While Apple won its big case (so far) against Samsung in the US, over in the UK it was the exact opposite, with the judge telling Apple that it needed to run advertisements saying that Samsung didn't copy Apple's products. The silver lining for Apple: part of the judge's reasoning was that Samsung's products just weren't "cool," while Apple's were. Either way, Apple fought back and argued that it shouldn't have to advertise that Samsung didn't copy Apple -- and, in fact, tried again to convince the court that, no, really, of course Samsung copied it.

It appears that strategy has failed, as the judges handling the appeal have refused to overturn the original ruling, saying that it was important that Apple clear up confusion that might occur among the public:

"The acknowledgment must come from the horse's mouth," they said. "Nothing short of that will be sure to do the job completely."

While I find the ruling amusing, I'm really not sure that it makes sense. I find Apple's attacks on Samsung silly and counterproductive, but forcing it to advertise that Samsung didn't copy Apple may go too far in compelling a company to say things.

The field of artificial intelligence is steadily making progress and developing software that can perform some pretty impressive tasks. Still, most AI projects aren't quite ready to convince everyone that computers can be good at general intelligence. But to some folks, it's only a matter of time before robots are going to take over -- driving cars better than us, beating us at chess/poker/go, stealing all the manufacturing jobs. Here are just a few more examples of artificial intelligence getting smarter.

• Algorithms deep inside the secretive Google X lab have been watching millions of YouTube videos -- and have learned to identify cat faces. This feat was accomplished with unsupervised learning -- so no one explicitly programmed anything to look for cat faces. Maybe those computers figured out for themselves that kittens are good for productivity... [url]
• Eugene Goostman is a chatbot that has come very close to passing the Turing Test by fooling a panel of human judges into thinking it was a real boy 29% of time (Passing the Turing Test requires a 30% fooling rate). This chatbot was given the fake personality of a 13yo boy living in Odessa, Ukraine -- so expect next year's competition to include a lot of fake teenagers with strange idiosyncrasies. [url]
• DeeChee the iCub robot is learning how to talk like a human baby by listening to adults speaking and babbling until recognizable words form. DeeChee is a project in the field of embodied cognition -- which asserts that cognitive processes are shaped by the bodies in which they occur. This robot doesn't think like a human baby, but it could help understand how biological brains create language. [url]

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

Maybe it takes a "digital native" like an app developer to instantly "get" digital publishing. Asking those who've spent most of the ebook era actively fighting the new medium is frustrating for both sides of the conversation.

Rovio, the Finnish developer behind the omnipresent "Angry Birds" game, is releasing its first ebook/app, based on the print version that debuted last year. Mike Cane has a brief but excellent rundown on what Rovio's doing right, and where other publishers are continuing to fall short.

Cane starts by quoting from PaidContent's article on the ebook release, which points out a couple of important aspects of Rovio's offering:

[T]he app is "not just a book," said Peter Vesterbacka, Angry Birds CMO. "We took the content from the book, 41 egg recipes, but didn't want to just take the book, make a PDF and sell it to people. We actually made it a lot more interactive."

"Bad Piggies' Best Egg Recipes" is on sale for an introductory price of $0.99 or €0.79 in the iTunes Store and includes step-by-step photo instructions, an egg timer and photos of the finished dishes. Users can also upload their own pictures of the recipes they make.

First off, the app/ebook is not just a quick and cheap "port" being thrown into iTunes to grab some quick digital dimes. Secondly, the price is well under what most publishers would be willing to charge for a comparable ebook.

Why is this such a frikkin big deal?

[T]hey are selling an app-book for one-tenth of the print version's discount price. ($9.99) One-tenth!

That's a much steeper discount than most publishers would be willing to take, especially on a potential cash cow like this. Sure, one could argue that it's just an app spinoff, or that Rovio made plenty of money with its games, or that there's no "real writing" involved, or any number of tangents in an effort to minimize Rovio's deep discounting. One could even argue that Rovio is leaving money on the table or, as an outsider, just doesn't "get" publishing and price points.

Here's what Rovio has to say about the price point:

"We're not looking thousands or tens of thousands of downloads," he [Peter Vesterbacka, Angry Birds CMO] continued, "we're looking for millions of downloads of this book…We're going for massive, massive volume."

Oh, those crazy Finns and their madcap ideas! Volume! It's as if Rovio believes that it can distribute an infinite good at an extremely low price and still make some very good money. Insanity! Mike Cane points out the sheer incongruity of the situation:

He gets it. None of the Big Six of publishing — or the Little Sixes of it — do.

What if the Big Six started massively discounting their frontlist titles, going for that volume instead of trying to bleed each reader for the most they could squeeze out of them? They'd be able to transition their businesses to e faster and make lots more money in the process — and also help to thwart piracy!

