The idea of holding service providers responsible for the actions of their users is pretty absurd. Mostly because a website owner or ISP has very little control over what their users do, and to hold the providers responsible for potentially harmful or illegal actions of users would be akin to holding a hammer manufacturer or hardware store responsible when someone kills someone else with a hammer.

Of course this hasn't stopped people from attempting to drag service providers into legal complaints. For instance, we have the occasions when Twitter is sued for the actions of its users because it is mistakenly thought to be the publisher of the tweets. Or when the entertainment industry wants to hold Google responsible for Android apps that may allow for file sharing. There are many many more stories like these. Luckily, courts and most law makers understand that service providers cannot or should not be held liable for the actions of their users. Most, anyway.

Jeffrey Nonken Has alerted us to a recent law passed in Malaysia that would hold everyone from the website to the ISP to the coffee house with open wifi to the owner of a borrowed computer responsible for the online postings of a single person.

Section 114A of the bill seeks “to provide for the presumption of fact in publication in order to facilitate the identification and proving of the identity of an anonymous person involved in publication through the internet.” In other words, the section makes it easier for law enforcement authorities to trace the person who has uploaded or published material posted online.

According to the amended law, however, the originators of the content are those who own, administer, and/or edit websites, blogs, and online forums. Also included in the amendment are persons who offer webhosting services or internet access. And lastly, the owner of the computer or mobile device used to publish content online is also covered under section 114A.

This language had the internet-using public in Malaysia in an uproar, and they protested this law in much the same fashion as the protests over SOPA and ACTA. When these protests were finally heard, the Prime minister had the law reviewed, but to no avail.

When the petition was ignored by the government, netizens and media groups organized an online blackout on August 14, which succeeded in mobilizing thousands of internet users. The global attention which the action generated was likely what convinced the Prime Minister to agree to have the cabinet review the controversial amendments. Although this announcement was initially welcomed by opponents of the amendments, the Cabinet ultimately upheld the amended law.

As we know, these kinds of laws have a strong potential for abuse -- one of the primary reasons US citizens opposed SOPA and CISPA. Giving a government the ability to prosecute a whole string of people only tenuously connected to a potential crime is a recipe for disaster. It will open up the ability for the government to stifle free speech even if it doesn't have to lift a finger. What will happen is that sites will now over-filter comments to avoid liability. Businesses that offered free wifi will potentially cut the service in an effort to avoid prosecution. This law will cause damage to the ability of Malaysian citizens to communicate freely over the internet.

This move to apply such harsh secondary liability is nothing surprising from a nation that supports internet filters which it promises will not be used to punish political dissent. Or the country whose courts, as part of a sentence for defamation, ordered a man to post his apology 100 times on Twitter. With the record that Malaysia has on internet freedom, it is no surprise that the outcome was what it was. However, we hope that the citizens of Malaysia continue their protests, and that those who support and passed this law will repeal it. 

Unless you have been living under a rock the past few days, you're likely aware of the violent protests in Egypt and Libya on American missions which have resulted in several deaths, including that of US Ambassador J. Christopher Stevens. The apparent flashpoint for these protests was a movie trailer on YouTube for what is by all accounts a horribly offensive and insensitve film about Islam and the Prophet Mohammed. We've seen similar stories in the past over website content, but this incident takes things to a whole new level.

Today we learned that YouTube has taken the step of restricting access to the video in question in both Egypt and Libya. When asked about it, YouTube responded with the following statement.

"We work hard to create a community everyone can enjoy and which also enables people to express different opinions," YouTube said by e-mail. "This can be a challenge because what's OK in one country can be offensive elsewhere.

This video -- which is widely available on the Web -- is clearly within our guidelines and so will stay on YouTube. However, given the very difficult situation in Libya and Egypt we have temporarily restricted access in both countries."

While I understand why YouTube is doing this, I think it's misguided for two reasons. First, stupid and hateful as the video in question reportedly is, blocking access (potentially seen as taking it down in Egypt and Libya) can be interpreted to mean that the fault for what's happening is in part with the video itself. It isn't. The guilt for this violence is not in some stupid video. It isn't even in the massive protests in the Muslim world against the video (though I'd probably suggest they learn about the Streisand Effect). The guilt for the violence and death belongs on the thugs and murderers who committed it. End of story. This is especially true when the company has acknowledged itself that the video does not violate YouTube's terms of service.

