One of the things that we frequently hear in defense of patents (and to a lesser extent, copyrights) is that without that kind of protection, companies would never share information with one another about certain products, because it would be way too easy to simply copy the idea and run with it. The standard example is a case where an inventor or small company has an idea for a product, where they'd need a bigger company to manufacture it. We are told, without patents, how could the inventor possibly go to the manufacturer, without fear of completely losing the product. Similarly, in the drug business, where the key bit of information is the chemical formula, companies often insist that they absolutely need patents, or smaller companies won't bother to share the details of their research with others who can help manufacture the product.

Jerry Brito's Surprisingly Free podcast recently had a wonderful interview with Michael Burstein from Cardozo Law School, in which he talks about his recent research showing that a ton of information exchange occurs in the absence of intellectual property protection, and that inventors and companies figure out ways to protect themselves against someone just flat out copying their idea and running off with it. It's an area of research that is quite fascinating, because in the past, I'd thought that the argument about information sharing actually was one of the more compelling arguments for patents. Now... I'm beginning to question that assumption as well. The key thing that Burstein realized, was that information isn't quite as "clear cut" as people think it is, thus you can share some information without revealing all of the key points:

This article explains that, contrary to the conventional account of the disclosure paradox, information is not always nonexcludable and is not always a homogeneous asset. Instead, information is complex and multifaceted, subject to some inherent limitations but also manipulable by its holders. These characteristics give rise to a range of strategies for engaging in information exchange, of which intellectual property is only one. Information holders can use the characteristics of information itself as well as contractual and norms-based mechanisms and other legal or business strategies to achieve exchange. And examples drawn from fields as diverse and disparate as software and biotechnology show that entrepreneurs and inventors use these strategies alone or in combination to effectively link their ideas with capital and development skills, often without intellectual property playing a significant role in the transaction.

In other words, inventors and companies have already adapted to do this, even without relying on IP laws. Burstein argues that anyone relying on the claim that IP is needed to facilitate information exchange appears to be flat out wrong, based on his empirical research.

Intellectual property is therefore not necessary to promote robust markets for information and is, in fact, just as contingent and context-specific a solution to the paradox as the alternatives described here. At the very least, then, there is reason to doubt that commercialization theories founded upon information exchange provide a standalone justification for intellectual property. This article urges caution in policy interventions that seek to respond to the disclosure paradox and sets the stage for future empirical research to better understand the dynamics of information exchange strategies and the social welfare costs and benefits that may accompany them.

One example used in the report is how biotech firms share information without relying on intellectual property laws. They basically do a bit of a dance, in which they sign agreements and share bits of information with each other, which really seem to serve the purpose of testing whether each other is trustworthy. And, of course, because firms are involved in many, many transactions, there's a reputational issue at play here: a company that simply copies an idea presented to it by another will quickly find itself shut out of future opportunities to work with innovative companies. These are issues that patent system defenders and policymakers seem to rarely consider.

In some ways, this actually reminds me of the posts we've done on cargo cults and copying. Too many people seem to assume that it's easy to define and capture all of the information you need to copy someone else. If someone has a successful product, no problem, just make an exact replica of that product. But what we've seen over and over again is that there's superficial information, which can be easily copied, but most of the time there is also substantial tacit information which is not easy for a copycat to figure out without working closely with the original producer. This can be information into what kind of positioning worked with customers (and what failed). It can be as simple as experience with a unique way to calibrate a machine. There are all sorts of "little things" that those with experience have, that simply is not easy to easily capture from the outside. Thus, no matter how much superficial information is shared, it's not enough to make a really useful copy.

Mathew Ingram points us to a column by yet another "old school journalist," Leonard Pitts Jr., lamenting the trouble that newspapers are having today, which once again includes the two most popular ridiculous "tropes" of old school journalists. First, the claim that people think that professional journalists will just be replaced by citizen journalists. That's misleading. People think that citizen journalists can help create better journalism, but I don't know anyone who thinks that you get rid of all professional journalists. Pitts speaks eloquently about how journalists like himself parachute into dangerous areas and report on what's going on there -- and he suggests no citizen journalists could possibly do that. That's kind of insulting to all of the people who already are in those places. And, again, no one says that professional journalists go away. It's just that the role of a journalist changes somewhat.