Yeah. What if? Unfortunately, that's still largely open to speculation as none of the publishers seem willing to try it out. Even in the wake of a DOJ investigation into price fixing, prices have tended to move up rather than down (or remain unchanged) as publishers burn through remaining discounts. Even after various self-published authors have demonstrated the ability to make a living selling thousands of cheap ebooks rather than dozens of expensive ones, the tendency is to price ebooks in the same neighborhood as their physical counterparts.

Mike suggests deeply discounting the frontline titles and making more money through volume. But even if publishers aren't ready to take their current bestsellers down that road, what's stopping them from knocking the price of their back catalogs down to an impulse purchase level? Making the back catalog a bargain bin could turn casual fans into completists and give readers a reason to dip their digital toes into unfamiliar waters.

But, if nothing else, Rovio's pricing strategy has to, at the very least, highlight how many publishers are overvaluing their digital offerings, as if charging unrealistic prices will somehow prevent "devaluation." In reality, these higher prices simply show the huge gap between what the publishers desire and what the customers actually want.

A couple of years ago, the publishers of a number of phone books in the Seattle area sued the city for passing a new ordinance that required the publishers to pay a fee and subscribe to an opt-out program. The ordinance was implemented to allow Seattle residents to opt-out of phone book deliveries and the fee was created to pay for the program. The publishers sued stating that this fee and the other regulations that came with it violated the publishers' First Amendment rights.

While we lost track of the lawsuit over the following years, it finally made its way to the Ninth Circuit Court of Appeals in which the three judge panel ruled that the city's ordinance did indeed violate the First Amendment rights of the publishers. The ruling is very thorough in defining just why the phone book is protected by the First Amendment and thus requires strict scrutiny before any regulations can be applied.

To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.

Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents. A profit motive and the inclusion or creation of noncommercial content in order to reach a broader audience and attract more advertising is present across all of them. We conclude, therefore, that the yellow pages directories are entitled to full First Amendment protection.

The city had argued that because the phone books are commercial speech they qualified for a more lenient scrutiny when it comes to regulation. This was argued because the publishers are in the business of selling advertising space and the phone books are the medium. However, the court ruled that neither the presence of advertising nor the financial motive of the publishers disqualified the noncommercial content, such as the phone listings and maps, from strict scrutiny under the First Amendment.

The Ordinance does not satisfy this standard. While arguing that the Ordinance survives intermediate scrutiny under Central Hudson, the City advanced three governmental interests: (1) waste reduction, (2) resident privacy, and (3) cost recovery. See Seattle Ordinance 123427 (Oct. 14, 2010) (Preamble). We need not determine whether any or all of these interests are “compelling”; even if they are, the Ordinance is not the least restrictive means available to further them. One clear alternative is for the City to support the Yellow Pages Companies’ own private opt-out programs. With proper implementation, the private opt-out programs could achieve precisely the same goals as the City’s registry. Even fining the Yellow Pages Companies for a lack of compliance with their own opt-out terms would be less restrictive than compelling them to fund and advertise the City’s program.

While most people these days get annoyed with the constant receipt of the yellow paper brick, that annoyance does not qualify the books for such regulation. As the court states, the city could have performed a number of other actions that would have met the needs of its citizens while still protecting the rights of the publishers. The publishers, perhaps in anticipation of this ordinance being passed, set up a voluntary opt-out program. The city could have instead promoted that voluntary program with its residents.

Despite this ruling, the future of the Yellow Pages still looks bleak. With the majority of people in the US and many other parts of the world now connected to the internet, owning a physical book of phone numbers has become rather pointless. The internet has changed the way people search for goods and services in such a way that the phone book can never compete. Without that ability to stay competitive, this ruling will do little good for these publishers in the long run.

A recent (failed) push to enact cybersecurity legislation has resulted in some interesting maneuvering in Washington, DC. Rep. Mike Rogers, who introduced CISPA, is trying to revive his lousy legislation by telling scary stories that are short on detail, but long on FUD. Other interested parties are hoping to bypass the legislative process altogether and get an executive order pushed through. The "process" has become so chaotic that politicians are finding themselves hurriedly agreeing to stuff that contradicts the other stuff.

Of all the people that believe Something Must Be Done, cybersecurity-wise, one of the pithiest has been Secretary of Defense Leon Panetta, who issued a memorable pull-quote on October 11th in a speech at the Intrepid Sea, Air and Space Museum, warning that the United States was facing the possibility of a "cyber-Pearl Harbor."

A dire situation indeed, if true. Panetta is worried about critical infrastructure being sabotaged by cyberterrorists and is totally not just pushing his own agenda.* According to defense officials, "Mr. Panetta's words were not hyperbole."

(*Panetta is totally pushing his own agenda... those same defense officials "acknowledged that Mr. Panetta was also pushing for legislation on Capitol Hill.")

