As many people expected, Kodak has officially moved to sell off its patents to whoever can abuse them the most. Since the company is in bankruptcy, it needs permission to do this, but that's the easy part. These days, thanks to a totally broken patent and legal system, the patents are incredibly "valuable." Not because they represent any kind of actual innovation, but because they represent a magic tollbooth that lets the holder force other companies to pay. Of course, some of that magic wore off last month when the ITC noticed that one of Kodak's key patents -- one that it had used to score nearly a billion dollars in licensing revenue, was blatantly obvious and never should have been granted in the first place. Kodak claims it's going to appeal, but the patent sale will likely happen prior to any appeal going through. Either way, like other companies who failed to keep up with a changing market (hello, Nortel!), Kodak's final legacy may be supplying weapons to yet another battle in the era of technology patent nuclear war. It's not something to be proud of.

For some people, NASA's Space Shuttle program was almost a complete boondoggle. The shuttles never fully lived up to their original promises, and they were far more expensive than planned. But the design of a reusable space plane captures the imagination in a way that an acorn-shaped capsule doesn't. Here are just a few stories about the Space Shuttle that you might have missed.

• Wayne Hale, a retired Space Shuttle Flight Director, explains how Columbia was damaged by the loss of insulation foam -- by finding out that Discovery was almost damaged in the same way. It wasn't due to improper foam installation, but instead thermal cycling from filling and re-filling the cryogenic fuel. [url]
• On its way to a museum, Enterprise sustains damage to its wingtip after hitting a bridge. The NASA prototype spacecraft never flew in space, and it suffered only cosmetic damage while being transported to its final destination at the Intrepid Sea, Air and Space Museum in Manhattan. [url]
• Caenorhabditis elegans worms actually survived the Columbia disaster, and their descendants flew into space in 2011 on the Endeavour. Worms on a m*********ing spaceplane! [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

It's no secret that the media loves techno-panic stories, especially when they can quote some scientist or researcher condemning a new technology. Sometimes the studies they point to are bogus, but more often than not the fault lies with the reporters, who oversimplify or flat-out misrepresent the findings. The Guardian recently published a perfect example of this, where even the story itself seems to admit that the facts are far less sensational than the headline.

And that headline is pretty blunt: Enhanced ebooks are bad for children finds American study. Bad for children, huh? That must mean there were some pretty clear negative results in whatever this study looked at, right? Not so much. When you read the details, you discover that the study was looking specifically at a book's ability to promote literacy and reading comprehension, where it found that ebooks with interactive graphical bells and whistles distract focus from the text and are inferior in that regard. But the study's authors also note, quite firmly, that this is simply something for parents and educators to keep in mind when deciding on activities for their kids, and that enhanced ebooks are still fantastic for helping to engage kids who are otherwise uninterested in books. Basically, they say a lot of enhanced ebooks fall more on the play side of things than the study side—but kids play, and it's actually great if some of that play involves storytelling and reading, even if it's done in a lighter fashion. In short, they absolutely do not say that enhanced ebooks are "bad for children".

Children reading enhanced ebooks also "recalled significantly fewer narrative details than children who read the print version of the same story", said the researchers, speculating that the extra features may be distracting. But while "print books were more advantageous for literacy building co-reading", ebooks, and particularly enhanced ebooks, were better "for engaging children and prompting physical interaction".

...

Chiong told the Guardian that enhanced ebooks "absolutely still have a place. Kids seem to love them. If enhanced books can engage kids who might not be as interested in reading, we will achieve an important goal. In our study, we were specifically looking at book-reading with a focus on learning and comprehension. That is only one of many purposes for reading. If the purpose is to just have fun or explore a classic tale in a new way, enhanced books are great."

