A couple years ago, a massively struggling Kodak decided that perhaps it could cash in by suing more innovative companies for patent infringement. It filed suits against Apple and RIM for patent infringement both in the courts and using the ITC loophole. It appears that going to the ITC may have been a mistake on Kodak's part, as the administrative law judge there has said that the patent is invalid, so it doesn't even matter that some iPhones and Blackberries technically infringe. Of course, this has to hurt even more, considering that Kodak's trying to sell off its patents. If one of the key ones is found to be invalid, that can't be helpful in selling the bundle...

We've obviously written about musician Dan Bull a few times, but that's because he keeps doing cool things, both in writing good, insightful and funny songs about topics we're interested in here, but also experimenting with cool ways to connect with fans while also using free music to further his career. A year ago he auctioned off a custom song, and now he's doing the same thing again:

I AM SELLING MYSELF ON EBAY. If you're the winning bidder, I''ll record a custom song on any topic you choose. The song will be awesome. Click and bid now.

Suggestions:
* Anthem for your guild or sports team
* Advert for your business
* Theme tune for your film or YouTube channel
* Something ridiculously challenging just to show that I can do it.
* Battle track against something / someone you disagree with

If I like the topic, I may make a video for it too and it will get tens of thousands of views at the very least.

You can see the auction here, where the bidding is going fast and furious. I'm sure it helps that he's built up a larger and larger audience over the past year since he last ran this experiment... What I love about experiments like this is that it's not just about doing the same thing that others are doing, but finding what works with your audience, and knowing that if you can build up a strong fanbase, they'll be happy to support you doing cool things.

There are plenty of marketing gurus who will advise company founders to choose names and logos very carefully -- making sure to avoid confusing names or names without the appropriate gravitas. Then again, there are several companies with names that break the rules.

• If you're starting a new company, and you need a name (other than some silly placeholder like NewCo), read through this article to avoid some obvious pitfalls. Digg is a great name -- but execution matters, too. [url]
• The Name Inspector gives his advice on company names -- and debunks some common naming myths. He also analyzes a few familiar company names (eg Apple) -- and hates the branding term "empty vessel" because he thinks it's silly. [url]
• If you've ever wondered how some big company got its name, here are a few examples. Lego means "I put together" in Latin, but the company says that's only a coincidence. [url]
• To discover more interesting business-related content, check out what the deal is on StumbleUpon. [url]  

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

It's a difficult time to be making an Android phone, it appears. Just days after customs started blocking various HTC phones based on an ITC injunction due to some Apple patents, the ITC has also ruled in favor of Microsoft in a patent dispute with Motorola over Android phones. While there will be appeals and other such things, if this stands, and there is no settlement, Motorola's phones could also be blocked at the border by ITC injunction. Motorola, for its part, noted that Microsoft filed with the ITC over nine patents, and the ITC has only said that the phones violate one patent. Of course, since the ITC has only injunctive relief, it doesn't seem to much matter if it's one, two, six or nine -- the phone can be blocked. I am, once again, at a loss as to how this does any good. Keeping competing products from entering the market seems like the opposite of how you encourage innovation.

Back at Midem, I did a presentation talking about the importance of being more open, human and awesome is a key component to standing out against the (growing) competition these days. I used the example of Louis CK, but Amanda Palmer would be just as good. After all, her Kickstarter campaign is getting tons of attention for raising a ton of money, leading many to wonder how she did it.

But as the numbers keep going up, it's also raised a second question: where is all of that money going? And so it should come as little surprise that Palmer has opened up and explained in fairly great detail where the money is going, and highlighting that even if the campaign ends up at a million dollars (a real possibility), a very large percentage of that money is actually going back into the "product" being offered. Here's just a snippet, but you should read the whole thing:

7,000+ high-end CD-books & thank you cards cost about $15 a package to manufacture and ship. that’s $105,000.

1,500+ vinyls & cards, at about $20 to manufacture & ship…about $30,000

2,000+ art books (bearing in mind the shipping on those, every time they need to be shipped from the plant, to the distributor, to YOU, plus the signing, is killer) will cost us roughly $80,000.

