You may remember that last fall, there was an incredibly weak attempt at patent reform known as the America Invents Act. This was the result of a nearly seven-year-long fight over patent reform, with nearly every good idea from early proposals being watered down to completely useless, and a few bad ideas ramped up for good measure. Nothing in the AIA actually dealt with the problems of patent trolls or patent thickets. One of the ideas that survived the years-long culling was flipping the US patent system from a "first to invent" system to a "first to file" system. I've long argued that this is a very bad idea for a variety of reasons. First, it encourages inventors to file for lots of patents as early as possible to beat anyone else to the Patent Office, rather than making sure that the invention is actually worth patenting. It also seems to go against the basic principle of the patent system, if it's supposed to reward actual inventors. Finally, switching to a first to file certainly seems likely to favor large companies with big legal staffs that can focus on rushing out as many patent applications as possible. Smaller entities might be in trouble.

To be fair, the arguments in favor of this switch are basically (1) everyone else does it (mostly true) and (2) proving who was first to invent is a total pain in the ass and can be slow and costly. Thus switching to a first to file system could save a lot of wasted time and money in the cases where there's a dispute. That may be true, but I'm not convinced it's a good reason.

That said, it doesn't much matter what I think: it made it into the bill and is now the law. The US Patent Office is now seeking comment on how it should go about implementing this new rule. It's put out two requests. First, it wants to know how it should change the examination guidelines for patent examiners (pdf and embedded below) to take this new rule into account. Second, it wants comments on how it should amend the "rules of practice," regarding this change -- since the current rules are based on the old "first to invent" system.

For those thinking of participating, this is not the place to argue why "first to file" is a bad system (or even why the patent system is broken). I imagine any such filings will be (correctly) deemed off-topic and discarded. However for those patent holders and patent lawyers (and scholars) for whom this change is a big deal, now might be the time to share some thoughts with the USPTO for how it can implement this change with as little damage as possible.

I've written before about the benefits of having an open commenting system on websites, complete with anonymity, and I still believe in that stance. I've also made the point that the comments and communities a site develops can often be as much the stars of the show as the original content. So, it goes without saying that the more you enable your community to provide awesome and relevant commentary, while not locking the system down, the better off you're going to be. I think Techdirt does this well, by still allowing for anonyous comments while providing benefits for having a profile with a comment history (participation in contests, credibility through history, etc.).

YouTube (famous for its often-awful comments) has never been completely open, but the majority of commenters use standalone accounts with pseudonyms. Now, according to a recent CNN article, YouTube is actively encouraging users to link their accounts with their real identities (via Google+, of course), not just by prompting them to do so but also by asking them to explain why if they decline.

"Try to comment on a video today and a window will pop up with the title "Start using your full name on YouTube," which will sign you in with your Google+ account. A YouTube spokesperson told BetaBeat that this option has been offered since June 29 and that users with a Google+ account will see the same thing if they try to upload a video.

If you don't want to use your Google+ account, you can refuse -- but then you're taken to a second prompt, which asks "Are you sure?" Then, like some kind of Internet degenerate, you must explain why you don't want to use your full name."

Now, this may be a tad irritating to anyone who insists on commenting anonymously, but I think if the strategy works to get more people to comment while being accountable then the benefits will outweigh the annoyance. Because if there has been any single great all-encompassing truth about the last decade, it's this: if you're looking for a reason to hate humanity, spend 20 minutes browsing YouTube comments.

Having said that, it's important that YouTube still allow the option to comment anonymously. Without that option, you may lose valuable comments from people with legitimate fear of reprisal if their name is associated with their words, whether that reprisal comes from friends, family, their employers, or the government. But being proactive in encouraging users to comment under their accounts is a good thing, which may very well breed a better commenting community.

