Every technological advance is greeted as some point during its life cycle (usually as it approaches ubiquity) by the disgruntled arguments of people who prefer older things or methods. Never has this been more prevalent than in the digital era. People diss mp3s for their sonic limitations, which is fine, but then they go a step further, claiming the "real" way to listen to music involves using other, older technology. There's an emphasis on the physicality of the product, as if it were somehow more "real" simply because you can leave greasy fingerprints on it, thus lowering its resale value.

Certain authors have argued this adamantly over the recent years, proudly declaiming the superiority of the old school, dead tree book. Apparently, there's nothing like picking up an odorous book (smells like real) whose binding glue has slowly disintegrated over the years, causing the pages to scatter across the floor and sending all those helpful book scorpions scuttling off in search of a new home. That's real. That's reading. This stuff you do with your eyes on screens? Your brain might tell you it's reading, but it's nothing of the sort.

Fortunately for those of us who believe otherwise, Andrew Piper has visited Slate to set us all back on the path of touchable righteousness. In a lengthy post that reads like a dry historical text populated with anti-tech non sequiturs, Piper decries the falseness of reading books on a screen, because if you can't physically touch it, it's just not real.

Amid the seemingly endless debates today about the future of reading, there remains one salient, yet often overlooked fact: Reading isn’t only a matter of our brains; it’s something that we do with our bodies.

For those of you without skulls to hold your eyes (lucky bastards!), reading is an experience for the body as much as it is for the brain. There's your hands, which will turn pages and... your torso... which holds your limbs and, by extension, your hands... never mind. Here's more:

To think about the future of reading means, then, to think about the long history of how touch has shaped reading and, by extension, our sense of ourselves while we read.

At this point, the history lesson begins. The first witness on the stand in defense of "touching is reading" is none other than St. Augustine, whose conversion to Christianity was a defining moment in "hand-to-book" reading.

The original Kindle Fire

At this moment, he tells us, “I had no wish to read more and no need to do so. For in an instant, as I came to the end of the sentence, it was as though the light of confidence flooded into my heart and all the darkness of doubt was dispelled.” Augustine closes the book, marking his place with his finger, and goes to tell his friend Alypius about his experience. His conversion is complete.

Bookmarking. Completely unavailable or at the very least, not the same! Score one for St. Augustine. There's much, much, much, much more history where that came from, weaving together a very long narrative that basically states "humans have hands and like to touch stuff." Along the way, you'll meet all sorts of historical figures (Eugene Delacroix! Faust! Abraham Ortelius!) It's an essay of appropriately essay-esque length.

In between the historical musings are convoluted paragraphs like this:

Nothing is more suspect today than the book’s continued identity of being “at hand.” The spines, gatherings, threads, boards, and folds that once gave a book its shapeliness, that fit it to our hands, are being supplanted by the increasingly fine strata of new reading devices, integrated into vast woven systems of connection. If books are essentially vertebral, contributing to our sense of human uniqueness that depends upon bodily uprightness, digital texts are more like invertebrates, subject to the laws of horizontal gene transfer and nonlocal regeneration. Like jellyfish or hydra polyps, they always elude our grasp in some fundamental sense. What this means for how we read—and how we are taken hold of by what we read—is still far from clear.

If I'm reading this correctly (though I suppose I am not, since I'm reading it on an LCD screen), the rise of ebooks will finally allow us to shed our uncomfortable skeletons and return, spineless and triumphant, to R'lyeh to awaken Cthulhu from his long slumber.

And there's this, which one would think was Piper attempting to wrap things up, but actually lies somewhere near the middle of the post:

For Augustine, the book’s closedness—that it could be grasped as a totality—was integral to its success in generating transformative reading experiences. Its closedness was the condition of the reader’s conversion. Digital texts, by contrast, are radically open in their networked form. They are marked by a very weak sense of closure. Indeed, it is often hard to know what to call them (e-books, books, texts, or just documents) without any clear sense of the material differences between them.

Most people call them ebooks.

Piper's article seems to go beyond the normal arguments about aesthetic preferences and move towards touting the moral superiority of print, simply because your hands can touch and feel paper and it's different than touching and feeling an electronic device. E-readers are not... physical enough. And because of that lack of physicality, reading is no longer as real.

But think of all the advances made over the years that just aren't as real as their predecessors, thanks to diminished physical interaction. We fully expect Piper to explore these in further densely unreadable screeds:

• Riding a bike today isn't nearly as real as it was, what with not having to worry about your crotchal region and forearms being pounded mercilessly by the combination of solid rubber tires, no suspension system and a lack of decent pavement.
  
• Driving a car lacks the coarse physicality of driving a team of horses across dusty plains in search of a Slurpee and a pack of smokes.
• Watching a movie isn't nearly as "real" as watching a good old fashioned play, where actors were actual, physical human beings close enough to touch and/or interrupt with an ill-timed coughing fit/incoming call.
• For that matter, making an outgoing call is simply a matter of pressing some fake buttons (or simply mashing a thumb on a fake face in the Contact list). Our forearms and dialing finger have atrophied from under-use going all the way back to the days when friends with the most 0's in their numbers got the fewest calls.
• Today's cold scientific medical community, with its beeping machinery and wires everywhere can never be as real as it was in the past when the common cold was treated with a combination of leeches, heroin and a full frontal lobotomy.
  
• Firing up your local newspaper's website will never be as real as paging through the paper version, admiring the ink stains on your fingers and the box scores informing you that the game ended after press time. The website also can't offer you the physical pain of multiple scratches (picked up while retrieving the paper from your overgrown rose bush) or multiple bite wounds (picked up while retrieving the paper from your neighbor's Rottweiler-infested backyard).
• Nuking a quick meal for the kids? Get over yourself. Real people start their own fires from scratch, by doing whatever it is that Boy Scouts do to earn the "Firestarter" badge. And that Healthy Choice meal? Better get right to slaughtering your own flavorless chicken and growing some equally flavorless rice to accompany it.
• Writing an email can't possibly compare to the physical purity of placing quill to parchment and hand-scratching a lengthy URL onto it, along with "Yo, Ted. Check thiſ out."
• Buying stuff with a credit card online vs. biting gold pieces into "bits" at the trading post, online classes vs. sleeping through Philosophy in an uncomfortable chair, and etc. ad nauseaum.

One of Piper's closing paragraphs comes so close to getting it right, but he twists it to fit his "ebooks are intangible" narrative. He describes the "connection" the physical book makes when he reads a story to his kids at bedtime:

As I begin to read, the kids begin to lean into me. Our bodies assume positions of rest, the book our shared column of support. No matter what advertisers say, this could never be true of the acrobatic screen. As we gradually sink into the floor, and each other, our minds are freed to follow their own pathways, unlike the prescribed pathways of the Web. We read and we drift. “The words of my book nothing,” writes Walt Whitman, “the drift of it everything.”

