One of the reasons the copyright lobby has been able to get so far with Net-hostile legislation like SOPA/PIPA and treaties like ACTA and TPP is that the companies affected adversely -- both big Internet players and smaller startups -- have failed to make their voice heard effectively. That's finally starting to change, as Google ramps up its lobbying efforts, and Net entrepreneurs start to get organised.

But in Europe, things still have a long way to go in terms of providing a digital perspective on legislation and treaties that can counterbalance the powerful lobbying machine of the old media industry there. That's what makes the following story about a revolt by French startups against a proposed tax rise, reported here by David Meyer on GigaOM, rather remarkable:

Arguing that there would be little point in being an entrepreneur in France anymore -- particularly with the UK offering a much better deal just across the Channel -- the startups organized themselves into a largely online movement called 'Les Pigeons', or 'the suckers'.

They were set for a street protest this weekend, but yesterday they met with finance minister Pierre Moscovici…and won.

Now, admittedly this was a fight over money, rather than policy or anything more noble, but the point remains that for the first time, French entrepreneurs came together to make the government change its mind, and succeeded. If nothing else, that creates a precedent for them to do the same in the future when they might wish to persuade ministers not to bring in particularly harmful legislation, or support damaging treaties. As Meyer comments:

It's quite refreshing to see European startups flexing their political muscle. Now if those in Germany can just do the same in their own fights against counterproductive freelancer taxes and crazy ancillary copyright proposals, we can call this a trend.

Here's hoping.

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As digital media has erased scarcity from the normal artist-to-fan equation, artists who understand this fact are coming up with new ways to package the "infinite," bringing scarcity back into the equation and opening new levels of connection with their fans.

Kid Koala's latest album, "12 Bit Blues," is both selling scarcity (in the form of limited editions) and giving the fans a way to connect with the music on a slower, more personal level. Limited editions, both on CD and vinyl (the 2 x LP version is already sold out), come packed with a DIY project that allows the purchaser to construct a miniature cardboard turntable that plays an included flexidisc with three bonus tracks. (H/T to Nate Hoffelder for sending this my way.)

Every "play" of this disc is certain to be a unique experience as it must be rotated by hand. The "slow music" experience is indicative of Kid Koala's production efforts. Rather than generate the entirety through software, he built "12 Bit Blues" from the ground up, for a more "raw" and "immediate" album.

Eric [Kid Koala] began working out what he could do with it – a kind of reverse engineering back to his childhood self. A little mucking around and it came to him – the blues was always about stripping music back to its bare essentials, which is exactly what the SP1200 does, too. Over three days he cut up and reassembled the bed tracks for 12 Bit Blues. No sequencing software was used. Using the pads on the machine and a multitrack, Eric played each part of the tracks in real time, before finally returning and adding cuts over the top.

Kid Koala's offering does several things exactly right. First, it creates a scarce product that goes beyond an LP pressing. Second, it creates a unique experience for each fan who purchases it. Third, and perhaps most importantly, the concept and execution of Koala's vision for "12 Bit Blues," with its hand-built, hand-operated turntable, is bound to generate a ton of "word of mouth" advertising. This advertising almost always creates new fans, as the connection relies on genuine enthusiasm traveling from person-to-person. 

Gold is a unique element that has been almost universally treasured. It's rare, but it isn't the hardest element to find. Gold has a remarkable property of not reacting with its environment, so it doesn't tarnish or burn. There aren't that many practical uses for it, compared to other metals, though, but here are a few links on some gold-related items.

• Microbial alchemy doesn't transmute lead into gold, but it does metabolize gold chloride (aqueous) into solid 24-karat gold. Cupriavidus metallidurans can tolerate highly toxic concentrations of gold chloride and reduce the metal so that it precipitates. [url]
• Gold medalists at the last Olympics didn't receive solid gold for their efforts but mostly silver with a gold coating. So in all those pictures of the athletes biting on their gold medals, that bite test for metal purity had a pretty good chance of failing. [url]
• The Last Pictures project is planning to preserve a visual record of human civilization on a silicon disc encased in gold -- for billions of years. This archival disc will be launched with the EchoStar XVI satellite and should remain in orbit for longer than our planet, as we know it, will exist. [url]

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

Last year, we wrote about how Twitter won a ridiculous lawsuit against a patent lawyer, Dinesh Agarwal, who claimed to have patented "A method system for creating an interactive virtual community of famous people," also known as US Patent 6,408,309. The jury pointed out that Twitter didn't actually appear to infringe at all, which is all too common in these kinds of cases. At the very least, it was nice to see Twitter willing to fight this out. The way patent trolling works is that the trolls usually make it much cheaper to just pay them to go away than to actually fight it out in court. Twitter's Ben Lee is now writing about how ridiculous this is, and suggesting that it's time to fix this aspect of the system:

According to the American Intellectual Property Law Association (AIPLA)’s 2011 survey, an average patent lawsuit costs between $900,000 to $6,000,000 to defend. In the last month and a half alone, Twitter has received three new patent troll lawsuits. The law currently does not allow us to recover the millions of dollars in fees we spent to defend ourselves — nor does it compensate us for the time spent by many Twitter employees who worked on the case. The law only allows us to ask for certain types of minor fees, which is why the court was only able to order this particular patent troll to pay us $10,447.85.

