Eric Goldman has a post about a district court (Eastern District, NY) dismissing a trademark claim against the site PissedConsumer, by a company that was upset about what people were saying about it on the site. Of course, that's a pretty clear abuse of trademark law, which isn't about letting trademark holders block any usage -- especially not reviews or criticism. Instead, trademark law is supposed to be about protecting consumers against confusion over products and services for sale. That is, it's about stopping Bob's Cola from pretending to be Coca Cola -- not necessarily because it protects Coca Cola, but because it protects the consumer doing the buying.

In a case like this -- which we've seen all too often -- Devere Group got upset about what people were saying about them on PissedCustomer, and tried to pretend that was a trademark violation. Similar cases tend to get thrown out eventually, but what struck Goldman as interesting about this is that it got tossed out early over a lack of consumer confusion at the "motion to dismiss" stage. At that point, the court is supposed to assume that everything the plaintiff is saying is true (later stages of the case can explore if that's true). So, to throw out the case at this stage is really early. As Goldman notes:

Running through a truncated likelihood of consumer confusion mutli-factor analysis, the court says PissedConsumer isn't deVere's competitor, there's no chance PissedConsumer will "bridge the gap" to become a competitor, deVere didn't allege bad faith and deVere didn't allege actual consumer confusion. The court bypasses the remaining factors, something an appeals court probably won't do. Instead, the court says that judicial precedent has held that gripe sites don't create consumer confusion.

Goldman notes that even if this is a good result (having a court dump an obviously bogus lawsuit at the earliest possible point), he expects an appeals court to overturn this for happening too early. However, in an update, he also highlights a few more cases pointed out by Rebecca Tushnet of courts doing something similar:

Rebecca sent some other recent examples of trademark claims failing on a motion to dismiss, including The Hangover II case, Forest River v. Heartland RV and Architectural Mailboxes v. Epoch.

While it may be slightly procedurally questionable, I'm wondering if this shows that courts are very, very aware that companies are seeking to abuse trademark law these days and they're having none of it. Combined with some similar early dismissals in copyright trolling cases, and it seems like judges are showing little patience for companies trying to abuse IP laws to silence others.

Bike enthusiasts do a lot of kinda crazy things (like developing human flight), so it's not that unusual for bike designers to come up with some interesting innovations in transportation every so often. If you've ever been annoyed by a bike chain eating your pant leg or just getting you greasy, here are a few solutions that completely eliminate the need for those pesky metal links.

• Hungarian bicycle designers made a chainless bike that uses high density polyethylene (HDPE) strings in a pulley system. This design also lets cyclists (or potential thieves...) remove the rear bike tire very easily since no chain is attached to the rear wheel. [url]
• Dynamic Bicycles sells a chainless bike with a drive shaft with shielded internal gears that aren't exposed to the elements. No strings or chains in this design, just some gears turning a shaft connected to a Shimano transmission hub on the rear wheel. [url]
• The Lunartic bike concept is belt-driven and also has a hubless rear wheel. Suspension seems like a problem for this bike design, but there's no annoying chain to deal with. [url]
• Western Michigan University students have created a hydraulic bike that uses fluids instead of a chain to transfer pedaling power into forward motion. The BroncoBike doesn't look exactly lightweight or compact, so it's probably not a very practical alternative to a traditional bike chain (yet?). [url]

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

Techdirt has been writing about artists and bands enabling concert-goers' use of smart phone video since its article URLs still ended in numbers. But this has always been something of a gray area, where for every band that likes amateur films promoting them, there's another band (or copyright holder) who hates it.

Perhaps that's about to change. Business Week has a fascinating story of a new smart phone application being created by Joe Sumner, bassist for the rock band Fiction Plane, to sync multiple crowdsourced movies into a single experience. The idea came to him when his band was touring Lithuania and he noticed that there was a ton of amateur video of the previous night's concert up on YouTube. A ton as in 450 or so videos. And, rather than freak out about people being able to see the band for free on the video site, he created a company, Vylcone, to design an application that would empower and enable those same fans by creating something to link all that footage together and make something awesome.

"Its free program debuted in Apple’s (AAPL) App Store on July 18 and lets two or more people in close proximity shoot video with their iPhones, upload the clips, and view a movie automatically spliced together from different angles. To recognize that multiple users are filming the same scene, Vyclone tags each video with the location where it was shot using GPS. To synchronize the clips, it lines them up by the date and time they were shot, regardless of when they were uploaded. A simple-to-use video editor lets users play director, toggling from one angle to the next with the tap of a finger."