While I'm not sure what version of the web Piper uses (Web 0.85b?) that follows "prescribed pathways" (mine goes pretty much anywhere with very little provocation), that's not really where the error lies. The book isn't the "shared column of support," Piper. It's you! Why would you sell your own importance short? My kids like to be near me, too. It doesn't matter if we're reading a book, streaming something on Netflix, watching someone do something funny/stupid on YouTube or slinging Angry Birds across the screen. The important thing isn't the physicality of the object. It's the shared experience. To attribute this to something made of glue, paper and ink is ridiculous, and to further claim that a shift to electronics is robbing us of a part of our humanity even more so.

Kickstarter is an amazing platform that faces a lot of interesting challenges. Chief among them is a combination of quality control and expectation management — both of which revolve, in many ways, around image. As in: what is Kickstarter in the eyes of users? On the one hand, the company wants to weed out the worst projects, because it knows that a few high-profile failures could cause serious damage to its image. On the other hand, it wants users to understand that there are always risks involved in backing a project, so they should be discerning and be prepared for delays or other problems. This led to their recent changes to the rules, focused on divulging risks and challenges (which basically everyone agrees is a good thing), preventing people from treating Kickstarter like a simple store or pre-order platform (a more controversial move), and minimizing promises by banning product renderings (the source of the most debate). In the latter two areas, Kickstarter is treading a fine line.

Firstly, there's the "Kickstarter is not a store" aspect (which was the name of their initial blog post about the rules). The core change here was prohibiting projects in the Product Design and Technology sections from offering multiple-item reward tiers (e.g. get three widgets, get five widgets, etc.) which had previously been a pretty popular strategy for launching new consumer products on Kickstarter. They felt that offering multiple items would lead to a lot of disappointment when some projects inevitably go wrong, since it gives the impression that the product is "shrink-wrapped and ready to ship" — and if it is, then it shouldn't be on Kickstarter, a platform geared at helping products to completion, not selling finished ones. That makes sense, but it comes with a few problems:

• Kickstarter acknowledges that in some cases it makes sense to sell products as a set — but that in such cases, you won't be allowed to sell them individually. This ignores the wide variety of versatile products that might make sense individually or in sets. For example, take the Ubi computer (a sort of stationary Siri) which finished its funding just two days before the rule change. It's a device designed to be useful as a standalone unit or a network of units throughout a large home — so it offered one, two, three, five and ten packs (and got backers at all those tiers). Now, for comparison, look at the still-funding Light by Moore'sCloud, which is similarly designed to be useful as a single unit or a house-wide solution, but is unable to offer multi-unit package tiers. It's not a perfect comparison because the Light also has an extremely ambitious funding goal and its entry-level price is a bit lower, but it's interesting to note that despite having 1,398 backers to the Ubi's 1,190, it has raised only $157k to the Ubi's $229k. Though both projects are precisely what the Kickstarter rules are supposed to favor — new devices in the advanced prototype stage that needed resources to finalize the development — the Light seems to be held back by the new restrictions.


• Of course, it's not quite that simple, because there's a weird loophole in the rules. Though projects aren't allowed to offer multiple items at specific reward tiers, they are allowed to offer them as add-ons. For those unfamiliar with the Kickstarter add-on process, well, it's not really a process at all: creators tell backers how much money to add to their pledge for various things, then it's up to them to survey the backers after the project ends to find out which add-ons they want, and square that up with the pledge amount. If anyone made a mistake like failing to cover shipping, they have to deal with it themselves using something like Paypal, absorb the loss, or piss off the backer. Thus, many products actually are available in bigger quantities, but many Kickstarter users are unaware of this process, or confused by it, and project comment pages are filled with repeated back-and-forths about how to order. Rather than preventing Kickstarter from being a store, the change has just made it a store with a worse customer experience.


• Then there's a second weird loophole. The rules only apply to the Product Design and Technology categories — projects under Publishing, Graphic Design and Tabletop Games, for example, can still offer multiple copies at various tiers in a very store-like way. In a way this makes sense, since books, posters, board games and decks of cards all have much clearer, simpler supply chains and paths to completion than a new tech gadget or a unique manufactured product. But that's not universally true: some of the best product innovations are the simplest — easy to create, and destined to become ubiquitous. If they fall under the product design category, though, they are forced to pre-sell them one at a time. And then you get some real anomalies, like the still-funding (and highly successful) Dice Rings. They are a manufactured product design in every sense, but because they were accepted to the Tabletop Games category, they can offer reward tiers with rings in several different quantities — and a huge portion of their backers have pledged for those higher tiers. And, once again, they are exactly what Kickstarter is looking for: a neat idea in a late-prototyping stage that needed a final push to enter production. But they would have faced massive restrictions were it not for some lucky category overlap.

As these loopholes and anomalies show, there are plenty of products that have a perfectly good reason to offer multiple-item tiers without going against Kickstarter principles, and such projects seem to benefit highly from doing so. When you look at this, you realize that the rule change has a built-in negative effect: it optimizes against the best-planned and most reliable projects. It's basically saying "if you don't have a significant risk of failure, you shouldn't be here." But while it's important for entrepreneurs to be aware of risks and challenges, they also pretty universally have a lot of faith in their idea — so telling them they aren't allowed to promise people five widgets, when that may have been a key part of their widget sales strategy, just drives the most confident creators elsewhere.

The other controversial rule change is the ban on product renderings and simulations. This was an attempt to avoid situations like when Felix Salmon pointed out that the prototype of the hugely popular Lifx Lightbulb was a long, long way away from the snazzy mockup plastered all over the Kickstarter page, and made a pretty compelling argument that the whole thing was vaporware. Again, this makes partial sense — but it seems like there are a lot of situations in which product renderings, responsibly used and properly labelled, would be vital to educating potential backers about a project. In a recent submission to Techdirt, Tom McWilliams, creator of the Tiger Cam 3D video microscope, provides an example from his own experience in attempting to launch the project on Kickstarter:

3D imagery is hard to demonstrate when you aren't physically immersed in the actual experience. Most of the time we see 3D advertised using pictures of objects flying out of the screen at us or funny block letters emerging from a picture. We did some (not all) of the same type of effects in our Kickstarter project video to try to emphasize that the really cool part of our product was the 3D experience it offered.

The week we were set to launch our project on Kickstarter, the press release was issued about Kickstarter's new guidelines for technology projects. After a bit of concern, and a lot of review, we presumed that we had complied with these new guidelines, including those prohibiting product simulations. After all, we weren't simulating what our project might do in the future, we were illustrating what our 3D microscope does right now, using the medium we had available to us. After submitting our project, it was declined by Kickstarter because it was deemed that simulations of any kind in our project video were prohibited. We then went back to re-think the video. After removing our 3D-like graphics in the video our project was accepted, but it seems that the message might have been lost in translation.

It's easy to understand the rationale behind the new technology guidelines from Kickstarter. Kickstarter projects are about concrete projects looking to fund their next steps, not about what someone thinks they might be able to create if given the backing. But when simulated images convey the essence of a project in a way that a thousand words cannot, even if disclaimer were to be boldly displayed, there is room, one hopes, for conversation.