Lee is writing more specifically to try to drum up support for the SHIELD Act, which we wrote about earlier this month, which would allow companies to ask for their attorneys' fees to be paid in cases, like this one, where there was no merit to the lawsuit at all. That bill has started to pick up some attention, and while it's doubtful it's going to go anywhere this year, hopefully with the new Congress next year there will be sufficient interest in at least fixing this one small part of the patent system. I've still yet to see any reasonable explanation for why this bill is a problem, since it would only impact completely bogus patent lawsuits.

The Simpsons has had a long run (perhaps overly so) and, despite being Fox's cash cow for the last quarter century, has never been targeted with a lawsuit. It took the show being turned into a theme park ride to do it and even then, it took over four years from the ride's debut before something Simpson's-related became suit-worthy.

And it's not about licensing, trademarks, copyright or any of the usual suspects. It's about the music. The Simpson's theme music that runs nonstop from entrance to exit is the problem. While it would seem obvious that the rights would be cleared on an officially licensed theme ride, the American Federation of Musicians says it isn't.

[T]he union is objecting to a Simpsons roller coaster attraction at Universal Studios Theme Park in Hollywood that has been featuring the recorded music soundtrack from the show. The plaintiff union filed the lawsuit in California federal court, alleging that Universal obtained the recording without providing any notice.

According to the complaint, both Fox and Universal are parties to a 2010 agreement with the musicians guild that "include(s) a broad restriction on new uses" of music recorded for TV shows...

The lawsuit states, "Universal's use of music sound track from The Simpsons at its park does not fall within any of the new use exceptions enumerated in Article 8 of the Agreement and, thus, is not an authorized new use under the Agreement."

As far as statements go, AFM's allegation that Universal's use of the theme music for its ride does not fall within the "defined new uses" is true. It doesn't. Universal's counterclaim, that the use of the soundtrack is "promotional" and therefore, not subject to AFM's royalty demands, could also be considered largely factual. After all, a theme park ride is a giant advertisement for the franchise. But when all the crosstalk dies down, what it really looks like is a royalty grab by AFM, whose contractual language failed to nail down specific rates for use of its music by a theme park attraction.

The filing notes that Fox originally "engaged the professional services of AFM musicians" when recording the theme song. But Universal skipped an important step, at least according to AFM, by putting the theme song to use on the Simpson's ride without notifying the union. Why should AFM been notified? It's tough to say. From the lengthy listing of various permutations that should result in a royalty payment to AFM, it appears the musicians' union feels it should be involved even in situations the contract never directly addresses.

Because Universal, with Fox's permission, used Simpson's theme music to soundtrack an amusement park ride, AFM feels it should get paid (again). But it seems to have no standing based on the quoted contractual wording. Universal's use of the soundtrack doesn't fit into the "PAY UP" bin and, according to AFM, it doesn't fit into the "EXCEPTIONS" bin, either. Unable to pin down exactly why Universal should be paying more royalties, AFM instead recasts this "new" usage as a violation of its members' rights, accusing Univeral of "breach of labor agreement."

Not paying for something no one's asked for (yet) is hardly "breach of contract." Universal's claim that the use is "promotional" puts it back in compliance with the contract, but AFM doesn't want Universal in compliance... or at least not under that heading, which would result in no further royalty payments. Instead AFM has asked for an injunction against Universal to prevent it from further "exploiting" the Simpson's music and is suing both Fox and Universal for "breach of contract" and any owed royalties. And all of this over a development AFM didn't see coming: a theme park ride.

Considering the principals involved in this suit are IP-behemoths Fox and Universal, it's hard to believe that either of the companies deliberately avoided running this plan past AFM simply to avoid paying some royalties. Sure, Universal's music arm has this problem, but this case deals with one of Fox's most successful IPs turning into a theme park attraction with Universal's expertise on that end. Some IP was transferred from Fox to Universal, presumably to cross all t's and dot all i's. This lawsuit, coming as it does more than four years after the ride's debut, feels more like some overactive lawyering/rent-seeking rather than a case of deliberate shafting by Fox and Universal. 

Recently, we highlighted the tremendous difficulty that visually impaired people have encountered when it comes to intellectual property. The White House had initially endorsed, then stalled, an international effort to expand fair use rights to help visually impaired individuals get greater access to written works. We also highlighted how DRM was a threat to the visually impaired. However, it is not just large interests making life difficult for this class of readers. 

Thanks to TechnoMage, we learn that New Hampshire-based mobile app designer Abelardo Gonzalez had created a font that is easier for those with dyslexia to read books and websites, but it ended up facing some legal threats from a competing font designer. First off, we have a little background on the font.

