Last month, an interesting fight broke out concerning the cable companies' desire to block out competing set top boxes. The simplified version is that the cable companies asked the FCC for a waiver to allow them to encrypt basic cable signals -- something they're currently forbidden from doing. The cable companies insist they need to do this to "stop piracy" (of course). But, the reality is that this is an end run to lock people into specific cable company set top boxes (for which they hope to charge you) and away from newer, more innovative solutions. At the center of this fight has been Boxee, the maker of an innovative device for making your TV better, by letting you access and watch internet video via the device. It recently launched a new product that lets users add live local network TV to their Boxee -- but that could be cut off if the waiver goes through, since those channels would then be encrypted.

Public Knowledge has been fighting the FCC on this for a while and has an action page to let you send a note to the FCC about your concerns with this policy change. From all the indications and scuttlebutt around DC, it seems clear that the FCC has been leaning towards approving this waiver, though realizing that it would kill off an innovative product like Boxee has taken the commissioners by surprise.

Of course, this just highlights the dangers of having politicians make declarations that impact technologies -- especially when they appear to be wholly unfamiliar with the state of the art or the general trend lines of where the technology is heading. They make "simple" decisions without realizing the massive impact such decisions can have.

Boxee has ramped up its offensive against this effort by the cable companies, recently sending out an email urging supporters to voice their concerns with the FCC via the PK action page linked above:

Cable companies want to increase the cable bills of millions of Americans and to virtually eliminate competition from third party devices like Boxee. We want you to know because it will affect millions of people, non-Boxee and Boxee users alike, and we need your help to fight it.

For the past several months, Boxee has been forced into a legislative battle with cable companies. Right now, anyone can get basic tier cable. Attach your TV, computer, or Boxee Live TV tuner and everything just works. Cable companies want the federal government to end that, and to require every user to have ALL of their TVs attached to cable boxes. We’re concerned many users who have Live TV tuners and rely on basic cable will be hurt by this, but we’re also focused on how the issue goes far beyond Boxee.

Here are the effects of the rule:

1. It could more than DOUBLE the cost for the typical new basic cable subscriber.

2. If you have a TV that’s hooked up to cable without a box, you MUST rent a set top box for that TV.

3. If your computer’s TV tuner is connected to your cable connection without a box, it will no longer work unless it uses a CableCARD.

4. If you bought a DVR that does not include a CableCARD it will no longer work without an antenna. If you don’t get signal with the antenna, your DVR is now worthless.

It should come as no surprise, of course, that cable companies are seeking to limit consumer choice and better control the market, and even less surprise that they're doing so by making "piracy" claims (next it'll be "for the children!") but that's no reason that the FCC has to simply roll over and break innovative devices and services like Boxee's.

Everyone knows that the odds always favor the house, but every once in a while, someone figures out a way to beat the system. Here are just a few examples of clever folks who have succeeded and earned some significant winnings.

• There are a lot of guys named Don Johnson (not just the actor from Miami Vice), but one of them beat the casino odds by negotiation... and has become the most famous blackjack player in the world. So far, he's won about $15 million in Atlantic City (and he's been banned from a lot of casinos now). [url]
• Michael Larson studied the game show, Press Your Luck, and figured out that the show's Big Board wasn't random. Larson won $110,237 in cash and prizes -- which stood as a record for game show winnings until 2006 when it was broken on The Price is Right. [url]
• Mohan Srivastava usually consults as a geological statistician, but he applied his statistical insights to scratch-off lottery tickets -- and figured out that he could make about $600 per day. He's not the only one who has discovered design flaws in scratcher tickets, so there could be more lotteries out there with crackable security. [url]
• To find more interesting stuff on entrepreneurship, check out what's currently floating around the StumbleUpon universe. [url]  

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

We recently covered the indy developer Nimblebit and their friendly-but-snarky response to Zynga copying the mechanics of one of their games. As I argued in the comments to that post, I think people sometimes fail to recognize that copiers do add something of their own—at least, the successful copiers do. Nevertheless, there is a lot of copying in the game industry, and it can lead to a great deal of ire in the community. As Nimblebit demonstrated, there are ways to approach the problem that don't involve immediately going legal.