McWilliams also raises an excellent question about what exactly a "simulation" is:

Some technology projects are easy to demonstrate by showing a user's interaction with them. But often isn't this simulated? Did that alarm clock really wake up the actor in the video, or was it a simulation? Other projects might be more difficult to demonstrate and ask for a stretch of the imagination in order for the viewer to understand the true user experience. Our 3D microscope product certainly garners this challenge, and we feel that in the end maybe we weren't able to convey this experience to potential project backers.

It seems like Kickstarter realized that managing backer expectations, and controlling the quality and the honesty of projects, was a complicated challenge, so they decided to make a bold move that they hoped would initiate wide-scale change for the better, even if it did a little collateral damage. Unfortunately, such strict broad strokes seem to be creating more problems than they are solving, and unfairly disadvantaging projects with perfectly legitimate interests that run counter to the rules.

Luckily, Kickstarter is still an evolving platform, and none of this is set in stone. It's only been a couple of months since the change, and the company can likely be convinced to revisit the rules once it has a little bit more data to see what effect they had. But, ultimately, they have to listen to their users, both creators and backers. They may not want to be a mere store, but they can't be a haven for creators who hedge every bet while scaring away those with ambitious goals. In striving to manage expectations, Kickstarter can't forget that the best entrepreneurs have high expectations of themselves.

Between the UK's onerous libel laws, its insistence on "protecting" freedom of speech and press while attaching a million exceptions to this "freedom," and the recent phone-hacking scandal that saw Rupert Murdoch's papers crossing lines that even the most loathsome of hacky tabloids had yet to cross, one often wonders exactly what the hell is going on over there.

Apparently, a few people in the UK are wondering that as well. A nine-month inquiry into the "culture, practice and ethics" of the journalism business has yielded one potential solution, which should have quotes thrown around it immediately. paidContent reports that Lord Justice Leveson, who has been dealing with the issues surrounding the NewsCorp case, has a suggestion: independent regulation.

The UK government must legislate to establish a new press "self-regulation" body — independent of both publishers and politicians but overseen by media regulator Ofcom — because newspapers have "wreaked havoc" in the lives of innocents, says the nine-month inquiry report into the culture, practice and ethics of the business.

Lord Justice Leveson, who has been hearing issues including the "hacking" of mobile phones for news stories, said the existing Press Complaints Commission (PCC), comprised of newspaper editors, is "not actually a regulator at all". And he has rejected news publishers' alternative suggestion of binding themselves to ethical standards by commercial contracts.

Instead, he is advising the government to legislate the creation of a new independent body to promote "high standards" and safeguard individuals' rights, run by a chair and a board who will hold publishers to a code.

It's hard to imagine the words "legislate," "independent" and "safeguard individuals' rights" all working together peaceably. While certain newspapers certainly haven't given the impression that they're capable of holding themselves to ethical standards, it hardly seems like Plan B should be legislated into existence.

You also have to wonder which "individuals" are going to have their rights safeguarded. The use of injunctions (and the double-secret "Super Injunction") and the general encouragement of powerful individuals to use very amicable libel laws to shut down criticism or exposure of uncouth behavior doesn't really set the stage for protecting the rights of journalists. Leveson "addresses" this issue... by passing the buck to legislators.

Leveson is leaving the definition of that code and the implementation of the new body to whomever Prime Minister David Cameron, should he follow the recommendation, might appoint to set them up. But Leveson suggests the code should outline what constitutes "public interest" – a thorny topic on which newspapers and others often disagree.

Well, good luck with that. Those in the journalism field will certainly want to keep their rights safeguarded and those who prefer to tamp out criticism and unflattering reporting will certainly want to keep theirs "safe" as well. It all sounds very zero sum, which is probably why it's being kicked down the road.

The Lord Justice is certainly correct that some newspapers have behaved reprehensibly. But it hardly follows that legislated "independent" regulation is the solution. Leveson wants to hand this over to Ofcom, which already regulates UK radio, telecommunications infrastructure and broadcasting standards. Certainly, Ofcom has the regulation experience, but it's another egg in its already very loaded basket. Consolidation of regulatory power rarely turns out well. Levenson insists that this is not intended to grant the government control of the press:

"This is not, and cannot be characterised as, statutory regulation of the press. The legislation would not establish a body to regulate the press: it would be up to the press to come forward with their own body that meets the criteria laid down.

"The legislation would not give any rights to Parliament, to the Government, or to any regulatory (or other) body to prevent newspapers from publishing any material whatsoever.

"Nor would it give any rights to these entities to require newspapers to publish any material except insofar as it would require the recognised self-regulatory body to have the power to direct the placement and prominence of corrections and apologies in respect of information found, by that body, to require them."

All well and good in theory, but the last paragraph is troubling. If this isn't going to be a case of the government or its legislated independent regulator telling the press what to print, why the wording concerning "placement and prominence of corrections and apologies?" This sentence seems to indicate that certain individuals' rights will be respected and safeguarded, if not more often, then definitely at a higher level. If papers offend the wrong person, someone will be there to tell them how much they should prostrate themselves, as well as where and in what font size.

Prime Minister David Cameron has responded... by kicking the issue right back.

"For the first time, we would have crossed the rubicon of writing elements of press regulation into the law of the land.

"We should, I believe, be wary of any legislation that has the potential to infringe free speech and a free press.

"In this House – which has been a bulwark of democracy for centuries – we should think very, very carefully before crossing this line."

I believe the PM has misspoken. He must have meant "any additional legislation that has the potential to infringe on free speech and a free press." I would certainly hope the outcome of the NewsCorp unpleasantness wouldn't result in more limitations to the UK's very limited speech and press. If anything defeats unpleasant speech, it's more speech -- not more regulation.

Bacon is one of the most universally enjoyed foods... it's been called the "gateway meat" for vegetarians (and it's created quite a few ex-vegetarians). If you can't resist bacon, then you'll probably enjoy these links, too.

• Smucker's has a Maple Bacon-flavored syrup to make breakfast even more bacon-y. It contains neither bacon nor maple syrup. Discuss. [url]
• Can bacon help you during the zombie apocalypse? Maybe not, but it's still delicious. [url]
• Need another excuse to love bacon? As a bacon sandwich, it's a hangover cure. Who funds this kind of research... the alcohol industry or the pork lobby? [url]
• If you want to prepare for the worldwide shortages of bacon next year, start slowly weaning yourself off the crispy-fatty goodness now. Just focus on bacon's association with increased risk of heart disease and cancer while you experiment with Tempeh or Seitan recipes. [url]

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

The saga of Cindy Garcia and her attempt to get The Innocence Of Muslims trailer off of YouTube continues. If you'll recall, Garcia is one of the actresses who performed in the controversial almost-film "Innocence of Muslims", which sparked protests throughout the Arab world. Since the protests and media blitz began (as opposed to since the flim's trailer was released), Garcia has been trying to get the YouTube video taken down by throwing the proverbial legal kitchen sink at proverbial legal kitchen-everyone, including claims that she was duped by the flimmakers and that she owned a copyright on her portion of her performance. Buttressing her argument was her claim that she never signed any kind of release for the film.

