Lawyer/law professor Mark Lemley has argued for years that, even as there are very clear problems with software patents, the answer is not to merely exclude software from being patentable. I tend to agree. I think it's pretty clear that the problems with the patent system go way, way beyond just software, and as such, excluding software from being patentable would actually leave many serious problems with the patent system in place -- with little interest left in fixing them. I'd rather fix the big problems across the board then look for carve-outs and "exceptions." I've made many suggestions over the years for changes that I think would really help to fix the patent system, and Lemley has regularly argued that we don't even necessarily need a change in the law. His book from a few years ago, The Patent Crisis and How the Courts Can Solve It, as you can tell from the title, argued that the courts can fix the system without a major change to the underlying law.

Lemley recently released a new paper, arguing that the problem of software patents can be dealt with by properly applying the 1952 Patent Act's limitation on so called "functional claiming." Simon Phipps, over at Infoworld, has an absolutely fantastic summary of Lemley's argument, though I recommend reading Lemley's paper itself as well. The short form of the argument is that under the 1952 Act, there are significant limitations on patent claims that cover a "function" rather than a specific solution. Phipps does an excellent job summarizing the broad concept of functional claiming:

When we say patents protect inventions, what we mean is they protect specific solutions to problems, rather than the idea of solving a particular problem. The design for a plough can be patented; the idea of ploughing a field can't. A specific new drug that stops a headache can be patented; the function of using a drug to stop a headache can't. Lemley explains how patent applications were increasingly written to go outside these bounds, culminating in a case in the 1940s where a judge finally declared patent claims that attempted to fence off a function -- "functional claiming" -- as an invalid use of patents.

However, the 1952 Act brought back functional claiming -- but with very specific limitations, found in 35 USC 112(f):

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

Now, this may sound confusing, but as Lemley (and Phipps) explain, it really limits the ability to claim a "function" to a very narrow set of circumstances. Lemley provides an example of how "functional claiming" works with and without 112(f) and why it's very limited with it:

To take an example, suppose that the patent claim includes as an element a “means for processing data.” Read literally, without reference to section 112(f), this language would encompass any possible means for processing data, including any computer, but also a calculator, an abacus, pencil and paper, and perhaps even the human brain. Section 112(f) permits the use of such functional language, but doesn’t permit it to cover any means of performing the data-processing function. Instead, the claim would be limited to the particular “means for processing data” actually described in the patent specification (say, an iPad) “and equivalents thereof.”

In other words, if you're going to claim a function, you only get to do so in the very narrow spectrum of the "means" for which your patent applies.

Now, the problem: in the computer age, patent lawyers have realized that if they effectively show "a computer" as "the means" then they can really go back to claiming the full function, rather than the very limited function.

A patentee who claims “means for calculating an alarm limit” is invoking the limits of section 112(f), and the claim will accordingly be limited to the particular software algorithm or implementation the patentee described in the specification. But if the same patentee claims “a computer programmed to calculate an alarm limit,” courts today will read the term “computer” as sufficient structure and will understand the claims to cover any computer that can calculate an alarm limit, however the calculation is programmed.

He goes on to note a bunch of examples of the loose way that the system is defined to make software patents ridiculously broad, so they effectively go back to claiming a patent on the basic function. So you see things like "in a dating processing system," "a computer system," "a computer readable medium," "over the Internet," "one or more processors of a computer system" and so forth in patent claims. But given that pretty much everything is done "on a computer," it should come as little surprise that these patents, which should be really limited, actually do end up claiming very broad functionality for things like... sending email, or having a shopping cart, or having a web page "bounce back" when you hit the bottom.

Lemley argues that if we actually went back to what was clearly intended with the limitations on functional claiming, we could fix the problems associated with software patents. How would we do that? Easy: require that those filing software patents also submit their source code, and the patent should "be limited to those algorithms and equivalents thereof."

We don’t need to change the statute to achieve this result. We don’t even need to overrule existing cases. We just need to pay attention to a law that is on the books but doesn’t seem to get applied in practice. The Federal Circuit or the Supreme Court could, with one fell swoop, do away with most of the problem of overclaiming in software patents – and with it, most of the problems with software patents in general. All it needs to do is to take the statute at face value and limit functional claims to the particular way the patentee implemented that function. In the software world, the way an inventor implements a function is not with “a computer” or “a processor,” but with a particular computer program. The patent claim should accordingly be limited to that particular computer program, and ones that work in the same way to achieve the same result.

Lemley points out a side benefit to having the courts just recognize this, rather than changing the law. If the courts go back to interpreting the law this way, then it applies across the board retroactively. As Lemley says, "the idea is that the law hasn't changed; we simply understand it better."

Is such a "solution" possible? It's certainly possible. Phipps quotes lawyer Andrew Updegrove, who notes that the theory just needs to be tested in front of a judge who understands the details:

What we need now is a case that presents an appropriate opportunity for Professor Lemley's argument to be presented, and a judge that is willing to accept it.

I would imagine that it won't be long before we begin to see some test cases. It may be years before they work themselves through the court system, but hopefully judges at the upper levels can read and understand Lemley's paper in the interim...