What's not mentioned, but seems obvious, is the fact that this same argument could be applied to books with sound effects, pop-up books, and for that matter just books with illustrations—all things that potentially detract from "pure" literacy but serve to make kids more interested in reading. The researchers also note that enhanced ebooks can be done well and done poorly: the right kinds of interactivity, actually relating to the narrative, can be far less distracting and maybe even beneficial—it's the unnecessary ornamentation that is the core problem. That's not unlike any form of entertainment, even for adults: just see debates about the use of 3D in movies for an example.

So what we actually have here is a pretty interesting study that sheds some light on the way kids interact with enhanced reading material while refraining from taking any extreme positions on the technology. Every newspaper headline writer just fell asleep while reading that sentence.

Torrentfreak has the story of an economics professor (of all things) who has apparently received a patent on a way to try to force students to buy expensive textbooks. The professor, Joseph Henry Vogel, is positioning this patent (8,195,571) as an "anti-piracy" technique, though it appears that it works equally well in preventing students from sharing a single textbook or merely checking the textbook out of the library. The details of the patent are hardly new or innovative either. The basics are that the class has both a textbook and an online discussion board -- and buying the textbook provides you a code that allows you to enter the discussion board. In theory, you could also just buy the code.

There'a all sorts of idiocy involved in this situation. Let's just separate out a few examples:

1. How the hell does something like this get patented in the first place? There is a tremendous amount of prior art in the form of things like "one-time" use codes for video games and other digital offerings to limit the used sales market. And yet this still gets approved? USPTO examiner James D. Nigh should be ashamed for letting this piece of garbage get approved.
2. The claims here (the patent only has four) are so broad and so general, I don't see how it passes the non-obvious test, nor how it is anything more than mashing together a few different things that are widely available already and have been for years. After the KSR ruling the USPTO was supposed to reject broad patents that just combined basic concepts already found in the market.
3. How could a professor of economics actually think that locking up access to information is a good idea? That alone would make me avoid any class that he taught, as his understanding of information economics is way, way off.
4. It's sad that anyone in academia would think that this is a good idea. In an age where Harvard and MIT are investing a ton into opening up access, this guy is focused on locking it down.

The whole thing is extraordinary for how bad of an idea it is -- and the fact that a patent was actually issued on this only compounds the ridiculousness.

About a year ago, Matthew Inman wrote a short article highlighting Funnyjunk, one of the many image aggregating sites on the internet. This article, titled What should I do about FunnyJunk.com? was a short exploration of his impression of the site and some of the complaints he had about it. Primary among them was that the site hosted copies of his comics without attribution or links back to his site. Other than that, his complaints revolved around the shear ugliness of the site (they still have not updated it). He ended that exploration with a level-headed look at the big picture.

I realize that trying to police copyright infringement on the internet is like strolling into the Vietnamese jungle circa 1964 and politely asking everyone to use squirt guns. I know that if FunnyJunk disappeared fifty other clones would pop up to take its place overnight, but I felt I had to say something about what they're doing.

No legal threats. No claims that this site was destroying his business. Just a recognition of the issues and a call for a discussion about it with Funnyjunk. Funnyjunk then responded with a rather hyperbolic claim that The Oatmeal was going to sue the site and have it shut down. Clearly not the case. Matthew had thought that was the end of the issue. Until recently.

Yesterday, Matthew wrote on his blog that Funnyjunk has sent him legal papers threatening the Oatmeal with a defamation suit. The letter makes a wide array of claims, some correct and some just outright weird. Matthew does a fairly good job of taking apart each of the claims against The Oatmeal. So I will let you read through those on your own. Our interests lie, rather, in some of the finer points of this dispute.

Funnyjunk, as a user generated content site, is probably protected by the DMCA, something it goes through great pains in its legal letter to explain. Much like Imgur or Youtube, as long as it complies with the DMCA (i.e., has a registered agent, properly responds to takedowns, does not "induce" infringement), it is likely protected. However, that really isn't at issue here. No one but Funnyjunk has brought up the DMCA or talked about lawsuits.

