough that he alerted the courts hearing the related cases to both situations, which apparently set off Prenda Law's Brett Gibbs (also named as the guy who "hired" one of the lawyers in that Florida, despite Prenda denying any involvement in the case). The key question asked by Pietz: is the Alan Cooper associated with AF Holdings and Ingenuity13 the same Alan Cooper taking care of John Steele's property? Or are they different. There is, of course, an easy way out for Prenda if the Alan Coopers are different: just say they're different and show some evidence.

Instead... we get something else. First, a rambling and confusing filing from Gibbs in which he never addresses that simple question, but lashes out at everyone. He attacks the charges from Alan Cooper that his name and identity are being used against his will, not by saying that they are different Alan Coopers, but just by saying that Pietz "failed to perform a basic investigation to determine if the allegations contained in the letter are true." Gibbs does say they are false, but still provides absolutely no information on Alan Cooper, instead relying on the fact that a single court has said that it will take no action on Cooper's letter. Also, Gibbs accuses Pietz of attempting to "defame" AF Holdings with the Florida transcript, though I'm curious how attaching an actual transcript from a court case counts as defamation.

Pietz then filed a supplement to his original filing which responds to Gibbs' filing, noting that it "does not provide a single substantive fact designed to assuage any of these very troubling concerns. Rather, Plaintiff's opposition attacks the evidentiary foundation for Mr. Cooper's assertions, plus ad hominem attacks on the undersigned, an on Mr. Cooper's attorney, without responding substantively to any of the deeply troubling issues raised by Mr. Cooper." Furthermore, Pietz submits an email exchange with Gibbs which gets even more ridiculous.

Pietz asks Gibbs to answer these simple questions, and Gibbs refuses is an increasingly agitated manner. Eventually, they had a brief phone call, though the two differ entirely on the nature of that call. It does seem clear that Gibbs hung up on Pietz, though both accuse the other of unprofessional activities. Pietz insists that the claims that he yelled or cursed during the call are simply and totally false. However, it does appear clear from both accounts that Gibbs simply refuses to answer two simple questions: (1) What is the name of the client that Gibbs speaks to at AF Holdings and (2) can he provide Alan Cooper's signature, which Gibbs' "confirms" was appended to one of the exhibits filed in the case. Considering that the filing states the following, directly after an electronic claim that Alan Cooper signed the form (it's typical for lawyers to note "/s/" in electronic documents for where a physical copy was signed).

I, Brett L. Gibbs, Esq., hereby confirm per Eastern District of California Local Rule 131(f) that counsel for Plaintiff has signed original notarized version of the above Verified Petition

So, Pietz just wants to see that original signature from Cooper for somewhat obvious reasons, given the concerns listed above. And yet, Gibbs not only refuses, but when Pietz asked him directly on the phone about it, Gibbs himself admits that his answer was "I am sure there are hundreds of Alan Coopers in this world." In Gibbs' own email, he displays the way in which he has treated these conversations:

As I told you over the phone, when you asked "Is there another Alan Cooper?", I said "I am sure there are hundreds of Alan Coopers in this world." If your question had been framed more pointedly, and not so vague, maybe I could have provided you with a specific answer.

That's the kind of statement made by someone who thinks they're brilliant -- but isn't. All it serves to do is make lots of people aware of this. Parsing words when the clear intent of the question is obvious doesn't make you look intelligent. It just makes you look like you're avoiding the question because you don't want to answer. Similarly, Gibbs' insistence that he didn't hang up on Pietz seems equally dubious by his own explanation:

Mr. Morgan, I did not hang up on you. I take offense to your purposefully twisted version of things. At the end of our conversation, I said that "it was nice speaking with, I had other things to do and good bye" [paraphrasing]. That is not "hanging up" on someone, that is called ending a phone conversation (with respect, I might add).

Again... all of this dancing and parsing could be solved quite simply: by Gibbs or Steele or anyone actually showing that the Alan Cooper who is supposedly in charge of these holding companies isn't the Alan Cooper managing a Steele property in Minnesota. If that were the case, you'd think it would be quite simple for this to be proven. The fact that they're avoiding it only suggests that the most obvious possibility is the true story. As these stories advance, you get the feeling that this situation is going to end up being even more ridiculous than Righthaven by the time it's all over.

