Last year, we wrote about the somewhat random confluence of events that brought together two ex-file sharing industry execs (one associated with Kazaa and the other with Morpheus) and made them extreme patent trolls, suing a ton of internet companies under the ridiculous brand "PersonalWeb." Well, PersonalWeb is adding to its ridiculous legacy by suing Rackspace as well, though as the complaint makes clear (pdf), PersonalWeb seems mighty confused about what it's suing over.

That's because it seems to be claiming that Rackspace is responsible for... GitHub. Now, it's true that Rackspace, one of the most popular hosting companies out there, does provide hosting services to GitHub, but that doesn't mean that Rackspace is Github -- though you couldn't tell that from the filing. Now, it isn't just filing about GitHub, but also Rackspace Cloud Servers, which obviously are a Rackspace product. The patents being sued over are basically the same batch as we wrote about last year, but with one addition (added at the top -- it wasn't in last year's post because... it was only granted this year):

• 8,099,420: Accessing data in a data processing system
• 8,001,096: Computer file system using content‐dependent file identifiers
• 7,949,662: De‐duplication of data in a data processing system
• 7,945,544: Similarity‐based access control of data in a data processing system
• 7,945,539: Distributing and accessing data in a data processing system
• 7,802,310: Controlling access to data in a data processing system
• 6,928,442: Enforcement and policing of licensed content using content‐based identifiers
• 6,415,280: Identifying and requesting data in network using identifiers which are based on contents of data
• 5,978,791: Data processing system using substantially unique identifiers to identify data items, whereby identical data items have the same identifiers

If those seem incredibly vague and broad to you, you're not alone. M-CAM, a company which specializes in analyzing the quality of patents, found PersonalWeb's patents so egregious that it proposed an award named after the examiner on a bunch of them, Khanh B. Pham:

After reviewing PersonalWeb's patents, we propose that the USPTO indeed mold a "Pham" award to best commemorate the ultimate, the outrageous, the most horrifically unacceptable patent examination performance of the current patent system.

To be fair, it seems like Pham has plenty of company.

There is also the oddity of Level 3 being a plaintiff on the case, though it sounds like it's just along for the ride as a silent partner:

Level 3 has joined in this Complaint pursuant to its contractual obligations under the Agreement, at the request of PersonalWeb.

Basically, it sounds like part of the licensing deal in which PersonalWeb ended up with some Level 3 patents, and Level 3 gets a cut of some of the profits.

For its part, Rackspace has rightfully spoken out about the ridiculousness of this. What's good to see is that they don't just focus on the insanity of this particular case (though that is discussed), but the patent system as a whole:

In fact, GitHub is a perfect example of a company that is built to foster and enhance innovation. The GitHub repository service for software development projects has achieved legendary status among open source developers all over the world. GitHub has over 2.1 million users hosting over 3.7 million repositories. They are a paragon of innovation. Yet PersonalWeb has the audacity to file a lawsuit which alleges that “Rackspace Cloud Servers and GitHub Code Hosting Service” infringe some obscure patent from 1999 that has nothing to do with Rackspace and GitHub. Who is truly innovating here, PersonalWeb or Rackspace and GitHub? PersonalWeb is not the issue of course. They are just another patent troll attempting to take advantage of bad law. It is their nature. They look for opportunity, and patent litigation can be very profitable. The real problem is the law. According to a recent study by James Bessen and Michael Meurer of the Boston University School of Law, titled “The Direct Costs from NPE Disputes,” patent trolls cost the American economy $29 billion in 2011. The authors found that patent troll litigation affected 5,842 defendants in 2011.

It's good to see more companies speaking out and recognizing that this is a widespread problem that needs to be addressed, rather than a narrowly focused one on the margins.

Walking is such a boring way to travel for some folks. All kinds of gadgets to help people move faster with less effort have been tried, and some products (like skateboards and roller blades) have survived an initial fad to become somewhat useful means of transport. But some things haven't quite proven their worth beyond being fleetingly-popular toys. It doesn't hurt to keep trying to come up with better ways to get around, so here are just a few other examples of things designed to move people.