Yes. Panetta is non-hyperbolically pushing his own agenda. The problem is that, while the CISPA/executive order debacle is fairly recent, Panetta's "cyber-Pearl Harbor" has the ring of a worn-out catchphrase, severely limiting the impact of those somewhat stirring words.

Let's go back to June 2011, when Panetta was holding forth during his confirmation hearing for the post of Secretary of Defense.

The next great battle America faces is likely to involve cyberwarfare, Leon Panetta, the Central Intelligence Agency director, warned senators Thursday, predicting that "the next Pearl Harbor that we confront could very well be a cyberattack that cripples" America’s electrical grid and its security and financial systems.

Tough words from an old warrior (and now former CIA Director). Perhaps the warrior might be a bit too old, as he also offered this quote-worthy bit of scaremongering back in February 2011:

"The potential for the next Pearl Harbor could very well be a cyber-attack," he testified on Capitol Hill Thursday before the House Permanent Select Committee on Intelligence.

The more things change, the more they are the same old shit. Unchanged: using "Pearl Harbor" as shorthand for "unforeseeable bad thing," while simultaneously plucking at patriotic heartstrings by conjuring up the last war the US didn't play to a tie. Savvy. But repetitive.

The most current edition of "cyber-Pearl Harbor" finds Panetta concentrating mostly on infrastructure, thus equating a military surprise attack with some Russian Chinese Iranian hacker flipping the "OFF" switch on the power grid.

“An aggressor nation or extremist group could use these kinds of cyber tools to gain control of critical switches,” Mr. Panetta said. “They could derail passenger trains, or even more dangerous, derail passenger trains loaded with lethal chemicals. They could contaminate the water supply in major cities, or shut down the power grid across large parts of the country.”

Past editions of "Clue: Panetta Edition" haven't been so concentrated on the still-mythic "Cyberterrorists in the Water Main with the Malicious Code." In February 2011, it was "Chinese 'Entities' in the Internet with the Hacking," and a bit of "Anonymous in the EVERYTHING with the LOIC." There was some talk of putting together a joint task force composed of NSA and DHS members. Additional hyperbole was added by Director of National Intelligence James Clapper:

"This threat is increasing in scope and scale, and its impact is difficult to overstate."

Sure is. Especially when you lead in with "cyber-Pearl Harbor." Setting the "overstatement" bar this high does kind of throw off the curve.

June 2011 didn't change much for Panetta's ongoing game of cyber-Clue. Most of the "grilling" during his confirmation hearing revolved around ongoing actual wars, like Afghanistan, Iraq and Libya. Concern was also expressed about "indiscriminate Pentagon budget cuts."

Back to last week, and it's all about the infrastructure. It's as if no one had bothered debunking a recent DHS report about Russian hackers burning out a water pump at an Illinois water facility. Not that it matters, as the DHS was proud to have been involved in a successful FUD operation. Any publicity is good publicity, right? Boring old truth and measured phrases rarely inspire the sort of support needed to shove through questionable legislation and keep the money flowing to the cottage industries that have sprung up like kudzu around the leaky water main that is Washington, DC.

This repeated catchphrase of Panetta's has stuck with him, even as he's shifted loyalties. Back in February 2011, there was talk of DHS/NSA cooperation. Fast-forward to the latest iteration of "cyber-Pearl Harbor" and Panetta's batting for his new home team: the Defense Department, pulling the control (and money) back into the hands of the NSA, the greater of two evils.

Repeat after Panetta:

If you're against cybersecurity legislation, you're for bombing Americans on early December mornings. Can you live with that?

Remember that rule number one of the Carreon Effect is that, when someone calls you out on your ridiculous position... just keep digging. And the man behind the effect apparently would like to make sure that his name really does set the gold standard in "just keep digging." Yes, that's right -- the man, the myth, the sheer wackiness of Charles Carreon is back. Except, that is, if you're trying to serve him for bogus threats against you. You may remember Charles Carreon for his famous lawsuit against the Oatmeal and a variety of unrelated other organizations, followed up by threats against parody accounts (doubly amusing, given Carreon's own fondness for parodying others).

While Carreon eventually dropped his lawsuit against Matthew Inman at The Oatmeal, it wasn't before one of the parody bloggers he had threatened filed for declaratory judgment, claiming that his blogging was legal. Carreon quite clearly was threatening the blogger, and had even suggested that he would wait until the attention died down to sue -- which clearly gives the blogger grounds for seeking a declaratory judgment. That, of course, is a separate lawsuit, initiated by the blogger, so Carreon can't just drop it. But what he can do, apparently, is everything possible to avoid being served. The judge's own summary of the situation (via Popehat):

Plaintiff seeks a declaratory judgment that his satirical website does not infringe the trademark defendant has in his own name. Prior to filing a complaint, plaintiff's counsel was in contact with defendant via email. After filing the complaint, defendant and his wife publicly discussed the pending litigation. Plaintiff's counsel mailed defendant a request for waiver of summons to his address in Tucson, Arizona, which defendant did not execute. Instead, the entire envelope was mailed back to plaintiff, unopened, inside a second envelope. This same sequence of events was repeated after plaintiff filed an amended complaint. At plaintiff's request, the Court issued a summons, and plaintiff hired an Arizona process service company to serve the summons at the residential address. On the first visit, the server announced himself and was told “No thank you,” and left with the papers. On the second and third visits, nobody answered. The process service company then tried to serve the summons and complaint by certified mail, but the package was never claimed.