Back in May, we wrote about Google adding a section in its Transparency Report focused specifically on all of the DMCA copyright takedowns it receives. That tool has provided a bunch of interesting data and information, mainly highlighting abuses of the DMCA process. It also shows the scale of DMCA takedown activity with Google. The latest is that Google has put out a blog post noting that when they launched that report, they were receiving approximately 250,000 DMCA takedowns a week. Today, it's up to 2.5 million per week. That's in just six months. Because that's insane, I'm going to repeat it: in just six months, the number of DMCA takedowns that Google receives has increased by a factor of 10 from 250,000 per week to 2.5 million.

The company also claims that it does the ensuing takedown in an average of just six hours -- even with having someone review each and every takedown, and even rejecting a few. They reject about 2.5% of takedown notices. Again, when you think about it, this remains incredible. They're actively reviewing 2.5 million takedowns a week, and not just reflexively removing all those results from search, but doing at least a quick reality check on them. There are still plenty of bogus takedowns, so the effort isn't perfect, but it is fairly incredible. Given how many times we see copyright maximalists complaining that Google doesn't take DMCA takedowns seriously, I wonder if anyone else out there processes so many DMCA notices in such a short period of time. I doubt it.

Also interesting: they're now making all of the data available for download, so perhaps we'll start to see some interesting research come out of this.

Either way, this should highlight just how ridiculous the current system is. When one company is processing over 10 million takedowns per month, the system is clearly broken. Maybe it's time to look at why -- but, of course, Congress just wants to stick its head in the sand instead.

A bunch of folks have been sending over Business Insider's coverage of a Goldman Sachs Report concerning Google Fiber, and how much it would cost to roll it out nationwide. The estimate from BI, which is what lots of people are quoting, is that it would cost $140 billion. From the quote presented in the article, it's not clear if the Goldman Sachs report actually uses that number of not. The only number actually quoted is that it would cost about $70 billion to cover less than half, so I don't know if the BI reporter is just extrapolating in a manner that seems ridiculous (if covering half the country is $70 billion, that does not mean covering the other half is also $70 billion -- it doesn't work that way):

Building out the infrastructure will be expensive. In his September 17 report Still Bullish on Cable, although not blind to the risks, Goldman Sachs Telco analyst Jason Armstrong noted that if Google devoted 25% of its $4.5bn annual capex to this project, it could equip 830K homes per year, or 0.7% of US households. As such, even a 50mn household build out, which would represent less than half of all US homes, could cost as much as $70bn. We note that Jason Armstrong estimates Verizon has spent roughly $15bn to date building out its FiOS fiber network covering an area of approximately 17mn homes.

Of course, even if we accept this number to be true -- even though that seems unlikely to be the case -- it seems to miss the point. Google has been pretty clear all along that the goal of the Google Fiber project was not to turn Google into a national broadband competitor, but to drive others to really up their game by showing what's possible: super cheap, super fast broadband with friendly customer service.

And, while Google shied away from its initial promise to have its network open for other services to compete, it still seems like that might be a better way to offer such a broadband. That is, rather than dumping the expense entirely on one company, imagine if it were split up among a bunch of companies (or even individuals), with a promise of openness and competition at the service level, rather than at the infrastructure level. In effect, this is what is happening down in Australia, via government fiat, in which it's building out a national fiber network, with plans to have it open for competition at the service level. That way, the costs of the infrastructure are spread out, but it opens up massive new opportunities for service providers if they provide good service.

The problem -- and the reason such a thing is unlikely to move forward -- is, once again, this insistence by companies that there's more value in owning the pipe entirely, and keeping it locked up and scarce, even if it means less overall efficiency and less overall opportunity. A long term view would recognize that investing in the best network possible, but sharing those costs, and then letting the real competition happen at the service level, would benefit everyone. Instead, we end up with fighting over slow, limited and fragmented networks. It's too bad.

Of all the walled gardens out there, Nintendo's is one of the most bizarre. On the strength of its software legacy and its skill in capturing the handheld market, Nintendo has been able to erect a bizarre closed system that relies heavily on DRM and an almost self-contained "internet." It vigorously defends itself against infringement and views its target audience as innocents incapable of dealing with an open connection to the rest of the swearing, violent, bullying world.

