The ACTA backlash continues. While ACTA support is melting away in Europe, over in Australia there may be some pushback as well. Australia already signed the agreement in the original batch last October, but as we noted at the time, it still needed legislative ratification there. And, with all of the protests and attention in Europe, it appears that the Australian Parliament might not just rubberstamp it. At a hearing for Parliament, a group of Australian intellectual property experts explained why Australia should reconsider its support of ACTA, and the chair of the committee that hosted the hearing admitted that "this is a controversial treaty nationally and internationally...." If this keeps up, perhaps the US will just have an agreement with itself.

As we expected, following the Supreme Court's excellent rejection of medical diagnostic patents, it's now set aside the appeals court's ruling upholding gene patents, and asked the appeals court to review the case in light of its ruling last week. Again, this is not a surprise, but it's good that the court so quickly recognized that the two cases have similar issues, and that the appeals court ought to revisit the Myriad (gene patents) ruling so quickly. Hopefully, CAFC (the appeals court in question) will come to its senses and recognize that you can't patent genes. Either way, no matter what CAFC decides, expect that to also be appealed right back to the Supreme Court.

When you need some good ideas for solving a problem, sometimes nature already has an answer. For example, the original idea for what became Velcro, the hook-and-loop fastener, was inspired by the burrs of the burdock plant which tend to stick easily to fur and clothing. Here are a few other examples of some very sticky adhesives that were inspired by nature.

• Oxford University researchers have developed a molecular superglue inspired by flesh-eating bacteria. To attach itself to human cells, the Streptococcus pyogenes bacterium uses thin hairs made up of a protein with a 3D structure stabilized by a very strong intramolecular isopeptide bond that can survive boiling in detergent and strong acids.[url]
• Researchers at the University of Massachusetts Amherst have created a super-adhesive called "Geckskin" that was inspired by gecko feet. The Geckskin is only about the size of an index card, but it can support a maximum weight of about 700 pounds. It can hold a 42-inch flat screen TV to a wall, and be removed and restuck to another surface many times without leaving a residue.[url]
• Mussels, barnacles, and tubeworms are providing the inspiration for future medical adhesives. Aside from clinging to rocks, mussels can also stick to wood, iron, steel, and even Teflon. [url]
• To discover more interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

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

If you read this site, you probably already know who Bruce Schneier is. We've certainly mentioned the longtime security expert plenty of times. He's been one of the leading vocal critics of "security theater" from the TSA, and therefore a perfectly reasonable counterpoint to the TSA in a hearing by the House Oversight Committee looking into TSA reform. I don't think anyone has thought quite as much about how the TSA could do things better than Bruce Schneier. But, as you can see from the website of the hearing, Schneier was removed from today's hearing: He didn't get sick or have something better to do. Hell, he didn't even miss a flight. Instead, according to Schneier, the TSA itself had him removed from the panel:

On Friday, at the request of the TSA, I was removed from the witness list. The excuse was that I am involved in a lawsuit against the TSA, trying to get them to suspend their full-body scanner program. But it's pretty clear that the TSA is afraid of public testimony on the topic, and especially of being challenged in front of Congress. They want to control the story, and it's easier for them to do that if I'm not sitting next to them pointing out all the holes in their position. Unfortunately, the committee went along with them.

As Tim Lee notes in reporting on this story, the TSA has done similar things in the past, and even been rebuked by Rep. Jason Chaffetz -- and yet it had no problem doing it again. The fact that Schneier is a part of that lawsuit is meaningless and shouldn't stop him from testifying at all. Schneier is a clear thorn in the side of the TSA, and if it's so afraid of having him speak to Congress, that really says a lot about the (lack of) confidence it has in its own arguments. If you can't stand to let a critic speak, it suggests that perhaps your own argument isn't very strong.

Over the past few years, we've seen a number of lawsuits around the globe concerning Google's "autocomplete" feature, which takes common searches based on what you've already typed and suggests those as potential full searches. The feature can be pretty useful (and also amusing at times). In the US, the entertainment industry has freaked out about it, leading to Google's bizarrely hamfisted censorship of the results.

But that's not good enough for some. We've covered cases in France and Italy where Google was found liable for "suggestions" that a user didn't like (usually associating whoever was complaining with something bad). Of course, that totally misunderstands the feature and suggests that it's actually Google directly saying this is the best suggestion (in fact, I wonder if this is why Google stopped calling this "Google Suggest" and moved to simply calling it "autocomplete").