The EFF agrees.

It is easy to understand why YouTube might feel compelled to act in response to the rioting over this video, especially after three U.S. embassy employees were killed in the Libyan city of Benghazi, but the blame for the violence lies not with the video, but with the perpetrators. Once YouTube has made the decision to pro-actively censor its content, they start down a slippery slope that ends in YouTube Knows Best moral policing of every video on their site. It is disappointing to see YouTube turn its back on policies that have allowed it to become a such a strong platform for freedom of expression. We hope that this new-found enthusiasm for pro-active censorship is a temporary aberration rather than a sign of things to come.

The second reason is that YouTube's move is almost certainly equal parts too late and ineffectual. As the company's statement itself noted, this video is and already was all over the internet. Censoring the video now is a bit like covering your ears and eyes as your house burns around you. The problem of religious intolerance and violent reactions to it is going to exist whether you acknowledge it's there or not. Nobody is served by trying to pretend the hateful attitudes in the video don't exist. And it isn't like the protests have ceased now that YouTube has restricted access in those countries. The cat is already out of the bag. All you've done now is open the door to blocking videos based on people deciding to be offended with little to no effect on the violence at hand. So what was the point?

I'll be clear again: every description of the video in question suggests that it is cartoonishly crafted and inflammatory bigotry. But it doesn't violate YouTube's TOS, it is speech, and taking it down was a poor decision made in fear. That isn't the way I expect a company like YouTube to behave.

Just like any other business-people, farmers face the global economy, armed with technological advances and innovative strategies to target customers. If farmers don't invest in new tools and learning skills like genetics and marketing, they risk falling behind their competition. Robots are already a pretty significant part of modern farming nowadays, and here are just a few interesting links on robots doing our agricultural bidding.

• Robots are good at tasks that are dull, dirty or dangerous -- so they can be useful for all kinds of farming. Robots are helping dairy farmers to milk cows, and robots can plant and harvest fields -- but human farmers won't be completely replaced just yet. [url]
• Flying, lightweight agricultural robots could help monitor crops and spray herbicides more intelligently. Zapping bugs from a remote-controlled quadcopter sounds like it could be a better game than Farmville. [url]
• Japan's Ministry of Agriculture is experimenting with a robot farm project in a 600 acre that was devastated by a tsunami. Over 59,000 acres farmland were damaged by the earthquake, flooding and nuclear fallout from the Fukushima Daiichi nuclear plant, but robots could help clean up and revive agriculture in northeast Japan. [url]

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

Earlier this week, I complained that the Department of Justice seemed to be stonewalling a Freedom of Information Act request I’d filed seeking copies of mandatory semi-annual reports to Congress on the National Security Agency’s compliance with the procedures and civil liberties safeguards of the FISA Amendments Act--which the House voted yesterday to reauthorize for another five years. After sitting on the request for two months (the statutory deadline is 20 business days), DOJ had finally replied with a letter claiming they could "neither confirm or deny the existence" of reports that were required by federal law. I thought this was a little ridiculous. Fortunately, there were officials at the Justice Department who thought so too.

Having appealed the denial of my request, I got an impressively prompt reply on Tuesday evening from the director of the Office of Information Policy at DOJ, assuring me that she recognized the agency's initial response had been "incorrect," and that a new one would be forthcoming immediately. By Wednesday morning, their stance had changed entirely: They had found the reports I sought, and were forwarding them to the Office of the Director of National Intelligence (ODNI) for review to determine what would need to be redacted before release--with a request that ODNI seek to expedite its analysis to compensate for their own delay.

Now, to be sure, I'd rather have had this response a month ago, and the documents before the House vote, but at this point DOJ appears to be doing exactly what they're supposed to and making a good faith effort to facilitate the redaction and release of these important assessments. So it seemed appropriate to follow up on my initial blog post to acknowledge that--and in particular Office of Information Policy director Melanie Pustay, who straightforwardly acknowledged the error and acted quickly to correct it. We'll see soon enough whether a similar spirit of transparency reigns at ODNI.

Cross-posted from Cato-at-Liberty.

We've been writing about the patent troll Eolas for about a decade at this point. It's a trolling operation connected to the University of California, and used to take some ridiculously broad patents and try to shake down companies who actually innovated and did incredibly obvious things on the internet. Eolas' various lawsuits had gone back and forth over the years, and finally, earlier this year, a jury in East Texas (surprisingly) invalidated some of the key patents.