• The German-designed FLIZ is a modern take on the velocipede -- and it looks pretty dorky. Riders of this bike are hanging from a harness, and they "pedal" by simply walking... so there's not that much mechanical advantage. [url]
• Normally, kids on skateboards go down the handrails of stairs, but a skateboard design called the Stair Rover tackles stairs head on. But the Stair Rover probably solves a problem that few people really wanted to fix.... [url]
• The pogo stick isn't exactly a means of transportation, but it's become an extreme sport. The Guinness Book of World Records has recorded the highest jump at 9 feet 6 inches (over a bar). [url]

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

While Glyn just recently wrote about Jimmy Wales' effort to stymie UK snooping, it appears there may be other issues to address in England. If Wikipedia has had to fight any stigma, it's been the notion that a crowdsourced encyclopedia in which most anyone could contribute would be so rife with errors and bias as to be unusable. After all, there have indeed been reports of individuals and companies editing negative information out of thier own pages. This perception persists, despite evidence that Wikipedia is every bit as accurate as printed encyclopedias.

And so we have another such story, in which Roger Bramkin, Wikimedia trustee, is being accused of running a pay-for-play system using Wikipedia's "Did You Know" and GLAM projects to keep his day job clients in the wiki bloodstream. Essentially, it appears Bramkin took the country of Gibraltar on as a consulting client and then routinely pumped their stories into Wikipedia.

Roger Bamkin, trustee of the Wikimedia Foundation UK, whose LinkedIn page describes him as a high-return-earning PR consultant, appeared to be using Wikipedia's main page "Did You Know" feature and the resources of Wikipedia's GLAM WikiProject (Galleries, Libraries, Archives and Museums) initiative to pimp his client's project.

Now, it would be easy for anyone so inclined to throw their hands around and make a great deal of noise about how this proves Wikipedia's unreliability. Crowdsourcing, it would seem, has led to corruption of the bloodstream. This hand-wringing would be particularly easy in light of a second such Wikipedian in Residence (an editor held in high esteem) being found to have run a similar operation focused on SEO and Wikipedia pages for paying clients. Wikipedians in Residence are typically required to recuse themselves from editing pages in which they have a conflict of interest, and these incidences seem to violently violate those rules.

But here's what is being swept under the rug with all the hand-waving: it was the Wikipedia community members who found all this out and are bringing it to light. This entire incident began on a Wikipedia discussion page over abuse of DYK and that is exactly how Wikipedia is supposed to work. So, while conflicts of interest issues and erroneous entries in Wikipedia are certainly a huge concern, it is selective bias at work to point to them as examples for why crowdsourcing information doesn't work while also failing to mention that the same crowd was responsible for its ceasing.

This is becoming a regular thing. While some insist that copyright isn't limiting free speech, there has recently been a string of situations involving official livestreams being taken down due to copyright bots. There was the Hugo Awards livestream and the DNC livestream... and now it appears that Salesforce's big event, Dreamforce, is having the same issue. Brian Walsh sent over the following image as he tried to watch the official live stream: Yup. That's the official stream (via Facebook), blocked due to "content restrictions." Guilty until proven innocent... and by then it's too late.

By now, many of you have probably read about Musicmetrics' new Digital Music Index. Musicmetrics took a whole bunch of filesharing data and approximated the location of each downloader in order to get a better understanding of who shares music. What it found isn't really surprising. A whole lot of people download music. While that in itself is marginally interesting, what is even more interesting is the idea that music filesharing has become mainstream.

With the numbers and locations that the index shows, you can see that despite the harsh penalties imposed on those caught filesharing, people still don't care.

The data shows just how mainstream filesharing is now. It isn't just members of Anonymous sitting behind their Macbooks downloading the obscure doom metal of Sunn O)))) the culprits are your next door neighbours, your relatives, your own kids and perhaps (probably) even you. That's the problem for the record labels who, along with the government, have tried to stigmatise the practice as much as possible. But those who have grown up getting whatever music they want for free are not suddenly going to become nostalgic vinyl-heads who are willing to pay £11.99 for a CD – to them it makes no sense and the rose-tinted memories of buying a physical record from an actual person don't exist. And the message that filesharing is stealing and equal with nicking a car doesn't hold much water when so many people are busy doing it.

If so many people are filesharing despite the best efforts of groups like BPI to demonize the practice, what is there to be done? What do the actual musicians think? Well, this is where another interesting aspect of the index comes in. Not only does the index report on the location of those sharing, it also indexed the most downloaded artists. Using this data, Musicmetrics found that Ed Sheeran was the most downloaded artist in all of the UK. So what does he think? It helps him sell tickets.