It's nice to see more developers acknowledging this. At the Game Developers Conference, Rami Ismail and Jan Willem Nijam of Vlambeer said they are getting tired of the same old debates about copying, and want to move the discussion forward. Their suggestion is to worry less about patents and ownership rights, and more about the actual impact of copying—and then address it by being more open, not less:

The pair acknowledged that protecting game designs with patents might actually damage innovation, but argued that this sort of legal protection is separate from the issue of whether game cloning is helpful or harmful to the industry. And make no mistake, clones are hurting the industry, Nijam said, both by diverting skilled developers towards work on soulless copies and demotivating skilled developers who put a lot of effort into truly original games.

What's worse, a preponderance of low-quality clones is training consumers to expect a lack of originality in the industry, Nijam said, a loss of "gaming literacy" that drags the whole industry down. "Players will get all those bad games and stop recognizing actual good games," he said. "If you only eat bad hamburgers, you're not going to recognize a good hamburger."

The natural reaction to this kind of rampant cloning among many developers might be to hold their cards close to the vest, keeping a new idea totally secret until dropping it on an unsuspecting public. But Ismail said the solution to the cloning problem is actually the opposite—educating gamers by developing games out in the open and showing them the real work that goes into an original design. Detailed development blogs, documentaries like Indie Game: The Movie, and websites that dig deep into game design process all help improve gaming literacy among the public and build a foundation for an audience that values original games.

I can only hope other developers at the conference heed his call. The simple fact in any creative industry is that if someone can beat you by copying your work wholesale, then either they are doing something you're not, or you are failing to connect with your audience. Perhaps, as Ismail argues, this can even become a broader cultural problem that needs to be addressed by the industry as a whole—and that's a good challenge to take on. After all, what's more productive? A bunch of developers suing each other without always distinguishing between genuine bad-actors and actual innovative copying? Or a bunch of developers working together to enhance the industry as a whole, better connecting with fans and letting originality emerge organically? The answer, I hope, is easy.

Like many kids, I read Orson Scott Card's Ender's Game around the time I was in middle school (where I was from, it was junior high school) -- which is about when it came out. I don't remember exactly when I got the book, but I do remember that the reason I read it was because my father had heard about it and after reading it himself thought I'd like it. He was right. As the next two books in the series came out, I read those too. About five years ago I reread the whole series (including the additional "Shadow" books that came out later) and it's still an enjoyable set of books, even if the first book is by far the best of the bunch. So it's a bit crazy to hear that a middle school teacher in South Carolina was put on paid administrative leave for reading part of the book in class, after a parent argued that the book is "pornographic." I have to admit, I can't remember anything about the book being even remotely "pornographic," though, as Julian Sanchez joked, the book is full of "buggers."

As Reason points out, the police were even called in to investigate, though (thankfully) they quickly determined that no criminal charges should be filed. But, seriously, what is wrong with people that they'd claim that such a popular book, and one that so many young teenagers read, is pornographic, and that a teacher should be investigated for reading it? Since when did we become so fearful of words and stories? Ender's Game is widely considered a good book for teens to read, and with very good reason.

We've noted that the MPAA's case against Hotfile is surprisingly weak, and seems to be arguing that usage alone is proof of Hotfile's complicity in any infringement done by users. This is a strange argument, which is more smoke and mirrors than anything legit. It's as if the MPAA believes that if it just screams "but... but... piracy!" loud enough, the judge will forget to look at the actual law. However, in a bit of a surprising move, Google is trying to step in and inform the judge on one key piece of the case, with an amicus brief.