If you're feeling that tingling sensation in your naughty bits, don't worry, that's normal. As music moves through the digital age and bands recognize that the concert experience is where they need to really be making significant money, they and the music labels that will now want a piece of that action had better get on board concepts like Sumner's. Commenters often ask why people would continue to pay the rising costs of concert tickets; this is why.

Concerts have always had the draw of the social experience, but now you're talking about deepening the social aspect of a concert by encouraging fans to contribute to a crowdsourced concert movie. Something they will feel a part of. Something that will create a connection between the concert goer, the band, and other concert goers. And the app is (GASP!) free!

And it does look as though people in the entertainment business are paying attention:

"The startup is based in Los Angeles and London, and has 13 employees. Lassman is chief executive; Sumner, chief creative officer. They’ve raised $2.7 million from [Guy] Oseary and [Ashton] Kutcher’s fund A-Grade, along with movie studio DreamWorks, concert promoter Live Nation (LYV), and VC firm Thrive Capital."

Technology that helps artists connect with fans and gives fans a reason to buy (concert tickets, merch, etc.). Concerts may have just gotten more interesting.

Language matters. In debates we see over copyright and other issues, it's often amazing how the industry has really twisted the language to their advantage. A few years ago, Bill Patry wrote an excellent book all about how the entertainment industry inserted its preferred language into all of the debates over copyright, such that they can claim the moral high ground on an issue that is really a business model/economic one for the most part. Of course, those of us pushing for fixing problems in copyright law unfortunately sometimes fall into the same traps. Just recently, for example, we talked about how we should stop calling things "orphan works," and more accurately describe them as they are: hostage works.

I was thinking about this while watching Jamie Love's recent interview with Alan Adler, the VP of Legal & Gov't Affairs for the Association of American Publishers. We already discussed the substance of the discussion around various international agreements for "limitations and exceptions" to copyright law. "Limitations and exceptions" has been standard terminology for things like fair use, fair dealing and other "valves" to stop copyright from being completely oppressive. However, as I watched Adler, some of his comments around those things bothered me. You can watch it below, but I'll call out a few quotes:

"For publishers, they really don't have a business, unless they own intellectual property assets, that they're able to use, control and exploit in the marketplace. So the threat of piracy and the threat of restrictions, limitations, exception to their rights as copyright owners is always a concern to them, because it effects the way they do business. The WIPO is now looking at creating international instruments addressing a number of different things -- but all of them have one thing in common: they would cut back on the rights of publishers as copyright owners by introducing new limitations and exception to those rights..."

"Interestingly, our interest and concern about whether it's a treaty or some other form of international agreement, probably would not have been much of a problem if we were only working on the issue of print disabilities. But with the effort to develop supposed proposed treaties on limitations and exceptions for educational uses and also a separate effort moving parallel to this, to develop a similar treaty on limitations and exceptions for uses by libraries and archives. The problem we have in the area of print disabilities is we really don't want to establish a precedent of developing a series of treaties that specifically focus on trying to set forth minimal limitations and exceptions to the rights of copyright owners. Up until this proposal with respect to print disabilities, generally the treaties and other international agreements that have been devised by the WIPO have been to establish the minimal rights of copyright owners -- not the limitations and exceptions to those rights. And the notion that now, because of the concerns of developing countries and some of the agreements that have been made to pursue an agenda of issues that are of concern to developing countries, we're now beginning to focus on limitations and exceptions."

I have to admit that it's somewhat refreshing that Adler comes right out and says this honestly: that the companies he represents are worried that it might change their business models, rather than making any kind of unsupported moral claims or suggestions that these "limitations and exceptions" are somehow going to destroy content.

That said -- and this comes through strongly in that second quote above -- it's a bit disturbing the way he seems to think that the only thing at issue is the rights of copyright holders, and the way he only describes limitations and exceptions in terms of how they take away rights from the copyright holders. That's incredibly misleading. These "limitations and exceptions" with things like fair use are actually rights of the public. Copyright has always been a restriction on the rights of the public. We can argue over whether or not it's a reasonable or appropriate restriction, but that's what it is. When we flip the language and call things like fair use -- which give back some rights to the public -- "limitations and exceptions," we're unfortunately playing into the language framing of copyright holders, and allowing Adler to say things like he does above and have them sound marginally reasonable.