This summer, the judge in the case agreed that the key patents were invalid. Eolas had ridiculously tried to argue that the fact that some other companies had previously licensed the patents should have been shared with the jury to prove the "validity" of the patents. Of course, that's ridiculous on its face as trolls often convince companies to license bogus patents because it's cheaper to settle and license than to fight a bad patent lawsuit (even if you win). Of course, the judge blasted Eolas over this desire... because earlier in the case, Eolas had specifically argued that the jury shouldn't be allowed to know of Eolas' previous "business success or failure." Basically, Eolas didn't want the jury to know it was a troll without any real business. However, as the judge realized, Eolas can't hide that bit of info and then want the jury to have this other bit of info from its past.

Thus, for all intents and purposes it seemed that those two key patents -- 5,838,906 and 7,599,985 -- were effectively dead.

So it was a bit of a surprise to find out that Eolas/University of California has now sued Facebook, Disney and Wal-mart over those same patents (and a couple others). Apparently, Cal and Eolas figure that if they just keep suing, maybe one of these times they'll win.

What's really amazing is that this scorched earth, anti-innovation effort hasn't created more backlash for the University of California, and Berkeley in particular, given its proximity to Silicon Valley. You'd think that alums of the University who work at the various innovative tech companies that keep getting sued would speak out against their alma mater. It's pretty sad to see the University of California trying to set up a tollbooth on innovation by using such ridiculous patents.

A few years back, we wrote about the brouhaha concerning Facebook banning photos of women breast feeding their babies, under a strict "no female boobs" rule. Rather than learn from that mess, and realize that not all images of breasts are created equal, Facebook seems to have become even more ridiculous over time. Witness the hilarity of the situation that The New Yorker's cartoonists were put in -- when Facebook blocked one of their cartoons by Mick Stevens: As a joke (though some people took it seriously), they had Stevens "redraw" the cartoon with clothing. I won't post it here and ruin the joke (or, non-joke, which makes it a joke) but go check it out. In trying to figure out why the original got blocked, they were eventually directed to some "rules" concerning images, noting that on the forbidden (fruit) list where:

Naked 'private parts' including female nipple bulges and naked butt cracks; male nipples are ok.

Yeah. So, as the folks at The New Yorker pointed out, it appears that this (zoomed in) part of their image (according to Facebook, NSFW, but according to pretty much everyone else, probably fine) is "the problem": Meanwhile, this other part meets Facebook's okay-o-meter: The good folks at The New Yorker argue that they really don't think the first pair of dots above legitimately fit the criteria for being banned, but they've chosen not to fight it:

Now, we could have fought the ruling on technical grounds, because, let’s face it, these female nips, by any stretch of the imagination, no matter how prurient, are just not bulging...

But rather than fight the battle of the bulge, let’s point out, that while female nipple bulging, or F.N.B. for short, is a potentially serious problem, with as yet no known cure, it also has no known victims. That is, unless you count freedom of expression, common sense, and humor.

Now, this is all just a bit of a humorous reaction* to silly overblocking by Facebook, but it does actually raise some legitimate concerns, considering how central Facebook has become in our lives. For many people it is a key platform for expression, and as such, it takes on greater meaning and importance. Yes, as a private company, they have every right to set the rules that they want to set, no matter how arbitrary or asinine. But, you begin to worry about so many people relying on Facebook as the most important way in which they communicate, when they can run afoul of such obviously ridiculous "rules."

* Random aside: a few months back I got to see three New Yorker cartoonists host a discussion/speed drawing contest, in which they talked about what life was like as a New Yorker cartoonist, and it may have been one of the funniest things I've ever seen -- by far beating most, if not all, of the stand up comedy acts I've seen over the years. If you ever have a chance to see these guys speak, do not miss it.

Amazon's recently-announced tablets are interesting for a variety of reasons, including that Jeff Bezos made it quite clear that he's taking a very different approach to the market than the one Apple has taken. Lots of attention was (quite reasonably) paid to Bezos' key line:

"We want to make money when people use our devices, not when they buy our devices."