The latest, as pointed out by TNW, is that a court in Japan has actually ordered Google to turn off the feature entirely, claiming that it's a violation of privacy. Privacy? Huh? Basically, it sounds like a guy complained that searches on his name popped up suggestions with all sorts of bad things (the article says "criminal acts"), and the guy thinks his getting fired and difficulty finding another job was due to this. Of course, it's difficult to see how that's a privacy issue at all, or how it's Google's fault. Google claims that as a US company it has no obligation to obey the injunction.

The thing is, the guy remains unnamed. If he actually named himself, he might solve the problem by promoting more stories about how he's not actually associated with these crimes, and those would likely rise to the top. In the meantime, what does it take for a judge to ask someone who actually understands technology for some pointers before making a ruling that shows a basic ignorance of what the tech does?

Tinker v. Des Moines is considered a key lawsuit in defining the free speech rights of students. While there have been a few cases that limited the ruling, it's still seen as the key case in establishing that students have First Amendment rights and that schools can't just arbitrarily shut them down.

I'm reminded of all this after hearing that a student, Austin Carroll at Garrett High School in Garrett, Indiana, was expelled from the school for a silly tweet that used the word "fuck" repeatedly. Supposedly he tweeted something along the lines of "Fuck is one of the fucking words you can fucking put anywhere in a fucking sentence and still fucking makes sense." A little juvenile, but he's in high school. He insists that he tweeted this from home, but the school insisted that it was done at school. But the details suggest the tweet came at 2:30am when he was definitely not at school.

What's coming out, however, is that the school was apparently spying on how students use Twitter:

The principal at Garrett High School claims their system tracks all the tweets on Twitter when a student logs in, meaning even if he did tweet it from home their system could have recognized it when he logged in again at school.

I'm not entirely sure what they mean here by it "could have recognized it when he logged in again at school," but it seems clear that the school was aggressively monitoring social networking activity, and chose to expel the kid because of his decision to express himself. It sounds like Austin isn't fighting the expulsion, but simply found an alternative school to complete his last few months and get his diploma, but that's pretty ridiculous. I don't see how the school has a legitimate argument for expulsion here as it appears to violate his basic First Amendment rights. Even beyond that, though, it's really pretty shameful what the school is teaching its students. Spying on students and punishing them for expressing themselves gives exactly the wrong kind of message to students.

Folks who hang out on HackerNews may have seen an interesting little debate flare up recently in a couple of threads. It started when a guy named Dustin Curtis announced a new simple blogging tool which he called Svbtle. He originally designed it for himself, then decided to make it into a wider offering, but is only letting "vetted" bloggers use it, rather than opening it up. This rubbed some folks the wrong way, and another guy, Nate Weinert, decided to build his own open source version that looks similar and has the same basic functionality, and released it to the world under the name Obtvse.

Then the debate raged in the two HN threads over the basic ethics of the decisions by both individuals -- Dustin for locking up his system and Nathan for copying Dustin's idea. It won't surprise many where I come down on this. History has shown that copying often leads to useful innovation and can help expand a market. I find arguments to the contrary somewhat frustrating, because they seem to argue that there's some sort of moral right in an idea -- something that just doesn't make that much sense to me. If others can do more with your idea, why should we stop them? Now, some argue that Nate didn't do more with the idea, but I disagree. He made it open and usable -- by definition doing more with it. Furthermore, in doing that, he made it much easier for others to build on it as well.

But, really, the reason I'm writing this post is a fascinating must-read comment by a guy named Frank Chimero, responding to a blog post by Daniel Howells about this whole back and forth. The comment is a really excellent and succinct explanation of how creativity works and the fact that once you've created something and released it to the world, you've lost control over it -- and pining over that lost control is a fool's errand:

I think once you publish something, you lose control of it. At worst, you inspire mockery and parody. At best, you become material for future work, because what you’ve made is successful, interesting, or relevant. Usually, it is both.

All work produces spill-over repercussions that usually go against the will of the work’s creator. The creator wishes to retain authorship and control the work, while those in the culture wish to use, transform, and remix it. If the work is truly successful, it will defy authorship and turn into a shared experience for everyone. Those works are the hardest to control, because they diffuse, and spread wide by permeating into the air. The become a shorthand for those who make or enjoy similar work, becoming a shared vocabulary.

The situation requires things from both those who create the work, and those who wish to use it.

For the initial creator, they must resign most control upon publication, especially on the internet. Their work will be used to say and do things they don’t intend. Ideas, in truth, go further when others carry them, and this usually means they will go in directions the original author did not intend or imagine. For instance, I’ve had a quote of mine (“People ignore design that ignores people.”) taken out of context and used to justify two completely contradictory design methods. So it goes.

