This is certainly not the first time that we've tried to make this point, but it always amazes us how little people understand price elasticity, and the idea that a lower price can make you more money by increasing the quantity sold significantly more than the decrease in price. Instead, we hear claims by economically illiterate people about how lowering the price "devalues" the work. Of course, I've never understood how making less money devalues a work in the first place, but to each his own. Rafe Needleman has yet another story of how lowering your price can make you more money, playing off an older story he wrote, in which he was convinced by the developer of the ShareMouse app that people should be paying more, not less, for apps.

ShareMouse is $25, and Rafe thought it was too expensive, and suggested that the developer would make more money by lowering the price. But the developer, Gunnar Bartels, pushed back and convinced Rafe otherwise. First he argued that his product was better than the alternatives. Second, that lower price would lead to more support costs from less sophisticated users. And, finally, he pulled out the "developers gotta eat" card -- which doesn't make much sense if you actually can make more money by lowering the price. In the end, Rafe was convinced that perhaps Bartels had a point.

Except, now, months later, Bartels did experiment with lowering the price... and all of his arguments and assumptions fell apart.

For kicks, he offered a one-day $10 sale on Sharemouse.

“Holy cow!” Bartels wrote. Translation: He sold more licenses than the elastic pricing model predicted.

Part of the success of the trial can be attributed to the valuable marketing and promotion that came with the CNET post. Even so, Bartels says the sales figures were “overwhelming and surprising.” So he’s now planning on bifurcating the ShareMouse product line.

As for those concerns about the massive onslaught of stupid support questions? That didn't happen.

Bartels says that the expected downside of selling at the lower price, higher support expenses, has not borne out. “Maybe our product is so good,” he says.

There used to be Crayola crayons labeled "flesh" -- which was re-named to "peach" in 1962, and now Crayola has a pack of eight crayons specifically called "multicultural" that includes: black, sepia, peach, apricot, white, tan, mahogany and burnt sienna. However, there are other colors that have been used to label people, like red and blue. The history of these color associations isn't so black and white. Here are just a few interesting links on how we've changed looking at colors over the years.

• Red states and blue states didn't always refer to Republican and Democratic electorates, respectively. Red and blue were frequently used to describe American political affiliations, but which color represented which party was not consistent until relatively recently (ca. 2000) -- for instance, during the Cold War, who wanted to be described as "red" in American politics? [url]
• Studies of how linguistic descriptions of color affect the way people perceive colors have rekindled the idea that language can shape how people think. And that's doubleplusgood. [url]
• Babies used to be dressed up in all white, but then little boys started only wearing blue... and girls would wear only pink. Again, this convention wasn't settled on for a long time, and it could have easily gone the opposite way (boys in pink, girls in blue). The real loss is in gender neutral colors for children's clothing.... [url]

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

Oh, Apple. As someone who (as yet) has no children, it's been an educational experience watching the company's reaction to a UK judge ordering them to put a public apology on their website over false claims that Samsung copied them. From the very beginning, it felt like Apple had gone out of its way to prepare me for raising children. It all started with a little "But, Daaaaad! He's copying me!" Then, once parental admonishment is administered, Apple went into what child psychologists call "pouty-pants mode," with the kind of apology statement that was almost literally playing one parent/country off of another, by which I refer to their referring to the fact that all of the other countries' judges that had ruled opposite of the UK courts. And when the UK courts were less than thrilled with that petulance, they issued another apology, with a link buried at the bottom of the page -- using a little javascript magic to ensure that you wouldn't see it unless you were specifically looking for it. If this isn't a perfect analogy for a young child mumbling a half-hearted apology to his little brother for kicking him, I don't know what is, but I thank Apple for all the lessons in child-rearing they've given me. I feel, having watched the judge in this case, I have a good understanding on how to handle a petulant child.
"Cry all you want, no dessert until you issue your mother a web-based apology, you little poop-machine"
Image source: CC BY 2.0 The good news is that Apple has quietly removed this digital monument to foot-stomping, but only after Hacker News and Reddit blew up about it. Apparently, at some point since Monday, amidst the kind of backlash normally reserved for US Senators discussing women's health issues, Apple pretended like the whole thing never happened.