It's a great line in so many ways, because it highlights the different philosophies of Amazon and Apple. John Gruber's summary of those differences is a really worthwhile read (you should read the whole thing). His take on that particular line is dead-on:

Bezos's we want to make money only when you use it framing works two ways. First, it explains the Kindle Fires' noticeably lower retail prices in a way that doesn't make them seem cheaper, only less expensive. It frames Apple's prices -- and profit margins -- as greedy. Second, it works as a sort of guarantee -- if you don't actually use it, we won't even make any money on it.

Later Gruber made a second point that got me thinking (and rethinking...)

Apple's goal is to sell as many iPads as it can. Amazon's goal is to sell as many Kindle Fires as it can to a specific audience: active Amazon.com customers.

I've talked in the past about how Apple's digital goods sales have really been about being the "low margin" leader (if not the loss leader) to drive more sales of the hardware. The digital goods -- content and apps -- make the hardware much more valuable and help drive up the amount people are willing to pay. And that tends to fit with the basic economics I believe in: focus on using the "abundant" (digital) to make the "scarce" more valuable, for which people will pay a premium, especially since that "scarce" can't be "pirated." Apple has, in many ways, put that particular economic concept at the center of how it does business, even if I'm uncomfortable with the closed nature of its overall setup around that.

Amazon, however, has flipped the equation. Their "low margin leader" is the hardware, and they basically appear to want to make their money up on the digital goods purchases. Just as Apple doesn't lose money on selling digital goods (it just makes a very little amount), it appears that Amazon will be making only a little bit on the hardware, but hopes to make the big money on selling the abundant: digital goods via the Kindle store.

I will admit that I struggle with this a bit. I find it hard to bet against Bezos, because on an awful lot of things I think he makes the right bet. Plus, frankly, I'm a lot more comfortable with Amazon as a platform than with Apple. Finally, from a consumer standpoint, I think Apple's hardware seems really overpriced, but Amazon's new prices are really compelling. But economically speaking, there's a voice in the back of my head that says that Apple has this right and Amazon has this wrong. Apple is betting on using the abundant to increase the value of the scarce and then selling that. Amazon is betting on using the scarce to increase the ability to sell the abundant. Perhaps it works because of Amazon's closed Kindle platform and its dominance in the market allows it to make this counter-economical bet. Artificial limitations allow for such things, and Amazon's got the power to control a large segment of the ebook market, which really helps the company out.

In the long run, though, if a competitive market is truly created, it seems more likely that there will be more pricing pressure on Amazon's bet than on Apple's. But, in the short term, Amazon's flip-flopped market certainly could make a lot of sense.

Of course, if you really want to make this fun, just add Google to the equation. It, like Amazon, seems to be focusing on cheap, barely profitable hardware, a la the Nexus 7. It's also put a big effort (recently) into selling digital goods via the Android "Play" store. But Google's business has always been about ads, so it actually adds a third factor to how it views the world, and which part of the business subsidizes which other parts of the business.

In the end, you're left with three big bets on tablets, with very different underlying business models*:

• Apple: High margin hardware (scarce); make just a little on digital goods (abundant).
• Amazon: Low margin hardware (scarce); make the real margins on digital goods sales (abundant)
• Google: Low margin hardware (scarce); make some margins on digital goods (abundant), but cross subsidize both with the ad business.

* Yes, there's also Microsoft Surface tablets. For the life of me, I can't figure out where they place in this particular chart. Which may say something all by itself.

Which strategy works in the end may say a lot about how you view the world economically.

Apple is very protective of its Apple name and logo trademarks. We have noted in the past that it seems to think that no company can use a logo that even remotely resembles an apple. So it really should be no surprise to learn that Apple is going on the offensive, double time, in order to stop a Polish online grocery store from receiving a trademark for A.pl.

"Apple brand is widely recognised and the company says that A.pl, by using the name that sounds similar, is using Apple's reputation," patent office spokesman Adam Taukert said.

There also seems to be a dispute over a logo trademark sought by A.pl for its site Fresh24.pl. You can see the logo in question below. Or how about this side by side comparison: Last time I checked, Apple had no business endeavors in online grocery sales, so it would seem to be a stretch to think that consumers would be confused and think that A.pl was an offering by the electronics company. Additionally, A.pl and Fresh24.pl seem to be regional and limited to Poland at this time. So there would be limited harm if any to Apple's global brand. In the end, this just ends up looking like a bunch of trademark lawyers on Apple's payroll looking to keep busy and gain billable hours.