For those that use the things made by others, they should credit where possible, and have their work be transformative in some way. They can carry the ideas of others, but they must to take it further or a new direction. Then, they are obliged share alike. To not do both is to go against the goodwill initiated by the work’s creator.

And for both, we should recognize that all creative processes use materials from those who came before us, and respect the meaningful influence of others. We’re part of a long line of people who make things. It is a privilege to get to use the work of others in our own.

So many excellent points in such a short comment. In fact, economic studies have actually shown, in fairly great detail, that it's exactly these kinds of "spillovers" that lead to economic growth (in fact, they were regularly called spillovers, until the economic language finally clarified a bit further). The fact that you can build on ideas is a natural resource that only expands. It's not limited by scarcity, like many natural resources. It's the nature of an idea to be infinitely copyable at no cost that acts as a resource multiplier that leads to economic growth. That's what's so powerful about it.

It's natural that the originator may get upset about how some of this works out, but contrary to the claims of some, if someone does something with your work, it doesn't do anything to the original. It just expands the overall market. You lose control, but that's not bad. The things that you did are based on the fact that others lost control of things as well.

Oh, and for a bit of irony, I only found this quote because Dustin Curtis highlighted it on his own (Svbtle) blog. Yes, the guy who had his work copied chose to highlight this particular comment... and add "great artists steal" to the end. Seems that he recognizes how all this works and perhaps isn't too upset about how things went down.

After the US shutdown of Megaupload, we noted that there were serious issues with the indictment, in that the US Attorneys seemed to make all sorts of leaps of logic to make their case, and it suggested that they had come into the case with a pre-determined idea (take the site down), and then cherry picked and distorted evidence to make the case. For example, we noted that the indictment used the lack of a search engine on Megaupload to indicate that it was a "criminal conspiracy," because it was "hiding" the infringement on the site. But that made little sense, considering that previous cases had found that having a search engine was an indication of inducement, and made a site against the law. The US government seemed to be saying that having search is inducement, but not having search makes you a conspiracy. That's crazy.

Kim Dotcom is continuing to make his case publicly, sharing a bunch of details of why he's confident that he'll win and why the US Government's case is wrong. In particular, he takes aim at the claims that he's guilty of direct infringement for uploading and sharing some songs. He claims that the government misses the fact that he uploaded songs he owned, but he never actually shared them publicly:

“A link distributed on December 3, 2006 by defendant DOTCOM links to a musical recording by U.S. recording artist ’50 Cent’. A single click on the link accesses a Megaupload.com download page that allows any Internet user to download a copy of the file from a computer server that is controlled by the Mega Conspiracy,” the indictment reads.

Dotcom told TorrentFreak that the file in question wasn’t infringing at all. He explained that he actually bought that song legally, and that he uploaded the file in private to test a new upload feature. He quickly picked a random file from his computer, which turned out to be this song.

“The link to the song was sent using the private link-email-feature of Megaupload to our CTO with the file description ‘test’. I was merely testing the new upload feature,” Dotcom said.

“The URL to this song had zero downloads. This was a ‘private link’ and it has never been published,” he added.

That raises questions about whether or not you can upload your own music for private use -- but given things like Google's Music locker and Amazon's music locker, it seems that lots of companies let you do something quite similar. That said, I would imagine the government's response is just the fact that such a system lets you offer up "private links" means that it's a form of distribution. However, it does make the government's case a little trickier.

Separately, Dotcom reveals that the large movie studios, who were the key source pushing for the indictment in the first place, were eager to work with Megaupload and the company had relationships with many of those companies. There are full emails there, including Disney offering up an alternative agreement to Mega's terms of service, and Warner Bros. asking for easier ways to upload its content (and talking about being able to share key movie content). The WB email is pretty damning:

Hello Megavideo,

My name is Joshua from the Warner Bros. Advanced Digital Services department. I would like to know if your site can take a Media RSS feed for our syndications. We would like to upload our content all at once instead of one video at a time.

Thank you for your time and funny content,

Joshua D. Carver

This is, certainly reminiscent of the revelation that while Viacom was freaking out over YouTube and suing, its marketing people were uploading tons of clips, and that Viacom was so confused that it actually sued YouTube over clips it had uploaded itself.

All that said, I still think that Kim Dotcom's decision to fight this in the press is a huge mistake. Even though he makes it out like he's fighting the MPAA -- and I'm sure they were absolutely behind much of this -- he's really fighting the US Attorneys, a part of the Justice Department, and they don't deal well with things like this. They can be incredibly vindictive and are focused solely on winning the case, not on what the public thinks. They'll use everything Dotcom says publicly and turn it against him.

