Piracy has become a force of nature in the entertainment world. No matter what you make or how you release it, there are pirates waiting around the corner to try to get it for free. No matter what you try to stop this from happening, you just can't -- much like a storm, you have no control over its movements and power. All that is left is to embrace it and hope to harness the storm's power for your own benefit.

This is what Daniel Cook from Spry Fox has decided is best. In a reprint of his comments at Gamasutra, Daniel explains that piracy is a fun activity that can be harnessed for good.

Being a 'pirate' was being part of a community. You and your friends shared games like social gaming gifts on Facebook. It didn't cost you anything to copy a game and give it to someone. A game was a social token to chat about, a gesture of kindness to reciprocate. A key takeaway from that time is that copying and sharing vast quantities of digital goods is a deeply fun, social and highly useful activity. This is a new thing, a new behavior in a post-scarcity world.

This is perhaps the most commonly ignored or overlooked aspect of piracy by those who want to end it. For many people, sharing games, movies and music is a fun activity that allows them to share what they love with their friends. Despite what those who seek to stop piracy think, there is very little animosity involved in the activity. It is this love of sharing that can be, as Daniel puts it, hacked for the benefit of the creator.

With shareware, we hacked the copying behavior. People would play the random floppies and some of clever programs would say "Hey! Did you know that you can pay for this?" And a small portion of users did. 'Pirate' and 'consumer' are not mutually exclusive properties. In our capitalist society, almost everyone (with a few notable exceptions) is trained to buy stuff. People who like checking out new software for free are really just another audience of potential consumers.

It was just recently that Ubisoft learned a similar lesson. That the percentage of people who pay for single purchase games is about the same as those that pay in free to play games. If you want people to pay for games, one of the best ways to get them to do so is to let them experience the game first and for free. By giving fans the ability to share the games with others who may not have heard about it on their own, you can expand the pool of potential paying customers.

Unfortunately, there are many creators and gatekeepers out there that want to vilify such behavior. They can't fathom that someone is playing, listening, reading, watching their work without paying for it. They see no benefit in it. This mindset has dangerous outcomes for their paying customers.

It has been a really confusing time for businesses. Some lashed out by labeling consumers as evil, some tried to protect the old ways with DRM. Relationships with customers...who see themselves as just having fun sharing cool stuff...became antagonistic. 30 years. When you raise kids in a warzone, they grow up parroting propaganda. No wonder the conversation is polarized.

It is actions like adding DRM, anti-piracy ads and threatening fines of hundreds of thousands of dollars that will end up costing the entertainment industry more in the long run. As those in the industry seek to threaten and lash out at paying customers, many of those customers will begin to lash out as well. They will end up doing exactly what the industry wants to stop, pirate. For many purchasers of games, it often starts by downloading cracks for games in order to remove restrictive DRM. But there is a lot that can be done to turn the tide.

Detach yourself from the emotions of history. Give up the past forms of what games were. Adapt to the current environment with one eye firmly fixed upon the future.

People copying digital goods as an inherently joyful social activity is an opportunity. It is an artistic opportunity. It is a business opportunity. It is a cultural opportunity.

There are opportunities out there that many creators have found and are enjoying. It can be things like adding a "Cockroach Edition" to your payment options. It can be adding pirate hats to all your characters and putting the game on the Pirate Bay. It could be giving players the ability to set their own price. It could be anything really. By embracing the sharing culture of your fans, you can expand you fan base and increase the potential to make a living.

We talk quite a bit here about the growing pains of various institutions when faced with upstarts like the internet and social media. The usual suspects like the recording industry and newpapers come to mind first, but one of our oldest institutions continues to painfully stumble its way into the future: the educational system.

The institution's deep-seated mistrust of the most used encyclopedia in the world is already well known. But as email has given way to texting and social networks have expanded past the confines of the schoolyard, those seeking to somehow control the seeming chaos have worked steadily to bang out reactionary policies and ever-tightening guidelines. Rather than temper their actions with some common sense or a bit of perspective, educators (and some parent groups) have often decided to deploy terrible "zero tolerance" policies or overly-broad "guidelines," relying on a variety of tech-related boogiemen (online predators, cyberbullying, sexting, porn... um... Wikipedia vandals?) to keep questions to a minimum.

Fortunately, someone is actually attempting to inject some common sense into school internet safety policies, tackling many of the issues that seem to go hand-in-hand with attempting to provide analog guidance in a digital era. Via Bruce Schneier comes "26 Internet Safety Talking Points," compiled by Scott McLeod at Dangerously Irrelevant.

McLeod, founder of the UCEA Center for the Advanced Study of Technology Leadership in Education (CASTLE), runs through the whole alphabet (and adds a few corollaries) detailing talking points he uses when discussing internet safety with principals and superintendents. The entire piece is definitely worth reading. Here's a few selections from McLeod's list.

First off, bad things will happen. But it's not the tool being used. It's the user.

C. Mobile phones, Facebook, Wikipedia, YouTube, blogs, Wikispaces, Google, and whatever other technologies you’re blocking are not inherently evil. Stop demonizing them and focus on people’s behavior, not the tools, particularly when it comes to making policy.

In addition to school administrators, members of our government and various security agencies should be presented with a copy of this talking point.