The plight of dyslexic individuals served as inspiration to Abelardo Gonzalez, a New Hampshire-based mobile app designer, who devised a clever font to help dyslexics read digital text easier.

The font, dubbed "OpenDyslexic", employs a trick in which the bottoms of characters are weighted. Curiously some dyslexic individuals visual processing cortexes rotate images that look slender, making characters appear backwards or upside down. By making the bottom look "heavier" the font reportedly reduces this kind of visual "bug" in the brains of people with this disability.

Along with creating this font, Abelardo had released an app for iPhone and Android devices that allows those device owners to override the default font wherever it is used and replace it with this font. Other app developers had also started using it as an alternative font. Even e-reader makers Sony and Amazon have taken interest. Unfortunately, this kind of greater access is not something to celebrate if you are trying to market a more expensive font to the same demographic.

He relates that he was contacted by font designer Christian Boer (who sells an alternative font called dyslexie for $69 USD per "single-use" license) to "cease and desist" early during his process.

At the time he was charging a nominal fee and did reuse some bitstream-vera-sans characters as the basis for his font. Bitstream-vera-sans' license explicitly allows derivative fonts to be sold (free of fee to the bitstream font creators), however, Mr. Boer was claiming that the offense occurred due to the fact that Mr. Gonzalez had changed the (free) font in a similar way as he had. By all appearances the real issue was that Mr. Gonzalez was offering it for far cheaper than Mr. Boer.

In response to this threat, Abelardo released the font for free made some modifications to the font, thus allowing greater access to the public, Abelardo had already released the font for free and was not planning on backing down, which was probably the exact opposite of the reaction Boer wanted. The fact that Boer felt threatened enough by a cheaper free font shows just how weak his position is. Abelardo even admits that Boer's font is better and has become even better as a result of having more competition in the market. So why does Boer feel the need to threaten the competition? Shouldn't the fact that he can provide a better alternative be enough incentive for people to seek him out? Or perhaps, if people and companies are turning to cheaper or free alternatives, maybe it's a sign that he might be charging too much?

As someone with two dyslexic brothers, I am glad that there are people out there trying to make the world of text easier on them. Had my mother had access to a font like Abelardo's or Boer's, she probably would have had an easier time teaching them throughout school. Perhaps if the school systems that had abandoned my brothers had access to one of these fonts, they probably would have had an easier time teaching them and many others.

As we move into a more electronic world in which the ability to switch out fonts and make other changes to support the visually impaired becomes more accessible, we can provide a better solution to those who need the additional help. Unfortunately, if more people like Boer and legacy publishers get their way, such tools will be locked away behind expensive paywalls, decreasing the value and accessibility to those who truly need them.

As home theater systems advance in quality, many people are wondering why anyone would bother heading to the theater at all. Theater owners are aware of this issue and many have been improving the quality of the "theater experience" by offering larger, comfier seats and moving beyond snack bar staples into craft beers and brick oven pizzas.

There's still the undeniable draw of being the "first" to see a new film, showing up at a midnight showing or on opening day. There's also somewhat of a communal experience that can't be easily duplicated at home, unless your living room has seating for a couple hundred friends.

Rian Johnson, the director of the recently released "Looper," is offering a rather unusual incentive for repeat theatrical viewing: a downloadable commentary track to enjoy along with the 2nd-X viewing(s) of his latest film.

I recorded a commentary track to be downloaded, put on an ipod and listened to in the theater as you’re watching Looper. This is an odd thing I tried with Bloom, and have gotten a few requests for it again, so here it is. It is totally different from the commentary track that will be on the Blu/DVD, a bit more technical and detailed. Needless to say, this is NOT to be listened to on a first viewing, or before you’ve seen the film. Also, please work it so that a glowing screening is never out of your pocket during the movie.

This is a great way to connect with fans and get them to shell out for first run tickets multiple times. Johnson is a cinema fanatic who's managed to turn his love of the silver screen into a career making movies that appeal to other movie buffs. This move makes perfect sense. After a viewing or two of "Looper," any true cinema freak would love to run through another viewing while having every aspect of the film broken down by someone as deeply in love with the art form as he or she is.

Plus, as Johnson mentioned, this isn't simply version 0.9 of the DVD commentary, but a more technical and detailed breakdown of the film. "Totally different." He's obviously got more knowledge, information and energy than he knows what to do with, considering he's done this before. This offering will put the director and fan together for a film-length geekout. This connection puts them back into the theater (selling scarcity) and primes them for the eventual DVD/Blu-ray release (another scarcity). Throwing thoughtful freebies to your fans tends to make them happier to open their wallets later.