Long after the other consoles had moved on to CDs and DVDs, Nintendo held onto its proprietary formats in order to protect itself from piracy. Now that the others consoles on the market have shifted emphasis towards online services, Nintendo has reluctantly joined the pack. Of course, this being Nintendo, the online experience is hampered by its continued belief that its average customer is about eight years old. And the gaming experience itself is crippled by pervasive DRM.

At Ars Technica, Kyle Orland points out that Nintendo's online service is almost great, if it wasn't for all the roadblocks set up in a futile attempt to stop infringement. While Nintendo has made some vague promises about moving to a cloud-based save feature and allows each WiiU to have up to 12 separate accounts, the underlying DRM keeps the experience from ever being much more than a frustrating mess for paying customers.

As Nintendo's Wii U FAQ makes clear, "a Nintendo Network Account can only be used on the console where it was created." Thus, any games tied to that unique online ID will only work on the first system they're purchased and downloaded to. This is in essence the same setup that Nintendo used to protect downloaded Virtual Console and WiiWare games on the first Wii, a setup that not only utterly failed to stop piracy on the system but also caused headaches for many early Wii owners with faulty systems.

Tying downloaded games to a single system means there's no way for a user to access those games at a friend's house short of lugging the entire system along (yes, the Wii is a lot smaller and lighter than other contemporary systems, but still...). It also means a game downloaded to the Wii U in the living room won't be playable on a second system in the kids' room, even if the same password-protected Nintendo Network ID was used on both systems.

It also means that if your system breaks down, you can't just go buy a new one (or borrow one from a friend) and immediately recover your content using your account. Instead, you have to go through Nintendo's official repair process, waiting up to two weeks for the system to be returned just to maintain the system-locked license data—a caveat I learned about first hand recently. And in the extreme case your Wii U is stolen, it seems there's no way to recover your purchased games (Nintendo has refused numerous requests for comment on its DRM scheme). Sure, you can back up purchases to a USB hard drive, but thanks to this licensing scheme, those backups are no more portable than the actual bits stored on the Wii U's internal storage.

Orland's first hand experience wasn't pleasant. He had over $400 of downloaded games he was hoping to move to his WiiU. During the multistep process -- which requires both systems be on and online -- his Wii crashed. Big bold letters everywhere during the process warned against turning off either system during transfer. The data being moved isn't the important part. What's absolutely essential during this move is that the licenses transfer intact. Orland couldn't simply re-download his games since the licenses were tied to his original Wii. Nintendo's tech support informed him that there was no other way to transfer license and account data to the WiiU short of sending the Wii off for repairs at his expense and hoping it returned in working order with all data (especially those licenses) intact. The final cost? $85 for the repair and a couple of weeks with $400 worth of games in limbo.

Even when everything goes exactly right, the license transfer process is still a pain. Chris Kohler at Game|Life runs it down thusly:

If you have tons of content — game save data, Mii characters, and downloaded software — on your old Wii, you’ll want to transfer them over to Wii U. The process is about as convoluted as can possibly be. You’ll actually need to alternate between your Wii and your Wii U, which means either hooking them both up to the TV or swapping cables. First you have to get an SD card. Then you have to put it in your Wii U to “prepare” it for transfer. (You’ll need an internet connection to do this so Nintendo can transfer the digital rights to the software.)

Fun stuff, that. Plus, it requires an internet connection just to move your own files from one purchased system to another. Kohler points out that it takes about a half hour to pull them off the Wii and another half hour to load them onto the WiiU. But it's not just the time it takes. It's the ridiculous hoops the user is forced to jump through just to satisfy Nintendo's demands for a clean, closed, DRM-laden system.

[B]esides being time-consuming, there’s also a big missing feature. If you had games already stored on an SD card and not on the Wii’s system memory, you have to move them back to the Wii or else you can’t transfer them. But if you have games stored on the SD card in the first place, that’s probably because you ran out of memory on your Wii (not hard, since it only has 512 megabytes in there). So you are screwed. The transfer process will move over all of the digital licenses, but to get those games onto your Wii U, you’ll have to individually download every single one again from the digital store, which will take forever.

This is what you're in for when you deal with a company clearly more interested in pirates than customers. As pointed out earlier by Orland, all the ridiculous DRM crammed into every spare corner of the Wii did very little to stop piracy. Apparently, Nintendo's decided that the original Wii just didn't have enough DRM and has taken it to the extreme with its latest console. The worst aspect of its convoluted "license transfer" system is that the more you've purchased, the longer it takes. Nintendo's concern that someone, somewhere might make off with a free game has turned it into a company that punishes its biggest customers the hardest.