F. You never can promise 100% safety. For instance, you never would promise a parent that her child would never, ever be in a fight at school. So quit trying to guarantee 100% safety when it comes to technology. Provide reasonable supervision, implement reasonable procedures and policies, and move on.

Another thing our government and its affiliated agencies do well: use fear to acquire and maintain control.

G. The ‘online predators will prey on your schoolchildren’ argument is a false bogeyman, a scare tactic that is fed to us by the media, politicians, law enforcement, and computer security vendors. The number of reported incidents in the news of this occurring is zero.

There's a lot of buck-passing and "our hands are tied" gestures made when these policies are questioned. Often, it's simply not true.

H. Federal laws do not require your draconian filtering. You can’t point the finger somewhere else. You have to own it yourself.

This should be obvious. You're educators, after all.

K. There’s a difference between a teachable moment and a punishable moment. Lean toward the former as much as possible.

What is the rationale behind policies like this? That if it's online, it's automatically inappropriate? It's such an obvious double standard and yet, it's deployed so often.

N. If you’re prohibiting teachers from being ‘friends’ with students online, are you also prohibiting them from being ‘friends’ with students in neighborhoods, at church, in volunteer organizations, at the mall, and in other non-school settings?

Streisand.

S. Unless you like losing lawsuits, remember that students and staff have speech and privacy rights, particularly off-campus. Remember that any dumb decision you make is Internet fodder and has a good chance of going viral online. Do you really want to be the next stupid administrator story on The Huffington Post?

The more you block, the more energy gets expended by attempts at circumvention. Wouldn't you rather focus this energy on something positive, rather than trying to extinguish every flame you see? 

Z. Educating is always, always more powerful than blocking.

This the correct way to "think about the children." A list like this is a handy thing to keep close at hand for the inevitable moment when school adminstrators declare "something must be done. " Tossing a little common sense cold water on heated, reactionary plans is always a good idea.

While the cases of Dajaz1 and Rojadirecta have shown that the US government wants nothing to do with lawsuits around domain seizures when those sites lawyer up with strong legal teams, it has continued to railroad those with less-than-stellar legal support. We saw it with NinjaVideo where it was clear that the defendants did not have particularly strong legal advice, and because of that were pretty much forced into plea bargains. And, now, the same basic thing appears to have happened with a guy named Yonjo Quiroa, who had nine different sites that ICE seized in January of this year. They arrested Quiroa in February, and he's not only been held without bail since then, but he's now done a plea bargain in which he's pleading guilty to a misdemeanor charge, expecting to get 6 to 12 months in jail (remember, he's already been there for 7 months) and will then be "removed from the United States."

From the letter his lawyers sent on his behalf to the court, it's clear that Quiroa was given a public defender. There certainly could be differences between his case and others, but the differences between the cases where sites had well-known, widely respected litigators, and those where they did not, is pretty stark. Of course, the feds understand this and use it to their advantage in pushing those they've gone after into plea bargain deals. Now, don't be surprised when ICE's John Morton starts using the case of Quiroa as an "example" of all the great successes they've had in seizing websites...

The technology for 3D printing is getting better and cheaper all the time, but some folks think the "killer app" for these printing machines is in food preparation. Food printers aren't quite like Star Trek replicators just yet -- nor is there a way to eliminate the scarcity of food. Still, it'll be pretty cool when most households own an oven, stove, microwave oven... and a 3D food printer.

• Peter Thiel's philanthropic foundation has invested in Modern Meadow -- a company that will develop 3D bioprinting techniques for disrupting the current meat industry. Growing edible meat tissue without a farm could be more environmentally friendly, but one of the company's first goals is to just grow a 1-inch long piece of synthetic meat suitable for eating. [url]
• Cornell University has a food printing lab as part of its Fab@Home venture. This group has been working on printing food since 2007, and the researchers speculate that food printers could vastly reduce the time people spend preparing food. [url]
• Burritob0t is an open source project to create a Tex-Mex 3D printer, capable of generating tasty, custom burritos from extruding ingredients such as beans, rice, cheese and salsa onto a tortilla. Unfortunately, lettuce and chunky salsa aren't on this robot's menu -- but perhaps a meat paste could be added... [url]
• Chocolate lovers in the UK might want to thank researchers at the University of Exeter for creating a 3D printer that prints layers of chocolate. These developers want to create a website that anyone can print chocolate creations from -- but they'll probably need a really good Spam filter before they turn that feature on. [url]

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

It seems that today you can't spit in the wind without hitting a story about some US drone killing a bunch of people in a country somewhere overseas. Every known drone strike is accompanied by news reports of the location and the number of people killed. Yet, even with all these stories about drone strikes, it can a daunting task for those interested in following them to keep up with them all. So what is a drone enthusiast, or someone just appalled by the frequency of the strikes, to do?

One creative iPhone developer, Josh Begley, took the time to create an app that sought out news articles about drone strikes. When it would find one, it would send a push notification to the owner of the iPhone and then display a Google map of the area with a push pin of the location of the strike. He had hoped to have it released in the wild by now, but Apple keeps rejecting his application.

It’s the third time in a month that Apple has turned Drones+ away, says Josh Begley, the program’s New York-based developer. The company’s reasons for keeping the program out of the App Store keep shifting. First, Apple called the bare-bones application that aggregates news of U.S. drone strikes in Pakistan, Yemen and Somalia “not useful.” Then there was an issue with hiding a corporate logo. And now, there’s this crude content problem.