[Quick postscript: It should be noted that Johnson's "in-theater" commentary track isn't without precedent. As Mike pointed out to me while I was putting this post together, film buff/maverick/motormouth Kevin Smith attempted to do this back in 2006, during the theatrical run of "Clerks 2." Unfortunately, theater owners felt this would be a bad thing and threatened to pull the film if the promotion continued:

Turns out that exhibitors (folks that own the theaters) weren't too keen on the idea of people showing up to the movies with iPods. They felt it was going to be too distracting (or something) for other people in the theater who weren't wearing iPods for the show - like the commentary-listeners would be laughing when nobody else was laughing, and that'd create some kind of problem. Based on that, they suggested that if Weinstein Co. went through with the commentary track promotion, they'd start pulling the flick from screens. So the commentary track promotion has been tabled until we're at a very low theater count.

No rumbling from theater owners on Johnson's actions has been detected yet, but one wonders why exhibitors would be so willing to sacrifice repeat viewings in order to protect single viewings from possible offense. If this had been promoted rather than buried, who knows how many films would have experienced a boost in box office sales thanks to a multi-viewing incentive.]

Colleen Chien and Stefani Shanberg have a post over at TechCrunch that provides ten suggestions for how startups can and should deal with patent threats from trolls these days, which is unfortunately depressing. It's not because the ideas aren't good -- they're exactly what most startups probably should know. But the last item really bugs me:

10. Advice For All Times: Don’t Be An Easy Target

Trolls pick their targets by studying websites, looking at product specs, and trying to make out a case that you need their patent. Don’t make it easy for them. Require registration before granting access to whitepapers, detailed documents, or video tutorials that delve into the behind-the-scenes details. Think twice about being on customer lists or advertising the ins and outs of your business, the products you use, etc., unless there’s a good business reason for doing so. Often it is the companies that advertise most successfully that are the most frequent targets of troll demands — troll threats should not drive business decisions, but don’t be surprised when your successful marketing campaign is followed by an onslaught of troll letters.

This isn't a surprise. Of course, we've highlighted how companies often get hit up by patent trolls right after they make news. But what this is really saying is "don't be open." And while that may be a good strategy for a company seeking to avoid patent lawsuits, it's a horrible strategy for increasing innovation. Research into innovation and economic growth have shown time and time again that what helps create that kind of innovation is more openness and more sharing. It's the information sharing that made Silicon Valley into Silicon Valley.

What's stunning -- and depressing -- is that the patent system is supposed to be the thing that encourages innovation. And yet, because it's become totally dysfunctional, one of the recommendations for how to avoid running afoul of it now... is to do the exact thing that holds back and limits innovation. What a shame.

Another day, another story of stupid protectionist regulations getting in the way of anyone trying to be innovative. This time, it's about Tesla, the well known electric car company based out here in California. Apparently, various states have set up ridiculous protectionist laws that say it's illegal for automakers to sell cars directly to consumers in retail settings. The various car dealer lobbyists who pushed to get those laws passed are now complaining that Tesla and its high end "stores" violate that law -- despite the fact that you can't actually buy a Tesla car in a Tesla store. In order to stay on the correct side of these idiotic laws, you can go into the stores and learn all about the Tesla... but if you want to buy, you have to go online and put money down via Tesla's website. The dealers are arguing that "anything that gets you to the executed contract is part of the sale," but that's ridiculous. A magazine ad. A TV commercial. Plenty of other things can "get you to the executed contract" and are perfectly reasonable.

What's really going on here is that states have passed these protectionist laws to help out independent dealerships who worried that car companies might decide to cut out one of the more annoying middlemen in the world and go direct to consumers. So they passed these laws which serve no purpose, whatsoever, other than to encourage greater annoyance and overhead for car buyers. Just the fact that you can't actually buy a Tesla at a store should highlight how silly this -- but the fact that these dealers are still complaining and arguing that the company violates the law shows just how petty they can be.

It feels like it should be a strange dichotomy, my love for animals coupled with my absolute disdain for PETA, but it isn't. It essentially boils down to this: PETA has a good premise, anti-cruelty to animals, but the organization seems to like to ensure it won't be relevant by doubling down on the stupid and crazy. One needs only to look toward their recent foray into the .XXX domain world should one require a head-shaking exercise. They've also had occasion in the past to delve into the world of video games, such as when they created a parody of Cooking Mama, focused on having "Mama" kill animals for food.

But now, in an apparent attempt to win both the "Petty Award" and the first annual "We Don't Know The Video Games We're Protesting Award", PETA is now coming out against Pokemon, claiming that the game franchise teaches children to see real world animals as objects that should fight one another for our amusement.
In other words, PETA has decided that Pokemon's upcoming release of two new games is just grand enough to stand upon.

Much like animals in the real world, Pokémon are treated as unfeeling objects and used for such things as human entertainment and as subjects in experiments. The way that Pokémon are stuffed into pokéballs is similar to how circuses chain elephants inside railroad cars and let them out only to perform confusing and often painful tricks that were taught using sharp steel-tipped bullhooks and electric shock prods …if PETA existed in Unova, our motto would be: Pokémon are not ours to use or abuse. They exist for their own reasons. We believe that this is the message that should be sent to children.