Instead, I think it is time to hearken back to a few years ago when we talked about something similar happening in the comedy business. The idea is that social mores and rules can result in punishment of what society feels is unfair or unethical. So although Funnyjunk is working within the bounds of current law, it was still perceived as doing something unethical and the community responded appropriately. Much the same way the comedian who copied his jokes was shunned by the community.

Which leads us to one of the key complaints made by Funnyjunk, that Matthew's blog post "injured Funnyjunk in its trade, business or profession." That is most likely true considering the power of enforcement through social norms. The Oatmeal has a very strong following around the internet (274,924 followers on Twitter, nearly 600,000 on Facebook). So of course those people would be upset when Matthew is upset and they would probably respond in kind (it helps when Matthew actually asks his fans to respond). This is completely normal. But telling people your opinion as to why you dislike a particular site, and letting them make their own decision about it isn't illegal. It's kind of the crux of how our system of free expression works.

Perhaps most interesting of all, Matthew has also taken this public shaming of Funnyjunk to a new level. In response to this legal threat demanding $20,000, Matthew has decided to instead raise that money and donate it to charity. He has done this because he feels that Funnyjunk's claim of defamation has no merit and he does not want to deal with a lawsuit over the next year. As a result of this very public slap in the face, The Oatmeal raised $20,000 in 64 minutes. It has raised over $100,000 at the time of this writing. None of which is going to Funnyjunk.

In the end, it seems like a great lesson from pretty much every direction. It's an example of where you don't need to rely on laws to make things right -- and, in fact, the one party who tried to rely on laws (by being way way way way too overaggressive) gets "punished" in the court of public opinion instead. Seems like a good solution all around... though we haven't yet seen how Funkyjunk will respond. If they're smart, they'll either apologize (very very publicly) or just shut up about all of this.

In the comments to our story last week about false arrests for filming police, someone pointed to yet another such story of a woman who was arrested for filming the police. Even worst, the police confiscated her phone -- which she had shoved into her bra -- and then have refused to return it, claiming that it's now "evidence" of a crime.

If there's any "good" news in this story, it's that the police chief immediately ordered an investigation into the officer who did this, and noted that it's legal to film police. Still, the details of what happened seem pretty crazy. As reported by the New Haven Independent (linked above):

“Stop filming right now!” Rubino ordered her.

“No this is my civil right,” she recalled saying. Gondola said she’s “always on all these news sites” reading about recent cases in which cops got in trouble for snatching cameras from citizens.

“Well, I have to right to review it,” Rubino allegedly told her.

Gondola claimed she remained “very quiet and calm” and “pressed play” to show him the video. “But I didn’t let him touch my phone.”

Rubino’s response, according to Gondola: “It’s evidence of a crime. You need to give it to me right now.”

Her response to his response: “I’m not giving you the phone.”

His next response: “If you don’t give me the phone, you’re getting arrested.”

So Gondola slipped the phone into her bra. Rubino “twisted my hand hard behind me and put the cuffs on me. Really tight. My wrists are black and blue,” she said.

Rubino next ordered a female officer to pat her down and commanded, “I want that phone out of her bra.” The woman removed the phone. Rubino “put it in his pocket,” Gondola said.

The article, written a few days later, notes that later on she demanded the phone back, and was once again told that it was "evidence" and that the only way she can get her phone back is to wait until she goes to court, and asks the judge to return the phone. At the very least, it sounds like she will be without her phone for well over a week. In these days, when phones are pretty central to a lot of people's lives, that can be a pretty big hardship... all for doing something perfectly legal: filming the police on duty.

In the ongoing saga of what happens to all the data stored on the Megaupload servers, the Department of Justice has now filed a truly revolting argument in seeking to end the efforts by a Megaupload user, Kyle Goodwin (who uploaded and stored sports videos that he shot), to regain access to the content he uploaded.