At issue is the standard used to judge whether or not the DMCA's safe harbors apply. Obviously, Google has a vested interest in having previous court rulings on the DMCA's safe harbor followed in this case, not just because those rulings protect Google, but because they're the only way the DMCA actually makes any sense. Google's argument is pretty clear and well-argued: as the DMCA safe harbors themselves, the massive DMCA caselaw and the Congressional history of the DMCA all show in pretty great detail, to lose the DMCA's safe harbors, a company has to have specific knowledge of infringement, not just general knowledge that its tool is used for infringement. The MPAA's argument is effectively the opposite -- and is completely nonsensical: that if it can show that enough people infringed, then it should be assumed that Hotfile could have stopped the infringement. As the Google argument explains simply, that's a clear distortion of the law. In fact, they point out that the MPAA is so far off the reservation on this one that it can't even find DMCA cases to support its position, instead choosing two cases that have nothing to do with the DMCA.

Amusingly (and ridiculously), the MPAA is so freaked out about Google explaining the law on this one key point that it's asking the judge not to allow the brief, suggesting that rather than providing a separate third party view, Google's brief is really just re-arguing Hotfile's position. That's an argument that makes little sense, though. Google's brief is pretty narrowly focused on just one key issue in the much larger case surrounding Hotfile: it's merely asking the court to make sure it follows the same standard used in most other courts in the country. It makes no specific statements concerning Hotfile's actions at all. The issue Google raises is important because this court and this Circuit have not specifically ruled on the DMCA safe harbors -- a fact you can bet the MPAA knows well. No doubt, the MPAA is hoping that a different ruling in this case can lead to split that would (it hopes) lead to all of those many other DMCA rulings protecting safe harbors being overturned.

I'm sure that some simplistic commenters may try to summarize this case as Google defending Hotfile, but the specifics of the filing make it pretty clear that's not what's going on at all. It merely points out the well accepted standards and practices for removing DMCA safe harbor protections -- which are quite different than the interpretation of the safe harbors that the MPAA gave the court in its motion for summary judgment.

There are days that the actions of the MPAA just make you shake your head and wonder just what goes through the minds of the lawyers running that insane asylum. The latest is the news that they're considering suing Megaupload users directly, as if their reputation wasn't already mud. The details actually have to do with the fight over whether or not the data on Megaupload's servers is going to be deleted. There was a point, soon after the shutdown, when it was suggested that, due to a lack of anyone able to still pay the bills, the hosting provider that Megaupload used, Carpathia Hosting, would soon wipe the servers clean. That struck me as odd, because I would have thought that the data on those servers represented evidence in a criminal case -- but for reasons still not clear, the government insists it has no need for the data and that Carpathia is free to delete it. I won't even begin to speculate over the fact that the person who sent the letter to Carpathia suggesting this also happens to be the BSA's former head anti-piracy VP. An ex-anti-piracy exec for an industry lobbyist, now running a criminal anti-piracy case, basically telling the data center to delete evidence? Hmm...

Others, of course, were concerned about both the evidence that could exonerate Megaupload as well as the legitimate files that were going to be lost -- so there was an effort made to try to have the files retained, and the hosting firm has said (for now) that they won't delete the data, despite the fact it is costing the company $9,000 per day to maintain these servers and the 25 petabytes of data they contain. But it wants to.

So here's the surprise. Those fighting to keep the data have an unexpected ally: the MPAA. Yes, you see the MPAA wants to keep its options open and is considering directly suing users who may have used Megaupload for infringement -- and for that to work, they'd need that data to remain available. This came out in a filing by Carpathia to the court, in which it notes that there is significant interest in keeping the data around, but it wants out of the burden of paying for all of this and having to retain the data itself. The filing notes that Megaupload itself wants the data for its defense, the EFF wants to help users get legit files back... and the MPAA wants the data to sue people. Apparently, unbeknownst to the public until now, the MPAA sent Carpathia a letter arguing in agreement with Megaupload and the EFF that the data shouldn't be destroyed, but only because the MPAA wants to have access to the data in case it decides to go hogwild and completely and permanently destroy its reputation by suing users directly. From the letter the MPAA sent Carpathia:

Independent of the ongoing criminal proceeding, the Studios have civil claims against the operators of Megaupload, and potentially also against those who have knowingly or materially contributed to the infringement occurring through Megaupload...