Maybe you're like me and you thought that trademark stories didn't get much crazier than apparent confusion between products like ice cream and hardcore pornography. Or maybe you thought that dead half-chef, half-spy zombies crying foul over facts would win the nutso championship. Well, my sweet little innocent lambs, I give you the following story about a comic book author suing threatening to sue book review websites for reviewing a book by another author that had the same title.

Jazan Wild, comic book creator, is suing both Harper Collins for publishing Carnival Of Souls by Melissa Marr as well as a bunch of websites that reviewed her book. Not for copyright, mind you, but trademark, because Wild released a comic book called Carnival of Souls in 2006. Wild is claiming that the publisher is intentionally trying to cause confusion between a new fantasy novel and a comic book released six years ago. If you think this sounds crazy, The Digital Reader agrees.

Any sane person would have put a few minutes thought into the matter and realized that such an obvious phrase as Carnival of Souls would likely have been used as a title many times before. In fact, Bookfinder turned up at least a couple dozen different books, movies, TV episodes, and more – some of which dates back to 1962. And if you look inside books, Google says that it found the phrase no less than 5600 times (with some duplication, obviously).

Now, if that were the end of the story and Wild was only bringing suit against Harper Collins, we could all sit back, take a sip of our coffee and have a nice guffaw at the silly guy waving his arms around needlessly. Unfortunately, Wild is on a mission here to break the record for most wrong thoughts over a single issue. That's the only explanation I have for why he would then send cease and desist letters to websites that reviewed Marr's novel, claiming they were infringing on his trademark as well. Just to be clear, these sites are only posting reviews, no mention of Wild's works (why would they?), no exerpts from the novel or the comic book. Just a review of a novel with an apparently common title.

To whom it may concern,

This is a cease and desist. “Carnival Of Souls” is a trademark owned by Jazan Wild and Wild alone has the exclusive right on the United States of America to use the mark in classes 16 and 41 of which a novel is included. Posting a chapter from a novel using this mark is a willful and malicious infringement of Wild’s mark. Please remove.

The Trademark Infringement:
http://bookalicious.org/2012/09/review-carnival-of-souls-by-melissa-marr/

Hypothetical time. Let's say I broke into your house, tied you up to a chair, put a gun to your head, and told you that you had to come up with the perfect way to derail an argument about customer confusion of the title of a fictional work in the next thirty seconds or I was going to kill you. Could you come up with a better way than including in your C&D letter the URL of the supposed trademark infringement when that URL mentioned that the damned book was by a different author? I don't think you could.

More to the point, pissing off sites that review creative works when that's the business you're in is treachorous ground. But, at least it's entertaining. So here's to you Jazan Wild. May your crazy never cease to entertain us all.

The Daily Dot's Kevin Collier has a detailed article about his experience as a journalist at the latest TPP negotiating round. He talks mainly about the various "stakeholder" presentations, which are the only access concerned groups have to the negotiators. As we've already noted, the USTR made sure to limit access to the stakeholder presentations, giving them 8 to 10 minutes (reduced from a promised 15) and then scheduling a bunch to run concurrently -- and during a time when many negotiators would likely be out to lunch. From Collier's report, we also learn that the rooms where these presentations were held only had about 20 seats in them -- and there are more than 400 negotiators. He attended the EFF's presentation, but also noted that "Attendees from a nearby presentation exited their conference room and loudly spoke outside the open door to [the EFF's Carolina] Rossini’s room, drowning out her message."

But, perhaps more interesting was Collier's encounter with Michael Schlesinger, a lobbyist for the IIPA (the International Intellectual Property Alliance -- a sort of "super group" of lobbying organizations, including both the RIAA and the MPAA, among others). The IIPA presentation immediately followed the EFF presentation, and involved Schlesinger promising to debunk the "myths" being spread by folks like the EFF. Key among them? That TPP would mandate disconnecting people from the internet. Myth, myth and more myth, Schlesigner declared: there are "no mandates to kick legitimate users off the Internet." Note the weasel word "legitimate."