Although China has been historically known for building lengthy walls that last for centuries, the country is now constructing skyscrapers at an incredible pace. It might seem logical that a country with a huge population would need to start building vertically, instead of horizontally, but these huge buildings have some unimpressive occupancy rates so far. Here are just a few interesting links on big buildings in mainland China.

• A 74-story building in China isn't finished yet, but the locals are already complaining that the huge archway looks unflatteringly like a pair of giant pants. The British-designed skyscraper was supposed to be the largest gate-shaped structure -- representing a "Gate to the East", but Chinese bloggers have nicknamed the building "Giant Underpants" instead of "Arc de Triomphe of the East". [url]
• Buildings more than 152 meters tall can be considered skyscrapers, and four of the ten tallest buildings are located in China. There are now hundreds of skyscrapers in China, outnumbering those in the US, but there are concerns about how sustainable these towers will be with low occupancy rates and questionable safety and building management. [url]
• The Sky City project is expected to be complete in January 2013, taking the title for the world's tallest building away from the Burj Khalifa in Dubai. The more impressive feat, however, is that this building will be fully constructed in just a few months. [url]

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

About this time last year, details emerged on a new cell phone tracking device being used by the FBI to triangulate suspects' locations via their cell phone signals. One of these, the StingRay, mimics mobile phone towers, allowing the feds to triangulate someone's position using signal strength. It had been used successfully to bring Daniel Rigmaiden, wanted for fraud, into custody.

Rigmaiden (who is representing himself) was curious as to how he was located and a question on due process was posed by the judge:

In a February hearing, according to a transcript, Judge Campbell asked the prosecutor, "Were there warrants obtained in connection with the use of this device?"

The prosecutor, Frederick A. Battista, said the government obtained a "court order that satisfied [the] language" in the federal law on warrants. The judge then asked how an order or warrant could have been obtained without telling the judge what technology was being used. Mr. Battista said: "It was a standard practice, your honor."

Judge Campbell responded that it "can be litigated whether those orders were appropriate."

The FBI believes it can (and apparently, still does) track people using these devices without securing a warrant. Most discussion of the devices has been shut down by stating that revealing too much information would "harm law enforcement efforts by compromising future use of the equipment." The feds also believe that since the device only detects location, rather than eavesdropping, it's all cool, 4th Amendment rights or no.

So, while the jury is almost literally still out on the constitutionality of these devices, local law enforcement members have been availing themselves of them. LA Weekly, using recently obtained FOIA documents, discovered that the Los Angeles Police Department (along with police in Miami, Ft. Worth and Gilbert, AZ) has obtained and deployed the questionable StingRay. Not that the LAPD has much to say about its use, however:

LAPD refuses to discuss how it uses the powerful tool, perhaps copying the FBI's playbook, which argued in the Rigmaiden case that revealing too many details would cause serious harm to future investigations.

The department, through a spokesperson, refused to comment on the device, despite repeated requests from the Weekly. Through the department's Discovery Unit, which handles requests from the public and media under the California Public Records Act, LAPD also declined to reveal any information on how the devices are used.

LAPD even refuses to say whether its detectives are required by police chief Charlie Beckand the Los Angeles Police Commission — all of whom are appointed by Mayor Antonio Villaraigosa — to obtain a search warrant before the StingRay is deployed against unsuspecting L.A. residents' cellphones.

Chances are the LAPD is deploying the devices without obtaining warrants, what with the FBI having set the precedent. With no court decision having been handed down yet dealing specifically with cell phone location trackers, law enforcement officers are pretty much free to explore the limits of this gray area. Refusing to discuss any details is par for the course for most enforcement agencies when asked about questionable means and technology, most of whom cite "serious harm" or "compromised investigations" as the reason for their obfuscation.

Speaking of dubious catch-all phrases, guess which one of the all-time "greats" was used to justify the purchase of these cell phone tracking systems:

Documents obtained from the Inspector General's office of the Department of Homeland Security reveal that LAPD bought two so-called "IMSI catchers" around 2006. At the time, LAPD had "recently purchased a cellphone tracking system (CPTS) for regional, terrorist-related investigations." The records mention StingRay and KingFish, brand names for IMSI devices made by Florida's Harris Corp.

Oh, yes. "Terrorism." Citing this vague threat in the law enforcement arena tends to open wallets and close minds with incredible efficiency. But the LAPD's acquisition of the cell phone trackers went one step further, and completely cut out any last vestige of public accountability.

Separate documents show that, in April 2010, the Los Angeles City Council approved the purchase of $347,050 in additional "StingRay II" equipment — and paid for it with outside funds from the Los Angeles Police Foundation, a nonprofit group that supports police functions, over which the city has no control.

The LAPD's refusal to discuss any aspect of these devices is "inconsistent with the democratic process," according to Peter Bibring of the ACLU, which makes sense, considering the use of the device itself seems to be "inconsistent with the democratic process." Seeing as the devices mimic cell phone towers, it would seem that the public might be very interested to know that the strongest signal in their neighborhood might actually be the LAPD doing a little tracking without a warrant or oversight.

Mobile devices connect to the wider network by using the antennae closest to them at the time. But when LAPD fires up a StingRay, it's often the most powerful signal in the area. Instantly, the department's spy equipment becomes the go-to "tower" for every cellphone and mobile device nearby — not just the phone carried by the suspect they're tracking.