Of course, during this time that Carreon was hiding out from officially being served, it didn't stop him from continuing to find ways to intimidate the blogger in question. Again, from the judge:

During this time, defendant contacted the general counsel of Walgreens, plaintiff's employer, stating plaintiff had used Walgreens' computer equipment or internet access to create the allegedly actionable website, and implying he might make Walgreens a party to the litigation under a theory of respondeat superior. The demand letter sent to Walgreens contained the same Tucson, Arizona address and email address that plaintiff had been using to attempt service on defendant.

Following that, the blogger's lawyers once again emailed Carreon a copy of the summons, complaint and amended complaint -- including sending it to the address Carreon used to threaten Walgreens... and Carreon ignored that too.

Unfortunately, Carreon seems to be working the system effectively. Because even with all of these obvious attempts to avoid having to actually deal with the lawsuit against him, the judge is asking the blogger and his lawyers to "try harder:"

The process server could easily wait outside the fence for defendant to enter or leave the residence and could then leave the papers in the defendant's presence. Alternatively, the process server may choose to wait near a location defendant is thought to frequent, such as an office or grocery store. If the defendant still refuses to accept the papers, it will be considered sufficient if the “server is in close proximity to the defendant, clearly communicates intent to serve court documents, and makes reasonable efforts to leave the papers with the defendant.”

And with that, the judge refuses to allow the emails to constitute proper service. Public Citizen, who is handling the case pro bono, is asking for donations to help pay for hiring someone to "sit outside Carreon's house until Carreon appears," noting that he's "carrying through on his promise to run up the cost of litigation."

It's unclear what Carreon thinks he's accomplishing here, as he's going to have to face these charges eventually. But, as once again seems clear, his response is to... just keep digging.

I recognize that it's easy to jump to simplified caricatures of nuanced positions, but there's one argument that I find particularly nefarious and disgusting. It's the idea that folks like myself "don't want artists to get paid." That seems to be one of the insinuations in this article, interviewing a noted copyright system supporter, in which I am set up as the foil on the other side. The argument is falsely made that those, like myself, who argue against copyright's excesses and for people to look at all the new opportunities out there, somehow "get upset when musicians and filmmakers try to earn a living."

There's a massive false premise cooked into that claim: it's that any argument in favor of preventing copyright's excesses, or any thoughts about how content creators might make money outside of copyright somehow (bizarrely and incorrectly) means that you want artists to not get paid. However, since I'm used as "the example" of that position in the linked article, I'm curious how one can explain the fact that we regularly celebrate example, after example, after example, after example, after example of artists making money (sometimes lots of it).

There's a complete strawman being set up here, and it's incredibly frustrating. Those of us who believe that arguing over a mythologized past that never really was and certainly never will be again -- in which most artists were completely shut out of the market entirely -- is a waste of time, are falsely being branded as being anti-artist. This is bullshit. It's a more nefarious version of the argument made by the labels and the studios that they represent artist's interests. The reason this argument is made is because these new opportunities that we see for artists, which we regularly highlight and celebrate, quite often (though not always) involve routing around the traditional gatekeepers. So their response is to falsely attack us by claiming that we're the ones arguing against artists.

Yet, whenever we bring up all of these examples of artists making money through new technologies and services, rather than celebrating those successes, the folks who claim to be arguing for the artists (when they're really just arguing in favor of protectionism for gatekeepers) suddenly become insulting towards those artists. They argue that these success stories don't count or are exceptions to the rule. They quite frequently mock their talents and suggest that the only reason they had to go an alternate route is because their art isn't good.

I recognize that this is how things work in political fights -- where people use facile simplifications based on lies to characterize your position -- but I'm hoping we can put an end to the ridiculous claims about folks like myself being upset when artists make money. My position is the exact opposite. I want artists to make money. I want them to make lots of money, and I think there are all sorts of opportunities for them to do so. What I worry about is, if they don't adapt and continue rely on an obsolete and broken system, that it's a lot more difficult to make money that way. But to twist that into claiming that we don't want artists to make money is a ridiculous smear.

No one "gets upset" when artists try to earn a living. What we worry about is when they try to change laws in a ways that harm others, and which don't actually help them earn a living. Does telling someone that jumping off a bridge is not a good way to fly mean that we're against people flying? Especially if we point out example after example of people flying in airplanes? I don't think so, and I think it's worth calling it out as a lie when people make that argument.