As pointed out by CNET, the Javascript code in question is still on Apple's site, but it just isn't being used any more. The code ensured that the iPad mini advertisement would take up the whole page; regardless of your resolution, you would't be able to see the statement without scrolling down the page.

While the code's main purpose wasn't necessarily to hide the apology (Apple has been pushing a more vertically-responsive design on its international sites for a while now), it's very likely that putting the text in question at the bottom of its UK site, where the code would hide it, was on purpose. Apple's decision to stop using the code, in fact, points to this being the case.

Way to go, Apple. You managed to get to the place you should have been all along in the most petulant, drawn out way possible. Exactly what I would have done...back when I was six years old.

Techdirt has been writing about Australia's plans to join the online censorship club for almost three years. Now, in a surprise move pointed out to us on Twitter by @Asher_Wolf, the Australian government has announced that it is dropping the plans -- sort of:

The Federal Government has formally abandoned plans to introduce legislation for mandatory ISP filtering, closing a dark chapter in politics concerning Australia's internet.

However, confusingly, it does still want Australian Net feeds to be filtered:

Instead, internet service providers will be directed by the Government and the Australian Federal Police to block "child abuse websites" that feature on an INTERPOL block list.

Communications Minister Stephen Conroy said in a statement that "Australia's largest ISPs have been issued notices requiring them to block these illegal sites in accordance with their obligations under the Telecommunications Act 1997".

Most people would probably approve of blocking that particular class of sites, but there are some wider issues here. First, it's a little disingenuous of the Australian government to claim that it is dropping plans to censor the Internet, since it plainly still intends to do that, albeit in a specific area. As we know from experience elsewhere, once the apparatus of censorship is in place, there is always pressure to add sites unrelated to the original blocking list.

The other issue is whether this nominal climbdown was part of the plan all along. After all, it's a standard tactic to make totally outrageous initial demands so that anything less seems almost reasonable by comparison. Or perhaps this was Plan B: try to push through ISP filtering as Plan A, and if that fails, drop back to "limited" censorship.

Since it seems unlikely that those who fought against the general censorship plans will be able to muster much support for the idea of not blocking child abuse sites, the key question now is whether it will be possible to stop this approach turning into precisely the kind of ISP filtering that the Australian government claims to have abandoned.

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

As product placement in television and film becomes more prevalent, it was only a matter of time before intellectual property silliness had to follow. For example, we've seen such wonderful cases of egocentrism as a copyright claim over a painting shown in a movie. Couple that with product placement examples that are awkward for all involved and you've got a recipe for litigious fun not seen since a murder trial involving a former Buffalo Bills running back.

Reader Chris writes in about a story that appears to be a nice crossroads of these two aspects of product placement, in which several alcohol companies are apparently upset that their products are being shown in the movie Flight doing what those products do: get people drunk.

Anheuser-Busch said Monday that it has asked Paramount Pictures Corp. to obscure or remove the Budweiser logo from the film, which at one point shows Washington's character drinking the beer while behind the wheel.

Budweiser is hardly the only alcoholic beverage shown in "Flight," which earned $25 million in its debut weekend and is likely to remain popular with audiences. Washington's character frequently drinks vodka throughout the film, with several different brands represented. William Grant & Sons, which distributes Stolichnaya in the United States, also said it didn't license its brand for inclusion in the film and wouldn't have given permission if asked.

Now, you may be asking yourself, "Why didn't the film get permission to use the products in their film?" The answer is about as complicated as a straight line; they don't have to. Studios are not required to ask for permission to include every little brand in their movies -- even if some companies now think that's the case. True, Denzel Washington's character in the film is a drunk and Budweiser may not be pleased to be associated with that aspect of the story, but the law isn't concerned about Budweiser's pleasure. Trademark law isn't about making sure you're always happy about how your product is displayed.