"If the government shows up in your neighborhood, essentially every phone in the neighborhood is going to check in with the government," Soghoian warns. "It's almost like Marco Polo — the government tower says 'Marco,' and every cellphone in the area says 'Polo.' "

Maybe the feds and other smaller law enforcement agencies could just work to cut out the cell phone provider middleman and simply convert existing towers to "always-on" tracking devices. With enough subsidization, even those with the lowest income could avail themselves of 3G/4G service (depending on how many G-men are staffing the Flowers By Irene van), and the California Department of Corrections could up the ante by promising "More Bars in More Places."

Until a decision is handed down on the warrant question, it's safe to assume that law enforcement will be deploying these cell phone trackers as often as possible, using the "Beating Up on Crime/Terrorism" ends to justify the 4th Amendment-skirting means.

Mike recently discussed the ridiculous assertion that copyright can't be used for censorship, despite the fact that it has clearly been used to do exactly that multiple times. And it's not just copyright being waved around by IP thugs like a Louisville Slugger with a © on the sweet spot. Claims of trademark infringement have been used as a handy beating implement in attempts to silence criticism (like "[x] company sucks" sites) or keep a competitor from detailing the superiority of its product.

Fortunately, infringement claims like these rarely succeed in doing anything more than driving more eyeballs to the offending content. Another attempt to "swing for the fences" with the trademark bat has resulted in the plaintiff hitting itself squarely in the face, this time over in the Netherlands. This particular self-beating revolves around a relic from days past know as "The Phone Book."

Much like in the US, everyone in the Netherlands receives a phone book whether they want one or not. (Fortunately, it looks like the Dutch only receive one, unlike many metro areas, where two or three phone books [minimum] are crammed into mailboxes or dumped unceremoniously on doorsteps every year. And it's not just a "big city" problem. I live in a town of 1,300 and I get three [3][!] phone books every year.) You can opt out, but the phone book publisher would very much rather you didn't. 24oranges has more details on one man's fight against the wishes of the dying [via Overlawyered]:

To help stop this form of harassment, a guy called Alexander Klöpping has registered a URL called sterftelefoongidssterf.nl(diephonebookdie) which redirects to the phone book cancellation form. In other words, if you want the phone book to be eliminated (‘die’) from your life, follow that link.

Or don't follow it. 24oranges points out that De Telefoongids has been known to ignore cancellation requests. Also this: the URL is no longer live. (Thanks to Google Cache, you can still enjoy the heady rush of a URL redirect. WHEE!!!)

And that's all Klöpping's URL did: redirect users to the cancellation form on De Telefoongids' website. Apparently, using "telefoongid" in the URL was somehow a "trademark violation" and Klöpping was ordered to cease and desist. Klöpping wasn't having it:

Klöpping replied that he will take the URL offline as soon as the dead tree merchant stops shoving the equivalent of “months of advertising leaflets”, and “half a percent of all paper used in the Netherlands” through everybody’s mailboxes, including those of people that have indicated they want to receive no advertisements through the legally binding “ja-nee” and “nee-nee” stickers (yes-no and no-no).

When the continued success of your business relies on ignoring "legally binding stickers," perhaps it's time to reconsider your distribution plan. Selling advertising space in redundant stack of paper is tough, but ignoring both stickers and your own webform is only going to get you dragged into court, rather than the other way around.

It didn't take long for De Telefoongid's bullying tactics to turn into self-inflicted wounds. Within 24 hours of the public dustup, the Dutch parliament called for making the phone book opt-in, something that should be implemented worldwide. Of course, some people still use the phone book and by all means, they should still receive one. Until opt-in becomes the norm, the rest of us can continue to use them as paperweights, booster seats, kindling and conversation starters to aid in engaging our sullen teens and tweens.

Ah, copyright. Back in April, the Swedish central bank announced and showed off its new banknotes, including portraits of "important Swedish personalities." There's just one problem: it failed to license the images before announcing the notes. The bank insists that it wants to license the photos, but by showing off the new bills with the images prior to licensing them, it's put itself in a not-so-great bargaining position, and it appears the photographers are using that to demand much higher prices than the bank was expecting. So far, only two images have been cleared -- even though it's been five months since the new bills were announced and shown off. Yes, the bank can (and most likely will) find other photos, but it's going to involve redesigning many of the bills in question. Of course, this is the same Sweden where the government has been trying hard to crack down on infringement (at the urging of the US). Yet it's own central bank is going with a "use first, license later" approach?

Not long after I had written my opinion that YouTube should absolutely not censor the disgusing anti-Islam movie that has inflamed oft-flammable parts of this rock we all live on together, interesting news began filtering into the bloodstream. Actors in "Innocence of Muslims" began accusing its producers of misleading them about the roles they played, dubbing dialogue over their performances, and other bizzare tactics that had supposedly been used to keep those in the film from knowing what the end product was going to look like.

[Lily] Dionne was one of about 79 cast and crew who say they were "grossly misled" when they answered casting calls on Craigslist, Backstage magazine and other publications in July 2011 for a film that was described as "an historical Arabian Desert adventure."

But from the beginning, Dionne said the cast and crew had questions, including why the central character in a period piece had a Western name.