It's this last rejection that has Josh scratching his head. How can a news aggregating application be in any way crude or objectionable? Yes, I know that many people feel that news reports from the mainstream media could easily be classified as such, but that is beside the point. This app provides a useful service for those who want to keep abreast of the latest news regarding drone strikes. It doesn't show graphic images or other caricatures of the attacks, merely a push pin and a link to the story. If it is the content that is objectionable, he may just turn to a less strict operating system for the next version.

Begley is about at his wits end over the iOS version of Drones+. “I’m kind of back at the drawing board about what exactly I’m supposed to do,” Begley said. The basic idea was to see if he could get App Store denizens a bit more interested in the U.S.’ secretive, robotic wars, with information on those wars popping up on their phones the same way an Instagram comment or retweet might. Instead, Begley’s thinking about whether he’d have a better shot making the same point in the Android Market.

Its this kind of rejection of an interesting and thought provoking app that will turn people away from walled gardens. We talked recently about Microsoft's moves toward further locking down Windows resulting in developers seeking the more open alternative of Linux. The same will happen with the iPhone. As more developers continue to have their apps rejected with little to no context, those developers will become much more frustrated with the whole process and leave for Android. Is this really the lesson that Apple wants young developers taking from this and similar experiences?

Another day, another troubling ruling out of the Federal Circuit court (CAFC) which handles patent appeals. We wrote about this a little over a year ago. It actually involved CAFC reviewing two separate, but similar cases, concerning whether or not companies could be found liable for inducing infringement if no single party actually violates the patent, but a group of different parties, combined, serve to infringe on all the claims of the patent. This is tricky for a variety of reasons. In one case, involving Akamai suing Limelight, Limelight doesn't directly infringe on all of the claims of Akamai's patents, because some of the steps are completed by Limelight users, rather than by Limelight itself. Similarly, in the case of McKesson v. Epic Systems, Epic doesn't infringe on any of the claims of McKesson's patent -- but in combination, its users may do so, though none do so individually.

So here's where it gets tricky. The lower court had found that since no single party infringes on a patent, then there's no direct infringement. And if there's no direct infringement then there's no infringement that the defendants could "induce." This seems reasonable. The fear, with these cases, was that CAFC would say that multiple different parties, each doing different pieces that are covered by claims, could be lumped together into direct infringers, even if none of them fully infringes. That could create massive liability for purely innocent bystanders who do a minor link in a chain.

Thankfully, CAFC does not go that far in its ruling (though one dissenting judge felt it should). Instead, it just basically wipes out the concept that you can't have inducement without direct infringement, arguing that inducement is apparently something entirely separate from direct infringement. That's... troubling. You can see the reasoning (and it's worth reading the whole thing), in that they're saying if multiple parties, through their separate actions, combine to infringe -- and all those actions are directed by a third party -- then isn't it reasonable to assume that that party is still "inducing" infringement? But, as the dissenters note, that seems to be making up a wholly new interpretation of inducement, far from the one that Congress or the courts has allowed in the past. As one of the dissents notes:

The majority opinion is rooted in its conception of what Congress ought to have done rather than what it did. It is also an abdication of this court’s obligation to interpret Congressional policy rather than alter it. When this court convenes en banc, it frees itself of the obligation to follow its own prior precedential decisions. But it is beyond our power to rewrite Congress’s laws. Similarly, we are obliged to follow the pronouncements of the Su-preme Court concerning the proper interpretation of those acts.

In other words, CAFC's majority ruling here has gone off the reservation in a big way to fashion a ruling of how it thinks the world should work, but not in accordance with what the law actually says.

It also opens up a huge can of worms. Because even if no one party is actually infringing, suddenly third parties can be liable for inducing infringement. Infringement that... um... didn't occur. So that seems like a problem. Of course, it would have been even worse if they had gone with the plan that cobbled together direct infringement by all the separate players, even those who were doing very minor things (such as tagging content, in the Akamai case).

Either way, it seems likely that some of the parties here will ask the Supreme Court to weigh in, and hopefully they'll clarify that without someone infringing directly, there is no infringement to "induce."

The government's admission that it had (once again) mistakenly seized and censored a website for over a year when it dropped its case against Rojadirecta/Puerto80 has reminded everyone that Dajaz1 was not an isolate case. It was a part of a wider program where DHS (via ICE) and the DOJ systematically believed whatever the RIAA and MPAA were telling them, leading to the blatant censorship of a variety of websites, without proper due process. Thankfully, some in Congress are paying attention. Bipartisan Congressional Reps. Zoe Lofgren, Jason Chaffetz and Jared Polis have teamed up to send a letter raising a number of questions about Operation in Our Sites, to both Attorney General Holder and Homeland Security Secretary Napolitano.

The letter doesn't even mention the Rojadirecta case, but focuses on what happened with Dajaz1, pointing out their concern with the program, and how it appears to violate free speech rights, ignore due process and destroy legitimate businesses. The letter raises the fact that Dajaz1 is not an isolated case. As we've pointed out in the past, we're aware of at least a few other domains that were seized, and whose owners had challenged the seizures. And yet, well over a year later, there appeared to be no evidence of either a return of those domains or a forfeiture process started. Given how the feds treated Dajaz1, with secret extensions, preventing Dajaz1 from representing itself in court, we've wondered how many other domains the DOJ and ICE had incorrectly and illegally seized -- and which they were now keeping in that kind of holding pattern. It's good to see that this letter directly asks about that issue:

Other complaints have been raised by websites seized under "In Our Sites" that bear similarities to the Dajaz1 case. These complaints center around unnecessary delays in advancing and resolving cases, difficulty in obtaining documents from the government that are fundamental to the underlying cases (such as affidavits), and difficulty even maintaining contact with the U.S. Attorneys prosecuting the cases. The effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures.