... In light of the potential civil claims by the Studios, we demand that Carpathia preserve all material in its possession, custody, or control, including electronic data and databases, related to Megaupload or its operations. This would include, but is not limited to, all information identifying or otherwise related to the content files uploaded to, stored on and/or downloaded from Megaupload; all data associated with those content files, the uploading or downloading of those files, and the Megaupload users who uploaded or downloaded those files; all data reflecting or related to payments to third parties (including Carpathia) by the Megaupload operators; all data reflecting or related to payments to the Megaupload operators, including by users and other third parties, all electronic records regarding communications by the individuals involved in Megaupload's operations; and all internal documents and communications regarding Megaupload.

Of course, recognizing just how bad its own lawyers' statements are on the matter, the MPAA has sent in its PR folks to try to clean up the mess. Almost immediately after David Kravets at Wired published the original article highlighting this, MPAA PR people started calling him insisting that it wasn't true at all. MPAA PR VP Howard Gantman told Kravets that the MPAA has no intention to sue users, despite the clear language of the letter it sent Carpathia.

“The reason we did that filing so that there is a possibility that litigation might be pursued against Megaupload or various intermediaries involved in Megaupload’s operation. We’re not talking about individual users...”

That's not what the plain language of the letter itself clearly states -- but never let facts get in the way of a good yarn spun by MPAA PR people desperately trying to make the organization seem not 100% evil. But, this is how the MPAA thinks: lawyers shoot their mouths off with threats first, and the PR folks are left to do cleanup. That's what happens when you put the lawyers in charge, without any real knowledge of technology, business or just how ridiculously bad they make themselves look with their extreme positions. And then they wonder why no one sides with them in debates like the one over SOPA. Perhaps it's because their position is so crazy that anyone with the slightest bit of common sense would have known to stay miles away. But that's not how the MPAA rolls. It goes to crazytown and beyond, and then just denies it was thinking about suing users, despite claiming exactly that.

Over the last few years, collection societies have become ridiculously aggressive in trying to get just about anyone to pay up for playing music. The results have been rather crazy, with auto garages being told that they have to pay up because the mechanics out in the garage had the radio on loud enough that customers in the waiting room could hear it. Ditto for a police station where some officers had a radio on in the back, but which some of the public could hear in the front. Then there was the demand that a grocery story pay up because a shop assistant sang while stacking cans. And the craziest of all: the time when the owner of a horse stable was told to pay up because her horses liked listening to music.

A lot of this comes from the simple fact that these collection societies are really just trying to squeeze as much excess revenue as they can out of any location they can find. It's gotten to the point where the "copyright investigators" are really sales people, and are given incentives just like a sales person. They have revenue targets with bonuses for extra revenue they bring in. This gives them incentives to do all sorts of crazy things... like randomly calling up small businesses and if they hear any music in the background, demanding a license.

Thankfully, it appears that the EU Court of Justice is pushing back on some of that. It recently issued two rulings about royalty collections -- but unfortunately it seems like the two rulings conflict with each other in some ways. In one, it is determined that a dentist's office does not need to pay a royalty because patients don't go to the dentist for the music:

Finally, it cannot be disputed that, in a situation such as that in the main proceedings, a dentist who broadcasts phonograms, by way of background music, in the presence of his patients cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides. Therefore, such a broadcast is not liable, in itself, to have an impact on the income of that dentist.

The patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is in no way a part of dental treatment. They have access to certain phonograms by chance and without any active choice on their part, according to the time of their arrival at the practice and the length of time they wait and the nature of the treatment they undergo. Accordingly, it cannot be presumed that the usual customers of a dentist are receptive as regards the broadcast in question.

Consequently such a broadcast is not of a profit-making nature...

Of course, you could make the identical argument about music playing in all sorts of places. But, at the very least, it certainly suggests that the music playing at an auto mechanic's garage or a police station are not subject to royalty collections under EU law.