But the bigger, more ridiculous claim, is the one that newspapers never should have posted free content online:

Rather, the state of daily newspaper journalism only proves English majors should not be allowed to make business decisions. Only English majors could give their product away (i.e., online), then be surprised to see revenues decline.

We've debunked this ridiculous trope in the past. Lots (tons, in fact) of newspapers did try to charge online. And you know what happened? Their revenue declined. Because no one signed up. Those early experiments were all failures. People just started going elsewhere for news anyway. And the real issue, of course, is that it wasn't "the news" that was the newspapers' true business in the first place: it was bringing together a local community (around the news) and then selling the attention of that community to advertisers.

But the market changed. Craigslist showed that you didn't need a newspaper (or to pay high prices) to do "classifieds." The web created other types of communities as well, such as communities of interests, rather than communities of location, like newspapers. But (for the most part) newspaper industry folks still refuse to understand this. They think that they're in the "business of news" and so they think that they need to get people to pay for news. And the end result is fewer people in their audience -- meaning a smaller community and much less interest in anyone paying to get the attention of that community.

The failure isn't the failure to charge. It was the failure to innovate and to recognize that they needed to be building stronger communities. And, of course, one way to do that would be to... empower citizens to be journalists as well. But apparently that's not allowed in the mindset of old school journalists either.

Sometimes the prices of products are mysterious -- or just don't make much sense. Why is gasoline sold per gallon to nine-tenths of a cent? How can rare artwork really be worth millions of dollars? Sometimes, pricing puzzles can stump economists, but more often than not, there's a well-known economic explanation that's just not very intuitive. The invisible hand works in strange ways, and here are a few examples.

• JC Penny may be learning a tough economic lesson from its fair and square pricing strategy -- "shrouding" prices is a deeply-ingrained retail practice and consumers have adapted to it. Getting out of the brutal commodity clothing market is a hard, uphill battle... especially if you can't/don't offer customers truly unique products or services. [url]
• Orbitz is admitting to sending Mac users to more expensive hotels (maybe not against their will). It's part of a pricing experiment based on data mining consumer behavior online -- Apple computer users tend to pay more for hotels, so why not show them the pricier hotels they're already looking for? [url]
• An everyday example of price discrimination can be seen in a vending machine. When the cheap snacks sell out, people may pay more for late night victuals. [url]
• The list price of college has been rising incredibly over the last decade, but not everyone pays full price. There's a growing gap between what the average student actually pays for college and what universities say tuition is. [url]

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

The common wisdom that you'll often hear is that industries hate regulations, and would prefer deregulation. And, in certain areas that's definitely true. But, in others, industries want regulation -- but not for a good reason. It's because legacy players realize two things: (1) they can often "control" the regulatory process (hello regulatory capture) to twist it to their own advantage and (2) it's a really handy way to limit competition. We just recently wrote about some of the more ridiculous factors concerning teaching certifications. Lots of people pushed back in the comments arguing -- correctly -- that just because someone knows something, it doesn't mean they're a good teacher. But... there's another point that we made in the post that many of those people ignored: just because you "certify" teachers, it doesn't mean they're any better at teaching. In fact, as our post noted, the research has shown no noticeable difference between certified and uncertified teachers. So you can make the argument all you want that certification is somehow "needed," but if that certification doesn't seem to help at all, it's wise to at least question the certification process.

The same Planet Money folks who brought us that story recently did a podcast and a NY Times article on another example of regulatory ridiculousness. This one involved a woman who had built a small business braiding the hair of African children in Utah. The woman, Jestina Clayton, grew up in Sierra Leone, where she learned to braid hair, and when she ended up in Centerville, Utah, she discovered there was demand there, due to a large number of adopted African children, whose parents had no idea what to do with their hair. Then, someone threatened to "report" her for practicing "cosmetology" without a license. She checked it out and discovered that bizarre (but all too common) regulation made that true -- but to get her license she'd have to go to school for two years at a cost of $16,000. All to braid hair. And, even more ridiculous, none of the schools taught anything having to do with braiding hair like Clayton did. It would be a pure waste.