The letter goes on to ask a series of important questions for both DHS and DOJ, especially regarding the utter failure of both departments in the Dajaz1 situation.

1. What is the process for determining which sites to target? Who is involved in that process? What specific steps do DOJ and ICE take to ensure that affidavits and other material are thoroughly reviewed for accuracy prior to seizing a domain?
2. To what extent are government agents required to evaluate whether the potentially infringing material to which target sites link -- or which they host themselves -- are non-infringing fair uses, impliedly licensed, and/or de minimis uses?
3. Do government agents consider whether a site complies with the DMCA safe harbors? If so, how does this affect the determination to target a site?
4. How many sites have attempted to retrieve their domains, via any process, judicial or informal, and what is the status of those cases?
5. Have you made any changes to your domain seizure policies or their implementation as a result of the issues arising from the Dajaz1 seizure or any other seizure? If so, what were those changes?
6. What specific steps has the DOJ and ICE taken to ensure that domain name seizure cases proceed without unnecessary delays, and that website owners seeking to restore their domain names have swift access to the officials and documents necessary to resolve their cases?
7. How many more seizures do you anticipate occurring in the next six months and year?

It seems to me that questions four and five are the key ones here, which means I fully expect DOJ and ICE to be especially non-responsive in whatever answers they provide.

Update: There are some good points raised in the comments, showing that the woman in question has responded to the claims and insist that she wasn't a plant.

We were a bit disappointed in how President Obama handled his recent Reddit AMA, giving mostly canned politician's answers to a community that tends to expect a bit more human emotion. It was no Woody Harrelson debacle, but it did seem like a missed opportunity. And, now, some Redditors are suggesting that parts of it were actually stage. Some internet sleuthing pointed out that among the only 10 questions that Obama chose to answer (out of hundreds that were asked almost immediately) was one from someone who appears to have been planted by the administration. The evidence:

• Profile created mere hours before minutes after the AMA was announced, and literally six seconds before asking a well written, paragraph long question (approximate typing speed assuming it was typed after creating the account? 1570 wpm)
• Created a profile 5 minutes 39 seconds after the AMA going live, when servers were having a fit.
• Asked question explicitly requesting ways to recruit the youth that Obama relied on last election (many of whom are disillusioned with him, for all the reasons she presents herself as being subject to)
• Is literally only 1 of 10 questions answered.
• asked by one hmlee who (according to some internet detective work):
  • has only one comment in her history, total
  • Posted a blog entry supporting Obama
  • lists herself as working/having worked as an intern at the Department of Justice

So, is it possible that she heard about it on her own, created an account, and typed up an eloquent question that is a PR man's wet dream all within less than 6 minutes? Yes, it's possible. It's just not particularly likely.

It isn't that surprising that the administration would plant questions, though it is a bit surprising that they thought they'd get away with such a blatantly obvious planting. Why not find a supporter who was an actual Redditor and have them ask the question? Either way, we've pointed out that the key to a good Reddit AMA tends to be showing off your human side. Responding to planted questions with politicians' answers doesn't seem to qualify.

Marilyn Monroe once said:

I knew I belonged to the public and to the world, not because I was talented or even beautiful, but because I had never belonged to anything or anyone else.

But... that's not quite how the lawyers representing her estate felt about things. A few years ago, we wrote about how her estate had lost a legal fight trying to claim publicity rights in photos of Monroe. The case involved the question of publicity rights after death. As we recently discussed, some states allow publicity rights to live on after death, others do not. When Monroe died, the various states that could "claim" her (NY, California and Indiana) did not have laws that allowed publicity rights to live on after death. So that should have been the end of it.

But... California (due to pressure from plenty of folks in Hollywood) eventually changed its law to allow posthumous publicity rights. And so, Monroe's estate started suing. There was just one (major) problem. When Monroe had died, her estate had gone to great lengths to insist (no, really!) that she did not live in California, but in New York. Why? Because California had a massive estate tax, so the estate would have had to pay that if it was determined that she resided in California. They successfully convinced the world that she was a NY resident, and so they got out of paying California's estate tax.

However, when this issue of publicity rights showed up 40 years later, the estate suddenly changed its story, and wanted to insist that she really lived in California, but just for the purpose of publicity rights. As noted above, the courts didn't buy it -- in part due to the earlier arguments, but also because at the time of death it wouldn't have mattered, and the publicity rights had gone away. That resulted in the California state legislature passing a law (led by a state Senator, Sheila Kuehl, who had been a child actor, naturally) to say that dead celebrities could reclaim their publicity rights if they had died before posthumous publicity rights were allowed. Naturally, Senator Kuehl attached this important legal change to a bill that was originally about stem cell research. You see the connection.