Along those lines, for all the parallels discussed to the YouTube case, or even the Hotfile case, it's important to recognize the key difference. Those cases were civil cases between two private parties, where the end results could be injunctions or monetary awards over copyright infringement charges. Megaupload's founders are facing criminal conspiracy charges, which are an entirely different ballgame. Yes, the conspiracy charges are based on copyright infringement, but arguing solely about the copyright infringement part misses the main thrust of the government's case. The conspiracy charge is why they can do something ridiculous like claiming the lack of a search engine is evidence of a crime (even if having a search engine is evidence of inducement). Having all of this rest on the "conspiracy" charge means that the rules in this case are different, and the evidence just needs to show conspiracy -- not necessarily focus on the infringement aspects.

I think that Dotcom and his lawyers absolutely should be making these points in court to show that the conspiracy angle falls down when you scratch beneath the surface. Furthermore, they should probably be making the case that, at best, this should have involved a civil copyright lawsuit. But fighting a criminal conspiracy charge as if it's the same thing as a civil copyright infringement dispute is a mistake, and it's one that federal prosecutors will jump on and exploit strongly. Dotcom is right to point out that there's a serious conflict of interest in the fact that Neil MacBride, the former anti-piracy boss for the Business Software Alliance, is leading the case against him -- but arguing that right now isn't going to do him any favors. MacBride is a smart guy, and he'll use all of this against Dotcom.

I think there are a lot of serious issues raised by this case, and I think the government has massively overreached in its indictment. But I do worry (quite a bit) that Dotcom's decision to take his arguments to the press first may backfire and could taint the case, where having strong legal arguments to counter the government's questionable claims are really really important.

It's really disturbing how some companies overblock certain content and feel that they have the right to insert themselves into your ability to communicate. A few years ago, we noted that Facebook had blocked any and all links to The Pirate Bay. When asked about this, the company said that due to the "controversy" around the site, it was going to assume that all TPB links were infringing and violated the site's terms of service. It looks like Microsoft is going down a similar route. Apparently you can no longer send a TPB link via its Live Messenger instant messaging tool. I've never used Windows Messenger so can't test this, but it's pretty ridiculous. Even more ridiculous is the explanation, as it apparently tells people that the site was "reported as unsafe."

As TorrentFreak points out, the whole thing makes little sense since lots of other content is perfectly shareable via Live Messenger:

Whatever Microsoft’s reason for monitoring private conversations and then swallowing Pirate Bay links, the Redmond-based company’s censorship policies are not very consistent. All of the other large BitTorrent sites remain unaffected, even though they offer content that’s identical to The Pirate Bay.

This is troubling on a number of fronts. First of all, a link by itself should never be considered infringing. There may be content at the end of a series of links that is infringing, but blocking at the link level is really extreme and dangerous. Second, of course, is the fact that not all TPB content is infringing. Yes, an awful lot of it is almost certainly infringing. But automatically deciding that all of it is and not letting people share such links is extreme and dangerous. Cutting off legitimate speech should never be an option. Finally, the really scary part is the realization that Microsoft appears to be monitoring content being shared in private communication between two individuals in an instant messenger conversation. It seems like a pretty strong reason never to use Microsoft's Live Messenger.

We've written in the past about how the three largest movie producing countries in the world are Nigeria, India and China -- despite the fact that all three have extremely high rates of infringement. It seemed to offer the perfect counterpoint to the insistence from the MPAA that high piracy rates automatically lead to the destruction of any form of movie industry. In fact, further research showed that the amount of piracy in Nigeria actually was a big part of the reason why Nollywood has been so successful. The ability to let "pirates" distribute their films in the most efficient way possible meant that the movies were distributed far and wide across Africa and established Nigeria as the place to go for movie making.

Of course, as we've seen through the history of the development of various industries, it's always after those industries are created and growing rapidly that the existing players suddenly want to ramp up intellectual property laws to stomp out new competition. This is true throughout pretty much the entire history of intellectual property law, and it shows that such laws are not -- as we're told -- about creating incentives to invest in these industries, but rather about keeping out the competition and setting up gatekeepers to lock things down for established players. The same thing is happening in Nigeria as well, as there have been new efforts to crack down on infringement, despite it being so central to the importance of the rise of the industry.