As we've noted, there's been a lot of finger pointing going on here, with a bunch of highly questionable actions on the part of the government, including its repeated suggestion that all of this data -- which, remember, they seemed to think was evidence of a crime -- should simply be deleted. But what's so sneaky and duplicitous about the DOJ's argument here? They're saying that because they never actually seized the servers in question, this has absolutely nothing to do with them -- and that Goodwin would be better off suing Megaupload or Carpathia (the hosting company) or simply paying Carpathia to access the servers. Basically, it says that no one's stopping him... other than the fact that all the servers are offline thanks to the feds' own actions (but, please, they'd prefer you not remember that part). They actually seem to feign surprise that their own actions of seizing Megaupload's domains and all of the company's (and its exec team's) money, and arresting the entire senior management team... might lead to the site being shut down entirely.

Basically, it's as if the government walked into a china shop, smashed up every last piece, and then walked out. When the owner then sought restitution from the government, the government suddenly insists that since it didn't take any of the broken pieces out of the shop, there's no cause for action against the government. And all the smashed up little pieces are still there, so why would anyone complain?

Oh, and just to add totally obnoxious insult to injury, the DOJ also says that even if the court decides that there's some merit in the arguments laid out by Goodwin, even that doesn't matter, because it'll just cop out and declare "sovereign immunity" and avoid having to pay out. The whole thing is a fairly disgusting display by the DOJ showing just how far it will go to lock someone up once it's determined to. They will cause all sorts of collateral damage, and when someone calls them on it, they'll just point the finger elsewhere... all while demanding even more power to censor with impunity.

Over the last few years, we've been following a series of cases that have challenged the first sale doctrine -- which says that if you buy a product that has some element covered by copyright (i.e., a book) you're able to resell that item at a later date without seeking permission from the copyright holder(s). There was the very troubling ruling in the 9th Circuit in the Omega/Costco case, in which watchmaker Omega put a tiny little image on the underside of its watches -- for which it claimed copyright -- that were sold relatively cheaply outside of the US. When a bunch of those watches were purchased (legally) outside of the US, and then imported and sold by Costco (for less than what Omega was selling watches for directly in the US), the company sued... claiming copyright infringement on that tiny logo no one looks at.

Now, you might think that under the first sale doctrine, it wouldn't matter. But, the statute is inelegantly worded. It says that first sale applies to products made "under this" law. Omega argued that since the products were made outside the US, they weren't made under the US Copyright Act... and thus, were not subject to the Copyright Act or first sale when they showed up on US soil. The Supreme Court heard the case, but split down the middle, because Justice Kagan had filed an argument as Solicitor General in that case, and thus recused herself. Worryingly, as Solicitor General, she has argued that first sale does not apply to foreign goods.

Last year, we had another ruling, over in the 2nd Circuit, which in many ways was even worse. It involved a guy, Sudap Kirtsaeng, who had relatives in Asia purchase cheaper textbooks there and ship them to the US, where he then resold them at a profit (but still for less than what the publishers were charging in the US). Publisher John Wiley & Sons sued... and got a ridiculously broad ruling, saying that any product manufactured outside the US is not covered by the Copyright Act, and thus not eligible for first sale protection.

In fact, in many ways this ruling was even worse that the Omega ruling -- which at least said that if the manufacturer had authorized the product for sale in the US, then first sale rights would apply to all of those products, this ruling even said that this was not true. The court acknowledged that this was kind of a crazy situation, which could have ridiculous consequences (all manufacturing moves overseas immediately to get away from first sale doctrine), but says that's what the Copyright Act appears to say:

Kirtsaeng argues that this holding is undesirable as a matter of public policy because it may permit a plaintiff to vitiate the first sale doctrine by “manufactur[ing] all of its volumes overseas only to then ship them into the U.S. for domestic sales.” Defendant-Appellant’s Br. at 21. Phrased differently, it is argued that any such decision may allow a copyright holder to completely control the resale of its product in the United States by producing its goods abroad and then immediately importing them for initial distribution. In this sense, the copyright holder would arguably enjoy the proverbial “best of both worlds” because, in theory, the consumer could not rely on the first sale doctrine to re-sell the imported work. In other words, the copyright holder would have an incentive to“outsource” publication to foreign locations to circumvent the availability of the first sale doctrine as a defense for consumers wishing to re-sell their works in the domestic market. The result might be that American manufacturing would contract along with the protections of the first sale doctrine. Kirtsaeng argues that this could not possibly have been Congress’s intent. We acknowledge the force of this concern, but it does not affect or alter our interpretation of the Copyright Act.