PLUS we have to factor in about $15-20k to pay our design team to actually design all this stuff, and to make it super-duper amazing and worth your money. those of you who supported mine and Neil’s last Kickstarter know what i’m talking about here. this CD is gonna be a super-deluxxxxxe work of art.

the neil and kyle books are going to cost us a LOT of dough to create…let’s just throw out about $100/copy for about 100 copies…that’s 10k.

if we sell about 100 turntable packages: ordering the tables, paying the artists to paint them, shipping all that stuff around: ballpark another $15k.

arts & crafts/7-inch packages, if we sell about 300 of them, adds about another $30k (we’re planning on spending roughly $100 each on the packaging for those, including not only the vinyl but the fun arts-and-crafts activities. oh, and postage/shipping x5)

There's a lot more, but it adds up. In the end, she basically notes that the purpose of Kickstarter alone isn't to make a profit, but to invest in all of this awesomeness such that it can help sustain things going forward:

ONE…we are committed to doing amazing things for all of you who pledged. sure, it’s going to cost more to make things extra fancy (and for us to ship things for FREE all over the world), but making this stuff amazing IS THE POINT. if i skimped on making the packaging and actual products INCREDIBLE, i’d be an idiot.

and

TWO...a LOT of our income for the next year WON’T COME from this kickstarter. it’ll come gradually, over the following year: from the touring show, from the merchandise we sell on the road, from money we get in donations when i make the tracks available online, from the money i get from iTunes from the people who are sometimes lazy (like me), and so forth. it’ll be a slow burn, like it always is.

Some might think it's incredible that she could "make" a million dollars, and not come out super wealthy out of that process, but as she noted: "that’s FINE with me. it’s almost even THE PLAN." Why? Because it helps set up a variety of things for the future. This is important. As much as we've praised Kickstarter, which is completely awesome, it's not a business model by itself. It can be a piece of a business model, but it's an "event" and a limited time thing, rather than a sustainable ongoing revenue stream. Amanda is using Kickstarter wisely (obviously) not to just raise a ton of money and throw it all away (like a major label advance), but as a way to invest smartly in an awesome product while also setting up a way to keep earning money in the future.

And she's doing all of this in a characteristically open and human way.

As we said, being open, human and awesome is a key way to succeed these days, and Amanda's doing it better than just about anyone else out there.

One thing that's always amazed me is how the record labels ever got away with making it a standard thing that musicians hand over their copyrights to the label entirely. Sure, the labels put up some risk capital and handle part of the business side of things, but to totally give up all of your copyrights? In the tech industry, we've got lots of experience with risk capital, but venture capital deals (even as many entrepreneurs bemoan the deal terms) never go as far as record label deals in basically claiming 100% equity ownership in exchange for a piddly royalty (and only after you pay back the initial loan). But, of course, thanks to a broken system, musicians basically had little choice in the past but to sign a record label deal -- and with just a few large players in the space, giving away your entire output was considered "standard."

But, that leads to some troubling results. We've already seen how artists have complained about their own works being used in suing fans. These artists feel helpless about this legal campaign that attacks their fans, potentially creating significant problems for any attempt by those musicians to connect with fans and earn a living going forward.

Take, for example, the tragic story of the band All Shall Perish, as chronicled on TorrentFreak. Apparently, the band's German label handed over the rights to sue to a Panama-based copyright troll who is now suing people in the US, contrary to the band's own wishes. The band, of course, recognizes that suing dozens of its biggest fans is not a good idea, but seems powerless to stop things.

“The band’s attorney made it clear to the licensing people [at Nuclear Blast Records] that the band wanted no part in lawsuits against fans. The industry is changing, illegal downloading is troublesome for bands and of course, for record labels, but whatever the solution will be – streaming, subscription, Kickstarter, new ways of looking at it entirely, whatever comes about – the band and I are in agreement (as is their lawyer) that SUING MUSIC FANS SURE ISN’T IT,” Downey told TorrentFreak.

Apparently, after a lot of pressure from the band, the label claims it will tell the trolling operation, World Digital Rights, to dismiss the lawsuits. The band is now trying to regain control of its copyrights, and is saying that it would much prefer to protect its fans rather than sue them:

“The band, their attorney and myself have and will continue to take any steps to protect their fans, yes, even those who file trade,” Downey told us. “The band would prefer that their fans legally purchase, stream or otherwise enjoy their music. But they definitely have not, will not and do not wish to sue their fans.”