While we've covered all this before, Eric Crampton points our attention to a new research paper that digs even deeper into this story: The Rise of Nollywood: Creators, Entrepreneurs, and Pirates by Olufunmilayo Arewa. It covers much of the same ground as our previous reports, first noting the usefulness of infringement in establishing the industry -- which appears to employ more people than Hollywood. In fact, what's amazing is that while many developing nations focus on government subsidies, insisting that that's the only way to build a local film industry, there's almost no government support in Nigeria, yet the industry is significantly bigger than comparable countries:

The rise of the film sector in Nigeria runs counter to existing trends in the film sector in which developing countries, which produce 1.2 films per million inhabitant annually, lag developed countries, which produce 6.3 films per million inhabitants annually. At current Nollywood production levels, Nigeria produces approximately 6.7 films per million inhabitants annually. Bridging the developing country film production gap remains challenging, particularly because the optimal ways to create domestic film industries remain elusive in many instances. Prior to the proliferation of Nollywood films, at least one commentator suggested that government takeover of the film industry would be the only means by which Nigeria could develop a film industry.

Notably, although many countries have sought to incentivize particular types of film production through direct government funding, subsidies, or film protection schemas involving film quotas, many of these industries have not been commercially viable in the absence of subsidies or other support schemes. In contrast, Nollywood has created significant volume of local video film content with virtually no government involvement or subsidies. The success of Nollywood may in many respects be attributable to a lack of government involvement and its decentralized nature, which has permitted Nollywood participants to be highly entrepreneurial, adaptive and innovative. Nollywood now may employ as many as 200,000 people directly with estimates of indirect employment as high as 1 million. The market-driven Nollywood approach is less costly than existing models of film production and distribution and may offer a new model for developing countries that wish to develop domestic film industries.

In fact, part of that "market-driven" approach is to figure out ways to embrace and leverage widespread infringement. That helped set up rapid and inexpensive (to free) distribution and promotion of new films. It has also continued to drive interest in new films, as people want to keep seeing more, helping to keep the industry going.

That said, the report also talks about the new efforts to crack down on infringement, but notes that this might not make much sense. It notes, correctly, that "the battle to control piracy will not be an easy one," and that such an effort to ratchet up pricing may be futile. Instead, it suggests taking a more proactive approach to providing better services and to looking at better ways to monetize the movies -- including things like advertisements and product placement.

Discussions of the piracy problem in Nollywood are based upon goals for control of distribution that may simply not be viable for Nollywood given current institutional structures and manners of doing business. In addition to dealing with piracy and issues of control of distribution, Nollywood participants should undertake focused strategies to address varied business and legal impediments. The development course of Nollywood, which in fact increasingly moving to digital distribution outside of Africa, and events in other arenas, suggest that the battle to control piracy will not be an easy one. Further, to the extent that webs of unauthorized uses enmesh consumers and end users, seeking to impose desired pricing in the face of rampant unauthorized distribution, or even the possibility of such distribution, may be futile, particularly given broad nature of Nollywood distribution networks. This ultimately may mean that price reductions may be one way to deal with problems of piracy, particularly to the extent that Nollywood participants can effectively harness other sources of value. Nollywood participants thus far have focused to a significant extent on the value of Nollywood content, which may obscure other potential sources of value to Nollywood participants. For example, the network of viewers reached by Nollywood films may be valuable to advertisers and others who may be willing to pay to have access to such viewers. The value of these Nollywood networks may actually be far greater than the value of the content itself.

The report also notes that "Discussions about the future of Nollywood should seek to move beyond discussions of copyright and piracy to fundamental reconsideration of a broader range of business and legal issues." I'd argue that applies to nearly all copyright discussions. Not just those in Nollywood.

Back in 2009, we wrote about the crazy situation in which ASCAP, the giant US collection society will funnel money from indie artists and pay it to big rock stars -- which seemed incredibly unfair. It's just one particular part of the royalties that ASCAP pays, but it's still clearly a case of taking from independent artists and giving money that they should be paid under the system and giving it to the most successful artists. The short version of the story is basically that, to make its own life easier, ASCAP just pays those performance royalties to the top 200 grossing tours in the US, and every other touring musician is more or less screwed -- unless you can convince ASCAP that you play "serious music."

Very successful independent musician Zoe Keating, who has had multiple run-ins with the unfair practices of collections societies giving money she's owed to major labels, just came across this same issue and wrote a blog post about her experience:

After a concert, there is this thing called “doing the settlement”. This is where the artist or their representative meets with the promoter, goes over the financial outcome of the night in relation to their contract…and gets paid.