"We did wonder what it was about. They kept saying George. And we were like, 'This is the Middle East 2,000 years ago. Who's George?'" she said.

According to Dionne, the actors were then brought back after shooting to do the dubs, but the producers had them speak isolated lines and words, completely out of context. For instance, they were asked to simply say the name "Mohammed" and nothing else, with no explanation as to why. 79 cast and crew members have since released a statement claiming they were taken advantage of.

Now, one actress, Cindy Lee Garcia, has gone a step further and sued the man who produced the film, as well as YouTube, to, among other things, get the film taken down.

In a 17-page complaint filed Wednesday in Los Angeles Superior Court, the lawsuit from Cindy Lee Garcia also names YouTube LLC, the video-sharing website on which the video is posted, and its parent company, Google Inc., as causing irreparable harm to Ms. Garcia for refusing to remove the content from their site.

"The lawsuit is not an attack on the First Amendment or the right of Americans to say what they think," but it demands the content be pulled off because "Ms. Garcia in no way consented to the use of her performance, image or likeness in such an offensive and file film," Garcia's attorney, M. Cris Armenta, said in a statement.

A couple of things strike me here, so I'll take them in order. First, I'm unaware of how a film's director could be sued for slander (another aspect (pdf) of Garcia's lawsuit) because of the way he/she decides to portray the actors in their films. Slander should be out the window, since Garcia and the others were playing fictional roles, and so are not portrayed to be anything at all beyond the characters they were playing. Could Kevin Bacon sue Sleepers director Barry Levinson because the result of post-production for the film made his character look just a tad too child-rapey? The privacy violation and likeness rights violation in the suit seem equally ridiculous. She consented to be in a film! It's understandable why she's upset, but if that's allowed, imagine how many actors would start suing every time a film edit is a disaster and makes them look bad.

As for the "fraud" claim, that may be the strongest of a bunch of very weak claims. You could make the case that the various elements of fraud are present, but almost every one of them is a stretch.

In any case, today the judge refused to order an emergency takedown of the video—though the lawsuits will move ahead.

Even if there is a civil suit to be had here, targeting YouTube and requesting they take the film down has all the hallmarks of a head-in-the-sand approach (beyond raising questions of secondary liability). The cat is not only out of the bag at this point, it's protesting at its local US Embassy. The damage is done. I can certainly understand* the distress actors feel over the worldwide reaction to a film they probably thought would never be seen, but that doesn't mean the film has to come down. Google, thus far, agrees, and has refused to remove the video beyond censoring it in certain countries.

*One caveat: the trailer for this film was released in May. Where the hell were all these outraged actors back then? Why is it only now the film has made the news that they are releasing statements, speaking out, and filing lawsuits? Did none of these actors bother to view the movie they were in before the mainstream media picked this up?

We often hear that various collection societies shouldn't be lumped in with the labels when discussions turn to the "problems" of the music industry. After all, the collection societies are just "focused on getting musicians paid." And that's true, unlike the labels, who seem to look for ways not to pay musicians. But... almost every musician I know who deals with collection societies has horror stories about the experience, and they never seem to consider how much their actions (like shaking down anyone playing music in an office or making it impossible to host open mic nights in cafes) really does more harm than good.

Let's tell one such story. Before we get started, why not hit play on this musical widget from Uniform Motion, a band from France we've written about a few times. The story is about them and the insanity of collection societies -- but you might as well use their music as the soundtrack for the post: Andy from the band has a head-poundingly ridiculous story about how French collection society SACEM seems more focused on inserting itself into pretty much every transaction -- even ones that happen directly between the band and its fans -- than in helping him make money. He starts out by describing how a fan downloads one of his albums on The Pirate Bay, and then goes to a show where he wants to buy a CD. As Andy notes, "what a nice guy!" A perfect "direct to fan moment." Except... SACEM is there acting like the tax man:

BUT.... what most people don’t know is that the music venue is legally obliged to pay public performance rights to SACEM (France’s Copyright Collection Society) in order to have bands play live music in their venue.

So we often have to fill out a form, providing details on all the songs we played to ensure SACEM can find the songwriter and pay them their money.

“But we are the songwriters” we cry! “Just give us the money directly, why don’t you? It would save everyone a lot of time (and money) wouldn’t it”?

But that would be far too easy.

So the venue pays SACEM and SACEM tells us we can get the money back (minus some reasonable administration fees of course, like their President’s €750,000 annual salary for instance!) if we pay them a member’s fee.

Oh, you thought it stopped there? Nope. He notes that even the CD sale involves SACEM.

In order to have CD’s made in France, you’re legally obliged to fill out an SDRM form (which is handled by SACEM). CD Manufacturers won’t press your CD’s without prior authorization from SACEM.

If the songs are not listed in their database, you don’t have to pay them anything but if they are (because maybe you became a SACEM member in order to get your public performance money from your live performances) they’ll make you pay a Mechanical Royalty.

So we fill out the forms and they tell us we have to pay the mechanical royalties to them so that they can pay the songwriter for the privilege of having their music on our CD.

“But we are the songwriters dude! So why don’t we just give the money to ourselves?!”

Again, that would be too easy!