Even going beyond trademark law, it's not like they were "misrepresenting" anything. I, for one, can assure you that the depiction of beer being able to get a person hammered is spot on accurate, and if you won't take my word for it, I'll give you the phone numbers of some of my neighbors who can relate their experiences living near me on NFL Sundays. The point is that there's a reason these companies didn't give their permission: nobody asked them for it.

Trademark laws "don't exist to give companies the right to control and censor movies and TV shows that might happen to include real-world items," said Daniel Nazer, a resident fellow at Stanford Law School's Fair Use Project. "It is the case that often filmmakers get paid by companies to include their products. I think that's sort of led to a culture where they expect they'll have control. That's not a right the trademark law gives them."

Jay Dougherty, a professor at Loyola Law School, said the use of brands in films has generally been protected by the courts, even when the companies aren't pleased with the portrayals. "It wouldn't have been as effective a film if they used a bunch of non-generic brands," said Dougherty, who is also the director of the school's Entertainment & Media Law Institute. "In a normal situation, if the alcohol were just there as a smaller part of the movie, they might have created an artificial brand for it."

Unfortunately, with the wonderful garden of permission culture that IP laws have fertilized so well for us, companies think they can control...and control...and control. But just because sometimes filmmakers seek out product placement, that doesn't mean that all brand appearances need to first receive approval. Thankfully, thus far, the courts have recognized that they cannot keep their products out of film this way. Now let's all go have a non-generic beer.

Today, in a ruling from the Supreme Court of Canada, Pfizer lost its Canadian patent on Viagra as the result of a long-fought battle with rival pharmaceutical manufacturer Teva, which sought to make a generic version of the popular drug. Though the patent was not set to expire until 2014, Teva argued (and the Supreme Court agreed, though lower courts had rejected the argument) that it was in fact never valid in the first place, because it was written in such a way as to obscure the information that is required disclosure in a patent:

P holds Patent 2,163,446 for the use of a “compound of formula (I)” or a “salt thereof” as a medicament for the treatment of erectile dysfunction (“ED”). The patent’s specification ends with seven cascading claims for successively smaller ranges of compounds, with Claims 6 and 7 relating to a single compound each. Only sildenafil, the subject of Claim 7 and the active compound in Viagra, had been shown to be effective in treating ED at the time of the patent application. Although the patent includes the statement that “one of the especially preferred compounds induces penile erection in impotent males”, the patent application does not disclose that the compound that works is sildenafil, that it is found in Claim 7, or that the remaining compounds had not been found to be effective in treating ED.

...

The patent application did not satisfy the disclosure requirements set out in the Patent Act, R.S.C. 1985, c. P‑4 (“Act”). The patent system is based on a “bargain”: the inventor is granted exclusive rights in a new and useful invention for a limited period in exchange for disclosure of the invention so that society can benefit from this knowledge. Sufficiency of disclosure lies at the very heart of the patent system, so adequate disclosure in the specification is a precondition for the granting of a patent.

The ruling goes back to this all-important concept a few times: without disclosure, there can be no patent. It's good to see the court making this a central point, because pharma companies are notorious for attempting to twist the patent system so they get virtually perpetual monopolies on their drugs, while still shrouding their research and manufacturing methods in as much secrecy as possible. In the US, Pfizer had a similar showdown with Teva over generic Viagra starting in 2010, in which Pfizer won using a second patent that didn't cover the active compound in Viagra itself, but rather the marketing of it as an erectile dysfunction drug. Thus, even though the core patent on the drug expired this year, Pfizer will likely retain a monopoly on it until 2019. This is in stark contrast to the UK, where the patent on using the drug to treat ED was invalidated for obviousness way back in 2000—but Pfizer still dominates the market there thanks to related patents on manufacturing methods.