Sometimes the contract is for a percentage of the gross revenues, but more often for me, I get a guarantee and maybe a percentage of “net” if it was a positive number. The line item deductions that go into the calculation of net are things like sound & lights, staff, venue rental, advertising, insurance, etc. There tend to be many line items in the calculation of “net” and I can’t help but notice that one of them is ASCAP.

For example, at one concert I played last month the gross ticket sales for the night were $9336. Of the many expenses deducted that night, one of the items was $86 to ASCAP.

What is this? This is the nightly portion of a license fee that the hall pays to ASCAP for the permission to perform music by ASCAP artists in their venue. My compositions are registered with ASCAP, so I should get this money eventually, right?

Wrong.

I remembered that when I’ve played in the UK I listed all the songs I played on something called a PRS from and gave it to the venue. Six months or so later, I got a check for the percentage of the night’s revenues due to me according to the PRS formula for that venue.

Thinking that maybe instead of placing the burden on the venue, ASCAP puts it on the artist, I called ASCAP to see how I should go about claiming these concert royalties.

The customer service representative on the phone said there was nothing for me to claim. He informed me that ASCAP pays out performing royalties only to the 200 top-grossing concert tours, as determined by Pollstar. They also pay royalties for “Live symphonic and recital concerts”, whatever they are (he said I don’t qualify for those).

In other words....

Every day, thousands of venues are required to pay a percentage of their gross ticket sales to ASCAP who then gives that money to... let’s look here on Pollstar and find the highest-grossing concerts for 2011....U2, Taylor Swift, Kenny Chesney, Lady Gaga, Bon Jovi, etc.

Yup. The thing is, I actually would have thought that Keating, whose music is usually classified as "classical" would have qualified for that "serious music" exception -- because back in 2009, we were told that applies to classical music. But now it appears they're limiting that to "live symphonic and recital concerts" and telling her she doesn't qualify for that either.

But, really, this seems borderline criminal. There is simply no way to describe what's happening here other than ASCAP taking money that is owed to independent artists and giving it to the most successful artists in the world instead.

Keating then discusses how, in researching this, she came across a separate program which appears to be something of a lottery for independent artists for herself:

Looking online, I found an ASCAP program that I didn’t know about. Perhaps in an attempt to compensate for this incredible distribution of wealth to the wealthy, ASCAP has something called the “ASCAP Plus Cash Awards”. What are these amazing “awards”?

“For over 50 years, these special awards have recognized writer members each year for substantial performance activity in media and venues that are not included in performance surveys, or whose works have unique prestige value. The program has also been an inspiration to members just starting out to persevere in advancing their music careers. More than 4,200 songwriter and composer members of ASCAP received Plus Awards in their January 2012 disbursement…”

You have to submit an application to ASCAP to qualify for consideration (which I just did). The gist of it, as far as I can tell, is that if you are the winner of this black-box calculation ASCAP will make a special award to you of a portion of your own money. Awesome! I’ll let you know if I “win”.

Of course, we've written about this "program" too -- such as noticing in 2010 how ASCAP was bragging about bringing in more money than ever... at the very same time it announced it was massively cutting payments to those who qualify for this mysterious ASCAP Plus program.

I know that lots of musicians swear that ASCAP isn't like the RIAA, and that it really is about helping artists, but time and time again, we see that it really just functions to perpetuate the system that only rewards the biggest artists, and causes significant problems for the smaller artists. From examples like the stories above, to ASAP's aggressive efforts to shut down any and all open mic nights unless coffee shop owners pay up, ASCAP has successfully been screwing over independent artists for quite some time. It's a real shame and something that organization should work on. As Keating notes, it is possible to do this in a much more fair manner, such as the way PRS handled the exact same situation in the UK (though, obviously, PRS has its own issues).

Perhaps, rather than focusing on attacking Creative Commons, EFF and Public Knowledge -- three organizations that have done amazing things for independent artists, ASCAP should focus on actually paying those artists what they've earned.

According to rumors reported by Business Insider, music streaming service Spotify is currently working on raising another round of funding at a valuation of about $3.5 billion—a figure that is making some major investment firms skeptical, despite the service's considerable success at growing its customer base. Over at TechCrunch, Josh Constine points out the most likely reason investors are reluctant: they know that the recording industry uses its copyright monopoly to exact a "tax on success" from innovative music startups.

Unfortunately, this is why investing in Spotify may not be wise and why firms like Andreessen-Horowitz may have passed. It’s a great service with a big lead on other music streamers. But as it scales and gains traction, the record labels will increase their tax. There’s no way Spotify will pay the same fees if it hits 15 million subscribers as it does now. That will make it harder for Spotify to return the multiple most investors want any time soon.