Yet, if you changed around what he said to make it more accurate by noting that these limitations and exceptions are really about increasing the rights of the public, you begin to realize that what he's saying is pretty crazy:

"For publishers, they really don't have a business, unless they hold government-granted monopoly privileges, that they're able to use, control and exploit in the marketplace. So the threat of infringement and the threat of the public regaining some of their own rights is always a concern to them, because it effects the way they do business. The WIPO is now looking at creating international instruments addressing a number of different things -- but all of them have one thing in common: they would increase the rights of the public by restoring their ability to make use of those works...

"Interestingly, our interest and concern about whether it's a treaty or some other form of international agreement, probably would not have been much of a problem if we were only working on the issue of print disabilities. But with the effort to develop supposed proposed treaties on the public's rights to use works for educational uses and also a separate effort moving parallel to this, to develop a similar treaty on the public's right for uses by libraries and archives. The problem we have in the area of print disabilities is we really don't want to establish a precedent of developing a series of treaties that specifically focus on trying to set forth expanded rights for the public. Up until this proposal with respect to print disabilities, generally the treaties and other international agreements that have been devised by the WIPO have been to take away and limit the rights of the public -- not to expand and clarify those rights. And the notion that now, because of the concerns of developing countries and some of the agreements that have been made to pursue an agenda of issues that are of concern to developing countries, we're now beginning to focus on the rights of the public."

That is a lot more accurate version of what he's saying when you realize the nature of what's really being discussed. So even as we're happy that at least there's been a lot more talk of "limitations & exceptions" (even by the USTR in the TPP negotiations), it seems wrong to cede the framing of the discussion to special interest industry folks. These aren't "limitations and exceptions," they're the public's right to access, to create and to express themselves.

Anil Dash recently alerted me to a White House petition to get "government-developed software" under an open source license for the sake of allowing others to build on it and approve it.

Top Three Reasons to Mandate Open Sourcing of Custom Federal Software:

Openness: Open Sourcing ensures basic fairness and transparency by making software and related artifacts available to the citizens who provided funding, consistent with the President’s 2009 declaration that “Information maintained by the Federal Government is a national asset.”

Economic Multiplier: Making Provides an economic stimulus by serving as the raw material that supports a competitive software development and services industry.

Supports the Federal “Shared First” Agenda: Maximizes value to the government by significantly increasing reuse and collaborative development between federal agencies and the private sector, consistent with the current Office of Management and Budget (OMB) “Shared First” initiative.

While I certainly share the sentiment expressed in those reasons, I got into a bit of a debate on Twitter about this, because existing law (i.e., 17 USC 105) already says that "Copyright protection under this title is not available for any work of the United States Government." In other words, anything created by the US government is already public domain. Of course, public domain and open source are two different things -- but if something is public domain, it could preclude the ability to then slap a license on it, since those licenses are effectively built off of copyright, and claim specific limitations, which the government might not be able to actually claim over the software. Of course, they don't always seem to follow this, as we noted recently in our post about the NSA open sourcing its database technology, Accumulo.

The flip side, of course, is that even if something is public domain, the government could still keep it a secret -- as is the case with many Congressional Research Service (CRS) reports. So you can see the argument for pushing for an open source license, rather than just an admission of public domainness. Furthermore, as amac helpfully pointed out, there are significant exceptions to the rules saying the feds can't copyright (for example, contractors or just those funded by the government can copyright their works and then even assign them to the federal government). Furthermore, it may only be seen as public domain in the US, rather than elsewhere.

And, on top of that, Dash made a reasonable point that his focus is on advocating pragmatism in dealing with this -- and he believes that pushing for open source licenses is, perhaps the most pragmatic.

I don't disagree with Dash, but I fear the idea of setting up the belief that the federal government needs to set a particular license for a work to be useful to the public to build on. It only increases the idea that public domain works can be "owned" and limited in ways that is simply not true. I would think that a much more useful solution is a two-fold one: first an admission that government-created software is, in fact, public domain and second, a policy decision and statement that not only will such works be public domain, but, as a matter of standard procedure, that the federal government will also release the code for others to build on with no particular limitations and with encouragement to then share the results in kind.

We hear over and over again from traditional reporters how we need to "protect" newspapers and how, as newspapers fail, no one can step in and replace them -- especially not "new media" like blogs. In fact, we're told how newspapers are "trustworthy," but blogs are "amateurish" and prone to hyperbole and errors. It's a common story told over and over again -- especially by those supporting the idea of paywalls and the like. In fact, we wrote about yet another such example just recently. And yet... it seems that we just as frequently hear about newspapers making big mistakes, and blogs stepping in to correct them.