Yes, you read that right. They have to pay SACEM to make their CD... because SACEM insists that it needs to pay the songwriters. Since they're all original songs (and quite good ones too), they have to pay SACEM so that SACEM can make sure that money goes to... er... them. The summary:

Let’s summarize what just happened here. The Copyright Collection Society makes the artist pay them to have their own CD’s manufactured, takes a portion of their live revenues and then uses the money to sue the guy who came to the gig and bought a CD!

This is what is wrong with the music business.

Ah, right. Did you miss that part? SACEM is involved in some lawsuits against file sharing sites.

So, look at this from Andy's perspective. He's fine with his music on The Pirate Bay because it builds a fan base, which helps him attract fans to shows where they buy merch. All that works great for Andy and Uniform Motion. And yet, SACEM forcefully inserts itself into nearly every step of that process -- taking a cut of the live revenue to "pay" the band, taking a cut of the CD manufacturing to "pay" them again... and then using the money it collects to try to take down the platform that the band uses to promote its works.

We've written a few times about the upcoming Kirtsaeng case before the Supreme Court concerning first sale rights. If you don't recall, the 2nd Circuit appears to have wiped out the first sale doctrine for content purchased outside the country that you want to resell within the US. As we noted, there are significant worries about how such a ruling could really harm innovation. At issue was a guy who bought textbooks abroad and resold them in the US (for less than the cover price that the publishers wanted students to buy). The courts basically found that because the textbooks were made outside the US, they weren't "lawfully made under this title," which is some clumsy phrasing that's at issue here.

Of course, thanks to our copyright maximalism, under Kirtsaeng, if a product is made outside the US and then imported, US copyright law appears to apply to almost everything that's copyrightable... except that first sale rights go away. If that seems dangerous, you get a sense of how important the Supreme Court's ruling in Kirtsaeng can be, hopefully by bringing back some sanity, and showing that if you legally purchase some digital content you have the right to resell it.

It appears that the RIAA and MPAA are pretty scared about this possibility. They've filed quite the amicus brief in the case claiming that buying goods overseas and selling them in the US is the equivalent of piracy. No joke:

Copyright protection is essential to the health of the motion picture and music industries and the U.S. economy as a whole. Like the sale of “pirated” copies, unauthorized importation of copies of protected works made overseas and intended only for sale in a foreign market can undercut or eliminate the economic benefit that Congress intended to provide under the Copyright Act.

Oh, and it gets worse. You see, if that darned first sale is allowed on foreign goods, why (*gasp*) the MPAA and RIAA might actually have to deal with people buying goods in one market and selling them elsewhere. Horrors!

Extending the first sale doctrine to copies made abroad for distribution in a foreign market could impede authors’ ability to control entry into distinct markets, limit their flexibility to adapt to market conditions, or undermine territorial licensing agreements. If accepted, Kirtsaeng’s view of the first sale doctrine could thus prevent U.S. copyright holders from obtaining the economic reward Congress intended to provide under U.S. law to motivate investment in creative activity.

Now that's an interesting interpretation of copyright law. The RIAA and MPAA are arguing that if they can't block people from importing the versions they sell overseas, it will somehow motivate less investment in creative activity. Really?

Here's the real problem: the RIAA and MPAA want to have their cake and eat it too. If products bought abroad and then imported into the US don't get first sale rights, then it seems only reasonable that they shouldn't get US copyright protection either. Part of the deal with copyright protection in the US is that as part of it, you accept that buyers have first sale rights that allow them to resell what they legally purchased. What the RIAA and MPAA are attempting to do here is to take away the public's right to resell what they've legally purchased, because it might interfere with one aspect of their preferred business model.

Of course, what this really comes down to is that the RIAA and MPAA absolutely hate the idea that they might have to compete in a global market. They more or less admit this in the brief, suggesting that prices are cheaper elsewhere in the world because copyright law sucks in other places... and allowing cheap goods into the US means that they don't get the "separate benefit" of expansive US copyright law:

When copyright owners distribute tangible copies of creative works in a foreign market, they recoup the economic benefit made possible by the copyright law of that country, which may be substantially less generous or well enforced than U.S. copyright law. They do not realize the separate benefit Congress intended them to derive from their U.S. copyright. If those copies are imported into the United States without permission, the copyright owner might never obtain that full benefit.

Boohoo. You sell into one market, people buy, they sell into a different market. Every other business in the world has to deal with exactly that. Why should the RIAA/MPAA get special treatment?

Oh, and of course, they rush to play up how much "harm" this would do if they can't overprice content in the US (what this is really about) by trotting out the same debunked stats about just how important they are -- even to the point of suggesting that allowing people to resell goods they legally bought elsewhere would have deleterious consequences for the entire US economy.

Those harms, in turn, could have deleterious consequences for the U.S. economy as a whole. As of 2010, the motion picture and television industry supported 2.1 million jobs and nearly $143 billion in total wages in the United States.... In addition to the major motion picture studios, the industry supports a nationwide network of nearly 95,000 businesses throughout the 50 States. Id. The music industry employed over 25,000 paid employees as of 2004.... The industry supports many smaller businesses such as retail stores, distribution companies, recording studios, and music professionals. The retail trade alone generates over $7 billion from the sale of sound recordings... Maintaining robust copyright protection is thus crucial to preserving not only the health of these creative fields themselves, but also their substantial contributions to the national economy.