Because of that law, the courts reviewed the case and still said: sorry, but Monroe did not live in California according to Monroe's own estate's earlier arguments. That ruling was appealed, and now the appeals court has rejected the estate's attempt to posthumously move Monroe once again, saying that the arguments made decades ago that she resided in New York bar her estate from trying to change those facts to suit their wallets today. The court more or less laughs at the argument that Monroe's lawyer was somehow mistaken or uninformed when originally claiming Monroe was a New York resident, and even suggests that such claims may not just be mistakes, but may be willful misrepresentations to the court:

Monroe LLC also suggests that it has always believed that Monroe died domiciled in California, and that Frosch was simply mistaken in his belief and representations because he did not have access to some documents that allegedly contradict the materials and declarations he relied upon. This assertion by Monroe LLC is dubious, at best. Frosch had contemporaneous access to people knowledgeable about Monroe’s intentions, including Ralph L. Roberts, her close friend and confidant and reportedly the last person to see her alive. To the extent that there was any debate, Frosch represented, with significant evidentiary support, that Monroe’s intention was to remain domiciled in New York, though she temporarily relocated to California for a movie shoot. Another possibility, for which we have insufficient evidence, is that Monroe LLC’s present position on Monroe’s domicile is a knowing misrepresentation, or tantamount to a fraud on the court. In light of this irreconcilable conflict between diametrically opposed representations about Monroe’s intended domicile, the district court’s determination that Frosch intentionally misled the courts is supported by “inferences that may be drawn from the facts in the record” and is therefore not an abuse of discretion.

The court is pretty clear, and at times harsh. Not only did it use the quote above to note that her persona now is, in fact, part of the public, but it also used another quote of hers to describe her estate's questionable claims in the case:

This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of them pretty." There is nothing pretty in Monroe LLC’s about-face on the issue of domicile. Monroe LLC is judicially estopped from taking the litigation position that Monroe died domiciled in California. Our conclusion in this regard is guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from “playing fast and loose with the courts.”

Amazingly, even after this loss, her estate is still insisting that it retains control over her likeness. According to Reuters:

The star's estate, however, said it still retained exclusive rights to the film star's likeness under federal law.

Except, there is no federal publicity rights law. So now they appear to just be making stuff up. I imagine that won't play very well in court either.

A few weeks back, we noted that a court had ordered the TSA to explain why it had failed to obey the court's earlier order that, while the nudie scanners being used in airports were legal, the TSA was required to hold public hearings on the purchase and use of the machines. Yet no such hearings have happened. The TSA has now responded and essentially said that since there's no deadline on when the court told them to hold a hearing, there's no problem. Basically "we can hold a hearing whenever we get around to it."

It also blames the fact that there had been "significant personnel losses" in the group of folks responsible for obeying the order, but insisted that everyone else in that group was really (really!) focused on obeying the order, and they'd get around to it at some point. Really. They promise.

Petitioner offers no basis whatsoever for its assertion that TSA has delayed in implementing this Court’s mandate. On the contrary, as the Sammon Declaration demonstrates, TSA has been keenly aware of the importance of implementing the Court’s directive, and has given high priority to the AIT rulemaking. Despite “significant personnel losses” in the group of economists within TSA charged with completing the regulatory analysis... the agency began on the heels of the Court’s ruling the process of preparing the documents necessary for notice-andcomment rulemaking, and has devoted almost all of the staff available to conduct the required economic analysis to its expedited completion, even going so far as to hire contract consultants to accelerate its completion despite unforeseen personnel losses

Later, it claims:

In sum, there has been no "waiting" and no "delay."

Other than the fact that we're still waiting, you mean?

A little over four years ago, we wrote about the Second Circuit appeals court's ruling in the case over the legality of Cablevision's remote DVR. As we said at the time, the court came to the right result -- the remote DVR was perfectly legal -- but had to twist itself into all sorts of crazy contortions to make that argument fit within the confines of copyright law. That's because of the nature of copyright law itself, which is almost always reactive to technological changes and, because of that, always gets twisted up when important, useful and disruptive innovations come along. As we noted four years ago, copyright law "is simply not set up" to handle something like a remote DVR. Even though a home DVR is clearly legal, and the only real difference between one at home and one in the cloud is the length of the cord between the DVR and the TV, the legal arguments to make them both legal are quite twisted.

Since then, we've seen a whole bunch of startups try to offer variations of streaming video online -- often relying on that quite twisted ruling in Cablevision. Each time we write about them -- companies like ivi, Zediva and Aereo -- we tend to note that all of them are doing incredibly inefficient and convoluted things on the back-end to try to stay within the confines of the law, as established by the Cablevision ruling. But to any objective observer considering what makes the most sense for a company and its users, all of the Rube Goldbergian designs of these companies seem entirely pointless. The goal is the same: to reasonably offer streaming services that match what people can do at home with a DVR or a DVD player -- but it has to be twisted to make that work within the whacked out language of the law.

And that's because the law is never written with innovation in mind. Quite the opposite. The history of copyright law is that every time something new comes along, Congress duct tapes on some new "right" to make it work. The 1909 Copyright Act was driven by the scary, scary invention of the player piano, which was going to wipe out the sheet music business or something. But the internet mucks with all of that -- in part by bringing together different roles that had previously been separate. The end result is that different aspects of copyright law may or may not apply, depending on where you sit.