If you can, you should listen to the Planet Money podcast on this, because they actually get a spokesperson from the "Professional Beauty Association" try to explain why the government must regulate "professional beauty" practitioners before they kill again (well, only slight exaggeration). She does go on and on about the "consumer safety issues" of the people she's supposedly representing. My favorite risk? "Open wounds." From hair braiding?
Either way, Clayton went before the (I'm not joking) Barber, Cosmetology/Barber, Esthetics, Electrology and Nail Technology Licensing Board of Utah, to try to convince them to let her braid without a license. Apparently this became a big issue and "licensed cosmetologists" came out of the woodwork to argue against her -- and her request was denied.

As the report notes: none of this is to necessarily say that all regulation is bad and that industries don't need some sort of regulation. But, at the very least, if there is going to be regulation, shouldn't there be some evidence that it's (a) needed and (b) effective? Because, somehow, I don't think that there's a big risk from a woman braiding some kids' hair in Utah.

Given the renewed attention in the Richard O'Dwyer case, it's good to see UK MP Tom Watson speak out eloquently against the extradition. Watson hits on a bunch of good points, starting with the fact that O'Dwyer was "hung out to dry" by UK politicians who don't seem to even care about the details here. He notes that the response is clearly disproportionate and then gets to the heart of the matter:

"Somewhere behind this case lie the powerful vested interests of the content industry. If they succeed in exercising their lobbying might by forcing the extradition of an able student to face trial in America, it will further undermine public confidence in an important treaty designed to combat terrorism.

"But let's also be honest about what is going on at the heart of this case: a generation for whom the net is not a 'new' technology are being hung out by an older generation of lawmakers who do not understand the new reality of the connected digital planet.

"Mr O'Dwyer's situation can be sorted out with common sense at the top of the UK government and US administration. But how many more bright youngsters will have their lives turned upside down because we haven't reached a new copyright settlement that understands the internet is here to stay?"

Of course, it won't just undermine confidence in the extradition treaty, but also in copyright law. After all, O'Dwyer linked to content all over the web, rather than hosting it himself -- and a nearly identical site was already found legal in the UK (which certainly suggests a lack of "willful" infringement, which is necessary for a criminal copyright infringement charge in the US). Either way, it's good to see more high profile people -- especially those in government, realize that the attempt to extradite O'Dwyer is a travesty.

As there is increasing pressure on the USTR over its total lack of transparency in the TPP negotiations (unless, of course, you're a special interest, in which case you get full access) it has now released what it calls a "fact sheet" about its "transparency" efforts. Of course, the only thing truly "transparent" here is just how hard the USTR worked to hide how opaque it has been in these negotiations. The "fact sheet" is chock full of things that aren't remotely factual.

Let's focus in on the big one:

Under the U.S. Constitution, the President is responsible for conducting U.S. foreign relations, including by negotiating and concluding trade and investment agreements with other governments.

That's only partially true -- and as with all sorts of "truthy" arguments, the real truth is in what the USTR conveniently leaves out. As you all know from your pocket copies of the Constitution, in Article II, Section 2, the executive branch is granted a specific power: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..." Treaties, yes, but those "treaties" were supposed to be about things like military alliances and such. When it comes to commerce... er, nope. That's Congress' mandate alone. Back to the Constitution and Article I, Section 8, where it clearly states that Congress is granted the power "To regulate Commerce with foreign Nations."

The second big problem is one we've discussed repeatedly. The USTR continues to pretend that letting people speak their concerns to the USTR is a form of transparency. That's ridiculous. Listening to concerned parties is not transparency. It may be "access" and it could certainly be worthwhile and influence the agreement, but it's not transparent. Transparency is about sharing information in the other direction. And, as the "fact sheet" makes clear, that only happens if you're a special interest.

Amazingly, the USTR claims that these special interest groups having access is a form of "transparency." Once again, I think it needs to better understand what transparency means. Only providing access to a select number of groups whose key interests don't align with the public's is not "transparency." It's cronyism and corruption. How does "the public" get onto a "trade advisory committee?" How many internet startups are on a "trade advisory committee?"