We've been following the "Ultramercial" case for a while. This was about a company that got a patent (7,346,545 that is basically about requiring you to watch an ad before you can watch some content). Ultramercial sued Hulu, YouTube and WildTangent. The case bounced around the court system for a while, with some using the Bilski ruling to reject the patent as an "abstract idea." However, CAFC (the appeals court that handles patent appeals and always seems to have a soft spot for patents) said the concept was perfectly fine. In reading through the details, CAFC's explanation was basically that since the patent described doing this abstract idea "on the internet," suddenly it became patentable. Back in March, we wrote about WildTangent's appeal to the Supreme Court, which pointed out the ridiculousness of saying that as long as you add "on the internet" to an abstract idea that it suddenly becomes patentable.

While it felt like there was a good chance that the Supreme Court would hear the case, there was one other interesting development that happened a week later: the Supreme Court smartly rejected broad patents on medical diagnostics in the Prometheus Laboratories v. Mayo Labs case, noting that such patents are on unpatentable subject matter. Specifically, the ruling held that "A patent, for example, could not simply recite a law of nature and then add the instruction 'apply the law.'"

Many people expected the Supreme Court to use this ruling to get CAFC to reconsider its Myriad ruling that allowed gene patents -- which it did. But the big news coming out this week was that the Supreme Court has accepted the appeal of the Ultramercial case by vacating CAFC's ruling and asking it to reconsider the Ultramercial case in light of the Prometheus ruling:

The petition for a writ of certiorari is granted [G]. The judgment is vacated [V], and the case is remanded [R] to the United States Court of Appeals for the Federal Circuit for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___ (2012).

This actually makes a lot of sense. The Prometheus ruling makes clear that saying "general idea + apply this idea" is not patentable subject matter. And yet, CAFC's ruling in the Ultramercial case basically said the opposite, noting that "general idea + apply this idea on the internet" is patentable subject matter. So, once again, it appears that CAFC's completely out of touch view of the patent system is getting smacked down by the Supreme Court. CAFC now has these two more chances to get it right and to stop slobbering all over ridiculous expansions of the patent system. Hopefully CAFC gets it right the second time around, and the ruling in Ultramercial is useful in limiting ridiculously overbroad software patents.

We've noted in the past just how incredibly backwards facing the real estate industry is. Last year, I got to present at a real estate industry conference, where I compared how the MLS (multiple-listing service) players were similar to the record labels and music studios, acting as monopolist gatekeepers to information. And, just as the entertainment industry gatekeepers have attacked disruptive innovators with lawsuits, so too do the MLS operations. In the past we've discussed how they've attacked web upstarts like Zillow and Redfin. The latest is that they've gone after NeighborCity, an offering from a company called American Home Realty Network (AHRN), who dared to make use of real estate data to actually rate real estate agents on their performance. As you might imagine, the real estate agents don't like that very much.

AHRN noticed that it suddenly received a flood of complaints and cease & desist letters conveniently timed exactly to the dates of the National Association of Realtors's (NAR's) annual meeting in November of 2011 -- and each of the letter seemed to include similar language. After responding to all of the complaints, two separate MLS providers sued AHRN. Amusingly, prior to the lawsuit, an executive for one of the MLS's (NorthStar, from Minnesota) appeared to accidentally cc AHRN on an email to its lawyer, complaining about "the bad fellow" (AHRN CEO Jonathan Cardella) not simply bending over and taking down NeighborCity in response to the complaints, and suggesting that filing copyright infringement lawsuits against AHRN/NeighborCity would be useful in bringing a "world of hurt" on the company. The email also discusses having various MLSs share the costs of litigation.

Indeed, NorthStar and a separate MLS, Metropolitan Regional Information Systems, Inc. (MRIS) appear to have followed through and sued for copyright infringement. You can see MRIS's filing embedded below. MRIS repeatedly insists that it holds a copyright on its database, completely ignoring fairly well-established law that you can't copyright facts, and that MRIS's copyright (if there is one) is limited to the creative works it added to the process. Instead, MRIS repeatedly claims to hold a copyright on the entirety of the database. It also claims to hold the copyrights on the photos uploaded by individual agents, saying that as part of that process, the copyrights are assigned to MRIS.

NeighborCity has hit back with its response (also embedded below), arguing that MRIS has no such copyright, and citing the litany of cases that establish you cannot copyright factual information, relying heavily (of course) on the important Feist ruling in the Supreme Court, which rejected "sweat of the brow" arguments for copyright, and said you cannot copyright a collection of facts, such as a telephone book.