Then there's Nintendo's half-hearted "embrace" of the connected experience, which it approaches with the enthusiasm of someone guilted into hugging a highly contagious acquaintance. True, some of this standoffishness isn't solely Nintendo's fault. It has worked to capture a younger audience than the other consoles and as such, it is stuck following the privacy restrictions handed down by various governments in order to protect children from a variety of online menaces and nuisances. Staying in compliance with these regulations, along with its half-hearted (and deeply suspicious) approach to all things "internet", means the actual "connected" experience approaches surreality. Back to Chris Kohler:

I signed up for Nintendo Network, Nintendo’s first (!) ever attempt to create an account-based online service for its players. I clicked through the Terms of Service, skimming them. As you do. OK, I’m not going to post anything offensive, no problem. I enter my details into my profile and throw Game|Life’s URL and my Twitter handle in there so people know it’s me. Big mistake. Minutes after I posted my profile, I got a message saying that I had posted prohibited content and that Nintendo had blocked my profile pending a change. The hell? Turns out that you are strictly prohibited from posting anything on Miiverse that might allow someone to personally identify you. It didn’t specifically call out Twitter URLs, but I guess those must also be banned. Nintendo clearly doesn’t want any stories in the press about harassment (or worse) stemming from people meeting on Miiverse. So it is doing everything it can to make sure its members do not know who each other actually is.

In essence, the Miiverse is a great place to meet complete strangers but a terrible place to hang out with friends. How on earth an entire Miiverse full of strangers is supposed to prevent harassment or any other internet-related abuse is beyond me. It would seem that kids would be safer hanging out with people they know, rather than a bunch of avatars who could be anybody.

It gets even stranger. Over in Europe, where the privacy protections for minors are even more severe (and confusing), full-grown adults are finding themselves treated like kids playing hooky.

European Wii U owners are reporting being unable to buy or watch trailers for mature-rated games in Nintendo's Wii U eShop. Eurogamer reports that they are unable to access the pages for ZombiU or Assassin's Creed 3 during daytime hours, even with no parental controls set. Instead, they're greeted with the message "You cannot view this content. The times during which this content can be viewed have been restricted."

Customer service offered this response:

Dear customer, we would like to let you know that Nintendo has always aimed to offer gameplay experiences suited to all age groups, observing carefully all the relevant regulations regarding content access that are present in the various European countries. We have thus decided to restrict the access to content which is unsuitable to minors (PEGI) to the 11 P.M. - 3 A.M. time window.

Well, Nintendo's outlook is definitely brimming with optimism. Either it feels a very small minority of WiiU owners are above the age of 18, or it thinks 4 hours a day is plenty for selling mature content. Nintendo's not going anywhere anytime soon, but the focus of its business seems to have shifted to attempting to prevent bad things with much less emphasis being placed on providing good things. Fear may be a powerful motivator, but it rarely produces good work.

Back in September, we wrote about the latest in the Jammie Thomas-Rasset saga, in which an appeals court had ruled that the original (of three) district court rulings in her case, in which she was told to pay $9,250 per song was perfectly reasonable. As we noted, this was more or less a procedural thing, in an effort to get to the main event: a challenge on the Constitutionality of ridiculously high statutory damages for copyright. And... that's where we are now. Thomas-Rasset has petitioned the Supreme Court to hear her appeal on exactly that question:

Is there any constitutional limit to the statutory damages that can be imposed for downloading music online?

The argument, as when it has been brought up earlier, is that such huge fines represent a 5th Amendment due process problem, as the awards simply are so far out of line with any reason. The filing runs through a brief history of the recording industry's fight against file sharing (amusingly quoting from the movie The Social Network to make the point that the recording industry has seen better days).

Thomas-Rasset makes the case that the three different verdicts, with three different crazy amounts from three different juries highlights the problems with today's statutory damages, and how disconnected they are from reality:

Statutory damages imposed in this way are unpredictable, unconstrained, and equally as punitive as punitive damages; the jury’s role in imposing them is even more divorced from finding facts, from deciding what happened, than it is in imposing punitive damages. The order-of-magnitude difference between the verdicts in this case, $222,000 in the first trial, $1,920,000 in the second trial, and $1,500,000 in the third trial, demonstrates this. The verdicts are unpredictable and, in a deeper sense, arbitrary; they are not tied to any fact or rationale that justifies them, that explains why the law imposes this particular penalty on this particular defendant.