MIT's Tech Review had a fascinating article yesterday about a couple of "artist-coders" who had automated a system to turn YouTube comments into ebooks for sale on Amazon with somewhat (unintentionally) brilliant results, such as "Alot was been hard" by Janetlw Bauie:


The team who created this has put out an entertaining press release as well. In it, they point out how they're demonstrating some big questions about publishing in the digital age:

The GHOST WRITERS project's aim is to address and identify pertinent questions concerning the digital publishing industry's business models, as well as to draw the lines of new trends for a possible new kind of digital literature, after the web.

The project wants to raise questions like: who do YouTube videos/comments belong to? Where does authorship start and end? To what extent does the e-book format have to be reconsidered with regard to the traditional book form, and what are its most innovative opportunities? How could we act and work on it?

Indeed. When I first read the TechReview about this, my first thought was about how long it would be until they were sued for copyright infringement. Still, I was intrigued by this so I went to check out some of "Janetlw Bauie's" works... only to discover they're all gone. No one seemed to mention this anywhere, but the creators just noted that Amazon pulled them because "they could lead to a poor customer experience." Not sure that's really true, but... Either way, it seems unfortunate to have them just "disappear" (poof!) like that. Were these books really so problematic that they had to be deleted entirely?

Governments around the world are seeking to monitor more and more of their citizens' online activities -- and it's not just the most obviously repressive regimes doing this. In the US, there is CISPA, while the UK is drawing up the Communications Capability Development Programme. Thomas Steen alerts us to a further escalation of this desire to spy on the public, in Norway. The secret service there (known by the acronym PST) want details about comments posted on all Web sites retained (via Google Translate):

"This will make it possible to identify which IP address to publish a given post at a particular time," writes PST letter also signed the acting chief Roger Berg.

The current requirement is to store information detailing where, when, how and with whom Norwegians communicate using the phone, mobile or e-mail. The latest proposal would be a major extension to that, since it would require data about highly personal content to be stored. Here's how the PST would access that information:

If it becomes subject to compulsory saving for six months, it will mean that the district court, upon request from the PST, may require that those who have online discussion must submit the information about who wrote a given post and when it was done.

In addition, prosecutors called a "rush of competence" in cases where data is needed very quickly. Then the police and PST require data directly from the supplier, but as the court approve it afterwards.

Aside from that retrospective approval for data grabs, the other worrying aspect of this proposal from the Norwegian secret service is that, if implemented, it would establish a precedent that other countries may seek to follow.

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

We recently posted what I thought was an interesting essay by musician Erin McKeown on her reaction to seeing someone copy a song of hers, and have that other song become a "hit." We thought it was an interesting and nuanced exploration of some of the challenges of being a musician and thinking about copyright -- from both an emotional and logical perspective -- and thought it would make for an interesting discussion. And, in fact, it did make for an interesting discussion. With well over 100 comments, representing a variety of different viewpoints, there was a pretty deep dive into the myriad responses the piece brought out. Like pretty much any online discussion, some of the comments were more polite than others. But, when viewed on the whole, it struck me that the conversation was much more polite than most online discussions around copyright. In fact, what was interesting was that because the discussion was quite nuanced, most of our usual haters didn't take part. So we didn't have, for example, anyone calling me a slimy lying sociopath or a disgusting human being.

Some of the comments were pointed in their disagreement with Erin, but almost immediately others came in to defend her, and the overall discussion was quite interesting in my mind. And, yet, a bevy of the standard Techdirt critics took to Twitter to claim that Erin's article was proof positive that Techdirt was pure evil, hated artists and was the disgusting underbelly of the internet (a very close paraphrase of actual statements). I'm not going to link to any of these, because I don't mean to call out those people specifically. Similarly, there was a thread on a music site that was entitled "why does Techdirt hate musicians?" I suddenly had people tweeting at me, personally, about how I was somehow destroying music and why did I not want artists to get paid.

I honestly can't figure out why this was the response. First of all, we've regularly been attacked because (we're told) we never, ever post an article where we show sympathy for artists' difficult plight these days. So here was an article, from a musician, explaining her plight -- and we get attacked for that?!? Furthermore, I'm long since past the time when I could read all the comments on the site, but I do read a pretty large number of them, and the amount of hate and vitriol that has come from Techdirt haters (see above, for two very recent examples) is way, way, way, way beyond anything seen in that particular thread.