But then there's the other ruling. The exact same court. The exact same panel of judges. The exact same day. Very different ruling. This one involved a hotel, and the question of whether or not music playing in the hotel rooms is subject to collections. And here, the court comes to the opposite conclusion, and says that the hotel must pay.

In a press statement, the Court said that since music in hotels is broadcast to an "indeterminate number of potential listeners" and is "of a profit-making nature" hoteliers are liable for royalty payments. It added that broadcasting music constitutes an "additional service which has an influence on the hotel's standing and, therefore, on the price of rooms."

I'm having difficulty figuring out the difference here. The article linked above notes that these rulings hinge on "the concept of public" which is based on "'an indeterminate number of potential listeners and a fairly large number of persons,' alongside the question of a profit motive." However, it seems like a total judgment call in either case as to whether or not there is a "fairly large number of persons" and just where "the profit motive" comes into play. Both dentists and hotels have a profit motive, and both play music in part because of that reason. But it's arguable as to whether or not the music has a direct impact on actual profits in either case. In the end, the pair of rulings just seems to leave everything a lot more confused, rather than clarified in any way.

Earlier this week, we wrote about an excellent and detailed article in Wired about the efforts by the NSA to collect and store pretty much all communications data they could get their hands on -- whether originating in the US or not (despite clear rules that the NSA is only supposed to deal with foreign threats and communications). Some of that report merely confirmed earlier stories and news reports about programs like the warrantless wiretapping program the NSA runs, as well as deals with major telcos to allow NSA equipment directly on the network at key points to collect data. But parts of it broke some new news about the extent and depth of the NSA's data collection program, as well as its efforts to break the encryption that protects certain communications. As we noted, it was all pretty terrifying.

The article appears to have caught the attention of Congress as well, with Rep. Hank Johnson directly asking NSA boss General Keith Alexander (who you may remember from his FUD warnings about Anonymous taking down power grids) about whether or not various points made in the article are true, and Alexander denies them all, insisting that the NSA has neither the technical nor the legal capabilities to capture and sift through communications from Americans. He clearly states that "the NSA does not have the ability to do that in the United States," which is almost certainly untrue. He repeatedly states that for content in the US, the NSA would need to get a warrant to get this information. To be fair, he may be responding very carefully to Johnson's question, which is directed at the contents of emails or phone conversations -- which does require a warrant. Many of the bigger questions are less about the direct content of the communications but the metadata around those communications. Though, there are some questions about access to the actual content as well, especially when it comes to email. Alexander also insists that the NSA defers to the FBI on matters involving people in the US, even though many, many reports have suggested this is not actually true.

Johnson does press Alexander a bit on the question of whether it's the legal or technical parts that are holding the NSA back, and Alexander repeats that they simply don't have the technical capabilities:

"We don’t have the technical insights in the United States. In other words, you have to have something to intercept, or some way of doing that either by going to a service provider with a warrant or you have to be collecting in that area. We’re not authorized to do that, nor do we have the equipment in the United States to collect that kind of information."

There is a slight pause between "technical" and "insights" in the way he says it, as if he's searching for the proper word before choosing insights, but he later clearly says they don't have the equipment to do so -- which seems to contradict a ton of reports out there from pretty credible sources within the NSA.

As Ryan Singel writes at Wired:

It’s hard to tell here whether Alexander is parsing the questions closely, misspeaking or telling the truth. The heads of the intelligence service have a long tradition of misspeaking or telling untruths that advance their agenda. President George Bush himself on the re-election campaign trail said that no American had been wiretapped without a warrant, which was plainly false, according to numerous news stories and the government’s own admissions of the program.

In the aftermath of those half-truths, the Congress passed, and Bush signed into law, the FISA Amendments Act, which re-wrote the nation’s surveillance laws to give the NSA a much freer hand to wiretap American infrastructure wholesale.

I know that the assumption many will make is that he's flat out lying, and that wouldn't surprise me, but I do wonder if he's trying to pick his words carefully to get around lying—or if he knows he's so protected that he can just say whatever he wants without much fear of ever being called on it.