The USTR also, once again, trots out its bogus line about how it is transparent with Congress about the TPP -- leaving out the fact that they only allow elected officials to view the document in a special room, where they're not allowed to make copies, take notes or (most importantly) bring along staffers who are experts in trade. Even worse, the USTR has directly refused to provide access to the staff director of the Senate Subcommittee on International Trade. Let's think about that. The supposedly "transparent" USTR is refusing to allow the staff director of the Senate subcommittee in charge of international trade -- which, once again, is an issue that the Constitution mandates solely to Congress and not the Executive branch. This is transparency?

Oh, also, apparently the USTR thinks "transparency" involves taking quotes totally out of context. This is really pretty obnoxious. This "fact sheet" has a sidebar that includes two quotes strategically chosen from "critics" of the USTR, which the USTR positions as if to show that both groups agree that that it has been transparent. Nothing is further from the truth. If you put the very selectively quoted text back into context you discover that both come from statements raising concerns about the transparency -- but providing boilerplate praise for the fact that they're allowed to speak their mind to the USTR (which, again, is one way traffic in the wrong direction). First up, we have a quote from Celeste Drake of the AFL-CIO. This is how the USTR shows it:

"This Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels...

...the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy..."

I'm actually a little surprised that they left in that "has concerns" line, since they removed lots of other things. You can see Drake's entire testimony (pdf) if you'd like. Nearly everything in there is a slam on the USTR for what it's likely putting into the TPP. Even the section selectively quoted here leaves out the preamble, which notes that the AFL-CIO is not happy. Here's the text with a little bit more context (but feel free to read the full thing for much greater context and the fact that it's almost entirely against the USTR's practices with the TPP):

Without addressing the still-secret text of the TPP, I will discuss a few of our concerns and recommendations with regard to some of the most pressing topics of the agreement. Before I do, I would note that this Administration deserves to be commended for the outreach in which it has engaged. The cleared advisors for the AFL-CIO and its affiliates have spent dozens of hours discussing with Administration negotiators the specific issues that are involved in the TPP talks and offering concrete recommendations. We have appreciated the spirit of cooperation and dialogue exhibited by the Administration at all levels. Of course, access does not equal influence, and it remains to be seen just how many of our suggestions will be incorporated into the final text. Moreover, the AFL-CIO has concerns about the overall secrecy of trade negotiations in general and would recommend broader sharing of USTR’s negotiating goals and proposals beyond the cleared advisor community. However, the level of engagement has been noteworthy—particularly when compared to the prior Administration.

See? Seems a lot less positive. The AFL-CIO is basically saying that just letting them show up and speak their mind is no excuse for the lack of actual transparency -- and that one-way form of communication is, once again, not transparent at all. Elsewhere in the same report, Drake slams the USTR's process of negotiating in secret:

Unfortunately, it has not been the practice of U.S. trade policy to engage in such economic evaluations until after an agreement is finished. Only when the text is complete do we learn of its potential to harm particular industries and their employees or to increase our global trade deficit. As a result, the United States Trade Representative (USTR) is typically flying blind in the agreements, unsure exactly how the agreement would help our domestic economy or bolster American workers, but secure in the belief that free trade will always do so.

This is not someone who is happy with the USTR process. Trotting them out as an example of greater transparency isn't particularly smart.

The second quote comes from Public Knowledge's Jodie Griffin. Here's how the USTR presents the quote:

"The USTR's stakeholder engagement website includes instructions both for registering for a stakeholder tables event and for making arrangements to make more formal presentations to negotiators. It's encouraging to see the USTR respond to stakeholder feedback so quickly and become more open to accommodating the needs of a variety of stakeholders.

... Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public. That said, the USTR's efforts to help stakeholders engage with negotiators and make their case before the negotiating countries is promising."

For reasons I can only guess, the USTR does not provide a link to where that quote comes from, but I will. It's from a recent blogpost by Griffin, in which she does, in fact, praise the USTR for something very specific: agreeing to PK's suggestion that the upcoming negotiating round allow for both presentations by public interest stakeholders and a tabletop "fair" setup -- rather than having one or the other, as in past rounds. But... if you read the full blog post, you see that Griffin completely slams the "shocking lack of transparency" from the USTR:

The Elephant in the Room: Transparency

Of course, it must be said that all of the stakeholder engagement events in the world cannot make up for the shocking lack of transparency surrounding the substance of the negotiations and the TPP's text. Stakeholder events also cannot truly be effective if the negotiators are obviously not interested in hearing from public interest groups.