I've sold 1.2 million albums, and the stat is that there's 8 million downloads of that as well illegally.

Nine million people have my record, in England, which is quite a nice feeling.

I'm still selling albums, but I'm selling tickets at the same time. My gig tickets are like £18, and my albums £8, so ... it's all relative.

If the record labels and the BPI were correct, Ed here would be slowly dying in a gutter somewhere, not selling concert tickets at £18 a pop. But the fact remains, he is. He is succeeding because these filesharers are becoming fans and want to support him. But why do they download instead of buy? What is stopping them? There are too many barriers or not enough options according to the Guardian.

iTunes has been successful but it depends on a user having an Apple product to put the music on after they've paid for it, and an average kid doesn't have money lying about for an iPhone. Streaming sites like Spotify for music and Netflix, which offers a similar service for film and TV, are an interesting idea and growing rapidly, but at present they are still nowhere near popular enough to challenge torrents, filesharing and the attraction of free music.

The recording industry has itself to blame here. With the high licensing fees it requires from online services like Pandora and Spotify, these services just can't grow to where they can actually compete. This is holding back the music industry more than it helps it. If people can't get the music they want from legal services, they will go to something else that is culturally accepted even if it is not legal.

We have already considered what an alternate reality would look like if the music industry had actually accepted change and innovated instead of following its current fight-and-impede approach. By sticking with its current approach of fighting the will of fans, the industry has not only left money on the table, but has made itself culturally obsolete. The fans have already moved on from what the record industry is offering to something better. They have built up a culture around filesharing, and that culture has become mainstream.

Remember that sweet octogenarian lady in Spain who tried to restore a 19th-century fresco "Ecce Homo" and ended up producing something that the BBC's Europe correspondent described as "a crayon sketch of a very hairy monkey in an ill-fitting tunic"? Remember how the poor woman had an anxiety attack as a result of the criticism she received, but that everything worked out fine when her work became an Internet meme, and sightseers started flocking to see it?

According to a story pointed out to us by @sinkdeep, that sweet octogenarian lady is back, accompanied now by her lawyers, claiming copyright on her work and demanding a cut of the takings from the collection box that the church authorities have placed near the fresco (original in Spanish.)

It would be fascinating to know where the idea came from: whether somebody suggested to her that she had a "right" to some of the church's money, or whether the sense of entitlement -- in this case for more or less ruining an admittedly minor work of art -- is now so widespread that everyone, everywhere, naturally assumes they ought to get their cut as soon as money is involved. Either way, it's a sad commentary on our times -- and on what a belief in copyright can do to otherwise generous people.

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In what has to be the most purely symbolic decision handed down by a court since King Solomon's derailing of a vexing child custody battle, a French court has ordered the tabloid that originally published the topless photos of Kate Middleton to perform an act of contrition that is actually more pointless than prosecuting this case itself:

The French magazine Closer, which published topless photos of the Duchess of Cambridge, must hand over the original pictures and pay a 10,000-euro ($13,000) fine each time the images are published again, a French court ruled.

The magazine, owned by the Berlusconi family’s Arnoldo Mondadori Editore Spa (MN), was sued after it printed a series of photos of the royal couple sunbathing on a private French estate. The tabloid was ordered to pay Kate 2,000 euros in expenses and an additional 10,000 euros each day it fails to turn over the original images.

Perhaps the judge (Judge Jean-Michel Hayat) spent the past few days enjoying some fine film noir, watching negatives go up in smoke in starkly lit ashtrays as the music rose and screen went soft focus momentarily as things, indeed, appeared to be working out for the troubled heroine. This explanation is as good as any for an order that completely ignores the reality of the situation. The picture is out there [indicates everywhere, but especially the internet] and no amount of fines or orders to produce the "originals" (on what? an SD card?) is putting those breasts back under proper British clothing.

It's not even a problem specific to the internet era. This wouldn't have flown 30 years ago when people had access to both newpapers and copiers. For that matter, this type of order has been outdated since the point photographs could be affixed to paper and distributed to readers/gawkers. You can't simply undo a mass distribution of "unapproved" photos. Not now. Not 30 years ago. Not 100 years ago. The photos are everywhere.