Basically, Pfizer uses any method it can think of to prevent its patents from ever expiring and benefiting the public the way patents are supposed to, including writing disclosures that obscure the necessary facts. The Supreme Court was having none of it—rather than letting Pfizer retroactively fix the disclosure, or coming up with any kind of partial remedy that allowed them to retain the patent, the ruling correctly states that patents must be a deal between two sides to function, and thus the patent is (and always has been) invalid:

Although s. 27 does not specify a remedy for insufficient disclosure, the quid pro quo underpinning the Act leads to the conclusion that deeming the patent invalid is the logical consequence of a failure to properly disclose the invention and how it works. If there is no quid — proper disclosure — then there can be no quo — exclusive monopoly rights.

...

There is no question that sildenafil’s utility had been demonstrated as of the time of filing of the patent application. This takes the invention out of the realm of sound prediction. As to the delay of 13 years between the filing of the patent and the challenge, the relevant question is whether the disclosure was sufficient as of the date of filing, so the delay is inconsequential.

This is a big victory for Teva and a major blow to Pfizer's Viagra empire, which is slowly crumbling around the globe. It's also likely to lead to even more illegal cross-border pharma sales, and even more of everyone's favorite email spam advertising online Canadian pharmacies—but that's another story.

Last month, we were among those who reported on an absolutely bizarre strategy by a candidate for the Maine state Senate to demonize his opponent, Colleen Lachowicz, by highlighting her enjoyment of World of Warcraft and then taking some of her statements about the game completely out of context, to imply they were political statements that had relevance beyond inside the game. Even after this was widely mocked, the folks behind the mailer defended it. In the end, it appears that this was not an effective campaign strategy. As highlighted by Slashdot, Lachowicz won her campaign and was elected. The article notes that the attention from the bizarre attacks resulted in support from "gamers from around the world," who helped raise an additional $6,300 in contributions for her campaign. Not knowing when to back down and go away, her opponents claimed that the money raised was done so illegally, though an ethics board cleared her of any wrongdoing.

Perhaps, next time, politicians will recognize that mocking a candidate for doing something millions of people enjoy is not a particularly smart campaign strategy.

We all enjoyed a loud, incredulous laugh when Janet Napolitano, Homeland Security Secretary, went on record as being proudly computer illiterate. "Never use email," she said as part of statement delivered by teletype. Perhaps Oakland Police Chief Howard Jordan should have chosen the Luddite Way, thus avoiding his current problems. Instead, he chose to perform the digital equivalent of plugging his ears and shouting nonsensical syllables at the top of his lungs in order to actively ignore news he didn't want to hear (found via the essential Police Misconduct Reporting Project).

People who've e-mailed Oakland Police Chief Howard Jordan over the past year about Occupy Oakland probably didn't get much of a response.

That's because he used a spam filter to dismiss messages sent to him with "Occupy Oakland" in the subject line, according to a federal court filing Monday. Same goes for the phrases "stop the excessive police force," "respect the press pass" or "police brutality." Instead of landing in his in-box, those messages went straight into his junk mail folder, which he apparently never looked at.

It's tough work being Chief. A steady stream of complaints about the police force under your "control" is sure to be disheartening. But, if you can't take the heat, reroute it out the nearest opening, am I right? And he would have gotten away with it, too, if it wasn't for that meddling federal court monitor.

Because of those filters, Jordan missed e-mails from other city officials and a federal court monitor, who oversees the department's compliance with court-ordered reforms stemming from a police abuse scandal.

Robert Warshaw, the monitor, had sent Jordan an e-mail with the subject line "Disciplinary Actions-Occupy Oakland." Jordan told the court on Oct. 18 that he never saw those e-mails, infuriating Thelton Henderson, the federal judge in San Francisco who appointed Warshaw.