Transparency is a two-way street, and increasing the amount of information flowing from stakeholders to the government does not lessen the government's obligation to provide information about its activities and proposals to the public.

In other words, neither of these quotes are actually saying that they appreciate the USTR's efforts on transparency. They are talking about how the USTR is willing to let them speak, occasionally, and under specific and planned circumstances -- but not about transparency.

Once again, it appears that the USTR is working with a different definition of "transparency" than the rest of the world and... also a different edition of the Constitution.

We recently wrote about the RIAA's new war against software that can be used to record or download YouTube videos. As we noted, such software has substantial non-infringing uses, but the RIAA wants to ban it anyway. Michael Weinberg has a great response, in pointing out that just because something can be used illegally, it doesn't mean we ban it:

It is possible to use a banana to rob a bank.  It is also possible to use a phone to defraud people of millions of dollars.  But we do not make possession of a banana or the use of a phone illegal.  We make bank robbery and fraud illegal.  We do not outlaw bananas and phones because bananas and phones serve any number of socially useful services.  It would be dumb to outlaw them just because someone could use them in a bad way.

That’s why the test that the Supreme Court identified in the famous Betamax case is so useful.  As long as a technology is capable of “substantial noninfringing uses” we welcome it.  Because those substantial noninfringing uses are great to have, and we cannot stop innovation just because it can sometimes be abused.

On our last post about this, someone brought up the anti-circumvention issue, noting that if the software circumvents DRM, then under the DMCA it's illegal across the board. But all this really highlights is the insanity of the anti-circumvention provision and how it makes perfectly legitimate activity "copyright infringement." Think about it: if you use this to make a perfectly legal recording of some content, then none of the rights covered by copyright law have been infringed. And yet it's still illegal solely because of the circumvention? That makes no sense. How can it be illegal if no illegal copy was actually made?

James Bessen and Michael Meurer, the pre-eminent researchers looking into the problems of the patent system have come out with a new study showing that, in the US alone, patent trolls had a direct cost for companies of about $29 billion. This does not include indirect costs, like the distractions of dealing with trolls or companies shutting down, products delayed or destroyed, etc. This is just about the direct costs, covering things like fighting in court and also settlement fights with the trolls. The study also found that small and medium businesses were the most impacted by this, often having to pay out to patent trolls (and to lawyers to deal with patent trolls).

Even more amazing is just how rapidly this cost has ballooned over the past few years. Check out this table from the report:
The report then goes further to try to figure out whether the trolls are actually benefiting innovation and getting more money to inventors, as the trolls and their supporters like to claim. Unfortunately, the research shows quite a different story -- with very little of the money actually flowing back to either inventors or actual innovation. In other words, we're talking about a pretty massive economic dead-weight loss here. Money flowing from actual innovators and creators... to lawyers, basically. Innovators grow the economy. Lawyers do not. This is a massive weight on the ability to grow the economy and to remain competitive. We've basically created a tax on innovation that flows to lawyers.

We've discussed in the past how ridiculous it is to claim that there's a fight between "Hollywood and Silicon Valley." After all, the tech industry keeps creating the tools for Hollywood to succeed and broaden its market... and every time they do so, Hollywood responds by attacking those providing the tools. Every innovation that created a vast new market from which to profit from has been attacked. The gramophone. Radio. TV. Cable TV. The VCR. The MP3 player. YouTube. The DVR. In the end, all of these created great new opportunities, but were attacked. As we've said, it's a very strange war where one side (tech) is building all the weapons for the other side... only to see them point those new weapons at their own feet.

Of course, it's actually even worse than that. Because, not only does Hollywood point these new weapons at their own feet... they then try to sue and blame the tech industry for creating these same weapons. It's a pretty hostile environment.

And this is a massive problem for Hollywood. Because, throughout history, it has been shown that the only solution that actually helps solve the "issue" of "piracy" is the creation of new and useful legitimate services. And the entertainment industry is doing its best to scare everyone off from doing that by attacking each of those new services as it comes about. Entrepreneur Tyler Crowley has a great analogy explaining how the entertainment industry is driving the very innovators it needs help from away. He talks about how entrepreneurs look at markets as "islands of opportunity." He lists out a few, such as the Facebook island and the Apple island.