It would be very easy to simply write this off as an attempt by PETA to put themselves in the headlines on the backs of a popular game franchise's latest release. Indeed, that is exactly what they're doing here, though they may want to recognize that there is such a thing as bad attention. However, it seems impossible not to call PETA out on the blatant stupidity of this move. First of all, at best, nobody cares. Anyone with half a brain knows that there is zero reason to correlate cartoonish animal universes like Pokemon to real-world cruelty. PETA might as well come out against the Teenage Mutant Ninja Turtles for fear that kids will go down to their local ponds, see a snapping turtle, and karate kick its face off for fear that the animal is going to steal their double-crust pizza. As a child of the 80's I can assure you that it only takes two or three times roundhousing helpless turtles to realize that they really aren't so bad and it's in fact you, said karate kicker, who is the jackass.

Second, it's brutally clear that nobody at PETA has bothered to actually play the Pokemon games. As Forbes notes, if they had, they would realize that the core theme of the universe is largely in line with their own views.

PETA seems to have missed the single biggest theme of the Pokémon series: That Pokémon should be treated humanely and live as our equals. The games are loaded with an endless stream of characters who go on and on about true friendship between man and Pokémon. It’s so saccharine and so completely the opposite of what PETA suggests that it boggles the mind.

So here's to you, PETA. You've managed to waste everybody's time while simultaneously proving you don't know what the hell you're talking about. Again. For ever and ever. Amen.

It must be fall again. The temperature is dipping low at night. The leaves are changing color and attracting gawking, mouthy tourists (Northeastern US only). Football (the American version) is all over the tube almost all week long. (The non-American version has no season as far as I can tell -- it simply is, existing without beginning or end.) The kids have gone back to school. The lawnmower has been garaged. And Who guitarist Pete Townshend is back to his regularly scheduled programming, (re)asking the age-old rhetorical question: "Why isn't iTunes also the recording industry?"

To be sure, it's a loaded (and damn near incomprehensible) question. You may remember last year (November 2nd, 2011, to be exact) when Townshend broached this very same subject during his long, rambling "John Peel Lecture." At that point, Mr. Townshend called iTunes a "digital vampire" and suggested that Apple should do such incredible things as hire "20 A&R people from the dying record business," provide free computers and music software to 500 artists per year (as recommended by the previously hired A&R reps) and license "best selling artists" to other organizations like "record companies" [?], "bookshops," etc. Despite the solid round of mockery that greeted his inaugural proclamation, Townshend apparently feels a yearly appearance is needed, possibly in the interest of the "greater good."

Mistaking iTunes/Apple for a "publisher" is Townshend's most egregious and most repeatable mistake. iTunes doesn't publish. iTunes is a storefront. Yet, despite the fact that iTunes is simply the point of purchase, Townshend still believes that Apple/iTunes should behave more like a record label and less like the best digital Point-of-Sale most labels have.

Townshend said that his issues with the company stem from the fact that "they don't put any of their profit back into music."

No, Pete, "they" sure don't. But neither did a multitude of other music retailers over the years. However, iTunes does something that Tower Records and Musicland never did: put about 70 cents of every dollar back in the artists' pockets.

It's such an easy target, though. Easy enough that one, if so inclined, could take an annual roundhouse swing at its oversized chin. First of all, there's the skynormous market cap. ("Apple Now Officially Bigger Than Microsoft, The Beatles & Jesus Combined!") The headlines make it seem as though Apple is using $20 bills for memo pads and $100 bills for shims to even out that one slightly off leg on the desk. (No matter how finely appointed the desk, there's always one leg that just won't keep up with the rest.)

Secondly, there's the popular argument that without all this content created by others, iTunes would cease to exist. The same could be said about every successful music retail chain but, oh lord, no one will ever make that claim because that was The Golden Age of the Recording Industry. Only now, when the barriers are gone and the playing field is level and "evil" entities are willing to throw 70% of every sale right back, is it suddenly "exploitation."

But still... huge market cap... dying recording industry... other stuff... Townshend's conclusion from this mess of nostalgia and conflation is: Apple could be doing more. The level playing field and massively popular (and powerful) distribution point just make it worse:

[A]rtists have to fend for themselves a lot more these days, he said, noting that the old record companies "paid advances they nurtured young bands, and they let you make a couple of bad albums in the hopes that you might make a good one." Townshend argued that while the internet has allowed for greater distribution, and there's a lot more talent out there, but "people have to do it on their own, completely, without any help."

Pete. The labels are still around. They're not nearly as dead as the very vivid and very public pantomime performances aimed at legislators would seem to indicate. They stopped this "nurturing" well before iTunes sprung up. They may have been more willing to throw good money after bad, but they never just "let" anyone make a couple of bad albums. They may have tolerated a couple of bad albums from certain top tier artists but they were never happy and they certainly weren't interested in "nurturing." If they spent more time with the underachievers, it's because they were hoping to prevent the band's shite lightning from striking twice.