It seems that the chance of succeeding on such a claim is slim to none. MRIS and its lawyers should be slapped around by the judge for even trying such an argument. MRIS clearly seems to recognize this by trying to use the photographs to make a separate argument. It claims that every photograph that is uploaded has its copyright assigned to MRIS (I'm actually a bit surprised that real estate agents would agree to this...) and thus it also alleges infringement on the photos. AHRN, however, points out that MRIS failed to register the individual copyrights on the photos, instead only registering a copyright on the "catalog." Here, AHRN notes (again) that there is widespread precedent limiting what sort of copyright can be applied to a catalog where little to no additional work was done by the party claiming copyright. Further, it points to the Muench case, which noted the "the registrant of a compilation copyright must list the names of the authors of the underlying works." That's just a district court ruling, so it's not clear how big an impact it would have.

AHRN also questions the claim that anything it has done creates irreparable harm to MRIS is completely baseless. MRIS's best argument is that outdated info on NeighborCity reflects poorly on MRIS, but AHRN points out that it would reflect much worse on NeighborCity itself.

The real issue, of course, is almost certainly that the real estate agents don't like the fact that they're being rated by the site. The fact that NeighborCity has operated for years without a problem... until it put up its agent rating service, makes that pretty clear.

The larger issue may be that AHRN is also alleging that the action confirms that real estate agents are violating the final judgment in the antitrust lawsuit the US government filed against the National Association of Realtors. The email that was sent to AHRN certainly seems to indicate plans for concerted action. Combined with the timing correlating to the NAR event... and there's at least a reasonable case for the DOJ to look into the activity here by real estate agents and MLS services.

In the end, though, this is the same story we've seen over and over again. Gatekeepers don't like being disintermediated by disruptive innovation. So, rather than adapt, they sue.

Joe Mullin points us to a story of yet another ridiculous patent trolling lawsuit win. This involves a small company called Grail Semiconductor, who appears to have done nothing of note in the market... but did secure a patent (6,642,552 on "inductive storage capacitor") which it used to sue Mitsubishi Electric... leading to a jury awarding Grail an astounding $124 million. Update: As pointed out in the comments, and discussed below, the issue here came about more as a breach of contract issue, rather than a straight up patent lawsuit...

However, what's interesting is that the "Naples News" from Naples, Florida has posted a somewhat revealing profile of Grail's "CEO" who doesn't seem to have any actual experience in the field, but somehow was hired to run the company through the lawsuit process (even though he lives in Florida, and the company is in California -- I guess it doesn't matter where you live if you're just suing over patent infringement):

A University of Wyoming graduate, [Ronald] Hofer spent about three decades compiling an eclectic résumé of business interests — insurance in London, tourism in Algeria, fusion technology in the U.S., drilling in Nigeria. Four years ago, Hofer settled in North Naples, buying foreclosed homes as investment properties.

From there, the story says that he met the inventor who held the patent "through mutual business acquaintances overseas," and somehow was made CEO of Grail despite no actual experience or relevant connection to the company.

Of course, the real big break for the company was hiring Ray Niro to run their patent fight. Niro is the guy who inspired the term "patent troll" years back, and has a long history with these kinds of cases. Grail had tried with other law firms in the past -- and apparently had trouble paying its bills. As the article notes, "One firm is suing for about $2 million in unpaid fees. Another is seeking more than $2.3 million." But, still, Niro took the case, and likely stands to earn himself a nice commission if Grail can hold on through the appeals process.

Also, the article celebrating Hofer claims that Mitsubishi "stole semiconductor designs" from Grail back in 2001, though I'm curious if that's actually true, or if this is just another case of independent invention of an obvious progression in the art. Lots of reporters claim that anyone found guilty of patent infringement "stole" from the patent holder, when it's very rarely the case. Update: Aha, some more details on the case suggest that, indeed, Mitsubishi did establish a deal with the engineer, and then appears to have shared the information with subsidiaries -- so this isn't a garden variety independent invention situation.

Either way, what does seem clear is that Grail tried to do something in the market and was a complete flop. If we were in a real free market, it would go out of business and move out of the way while others innovated. Instead, it gets to hang on, and we have a system in which we reward the failures, and punish the successful companies who innovate. That is not a recipe for economic growth by any stretch of the imagination.