However, Collier wasn't born yesterday. So he went and found the leaked draft of the IP section that was revealed back in February of 2011. And he noted that it does seem to include mandates for kicking people offline, such as saying that "effective action against any act of copyright infringement" would include things like "removing or disabling access... [and] terminating specified accounts." So, Collier went and found Schlesigner to bring this up, and Schlesinger made a remarkable admission: he claims he hasn't seen the text:

I asked him whether he stood by his presentation's claim that "TPP will result in 'kicking people off the Internet'" was a myth.

"It is," he said.

I showed him a printed-out copy of the section of the TPP leak that referred to "terminating specified accounts" of copyright infringers.

He visibly stiffened. "I'm not commenting on a leaked draft," he told me. "From what I know, the TPP framework would not force anyone off the Internet. I don't know anything about the TPP draft."

Had Schlesinger actually read the TPP, either the leaked chapter or the current draft? I can't say for sure. Legally, he can't have read the latter, because he's a federally registered lobbyist, which would bar him from seeing the text.

Got that? (1) He's not allowed to see the text. (2) He gets upset when someone points him to the leaked text. (3) He... also insists he knows, absolutely, what will not be in the text. How is that even remotely credible?

Well, here's a nice contrast: just when a judge in the US has ruled that users there have no obligation to lock down their wifi connections, a court in France decides the exact opposite. What makes the story even more significant is that the individual concerned is the first person to be convicted under France's 3-strikes law, generally known as HADOPI.

Not all of the facts of the case have been released, but we do know that he received and apparently ignored the statutory three warnings from HADOPI, and then was summoned to court, where things started to get interesting. As TorrentFreak reports:

the man told the court today that he is incapable of downloading and did not commit the infringements. Supporting his claims he brought into court the person actually responsible for the file-sharing.

That person turned out to be his wife (actually, soon to be ex-wife), who admitted that she had downloaded some Rihanna songs. But as Guillaume Champeau of Numerama pointed out to TorrentFreak, ironically this did not get him off the hook -- on the contrary:

"By saying he knew she was downloading infringing content, but didn’t prevent her from doing so, he self-incriminated."

That's because under the HADOPI law, it is the owner of the Internet connection who is held responsible for any infringement committed with it, so it's the husband, not the (ex-)wife who has ended up being fined 150 euros (about $200) for negligence. That's admittedly less than the 300 euros ($400), with 150 euros suspended, that the French prosecution wanted, and far less than the maximum possible 1,500 euros ($2000) fine. But it's still a stiff price to pay for something he didn't do.

Indeed, he seems to have taken the judgment hard: Guillaume Champeau points out that HADOPI's first victim has now said that he intends to cancel his Internet subscription completely (original story in French). It's hard to see how this kind of result is going to help the growth of digital music in France, and the whole episode is a neat encapsulation of all that is wrong with HADOPI's approach.

Moreover, this case must reinforce the view that HADOPI is a colossal waste of money. In two years of existence, HADOPI has sent out 1.15 million first warnings, 102,854 second notices, and 340 "third strikes". And yet all French government has to show for the 12 million euros it costs to run HADOPI each year is the conviction of one innocent man.

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

Swedish developer Frictional Games is celebrating two years of success with its sleeper hit "Amnesia: Dark Descent." In a lengthy blog post (via Rock, Paper, Shotgun), the developers run down the continued success of their very niche horror game, along with praising the communities that have grown around the game.

[If you're not familiar with the sphincter-clenching scariness that is Amnesia, take a look at the following video, which will allow you to hilariously enjoy someone else's complete hysteria. NSFW.]

Frictional Games attempts to run down the sales figures on Amnesia, a problem somewhat complicated by its inclusion with a Humble Indie Bundle. Long story short, though: sales were unexpectedly good.

The biggest reasons for the uncertainty is that Amnesia was part of the Humble Indie Bundle (HIB) earlier this year and Potato Bundle last year. Both of these account for quite a lot of sales. Without counting the units bought there our total lands at 710 000 units. Adding all HIB and Potato Sack sales gets us to 1 360 000 units in total, which can be called the optimistic figure. This means that, optimistically speaking, Amnesia has sold almost 1.4 million units!

Frictional adjusts for the Humble Effect by providing a "pessimistic" estimate based on the assumption that ⅔ of all bundle purchasers already owned a copy of the game:

This gives us about 920 000 units in total, pessimistically speaking. So saying that we have sold a million units seems fair. Wait... a million units! Oh shit!!