In fact, the further you read into the comments the more you realize it's a detailed and nuanced discussion on many important issues. People don't agree, but no one's calling each other a slimy lying sociopath or a disgusting human being. Yet, because a few commenters (not even the majority, as far as I can tell) disagree with Erin, all of Techdirt hates musicians? There were a few tweets and statements elsewhere saying that Techdirt hates it when artists make money. Of course, that's ridiculous. We regularly celebrate artists earning money -- sometimes lots of money. What we get nervous amount is when artists start making use of laws in ways that may actually do them more harm than good in the long term, by attacking their fans as if they were criminals, or when they seek to abuse laws that take away fundamental rights of others.

But, really, what was most amazing to me was how quick some of these people were to jump on the entire Techdirt community, because a few comments disagreed with one musician's opinion. They ignored everyone who came to her defense. They ignored the fact that we posted the story in the first place. They ignored all the people on other stories who attack Techdirt supporters in often extremely personal ways (I've been threatened with physical harm as well as seen multiple comments I won't repeat about my family). But most people -- myself included -- see those kinds of comments as part of the price you pay for having an open discussion. Some people are going to disagree and some will use different levels of speech, some more polite than others. To tar and feather everyone on the site because someone on it disagrees with your personal views is to suggest that every community online is a problem.

Is it that difficult to distinguish a nuanced conversations where not everyone agrees with each other... from the "dark underbelly" of the internet?

Having just discussed whether or not journalism shield laws should apply to random bloggers, it's worth noting an interesting case going on in Indiana, where the key question is whether or not such a law applies to comments on a newspaper website. The paper, the Indianapolis Star, is arguing that Indiana's shield law protects anonymous commenters in the same way that it protects sources. After all, anonymous commenters can be sources. Of course, it may come down to the specific language in Indiana's shield law. A more interesting question is should such laws protect anonymous commenters? I'd argue that the First Amendment should, generally speaking, protect most anonymity, so I'm not sure a specific shield law provides much more that's useful beyond that. However, if you were definitely applying such shield laws to comments, perhaps it should just be limited to cases or individuals who actually are acting as sources (i.e., providing news) in the comments.

We've had a few discussions here at Techdirt about anonymous commenters, coming down firmly on the side of the anonymous. Tim Geigner's response to Anil Dash's "If Your Website's Full of Assholes, It's Your Fault" turned the tables on the tired trope that anonymity breeds assholishness by stating that if your comment thread is awesome, it's your commenters' "fault." Many other pieces have been written by Mike Masnick, taking on various articles and editorials that claim that anonymity is ruining civil discourse, destroying the internet and (presumably) humanity as we know it in the process. Even in my post comparing trolls to town drunks, I took care to point out that not every anonymous commenter is a loudmouthed troll.

Via Above the Law's daily Non Sequiturs roundup comes a post at What About Paris? (a client-focused legal blog) reiterating site owner JD Hull's arguments against allowing anonymous commenters, namely that most commenters haven't earned the protection that anonymity affords them, using a photo of some French Resistance members to illustrate his point:

The revered French Resistance in action 70 years ago. Today, certainly, these heroes might need to comment and blog anonymously. However, lawyers, shoe store managers, Tulane grad students, accountants, and other country club Charlies haven't earned that privilege.

Hull goes further, equating anonymous commenting with less-than-desirable human traits including (as Techdirt's default anoymous option nods at) cowardice:

Absent compelling reasons, nameless blogosphere participants, in our view, are rarely worth anyone's time, thought, or respect--even when they think and say brilliant things... They are second-class citizens. They say third-rate things. Certainly, they have no incentive to exceed below-average...

It doesn't take much thought or courage to lob one in there when you don't sign your name. Our new digital culture permits a certain accepted wimpiness to masquerade as needed "privacy" and personal "style". But it's a ruse. Most of us can do better than that. Don't buy into nameless blogging and commenting (or participation through pseudonyms) unless it's deserved.