In most industries, if a partner charges you too high a licensing fee you can go to one of their competitors. That’s not how it works in music. You can’t get a cheaper equivalent to Michael Jackson or Lady Gaga like you could for enterprise software. If you want “Thriller” you have to pay whatever the labels ask. And even if it does, Spotify isn’t getting exclusive access to that content.

Though the specifics of the deals between record labels and music streaming services are secret, many details have been leaked over time, and it's long been known that they are onerous and one-sided. Last year, Michael Robertson of MP3tunes explained how the general structure of the deals make growth and innovation extremely difficult, while collusion among the labels eliminates any last shred of competition and ensures that a service like Spotify can never negotiate better terms. Investors know that music startups essentially live or die at the behest of the legacy industry, and investors are smart—they aren't about to bet millions on record labels making good decisions.

Economically speaking, none of this is surprising, because copyright is a monopoly and this is what monopolies do. They distort the free market and allow the monopolists to control the competition. Adding insult to injury, recording industry defenders like to tout streaming services as examples of how the industry embraces innovation, and RIAA CEO Cary Sherman recently said he was surprised that Spotify wasn't generating more revenue for the labels. To anyone who understands how difficult the labels have made life for these startups, claims like these don't pass the laugh test—and Spotify's difficulty securing funding is just more evidence of this fact. Its numbers would make it a hot investment property if it operated in any space other than music, but because it is shackled to a dying industry with a long history of technophobia, investors take their money elsewhere. Who can blame them?

Late last week there was some buzzing over Tumblr's new Terms of Service, which some noted had some amusingly plain language explanations in them, resulting in a bit of news coverage. Having gone through the process of creating terms of service with lawyers before, I'm somewhat jaded on the subject -- even though I thought we had pretty good lawyers who worked with us. The problem, however, is that terms of service, like contracts, are often defined by very specific things that have gone wrong in the past, and the lawyers make their money in trying to keep such things from going wrong in the future. Their job isn't to make your terms fun and friendly, but rather to protect you from getting into legal trouble. We had even suggested doing a "human readable" terms of service to go with the legalese and were warned not to do so -- as it could create problems later on if the human readable section and the legal section were somehow determined to disagree.

Tumblr has apparently decided to take that chance, and some of the quotes that are getting attention are actually from those "human readable" explanations. Such as this little tidbit:

You have to be at least 13 years old to use Tumblr. We're serious: it's a hard rule, based on U.S. federal and state legislation, even if you're 12.9 years old. If you're younger than 13, don't use Tumblr. Ask your parents for an Xbox or try books.

Thing is, that's not really in the "terms" itself, but in a call out explaining the actual terms, which are a bit more legal (though really not too bad). There are also other fun tidbits in the human readable explanations, like:

Don't do bad things to Tumblr or other users. Some particularly egregious examples of automated "bad things" are listed in this section.

One other nice thing in the human readable section deals with the part of most services terms that confuses the hell out of people and often leads to unnecessary freakouts is the license to the site, which is basically just saying you can't upload stuff to a site and then sue them for displaying it. People often misinterpret this clause such that they think it means you're giving the site your intellectual property rights and/or that they're going to go off and sell you stuff. Tumblr directly addresses this by first making it clear you retain rights to whatever, but then also saying:

When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you'd expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc.). We never want to do anything with your content that surprises you.

Something else worth noting: Countless Tumblr blogs have gone on to spawn books, films, albums, brands, and more. We're thrilled to offer our support as a platform for our creators, and we'd never claim to be entitled to royalties or reimbursement for the success of what you've created. It's your work, and we're proud to be a part (however small) of what you accomplish.

It's definitely nice to explain this so clearly, since it's clearly a point where some people go completely crazy in misunderstanding what's being said.

Also, I note, with interest, that it appears that Tumblr has also removed the indemnification clause that is so standard in pretty much any terms of service. I think this is a good move. These things have become totally standard, but I'm curious if anyone can name a single time that an internet service provider invoked the indemnity clause when getting sued? What service provider would actually do that? It would almost certainly turn against them and freak out other users.