For tech folks, from the 35,000' view, there are islands of opportunity. There's Apple Island, Facebook Island, Microsoft Island, among many others and yes there's Music Biz Island. Now, we as tech folks have many friends who have sailed to Apple Island and we know that it's $99/year to doc your boat and if you build anything Apple Island will tax you at 30%. Many of our friends are partying their asses off on Apple Island while making millions (and in some recent cases billions) and that sure sounds like a nice place to build a business.

He talks about a few other of these "islands of opportunity" (and does a nice job breaking them down). But then he gets to the "music biz island" (which I'd argue is actually the "legacy entertainment biz island") and notes the hostile reception:

Now, we also know of Music Biz Island which is where the natives start firing cannons as you approach, and if not stuck at sea, one must negotiate with the chiefs for 9 months before given permission to dock. Those who do go ashore are slowly eaten alive by the native cannibals. As a result, all the tugboats and lighthouses (investors, advisors) warn to stay far away from Music Biz Island, as nobody has ever gotten off alive. If that wasn't bad enough, while Apple and Facebook Island are built with sea walls to protect from the rising oceans, Music Biz Island is already 5 ft under and the educated locals are fleeing for Topspin Island.

In other words, the good entrepreneurs, who actually can help the entertainment industry (some of whom tried in the past) are actively pushed away from helping. And then the entertainment industry whines that no one wants to help them. Perhaps they should look at being just a bit more welcoming...

On a side note: Crowley's writeup was actually in response to a dinner gathering at some super super swank LA eatery that tried to bring together the heads of the major labels with some LA entrepreneurs. That's actually encouraging, though, again, meeting in backrooms is still missing the point. Why is it so hard for the industry to have a discussion in public?

Ah, the wonders of trademark law and sports stars. Earlier this year, we wrote about the rush to trademark "Linsanity" when afterthought point guard Jeremy Lin suddenly became an overnight sensation for the NY Knicks. In that case, a bunch of others sought the trademark, and a week or so later, Jeremy Lin himself jumped in to try to get the trademark as well. A quick search at the USPTO shows nine "live" trademarks on Linsanity (well, eight that are just "Linsanity" and one that is "Linsanity 17" -- which is Lin's uniform number). For what it's worth, it seems like only one of those marks is actually held by Jeremy Lin, and it certainly looks like there may be some overlap, so perhaps there will be some litigation at some point.

Apparently, young sports stars are very quickly learning to rush to the trademark office. Baseball phenom Bryce Harper -- at 19 already living up to the massive expectations Sports Illustrated lumped on his shoulders three years ago -- recently got some attention for telling a Canadian reporter "that's a clown question, bro" in response to a question about his favorite beer and if he was going to go out and celebrate with a beer since he's of legal drinking age in Canada (where they were playing).

The very next day, Harper filed for a trademark on "that's a clown question, bro." It almost makes you wonder if he'd been saving up that line... As of the latest search, he's the only one filing for it so far, but the link above notes that a brewery in Colorado has already brewed up a batch of beer called "Clown Question, Bro." Since Harper's application is for apparel, it's unlikely it applies to beer. Though, if it were me, I probably would have called it "Clown Question, Brew." Either way, Under Armour, the sporting goods company that Harper has a deal with already, has said that it's going to be releasing a "line" of shirts around the "clown question, bro" phrase.

Meanwhile, moving back to basketball, there's the news that NBA-bound college hoops star Anthony Davis has filed for trademarks on both "Fear the Brow" and "Raise the Brow" after his... er... "trademark" unibrow. His explanation?

“I don’t want anyone to try to grow a unibrow because of me and then try to make money off of it,” Davis told CNBC. “Me and my family decided to trademark it because it’s very unique.”

I'm not quite sure how one "tries to grow a unibrow" if they don't have one already -- and if they legitimately have one, then why is it that only Davis gets to make money from his unibrow? For what it's worth, as the article notes, the phrase has been popular for a while, surrounding his success at Kentucky, but he couldn't profit from it as that would cut into his eligibility as an amateur (cue rant about stupid college sports rules). Either way, lots of "bootleg" apparel was sold -- some of which the university tried to stop, though I'm not sure they had any legal basis for doing so in many cases. There was also one local store, Blue Zone, that sold stuff and filed for its own trademark on the phrase for apparel. There may be an issue there. Davis' trademark application is super broad in terms of what he claims it will apply to. Blue Zone's mark is just for clothing, but Davis' is for a ton of stuff, including clothing, but also fragrances, entertainment "services," water bottles, book covers, pencils, trading cards, lunch bags, facial tissues and much, much more.