And it's that arbitrary nature that becomes a Constitutional problem under the 5th Amendment:

Thomas–Rasset contends that the award of statutory damages against her violates the Due Process Clause because it is tied not to the actual injury that she caused or other features of her conduct, but to the injury caused by file sharing in general. Like punitive damages, statutory damages are imposed not only to compensate the plaintiff, but also to deter the defendant and others from engaging in similar conduct in the future. While this general approach, punishing one offender to deter others, is constitutional within limits, even gross limits of fair retribution for an individual’s conduct, due process limits the extent of the punishment. This Court recognized as much in reviewing awards of statutory damages as early as a century ago.

In Williams, decided in 1919, a railroad challenged statutory damages of “not less than fifty dollars nor more than three hundred dollars” imposed for overcharging two passengers by 66 cents in violation of Arkansas’s regulation of railroad rates. 251 U.S. at 63–64. The railroad argued that such statutory damages “contravene due process of law” because “the penalty is arbitrary and unreasonable, and not proportionate to the actual damages sustained.” ... This Court held that the Due Process Clause “places a limitation upon the power of the states to describe penalties for violations of their laws” and that due process is denied “where the penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”

And, of course, they claim that this case clearly shows that statutory damages are completely disproportionate:

Under Williams and the other early cases, the award of statutory damages in this case is unconstitutional because it is “grossly excessive” and “wholly disproportioned to the offense.”.... $222,000 for 24 songs that would have cost $24 on iTunes is absurd. Nor can $222,000 be justified by the kinds of other features of the offense identified in Williams.

There's a lot more in the full filing, but it also takes on things, like the claims that the record labels should be able to get more from Thomas-Rasset, because they have to cover for other files sharers. That doesn't fly:

a defendant may be punished for his own similar acts only, Campbell, 538 U.S. at 422–23 (“A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”), and only for the injury that he inflicted on the particular plaintiff in the case, not for any injuries that he inflicted on nonparties, Phillip Morris USA v. Williams, 549 U.S. 346, 353 (2007) (“the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation”). These cases preserve the civil nature of a case notwithstanding the imposition of a punishment: the case remains between two parties, and the civil punishment must be justified with reference to the acts between those parties, not acts in the world in general.

There are a number of legal arguments... and one appeal to emotion, which comes off as a bit weak, though you never know how well some of those might play out:

But lawyers should care about these cases for an entirely different reason: This is not just. It is unfair, it is not due process, for an industry to sue 12,500 people and threaten to sue 5,000 more, wielding a statute for which they lobbied, under which they can threaten hundreds of thousands or millions of dollars in statutory damages, where the only way to resist is through modern, complex, expensive federal process, so that the only reasonable choice is to pay the settlement and be done. That’s extortion, not law. We cannot govern that way.

I am skeptical that this will result in a ruling in favor of Thomas-Rasset (even if the Supreme Court grants cert -- which I'd say is possible, but unlikely). However, perhaps I'll be pleasantly surprised. This is an absolute long shot, especially given a Supreme Court that, while skeptical of patent expansion, has shown a bizarre willingness to let Congress continue to stretch and change and expand copyright law at every turn.

Apparently, Gawker recently got its hands on a book proposal from someone named Lena Dunham, who received a rather significant $3.7 million advance for the work. I've never heard of Dunham, though $3.7 million book advances are pretty rare. You generally have to be someone pretty big to get that. Either way, Gawker, as it is known to do, published the book proposal and made fun of Dunham and the writing. Gawker's initial post definitely did seem a bit gloating and childish in mocking Dunham, but that's kind of the point of Gawker, I believe. Either way, Dunham went legal. Her lawyer contacted Gawker and demanded removal of the proposal, along with all of the quotes from it. In response, Gakwer did remove the full proposal, but left in the quotes but added commentary which is unlikely to make Dunham particularly happy. Here are two examples, though there are many more.

I've been in therapy since I was seven.