Adam Singer points us to a silly and vapid op-ed piece from CNN written by Chelsea Clinton (daughter of Bill) and James Steyer (founder, boss of Common Sense Media, an operation that has done some good, but lately is getting the reputation of being anti-internet) entitled is the Internet hurting children? Just the fact that it would lead with such a ridiculous question gives you an idea of how problematic the entire piece is. It's written as if they haven't been aware that such a "debate" has gone on for ages. Take this, for example:

We urgently need a public conversation in our country among key stakeholders: parents, educators, technology innovators, policymakers and young people themselves. The dialogue must focus on the ways social media and technology enable our kids to give up their privacy before they fully understand what privacy is and why it's important to all of us. We should also discuss how social media can help empower kids to find their voice, find their purpose and potentially create the next technology revolution.

All adults know that the teen years are a critical time for identity exploration and experimentation. Yet this important developmental phase can be dramatically twisted when that identity experimentation, however personal and private, appears permanently on one's digital record for all to see.

Every few months, we see basically the same announcement from some somber-looking-concerned-person-of-importance who seems to feel they just discovered the internet. Suddenly, this person realizes that, you know what, not everything on the internet is appropriate for children, and then, suddenly, "we need to have a conversation." You know what? That conversation has been going on for ages, and there's tons of great research being done already. Don't ask for a conversation in a silly paternalistic tone. How about you go talk to researchers like Danah Boyd, who has done some really fantastic work in the space that involves (*gasp*!) actually going and talking to kids and seeing how they use the internet, rather than making that concerned pouty face about the need for "a conversation."

Even worse, after admitting that they haven't been a part of the ongoing conversation, Clinton and Steyer immediately jump to the "but we need laws!" as the answer. Notice that it's the very first thing they suggest:

We need legislation, educational efforts and norms that reflect 21st-century realities to maximize the opportunities and minimize the risks for our kids. Only then will we be able to give them the safe, healthy childhood and adolescence they deserve.

We've gone through this dozens of time. No, the internet is not perfectly safe for kids, but neither is walking down the street. In some cases, you don't let your kids walk down the street alone, but as they get older, you teach them how to have a basic sense of street smarts, and you give them more power. None of that required special "protect the children!" laws. It does seem clear that kids need to learn some "internet street smarts," but that shouldn't require legislation. We've already seen how "protect the children" legislation has backfired in a big bad way.

For example, we already have COPPA, which basically makes it very very very difficult for companies to offer services to kids under 13-years-old. But this artificial barrier means that parents lie to help get their kids online. It's not clear how that "protects" those kids. It doesn't keep them offline, but it does teach them that lying is a good idea.

So rather than rushing to regulate, and acting all "concerned" about children -- most of whom do a pretty good job on their own figuring out how to stay safe -- perhaps we shouldn't just look at the exceptional cases and jump to legislation, but figure out what a reasonable response should be by taking more typical usage into account. You're never going to stop kids from doing stupid things. It's part of growing up. We can certainly help to educate kids, but taking on a totally paternalistic role is bound to backfire.

In a short article about a panel of Congressional staffers at the NCTA show, they basically admitted that any new "anti-piracy" legislation may be tough to pass -- with one staffer saying that the SOPA protests "poisoned the well." However, perhaps more interesting were the comments from Stephanie Moore, the "Democrat's chief counsel on the House Judiciary Committee" who apparently still refuses to believe that the public actually spoke out against the bill of their own free will:

“What happened was a misinformation campaign,” said Moore. “People were basically misled into contacting Congressmen with claims that were extraordinary. There was some genuine concern, but as for it being a genuine home grown grassroots up-from-the-streets opposition, I beg to differ on that.”

I always find this line of reasoning quite extraordinary. If you look at the history of copyright law -- especially over the past 40 years or so, it's been one "misinformation campaign" after another by RIAA and MPAA lobbyists. As we've discussed, Congress has bent over backwards to pass 15 anti-piracy laws in the last 30 years -- each one pushed by industry lobbying about how they would collapse and die without the laws being passed, and how no one will create content without such laws. They've been wrong every single time. So even if it was a misinformation campaign on the other side, at best all it would do is even out the playing field. Besides, looking at the arguments in favor of SOPA and PIPA, they were so full of blatant misinformation that I don't think any amount of misinformation against the bills would have even out the score.