Today's example involves the supposedly venerable Wall Street Journal, who posted a column by former publisher L. Gordon Crovitz, trying to claim that the internet was really invented by private companies, without much government support. Except, of course, that's false. Ridiculously false. Thankfully, we had blogs to step in and debunk many of the factual errors made by Crovitz. Quickly into the breach stepped Steve Wildstrom at Tecpinions, who pointed out that Crovitz's version of history was way off and then Tim Lee at Ars Technica, who went even deeper in showing how Crovitz mangled the history.

Among the many, many errors in Crovitz's piece were the claims that Tim Berners-Lee (no relation to Tim Lee above) "invented hyperlinks." He did no such thing. He invented the web, which came long after hypertext and hyperlinks were well known and well-established. He also tries to downplay Arpanet, and worst of all pretends that because Vint Cerf (with Bob Kahn) invented TCP/IP, that it shows it was done without the government's help. He, of course, leaves out that both were employed... by the government. It also plays up the importance of ethernet, invented at Xerox PARC. This was a big deal (and I even have a photo of the first ethernet connection that I recently took on a tour of PARC), but that was for local networks and not "the internet."

To be fair, this is the opinion pages, not the reporting pages, but the WSJ is supposed to have a pretty high bar for getting facts right, isn't it? And I would assume that applies to the opinion pages as well. Of course, what's interesting is that Crovitz has a history of this kind of thing. A couple years ago, we wrote about another piece by him which misattributed a quote of mine to someone else's and then took three days or so to post a correction. This Crovitz piece has added one correction at the time of my writing this, but only for (another) misattributed quote (Crovitz apparently didn't realize that he was quoting a blog post by Tyler Cowen quoting someone else and attributed it to Cowen). Everything else is still in there.

Of course, even more ironic in all of this is that Crovitz helped found Journalism Online -- one of the leading companies pushing newspapers to set up paywalls, arguing that newspapers need people to pay, or all good reporting will go away. Everyone makes mistakes. It's not limited to either newspapers or blogs. I don't mean to pick on Crovitz or the WSJ in particular here (even though the mistakes in his piece were both plentiful and easily cross checked). It's just that the idea that newspapers have some sort of "lock" on factual, objective reporting -- whereas newfangled "blogs" are chock full of misinformation -- is an inaccurate position. Yes, there's plenty of misinformation spread on various sites, but the same thing shows up in "traditional" media too. The point is that the wider ecosystem seems to be pretty damn good at highlighting those mistakes (even if the WSJ is then very slow to correct them).

For a while now, we've been following the ridiculous story of Richard O'Dwyer, the student in the UK who the US is trying to extradite to face criminal charges, all because he created a website where people linked to streaming TV shows (some legal, some not). At no time did he host illegal content. He just built the site. While the public has spoken out against the extradition, the Home Office, led by Home Secretary Theresa May, has so far held fast to sending O'Dwyer across the Atlantic.

Given all that, it's interesting to see this story, sent over by PressurCookrTheatr, highlighting the kinds of folks that Theresa May and the UK Home Office have refused to extradite over the last few years. It turns out it's a large and growing number, and even includes some terrorists. In those cases, however, May has magically decided that there are "human rights" reasons to keep them in the UK.

• In 2011, at least one terrorist – and possibly up to four – was allowed to stay, as well as up to eight killers and rapists. Also among the total were 20 robbers and up to eight paedophiles, plus as many as four people convicted of firearms offences.
• In 2010, the Home Office conceded in the cases of up to four murderers and up to four people convicted of manslaughter, as well as up to four rapists, up to eight paedophiles and 43 people convicted of violent crime or robbery.

That's from The Telegraph, which found out that and much more via a Freedom of Information Act request. The article has a lot more detail, but it seems pretty clear that May and the UK government have rejected extradition on all sorts of cases involving people accused of all sorts of horrible things. But when it comes to O'Dwyer? Well, you know, the MPAA is upset with him, so he's gotta go...

Apparently many of these decisions were made to avoid violating the Human Rights Act. For example, one guy, a Ukrainian accused of running "Britain's biggest sham marriage racket," has avoided extradition because he has two kids in the UK. What O'Dwyer should have been doing, instead of fighting extradition through legal means, was knocking someone up so he had a kid in the UK to convince Theresa May that he should stay.