But even if the labels were as benevolent and caring as you picture them, Pete, and even if iTunes was the lousiest deal ever to hit recording artists, the fact remains that trying to hold a storefront, a freaking point-of-sale, responsible for the future of recording artists is asinine. It's even more ridiculous to claim that not only should iTunes save recording artists, but that it should save them by doing everything the old way.

Of course, this isn't just Townshend's annual delusion. Various spokespersons for various flailing industries have suggested that Google save journalism, that the government save writers and that ISPs save pretty much all of the above, as well as the movie and recording industries. Despite being provided with a number of technological advancements and new markets, the legacy players still cling to the belief that the tech world owes them a living. These claims will continue to surface periodically, held out like talismans in a futile attempt to ward off the future by clinging to the past.

We've pointed out many times that copyright trolls never seem to have any interest, whatsoever, in having a case actually go to trial. The whole point of copyright trolling is just to use the power of the judicial system to scare people into settling and just paying. A number of judges have called them out on this in tossing out the lawsuits and preventing the trolls from going through with discovery to learn the identify of account holders based on IP addresses. However, a district court judge in Pennsylvania has decided to call a troll's bluff and more or less are forcing them to actually go through with a trial, something that so far every copyright troll has avoided. Judge Michael Baylson recounts the basic trolling strategy, noting that the plaintiff in this case, Malibu Media, admits that its entire goal is to get the contact info of people for the purpose of sending them demand letters. They even admit that if they don't hear back, they drop the case.

If the John Doe defendant refuses to settle, or Plaintiff has been unable to serve the complaint within the 120 days required under Rule 4(m) of the Federal Rules of Civil Procedure, subject to any extension granted by the court, with whatever information is provided by the ISP, Plaintiff dismisses the complaint against that defendant without prejudice to Plaintiff’s ability to commence a subsequent action against that defendant. In this fashion, Plaintiff has initiated hundreds of lawsuits in various district courts throughout the country, but has not yet proceeded to trial in any case.

The judge talks about a small group of (anonymous) defendants who have fought the case. He goes through a similar analysis as other judges about whether or not the joinder of so many defendants makes sense, and whether or not the process of never following through to trial makes sense. Like many other judges, he's concerned:

...the joinder of multiple John Doe defendants could very well lead to litigation abuses. The purpose of the joinder rules is to promote efficiency, not to use federal district courts as small claims collection agencies, by putting economic pressure on individuals who do not have substantive liability.

However, rather than just dismantling the cases and blocking discovery, Judge Baylson has decided to hold a "bellwether" trial involving just the five users who challenged the subpoena, to test the claims of the troll, Malibu Media -- and then notes that if it sees Malibu Media continue to act like other trolls, "picking off" individuals for confidential settlements, "the Court may draw an inference that Plaintiff is not serious about proving its claims, or is unable to do so."

The bellwether trial, then, will test Malibu's claims in court and see how well they do in front of a judge... for the first time for this type of copyright troll:

...the Court assumes that Plaintiff will welcome this opportunity to prove its claims...

That said, the court notes that it may seem unfair to "punish" the people who fought back and put all the others on hold, but notes that, given the circumstances, this makes the most sense:

The Court also acknowledges that the five John Does who will be defendants in the Bellwether trial are, in a sense, being penalized for filing motions challenging the third-party subpoenas presently at issue, given that all proceedings against the remaining John Does will be stayed until further order of the Court. In the Court’s view, however, under the present circumstances, this is the fairest and most efficient means of resolving these actions. These defendants have objected to Plaintiff’s strategy and two of them have filed declarations asserting that Plaintiff’s claims are false. A Bellwether trial is the best means of testing the viability of Plaintiff’s claims, as well as Plaintiff’s sincerity in pursuing them.

And, of course, he notes that should Malibu's case fail, they'll have some remedies as well:

In the event Plaintiff’s allegations cannot be sustained, the five John Does will have adequate remedies to recover most, if not all, of these litigation expenses and/or damages from Plaintiff, such as a Rule 54 motion for costs, a lawsuit for abuse of civil process, a Rule 11 motion for sanctions, and a motion to recover excessive costs under 28 USC § 1927. More fundamentally, as mentioned above, because this is a copyright case, a successful defense will likely result in an award of attorney’s fees to any John Doe who prevails...

In other words, these defendants really will need to prove that Malibu's evidence is weak, but if they succeed, the copyright trolling strategy could be in trouble. This case suddenly becomes a key one in the whole copyright trolling area -- and as such, I imagine that we'll see some interesting folks take an interest in the case. We'll certainly be watching it closely.

For all the talk of new music platforms not paying artists enough, we keep hearing counter stories. The latest is that Pandora has revealed that two artists -- Drake and Lil' Wayne -- will make somewhere close to $3 million in royalty payments from Pandora this year. Lots of other artists make many thousands of dollars as well:

Have you heard of Donnie McClurkin, French Montana or Grupo Bryndis? If you haven't you're not alone. They are artists whose sales ranks on Amazon are 4,752, 17,000 and 183,187, respectively. These are all working artists who live well outside the mainstream - no steady rotation on broadcast radio, no high profile opening slots on major tours, no front page placement in online retail. What they also have in common is a steady income from Pandora. In the next twelve months Pandora is on track to pay performance fees of $100,228, $138,567 and $114,192, respectively, for the music we play to their large and fast-growing audiences on Pandora.