Well, that claim is now being directly challenged by Google and the film's producer, Mark Basseley Youssef, or whatever the hell he's calling himself this week.

Youssef, who is serving time in prison for using multiple names in violation of his parole, has furnished what he says is the "personal release" signed by Garcia. He says that he is prepared to testify under oath that it is the "cast deal memo" signed by the actress. A copy of his declaration is below.

Now, it should be stressed in very strong terms that Youssef is currently in jail for breaking the law and lying his posterior off, so the need for this document to be validated is certainly there. That said, if the document is genuine, Garcia has some real issues. Forget the lawsuit regarding copyright entirely, since the waiver ostensibly releases any rights that may exist there (and I don't think they exist anyway) to the filmmaker. On top of that, the waiver also includes language preventing Garcia from litigating the film producers as well, though I'm not sure how likely such provisions would hold up in court in this controversial case.

All that being said, if Garcia signed a release and then brought a court case against Youssef and Google for copyright violation, that is a clear case of copyfraud, and it spells trouble. Aside from the obvious legal implications of bringing such a false claim, one has to wonder if any other aspects of her case that may still be allowed to go forward would be damaged by the potential fact of Garcia herself also being a proven liar. Again, this document sure as hell needs to be vetted, considering the source, but if it's real, it's damaging.

I had really thought that we'd reached the point where lawyers working for large, well-known companies recognize just how incredibly stupid it is to file lawsuits against websites that criticize them. Sure, a decade ago or so, it was common for big companies to go after so called "sucks sites" or "complaints sites," often alleging trademark infringement. But, at some point, many of them realized that (a) trademark complaints were a dead end since there was no confusion and (b) that these lawsuits only drew a lot more attention to the sites in question. Apparently, however, there are still some throwback lawyers working for United Continental, and they've decided to go after a popular passenger complaints site that goes by the creative domain Untied.com.

Untied has been around for fifteen years -- so you'd think United would be used to it. However, apparently they got pissed off that Untied redesigned its site to look something like United's current design. The top image is the Untied complaint site as it looked recently (it has since added some more features to make it clear that it's not actually United's site). The bottom image is United's site:

There are obvious similarities. The guy behind Untied, Jeremy Cooperstock, insists that this makes sense since his site is a form of parody. While the likelihood of confusion argument is certainly stronger here (currently when you visit the website, you have to agree to a popup that warns you the site is not United's), I still wonder how reasonable the lawsuit is. Cooperstock insists that it's a SLAPP suit, though others think United may have a legit claim.

No matter where this falls legally, however, I can't see how this could possibly make sense from a business standpoint. The end result -- win or lose -- is going to be that a lot more people become aware of Untied, and are likely to think of United as being a big bully against the small guy helping passengers who had bad experiences with the airline. Of course, some of the details may be in the actual filing, which doesn't seem to be public yet. The lawsuit was filed in Canada, and the docket page doesn't have the actual filing yet. Oddly, however, it does claim that the case is about patent infringement. I'm going to assume that's a data entry error somewhere, however...

This isn't a huge surprise, but after a long series of intermediary steps, the Supreme Court has finally agreed to weigh in on whether or not genes are patentable. For a bit of background on gene patents, back in 2010, a district court ruled in the Myriad Genetics case that gene patents were invalid, noting that they "are directed to a law of nature and were therefore improperly granted." A nice, clear and useful statement.

But, of course, it was just the first step in a long process. Myriad took the case to the appeals court for the federal circuit (CAFC), the notoriously patent friendly appeals court. The only surprise here was that the US Justice Department actually said it agreed that genes shouldn't be patentable (showing a potential disagreement within the administration, as the US Patent Office was not happy). End result? CAFC decided genes are patentable because they're "separate" from your DNA.

Then, before the Supreme Court could review that case, it ruled in a different case, the Prometheus v. Mayo case, involving medical diagnostics, which it ruled to be unpatentable subject matter. As expected, soon after that, the Supreme Court told CAFC to reconsider the gene patent case in light of its ruling in the medical diagnostics patents case. In August, CAFC said that it still believed genes were patentable.

And, of course, everyone fully expected this to end up before the Supreme Court again, which it will. Of interest, there were two questions appealed to the Supreme Court: (1) are human genes patentable and (2) did CAFC make a mistake in its application of the Myriad medical diagnostics patent ruling to this case -- but the Supreme Court has only agreed to review the first question: are human genes patentable? This is both good and bad. As we've seen all too often lately, the Supreme Court has bent over backwards to come up with ways to make very, very narrow rulings (see: Bilsky), effectively punting on the bigger questions, and leaving a ton of uncertainty in the market. By directly having just a single question over the patentability of genes on the table, hopefully it can issue a crisp and clear ruling (preferably rejecting those patents!)

The potential downside, though, is that if it does somehow find genes patentable, then it would mean that the CAFC ruling stands. Considering that we found the CAFC's reasoning troubling, this could be a larger problem. It would mean that CAFC can get away with dancing around the Myriad standard for rejecting patents, to leave in place potentially dangerous and ridiculous patents on elements of nature. This also means that we won't get a broader ruling on how to apply the Myriad standards, which actually might have been useful for rejecting software or business method patents. Either way, the most important thing at this stage is that the court outright reject gene patents.

Back in September, we posted a leaked version of a draft for a cybersecurity executive order that the White House had been passing around, mainly to try to force Congress into passing a cybersecurity law. With the last ditch attempt by Senator Harry Reid to move that process forward failing, it took exactly a week for the White House to revise its draft exec order, and start passing it around on November 21st. And, today, that new draft leaked as well. You can see the full draft here or embedded below.

It's basically more of the same. It insists that there's a problem without providing any real evidence of that. Much of the order focuses on increasing information sharing among and between different government agencies. As expected, it's designed to encourage private companies, who are "owners and operators of critical infrastructure" to "participate, on a voluntary basis, in the Enhanced Cybersecurity initiative." This is part of what had people so concerned about the various bill proposals: whether or not companies would get broadly defined as "owners and operators of critical infrastructure" and then be forced or pressured into sharing private information, all in the name of "cybersecurity!"

And, of course, what is "voluntary" when it's the federal government, often means what is likely to put you in a very uncomfortable position if you don't participate. In fact, the executive order makes this somewhat explicit:

The Secretary shall coordinate establishment of a set of incentives designed to promote participation in the Program. Within 90 days of the date of this order, the Secretary and the Secretaries of Treasury and Commerce each shall make recommendations separately to the President... on what incentives can be provided to owners and operators of critical infrastructure that participate in the Program, under existing law and authorities, and what incentives would require legislation, including analysis of the benefits and relative effectiveness of such incentives.

So, yeah, "voluntary" belongs in quotes.

As for what counts as "critical infrastructure," well it basically involves various government agencies coming up with a list and then the government telling companies: "hey, you're critical infrastructure."