Last month we wrote about a new copyright law in Japan whose punishments seemed so disproportionate it was hard to take it seriously. For example, downloading unauthorized copies or backing up content from a DVD were both subject to criminal penalties. According to this story from Daily Yomiuri Online, it looks like it's no joke:

The Metropolitan Police Department arrested Yoshiaki Kaizuka, 43, an executive of Chiyoda Ward publisher Sansai Books Inc., and three other company employees on suspicion of violating the Unfair Competition Prevention Law, and sent papers on the firm to the Tokyo District Public Prosecutors Office. According to a senior police official, these are the nation's first arrests over the distribution of software to remove copy protection.

And their terrible crime? Allegedly selling a book that told people how to make backup copies of DVDs. That, of course, would involve circumventing the trivial copy protection on DVDs, which was enough to trigger the arrests, apparently. But as a post on Wired.it points out, if publishers can get into trouble under the new law so easily, so might others:

It's interesting to note that Japanese cyber Police could arrest the Amazon Japan CEO too as the online giant is selling a lot of magazines, books and software packages for DVD copy and ripping: exactly what put in trouble Sansai Books staff.

The same post notes that many GNU/Linux distributions come with the libdvdcss library which similarly allows the DRM system to be circumvented so that the DVD can be played, and would therefore fall foul of the new copyright legislation. So does the Japanese government plan to go after all the Web sites offering such software, and all the users?

The current action probably doesn't presage a massive crackdown on every infringing use, since that would involve arresting a significant fraction of the Japanese population. It's more likely to be an attempt to put the frighteners on people in the hope that everyone will stop downloading files and cease making backups. As we know from similar situations, that may work for a few months. But once things die down, people will go back to doing what they did before until the next time the Japanese authorities decide to make an example of someone, and the whole pointless cycle begins again.

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Last time we visited Notch, the creator of Minecraft, and his legal woes, he was being sued for trademark infringement over his company Mojang's latest game, Scrolls. That suit was eventually settled—though unfortunately not over a Quake 3 match as Notch proposed. We probably won't get a similar offer from Notch in this new scenario: he's being sued for patent infringement by the Eastern Texas-based patent troll Uniloc. This is the same Uniloc whose suit against Microsoft led to the CAFC ruling that 25% of all profits for a single patent infringement claim was just a tad excessive.

So why exactly is Mojang getting sued for patent infringement? Well, Uniloc was awarded a patent for a "System and Method for Preventing Unauthorized Access to Electronic Data" back in 2005 (Patent # 6,857,067). The primary claim is that since Mojang has an Android game that uses a network to communicate with an authorization server to perform a license validation check, Mojang has willfully infringed on the patent. The game named in the suit is "Mindcraft"—which of course is not actually the name of Mojang's game. While it is very possible that Mojang may be infringing this patent, Notch stated in a follow up tweet that he is more than willing to "throw piles of money at making sure they don't get a cent". On that same front, this patent could also be invalidated if it is successfully challenged in court.

Perhaps Notch can take some solace in knowing that he is apparently not alone in being sued. According to Reddit, a number of other game companies are being sued for infringing this same patent. This list includes the likes of Gameloft, EA, Square Enix, Halfbrick Studios and a number of other developers. This practice of suing multiple parties for infringing a single patent is a typical sign of a patent troll. It is also a symptom of the huge mess that is software patents.

In a followup blog post, Notch reflected on the idea of software patents and patents in general. He even provided a nice illustration of theft, copyright infringement and patent infringement.

But there is no way in hell you can convince me that it’s beneficial for society to not share ideas. Ideas are free. They improve on old things, make them better, and this results in all of society being better. Sharing ideas is how we improve.

A common argument for patents is that inventors won’t invent unless they can protect their ideas. The problem with this argument is that patents apply even if the infringer came up with the idea independently. If the idea is that easy to think of, why do we need to reward the person who happened to be first?

The post is short but full of some really good insights. Some of them we have touched on before, such as the idea that patents are actually harmful to the software industry. This suit also illustrates another point we have recently written about: how it is impossible to avoid infringing someone's patent. On the bright side, as more such patent infringement suits are filed and more companies and individuals are harmed by the current patent system, perhaps we will see those in Washington take notice and implement some real reforms.

The uglier side of working within walled gardens was made apparent late last week when indie developer Polytron announced it would not be releasing a new patch for its Xbox Live Arcade (XBLA) hit Fez. (More specifically, a patch to fix the original patch, which corrupted a certain percentage of players' saves.) The issue at hand wasn't a lack of desire to throw man hours at a finished game, but rather that Microsoft's XBLA policy only allows for one free patch, with subsequent patches requiring the game to go through a recertification process at a cost of $40,000.