But, to be clear, since I was pretty closely involved in the effort to stop these dangerous bills, I can say first hand that the claim that this was a "misinformation campaign" and that it wasn't about an "up-from-the-streets opposition" are hogwash by a person speaking from ignorance, anger or jealousy over having their own pet bill blocked. The folks working against the bill worked pretty damn hard to paint a clear and accurate picture of the bill. While there were various people who helped shepherd the process along, the protests didn't take on any life until various communities of people took them over and ran with them -- starting with the users on Tumblr and Reddit (followed closely by those on Wikipedia).

Of course, when you have any large group of internet users, not all of them are going to understand the nuances or the details. So, certainly some misinformation got into the discussion. To be fair, though, the largest bit of "misinformation" I saw on the anti-SOPA side was from people who didn't realize that (under serious public pressure), Lamar Smith issued a manager's amendment to take out the worst of the worst of SOPA (still leaving in plenty of bad). Some people mistakenly referred to the impact of the original bill in protesting later versions. This was, indeed, a mistake, but hardly a result of "misinformation." After all, those issues were in the original bill and were clearly part of what the House Judiciary Committee's staff was going for when it scribbled down the bill as the MPAA dictated it crafted the bill.

What I do know is that when misleading suggestions were made on the anti-SOPA email list, knowledgeable people quickly pushed back against those claims, noting that they were not true and should not be used. I did not see that on the other side. When the bogus claims of the entertainment industry were widely debunked, the supporters of SOPA kept on quoting them (and still do, to this day).

So, I'm sorry, but the idea that the defeat of SOPA was a misinformation campaign and not a grassroots effort is pure bunk. And if Moore wants to avoid a repeat, rather than lashing out mistakenly, and misunderstanding what happened, she should perhaps spend some time actually learning about why people were so upset by SOPA. But, of course, we know that won't happen.

Last week, Rob 'Cmdrtaco' Malda (and, can I just say that I think it's awesome the Washington Post allows Rob to keep "Cmdrtaco" in his byline?) wrote a perfectly reasonable (perhaps even tame) column with the admittedly inflammatory title Why Hollywood is doomed. But if you read the actual article, it basically argues that the answer to Hollywood's problems is not to focus on passing bad laws in a quixotic and pointless attempt to "stop" piracy, but rather do what they should be best at: making good movies. He also suggests a much bigger threat to Hollywood than any amount of piracy is (*gasp!*) bad word of mouth:

While Hollywood blames piracy, at least for now, I put the blame squarely on texts and tweets. These days, a month-long $100 million marketing campaign culminates in a 24-hour social network frenzy. The first $10 million-worth of ticket purchasers influence the potential $90 million-worth with knee-jerk reviews broadcast via their smartphones. These viewers determine if the movie will make a profit.

Ultimately, Hollywood, here’s the secret: Make good movies. “The Avengers” is simply fantastic. It’s no surprise, since the film’s director, Joss Whedon (of Buffy and Firefly-fame), is known for making cult, ensemble TV action. His most recent film, prior to “The Avengers”, is “The Cabin in the Woods” -- still the most fun movie of 2012.

This is perfectly reasonable advice. If Hollywood actually focuses on making top notch movies, it seems pretty clear that people have no problem paying. The success of the Avengers is hardly the only data point to show this.

So how do the folks at the MPAA react to such reasonable advice? They start whining all over again. In fact, they sent out their "big guns," starting with Michael O'Leary (basically Chris Dodd's righthand man) to attack Malda by totally misreading his column:

The Washington Post’s Rob Malda’s recent blog post appears to argue that the success of a particular film at the box office somehow means that concerns about widespread piracy are misplaced. This is a bit like condoning shoplifting if it’s done at a successful store. Of course, we shouldn’t. And it overlooks the economic damage – and the damage to consumers -- of turning a blind eye to such forms of theft.

Except that's not what Malda said at all. He said the concerns were misplaced because good movies can still get tons of people to pay -- far more than ever did in the past. This isn't saying that shoplifting is okay from a successful store. It's saying that there's little to no evidence that such infringement actually has a negative impact, because it seems pretty damn clear that people are still quite willing to pay to go see a good movie.