Update: Lena Dunham's personal litigation counsel Charles Harder has contacted Gawker to relay a demand from his client, Lena Dunham, that we remove the above quote from our web site. In order to clarify our intent in quoting the above matter from Dunham's proposal, we have decided to append the following commentary: The quoted sentence is revelatory of Dunham's character in that it provides evidence that she has been examining her own thoughts and desires analytically from an absurdly young age. It is also indicative of a nauseating and cloying precociousness that permeates the entire proposal.

When I was about nine I developed a terrible fear of being anorexic.

Update: Lena Dunham's personal litigation counsel Charles Harder has contacted Gawker to relay a demand from his client, Lena Dunham, that we remove the above quote from our web site. In order to clarify our intent in quoting the above matter from Dunham's proposal, we have decided to append the following commentary: The quoted sentence is indicative of Dunham's self-dramatizing narcissism inasmuch as it presents what is obviously a desire for an attention-grabbing condition as a fear of developing said condition. It is also indicative of a nauseating and cloying precociousness that permeates the entire proposal.

Of course, by adding commentary, Gawker is clearly trying to show that it's quoting was fair use. Given the short nature of the original quotes, they probably could make a decent fair use claim on the original post as well, even without the additional commentary (and, of course, if sued, they could still get dinged for the original quotes sans commentary). But, still... the end result of all of this is that Gawker just gets that much more attention, and Lena Dunham's "nauseating and cloying precociousness" gets a further hearing. I fail to see how that benefits Dunham at all. Going legalistic just because you don't like how someone covers your work -- even if you have a legitimate copyright claim -- is often not a particularly intelligent business decision.

We all know that law enforcement has been regularly expanding its ability to spy on people at every turn, especially with surveillance cameras installed all over the place. But it still seems a bit shocking to find out that many municipalities are installing systems on public buses that record both audio and video of everyone on the bus -- including in San Francisco. That doesn't just seem like overkill, it raises significant legal questions. California -- for better or for worse (and I'd argue, for worse) is a two party consent state when it comes to recording, meaning everyone has to know they're being recorded. So it seems like recording without getting consent should be seen as an illegal, warrantless form of wiretapping. Even more troubling: the reason San Francisco is doing this upgrade? The Department of Homeland Security paid them to do it. It gave them a grant covering the entire cost. Is Homeland Security really worried about drunks getting into a brawl on the bus? Or do they see this as an opportunity to do significantly more involved surveillance? The whole program seems pretty troubling, and yet more and more places are adding the devices, with little to no public recognition.

A little while back we wrote about Nathan Myhrvold's sniffy comment that if you're not doing anything to help people suffering from malaria, you have no right to criticize his patent troll operation, Intellectual Ventures. As we also noted, this argument is rather undermined by the fact that his research involves such deeply impractical solutions as "photonic fences" and using magnets to make mosquitoes explode.

If lives are to be saved here and now, and not in some patent-encumbered fantasy world tomorrow, what we need is a rather different approach that works with resources that are available and cheap today. Perhaps a crowdsourced solution like this:

Background: There are 600,000 new malaria cases daily worldwide. The gold standard for estimating the parasite burden and the corresponding severity of the disease consists in manually counting the number of parasites in blood smears through a microscope, a process that can take more than 20 minutes of an expert microscopist's time.

Objective: This research tests the feasibility of a crowdsourced approach to malaria image analysis. In particular, we investigated whether anonymous volunteers with no prior experience would be able to count malaria parasites in digitized images of thick blood smears by playing a Web-based game.

Digitized blood sample images were placed on a Web site, and then people were invited to count the parasites in each. A special algorithm was used to combine the analyses from several visitors to produce a better collective detection rate. It seems to work:

Results: Over 1 month, anonymous players from 95 countries played more than 12,000 games and generated a database of more than 270,000 clicks on the test images. Results revealed that combining 22 games from nonexpert players achieved a parasite counting accuracy higher than 99%. This performance could be obtained also by combining 13 games from players trained for 1 minute.

That's pretty impressive. And unlike bonkers ideas such as "photonic fences", this crowdsourced approach requires little beyond bandwidth for distributing images and enough people participating. Putting the two together potentially allows huge numbers of blood samples to be checked for the presence of malaria infection with high accuracy once the system has been refined to include additional factors like parasite species and growth stages. That makes this approach scalable -- crucially important when there are over half a million new cases of malaria each year. The same can hardly said about using magnets to make mosquitoes explode.

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