Last year, we reported on the bill presented by Representatives Joe Baca and Frank Wolf that would require video games in the U.S. to carry a vague (and untrue) warning about their link to violence. At the time, the proposed message was:

WARNING: Excessive exposure to violent video games and other violent media has been linked to aggressive behavior

That bill (which had actually failed once before, in 2009) died in committee. Well, it looks like Baca and Wolf are at it again—and not only are they continuing the crusade, they're upping the ante. Whereas the previous bill would have applied to games rated T (Teen) or higher, the newly proposed Violence In Video Games Labeling Act (pdf and embedded below) would apply to games rated E (Everyone) and up, meaning all video games except those rated EC for early childhood. Even more galling, they've modified the mandatory warning, which now reads:

WARNING: Exposure to violent video games has been linked to aggressive behavior.

Note the removal of both the "excessive" qualifier and the mention of "other violent media", making this new warning even more ridiculous than the previous one. As multiple studies have pointed out, the link between video games and violence is flimsy at best. The Supreme Court also rejected the key study claiming a link exists when they ruled California's anti-violent video game law to be unconstitutional. With all that, you'd think Baca and Wolf would know better than to fight for these warning labels yet again—let alone to ask for a warning that's even broader and less accurate, and which would be placed on countless video games that don't even contain any violence. Hopefully congress will recognize this, and prevent Baca and Wolf's petty, baseless moralizing from placing a needless restriction on free speech.

This just gets worse and worse. After pointing out that ICANN was missing a big (and important) opportunity by not speaking out against governments seizing domain names, we were disappointed to see ICANN release a white paper that was more of a how-to manual for governments on seizing domains. Now, Paul Keating points us to the depressing news that ICANN is now publicly saying that it will work more closely with governments around the world to help them seize and censor domains. The writeup is a little vague, but it says that seizing domains for copyright infringement was a "hot topic" at ICANN's recent meeting -- including promises from ICANN that it would work more closely with law enforcement around the globe and the various registrars to help law enforcement be more effective in censoring these websites. This is really unfortunate and once again highlights ICANN's uselessness in protecting the internet. Instead, it appears to be actively working against basic internet principles.

Last month, we wrote about how the RIAA was backing a version of the .music top level domain that would only allow "accredited" musicians to get domains with a .music suffix. Their key concern, as always, was that .music would be used for infringement. It appears that it's not just the RIAA who's concerned, and not just about .music. Paul Keating points us to the news that various other legacy entertainment industry groups, including the MPAA, ASCAP and others, have joined with the RIAA to warn of the horrors that await if .music, .movies and .games are allowed without special anti-piracy features.

In a position statement, “New gTLDs Targeting Creative Sectors: Enhanced Safeguards”, the groups say that such gTLDs are “fraught with serious risks” and should be controlled more rigorously than other gTLDs.

“If new gTLDs targeted to these sectors – e.g., .music, .movies, .games – are launched without adequate safeguards, they could become havens for continued and increased criminal and illegal activity,” the statement says.

It goes on to make seven demands for regulations covering Whois accuracy, enforced anti-piracy policies, and private requests for domain name take-downs.

But, here's the thing: all that stuff already happens on other domains. What difference does it make if it happens on those new domains? It's not like domains are a totally scarce resource, and stopping piracy on one particular TLD will somehow prevent infringement. This just seems like a strange and pointless battle. It's not actually fighting infringement. It's fighting the possibility that a certain domain will be used for infringement -- even though preventing that won't stop any infringement at all, since it will continue on other websites. So why even spend time focusing on something so useless?

It says something about the mindset of these organizations that they can't comprehend that making a stand over this is completely meaningless. They just instinctively lash out at anything new.

We've been covering the Prometheus Laboratories v. Mayo Labs case for a few years now, as it was a key case involving whether or not you could patent basic medial diagnostics -- i.e., can you patent basic science and limit doctors from doing such science without paying up. Tragically, in a series of decisions, the appeals court (CAFC) twice ruled that diagnostics are patentable, and we were particularly concerned that the oral hearings in the Supreme Court on this case seemed very narrowly focused. Of course, as we noted at the time, the oral hearings can be a red herring, as rulings often have little (if anything) to do with what is said during the oral hearings. This appears to be one such case.