Techdirt readers with long memories may recall a fantasy proposal from Orrin Hatch that would have seen technological means deployed to destroy the computers of those who downloaded unauthorized copies of files. Of course, the idea was so ridiculous it went nowhere. Now, nine years later, a similar idea has turned up, but with a rather better chance of being implemented, since it comes from a national government:

On 15 October, the Dutch ministry of Justice and Security proposed powers for the police to break into computers, install spyware, search computers and destroy data. These powers would extend to computers located outside the Netherlands.

The plan of allowing the police to break into domestic computers and install spyware is bad enough, as the German experience shows. There, it turned out that the malware employed had such serious flaws that anyone could take control of a machine infected with it. But the idea of giving Dutch investigators permission to break into computers anywhere in the world is even worse. The article from the digital rights group Bits of Freedom, quoted above, explains why:

If the Dutch government gets the power to break into foreign computers, this gives other governments the basis to break into Dutch computers which infringe the laws of their country. The end result could be less security for all computer users, instead of more. This is even more true with regard to the power to destroy data on foreign computers; it is likely that other governments would be very interested in using such a power against Dutch interests.

Even totally law-abiding users might be caught up in this digital war:

Furthermore, providing the government the power to break into computers provides a perverse incentive to keep information security weak. Millions of computers could remain badly secured because the government does not have an incentive to publish vulnerabilities quickly because it needs to exploit these vulnerabilities for enforcement purposes.

It's not really down to governments to publish details of flaws, but it's possible they might be less inclined to encourage the public to patch them, if they want to use the vulnerabilities themselves. This would doubtless lead to criminals taking advantage of widespread holes in security, with personal data being stolen, and financial systems compromised.

All-in-all, the Dutch proposal has to be one of the most foolish ever presented by a government in this area, and shows the folly of trying to come up with quick fixes for the currently-fashionable issue of "cybercrime", instead of really thinking through the consequences. Let's hope calmer heads prevail, and the proposal is withdrawn.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Back in January, we wrote about Twitter's decision to set up tools to allow it to censor locally if required to under local laws. While many people got upset about this, believing it meant that Twitter was supporting censorship, we noted that the issue is a bit more nuanced than that. You could take the extreme position that Twitter should stand up for free speech absolutely, no questions asked, anywhere around the world. And, to some extent, I'm sympathetic to that viewpoint. However, at the same time, it is a fact that different countries have different laws, and some of those laws restrict free speech. Twitter's decision, then, is a compromise on that, but in a somewhat more effective way. They will only block the content in that specific country where it has been deemed illegal.

And, now, nine months later, Twitter's General Counsel Alex Macgillivray (@amac), has admitted to using the censorship ability for the first time, for the account of a neo-Nazi group based in Germany, where it has been declared illegal. The block only applies to Germany. As some have noted, this is a really bad group. But, of course, it's always those kinds of cases that test your principles. As promised, Twitter has publicly shared the takedown letter it received on ChillingEffects.

Dear Madam, Dear Sir,

the enclosed letter gives you the information that the Ministry of the Interior of the State of Lower-Saxony in Germany has banned the organisation "Besseres Hannover". It is disbanded, its assets are seized and all its accounts in social networks have to be closed immediately. The Public Prosecutor (State Attorney's Office) has launched an investigation on suspicion of forming a criminal association.

It is the task fo the Polizeidirektion Hannover (Hannover Police) to enforce the ban.

The organisation "Besseres Hannover" uses the Twitter account
besseres-hannover@hannoverticker
https://twitter.com/hannoverticker

I ask you to close this account immediately and not to open any substitute accounts for the organisation "Besseres Hannover".

Please confirm that you have received this letter and let me know what measures you have taken.

Yours sincerely,

[signature]
Head of Police Admin Dept

This is the kind of thing that Twitter absolutely expected -- and the fact that is only banning the account in Germany, rather than following the demands of the letter ordering the account be shutdown completely, suggests that Twitter isn't just caving in here. Of course, given my strong belief in the importance of free speech, I think that the demand to shut down the account itself is the bigger issue here, rather than Twitter's reaction to it. In ordering it shut down, and leading to this public admission about it from Twitter, all that German law enforcement has done is call more attention to this group.

Also, I'd take some issue with Amac's claim that this is the "first time" the company has used its ability to "withhold content." It has done so repeatedly in the past over DMCA claims. Yes, that's somewhat different, but not as much as some would like to believe. Both are cases where the local law claims that the content in question is illegal, and upon notices sent to Twitter, it blocks that content. That makes no statement on whether or not such content should or should not be illegal. But the basics of the situation are really the same.