That the actual evidence suggests something quite different is, of course, not mentioned. That the overall music and movie industries have been growing quite nicely, even as copyright is more and more ignored, is not mentioned. That more content is being produced and more money is being made... is not mentioned. Inconvenient facts are not allowed.

The filing at one point gets so snarky that it claims that those arguing the other side are using the word "arbitrage" as a euphemism (for what?!), rather than as an accurate description of what happens to normal economies that can't set up protectionist tariffs on importation of goods.

The whole thing shows the same myopic thinking of the RIAA and MPAA -- that anything that threatens their chosen obsolete business model simply must be illegal. Because having the courts and Congress prop up old business models must be better than actually innovating and (*gasp*) letting people resell what they legally bought.

We at Techdirt are among those constantly calling for a factual analysis of intellectual property and the laws that purport to rule it. I won't sit here and claim that disinformation has never come from people on our side of the argument as well, but we've seen time after time after time how the entertainment industry and their maximalist sympathizers tend to live in the kind of make believe world that puts anything this science fiction author has come up with to shame. The mental gymnastics required to follow along industry studies tend give my brain a sprained frontal lobe. That said, it takes a special kind of malfunction to decry supposed myths about piracy and refute them with a couple of made up myths of your own, as economist Michael Smith of Carnegie Mellon does (via Jeff John Roberts at Paid Content).

We actually start off on solid footing debunking myth numero uno, a common one espoused by the content industries: "You can't compete with free"

This myth is often invoked by content owners to justify heavy-handed enforcement measures against piracy sites and individual consumers. After all, why buy a song or movie when you can simply download it for free at a pirate site?

A quick look at the thriving content markets at Amazon, iTunes and elsewhere shows this notion is bunk. All of these sites are competing with free very successfully. As Smith points out, the lowest cost (including free) is not the only determinant of consumer purchases.

Ah, sweet, wonderful logic, with its simple formula of giving people easy access to what they want at a reasonable price as a method for staving off piracy, a symptom of unfulfilled consumer demand. One would hope that the rest of these myths are similar in nature and equally disavowed.

Not so much for myth number two: "Piracy Doesn't Harm Sales"

This myth holds that that people who use content-sharing (“stealing” if you prefer) sites will never pay for the content in the first place so what’s the harm? Meanwhile, “honest” consumers will never turn to piracy.

Smith pointed to evidence that piracy sites are not benign. In one prominent example, he said that when NBC removed shows from on-demand site Hulu, piracy spiked not only for NBC shows but for other networks as well. Meanwhile, no one went out and bought DVD’s as a substitute for the shows that were no longer available on Hulu.

If you're anything like me (and millions of single women hope that you are), reading myth two directly after reading myth one causes you to make this face.
  Translated from puppy to human: "What the &!@# are you talking about?" So, in debunking myth one we found that offering an easy legal alternative to piracy negates the harm caused by piracy. Then, for myth two, we decide that refusing to offer what customers want (streaming/digital content) is not to blame for customers not buying what they don't want (shiny plastic discs of content). A large segment of the population does not want the discs anymore and never will, but they do want disc-less content. When that was taken away, from paying customers mind you, they found it elsewhere. Pirate sites didn't hurt sales in that instance; the removal of ways to watch legitimately did. If that is the example Smith wants to use to "debunk" his second "myth", color me unconvinced.

But it's the example for debunking for the next "myth" that wins today's "I think my brain just pooped itself" award. Myth three is: "Anti-piracy initiatives don't work." And you'll never guess what legislation gets to serve as the chief example for why this supposed myth is false.

Smith points to a recent study of France’s HADOPI (a new enforcement regime) to argue that anti-piracy laws do work. He noted that the advent of HADOPI coincided with a big rise in legal online music purchases, particularly in genres like rap and hip-hop that experience high rates of piracy. At the same time, much of this increases took place before the law even went into effect; it appears that news about the law caused people to seek out legal alternatives.

The point is that laws like HADOPI (and presumably America’s impending “6-strikes” initiatives) can provide a clear deterrent to piracy.

This is a perfectly legitimate point, by which I mean it's complete crap that is itself a myth. The truth is that the French government has been so monumentally unimpressed with the performance of Hadopi, which did not show any increased sales, but cost a ton of taxpayer money, that they were seeking to slash its funding. Not exactly the kind of hallmark success you want to trot out as an example of why legislation can stamp out piracy. Separately, reports have shown that Hadopi may have temporarily decreased one kind of file sharing, but appears to have shifted it elsewhere -- which is what seems to happen every time one of these laws come along.

And so we're once again left unsatisfied by this economist, who notes at first that this is a business model issue before diving right back into the fallacies of the entertainment industry. It's bad enough to fall victim to statistics made up by certain industries, but it's even worse to use them to try to debunk supposed "myths."

I've been a big fan of StackExchange, for a while, as a very cool platform for getting expert insight into a variety of (mostly, but not entirely, technical) questions. The platform is so useful that, last week, Google even announced that it was pushing its own YouTube API developer support efforts off of its own Google Groups platform and over to Stack Overflow (the original StackExchange site). But that appears to be just one area in which the two companies are collaborating. As they announced today, StackExchange and Google are working together on AskPatents.com, a site dedicated to better crowdsourcing prior art.