And that's just the tip of the iceberg. For over two thousand artists Pandora will pay over $10,000 dollars each over the next 12 months (including one of my favorites, the late jazz pianist Oscar Peterson), and for more than 800 we'll pay over $50,000, more than the income of the average American household. For top earners like Coldplay, Adele, Wiz Khalifa, Jason Aldean and others Pandora is already paying over $1 million each. Drake and Lill Wayne are fast approaching a $3 million annual rate each.

Of course, while all of this is happening, Pandora is not yet profitable, and may never be profitable -- as it is required, under current webcasting rates, to pay about 50% of its revenue out as royalties (while terrestrial radio and satellite radio get to pay much, much less). As Tim Westergren has pointed out, because of the crazy rates, plenty of other webcasting operations have just left the business entirely -- meaning that there just aren't that many players in this space, because it just isn't profitable for the companies, even as they're developing important new revenue streams for artists.

I'll have more on this later, but it often seems that legacy players really have no concept of "the golden goose." They assume that any tech company, who is moderately successful in getting users, simply should be bled dry, paying out just about everything to artists, with nothing left for the companies themselves. They think that the music is the entire value, and the service provided is not very important. And yet, without that service, none of that money would come in at all. At some point, the legacy guys are going to have to realize that they're better off having a healthy ecosystem of services, rather than squeezing the absolute highest rates out of these companies, in a way where they can't survive.

Publishers are still hanging on to DRM despite example after example of how it does little more than annoy or harm paying customers. Why would you purposely annoy those throwing money your direction? To fight off a few pirates? Is it worth it? Most DRM is cracked and discarded within hours of a game's debut and yet, companies hold onto the crippling code, assuming that a small dent in piracy is worth the fallout from hundreds of pissed off customers venting their rage all over the internet.

Some of the most pernicious forms of DRM take the form of "online services" which require a unique login and account before anything can be done gamewise. Under the auspices of "convenience," software companies have managed to lock down access to purchased games, reserving the right to do whatever they want with the software, thanks to broadly written Terms of Service and, for console manufacturers, binding arbitration "agreements."

Over at Medium Difficulty, another gamer is dealing with DRM, as implemented by Xbox Live.

The particular set up for us to play three player horde mode, with system link, in the same house led to our first transgressive living room. Two TVs was wrong, but it felt so right. Gears of War 3 came out and we continued to enjoy our set up, especially since friends could also join over Xbox Live. For our non-nuclear unit, it was the golden age of multiplayer. Then the Mass Effect demo dropped with included MP. While I know we might be in the minority, we found it, and still do, a pretty enjoyable experience. But we hit a hiccup: we couldn’t split screen the multiplayer. There is no couch multiplayer for Mass Effect 3.

So we did what any reasonable modern family with disposable income would do: we bought a second Xbox. And honestly? There’s no going back. Couch co-op is not a guarantee anymore. Xbox Live has done wonders for online console gaming, but it has made a local co-op a second priority in some instances. There are enough games that do not support local co-op, and even more that do not support both local and online at the same time.

So far, the outlay for Microsoft products, at the very minimum, includes two Xboxes. Then there's the fact that two avid gamers share the same living space, meaning that the outlay for software is much larger than your typical "complaining basement dweller." (The preceding is the sort of dismissive wording often deployed by DRM defenders in an effort to make a very real problem sound like some loser's overwrought drama. No one falls for it anymore, but it still makes frequent appearances in comment threads and forums.)

First, the co-op problem. Not really a DRM issue, but the next one definitely is:

Our second Xbox came with Fable 3, which is yay! but it also introduced us to the problems of owning two Xboxes. DRM is a real pain in the ass... We would go to play our Fable 3 campaign on one machine and be told that we couldn’t use the DLC, even though, you know, the code was in the box sitting on top of the machine. Without that DLC, you cannot load a saved game.

Because DLC (downloadable content -- ranging from small add-ons to standalone games) gets assigned to the Xbox it was purchased on and the player's Gamertag (which makes sense), but is a problem when attempting to make sure your DLC shows up on both consoles. Microsoft's rationale is simple: prevent users from going from Xbox to Xbox with their Gamertag and downloading DLC (and standalone games) onto the drives of non-paying gamers.

But this rationale doesn't do much for households with multiple consoles who most likely aren't going to buy a unique copy of DLC (much less full games) for each Xbox in the house. Since the games can't be played at the same time (with one disc and say, two or more Xboxes), it would make sense (from the consumer's perspective) to be able to transfer the DLC (especially if you can't even load a saved game without it) from console to console.