The Secretary, in coordination with Sector-Specific Agencies, shall confidentially notify owners and operators of critical infrastructure identified under subsection (a) of this section that they have been so identified, and ensure identified owners and operators are provided with relevant threat information.

There is one oddity snuck into that subsection (a):

The Secretary shall not identify any commercial information technology products under this section.

I'm not quite sure what that means within this context (so feel free to chime in and explain it if you do know...). Is it suggesting that this only applies to other forms of infrastructure? If so, that would ease the concerns of a number of tech companies, who were worried that they'd be listed as "critical infrastructure" under a broad reading of any rule.

The exec order does include a shout out to protecting civil liberties, though you wonder how much that will matter in practice:

Agencies shall coordinate their activities under this order with their senior agency officials for privacy and civil liberties and ensure that privacy and civil liberties protections are incorporated into such activities based upon the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles and frameworks.

They also say that any programs will be reviewed by the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties to ensure that the program isn't causing any problems in those areas. For what it's worth, apparently the administration has been also reaching out to a lot of people to get in on the executive order -- a process described as "highly unusual" for an executive order.

Either way, it's still frustrating that the order brushes over what the real problems are. It just handwaves that question away by insisting that we're under attack, without providing either (a) evidence or (b) notification on what laws are currently causing issues here. That's unfortunate.

Not this again. Last year, we wrote about how Austrian police had seized computers from a tor exit node, showing little comprehension of how tor worked, and why the operator of the node was not responsible for the content accessed. We wondered how difficult it would be to teach law enforcement how tor worked. Apparently, those in Austria still need more help, as it's being reported that another Austrian tor exit node operator has been charged with child porn distribution. The guy, William Weber, has a blog post with some photos.

Seven LKA officers, two police offers, and a court-appointed expert witness started a search of the flat, without respecting my privacy or property whatsoever. Paper documents in a cupboard were read, and no care was taken of my cat (who I was allowed to lock into another room later). My storage cubes (HP MicroServers) were confiscated without any regard for the hardware – the power cords were simply ripped out / hard shutdown, instead of properly shutting them down by the operating system. My main PC was shut down normally, as far as i could determine. After finishing the search in my living room, they continued in my bedroom, where they confiscated my legal firearms, as well as my cable TV receiver, and my Xbox 360. Despite my statement that all firearms and ammunition were legally owned and registered, having passed all background checks, this was doubted by one of the LKA officers due to the caliber.

He indicates later that there was at least some knowledge of tor, so hopefully this gets sorted out:

After this, I had them show me the offending IP address, which I identified as belonging to me in the specified timeframe. I explained that this was a TOR exit node under my control at this time. I attempted to explain what TOR is, and they appeared to be familiar with it, as the atmosphere suddenly became more friendly. They probably understood that it was very unlikely they had a child pornographer sitting in their office.

Some questions about my motives followed, which I attempted to answer – but this seemingly failed. I could not make them understand why I would “waste” resources and bandwidth (translating into money) to run a TOR node. I informed them that I was already contacted by the Polish police in May about this IP, regarding hacking attempts originating from it. Back then I had already explained to Polish police that this was a TOR exit node, and that no logfiles were held. After the report of hacking attempts, I shut down the TOR node on this server, but apparently this was too late and they were investigating (and/or wiretapping) already.

Obviously, there are reasons to investigate possible child porn distribution, but it still seems ridiculous that law enforcement still seems skeptical of tor exit nodes and assumes that they must be used for nefarious intent. This isn't the first time of course. Last year, here in the US, ICE seized a tor exit node as well. While it eventually returned the equipment, it warned the guy that "this could happen again." And, of course, just this week, we wrote about a German case where a court actually held someone responsible for the transmission of encrypted traffic on a tor-like system.

Weeks ago, Mike explored the cultural blitz surrounding the song/video Gangam Style and its creator, Korean pop sensation Psy. One of the themes of the article was how Psy's seeming permisiveness for the internet community's repurposing of his song to spread the fun around resulted in something of a turbo-charge effect on its popularity. It turns out that this understanding of how digital culture can help spread an artist's popularity wasn't a one time thing for Psy.

Recently, a Korean restaurant in Los Angeles closed up shop for a few weeks as it changed its name to Gangnam Style, without even attempting to get Psy's permission, obviously looking to build their business on the song's popularity. While one might cringe at the expected legal result of the use of the song's title, you can safely un-cringe; Psy not only isn't going after the owners of the restaurant, he loves what they did.

"Gangnam Style" singer Psy will NOT sue an L.A. restaurant for naming itself after the famous song -- in fact, Psy's pumped ... because as far as he's concerned ... imitation is the sincerest form of flattery.

The restaurant never bothered to get Psy's permission to use the name -- but sources close to the singer tell TMZ, he doesn't give a crap ... because where he comes from, imitation is a form of honor.

The larger point being that there's no harm from the restaurant's move and the possibility for further cultural penetration. While I appreciate Psy's inaction legally, I would actually suggest he go a step further and embrace the restaurant by reaching out and working directly with them. Why not have his music playing there? Why not have CDs or merchandise available for purchase, with some kind of agreement worked out with the restaurant? Not obstructing is wonderful, but I would suggest more collaboration by the artists to further their monetization and success. Why the hell not?

As Mike covered earlier, Ofcom, the UK's media regulator, has just released a new report on online piracy containing information it has been gathering for the Intellectual Property Office (IPO) ahead of the Digital Economy Act's eventual rollout. (Surprise! Pirates buy lots of stuff!) Andy Malt, editor of Complete Music Update (CMU) and freelance writer/copywriter for music and tech companies, has a look at the numbers and arrives at the conclusion that they're hardly discouraging.

Of the 5099 people surveyed between May and July this year, 47% weren’t able to distinguish with certainty between legal and illegal services, while only 16% actually admitted to accessing unlicensed content, and only 8% said they relied on illegal sources of music.

When those infringers were asked why they went to unlicensed content sources instead of legitimate sites or services, the most common responses were that the illegal sites were free, convenient and/or quick. Asked what would convince them to stop accessing illegal content, the three most common answers were that they would do so if legal services were cheaper and had all the content they wanted, and if it was clearer what was legal and what was not.

Malt points out that there are several legal services, most of which are inexpensive, including ad-funded streaming services which give listeners access to thousands of tracks for free. ("Inexpensive" is, of course, relative. Ofcom's study shows that music retailers and streaming services would convert a majority of casual infringers by cutting prices 50-70%. resulting in 2-3x the number of purchases.)

Of course, Malt's speaking about music services in the western world. Worldwide, the situation isn't nearly as seamless. And TV/motion pictures are a completely different situation. While there are several services available, the content is much more fractured and more expensive. Most streaming services (Netflix, Amazon, Hulu) suffer from major studios' unwillingness to license their output at reasonable rates, and pricing on digital products isn't all that competitive.

But as for music services in the US, it's mostly good news, even if it took much longer than it needed to get to this point. Still, Malt then goes on to point out an area where these services disappoint, often through no fault of their own:

The missing content point is a stronger argument, providing file-sharers relying on it really are trying to access tracks that artists or labels have failed to make available through legit routes. And this is something the music business really ought to have solved by 2012.