Law professor James Grimmelmann has picked up on this and written an absolutely brilliant piece over at Ars Technica, where he dives into the nitty gritty details of all of this to explain how copyright law for streaming went insane. Here's the opening:

Suppose I could offer you a choice of two technologies for watching TV online. Behind Door Number One sits a free-to-watch service that uses off-the-shelf technology and that buffers just enough of each show to put the live stream on the Internet. Behind Door Number Two lies a subscription service that requires custom-designed hardware and makes dozens of copies of each show. Which sounds easier to build—and to use? More importantly, which is more likely to be legal?

If you went with Door Number One, then you are a sane person, untainted by the depravity of modern copyright law. But you are also wrong. The company behind Door Number One, iCraveTV, was enjoined out of existence a decade ago. The company behind Door Number Two, Aereo, just survived its first round in court and is still going strong.

The whole piece is totally worth reading. But it keeps going back to the same thing. Thanks to a combination of ridiculously antiquated copyright law and the 2nd Circuit's right result-but-for-odd-reasons ruling in the Cablevision case, we have a ridiculous setup where no one ever seems to take into account just what's happening for the end user, but rather focuses on the back-end to either jump through silly hoops (if you believe these services are legal) or to find questionable loopholes (if you're a copyright maximalist) to try to show that your service is legal. The end result is not only very bizarre, convoluted and inefficient systems that make no sense, and which no sane person would choose to set up as a business, but also one where we just see an ongoing stream of wasteful legal battles.

In talking about Zediva -- the company that set up individual DVD players in a data center which could stream only a single copy of an actual DVD playing at a time to a single user -- Grimmelmann again notes that none of this makes any sense:

And once again, it's a business model that would not exist in a world with copyright policy that was not demonstrably insane. Rapidly spinning optical discs make sense as a distribution technology because they're compact and durable. But they're a hassle and a half for playback, because they scratch, skip, and make random access a pain. If you're going to use the Internet for distribution, better to take the DVDs out of the picture and use them as coasters. But since Cablevision had opened up what seemed like a gap in copyright law, Zediva poured shiny lacquered discs into the breach.

Is there a way out of this that doesn't necessarily require a total dismantling of copyright law? Grimmelmann suggests that the more common sense (i.e., not insane) approach would be to actually look at what the end-user experience is:

Perhaps we can think about the problem of copyright on the Internet another way. Instead of asking which back-end technologies are legal, it might make more sense to ask what it is legal for users to do with computers on the front end. This approach would let people spend less time worrying about the exact definitions of "reproduction" and "performance" and more time thinking about users' rights, especially under fair use.

Cablevision itself illustrates what might have been. The whole point of the RS-DVR was that it was a perfect substitute for a home DVR. Reasoning by analogy, then, we might say that the two ought to either both be legal or both be illegal. And since home DVRs seem here to stay, it ought to be permissible for Cablevision to offer its customers exactly the same service they could have gotten by buying a gizmo. Call it "noninfringing personal fair use" and we can all go home.

Unfortunately, he notes that such a result wasn't possible in the Cablevision case, because Cablevision itself chose not to litigate the fair use issue in its case. End result? More insanity.

Of course, even Grimmelmann's solution potentially leads to some other issues, as well. For example, we've long argued that an embedded video on a website isn't infringing because it's no different than a link -- and that if there's infringement, it's from the uploader or hosting provider, rather than the intermediary who posted the embed code. But under Grimmelmann's "end user" analysis, then anyone who embeds could be liable as well, as to the end user, it wouldn't appear any different than a site that hosted the content. That raises some difficult questions as well.

But there's a reason for that: because these laws were designed for a very different era and very different technology. The concept of an open internet, and even something like an "embed code" is completely foreign to copyright law, meaning that it's legality is very much in the eye of the beholder. And really, that just serves to highlight the real problem here: copyright law isn't built for modern technology, and that's creating all sorts of problems for innovative services.

Either way, Grimmelmann's whole article is absolutely worth reading, so go check it out, even if it may make you bang your head repeatedly at the pure insanity of the situation we're in today.

A few weeks back, the NY Times had the story of a copyright lawsuit in NY that is really quite incredible on a few points. It was a "pro se" lawsuit (i.e., filed by a woman on behalf of herself, without a lawyer) in which she made a ton of mistakes -- such that the court got noticeably upset with how she dealt with the case, and later sanctioned her... and yet she still "won" the case. But even that victory may turn out to be Pyrrhic in the long run. Pro se cases can often be quite nutty, but this one takes it to another level. In this case, the woman, Peggy Harley, a songwriter, sued a bunch of folks, but mainly singer Ann Nesby and indie record label Shanachie, for supposedly infringing on the copyright to a song that Harley wrote and recorded in 2002 (though she didn't bother to register the copyright until 2008). She demanded millions in damages (and went with actual damages rather than statutory -- which you don't often see). As the NY Times reports, this was basically a comedy of errors:

“My lifes work was stolen from me,” she wrote in a 13-page complaint riddled with misspellings and grammatical errors. “I am afflicted with pain and suffering and emotional distress.”

But Ms. Harley proceeded to do just about everything possible to sabotage her own claim.

She failed to appear for hearings or showed up late. Judges accused her of interrupting them, filing frivolous motions, disobeying court orders and refusing to participate in the discovery process. She accused judges of bias.

She was admonished in court, ordered to pay about $13,000 in sanctions and even barred from using certain evidence.

One particularly exasperated judge observed: “The world is going to end someday, and my job is to try to see that this case gets adjudicated before the world ends.”