Oops. Ignoring the persistent chatter of unhappy citizens is one thing. Ignoring a federal judge is quite another. While you can safely ignore some of the people all of the time, you can't really ignore all of the people all of the time. You can attempt it, but then you end up in "unprecedented" territory, which is never a good place to be if you value your career.

Henderson will hear arguments in December about whether to place the Police Department into the hands of a federal receiver, which Oakland officials believe is unprecedented.

When you've mismanaged your post so badly that the police department ends up in receivership via a court order, you've probably done more than filter out anything resembling bad news. A year of unread email certainly didn't improve the ongoing compliance issue. The handling of "Occupy Oakland" didn't instill any confidence in the public that their law enforcement officials were there to serve and protect. Henderson's willful rerouting of email pertaining to allegations of excessive force and brutality shows a very ugly contempt for the citizens under his protection. Of course, now that the truth has come out, he has a few excuses.

He had been inundated with anonymous messages, he said in a declaration to the court.

Well, of course. Anonymity is a key ingredient in any protest. Being inundated with messages you don't like doesn't grant you the permission to revise the incoming narrative by dumping anything negative into the trash. The excuse continues:

But he forgot the e-mail filter was still in effect.

It's an easy thing to forget if you find painting a self-portrait on rose-tinted glass preferable to actually dealing with problems in the community and, indeed, within the ranks of your own force. The brain has many wonderful tricks its willing to play on you to provide you with the short term memory and justification needed to "forget" your determined pruning of incoming messages.

"It was never my intention to ignore the monitor," Jordan said in his declaration.

No. I'm sure it wasn't. You had no desire to piss off a federal judge. But it was your intention to ignore the general public, a fact that goes unacknowledged by this pitiful statement attempting to pass itself off as some sort of an apology. Turning your incoming mail into a "yes-man" approximation is just plain sad.

We've written a few times about why we should be worried about the ITU (a part of the UN) and its attempts to regulate the internet, to which some have responded by arguing that the ITU/UN doesn't really want to regulate the internet. However, the Secretary-General of the ITU, Hamadoun Toure has now taken to the pages of Wired, to explicitly state why he believes the UN needs to regulate the internet. And it appears that many of the initial fears are 100% accurate. We've already covered how the ITU seems to be hiding all sorts of awful scary things by claiming they all fall under the "cybersecurity" banner, and we've noted that the ITU's mandate over cybersecurity is imaginary and its history with the subject is sketchy, at best. However, in the op-ed, Toure doubles down on why the UN should be there helping countries censor things like "porn and propaganda" on the internet as a part of its "cybersecurity" efforts

Governments are looking for more effective frameworks to combat fraud and other crimes. Some commentators have suggested such frameworks could also legitimize censorship. However, Member States already have the right, as stated in Article 34 of the Constitution of ITU, to block any private telecommunications that appear "dangerous to the security of the State or contrary to its laws, to public order or to decency." The treaty regulations cannot override the Constitution.

Many authorities around the world already intervene in communications for various reasons – such as preventing the circulation of pornography or extremist propaganda. So a balance must be found between protecting people's privacy and their right to communicate; and between protecting individuals, institutions, and whole economies from criminal activities.

First, it should be made clear that Toure is being somewhat disingenuous here. The ITU's mandate concerning such communications were written for a different time, when telecommunications meant limited communications systems -- initially the telegraph (yes, that's how far this goes back) and then the telephone. Toure claims that the ITU is "charged with coordinating global information and communication technology (ICT) resources," but that's only in his own mind. The "Constitution" he so proudly points to only refers to telecommunications -- which in this context has a very, very different meaning than broader "information and communications technology." The ITU's charter is for telecommunications only. That is, old telephone networks (and telegraphs before that). In such cases, there was a need for a group like the ITU to help deal with standardization and interconnection among large companies. But, with the internet, their role is basically obsolete. There are other basic standards bodies -- ones that are more open and understanding. But Toure is focused on helping out authoritarian states like Russia and China that want to claim that "pornography or extremist propaganda" should be censored.