“Clearly, the harm has been done,” said Christopher Mesnooh, an American lawyer working in France for Field Fisher Waterhouse. “Thousands, now tens of thousands of copies, are now in public circulation. A legal decision is a wonderful thing to obtain and the royal couple did exactly what they should have done. But you know the magazine is out there and I suspect most of you have already seen copies of that magazine, so the basic, the initial harm, has been done.”

So, it all boils down to making sure the royal family is given some sort of... something for its "troubles." There will likely be more of these utterly disconnected decisions as the royal family may also pursue legal action in Italy and Ireland, not to mention pursuing criminal charges against the photographer. But I suppose it's a misguided (and amusing) effort to be doing something, especially considering the relationship between the royal family and its paparazzi has been anything but pleasant.

If you ever done any research about the public domain, you've probably come across this awesome chart from my alma mater, Cornell, that tries to explain how you can figure out if something is or is not in the public domain in the US. I've relied on the chart many times (and linked to it a bunch as well). Now, Peter Hirtle, one of the people behind that chart, has an equally fantastic and frustrating article detailing how difficult it is to determine if something is actually in the public domain (and the fact that so little enters the public domain in the US any more). Hirtle kicks it off by recognizing the importance of the public domain, including the fact (often ignored, it seems) that all copyrighted works must enter the public domain at some point. He then goes into a series of seven reasons why it's so incredibly, ridiculously difficult to ever figure out if something is in the public domain.

A few years back, we wrote about a fantastic research report that suggested for all of the claims that the song "Happy Birthday" remains covered by copyright, there was a lot of evidence that it was still in the public domain. After all, the music is from the 1800s and the lyrics were published in books starting in 1912. And, of course, as the handy dandy chart notes, works published prior to 1923 aren't supposed to be subject to copyright. But.. it's not always that simple:

Robert Brauneis notes that the lyrics to “Happy Birthday” were published in 1912 in The Beginners’ Book of Songs and again in 1915 in The Golden Book of Favorite Songs. (The music is much older.) Yet according to the current owners of the presumed copyright in “Happy Birthday,” these early publications were unauthorized. They argue that the first authorized publication of the lyrics to “Happy Birthday” occurred in 1935 and copyright runs from that date. Digitizing either the 1912 or 1915 volumes or singing the lyrics to “Happy Birthday” as found in the books would therefore infringe on the copyright first secured in 1935.

Yes, you read that right. If you digitized books from 1912, you could infringe on a copyright from 1935. That is not a functional system.

But that's not the only crazy case. Hirtle highlights another example of what he believes may be the oldest work still covered by US copyright... and it's from 1755:

Probably the oldest work still protected by copyright in the U.S. is a letter from John Adams to Nathan Webb written on Sept. 1, 1755. Copyright in the Adams material was transferred to the Massachusetts Historical Society (MHS) in 1956. In that same year the MHS published a microfilm edition of the correspondence and registered the copyright with the Copyright Office. Copyright was renewed in 1984, which means that copyright in the Adams letter will expire on Jan. 1, 2052, almost 300 years after it was written.

There are a number of other crazy examples as well. Take, for example, arguments over whether or not a work is "published" or "unpublished." This can matter, especially for older works, since there were different copyright rules depending on the publishing status of the work. But, the definition of "publication" isn't always clear, especially for pre-1978 works (see the example above). And that can create bizarre examples like the one below from an actual court case:

An allegedly infringed work reportedly has a title page stating that it was published. Furthermore, the defendants also claim that the work was distributed to more than 55,000 people. Nevertheless, the work is registered as an unpublished work with the Copyright Office. This is because the work was never offered to the public; instead, it was only to senior officials and leaders of the Mormon Church.

Similarly, he notes that merely broadcasting a TV show wasn't considered "publishing." So TV shows like the first episode of Star Trek don't have their copyright clock start until nearly a dozen years after it was first broadcast, because that's the first time it was "offered for sale" rather than just broadcast.

Reading through all of the examples, it's a great lesson in how screwed up copyright law is today, especially with regards to the public domain -- a sadly neglected part of American culture.

Adam Mossoff is a law professor at George Mason University. I've come across some of his previous writings in the past, and have been repeatedly impressed at just how disconnected from reality they tend to be. However, his latest piece, for the Austin American-Statesman takes the cake, entitled simply: Copyright doesn't limit online speech. Of course, this is empirically false. Anyone who is even remotely intellectually honest admits that copyright can (and has) been used to limit speech. Just ask the operators of a hip hop blog who had the site seized for over a year based on nothing other than an unsubstantiated claim by the RIAA.