But then... she won. Well, at least the copyright part. A different judge granted summary judgment, claiming that the two songs were similar enough. To be honest, Harley should be amazingly thankful that the judge sided with her here. Going through the docket in this case, Harley appears to have done pretty much everything possible to antagonize the judge. Below I've embedded (among other things) a transcript of a hearing to respond to Harley's request to have the judge removed from the case for bias. Harley showed up 20 minutes late, after the judge explained why such a removal was not reasonable and highlighted that her request was based on "frivolous and ad hominem attacks." When Harley eventually did show up, she challenged the judge repeatedly, despite her clear annoyance at the situation. Here's how the hearing ended, though reading the whole thing (it's not that long) is worthwhile:

MS. HARLEY: Yes. For the record, why am I not entitled to have you disqualified as a judge?

THE COURT: Ms. Harley, had you been here on time, you would have heard. Now we actually waited until 10:15.

MS. HARLEY: But I'm here now, and for the record, I'd like to have you disqualified.

THE COURT: For the record, I will repeat it to you. In this one instance I will tell you why your motion was baseless and entirely frivolous, but there is a transcript of this proceeding. Your motion indicates that this case was somehow assigned to me in a way that evidences partiality. It was not.

MS. HARLEY: Pardon me? I'm sorry. I don't understand that. Could you repeat that.

THE COURT: I will repeat what I'm going to say one time, and then we are going to adjourn.

Your motion indicated that this matter was assigned to me in some way that evidenced my partiality. It was not. That I was somehow showing bias.

I will not entertain questions.

MS. HARLEY: Why?

THE COURT: I will not entertain questions. Your motion also indicated that the manner of the removal of the reference also indicated some sort of bias. Everything that has been done in this matter has proceeded according to the routine practice for all matters that have come to me.

MS. HARLEY: Objection.

THE COURT: That is it, counsel. We are adjourned on this matter. Thank you.

MS. HARLEY: Objection.

THE CLERK: All rise.

The order (pdf) about sanctions against Harper detail a rather incredible pattern of absolute refusal to actually comply with basic discovery processes, which indicate that Harley appears to believe she could withhold evidence she planned to use at trial. End result? Despite her attempts to get out of it, she was told to pay over $13,000 in sanctions.

And she still "won."

The judge basically said that despite all of this the two songs were similar enough (though not identical) and there was enough evidence to suggest that the defendants had access to the song (Harley had given copies of the song to someone who was thanked on the album). While the actual songs may be similar, even the "similarities" in terms of lyrics seem pretty damn generic to me. The judge notes the following lyrics as infringing:

(1) Never meant to hurt you/Never meant to cause you pain;

(2) Sorry baby/Sorry that I hurt you; and

(3) I will never hurt you again/It will never happen again.

It's hard to come up with three more generic musical lyrics. In fact, a quick search on LyricFind of "never meant to hurt you" turns up 180 songs with that lyric. "Sorry that I hurt you" gets 25 songs. "Never happen again" shows up in 84 songs. That doesn't mean that this wasn't necessarily infringing, but damn are those generic lyrics that are found in an awfully large number of songs.

It's really quite amazing that she won the summary judgment.

And, of course, looking over the docket, it's just full of crazyness. It's not worth going through it all, but aspects of the case have continued since the summary judgment ruling, including Harley trying to appeal certain things, only to be told by the judge that "there is no basis for an appeal at this time. Plaintiff must await a final judgment."

In the end, it's entirely possible that there was infringement here. Certainly the judge -- despite all of the problems with Harley's actions in the case -- felt the songs were similar enough to grant summary judgment. But if you're looking for a guide in how not to go about a lawsuit, this seems to be it.

ITIF, the think tank that was often credited with coming up with the basic idea behind SOPA's horrifying plan to censor websites and break key parts of the basic DNS system (and, which we recently discovered, gets funding from the MPAA) is back and pushing for support of IP maximalism in the Trans Pacific Partnership (TPP) agreement. It has re-released a report about how the TPP must be "the gold standard" in trade agreements -- with a key focus on stronger and more limiting IP rules. In a press release about this re-release, ITIF argues for a strong maximalist agenda in the TPP:

Entering into a sub-standard Trans-Pacific Partnership (TPP) agreement that offers only weak intellectual property (IP) protections or permits countries to maintain mercantilist practices would be far worse than not joining the agreement

Of course, that's hilarious, because there's nothing more mercantilist in trade policy today than intellectual property rights. The basic concepts -- developed at the height of mercantilist fervor -- are all about protectionism for legacy players in the space. To argue in favor of stronger IP and against mercantilism makes no sense, because it's self-contradictory. Either ITIF is completely clueless on basic economics, or it's being intellectually dishonest. I can't tell which is worse.

U.S. trade negotiators should insist the TPP include the highest levels of intellectual property rights (IPR) protection, transparency in government procurement practices, removal of non-tariff barriers (NTBs), comprehensive market access provisions, and stringent enforcement mechanisms.

What's bizarre here is that, right after calling for IP maximalism, they immediately call for the removal of barriers and an increase in market access. You know what would actually do that? Ratcheting back the excesses of copyright and patent law. It's difficult to see how anyone can take ITIF seriously when they argue against themselves.