This is a serious problem for those who support an open and free internet that provides greater ability for free expression to occur. If people are doing things that violate local laws, go after them legally and prosecute them under those laws. To put it on telcos -- often ones with close ties to state governments -- to block and censor, all in the name of "cybersecurity," is opening up a huge can of worms. There is no need for the ITU to get involved in this situation at all.

Then, there's the second big problem -- and what this story is all about in reality. As we've noted in the past, large, slow, lumbering legacy telcos (many of them either state owned or formerly state owned) haven't innovated at all. They see big internet companies, who are building awesome and fantastic services that consumers want -- and getting rich doing so. In response, they get jealous, and say that they deserve some of that money. And that's what this plan is really about -- the ITU helping its "member" telcos try to divert money from the successful services out there to the big lumbering telcos who failed to innovate. Toure more or less says that in his op-ed, by labeling it as a more "fair" distribution of revenue:

An important and influential factor is network financing, so the conference may consider strategies around sharing revenues more fairly, stimulating investment, mainstreaming green ICTs, and expanding access as widely as possible to meet booming demand.

And that's what this comes down to. It's about diverting revenues from companies who earned it in the market, to the telcos who did nothing, often getting fat and lazy on the back of government subsidies and who are now jealous. But since they make up the core of the ITU and give it its purpose, suddenly it's all about "sharing revenues more fairly."

Thankfully, it appears that most of the commenters on the Wired piece see through this and are calling Toure out on it.

A few years back, we had a post highlighting an absolutely fantastic video by Julian Sanchez about the value of remix culture. The video made a key point that often gets lost in these debates: that remix culture is often more about the culture than the remix, but that copyright law makes that difficult. It focused mainly on a viral remix video that took a song from the band Phoenix, called "Lisztomania," but which was put to video clips of people dancing in various John Hughes films (mainly from the classic scene in "The Breakfast Club.") That was interesting enough, but what was even more interesting was how it then followed that lots of others recreated the video in their own image. So groups got together in various hipster locations (Brooklyn, San Francisco) and created their own videos recreating the dance moves on their own to go with the new song. It was really quite interesting, and showed how important remixing and fair use was to culture, and how it could take something and make more with it.

Fast forward to the present, and even though this video has been up for years, Julian discovered that his original video was taken down on a copyright claim. If you go to it now, you see this: For what it's worth, this does not seem to be targeted at just Sanchez. In looking around, it looks like a bunch of the "original" videos of the Hughes brat pack dancing to Lisztomania videos are all down with the same message. From this, it appears that it's the publishing company, rather than the band or its label. Kobalt has claimed to be a new sort of publishing company, though this seems like a horrifically old school approach, killing off a popular viral video -- and doubly so with the Sanchez video which almost certainly qualifies as fair use. It was completely not commercial, only used a part of the song, included significant commentary, did not limit the market for the song and clearly was not a replacement.

And, yet, it's gone. Even worse, when Sanchez appealed the takedown, which was rejected, and there appears to be nothing else Sanchez can do: Note that in this screen, it's not Kobalt, but Glassnote and SME (which I believe is Sony Music). Glassnote is an indie label who released the song, but in partnership with Sony, who handles the distribution.

It's also odd that there doesn't appear to be any further appeals process. After all, just last month YouTube said it had changed its appeals process to avoid exactly this situation. The "old" model allowed whoever made the claim to "reject" the appeal and there was no further action possible. The "new" situation is supposed to require the claimant to file a DMCA notice, at which point the DMCA process takes over.

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we're introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

But, as Sanchez notes, there doesn't appear to be any such appeals process available to him (at least not in an obvious manner).