Or, how about the Russian activists who were shut down after the Russian government used copyright claims to seize their computers?

So how does Mossoff get around that? Simple. If you can't argue the facts, just make up a scenario that works in your favor. He sets up a perfect strawman, insisting that those who argued against SOPA and PIPA claimed that all copyright violates the First Amendment:

The argument that copyright violates the constitutional right to free speech seems to have particular force on the Internet, because, in the words of one federal court decision, "The Internet is a communications medium." Copyright owners seem to squelch this communication: They compel websites to take down infringing videos, music and writings. The music industry successfully sued widely used peer-to-peer services such as Napster and Grokster, and it continues to use automated programs called bots to track what music people download and from what websites. SOPA expanded copyright owners' legal rights to block websites containing infringing content, in effect relegating these websites to digital purgatory. As a law professor stated at a conference over the summer: "Copyright is the engine of censorship."

But Mossoff then claims this is crazy talk, because he has bought into the view that copyright is not the monopoly privilege that it is but that it's "property." Of course, that's hogwash. The purpose of "property" is to best allocate scarce resources. "Property" does not make sense either intellectually or economically for things that are not scarce, such as content. Copyright is not a property right, no matter how many times maximalists incorrectly insist it is. However, even if we accept Mossoff's incorrect assertion, he then layers on the ridiculous by claiming that copyright has no impact on speech other than that which is covered by copyright:

Thus, copyright law secures the fruits of creative labors, but only those specific fruits — the value in the specific text, picture or song created by the artist.

The right to free speech is the right to express one's thoughts without censorship by the government. Copyright does not prohibit anyone from creating their own original novels, songs or artworks. Importantly, copyright does not stop people from thinking, talking or writing about copyrighted works.

Okay. So what about all the original content created on the blogs that the government took down using copyright law? Or the speech of those Russian activists? This is where Mossoff appears to have a total blindspot, common to someone in academia with no experience in the real world. Copyright is not used just to protect the rights granted under the Copyright Act. It is used regularly to shut down other expression.

Copyright claims took down the official DNC livestream. Bogus copyright claims took down the official Hugo Awards live stream. Bogus copyright claims took down a negative review of a Universal Music album. Questionable copyright claims took down parody commentary by Dan Bull, expressing his opinion on another copyright lawsuit (while the copyright holder left up tons of other versions of the song). Copyright claims were used to suppress an unflattering photo that some rich dude didn't like. A bogus copyright claim was used to take down a totally unrelated news article, after Fox thought it was about a movie which it wasn't.

And that's all just from the past few months. Anyone who insists that copyright has nothing to do with censorship because it only protects the rights established under the Copyright Act seems to have no credibility on the subject.

Mossoff then further expands his thesis by claiming that copyright doesn't violate the First Amendment... because there are some limits on the First Amendment. Of course, that argument makes no sense either. Yes, there are some limits on the First Amendment. That doesn't mean that any restriction on speech is okay under the First Amendment. This is basic logical fallacy territory. Just because there are some exceptions, doesn't mean that all exceptions make sense or are legal -- but Mossoff honestly seems to be making that argument.

If you actually want intelligent and nuanced views on the conflict of the First Amendment and copyright law, rather than the ridiculous claims from Mossoff, I recommend Neil Netanel's Copyright's Paradox or David Lange and Jefferson Powell's No Law. Both books involve careful and detailed analyses of how and where copyright law and the First Amendment come into conflict.

Mossoff just brushes all that off, saying that since both copyright and the First Amendment are in the Constitution, there's no conflict:

In fact, both copyright and the right to free speech are based in the Constitution — in the copyright and patent clause in Article I, Section 8, and in the First Amendment.

Strangely, people are now claiming that one part of the Constitution is an unconstitutional violation of another part of the Constitution.

Of course, that's neither accurate nor "strange." First off, free speech is a right in the Constitution. Copyright is not. It troubles me that a "law professor" would make such an obviously false claim. The Constitution's Article I, Section 8 only grants Congress the right to create a copyright law -- explicitly for the purpose of "promoting the progress of science" (the "useful arts" stuff was about patents). To suggest that the Constitution establishes copyright as a right is simply false.