Instead, it looks like we got a reasonably good (not great, but definitely pretty good) ruling from the Court effectively rejecting the concept of patenting basic medical diagnostics as laws of nature that are not patentable. It's always a good sign when Supreme Court IP case rulings are written by Justice Stephen Breyer -- as he remains the one Supreme Court Justice who seems to consistently, and instinctively, understand how excessive intellectual monopolies can cause much more harm than good. In this case, Breyer wrote the decision which, thankfully, was actually a unanimous decision, rejecting Prometheus' patents, and reiterating that laws of nature are not patentable.

In particular, the steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. At the same time, upholding the patents would risk disproportionately tying up the use of the underlying natural laws, inhibiting their use in the making of further discoveries.

Breyer's opinion is pretty clear and easy to read and makes some important points:

If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself. A patent, for example, could not simply recite a law of nature and then add the instruction “apply the law.” Einstein, we assume, could not have patented his famous law by claiming a process consisting of simply telling linear accelerator operators to refer to the law to determine how much energy an amount of mass has produced (or vice versa). Nor could Archimedes have secured a patent for his famous principle of flotation by claiming a process consisting of simply telling boat builders to refer to that principle in order to determine whether an object will float.

One nice aside: the ruling also rejects the US government's own brief in the case, which effectively suggested that we get rid of the rule that laws of nature can't be patented, and instead just focus on whether or not the claims are new and non-obvious. As Breyer wrote, this "risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do."

Finally, at the end, Breyer highlights the costs and benefits of patents and how the arguments that more patents automatically lead to greater innovation is simply not the case:

Patent protection is, after all, a two-edged sword. On the one hand, the promise of exclusive rights provides monetary incentives that lead to creation, invention, and discovery. On the other hand, that very exclusivity can impede the flow of information that might permit, indeed spur, invention, by, for example, raising the price of using the patented ideas once created, requiring potential users to conduct costly and time-consuming searches of existing patents and pending patent applications, and requiring the negotiation of complex licensing arrangements. At the same time, patent law’s general rules must govern inventive activity in many different fields of human endeavor, with the result that the practical effects of rules that reflect a general effort to balance these considerations may differ from one field to another....

In consequence, we must hesitate before departing from established general legal rules lest a new protective rule that seems to suit the needs of one field produce unforeseen results in another. And we must recognize the role of Congress in crafting more finely tailored rules where necessary.

All in all this is a good ruling. It's a little limited in suggesting that you could patent diagnostics that go further rather than just "drafting" on a natural law, but this is definitely a big step in the right direction. And as Patently-O notes, it's likely that this ruling will mean that the appeals court will now also be told to go back and re-evaluate its awful decision saying genes are patentable in the Myriad Genetics case. Hopefully, this ruling is a clear statement that not only are diagnostics not patentable, but genes aren't patentable either. If that's true it will be a huge boost to research in the biotech field, which won't be held back by expensive restrictions and tollbooths.

Of course, that's not the story you hear from the patent maximalists, who are arguing that this is horrible for the biotech community because it will mean fewer patents. But that ignores all of the good this does in making it easier to do research, to share results and lead to more real innovations built on basic laws of nature and facts, rather than locking up that knowledge.

Even though the ACTA text is now finalized, getting details from national governments about what exactly happened during the negotiations is proving extremely difficult, with information still trickling out slowly.

For example, as the Netzpolitik blog explains (German original), the European Commission tried to counter accusations that the negotiations were lacking in transparency by pointing out that the German government had a representative present during all the sessions (that's transparency?). This was news to people, since the German government had somehow omitted to mention this fact.

A natural question was therefore: who exactly took part? A German freedom of information request was put in to find out, and refused on rather remarkable grounds: that it might place the German officials who had been present during the negotiations at risk, because of the "emotional discussions" about ACTA that have taken place recently. The German government even claimed that threats of physical violence had been made against those who had taken part in ACTA, and so it couldn't endanger the persons involved by naming them.