Either way, I appreciate that Twitter is at least trying to walk the fine line of both complying with the laws in countries like Germany, while simultaneously effectively demonstrating why such laws don't necessarily work well. I can certainly understand why Germany has laws against neo-Nazis and hate groups. Given the history there, it's hard to imagine such laws not existing. But situations like this raise questions about just how effective they really are. In this case, all it's really done is call more attention to the group in question. As for Twitter, you could argue that the company could go much further, but it would clearly run into significant legal challenges. And, while it would be great if it also recognized that the DMCA notice situation really isn't all that different, it's difficult to fault Twitter for deciding this particular battle wasn't worth fighting against.

A few years back we created a graphic to highlight the ridiculous patent thicket around smartphones. It really just highlights some, though not all, of the litigation concerning patents related to smartphones. That image is a bit out of date, with some cases settled, others completed, and many more filed, of course. Note the lack of anything between Samsung and Apple for example. But, of course, patents in litigation are just one aspect of a patent thicket. Plenty of patents are used just to demand licensing fees, but are never actually used in litigation. And plenty of patents don't show up in litigation at all, but can still represent part of the problem of the thicket.

A new analysis shows just how insane the patent thicket is today. Done by "defensive" patent aggregator RPX (they try to position themselves as the "good" version of Intellectual Ventures), the estimate is that a stunning250,000 active patents today impact smartphones. 250,000. As the article notes that's one in six active patents today -- and for an industry that is certainly less than 1% of US GDP. As a comparison, the pharma industry, often put forth (inaccurately, in my opinion) as an area where patents make sense, has accounted for a little over 6% of US patents over the past 15 years. Also, there's this:

... in the pharmaceutical industry, there are approximately 46.8 patents per every 1,000 jobs, whereas in the computer and peripherals equipment sector, there are 277.5 patents per 1,000 jobs. Even the semiconductor industry, known for its highly complex products, has a patent/job ratio of 111.6 patents per 1,000 jobs -- approximately 40% the rate of patents to jobs as the computer and peripherals market.

It definitely appears that there's something of a "bubble" going on around smartphone patents -- which is what happens when you have a hot emerging area, combined with ridiculously broad patents. It also makes for an astounding minefield for anyone new who wants to enter the space, especially if you don't have a massive war chest to license or fight in court.

It's astounding and depressing how often companies seem to abuse trademark law to pretend it's about complete ownership of a brand, rather than its roots as a consumer protection statute to stop someone from buying a product believing it was made, supported or endorsed by someone else. The latest ridiculous news comes courtesy of the Citizen Media Law Project in Boston, who notes that their local popular-with-the-college-kids "wraps and smoothies" joint, Boloco, has been legal nastygrammed by Nutella. Why? Because of this: their Nutella Milkshake, which they've sold for 14 years: Andrew Sellars from CMLP points out that the legal basis for this is... questionable at best:

Courts have long confronted this unauthorized-but-accurate use of another company's name. In a 1924 Supreme Court case the court considered a New York company that took a French company's cosmetic powder, blended it with a binding agent, and sold it as a compact including both the New York company's and French company's names on the packaging. The Supreme Court allowed the defendant to do this, provided that the defendant include a prominent disclaimer that the district court in the case initially imposed, informing the public that the two companies are not affiliated. Writing for the majority, Justice Holmes observed:

[W]hat new rights does the trade-mark confer? It does not confer a right to prohibit the use of the word or words. It is not a copyright. . . . A trade-mark only gives the right to prohibit the use of it so far as to protect the owner's good will against the sale of another's product as his. . . . When the mark is used in a way that does not deceive the public we see no such sanctity in the word as to prevent its being used to tell the truth. It is not taboo.

Many courts have adopted this case's approach to this question: you can use the trademark so long as you are not misleading the public into there being an affiliation between you and the company, other than your use of the company's product in your product. For example, a 2004 case from the Southern District of New York allowed a company that makes tuna salad display on the lid of its container – in letters about as large as the company's own brand name – that the salad was "Made with Bumble Bee Tuna," over objections from the famous tuna company.

In response, Boloco has decided to cave and is instead looking for alternatives to Nutella for their shake, even to the point of showing some of the other brands they're considering: In the end, it's difficult to see how any of this helps Nutella. They show themselves to be a bully, pissing off fans, and Boloco goes looking for competitors to promote in their place. As Sellars concludes in his article:

...when I was in Boloco today (field research!) I couldn't help but see the dozens of jars of Nutella in the back, and thinking about the dozen-or-so other locations around Boston with similar stacks of Nutella jars. Those will be replaced by a competitor's product, in a chain that seems to be growing with each passing month. Not to mention the thousands of Bostonians who have heard about this case and will naturally root for the local guy; you get the feeling that this whole experience is going to leave a bitter taste in [Nutella's] mouths.

Perhaps, next time, they'll realize that bullying may be legal, but it's often not a particularly smart business strategy.