While the wording is harsh, some basic truths underlie Hull's arguments. Anonymity means never being able to take credit for brilliance or be assigned guilt for any written atrocities. As you can clearly see in the weekly funny/insightful comment wrapups, AC's gather a ton of votes in both categories, demonstrating that not every anonymous commenter is using anonymity as a cloaking device for misanthropic behavior. As much as we would love to know who's behind these comments, stripping away the "anonymous coward" option would most likely result in a severe dropoff of overall comment quality.

On the other hand, anonymity is very often used as a layer of protection for those whose comments are the very reason that so many websites have turned to less anonymous options, like Facebook comments or required registration. Without the cover of anonymity, would anyone log in to post something like this recent irredeemable piece of malevolence?

Using the AC option to make statements like this is exactly what Hull is referring to when he uses the word "cowardice." The anonymity afforded to commenters by Masnick's refusal to censor the comment threads in any way (by requiring registration or using a third-party comment system) allows them to operate without fear of reprisal. Making crass statements or baseless personal attacks doesn't require courage or even forethought. All it requires is a keyboard and the will to sink to the lowest level possible.

Back to Hull:

As Walter Lippmann once reminded us, "cowardice" is a strong word, and you don't throw it around. We dislike using it. It implies a certain moral superiority of the user (which the writers of this blog would never claim, and do not wish to achieve). It generally furthers no discussions, and justifiably puts people on the defensive. But that word, unfortunately, may fit here.

Hull references Above the Law, which is now looking to rid itself of anonymous commenters:

Check out the anonymous haters, nameless "experts" and scores of prissy pundits and lemmings who won't sign their real name to their rants and indictments. (We don't know how much David Lat is paying editor Elie Mystal these days, but it's not enough. Mystal is a mensch, soldier, hero and lightning rod who is often himself targeted for abuse.)

When people speak out against anonymous commenting, it's because of instances like these. And it's never a few outliers that cause the problem. It's wave after wave of anonymous commenters, all playing internet heckler, usually with nothing more interesting to contribute than random insults and f-bombs in the general direction of the writer and other readers.

It hurts the chances of other anonymous commenters to be taken seriously, especially when these non-trolling commenters offer up dissenting opinions. The tragedy is that the ACs who traffic in ad hominem attacks and drive-by insults could care less if they damage the collective reputation of anonymous commenters.

The good news is that Techdirt's comment threads are routinely full of awesome commenters, many of whom have taken it upon themselves to preemptively "troll" many of the posts, taking the words right out the mouths of would-be attackers. Hilariously, these ACs are taking offense at being "pre-trolled," going so far as to suggest that Mike himself is deploying an army of commenters to discredit the "real" ACs by (presumably) stating their own "arguments" before they've had a chance to.

(Pro tip: don't want to be confused for a "fake" AC? Pick a name and stick with it. Value your anonymity? Well, either everyone gets an equal chance to be anonymous or no one does. Which do you prefer?)

While I can certainly appreciate the frustration of Hull and Mystal, trying to do away with anonymous commenting usually results in losing a lot of the good along with the bad, and the determined trolls will always be able to find a way to use your new comment system against you.

Anonymity on the web is still very much a good thing, especially considering how many entities, from Facebook to Google to various governments, are looking to take it away. I'd still rather wade through a ton of personal attacks than require registration for something as universal as expressing an opinion.

We recently wrote about the initially cool, but eventually frustrating, story of author James Erwin, who turned a comment he made on a Reddit story into a movie deal with Warner Bros. The frustrating part came out of the news that Erwin mentioned in an interview that due to the "locked-down IP rights" common in the movie industry, he couldn't spend more time on Reddit with the community that built up around the "Rome, Sweet Rome" story.

Now, some in our comments questioned whether Erwin even had the right to grant such an exclusive license to Warner Bros., noting both that the community helped develop part of the story and that Reddit's terms might forbid it. Eriq Gardner, at THREsq, decided to dig into the legal question, and suggests that it's entirely possible that Warner Bros. could not have exclusively licensed the story, and in theory anyone else could try to get the same rights from Reddit itself.