Second, there is nothing "strange" at all about the concerns people have raised about copyright law. Even if we assume that Mossoff's initial suggestion that both come from the Constitution is accurate, what he ignores is just how massively copyright law has changed since it was first created. In 1976, the US completely overhauled its copyright system, making it so pretty much anything new put in a "fixed" form was automatically granted copyright for life plus 50 years (later expanded to 70 years, thanks to Disney and Sonny Bono). To pretend that copyright law we have today couldn't possibly conflict with the First Amendment because we also had copyright law in 1790 is ignoring that copyright law today looks nothing like copyright law in 1790.

Mossoff, ridiculously, acts as if they're basically the same thing.

It really makes you wonder how anyone can take these claims seriously when they're so uninformed. Mossoff is apparently appearing this week at UT Austin for a discussion on free speech and intellectual property. Thankfully, one of the other people appearing at the same event is Neil Netanel, the author of Copyright's Paradox, mentioned above. Mossoff would do well to actually pay attention to what Netanel has to say.

Let's make this simple: is copyright automatically censorship? No. But can it be used for censorship? Absolutely. I don't see how anyone who is even remotely intellectually honest can deny that. Copyright maximalists are free to suggest that the censorship "costs" are minimal or can be minimized. Or they can argue that this is collateral damage that is "worth it" for the supposed benefits provided by copyright law. But to argue that copyright law is entirely unrelated to free speech violations is simply not a supportable position. Yet it's the one Mossoff makes. And for that reason, he has no credibility on the subject.

The EFF points us to the news of the Philippines signing into law the Cybercrime Prevention Act of 2012, which has a number of interesting and worrisome provisions. The EFF, quite rightly, focuses on the fact that it makes online libel a criminal rather than civil offense, which could lead to jail time. They note that this provision appears to violate the UN's Human Rights Council, which claims that criminal sanctions against libel are a problem. Also troubling: that section was added by one Senator, Vicente Sotto III, without any public hearing, after Sotto claimed "introducing Internet libel laws would make people more cautious online." Hello, chilling effects.

But what caught my eye, was a couple sections up from the libel part. It appears that Cybersex is now a crime in the Philippines too. In the section that lists out "content-related offense," number one on the list is:

Cybersex. -- The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

That wording seems a bit awkward, but it certainly seems to suggest that even willing cybersex is now illegal if it's done "for favor or consideration." People in the Philippines are quite reasonably worried that the language here is quite broad. And what's the punishment? It seems a bit on the harsh side:

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhPl,000,000.00) or both.

Prision mayor appears to mean at least six years in prison. 200,000 Philipine pesos is about $5,000. So... basically cybersex is a crime in the Philippines that could net you more than six years in jail... and fines of between $5,000 and $25,000.

That seems a bit... harsh.

Paywalls are one of those things that have had us scratching our heads for a while. We had questioned the New York Times for its paywall and have shown that it might not be quite as successful as it claims. The main problem with such paywalls is that people don't like to have their use of a product interrupted and further use blocked unless they pay. Such reactions are not limited to online news either. Other forms of media have much the same issue. 

Over at Games Brief, a number of game developers were asked about paywalls in games and whether they should be used at all.

Harry Holmwood writes: “A colleague and I downloaded New Star Soccer at the airport and were playing it on a flight back from Germany last week, got hooked, but then hit the ‘hard payment’ point where we had to pay to continue the career. As we were on a plane at that point we couldn’t do the IAP and had to stop playing. Over the weekend I was tempted to pay and play but didn’t bother – the moment was lost, and I suspect now I won’t do it at all.”

Are hard paywalls a good idea, or should you always make it possible for players to keep playing?

While most developers were pretty varied in their opinions on this question, the general theme is that putting up walls in front of the consumer and preventing them from playing more is something that should be avoided. Take this comment from Philip Reisberger from Bigpoint.

In general, we’ve seen that it’s most important to have the users playing. Monetization is always to be regarded as consequence of gameplay. There are some really core-style titles where a hard paywall is possible, but I’d regard this rather as an exception than the norm.

While it is possible for such hard paywalls to make some money, it would be better to have as many people playing as possible. As soon as a person is no longer able to play, they are less likely to pay into the game. The question then goes to how do you get those people to pay if they can play for free? This is where opinions vary widely. 