From there, O'Leary goes on to misrepresent the already ridiculous White House report that tallies up jobs in "IP-intensive" industries, but ignores the fact that very few of those jobs exist because of IP laws. In fact, an awful lot of those jobs come from industries (tech) that have fought the hardest against the expansion of IP laws, and have worked hard to reform them. On top of that, the report clearly states that it's not intended to be used for policy purposes, but that hasn't stopped the MPAA and all its friends from mentioning it every chance they get:

According to a recent Department of Commerce report, IP-intensive industries such as film and television support 40 million jobs and add $5 trillion dollars to U.S. gross domestic product annually – nearly 35 percent of America’s economic output. 2.2 million American jobs depend on the film industry and television industry alone.

We think that the hard work of those people should be protected. But the reality is that rampant online theft undermines the ability of IP-intensive industries like ours to invest in new ideas and new products if it’s simply accepted fact that they will be stolen – often before they even have a chance to hit the marketplace. Copyright protections are critical to keeping the creative industries vibrant so they can continue to employ millions of Americans and produce the films and other creative content that have become such a vital part of our cultural fabric.

O'Leary conveniently leaves out that this same report noted that these "IP-intensive industries" are currently growing faster than other industries and pay people more than other industries. I guess that doesn't fit with "the story" that the sky is falling and they need special protections.

As for those protections, last I checked, we were supposed to live in a capitalist free market economy, where even the most basic economics student learns that you don't "protect" industries, you let them compete. And if they fail, they fail. The fact that O'Leary wants the government to be protectionist for his industry, rather than letting it compete in a free market pretty much makes clear what he thinks his own industry's chances of survival are.

And he's mostly right... because it goes right back to what Rob said. For the most part, they don't seem to make that many good movies these days. They've focused on crappy, formulaic, derivative flicks. Every so often a good film gets out, but Hollywood has become afraid to make good movies most of the time. Perhaps if it spent more time focusing on that, and less on whining about how it needs to be protected, it wouldn't have so many problems.

Of the many misguided DRM restrictions that software developers have employed over the years, "limited activations" are among the most arbitrary and bizarre. In an attempt to avoid the simple fact that all software is infinitely copiable, developers release software that can only be installed a limited number of times—supposedly striking a balance between multiple legitimate installations (someone with multiple machines, or who simply goes through computers quickly) and the fact that many people will lend the disc to a friend. Of course, such a balance is impossible: there's no upper limit on how many times some purchasers might need to legally install the software, and there's no lower limit on how many additional copies can be allowed before some people will give them away. Any number you choose is at worst completely meaningless, and at best a very weak compromise.

Rikuo sends in a good example of this: to celebrate the release of the game Crysis 3, the studio has raised the activation limit on the original Crysis from 5 to 50. It seems like a nice gesture, but it doesn't really make any sense—why not just remove the limit entirely? The game is nearly four years old and cracked copies are easy enough to obtain, and it seems like they aren't that worried about piracy, since otherwise I don't imagine they'd make the limit so high. But the real slap in the face is that, when you get down to it, this is still them restricting your legitimate use to their arbitrary terms. Rikuo sums it up:

On the surface, this is good news. But, when you stop to think about it, it gets silly. Here's why.

I'm sure I'm not the only person who ran into the limit. Suddenly, this game we had dropped good money on, no longer worked. I and others are constantly swapping in and out PC components, or upgrading to entirely new systems. Each and every time this happens, it eats up an activation. So, for a good while, we had a game that by intentional design, refused to work. Now, all of a sudden, Crytek has graciously said, yes, you can play the game. This is quite simply obnoxious. When you get right down to it, Crytek held our games hostage and only now is letting us play them again.

We are the people who play Crysis on PC. To do so, you need a powerful system. To have a powerful system, we are more than likely the type who are constantly buying new components, buying new systems. We absolutely HATE IT when we have a game that refuses to work simply because we bought one computer too many, or swapped out our graphics card or CPU one too many times. When that happens, we have to spend time hunting down a crack from dodgy websites, virus-scanning them to make sure they're safe and then running them.

Crytek, do not hold our games hostage. It may seem like a good thing that now we can install the game 50 times, but its still a finite limit. Things happen. Windows could crash and I might end up having to reinstall it. I could get new components or a new computer. When considering new purchases, I do not want to have to keep track of how many times I'm allowed to play the games I've bought. I do not want to have to wait for you to say "Oh, ok then, since you've been good and bought Crysis 2, I'll allow you to play the first game again". That is not how it should be. I've already paid for the first game, my ability to run it should not be contingent on the reveal of another game being in development.