Not a bad total at all, especially for a non-AAA studio whose game featured combatless horror and whose advertising was mostly word-of-mouth. Even more surprising, the two-year-old game continues to sell at a brisk pace, even at full price:

Not counting any discounts, the monthly full price sales lie at over 10 000 units. This means that less then every 5th minute someone in the world is buying a copy of Amnesia.

Why are sales still so strong? Frictionless credits two very active communities:

This success is due to many factors, some of which are the uniqueness of the game (horror games without combat do not really exist on PC), the large modding community (more on this later) and the steady flood of YouTube clips (which is in turn is fueled by the modding community output).

Opening up your game and letting your fans build on your foundation is one of the best ways to rack up sales months (or years) after the release date. Just ask the developers of Arma, whose Arma 2 (another 2-year-old niche game) continues to sell very well, thanks to a strong modding community, including one of its own employees who developed the amazing "Day Z" zombie survival mod.

The output of modding community has been quite big as well. Amnesia is as of writing the 2nd most popular game at ModDB and sports 176 finished mods. Not only do this amount of user content lengthen the life of the game, it has also increased the amount of YouTube movies made with an Amnesia theme. There are lots of popular Let's Play channels that have devoted quite a bit of time with just playing various user-made custom stories. As mentioned earlier this have probably played a large role in keeping our monthly sales up.

It is quite clear that allowing users to create content is a feature worth putting time into. I also think that we managed to have a pretty good balance between having simple tools and still allowing a lot of possibilities.

When you give your fans a toolbox and invite them to not only create, but share the results openly, they become your advertisers. Without spending a cent on promotion, a developer can turn hundreds of individuals into a street team that shamelessly plugs your product because they love it. Respecting them enough to allow them to build on your original creates the sort of loyalty that locked-down software never will.

Oh, and as for piracy, the supposed bane of PC developers' existences? Here, in total, is all the developers have to say on that subject:

It has been over a year since we even thought about piracy. With sales as good as above we cannot really see this as an issue worth more than two lines in this post, so screw it.

Make great games. Extend the life of your software by opening it up to modders. Support your community. These simple steps (well, the last two are much simpler than the first) have allowed a small developer (11 employees) to command the attention of PC gamers and critics, resulting in Amnesia earning back over 10 times its cost. Who needs to worry about "lost sales" when so many people are clearly willing to pay?

Some of the folks filing mass copyright infringement lawsuits have tried to claim that merely having an open WiFi connection on which someone else infringes on copyright-covered works is a form of negligence. Basically, they're suing based solely on limited information -- an IP address -- and when those pursued point out that they have an open WiFi, the lawyers insist that this, alone, is a form of negligence. However, the courts aren't buying it. In July, we wrote about a district court in New York rejecting this argument quickly, noting that the position was "untenable."

And now a California district court has ruled similarly, completely rejecting the negligence theory on three different points. First up, there is no negligence because negligence requires a relationship and a duty to protect, but no such relationship exists between the copyright holder, AF Holdings, and the defendant in the case:

AF Holdings has not articulated any basis for imposing on Hatfield a legal duty to prevent the infringement of AF Holdings’ copyrighted works, and the court is aware of none. Hatfield is not alleged to have any special relationship with AF Holdings that would give rise to a duty to protect AF Holdings’ copyrights, and is also not alleged to have engaged in any misfeasance by which he created a risk of peril.

The allegations in the complaint are general assertions that in failing to take action to “secure” access to his Internet connection, Hatfield failed to protect AF Holdings from harm. Thus, the complaint plainly alleges that Hatfield’s supposed liability is based on his failure to take particular actions, and not on the taking of any affirmative actions. This allegation of non-feasance cannot support a claim of negligence in the absence of facts showing the existence of a special relationship.

Even ignoring that, the court is skeptical. Noting that even if there was a negligence claim it would be unavailable in this case, because of copyright "pre-emption" (basically, federal copyright law wipes out any state statutes that seek to do the same work).

AF Holdings is seeking to protect its “exclusive rights” from “copying and sharing.” Simply recharacterizing the claim as one of “negligence” does not add a legally cognizable additional element.... Thus, because AF Holdings alleges that Hatfield’s action or inaction constituted interference with its “exclusive rights in the copyrighted work,” the negligence claim is preempted by § 301 of the Copyright Act.