And it's not just StackExchange and Google working together: they've teamed up with the USPTO to make it easier for good prior art to be submitted to the USPTO to (hopefully) invalidate bad patents. While we were incredibly underwhelmed by the America Invents Act, which was last year's attempt at patent reform, it has (finally) made it much easier to allow third parties to submit prior art which may be helpful to examiners during the ~18 hours they spend in reviewing each patent. There was the famed Peer-to-Patent program, which I was quite skeptical about, but this seems to take that to another level, thanks in part to the useful setup of StackExchange's system that helps float good ideas to the top.

But where this gets much more powerful is through integration in two key spots. First up, this will be integrated into Google's patent pages. Recently, Google launched its prior art finder, which tried to help people find prior art through automated searches -- but you can now also click through directly to the AskPatents site by clicking a "discuss" button that will be shown on each patent page, which will take you straight to the StackExchange page. Neat. The second integration may be even more powerful. As people find useful prior art and it bubbles to the top, StackExchange's system will make it easy to then directly submit it to the USPTO. Clicking a button will take you to an already filled out USPTO form, where a bit of additional info can be added and submitted.

StackExchange founder Joel Spolsky sees this as an opportunity to help stamp out bad patents: "Collectively, we’re building a crowd-sourced worldwide detective agency to track down and obliterate bogus applications. Over time, we hope that the Patent Stack Exchange will mitigate the problems caused by rampant patent trolling. It’s not a complete fix, but it’s a good start."

There are still tremendous structural problems with the patent system. And, at best, a system like this just helps to prevent some of the bigger mistakes, rather than attacking any of the fundamental problems. But, given just how damaging absolutely ridiculous patents are these days, anything that helps stop bad patents has to be seen as a good thing.

drewmo wrote in telling us:

"A friend of mine just posted a photo of the Lone Cypress in Pebble Beach and included a note saying, "Evidently, I can't sell this image. pebble beach owns the rights." From what I know about photography copyrights in the U.S., that's completely incorrect.

He also pointed us to this other image (not the one his friend took) of the same tree, with an explanation claiming that there are signs nearby saying that you can't take photographs of the tree and then sell them:

Along the fence, there are signs claiming that the tree is actually copyrighted by the Pebble Beach Association and that no photos, paintings, drawings or other depictions of the tree can be offered for sale without the express written permission of the Pebble Beach Association. If you ask me this is ludicrous and asinine. The tree is part of nature, changes with each season and I doubt there is a court in the land that would agree that any natural work of nature can be copyrighted in this manner so I doubt it is enforceable and the only way they can enforce the copyright is to threaten very expensive lawsuits which few artists would be able to fight.

This is partly true and partly misleading/wrong. However, it appears that this story pops up every so often, so let's dig in a bit and explain what's happening. But first, a photograph of the tree:


Look ma, here's a CC-BY-SA-2.5 licensed image of the tree
It seems that this issue comes up every few years, and some of the concern about "copyrighting" a tree has more to do with general confusion about intellectual property law (and contract law). During slow news periods, it sometimes even hits the mainstream news, as evidenced by this NY Times article from 1990.

However, Pebble Beach is not, it appears, claiming copyright on the tree. It is, however, claiming a trademark -- which was actually on a drawing of the tree as the symbol of Pebble Beach -- and which the resort registered in 1919. So the issue is (mostly) a trademark one -- but that shouldn't bar people from taking photos (or even selling the photos). While selling photos does meet the "use in commerce" bar of trademark, Pebble Beach would have to make the (somewhat extraordinary) claim that anyone selling such a photo was creating consumer confusion. That's an uphill battle, to say the least. At best, they might have a claim in a case where the image was used specifically as a brand logo or to advertise something else. But just selling a photograph of the tree seems unlikely to cause any confusion whatsoever.

There is a separate issue, though, which is contract law. Pebble Beach is private, and you actually have to pay to drive the famed 17-mile drive where the tree is located. So they're more than welcome to put forth a contractual agreement saying that you agree not to sell photographs, or something along those lines -- though, actually enforcing that contract might be a bit more difficult, and would seem kind of pointless in the long run, considering just how many photos of this tree are available.

As for the question of "copyrighting" the tree, well, I'll just quote an article from the Legal Recorder way back in 1990 that put forth a much more entertaining look at this story and whether or not trademarks, copyright or any IP could bar photographs. Here's the bit on copyright, though I encourage reading the whole thing:

Well then, can they copyright the tree?

Not likely. Copyright protection requires original and independent creative expression. Had the company designed and created the tree, coastline, ocean and lunar tidal pull, it might claim copyright protection. It might also be content simply to turn infringers into pillars of salt. In reality, however, the Pebble Beach Co. may face a steep climb in proving that the tree or its setting represents the company's original creative expression.

Moreover, even if the company has registered copyrights for an exhaustive array of Lone Cypress photos, these would not bar further photography. Subsequent photographs of the setting would not be likely to infringe earlier ones, as virtually all similar elements would owe to the setting itself.

So there you have it...