Plenty of articles were written on all sides of the issue. Microsoft's policy on patching has its heart in the right place. It simply wants developers to release polished products, rather than dump unfinished software into the XBLA market and let paying customers do the beta testing. (If only Microsoft felt that way about its own software, but that's an entirely different rant...) But surely there's more than a fine line separating buggy shovelware and a developer trying to improve the gameplay experience for its paying customers.

Some of the articles focused on Polytron's obligation to fix the game despite the cost, especially considering the bug left unpatched affected gamers closer to end of the game. Other press has focused on the fact that Fez's mastermind, Fish, is a bit of a polarizing individual (understatement) and somehow, as such, is possibly just being a crybaby/dick about this issue.

The best commentary on this issue looks at something these others have missed with their focus on contractual obligations, Microsoft/Fez behaving badly, or whether paying customers should be unwilling participants in a contractual feud. Rob at the inexplicably-titled We Make the Cops Look Dumb (home of Mersey Remakes) says they're missing the point. This isn't about everything surrounding the patch and its attendant $40,000. It's about making (and selling) great games.

I’m uncomfortable with any debate that can argue around patches being seen as bad things to have, things that customers or services need to be protected from. Patches are to improve games. Patches are to make games better. Arguing against patches is to argue against the right to have better games. This is a ridiculous thing, beyond absurd. I’m uncomfortable when an imaginary line is drawn between services where patches are ok and where patches are not. Why is a patch to an iThing seen as desirable but XBLA not, beyond the whims of Microsoft?

Rob also looks at some of the other arguments, many of which we've seen used in the comment threads here at Techdirt, especially when dealing with artists finding themselves being manhandled by contractual details. This one in particular surfaces (too) often: "Too bad. They signed a contract."

I’m uncomfortable when people feel comfortable pulling the getting into bed with the devil argument, you signed a contract for fame and fortune and now, this is the price you must pay. I’m uncomfortable because it leaves no room for nuance, it leaves no room for context. It becomes a moral argument with nothing that hinges around whether something is fair, whether something is unfair, whether something is even viable. I would not like to be the person to cast such a judgement because I would not like to be the person if something went titsupus contractualus for me, to have the same argument thrown in my face.

This argument has always bothered me as well. Those espousing it seem hold two contradictory thoughts: that those holding the contract (label, studio, etc.) are somehow both massively benefitting the artists (simply by being the "infallible" system) and allowed to screw their signed artists without being called out for it. So, if the contract allows for screwing of said artists, it's just too bad. Legalese trumps any effort towards making it a mutually beneficial situation.

Then there's this argument: it's ok if this creator gets screwed because he's a jerk on the internet/IRL. This is like saying police brutality is ok as long as the person being beaten is a criminal. Is this rhetorical device still cool if you're the one who happens to be the jerk? Or worse, you could be one of the "good people" that "bad things" happen to.

I’m uncomfortable with the “but it’s Fish” train of thought because next time, it might not be Fish. It might be me. It might be you. It might be your friend or a developer you love not a developer you love to hate.

Then, of course, there's the "helpful" percentage of the crowd, always willing to suggest how things might have been done differently. It's one thing to suggest a solution while suggestions are still being welcomed. It's quite another to roll in post-mortem and point out everywhere the victim went wrong.

I’m uncomfortable when people say “you should have just released on Steam in the first place” when contracts were signed at a time when Steam was still 12 months away from showing its indie selling claws to one and all, when its notorious difficulty to get greenlit was at its peak. When other services were seen as behind the XBLA curve. I’m uncomfortable with hindsight being used as a stick to berate people with.

That's a tough one to avoid. Nearly everyone who's ever posted a comment or written for a blog has at one point or another found it impossible to resist playing a few downs as armchair quarterback. "What you should do next time" is definitely preferable to anything containing the past tense ("What you should have done..."), but neither does much to address the actual roadblock in question.

Rob's main concern is one that should be the main concern for gamers and developers alike: making great games. And Microsoft, for all its well-intended ways, is aligning itself against that very goal.

Right now, I’m just uncomfortable with the whole charade that’s sprung from a statement which points out the ridiculousness of a system that can penalise people for wanting to make better games. And I’m uncomfortable with how comfortably we let this shit slide over us.

Say what you will about Fish's divisive personality or the rigged system that is XBLA. Talk about how an indie studio with a million paying customers shouldn't complain about costs and time. Point out rival services and their advantages. But don't forget that underneath it all, a developer wanted to improve its game and the gatekeeper decided that the developers and customers would be better off if everyone "played by the rules" and nothing got fixed.