AC/DC joined the digital party just within the past couple of weeks and a handful of other holdouts have chosen to stay CD-only. The list of holdouts for streaming services is much, much longer, however. But while these holdouts may be giving themselves a slight sales boost, they're doing so at the expense of their own industry.

[W]hile artists perhaps should have the power to control where their music is distributed, many of the Spotify resisters are acts who have made their millions already, and really should be thinking about the good of the wider music community. Because every artist shunning the streaming services is providing ammunition to the aforementioned self-confessed infringers.

The world has moved on, music consumption has changed, and the Napster generation are now at an age where they should be becoming the music industry’s biggest customers, but that’s not going to happen if the legit services they are embracing are lacking catalogue.

Here's where these artists make one of the worst assumptions -- that withholding their music from streaming services will result in a corresponding boost in sales. While there may be a few fans who opt to purchase rather than do without, a majority will find other options, none of which involve purchasing the album.

[A]n increasing number of people, when then can’t find an album on their streaming service of choice, will not just fall in line and go buy the record from the three shops that the artist or label has dictated can sell their music.

When I can’t find ‘Red’ by Taylor Swift on Spotify, I don’t think, “Gosh darn it, I’ll just have to go and buy it from Papa John’s pizza parlour“. I think, “Well fuck it, I’ll just not listen to it then, cos I’ve listened to enough sixteen track pop albums lately to know that a good chunk of it will not be very good. Also, Ed Sheeran co-wrote one of the tracks on it”. Meanwhile those others not willing to take the financial risk of being lumbered with a handful of filler tracks will Google ‘Red for free’ and download it off someone else’s hard drive for nothing.

So, while some artists may despise the Spotifys and Pandoras of the world, withholding their music cedes ground to infringers and other artists. Even if the bump in sales is bigger at this point in time, that won't always be the case. The law of diminishing returns is going to kick in as a new generation of music fans raised on always-on internet and streaming services is just going to bypass artists that aren't available on the services they use.

He then goes deeper into the numbers, looking at what it takes to convince infringers to utilize legitimate services -- and it's here that the involved industries continue to shoot themselves in the wallet. Yes, there are some people who are never going to use legitimate means and will never pay for music, movies, etc. So, why spend so much time worrying about something you can't fix?

OK, some of the infringers who complained about being confused may be taking the piss again. After all, most people finding content online via a search engine with ‘pirate’ in its name know there’s a very high chance the content they download isn’t legal, even if they plead ignorance. So education probably won’t work with this group. Then again, these are also the people who know how to hide their file-sharing from the three-strikes police, and to circumvent the web-blocks put up in front of The Pirate Bay, so there’s probably not much you can do about them.

But remember, this was only 8% of those surveyed, so I say fuck em. Let’s focus on the 47% who implied that they want to do the right thing, but find the whole thing too confusing. Let’s stop handing over cash to lawyers and technology whizzes who want to go after the 8% and focus on doing some decent education with everyone else. Because if OfCom’s research tells us anything, it’s that the music industry’s current educational initiatives, including the Music Matters programme, which expanded into the US this week, just aren’t working in the slightest.

If you've got approximately 92% of the population to work with, why on earth would you spend your time trying to legislate, sue or otherwise inconvenience the other 8%? The thought process seems to be that only 0% piracy is acceptable and that accepting less is ceding the battle. Taking a hardline against file-sharing will only alienate potential customers. File sharing isn't limited to an "unlawful" fringe. A full 2/3rds of the study's respondents admitted to infringing activity, but if the content industries insist on treating customers as thieves, they're just going to end up with fewer and fewer customers.

The half-assed "educational" programs are a joke as well, with most of the effort going into telling people how file sharing is wrong, rather than playing up the advantages of legitimate services (please -- no more of the "your illegal download is probably a virus" ridiculousness). Or better yet, move that time, money and energy into convincing rights holders to work with existing services to make them better, by adding more content, reducing idiotic, arbitrary restrictions that make no sense with digital goods and negotiating rates that work for everyone involved.

Malt has a couple of excellent points on how to do education right. As he says, the Music Matters campaign is a farce. It fails to do anything resembling "education," preferring to use guilt as negative reinforcement rather than give the undecided a reason to choose legitimate services. Not only that, but the Music Matters mark isn't even displayed by the two largest music services (iTunes and Spotify).

I suppose Music Matters is better that the American record industry wheeling out millionaire pop stars to complain about how file-sharing is depriving them of record sales, but it still feels decidedly mediocre for an industry that, when it comes to selling artists and albums, is actually pretty good at engaging and enthusing consumers. It’s easy for me to sit here and criticise, and I don’t claim to have the answers. But for a start, perhaps instead of forcing ISPs to send out angry letters to those consumers mistakenly downloading unlicensed music files, the labels could start sending thank you letters to those who inadvertently use a legal store.

There's an idea. Thanking your customers for purchasing from you rather than taking alternate routes to the same content. It would make for some great PR and maybe start altering the general image of the average record exec as a grouchy, out-of-touch robber baron with dollar signs for eyes, surrounded by lawyers and starving musicians.

Education can be a good idea, but it needs to be handled with a much defter touch than any of the content industries seem able to manage. Think more carrot, less stick. And try to let bygones be bygones. You can't keep bemoaning the post-Napster climate when you've got a whole new generation of potential customers who are accustomed to streaming services, low prices and instant access across multiple devices. Like it or not, streaming services and single track sales are here to stay. Ad-supported apps may not bring in great money, but that's the new reality. There's no going back, no matter how much legislation you throw at the internet. A continued preference for enforcement over engagement is only going to make things worse. 

Over the past few years, there's been a lot of porn parody movies created. Porn studios have realized that it's an effective way to differentiate themselves from "everyday porn." While some have wondered about the legality of these things, very few have bothered to take the producers to court, recognizing that parody is generally considered protected under fair use. However, apparently Universal Studios has decided that enough is enough and has sued the maker of a porn parody of the book 50 Shades of Grey, Smash Pictures. 50 Shades, of course, is that insanely (seriously: insanely) popular erotic novel, and Universal is arguing that the flick hits a little too close to home, so to speak, and isn't a "parody" so much as it's just an adaptation of the book, which Universal holds the rights to. Specifically, the lawsuit, filed by Universal and "Fifty Shades Limited," uses the claims from the director that the movie is "very true" to the book to suggest it isn't a parody at all:

box for the First XXX Adaptation promotes the infringing work as "[b]ased upon" the Fifty Shades Trilogy and as "[putting] the kinky fantasies that you only imagined into vivid color." According to a Smash Pictures executive's interview with L.A. Weekly, the First XXX Adaptation is "very true to the book," with the script written "to be as close to the series as (director Jim PowersJ can get." Due to the popularity of the Fifty Shades Trilogy, Smash Pictures expects that the First XXX Adaptation "just might be our biggest film to date."