In other words, yeah, that's crazy, but too freaking bad.

As we noted in April, the Supreme Court has agreed to hear the case.

Constitutional scholar Marvin Ammori has done an excellent analysis over at the Atlantic about some of the ridiculous consequences of such a ruling being upheld:

Here are some things you might have recently done that will be rendered illegal if the Supreme Court upholds the lower court decision:

1. Sold your first-generation iPad on Craigslist to a willing buyer, even if you bought the iPad lawfully at the Apple Store.
   
2. Sold your dad's used Omega watch on eBay to buy him a fancier (used or new) Rolex at a local jewelry store.
   
3. Sold an "import CD" of your favorite band that was only released abroad but legally purchased there. Ditto for a copy of a French or Spanish novel not released in the U.S.
   
4. Sold your house to a willing buyer, so long as you sell your house along with the fixtures manufactured in China, a chandelier made in Thailand or Paris, support beams produced in Canada that carry the imprint of a copyrighted logo, or a bricks or a marble countertop made in Italy with any copyrighted features or insignia.

Basically, if you sell anything that was made overseas that has anything covered by copyright on it... you might need to get permission to legally resell it. That's insane, and there's no way that was the intention of Congress in passing the law. The courts are supposed to avoid obviously nonsensical outcomes, but they don't always understand the consequences of their rulings. While the courts have (correctly) noted that Congress can fix and clarify the law later, Congress isn't very good at acting quickly on stuff like this and any time Congress even touches copyright law, it's something to worry about.

Ammori notes that there's actually a third case, over in the Third Circuit, Sebastian v. Consumer Contacts, in which the court "was reluctant to accept" the idea that first sale only applies to goods made in the US. So there's a pretty clear circuit split for the Supreme Court to work out. But, it's a little scary that it might come down in support of either the Omega or the John Wiley rulings -- and we already know that the Omega case had four of the justices in support of that absurd interpretation. Ammori points out that the Supreme Court has an opportunity to fix things and get it right this time around, and hopes that it will:

But the Supreme Court doesn't have to impose an absurd result on the nation. The first-sale doctrine reflects basic common sense -- and follows from the logic of treating copyrights and other "intellectual property" with no more protection than regular property. Ever since the end of Medieval feudalism, and the writings of John Locke, we have understood the importance of being able to buy and sell one's own property, including books and watches, both for reasons of economics and liberty.

The Court has several legal justifications for reaching the right result. Courts are supposed to interpret laws to avoid "absurd results" and to avoid constitutional problems -- such as infringing on the free speech rights of Americans that want to buy and sell their own books and creative works that are published abroad and taking away the property rights, without compensation, of the millions of Americans who buy and sell their own stuff every day, in person and online.

Ultimately the Court must choose between bringing copyright law into the Internet age or consigning us all to the dark ages. I hope they choose wisely.

I hope so too, though I have little faith on this one, considering that the Supreme Court always gets screwed up when it comes to copyright cases...

We've been covering the fight that Senators Ron Wyden and Marc Udall have been in with the administration (and other members of Congress) concerning the FISA Amendments Act, in which the two Senators seem to be suggesting that a loophole in the law has allowed the feds to collect massive amounts of data on Americans without getting warrants. While they are unable to make the details clear, it sure sounds like the feds may be twisting the language of the Act, which was supposed to clear away some obstacles to collecting data on foreigners, such that they're collecting massive amounts of data on Americans. When Wyden & Udall asked officials just how many Americans had their data collected via this program, they were told it was impossible to answer that question. That alone should raise serious alarm bells.