Not quite sure what to make of this, but ZDNet has the story of Brazilian author Vanessa de Oliveira stripping naked in public to protest infringing copies of her books, both printed and digital, in Peru. She wrote "NO TO PIRACY" (or, rather, "NO A LA PIRATERIA") in red ink on her front and back, and disrobed in a public place (in front of the Governmental Palace in Lima, Peru) with lots of cameras and press around. Obviously, there is video, though, of course it is certainly NSFW (depending on your place of work): The ZDNet piece provides some rough translations of what de Oliveira had to say on the matter, including claims that there is no book piracy in Brazil (totally not true) and that infringement of books "endangers culture" (also empirically not true).

If it's not obvious, this is clearly a publicity stunt around her book, which according to TorrentFreak's article is "based on her experiences bedding nearly 5,000 men." Uh, yeah.

But the thing that struck me about all of this is that this sort of thing probably works about as well as any other "anti-piracy" technique. Well, if anything, it might do more to increase both piracy and sales of her book, as it may increase interest in the book. But I fail to see how it does anything whatsoever to decrease piracy.

While Senator Wyden has been banging the drum about privacy violations committed by the federal government under the FISA Amendments Act for quite some time, the rest of Congress seems perfectly content to stay ignorant and pretend that there's no possible way that the feds might be abusing the powers that let them spy on nearly anyone without much (if any) oversight. So it's interesting that Wyden was finally able to squeeze out of the Director of National Intelligence an admission that, oh yeah, the feds violated the 4th Amendment. As covered by the always awesome reporting by Spencer Ackerman at Wired:

The head of the U.S. government’s vast spying apparatus has conceded that recent surveillance efforts on at least one occasion violated the Constitutional prohibitions on unlawful search and seizure.

The admission comes in a letter from the Office of the Director of National Intelligence declassifying statements that a top U.S. Senator wished to make public in order to call attention to the government’s 2008 expansion of its key surveillance law.

The letter is embedded below. There are two key admissions in there that are new:

• It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
• I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

Of course, they chose to release this bit of information late on a Friday evening -- exactly the time you release something when you want to bury it. The public should not let this news die. They should be asking their elected officials why they're rushing to re-approve the FAA, and have so far refused to have even the slightest curiosity about what the feds are doing with these powers -- even to the point of claiming that since they've seen no evidence of abuse (not that they've asked for it) they shouldn't assume that there is any. Well, now there's some evidence of abuse. Shouldn't Congress be seeking more information, rather than just rubber stamping a renewal of such powers?

We talk an awful lot about the need for artists to connect with their fans in order to succeed. One of the easiest tools to use in this effort is Twitter. In fact, Twitter is so easy to use, it has almost become the default method for many artists to communicate and connect. Unfortunately, it has an equal ability to cause strife between an artist and a fan. This is the lesson that one nerd rapper, MC Chris, learned recently.

It all started when one fan, Taylor, sent a tweet complaining about the opening act of an MC Chris concert. This tweet was then read by MC Chris while he was preparing to go on stage. It all went down hill from there.

"I was in my green room checking on my Twitter," he said. "During the show, someone tweeted something negative about Richie. And I don't have a problem with stuff like this. I get made fun of and called all sorts of name every day. But if someone messes with my friend I have this weird reaction that happens, and I do things that probably are kind of not normal, abnormal. I just become extremely protective.

"I marched onstage, and in between songs with Richie, I grabbed the microphone and I said 'Who is this person's name,' he came up, and I said, 'You're going to have to go off with somebody with the venue and tell them to escort you off for talking shit on Twitter.'"

Taylor relented and left the show. Then it got even worse, but mostly for MC Chris. Not only did Kotaku get ahold of the story, but Taylor also posted his story to Reddit. It was this widespread dissemination in the online community that eventually led to MC Chris apologizing on video and breaking down in tears while doing so.

There are a number of lessons to learn from this. The internet provides a way for us to quickly express our opinions. Not all of those opinions are going to be well received, particularly by those we criticize. However, the best response to something like that is not to attack the source of the criticism or the tool those people use. The lesson that MC Chris has learned the hard way is that by responding to online criticism with an attack on the person behind it, he has not lost just one fan but the respect of a whole lot of others. While his apology seems sincere, such things tend to not heal wounded fans very easily.

That said, it is great that MC Chris was taking an interest in what his fans were saying about him and his opening acts. Doing so can be a great way to gauge the how well recieved you are and how you can improve. However, lashing out when negative opinions are shared will do nothing but harm your reputation and your ability to monetize your work. We know that if people like you and your work, they'll pay.