By lifting exact dialogue, characters, events, story, and style from the Fifty Shades Trilogy, Smash Pictures ensured that the First XXX Adaptation was, in fact, as close as possible to the original works. Beginning with the First XXX Adaptation's opening scene and continuing throughout the next two and a half hours of the film, Smash Pictures copies without reservation from the unique expressive elements of the Fifty Shades Trilogy, progressing through the events of Fifty Shades of Grey and into the second book, Fifty Shades Darker. The First XXX Adaptation is not a parody, and it does not comment on, criticize, or ridicule the originals. It is a rip-off, plain and simple.

Universal also seems pissed off that the studio is selling a "Fifty Shades of Pleasure: Play Kit & Movie" that has not just a DVD of the porn flick, but "various adult novelty items used in the Fifty Shades Trilogy."

Universal may very well have a case here. At the very least, it raises some questions about how one creates a "porn parody" of an already pornographic novel. And, that's especially true when the language in the novel is barely above the level of your typical porn script already. The complaint has over four pages of dialogue comparison between the original book and the porn flick and... well... it's not exactly fine literature.

Still, the thing that strikes me about this -- and which isn't mentioned in the filing at all -- is that Fifty Shades, itself, actually came out of a "pornographic adaptation" of the Twilight series. In fact, while those behind Fifty Shades have sought to erase this history, it does seem like a relevant point. Fifty Shades was pornographic Twilight "fan fiction," which was later rewritten to scrub it of references to Twilight. While Fifty Shades' author, EL James, her agent and publisher all like to claim that the Twilight fan fic James wrote and the eventual Fifty Shades book are really different works, someone compared the two using a plagiarism checker and found them to be 89% similar.

And, of course, out of that form of "infringement," something else came about. Seems pretty hypocritical (but, really, all too typical) to try to stop other adaptations/extensions of the work now that you're profiting off of the same sort of thing.

Chris Stokel-Walker, over at Buzzfeed, has an absolutely fantastic feature article all about the creation of the video game Pong by Atari. 40 years ago, this week, Atari delivered the first 12 Pong machines (outside of a prototype at a local bar that proved how addictive the game was). The full article is wonderful, with tons of well-researched details. You should absolutely go read it. But one bit that might be interesting to folks around here: this game, which nearly everyone agrees launched the entire video game industry (now pushing $80 billion per year), was based on infringement. Actually, it looks like Atari's founding was basically based on copying games. Before Pong, it had a different video game console, called Computer Space, which was basically a copy of Spacewar!, a game created by MIT student Steve Russell in 1962.

However, it was Pong that set the world on fire. And... it was almost entirely based on Nolan Bushnell copying someone else's idea:

Meanwhile, the first TV-based home console, the Magnavox Odyssey, designed by gaming-industry forefather Ralph Baer, was being released. The Odyssey was demonstrated in Burlingame, California, on May 24, 1972. "It turned out that Al started at Atari almost exactly the same day I went up to see the Magnavox game," says Bushnell. Around the same time, Baer was at Tavern on the Green in Central Park, sitting amongst the 30 or so East Coast retailers to whom his employers were trying to sell his creation. Beaming with pride, Baer could barely sit still. "The entire Magnavox product line for 1972 was displayed there," he explains. "That included the Odyssey game, which was the hit of the show." One of the games on the Magnavox console was a version of tennis.

"I thought the game was kind of crappy," Bushnell says. Yet people were lining up to play it, "and they were kind of having some fun. I thought, If they can have fun with this shite" — Bushnell breaks off into a hearty laugh — "if it can be turned into a real game, that'd be great." On the drive back from the demonstration, "I got thinking of ways it could be improved."

Boom. Bushnell had someone on his team: re-create that basic tennis-like game for arcade machines. And that's what they did. But, they made some improvements. This is, of course, the nature of how innovation works. Two key steps: build on the idea that you see elsewhere... and figure out a way to make people love it. And that's what happened. This, once again, highlights the difference between invention and innovation in a fairly striking manner. And, while the creator of the Magnavox tennis game, Baer, wasn't thrilled about it, the article makes it clear he grudgingly admires Bushnell's ability to take that silly game and turn it into a giant industry.

Baer, the inventor of the Odyssey, is to this day ambivalent about his competitor. "Mr. B. didn't 'invent' anything," Baer, now 90, told me via e-mail, "but he started a whole industry, the arcade video game industry. Give the man credit for that achievement. He just simply didn't invent anything."

So here's the quick question: which action here was more valuable? Baer's or Bushnell's? This is one of the issues that we've tried to make for a while. For all the talk of how infringement "harms" the inventor, if someone else can build a massive market where the originator failed, isn't that better for society and the economy?

Oh, and part of the reason that the industry itself became so big, was because tons of others jumped into the market as well, often copying Atari (and, eventually, figuring out how to do it better -- which is why consoles today are from Nintendo, Microsoft and Sony... rather than Atari).

Other developers, big and small, saw the runaway success of the game and brought out their own clones to take a slice of Pong's pie. Allied Leisure released around 20,000 cabinets of Paddle Battle in March 1973. Nutting Associates, the company Bushnell and Dabney had worked with to release Computer Space, ended up releasing Computer Space Ball, which was strikingly similar to Pong. There was Paddle-Ball from Williams Electronics, and Rally from For-Play. Midway Manufacturing, then a pinball machine company, dipped their toe into the waters of arcade games with Winner in 1973.

In fact, as various studies have shown, with a developing market, it actually helps quite a bit to have lots of copying going on, because it basically cuts the marketing costs of developing that market a ton. That was clearly true with the video game market:

These manufacturers doubled down on their advantage: Not only could they piggyback on Pong's PR success, they did not have to take into account the cost of developing the game: They could simply lift its internal machinery wholesale.

Yes, the article highlights that eventually Bushnell had to pay off Magnavox, after they pulled out a broad patent "regarding interaction between machine-controlled and player-controlled elements on the screen," but Bushnell insists that he only paid out because the settlement costs were half of what it would have cost to have won in court (sound familiar?). Once again, the article quotes Baer admitting that even if he invented the game, credit has to go to Atari:

"That's the business," he says. "Most inventions are based on some prior history. Al Alcorn knew absolutely nothing about the existence of the Odyssey game — he deserves the major credit for getting Atari started successfully."

The thing is, this isn't a unique story by any stretch of the imagination. Look into the histories of lots of developing industries and you see the same basic thing. Lots and lots of copying and building off of each other... and quite frequently it's that very fact that leads to those industries being so successful. Yet, we look to shut off that possibility due to an over-reliance on things like intellectual property, which hinders that kind of market development.

As the great expanse of permission culture marches on, a growing trend is professional athletes getting in on the game. Recall that Tim Tebow recently took a break from being a crappy quarterback to trademark the phrase (not the action) known as "Tebowing". In addition to that story, we covered NBA rookie Anthony Davis' attempt to embrace the fact that he's clearly a werewolf by trademarking a bunch of unibrow-related phrases. Finally, perhaps most apropros of the topic at hand, remember that Jeremy Lin filed for a trademark on the term "Linsanity", despite his not having come up with the term.