Does Davis have the right to supercede Blue Zone's mark just because he's the one who has the actual unibrow?

Either way, it seems like a sign of the times, that sports stars these days are rushing to the trademark office at every opportunity to file trademarks on some identifying characteristic. I'm not sure this is a positive development.

Apple has continued its legal effort to make it clear to the world that the best tablet you can buy... is a Samsung Galaxy Tab. Honestly, I'm still at a loss to understand Apple's strategy in suing Samsung because its Galaxy Tab looks too much like Apple's iPad, and (Apple claims) infringes on its design patent. Apple had succeeded in getting sales of the device blocked in Europe and Australia, but had a bit more trouble in the US. The district court had rejected the injunction saying that letting sales continue wouldn't be harmful to Apple. However, CAFC, the appeals court that loves patents and never sees anything wrong with them, sent it back telling the district court to try again -- so this time around an injunction has been issued.

As I've said before, all this is really doing is signalling, repeatedly, to the market which tablet Apple thinks is the closest in terms of a competitor to the iPad. The whole thing is really silly of course. Apple could (and should) focus on just competing with the Galaxy Tab in the market. Make a better product and sell it. Forcing a competitor out of the market because it looks similar really highlights how insecure Apple is concerning its own products, and how easy it thinks others can compete with it.

Starting next week, the next round of negotiations in the Trans Pacific Partnership (TPP) will be taking place in San Diego. We've been discussing how the USTR has been fine with giving lobbyists like the MPAA full access to the text, which they can read any time via their own computers. However, when it comes to Congress, the access is much more limited. Only elected officials -- not any of their staff members, even if they have the proper "security clearance" -- get to see the text, and they can only see it in a designated room (not on their computers) and they're not allowed to make copies, take notes or bring any staffers to help.

Given that the next round of negotiations is in San Diego, and Rep. Darrell Issa's district covers part of San Diego, he thought he might as well drop by and "observe." He's sent the USTR a letter requesting the ability for him and some staffers to be present and observe the negotiations. It will be interesting to see how the USTR responds.

It has come to my attention that the 13th Round of the Trans-Pacific Partnership (TPP) will take place in San Diego, California from July 2-10, 2012. Given the immense impact that this agreement will have on many areas of the American economy, including intellectual property, I respectfully request that you allow me and certain members of my staff to be present as observers for this round of negotiations.

It is my hope that observing the negotiating process firsthand will help to alleviate some of my concerns about the process through which the agreement is being negotiated.

Update: Dah. Got fooled on the date. Someone had sent that one anonymously, and we missed that the date was from back in March. Others are reporting the program won't go into effect until the fall.

At this point, it's no surprise, but the RIAA's Cary Sherman has now confirmed that (as had been previously stated) the big ISPs (Comcast, Time Warner Cable and Verizon) will be ready to kick off their "six strikes" plan this weekend. Apparently, the idea of actually giving the public a seat at the table, and looking into whether or not this made sense, wasn't seriously considered. Of course, none of this will do anything to bring revenue back to RIAA or MPAA members. It won't even do anything to stop infringement in the long term. As always, people will figure out ways around this. We've already seen the massive failure of an even stricter program, Hadopi, in France. Can anyone seriously claim that this will somehow work better in the US? Instead, it won't be long until we hear the stories of false accusations, or families who have their internet connection limited or locked down because a neighbor maybe downloaded some infringing content. Little Susie needs to do some research for her homework? Not tonight, kids. Hollywood has to teach you a lesson. Of course, the only real lesson is that the entertainment industry needs to stop blaming customers, and start looking inward, at its own failure to innovate. Pissing people off by limiting their internet connections is not a productive path forward.