And then the court goes even further, and says that even if the first two theories don't kill the negligence claim, there's also Section 230 of the CDA, which we've discussed for years. While the Section 230 safe harbors (protecting a service provider from liability concerning the actions of their users) technically does not apply to intellectual property issues, the negligence claim is not an IP law issue, and thus gets wiped out thanks to Section 230 immunity.

Basically, the idea that you're negligent if you leave your WiFi open and someone else uses it to infringe seems dead in the water.

Justin Levine points us to the news that a revival of Ira Levin's famous play Deathtrap has been canceled because Levin's estate doesn't approve of very slight modifications in the play -- including one character disrobing and showing his naked rear for about 30 seconds, as well as this version of the play making it clear that a relationship between two males was a gay relationship (something not explicitly stated in the original, though many other interpretations have assumed the same thing). Either way, after the estate demanded changes to the staging, the LA Gay & Lesbian Center who was putting it on decided to cancel the show altogether, rather than having the estate give them creative notes.

Now, this may be entirely legal, but does that make it reasonable? One of the great things about plays is seeing how different companies interpret them -- sometimes in very different and creative ways. It seems overly controlling and silly to seek to block certain showings because they don't conform to the way the estate wants the play performed.

The negotiations behind closed doors of major treaties like ACTA and TPP, and the refusal of participants to release official drafts or to engage in any kind of substantive dialog, has meant that activists and observers have been obliged to seize upon even the smallest signs and hints emerging from those talks in an attempt to guess what is going on. In a way, we are witnessing the birth of a new form of Kremlinology, which Wikipedia explains as follows:

During the Cold War, lack of reliable information about the country forced Western analysts to "read between the lines" and to use the tiniest tidbits, such as the removal of portraits, the rearranging of chairs, positions at the reviewing stand for parades in Red Square, the choice of capital or small initial letters in phrases such as "First Secretary", the arrangement of articles on the pages of the party newspaper "Pravda" and other indirect signs to try to understand what was happening in internal Soviet politics.

Via Guillaume Champeau, we learn that PCInpact (original in French) has spotted a treasure trove of such subtle hints about what's happening within the EU on the copyright enforcement front. It's a document entitled "Report on the online distribution of audiovisual works in the European Union", drafted by the Committee on Culture and Education, and submitted to the European Commission.

It's couched in an apparently interminable sequence of deadly dull clauses beginning "having regard to..." and "whereas...", before launching into a long list of mostly reasonable ideas for making more cross-border digital content available in the EU. But hidden away amongst these are some breathtaking suggestions.

Here, for instance, is Section 39:

Calls on the Commission to afford internet users legal certainty when they are using streamed services and to consider, in particular, ways to prevent the use of payment systems and the funding of such services through advertising on pay platforms offering unauthorised downloading and streaming services;

That may sound familiar, since it's identical to one of the core ideas of SOPA: cutting off all funding to sites accused of permitting unauthorized downloads.

Here's Section 42:

Recognises that, where legal alternatives do exist, online copyright infringement remains an issue and therefore the legal online availability of copyrighted cultural material needs to be supplemented with smarter online enforcement of copyright while fully respecting fundamental rights, notably freedom of information and of speech, protection of personal data and the right to privacy, along with the 'mere conduit' principle;

This, by contrast, is straight out of ACTA, where Section 27 says:

Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

Note the same empty promise to respect various rights that is completely undermined by the other part requiring copyright enforcement that ignores them. The only real change is that "effective" has been upgraded to "smarter".

This trick of mixing contradictory demands is repeated in Section 59 of the EU report:

Calls on the Commission to consider ways to encourage network operators to standardise their technical tools and reverse the current trend of removing responsibility from these operators regarding consumer protection, implementation of intellectual property rights and ensuring Internet privacy;

So, on the one hand, network operators are supposed to protect consumers and maintain their privacy, while on the other, they will be forced to become responsible for enforcing intellectual monopolies -- losing that "mere conduit" status that was invoked in Section 42 above -- and turn in accused customers to the authorities.

All-in-all, this is an extraordinary document, in part because of its repeated call for contradictory actions, but mostly for the way it asks the European Commission to bring back some of the worst ideas in SOPA and ACTA. New Kremlinologists will obviously need to keep a close eye on missing portraits or the re-arrangement chairs in order to glean further information about the secretive plans that are being discussed deep within the bowels of the EU machine.

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