The press coverage is also highlighting a few other funny clauses... but those aren't actually in the terms of service, but rather the "community guidelines" which don't need to be nearly as legally relevant. I'll point out a few, but note that funny/human readable community guidelines really aren't that crazy an idea, but Tumblr's guidelines definitely are pretty good. A few amusing tidbits:

• Uploading Sexually Explicit Video. You can embed anything as long as it follows the other guidelines on this page. But please don't use Tumblr's Upload Video feature to host any sexually explicit videos. We're not in the business of profiting from adult-oriented videos and hosting this stuff is fucking expensive. You can use services like xHamster to host those instead.
• Impersonation, Stalking, or Harassment. Treat the community the way you'd like to be treated. Don't attempt to circumvent the Block feature. If you want to parody or ridicule a public figure (and who doesn't?), don't try to trick readers into thinking you are actually that public figure.
• Don't post content that violates anyone's privacy, including personally identifying or confidential information like credit card numbers, social security numbers, unlisted contact information, or private photos of your ex's junk (no matter how attractive).

Honestly, the coolest thing about Tumblr's terms of service is the fact that they've put it on github so you can really see the changes they made very easily, as the system highlights the difference, even for very minor changes. This is a really good idea, and one that it would be nice if other sites followed suit on.

That said, after seeing a couple stories about the new terms before reading them, I expected the terms to be a lot more human readable than they really were. This, once again, likely highlights my experience with lawyers five or so years ago when I went through this process. There really is only so much you can do. Still, this leads to two thoughts. First, just the fact that Tumblr is getting some attention for this makes me wonder if others will now strive for similar (or, better yet, great) simplicity in their terms and policies. That would be a nice and beneficial trend.

The second though is one I've brought up in the past as well: all this really does is highlight just how useless terms of service are in general. Even in a case like this where they're "more readable" most people aren't actually reading them or caring about them. And yet, for legal reasons, every site feels the need to have one (same with privacy policies). All these things really are designed to do is to provide legal coverage, but they do absolutely nothing to actually benefit users. When you have to do things to satisfy legal requirements which don't actually benefit users, it's a total waste of resources.

Rob "CmdrTaco" Malda's first column in his new job at the Washington Post (I'm still trying to make sense of this myself) is a good one. He looks at the Yahoo patent lawsuit against Facebook, and posits that getting sued on your way to an IPO is like a Silicon Valley fraternity hazing ritual. He doesn't go quite this far, but there certainly are some similarities. It's an insanely pointless process with significant costs, often disgusting to those going through it... but which they eventually grudgingly admit is worth going through to get to the end goal of being "in the club." I'm not sure it's totally true of just IPO-bound tech companies. I think it's just the nature of just about any semi-successful tech company these days. You get sued for patent infringement. It's just what happens. And it's there where the analogy falls down a bit. You can avoid fraternity hazing by not pledging a fraternity. You have no such choice when it comes to getting sued for patent infringement.

Over the past few weeks there's been some more Righthaven news, as the company has continued the trend it started last year of not showing up and missing deadlines. Now it appears that it's just completely given up. CEO Steve Gibson is working at another job (while being investigated by the Nevada Bar) and main lawyer Shawn Mangano apparently has completely stopped responding to all attempts to contact him, even by the court. All this has resulted in the key appeals in its cases to be dismissed "for lack of prosecution." Last Thursday it also had a key case closed, with prejudice, driving another (yes another) nail in its already buried coffin.

Also, you may recall that, last summer, Righthaven trumpeted the fact that it had hired famed copyright maximalist lawyer Dale Cendali to help with some of the cases -- including this key one against the Pahrump Life blog. This hiring was part of why Gibson insisted that the courts respected Righthaven (even as they were losing case after case). Cendali is considered a bigshot in some copyright circles, leading some to think that Righthaven might actually have some ability to pull out of its tailspin. However, the sum total of her contributions to Righthaven's legal fights appears to have been a ridiculous filing last summer in which she tried to compare Righthaven to patent trolls -- an argument the court later found entirely unconvincing.

Cendali has now said she's withdrawn from all Righthaven cases, even though her name still appears officially as counsel for the company in one of the recently dismissed appeals. She claims that she was really just hired for couple small issues which she completed last summer (such as the filing mentioned above) and had been told that Mangano would handle the rest of the cases. She also has told the court that Righthaven hasn't paid her firm what it owes. Actually, other than the initial retainer, she says Righthaven't hasn't paid any other legal fees. In other words, Righthaven paid the initial retainer fee so it could blast out the fact that it hired her... and then refused to pay for any of the actual work she did. Par for the course for Righthaven.

Either way, with the dismissals of the key appeals, as well as the Pahrump Life case -- which was considered a key fight -- combined with the fact that pretty much everyone involved with Righthaven seems to have moved on to other things and is flat out ignoring anything Righthaven-related, when do we finally get to call the official time of death for Righthaven?