By allowing a consumer to continuously play, you can provide multiple opportunities for the consumer to evaluate how much they actually value the game they are playing. This is where proper selling of freemium options comes into play. If you have already sold the person on the game itself as something fun to play, then the next step is to sell them on the extras. This can be done by showing them how the core experience can be enhanced by such extras. As Tadhg Kelly of What Games Are explains.

In some cases (Temple Run, Bejewelled Blitz) it’s the same. They basically sell boosters and cheats to make better score runs, and since the core action of the game is so compelling it’s more likely over time that you will buy. Bringing a money-now question into that dynamic is inappropriate for the same reasons as the grind game.

The core issue to remember with paywalls is that it is very difficult to convince someone that paying for the ability to keep playing something they have been playing for free is a very tough sell if all they are getting is just more of the same experience. You need to sell them on an expanded experience, one that they wouldn't otherwise get if they were playing for free. Of course, there is no one way to do it. There are a variety of market factors that can determine how and when you go about charging your customer.

Patrick O’Luanaigh, CEO of nDreams, sums up this overall market reality. 

I’d be very wary about ever saying that a particular model/route is ‘the correct one’ or that you should ‘never’ do something. Every game is different and every platform is different. In PlayStation Home, where we publish most of our games, it’s beginning to appear that ‘paymium’ may be the most commercial route given the size of the audience, their propensity to pay and the ease of generating awareness. But on iOS, being new to the platform, freemium is the only model that makes sense to us currently.

FYI, I don’t believe the gaming world will end up existing purely of games that you can play forever with continuous loops, return mechanics and daily bonuses. I believe there will always be games that have a beginning and an end and a strong linear storyline. For these kind of games, I’m not convinced that freemium is necessarily the correct approach.

This variation in the marketplace would then allow for many different ideas of monetization both good and bad, both successful and unsuccessful. However, putting barriers between the consumer and your goods makes it more difficult for that consumer to buy. Look back at the original question. Because of external circumstances at the time of hitting the paywall, that potential customer was not able to process a transaction. That delay then led him to rethink the idea of purchase and, as far as we know, he has not made a purchase, even though he enjoyed the part of the game he played. Why would you want to limit your potential to make money in such a way?

Techdirt has had many posts pointing out that the huge and vibrant fashion industry is a perfect demonstration that you don't need monopolies to succeed, and that bringing in copyright for clothes and accessories now would be positively harmful. One of the people who's been making that point for years is Kal Raustiala (co-author of this month's Techdirt book club choice, The Knockoff Economy). NPR Books has just posted a short interview with him that succinctly explains why copyright would be a disaster for the fashion industry. Here are a couple of the key points.

For a start, Raustiala explains why copying is so good for the fashion world:

fashion relies on trends, and trends rely on copying. So you can think of copying as a turbocharger that spins the fashion cycle faster, so things come into fashion faster, they go out of fashion faster, and that makes fashion designers want to come up with something new because we want something new.

That's the familiar argument that copying helps to drive innovation. But copying does something even more important: it helps define what exactly is fashionable.

copying helps condense the market into something that consumers can understand, so people want to follow trends, they want to be able to dress in a way that's in style; they have to understand that.

That is, without copying, the sense of what is fashionable right now would be diminished, leading to a fractured fashion market. By amplifying and clarifying trends, copying also widens the market for the season's current fashions.

Raustiala makes an good point about why it's unusual to apply for design patents -- the obvious "protection" here:

it's unusual to do that because, 1) it's very expensive to get a patent, and 2) patents require a standard of novelty and originality that's often hard to reach in the fashion industry, where many things are reworkings of previous things.

That's a recognition that the fashion industry is a kind of commons, with designers continually drawing on and contributing back to that pool of creativity. It means that other fashion houses can then build on those common ideas, which results in more creativity, and more choices for consumers.

Exactly the same kind of borrowing takes place elsewhere, especially in the computer field. But instead of accepting that fact, companies like Apple and Samsung have opted for an all-or-nothing legal strategy that tries to enclose parts of the knowledge commons through the granting of temporary monopolies on ideas and designs. The result is a huge waste of time and money, whose chief outcome is likely to be less consumer choice as models are blocked or withdrawn. The contrast with the world of fashion is painful.

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