Indeed. Once again, the only people the DRM affects are legitimate consumers—and they are forced to dive into the pirate ecosystem for cracks even though they didn't pirate the game. Adding a zero to the already-arbitrary activation limit doesn't mitigate this insult to customers so much as it rubs it in.

Well, well. After some delays and an aborted attempt a few days ago, it appears that the SpaceX "test" flight to get a bit of cargo into orbit and aimed at the International Space Station has worked according to plan -- and we're now a step closer to a private space program (photo from NASA): The SpaceX folks webcast the whole thing from its website (hopefully, they'll post the video for people to rewatch -- as of right now there's nothing). The White House immediately offered its congratulations for "the potential of a new era in American spaceflight..." powered by the private sector.

This is the second time that SpaceX has gotten this far, but rather than just orbiting the earth a couple times, the current mission goal is to have the Dragon capsule actually dock with the International Space Station (and deliver some food). The actual docking process is a bit complex, apparently, so there are still some worries. However, things certainly seem to be progressing.

And, of course, this is just one of many stepping stones towards actually offering private manned spaceflight, which goes beyond just touching the edges of space, but actually into orbit. Either way, it's an important milestone along the way.

ACTA and TPP have much in common, but the way in which they represents two aspects of the same impulse has never been shown more clearly than here, in this proposal to re-use elements of one in the other:

In an apparent effort to break the deadlock in negotiations for an intellectual property rights (IPR) chapter in the Trans-Pacific Partnership (TPP), several countries are proposing that certain provisions in a U.S. proposal be replaced with language from the Anti-Counterfeiting Trade Agreement (ACTA), according to informed sources.

Sources said that other ACTA signatories involved in the TPP – New Zealand, Australia and Singapore – want to substitute language from the agreement’s criminal offenses section with the proposed U.S. language on criminal enforcement, according to sources in Dallas.

Some of the more "moderate" participating countries have realized that TPP's criminal enforcement provisions are simply disproportionate:

the ACTA and the U.S. proposal [for TPP] both would require countries to provide for criminal procedures and penalties at least in cases of "willful" counterfeiting of trademarks and copyright piracy on a "commercial scale."

However, the U.S. proposal contains a much stricter interpretation of what constitutes commercial scale because it would cover significant infringements for both the purposes of commercial advantage or private financial gain as well as acts that result in no direct or financial gain.

One source said this provision could criminally punish an individual who has committed a significant act of infringement but does not intend to gain financially from it. IPR industry sources defend this approach as capturing users of file sharing services who do not stand to gain financially by sharing a large amount of pirated content.

That last comment is noteworthy, because it shows that the copyright industries want to punish general users swapping unauthorized copies with criminal sanctions even if there is no money involved. It confirms that these treaties are not really about fighting organized crime, as they are often presented, but truly a war on online sharing itself, where the aim is to put ordinary people behind bars.

To break the deadlock on this issue, the moderate wing of the TPP club is apparently suggesting that the equivalent ACTA provisions should be re-used. It's interesting to see ACTA, which is still being fiercely fought in Europe because of its harsh and unbalanced nature, presented here as a milder option compared to TPP. If nothing else, that negotiating calculus emphasizes just how extreme TPP is.

However, it's also disturbing that ACTA, although not yet in force, is already being taken as the new baseline. Indeed, the article quoted above notes that ACTA's provisions "represent a much higher standard than the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)" - the previous benchmark here.

Moreover, as regards the current "compromise" idea of using ACTA's provisions instead of the US proposals for TPP, an industry source had the following to say:

the U.S. IPR text largely reflects the U.S.-Korea FTA [Free Trade Agreement] and it would be unlikely the U.S. would agree to provisions that are less strict in the area of criminal enforcement.

As far as the US is concerned, it seems, every treaty in this area, whether bilateral (as in the US-Korea FTA) or multilateral (as with ACTA and TPP), is part of a policy ratchet that allows change in only one direction: more. The unspoken assumption that more copyright and more enforcement are always better is one of the key reasons why SOPA failed, ACTA is meeting such resistance, and even TPP is stumbling.

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