Update: Though it still seems like a strong possibility that publisher demands are behind this, several commenters and other sources have pointed out that it's just as likely to have been Amazon's decision. We mistakenly stated that Amazon implied they were acting at the publishers' behest, but that was a misreading of the quote from Findings and has been corrected.

It's really quite amazing how some folks who came up through the old publishing world seem to have a near allergic reaction to new technologies that are somehow "different." You may recall the previous freakouts over text to speech, library lending of ebooks and efforts to scan physical books into ebooks. The latest horror? Highlighting. Yes, be afraid, you modern techno-wizzes. The publishing gods are afraid of your ultra-hip and modern "highlights" via the Kindle, because (*gasp*) they might be... (ominous music)... shared! Yes... I said it: shared.

A startup called Findings had been offering a neat little feature via the Kindle, that would allow people to sync and share the text that they highlight on the Kindle. You could see all sorts of ways that this could be interesting, informative and useful. But, all that the traditional book people saw was "ohmygosh! that could be used for piracy!" At least that appears to be what happened, leading Amazon to tell Findings that it was cutting off the service, and making it clear that this was due to publisher complaints.

As that article notes, publishers can (and do!) already limit how much you highlight -- can't have you highlight too much, now -- so it's not like the concern was that you'd just highlight the whole thing and release that on the world. It just seems like a knee jerk reaction to a useful feature that is somehow too different.

Recently, the New York Times had a trend piece about the Thiel Fellowship program. The program is very interesting, and I was hoping to garner some insight into its success. However, I was left severely disappointed at the lack of any critical examination of the program, which is still quite controversial. The whole piece read like a PR blast. For instance:

1. The program encourages high achieving individuals to skip college in exchange for $100,000 over two years of fellowship grant, plus access to Thiel's network. While many projects discussed in the article were interesting, there was virtually no information about the sustainability of any of these projects or whether or not the fellows had achieved any academic success - such as publications - or business success.

2. The article entirely omitted any examination of the fact that Thiel himself has an undergraduate degree from Stanford and a law degree from the same -- this was relegated to a parenthetical. Surely some examination into this seeming contradiction is merited.

3. Similarly, the article totally failed to examine the fact that, at best, this program can really only be successful in a narrow slice of fields -- computer software being the largest. For applied sciences generally, however, and especially engineering and medicine, you simply cannot be an autodidact and a viable career candidate - I'm not allowing someone without an MD to replace my hip, and I'm certainly not allowing someone without engineering qualifications to design my hospital. Too many professional organizations, professional licenses and research areas require formal schooling for this model to be scalable in our most key STEM disciplines. And yes, clearly some fellows are studying applied engineering, such as solar cells, or going into biotech, but there was no critical examination in this article, whatsoever, of whether it is feasible to be an autodidact in these fields, which typically require years of graduate level tutelage, even for students well into the genius range. For instance, there was a story about a fellow who was studying gerontology and having great difficulty raising funds - is this, perhaps, because a serious VC is not willing to give funding to someone in this field who does not have an MD or equivalent bio degree? I know when raising money for tech startups, VCs frown upon so-called "non-technical" founders - I'd be very surprised if this was not also the case in biotech and electrical engineering.

4. A huge part of Thiel's argument, from what I gathered, is that the network he introduces his fellows to is a large part of the importance of the program. This article seems to be ignoring the fact that, for the vast majority of us, including Thiel himself, these networks are actually formed at institutions of higher learning.

5. The biggest indicator, I think, of the laziness of this article is that the lede is about a student who left Princeton to become a Thiel Fellow, and the "cost" of Princeton was not even the primary factor in this decision. I should certainly say so. Choosing a Princeton student is an exceptionally poor example, as Princeton is renowned for having possibly the best financial aid department of elite American schools, excepting the military academies. Princeton was the first school to completely eliminate student loans as of 2001, and they give extremely generous aid packages. So, from the very get-go, the author's credibility was sincerely lessened in my eyes. Additionally, the statement that this article is being written "[a]t a time when the value of a college degree is being called into question..." is highly cynical and glib. What is being questioned is whether colleges are teaching the right things and whether the current college model is appropriate for all students, or if more alternative forms of higher learning need to be explored. What absolutely no one questions is that college degree holders outperform college dropouts, high school graduates, and especially high school dropouts across a wide spectrum of important metrics, including not only lifetime income, but health and divorce rates. This American Life has an interesting and tangentially related piece on the lasting impact of education on young people this week. Fundamentally, the debate is not whether higher education is unnecessary, it is about how higher education can more fundamentally meet the needs of different types of learners and address growth fields in the economy.

So, New York Times, I'd love to see you take a second shot at this. I'm deeply interested in alternative education methods, however, this article was entirely uncritical. It was a fluff piece that, somehow, made the A1 Sunday Headline online -- which baffles me.

Instead of merely talking about how fantastic the fellows are (I'm sure they are), how exciting the program is (I'm sure it is), or what a fascinating iconoclast Mr. Thiel is (this goes without saying), let's see some critical examination of this program. It has been going on long enough that we should be able to see some verifiable data, comparing fellows' progress to the peers they left behind in school, or, if nothing else, some success stories about gainful employment, fundraising, papers publishing, products brought to market, etc. Instead, this seems like a retweet of corporate PR.