Now, let's get the unimportant stuff out of the way first. Tebowing is more funny as a meme than Tebow is effective as a quarterback, unibrows are just distracting, and Linsanity is a garbage nickname. That last one is especially true when compared to one of the great nicknames in all of professional sports, so given to Oklahoma City's NBA star Kevin Durant: Durantula.

Pictured: basketball player
Image source: CC BY 2.0

It turns out that this holy grail of nicknames is apparently worth suing over, at least in the eyes of a musician. Apparently Mark Durante, a man that the TMZ link describes as a "1980s musician" (meaning he made his bones before Kevin Durant could tie his own shoes), claims he had trademarked the term "Durantula" long ago and has been using it to sell mechandise for years. As such, he is taking Durant, along with Durant's private company, Nike, and Panini America Inc. (ostensibly so that the trial will be catered with delicious sandwiches), to court over the mark.

Unfortunately, there are a couple of problems with Durante's lawsuit, not the least of which is that Durant's legal team previously furnished a letter stating that Durant had never authorized the term "Durantula," hadn't used the term to sell merchandise, and hadn't even come up with the nickname to begin with -- and had no intention of ever using the name. In other words, it was just something that others called him, and he had nothing to do with it. Undeterred by this information, Durante's team proceeded anyway with this filing, naming the afore-mentioned defendants, which include Durant and his company. In that filing, Durante's lawyers bravely lay out their case against Durant, showing in clear terms that Durant...well...never sold any merchandise using the name Durantula. Nor did his company. All the filing manages to demonstrate is that the term was used in marketing campaigns by Nike and Panini America Inc. to sell shoes and memorabilia signed by Durant, which is expounded upon by Durant's response filing, which also is asking Durante to pay for Durant's legal fees, seeing as how he never should have been involved in the suit to begin with.

As for the case against Nike and Panini America, well, that one is rock-damned-solid, assuming you believe anyone on the planet has been hit over the head enough times with a massive rock as to be unable to discern between a guitarist and the six-foot-nine-inch spider-monster dragging his shorts over most of the NBA's faces as he dunks on them. Simply as a point of reference, it may help to see how likely it would be for Mark Durante to be mistaken for a six-foot-nine-inch spider-monster capable of dunking on most of the NBA.

Pictured: not remotely a basketball player
Image source: CC BY 2.0

The only way this suit made sense to begin with was if Durante was trying to Streisand-vault his way back into national relevancy, but if the court sides with the defendants on the issue of legal fees (assuming it finds the suit to be without merit, as I'd expect), even that plan will have backfired.

Techdirt has written before about the self-destructive vindictiveness of the copyright industries, which would rather die in a futile attempt to stamp out piracy than embrace new ways of making money that will help to reduce piracy anyway. Here's another example of this blinkered approach from the UK, pointed out to us by Techdirt user Zakida:

The body which represents the UK's biggest record labels says it "doesn't make sense" for Google not to tackle piracy when it's launching a new, legal music service.

Google says it wants its new music service, Google Play Music, to wipe out piracy on Android devices.

But the BPI claims the firm is not keeping its promise to make it harder to find illegal download sites.

We know that when music streaming services became available in Denmark, Sweden and Norway, illegal downloads were halved. The BPI's obsession with punishing illegal download sites blinds it to the fact that Google plans to launch a far better way of dealing with them: not through extrajudicial censorship in the form of doctored search results, but simply by offering something that people are happy to pay for. The UK recording industry should be embracing new ventures like Google Play Music wholeheartedly, not using them as bargaining chips in its pointless fight over search results.

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

After receiving a Freedom of Information Act (FOIA) request from Jason Smathers, via Muckrock, the NSA has released a series of "talking points." What's incredible is that the talking points themselves are heavily redacted. Considering they're all about what to tell the press, you have to wonder how they could possibly include anything that should be redacted. It seems that, by definition, the info included in the talking points should be public. The only reason to redact is embarrassment. The snippets you can read are sort of random boosterism about how awesome the NSA is... if only they could tell us. Amusingly one entire page of the document is redacted... except for one single line reading:

These are sobering findings.

Indeed. The document also shows that the NSA has written out talking points for members of Congress and the President for when they have to talk about NSA programs. Yes, when you hear a Congressional Rep. defending the NSA, it's likely based on the following talking points: In looking around to see who has actually made these claims, it turns out that the NSA actually released these publicly back in 2006, and they were even entered into the Congressional record at the time. Either way, it's an odd little glimpse into the NSA's world.

As the march of technology progresses, folks are coming up with all kinds of interesting questions regarding the machines we use every day. I wrote a while back about a one researcher questioning whether or not robots deserve rights, for instance. On the flip side of the benevolence coin, I also had the distinct pleasure of discussing one sports journalist's opinion that we had to outlaw American football as we know it today for the obvious reason that the machines are preparing to take over and s#@% is about to get real.

Hyperbole aside, one group is proposing a more reasonable, nuanced platform to study possible pitfalls regarding technology and mankind's dominance over it.

A philosopher, a scientist and a software engineer have come together to propose a new centre at Cambridge, the Centre for the Study of Existential Risk (CSER), to address these cases – from developments in bio and nanotechnology to extreme climate change and even artificial intelligence – in which technology might pose "extinction-level" risks to our species.

Now, it would be quite easy to simply have a laugh at this proposal while writing off concerns about extinction-level technological disasters as being the thing of science fiction movies, and to some extent I wouldn't disagree with that notion, but this group certainly does appear to be keeping a level head about the subject. There doesn't seem to be a great deal of fear-mongering coming out of group, unlike what we see in cybersecurity debates, and the founding members of the group aren't exactly luddites. That said, even some of the group's members seem to realize how far-fetched this all sounds, such as Huw Price, the Bertrand Russell Professor of Philosophy and one of the group's founding members.

"Nature didn't anticipate us, and we in our turn shouldn't take AGI for granted. We need to take seriously the possibility that there might be a "Pandora's box" moment with AGI that, if missed, could be disastrous. I don't mean that we can predict this with certainty, no one is presently in a position to do that, but that's the point! With so much at stake, we need to do a better job of understanding the risks of potentially catastrophic technologies."

Unfortunately, the reasonable nature of Price's wish to simply study the potential of a problem does indeed lead to what seems to be laughable worries. For example, Price goes on to worry that an explosion in computing power and the possibility of software writing new software will relegate humanity to the back burner in competition with machines for global resources. My issue is that these researchers appear to equate intelligence with consciousness. Or, at the very least, they assume that a machine as intelligent as or even more intelligent than a human being will also have a human's motivation for dominance, expansion, or procreation (as in writing new software or creating more machines). Following the story logically, and having written a fictional novel discussing exactly that subject matter, I'm just not sure how the researchers got from point A to point B without a little science fiction magic worked into the mix.

So, while it would seem to be unreasonable to decry studying the subject, I would hope this or any other group looking at the possible negative impact of expanding technology would try to keep their sights on the most likely scenarios and stay away from the more fantastical, albeit entertaining, possibilities.