Either way, Glassnote/Kobalt/SME is playing with fire here. First off, taking down such a popular viral video -- one that clearly only served to help promote the song massively -- just seems stupid and shortsighted. But, going further and taking down Sanchez's video commentary on remix culture, which used part of that song seems doubly questionable, seeing as it's almost certainly fair use. It might not be the same issue as the Lenz case, in which Universal Music may get into trouble for issuing a bogus DMCA without properly considering fair use, since it's unclear that any actual DMCA notice was filed (instead, this looks like it was all a problem via ContentID). However, going around and censoring videos that are clearly fair use isn't going to end well. Though, really, YouTube's broken ContentID system isn't helping either.

Earlier this year, we wrote about the TV networks suing Dish Networks for its new Autohop feature. Dish created a neat bit of innovation, which automatically recorded all prime time shows for people to watch later, and as long as you watched the day after the shows aired, it would auto-skip the commercials. This is the kind of thing that a user could set up themselves, though it's a bit cumbersome, and too many DVR providers have shied away from automated "commercial skip" features after the TV industry sued ReplayTV over such a feature (despite many VCRs having it already). Ridiculously, the networks, led by Fox, claimed that skipping commercials is a form of copyright infringement. The theory there is... convoluted, at best.

The latest news is that Fox has lost in its attempt to get an injunction, meaning that the service will live on as the trial continues. The filing is sealed for now, as apparently there are some trade secret details that need to be redacted. However, both sides are trying to claim victory -- with Fox saying that the order does indicate that the feature is copyright infringement:

"As reported, the court denied Fox's request for a preliminary injunction. But we are gratified the court found the copies DISH makes for its AutoHop service constitute copyright infringement and breach the parties' contract. We are disappointed the court erred in finding that Fox's damages were not suitable for a preliminary injunction. We intend to appeal that portion of the court's decision, as well as the court's separate findings concerning the PrimeTime Anytime service. DISH is marketing and benefitting from an unauthorized VOD service that illegally copies Fox's valuable programming."

That sounds bizarre -- as it suggests that the court still thinks that a service to skip commercials could be infringing -- but we understand that's not the case at all. The ruling is very, very specific and only narrowly found infringement in one small, minor aspect of what was happening. And, the fact that there's no injunction is actually pretty damning for Fox. It shows that the court doesn't believe the "harm," if there is any, is so bad that it can't be dealt with eventually through monetary awards, rather than shutting down the service. It still seems ridiculous that building a useful service that provides features that people want -- which involves things that individuals can do on their own -- is somehow infringing. Dish's own statement suggests that this ruling is mostly a win -- and the "loss" is minor, since it appears the key aspects of its service were not found to be infringing.

"Today's ruling is a victory for common sense and customer choice. DISH is gratified that the Court has sided with consumer choice and control by rejecting Fox's efforts to deny our customers access to PrimeTime Anytime and AutoHop -- key features of the Hopper Whole-Home DVR. The ruling underscores the U.S. Supreme Court's ‘Betamax’ decision, with the court confirming a consumer's right to enjoy television as they want, when they want, including the reasonable right to skip commercials, if they so choose."

We'll have more once the redacted ruling is unsealed, but from what we've heard, Fox lost bigtime here. Still, just the fact that this is even being fought out in court should be an indication of the ridiculousness of copyright law today, in which companies aren't allowed to innovate without Hollywood (or the courts) having to first give approval.

So, we had just written about the unfortunate (if expected) news that voters in California had overwhelmingly passed a ballot measure which (among other things) would take away anonymous speech rights from anyone on the state's sex offender list (which could include things like people arrested for urinating in public, or consensual sexual activity between teenagers). That seemed both extreme and unconstitutional. We noted that we expected the law to be challenged, though I had assumed it might wait until the law was used. Instead, the EFF and ACLU immediately teamed up to challenge the law, arguing that it was unconstitutional:

"Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics," said EFF Staff Attorney Hanni Fakhoury. "When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets."

And... before I could even finish writing about the challenge, the judge issued a temporary restraining order, blocking the implementation of the law.