The best way to combat piracy is to offer content at a reasonable price, make it easily accessible and hamper it with as few limitations as possible. Very, very slowly, the major studios are coming around to this line of thinking. A few tentative (and pretty much awful) steps have been taken, but it seems that for every minute, baby step forward, the motion picture industry staggers several steps back.

Case in point: Amazon's Instant Video service, which has "over 100,000 top movies and TV shows to rent or buy." This includes many new releases, and the purchaser can stream the movie indefinitely and at any time to compatible devices. The purchaser also has the option to download the movie to a PC or Kindle Fire for viewing without an internet connection.

It all sounds like a pretty good deal, until you realize that the words "indefinitely" and "any time" mean something completely different to the studios.

Consumerist reader Rebecca found this out the hard way, when she purchased Puss In Boots for $14.99 from Amazon, believing that, per Amazon’s marketing, she would be able to watch the movie when she wanted and for as many times as she wanted.

And all was going well for a few weeks until Rebecca went to stream Puss In Boots and instead saw a message stating that the film was no longer available for viewing.

As Rebecca found out, "any time" means "any time the studio is not currently milking every last dollar out of its latest release by shuffling it in and out of rental, PPV and premium cable windows." Why these windows should matter to someone who has already paid for the movie is beyond me. After all, the purchaser should be able to set his or her own "window," starting from the point they paid for the movie and going forward.

Amazon's marketing seems to agree with this customer-friendly "any time window." But once something like this happens, the real details come out. Rebecca contacted Amazon for some clarification on this bullshit "anomaly" and received this:

Due to licensing restrictions, videos can become temporarily unavailable for viewing or downloading. The video will automatically be made available again once that restriction ends.

Availability of videos for purchase, re-download, or access from a backup copy is determined by the owners of the content. On very rare occasions, a video you previously purchased may become unavailable.

Well, that's kind of crap. The video you "previously purchased" may become "unavailable" at the whims of "THE OWNERS OF THE CONTENT." No doubt wrinkles of incomprehension form on the brows of studio and label execs when customers make bizarre claims of "ownership" after purchasing movies and music. According to the execs, they only "licensed" the content to you (with all the billions of lousy stipulations that transaction entails). [Unless you're Eminem and demanding to be paid larger "license" royalties. In this specific case, you were sold actual songs.]

While this studio chicanery is nothing new, especially when it comes to digital goods, Amazon isn't helping matters by burying the exceptions and limitations that come with purchasing "indefinite" access. The licensing restrictions Rebecca had detailed for her by Amazon appear nowhere on the purchase pages. In fact, the "Amazon Instant Video Usage Rules" page carries none of this information either. Instead, it gives you this phrase and link:

Viewing Period: Indefinite — you may watch and re-watch your purchased videos as often as you want and as long as you want (subject to the limitations described in the Amazon Instant Video Terms of Use).

The TOS link brings you to a less-than-helpful wall of text, leaving the purchaser to scroll up and down before finding the pertinent information that explains exactly why something they purchased is unavailable.

Purchased Digital Content will generally continue to be available to you for download or streaming from the Service, as applicable, but may become unavailable due to potential content provider licensing restrictions and for other reasons, and Amazon will not be liable to you if Purchased Digital Content becomes unavailable for further download or streaming. You may download and store your own copy of Purchased Digital Content on a Compatible Device authorized for such download so that you can view that Purchased Digital Content if it becomes unavailable for further download or streaming from the Service.

Nice, huh? For any reason, your purchase may be limited, unavailable or removed completely by the "content provider." Amazon suggests (when it's done letting you know that "hey, not our fault") that the purchaser download and store their own copies to avoid being locked out of their purchases by the content providers. Well, thanks for the suggestion, Amazon, but even that half-assed "workaround" is useless thanks to the fact that the content provider can also make purchases "unavailable for further download." It's not as if Dreamworks is going to send an email blast letting customers know that their purchased streams are about to vanish thanks to a six-week run on pay-per-view. And the studios certainly aren't going to tell customers "Download now because we're yanking that movie from Amazon completely." Everyone involved would just rather the problem be dealt with when the angry emails start pouring in, if at all.

Now, Rebecca obviously prefers streaming, so getting shafted by the studios probably isn't going to drive her to massive torrenting. What it may do, however, is send her towards streaming services like Amazon Prime or Netflix. Because of its shortsighted urge to drain every last penny out of "Puss in Boots," Dreamworks seems willing to sacrifice actual "digital dollars" from Amazon Instant Video for the "digital dimes" of other streaming services. Of course, if the studio already has your $14.99, it's probably not very concerned about how satisfied you are with the spotty availability of your purchased movie license. It's not like Rebecca can return it. All she can do is wait for Dreamworks to reopen her (prepaid) window.