Part of it is the boilerplate language in Reddit's terms:

"you agree that by posting messages, uploading files, inputting data, or engaging in any other form of communication with or through the Website, you grant us a royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use, reproduce, modify, adapt, translate, enhance, transmit, distribute, publicly perform, display, or sublicense any such communication in any medium (now in existence or hereinafter developed) and for any purpose, including commercial purposes, and to authorize others to do so."

This really is boilerplate. Look at almost any modern user-generated content platform and you'll see similar terms. But, at the very least here, it suggests that while Erwin could offer up some rights to WB, he cannot grant them exclusively. In fact, Reddit itself could make the same movie based on this... or it could separately license the story to a competing studio. It seems unlikely that they would do that, but it certainly seems possible.

Additionally, there are still some questions about whether or not Erwin could have licensed parts of the story that were developed by others:

although Erwin undoubtedly did much of the hard work in crafting the story himself, during the genesis of "Rome, Sweet Rome," some of Reddit's other users made suggestions to his work that may ultimately shape the final story.

Those concepts, if they are copyrightable, might not be Erwin's to exclusively license.

Either way, while I doubt it will happen, it certainly would be interesting and amusing to see what would happen if Reddit tried to license the same rights to a competing studio.

Here's a story that starts out great... but then gets annoying towards the end.

I know we've got many Redditors here, but for those who don't spend time there, they might find this story interesting. We keep hearing stories these days about how the big movie studios are afraid to try anything particularly original when it comes to greenlighting movies -- preferring these days to do remakes, adaptations or sequels, knowing that they all bring in a guaranteed audience of some kind. So it's interesting to see (as sent in by Aaron DeOliveira) that Warner Bros. "aggressively" went after and bought the rights to a story that was written in the comments of Reddit. It started when a Reddit user asked if a modern US Marine infantry battalion could wipe out the entire Roman Empire given the modern technology they would have.

Reddit user Prufrock451, who is more commonly known as James Erwin (and is apparently an author and a "two-time Jeopardy winner") jumped at the opportunity to dash off a bit of fiction describing "day 1" of such a modern military unit being transported to the Roman Empire. And the Redditors liked it. Big time. They encouraged, nay demanded, that he write more. So he wrote some more, and an entire Subreddit was created, called Rome Sweet Rome, with plenty of people contributing additional ideas, including graphics and a hypothetical movie poster.

And late last week, the news came out that Warner Bros. had purchased the movie rights. Of course, there's a long way from buying the rights to actually having a movie made. I know folks who have sold movie rights only to see them languish for ages with nothing ever happening. Still, whole thing from comment to movie deal? A little over a month. When I read all that, I thought about how cool a move this was, and how it was nice to see Warner Bros. apparently being progressive on such a deal and realizing the value not just of the story but the wider Reddit community.

But then I read a little more. In an interview with Erwin on ScreenRant, Erwin admits that now that a deal has been signed he has to stop participating in the subreddit because everyone's "lawyered-up" and worried about "locked-down IP rights."

Unfortunately, I have not been able to spend time on Reddit. This is not because I think I’m too big for my britches now. The Internet is a chaotic, give-and-take place – and that creates nightmares for a lawyered-up industry based on locked-down IP rights. In a perfect world, I would be in that subreddit every day – but that’s not what’s best for the project. I want this to succeed, and that unfortunately meant going dark for a while. I hope the folks in the RomeSweetRome subreddit see this little mash note. I miss em.

Ah, what a shame. What could have been a fun, collaborative process that really involved and built on the community -- who would have loved it -- instead becomes a lame "lawyered-up" situation with "locked-down IP rights." Sorry, WB, but you missed the whole point.