Copyright maximalist operation "The Copyright Alliance," purveyors of ridiculous copyright propaganda, has really topped itself with a recent blog post. It is trying to compare Google to "pink slime." You know pink slime -- the stuff that got all sorts of attention a few months ago as being a somewhat disgusting looking output of excess beef products all mashed up together and then reused in other foodstuffs. What does one have to do with the other? Well, according to the absolute geniuses at The Copyright Alliance:

Among the reasons I believe companies like Google are so hostile not only to copyright but to other regulations, is that their revenue and aspirations are anathema to distinguishing value (prime meat) from muck (MSM). To the contrary, their business models are literally based on grinding up all content into a homogenous slurry in order to turn billions of clicks into billions of dollars. To companies like Google, torrent sites, and many aggregators, everything goes into the big, digital grinder — a John Irving novel, some bits of junk journalism, a few stupid cat videos, Lawrence of Arabia, several thousand mail-order brides, a hard-news report from Central Africa, trafficked children, an episode of Downton Abbey, counterfeit pharmaceuticals, The White Album, years of scientific research, and of course several jiggling pounds of college chicks shaking their booties at webcams. It’s all just ones and zeroes, right? It’s digital pink slime.

I've now read this paragraph a dozen times. And my only conclusion is the person who wrote it has never used Google or, perhaps, any search engine. Because it gets the story exactly, 100%, completely backwards. It's not reality. It's the opposite of reality. Up is down, black is white, day is night kind of backwards.

The whole point of any search engine is to distinguish the value from the muck. The reason Google became such a huge phenomenon when it first came out (long after people had declared the search engine wars "dead") was that Google did a much better job finding what you wanted. How does it do that? By properly finding the value and surfacing it at the top while pushing down the muck. A search engine that doesn't distinguish the value from the muck is no search engine at all. It's a random website generator.

Search engines care deeply about finding the best value. Hell, just a week or so ago, Google explained how it had made 39 changes to its search in May alone, with the goal of helping people better find value out of muck. There may be all sorts of reasons to dislike or distrust Google. The company is very big, and has lots of info on you, which raises plenty of privacy concerns. But to claim that it wants to homogenize all content and that it's against their best interest to distinguish value from muck makes zero sense. If it were true, we'd immediately see tons of other search engines and do the exact opposite: provide more value and take over the market (just like Google did a decade ago).

I'm all for discussions about copyright issues, but can we at least keep them in the realm of reality, rather than fantasyland?

In our post game analysis of Canada's new copyright law, we noted the surprising number of good things in there. But, still, much of the focus (quite reasonably) is on the really awful "digital locks" provision, which has many similarities to the US's anti-circumvention clause in the DMCA, and similar copycat DMCA-like provisions around the globe. There is one piece of the DMCA and the digital locks portion of the C-11 bill which has simply never made any sense to me at all: it's that circumvention of "technical protection measures" (generally, DRM) breaks the law even if the circumvention was to make a legal copy of something. It has never been explained why such a provision cannot be limited to cases where the tools are used to infringe. When you make such a broad restriction against circumvention, you lock up plenty of perfectly legal uses of content and (potentially even worse) open up an opportunity to deny people access to things in the public domain -- creating the potential for a perpetual copyright via DRM.

And now, according to some government documents that Michael Geist obtained using an access to information request, we discover that Canada's own Justice Department appears to have worried that the digital locks provision -- when not tied to actual infringement of content -- was itself unconstitutional. While the analysis actually covers an earlier version of Canada's copyright reform effort, the digital locks provisions are still quite similar, and clearly do not address the constitutional concerns the Justice Department raised.

At the very least, this certainly opens the door for a constitutional challenge to the provision. Either way, I'm curious, for the various copyright system defenders we have in the community here, if anyone can take a stab at why it makes sense to have anti-circumvention rules apply even in cases where no content is actually infringed? Some of us would really like to know...

Here's a fascinating story, found via Boing Boing, of some malware (a password stealing trojan targeting Diablo III players) that included some sort of integrated chat function, which the researchers at AVG only noticed when the hacker reached out to them while they were searching through his code. Imagine their surprise when up popped a dialog box asking them what they were doing: Hacker: What are you doing? Why are you researching my Trojan?

Hacker: What do you want from it?


The AVG folks continued to chat with the guy for a little while, which is how they realized just how powerful the trojan was and how much it could do. The guy controlling it demonstrated this to them by remotely shutting down their machine after talking to them for a little while.