Wyden and Udall have now put a hold on the new FISA Amendment Acts extension effort, saying that they don't want to hold back the important parts of the law, but are very worried about how it's being abused to spy on tons of Americans, despite that being against the clear intent. It does seem like a fair question to ask: just how many Americans have had their data surveilled under the law?

We are particularly concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans' communications. Since we do not know how many Americans have had their phone calls and emails collected under this law, we believe that it is particularly important to have strong rules in place to protect the privacy of these Americans. We are disappointed that this bill does not attempt to add these protections.

The central provision in the FISA Amendments Act added a new section 702 to the original FISA statute. Section 702 was designed to give the government new authorities to collect the communications of people who are reasonably believed to be foreigners outside the United States. Because section 702 does not involve obtaining individual warrants, it contains language specifically intended to limit the government's ability to use these new authorities to deliberately spy on American citizens.

We have concluded, however, that section 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens. We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number.

The Office of the Director of National Intelligence told the two of us in July 2011 that ``it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed'' under the FISA Amendments Act. We are prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for us to believe that it is impossible to even estimate it.

It really is incredible just how much it seems that the federal government is doing everything it can to avoid the basic checks and balances that are supposed to keep excessive behavior in check. Considering the bill is supposed to protect, not expose, Americans, it's scary that the government refuses to even estimate how many Americans are spied upon in this manner. Given the continued efforts and statements of Wyden and Udall, it seems evident that they're aware that the feds are treating this law in a very different manner than the public believes -- but they're held back from saying anything specific, due to much of the info being classified.

Even worse, however, is the attitude of Senate colleagues, who seem ready to push this extension through no matter what, so they can declare that they're helping to keep the country secure, without even bothering to understand the massive loopholes and likely abuse by the feds under the law. From what's been said, it appears that many in the Senate seem to take it at face value that the bill is only used for collecting info on foreigners, and thus they're voting from a position of ignorance. At the very least, they should be willing to speak out and demand the same data that Wyden and Udall are asking for: an estimate as to how many Americans have had data exposed under this bill. If it really is supposed to only focus on foreigners, but millions of Americans have had their info accessed, that seems like a problem that should be addressed, rather than one that should be swept under the rug, as most in the Senate seem interested in doing.

Back in 2009, we wrote about how anti-piracy organization FACT worked closely with UK law enforcement to have the guy who operated Filesoup arrested. At the time, we noted that it wasn't at all clear what he was doing that was illegal, as the site was merely a forum. Though some people did, in fact, use that forum for the sake of infringement, that shouldn't implicate the forum host. And, in fact, after about a year and a half, the courts dropped the case, realizing that the arguments the industry kept feeding law enforcement didn't add up to anything illegal. The court noted that the charges never should have been brought in the first place. Of course, that's small comfort to the folks who ran the site and had to go through this ordeal. The site has announced that it's shutting down, and the arrests and lawsuits were a big part of what killed it.

With people still talking about the mess of Facebook's IPO, it's been causing other companies problems as well -- including a series of postponed IPOs. However, the folks over at McSweeney's have uncovered the S-1 filing for what could possibly be the next hot IPO. As they note, this is one "where nothing could possibly go wrong." If you're into reading these kinds of things, check out the full prospectus. Or just sample the risk factors here:

An investment in Ponzify involves significant risks.

User metrics
A significant portion of our income is derived from advertisers who still buy this whole “clicks” and “page count” business. Thus, we plan a vigorous defense of our current metrics while making up new ones with impressive-sounding names. For instance, KonBuy (short for “Konfirmation Bias”) scores the popularity of apps and websites based on whether their titles are intentionally misspelled portmanteaus.

Age Factor
Our CEO, CFO, COO and a bunch of other acronyms were all born after Nirvana released “Nevermind”.

Experience
Did you watch that two-part Frontline special on PBS about the inside story of the global financial crisis? We did. We were like “Dude, that’s like what we’re doing!”

If only real prospectuses read this way...