Last week, we had a post about a ruling from Judge Beryl Howell, concerning awards on default judgments. Judge Howell has been a controversial figure in copyright circles over the last few months, because prior to becoming a judge, she was an RIAA lobbyist, and prior to that, she helped write the DMCA and a variety of other really bad copyright laws. Not surprisingly, her rulings on copyright issues have gone strongly in favor of the copyright holder -- even going against the rulings of many other judges. At the very least, it's difficult to see her as an unbiased member of the judiciary on copyright issues. A general sense of fairness would suggest that, given her role in the laws she's now asked to rule on, she should recuse herself from copyright cases. I don't believe that Judge Howell is corrupt. In fact, I find charges of corruption towards judges thrown around way too frequently. But I do think she has an obvious and clearly stated bias on copyright issues, and thus is not an impartial judge in such cases.

Given the controversy and the nature of the open forum we provide, some folks took to the comments to criticize Judge Howell -- and some took it to ridiculous lengths, by making suggestions about Judge Howell that were way beyond inappropriate. This happens sometimes in comments sections on the internet. People often make extreme and ridiculous comments out of frustration. We see it all the time, and whether we agree with the comment or not (and usually, we don't), most people chalk it up to what it is: someone venting frustration by making an extreme comment. No one takes such comments seriously.

Well, there are always some exceptions, of course. And in this case, someone did apparently take one of those ridiculous comments seriously. The one that said:

Is it time to start murdering the corrupt yet?

This is, undoubtedly, a stupid comment. Because the answer is obvious to pretty much anyone: NO. It is not appropriate to murder the corrupt, no matter how corrupt they might be. There are all sorts of ways to attack corruption, but murder is not a way that should ever be on the list, let alone anywhere near the list of possibilities. Of course, as is the nature of online communities, even people who disagree with Judge Howell seemed to think this comment was a bit over the top -- even though it doesn't advocate anything specifically (it just asks a question) and doesn't name anyone in particular.

Again, most people would see such a comment, recognize that it was someone venting frustration, just as others have vented frustration in the past in inappropriate and extreme ways, that never lead to any action.

However, a few days later, the US Marshals Service contacted us, saying they were investigating this particular comment, and asked us to remove it. I actually thought this was odd, because the method for removing such a comment would be to delete it, which would delete with it any information associated with that comment -- and nowhere in the request was there any mention of us being told to retain the data. However, our general viewpoint is that we don't remove comments, even offensive ones, other than comments that we deem to be spam. We certainly deem this comment to be offensive, stupid and counterproductive, but we saw no reason to remove it. Indeed, it spurred a long thread of discussion.

It's likely that someone else in the comment thread (and it's not difficult to guess who from the thread itself) reported the comment to the Marshals Service, believing that it's a fun thing to do to cause trouble for us. The truth is, this individual is almost certainly wasting the valuable and important time of the Marshals Service, who have significant and important work to do, but instead are "investigating" a stupid comment written in frustration on a blog.

We are not removing the comment, and we've explained this to the US Marshals Service, who noted they understood our reasons. The Marshals Service indicated that its first course of action in such situations is to seek the removal of such content -- which strikes us as a little odd. In this case in particular, the comment did not advocate anything. It certainly didn't mention or name a judge. It did not even suggest doing anything. It asked a question. A stupid question -- we agree -- but still, it was just asking a question. The US Marshals Service has every right to investigate threats and to do what it needs to do. Certainly judges have been targeted by crazy people at times, and I appreciate the work that the Marshals Service does in protecting judges. But I am still troubled that the US Marshals Service would contact sites in such a manner, certainly implying that the US government and the Justice Department might somehow take action if you did not remove the comments. In this case, the Marshals Service has assured us that no action will be taken against us for leaving the comment up, and they even recognized (and apparently expected) that we would write about this whole thing.

But, for everyone in our comments: let's try to keep a little perspective. One idiot making a stupid comment does not amount to a credible threat. We keep our comments open so we can enjoy the benefits of a wide range of opinions, insights and experiences. And while sometimes the comments descend into petty name calling, much of the time, they're awesome. Making idiotic comments about murder is completely counterproductive, as is reporting such obviously non-specific comments to the US government. Let's keep a little perspective here and focus on debating the issues.