This all seems pretty far fetched. I don't recall hearing about anyone threatening ACTA officials with physical violence, but I suppose it's possible that someone, somewhere in Germany, say, wrote something to this effect. However, the Germany government is really missing the point here.

The fact that such "emotional discussions" have taken place demonstrates how deeply frustrated people are at the continuing lack of transparency surrounding the ACTA negotiations. Using that previous failure to provide information to justify further withholding of details is only likely to exacerbate things. It's time for the German government, and the other signatories, to stop playing these bureaucratic games and to start engaging with their citizens through the release of more details about what exactly happened behind ACTA's closed doors.

As well as details of who took part, there is one other category of information whose release is vital: the preparatory documents used during the negotiations. That's because much of ACTA is worded in an extremely vague way, making precise interpretation difficult. In these circumstances, Article 32 of the Vienna Convention on the Law of Treaties presumably comes into play (pdf):

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31 [General rule of interpretation], or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

Without those preparatory materials the true effect of ACTA is difficult to gauge, and those "emotional discussions" that are apparently so problematic are likely to become even more heated. And we wouldn't want that, would we?

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The Arab Spring sparked plenty of discussion about the roles that social media, mobile devices and other technologies can play in toppling oppressive regimes. But there's another aspect to events in the Middle East that should prove enlightening to those interested in the role of media: what happens afterwards? In Libya, there is suddenly press freedom after 42 years of censorship and government control, and it has led to the appearance of countless new newspapers, websites and TV and radio stations, all working to build a journalistic landscape essentially from scratch. As an article in Global Post reveals, the result is understandably somewhat chaotic:

"We are yet to see even semi-professional reporting," said Jamal Dajani, the regional vice president for Internews, an international media development organization." TV reports are dominated by unfocused footage and "amateur standups," he says. "There are no standards on presentation. Long reportage and news packages are jumbled together like a mixed cocktail."

I find that comment interesting because it echoes some of the criticisms leveled at blogs and online media in the western world. The key difference is that while amateur journalism here has been able to draw upon the resources of traditional media as it develops, in Libya there is no such support structure:

A year ago, Libya's entire newspaper industry consisted of only six government-run papers. Television and radio were completely state-owned and international news was heavily censored. Dajani described it as a "one-man media" operation designed to promote former leader Muammar Gaddafi and his family.

[...]

The former regime's repression left little chance for most journalists to develop core skills. Even those considered professionals did not have the chance to work in any real capacity as journalists.

As Dajani put it, trained Libyan reporters have been "paralyzed" for the past four decades and in the eyes of the new generation they now have "zero credibility." The new landscape has emerged largely through the efforts of unskilled but enthusiastic amateurs.

It's too early to know what will emerge from the post-revolution chaos, but the big question is whether the press will establish its independence—which isn't guaranteed just because the government was toppled:

While government censorship has been almost nonexistent under the new system, Internews has expressed concern about "self censorship" and "public pressure" to omit information that may be deemed "against the revolution."

[...]

At the outset of the revolution, free and fair media was a major demand. Unsurprisingly, the media that emerged in the rebel territories took on the identity of the revolution, promoting those devoted to the cause.

As the new government and constitution begin to take shape, Libya's media has failed to shift from advocacy to neutrality.

I think "neutrality" is a dangerous term when it comes to the media, because too much emphasis on remaining neutral leads to sterile he-said-she-said journalism, where reporters don't feel the need to judge the veracity of opposing positions as long as they give them equal airtime. I prefer the standards of transparency, fairness and accuracy: having an opinion is okay, as long as you are upfront about it and open to changing it, and as long as you don't intentionally ignore facts that conflict with it. But this is the good thing about having an open landscape with a wide array of voices: these standards are naturally encouraged, because when one source violates them, others are quick to call them out. As Libyans' focus shifts to the upcoming election, it's likely that the self-censorship will decrease, and the fierce competition in the media will begin to improve the quality throughout.