Also bear in mind that purchasing full games via XBLA (Xbox Live Arcade) ties that game to that particular Xbox if the "wrong" Gamertag is used.

For example: I purchased TellTale’s Walking Dead Episode 1. I enjoyed it a great deal. When episode 2 came out, Meg thought she would be a kind and thoughtful spouse and purchase it for me. This was apparently not the Microsoft-endorsed thing to do. Months later, I still haven’t been able to actually play the second episode. I have to either buy it again, or play it on another system. Which is dumb.

Thinking that these limitations could be worked around by using a Family Account (you know, to make sure all of your family members can access the same DLC/games), the author set one up only to find that Microsoft's definition of "family" is rather bizarre.

We set the account up under Meg, then gave me all the permissions that any adult would want on his game console, and went about our gaming business. That was until one day when I went to purchase something from Live and realized that, from Xbox LIVE’s perspective, I was not an adult at all. I could not add points to my account. This wasn’t a setting in our family account. Nope, only one member of the family can add points to their account. If I want points to buy something, Meg has to give me an allowance. I’m not joking, that is the word in the interface. An allowance.

Nice. A system that treats grownups like children and everyone like thieves and at no time approaches the reality of today's gaming market. Instead, it sets up a series of intricate hoops that must be navigated before DLC can move from machine to machine.

Context: Meg’s Xbox is the new version, so black, and mine is the old white one.

Prerequisite: Have both gamertags saved on a USB stick. This allows you to log in to any Xbox without transferring your gamertag or recovering it from Live.

1. Log in to black Xbox with Meg’s gamertag.
2. Go into Family Settings.
3. SELECT GRANT ALLOWANCE.
4. Instead of using the default payment options, because I don’t want to charge her credit card, I select my credit card from the list of her payment methods.
5. Purchase a number of points.

Info: You can add 500 points or in 1000 point increments.

Let's just break in here for a moment and roll our eyes at the "point" system which handily turns actual money into useless Xbox Fun Buxx. Further eye rolling will ensue after step 6.

6. After the points have been added to Meg’s account, I grant them to my account.

Additional info: You can only grant points in increments of 400. Thanks for the convenience.
Remember: Most DLC on Xbox Live is in neither 500 or 400 point increments. I know what’s happening here, Microsoft.

Fun stuff. This sort of plan always leaves a gamer's "wallet" either short a few hundred points or with no way to bring the account down to 0. Microsoft loves this, just like many companies love gift cards. More often than not, the card is discarded with some spare change on it. Not enough for one person to keep, but thousands of leftover virtual coins soon adds up to real money. It's not completely Machiavellian but it still works out pretty well for the companies issuing the cards.

7. I then sign in to my account on the black Xbox, purchase what I wanted and download it.
Result: Now, the DLC is available on Meg’s Xbox so that she can play it if she wants.

8. Turn off the black Xbox, and then log in to the white Xbox with my account and download/transfer whatever I bought.
Result: I can play the DLC on my Xbox, and Meg can play it on her Xbox.

Please note: She cannot play the DLC on my Xbox.

That's a whole lot of steps for a paying customer to jump through just to make sure someone doesn't run off with some free DLC. If you and your family members are taking turns playing something that requires DLC in order to load a save, it would make more sense (in Microsoft's eyes) to skip buying a console(s) from it and just schedule some time in front of the only Xbox. That scenario is whole lot likelier than hoping its DRM scheme will be obtuse enough to force multiple gamers with multiple consoles under one roof to purchase individual copies for every Xbox. Microsoft may consider that to be the "right" or "moral" choice, but I can guarantee you the consumer doesn't.

Last word to "CPG," the author of this piece:

I shouldn’t have to set up charts to figure out what DLC is on what machine, especially when we are on a family account that actually restricts my ability to purchase DLC.

We’re a modern family, geared towards gaming. We’re publishers’ target market – and if we’re not, we will be soon. They need to start thinking ahead.

 

Transparency is worth having for itself, since governments often tend to behave a little better when they know that someone is watching. But occasionally, requests for data turn up something big and totally unexpected because someone failed to notice quite what the information provided implies.

Here's a great example spotted by the annalist blog, which reports on a parliamentary enquiry about expenditures by the German Federal Ministry of the Interior, responsible for internal security. What was probably thought to be no more than a few dozen pages of boring and thus safe figures turned out to reveal something quite shocking:

The German ministry for home affairs and thus the German police clearly state that they are monitoring Skype, Google Mail, MSN Hotmail, Yahoo Mail and Facebook chat if deemed necessary. Money is spent on trojan viruses and we can be quite certain which company produces the IMSI catchers [used for "man-in-the-middle" attacks on mobile phones] used by German police.

It's been known for a year that the German police forces have been using malware to spy on citizens via their computers, but the latest revelations about surveillance activity go far beyond that. It confirms that even in countries where people are very sensitive about privacy, Internet snooping by the police is routine. It also emphasizes, once more, the importance of encrypting your communication channels where possible, and avoiding those where it isn't.

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