In this case, the Court finds that Plaintiffs have raised serious questions about whether the challenged sections of the CASE Act violate their First Amendment right to free speech and other constitutional rights. In addition, the balance of hardships tips sharply in favor of issuing a TRO. Defendant Harris’s counsel represented to the Court that the State would be in no position to enforce the law until March 20, 2013. The harm to Defendants of a TRO therefore appears to be minimal. Plaintiffs, by contrast, would suffer the potential loss of their “ability to speak anonymously on the Internet,” which is protected by the First Amendment... Such “loss of First Amendment freedoms . . . unquestionably constitutes irreparable injury.” .... Additionally, the Ninth Circuit has “consistently recognized the ‘significant public interest’ in upholding free speech principles,” ..., and that “it is always in the public interest to prevent the violation of a party’s constitutional rights,” ..... The Court therefore finds that Plaintiffs have satisfied the standard for a TRO.

Of course, now the state will need to waste taxpayer money defending this awful part of the law. It would have been nicer if it had never been on the ballot in the first place.

While Apple and Google (or their proxies) are fighting it out on a number of big patent battles, both companies (and basically every other successful tech company) are still facing a whole bunch of troll lawsuits. Jury verdicts came down in two such cases this week, with the big one being Apple losing to VirnetX in East Texas, and being told to pay a whopping $368.2 million. Just as a point of reference, VirnetX admitted in court that in the first half of 2012 it made a grand total of $36,000. And now the jury thinks it deserves $368.2 million? The patents in question (which can be seen here) cover some concepts around virtual private networks. The company, a spinout of secretive government contractor behemoth SAIC, claims that Apple's Facetime product infringes.

Apple, of course, claims that it doesn't infringe, leading VirnetX's lawyer to make a truly bizarre statement:

“For years Apple refused to pay fair value for the VirnetX patents,” Doug Cawley, a lawyer with McKool Smith in Dallas who represents VirnetX, said in closing arguments. “Apple says they don’t infringe. But Apple developers testified that they didn’t pay any attention to anyone’s patents when developing their system.”

In a sane world, the fact that Apple clearly did not copy or rely on these patents for its offering should be enough proof to dump the case. Unfortunately, our broken patent system still refuses to recognize a true independent inventor defense -- leading lawyers to make statements like the one above, in which they gleefully cheer on the fact that they are blocking companies from innovating on their own. Shameful.

Of course, given Apple's own aggressive patent litigation strategy, many probably won't have much sympathy for the company here. And, indeed, there is a "live by stupid patent litigation, die by stupid patent litigation" schadenfreude in seeing this result. But, no matter what, it's another example of the patent system gone haywire.

The other verdict came out of Eastern Virginia, rather than Eastern Texas, which perhaps explains why the verdict, while silly, is not quite as silly. It involves Vringo, who was in a patent infringement case against Google, AOL, IAC and Gannett. The original patents were actually from a troll called Innovate/Protect Engine (I/P Engine), but somewhere along the way Vringo bought them. The ruling here did find infringement, but the award to Vringo was much lower than what it was asking for. In the tradition of crazy verdicts (like the one above) Vringo had asked for $696 million combined from the companies. However, the jury here awarded $30 million. Perhaps they should have filed in East Texas, since the juries there seem to have no connection to reality when it comes to the award numbers.

These cases are quite similar to pretty much every other patent troll case out there. Tragically, these kinds of stories are becoming so common that they barely feel like news any more, other than as a painful reminder of just how much money is being absolutely squandered on ridiculous lawsuits like this, where any award seems to go to non-productive operations, rather than companies who actually bring products to market.

Both cases will likely be appealed. In the Apple case, Apple has already filed for a motion for judgment as a matter of law, which is a way to effectively ask the district court judge to overrule the jury -- a tactic unlikely to get very far in this case. Either way, it's going to be a few years before the various appeals are sorted out in these cases.