GEMA is killing the music industry. Despite needing artists to survive, GEMA seems particularly hellbent on destroying any venue these artists might use to make money in its quest to secure even more money. It takes a certain level of diabolical shortsightedness and greed to "elevate" yourself above the rest of the PROs into "Most Hated" status. Considering other PROs have done such endearing things as shakedown the Girl Scouts and non-profit charities for spare change, GEMA has its work cut out for it.

Maybe it's the famous German industriousness that has provided GEMA with the impetus to turn Youtube into a massive collection of "Sorry, this content is not available in your country" messages. Maybe it's some form of corporate sociopathy that has turned it into a self-destructive monster capable of destroying artists' futures in the name of artists' "rights."

The latest move by GEMA has sparked protests, a claim that most other PROs can't make. GEMA, in its infinite wisdom greed has decided that the underground music scene just isn't paying its fair share. The fix? Raise rates 1,400% and if a few clubs go under because of the hike, well, that's just part of the price of doing business.

GEMA, the organisation responsible for collecting mechanical copyright fees on behalf of some 65,000 artists in Germany, have announced a price hike which could spell the end for some of Berlin's most revered clubs. If the changes go unchallenged, the legendary Berghain - facing a fee hike of 1,400% - will shut after its NYE party this year; the similarly monolithic Watergate is likely to go the same way, claiming its mechanical copyright fees will be increased from €10,000 per year to €200,000.

As is par for the course in instances like these, it's all about "fairness" and "putting money in the pockets of artists." But like every other PRO, GEMA exists to collect fees and redistribute them to the artists, starting at the top. Those most heavily represented by chart success, airplay and radio exposure get the largest chunk, with little to nothing reaching those artists operating outside the mainstream (like, say, THE UNDERGROUND), many of whom may not even be registered with GEMA.

Ostensibly, GEMA is attempting to streamline its fee structure, but doing so in such a way that the most direct beneficiary is GEMA itself. On top of that, an additional levy targets underground clubs, and their lengthy events, nearly exclusively:

In the new scheme, commencing 1st January 2013, the complex existing system of eleven different fee structures is being replaced with just two: monthly charges will be calculated as a percentage of ticket price and relative to the size of the venue. There will, however, be a 50% surcharge if events last longer than five hours, and a similar increase after another three hours. Der Spiegel calculates that, "for an average Berlin club with 410 square meters of space, charging €8 entrance and running two events per week from 10 p.m. until 5. a.m, the price paid to GEMA will rise from the current €14,500 to some €95,000 - an increase of 560%". It seems evident that these plans favour venues (such as bars and gig spaces) with shorter opening times, placing a disproportionate financial burden on clubs. Legendary spots like the Berghain, renowned for the kind of marathon all-weekend sessions largely prohibited in the UK due to stricter licensing, will fare the worst.

GEMA has it all figured out, though. You can nearly hear the condescending smirk wrapped around this statement by Regional Manager Lorenz Schmid.

"The way I see it, [clubs have] been paying far too little in the past. I see no problem for a club manager if he has to pay €1.20 out of €12".

Of course you think it's manageable. You're the one collecting the fees. When you're on that end, it all seems like a drop in the bucket. Those on the other side see it differently. It's another unexpected cost to factor in, and when you're running a club that caters to the underground, you don't really enjoy the sort of profit margins that more mainstream events and entities do. GEMA is killing off some of the few outlets for underground artists in order to further reward the top of the heap. Makes sense. Fortunately, the underground scene isn't taking this lying down.

The Berlin community isn't taking the change lying down: on 25th June, 5,000 gathered to protest outside GEMA's summer party; on the 30th, more than 2,000 clubs across the country stopped the music for five minutes to raise awareness of the new fees... High profile artists including Alec Empire, Blawan, The Black Dog, Mike Paradinas and Steffi have spoken out against GEMA's plans. The German patent office are apparently investigating the legality of the scheme, but they won't reach a decision before the fees come into effect - which may be too late for many of Berlin's clubs.

There is also an online petition, which you can sign here. Given the historical importance of Germany's underground club scene, as well as its contribution to Germany's tourist industry (more than 35% of visitors cite the city's nightlife as a major reason for their visit, according to the Guardian), it would be incredibly disappointing to see it killed off by a rent-seeking agency looking to further reward the top 5% of artists. Maybe this backlash will highlight the stupidity of destroying outlets for artists in the name of "protecting" artists.