Streaming is becoming the preferred option for movies and music and Hollywood seems to be willing to fight it every step of the way. It's sad and it's ugly. The industry has crippled Hulu and Netflix (while offering nothing comparable of their own) and now seems ready and willing to kick Amazon and its customers around for as long as it can get away with it. It's one thing to play stupid games with content when customers are playing a flat rate for "all you can watch." It's quite another to yank content away from customers who have paid directly for a title at prices that rival a physical DVD purchase. That's not a "business model." That's abusing your customers for fun and profit.

As we noted a couple of weeks ago, when we wrote about India's moves to issue compulsory licences for the production of generic versions of expensive, patented drugs, the big fear for Western pharmaceutical companies was that other countries might follow suit. It looks like that's happening in Indonesia, where the country's president has signed a decree authorizing low-cost versions of key HIV drugs:

the measure would introduce widespread generic competition and generate major cost savings in the world’s fourth most populous country. The decree licenses patents for a slate of HIV medicines, and represents one of the most robust uses of pharmaceutical patent licensing power by a country since the World Trade Organization 1995 Agreement on Trade-Related Aspects of Intellectual Property (WTO's TRIPS).

Again, the concern for the major drug manufacturers must be that this latest move will encourage even more countries to start granting patent licenses for drugs needed by their populations, but which are currently unaffordable thanks to Western-level pricing. Indeed, it's hard to see what can stop that happening now that India and Indonesia have shown the way by invoking the right of countries to issue compulsory patent licenses, as enshrined in TRIPS.

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The Russian social network vKontakte has been held liable in a copyright case for the second time this year. Music label Gala successfully claimed damages again, because vKontakte's users are able to (and do) upload its music and videos to the social network.

This series of court cases may have prompted Mark Zuckerberg of Facebook to speak to Russian Prime Minister Dmitry Medvedev about copyright laws on a recent trip. It is no secret that people do upload a lot of music videos to Facebook as well, so Facebook -- or any social media service for that matter -- could easily become the next litigation target in Russia.

Music recommendations via social networks have an important function in the modern music industry, because they are great tools for artists' marketing and consumers' awareness of new music alike. The question is then, whether the rest of the social media landscape and the culture of sharing and recommending have anything to worry about, following the two rulings from Russia. After all, Russia is a huge market, so global services may be pushed to regulate by code the types of content that is uploaded or linked to. Strict laws in one country can have effects on the way a service operates in another country.

Although details on Russian information law regarding intermediary liability and copyright exemptions are a little sketchy when one cannot read Russian, there does not seem to be a Russian equivalent of the safe harbor provisions in the US DMCA or the EU E-Commerce Directive. Russian services seem to so far have relied on a framework of laws, such as an exception in the fairly new Russian Federation Civil Code (Part IV, 2008), which allows for private copying and a subsequent levy on computers or digital media carriers, and the fact that initiator should be liable for copyright infringements, not the intermediary.

The vKontakte website looks and feels pretty much exactly like Facebook, but there's a key difference: Users are able to search all uploaded media on the social network, not just in their circle of friends. Although all sorts of content is accessible on Facebook, it has taken care to make content available mainly within groups of friends or when artists publish the works themselves on their own pages. The former likely falls under private copying exemptions, or fair use in the US, whereas the latter is simply a great promotion.

The same cannot be said for service like YouTube and Twitter. Most content uploaded or linked to by their users is searchable and publicly accessible. YouTube, of course, has the technical capacity to filter a portion of copyright protected works. However, no further special care is taken to keep the circulation of content limited. With this in mind, it is interesting to note the reaction by IFPI, the international arm of the RIAA, who celebrate this second ruling:

"The IFPI suggests that the 11 licensed digital music services in Russia have 'not developed to their full potential' because of the easy availability of free music on vKontakte. But rather than simply restricting its upload and search capabilities, the real question is whether, like Baidu in China, vKontakte can become a licensed partner for the music industry rather than a foe for the long term."

IFPI tries to push the social network to purchase licenses for the works their users are sharing on its service. This is made possible by the absence of rules exempting intermediaries, such as social networks, from liability for the actions of their users. Much can be said about the negligence with which vKontakte made uploaded content available to its whole user base. However, when comparing vKontakte to the services of Twitter and YouTube, it suddenly becomes apparent that any user-generated content service that operates worldwide may well be playing Russian roulette with their own liability for their users actions.

This is not to say that services should refrain from buying licenses from rights holders. However, in order not to start a technical race to the bottom, where user-generated content services adhere to the strictest copyright law the world has to offer (with all its negative consequences) in their aim to expand into new territory quicker than competitors, some reflection is needed on the global norms regulating intermediaries. Cases such as this one should ideally trigger new discussions and considerations at the international level. Maybe Zuckerberg can hold his next talk about global copyright at venues such as at the WIPO or the WTO.