A ways back I noted a rather nice story about Israeli and Iranian citizens using the internet and social media to reach out and express solidarity with one another, despite their governments' differences. I found it rather encouraging that political rhetoric from both sides could be dismissed in favor of a humanist approach, no matter the vulgar generalizations each side might hear about the other. If you weren't already aware, despite the rivalry of the two nations, United States citizens and Iranians have had ways to interact over the internet as well, such as through online gaming platforms like World Of Warcraft. That is, they were able to do so, until the US government made more noise recently about the sanctions in Iran and Blizzard finally blocked Iranian users.

"I want you!!! ...to enjoy the Mists of Pandaria Persian-free." CNN has the story of how, due to sanctions against Iran, Blizzard was forced to block gamers from Iran from playing WoW. Apparently the renewed pressure on trade with Iran resulted in this block.

Last week, a user claiming to be from Iran posted on an official World of Warcraft forum to report that the game was inaccessible. A Blizzard employee responded to the thread on Saturday, writing that "United States trade restrictions and economic sanction laws prohibit Blizzard from doing business with residents of certain nations, including Iran."

"This week, Blizzard tightened up its procedures to ensure compliance with these laws, and players connecting from the affected nations are restricted from access to Blizzard games and services," the employee said.

In a fun little addendum, the Blizzard employee also mentioned that the company is unable to refund subscriptions as well.
You can have your rials back when you pry them from our cold dead fingers...
Image source. CC BY 2.0 Now, perhaps it's just me, but color me confused as to how sanctions against Iran need to be broad enough that online gaming is caught in the mix. Perhaps more importantly, as both parties like to make a lot of noise about "internet freedom" and its application to broadening freedom and Democracy in nations that enjoy little of both, does this result from our sanctions jive with how our State Department seems to want to encourage governments around the world to allow open communication through the internet and social media? While I understand the occasional need to punish a bad government through trade sanctions, this particular result doesn't seem to do that at all. Instead, it only cuts Iranians off from those that could tell them how great freedom is.
 

Eric Goldman has an article at Forbes about the failure of the Grand Resort Hotel & Convention Center in Pigeon Forge, Tennessee, to win its lawsuit against TripAdvisor for listing it as the "dirtiest hotel in America" on its 2011 list of such hotels. TripAdvisor, of course, is a very popular site, in which people rate various hotels. The company then took those rankings to come up with the list, meaning that it's pretty clearly a statement of opinion (the aggregated opinion of all the users who entered review info on TripAdvisor). However, to try to turn that into a defamation claim, the hotel's lawyers appeared to argue that because TripAdvisor came up with a numerical rank from all that user generated input, that made it a "factual statement" rather than an opinion. As you know, opinions aren't defamatory, but incorrect facts can be.

The court isn't buying it, at all.

It is true that the Defendant published an article with a numerical ranking, and that the Defendant suggests reasons to support its opinions, including that “87 percent of those who reviewed [Grand Resort] recommended against staying there,” but neither the fact that Defendant numbers its opinions one through ten, nor that it supports its opinions with data, converts its opinions to objective statements of fact. Any reasonable person can distinguish opinions based on reasons from facts based on reasons—just because TripAdvisor states its reasons for including Grand Resort on its list does not make the assertion one of objective fact. A person who is unable to distinguish the phrase “it is hot,” a subjective opinion, from “it is one-hundred degrees,” an objective fact, is hardly “reasonable.” Similarly, TripAdvisor’s “Dirtiest Hotels” list is clearly unverifiable rhetorical hyperbole.

TripAdvisor’s list is of the genre of hyperbole that is omnipresent. From law schools to restaurants, from judges to hospitals, everything is ranked, graded, ordered and critiqued. Undoubtedly, some will accept the array of “Best” and “Worst” rankings as impenetrable maxims. Certainly, some attempt to obfuscate the distinction between fact and opinion as part of their course of business. For those that read “eat here,” “sleep there” or “go to this law school” and are unable to distinguish measured analysis of objective facts from sensational “carnival barking,” compliance will be both steadfast and assured. Nevertheless, the standard, fortunately, is what a “reasonable person” would believe. A reasonable person would not confuse a ranking system, which uses consumer reviews as its litmus, for an objective assertion of fact; the reasonable person, in other words, knows the difference between a statement that is “inherently subjective” and one that is “objectively verifiable.”

I find the implicit suggestion in there that the plaintiff is not a reasonable person somewhat amusing as well. Either way, as Goldman notes, this should be a somewhat useful case whenever others are threatened for opinion-based lists they put together. That said, as a district court ruling it doesn't have much widespread impact, but with clear and concise reasoning, that doesn't mean it can't be helpful in convincing other courts to rule similarly.

Almost exactly a year ago today, I had the displeasure of doing something I said I'd never do: discussing Kim Kardashian. At that time, this (snicker) celebrity, best known for being equal parts pin-cushion and friend-of-Paris-Hilton, sued Old Navy because a young lady named Melissa Molinaro happened to look a bit like her. For this, Kim decided she needed the reasonable sum of $20 Million for Old Navy's infringement of her publicity rights. You can see the supposedly offending video below. I noted at the time that beyond looking somewhat similar to Kardashian, there didn't appear to be much else in common between the celebrity and the woman in the commercial.

How does just hiring someone that looks like someone else require a lawsuit? At no point when I braved my way through watching the commercial did I think to myself, "Oh, that's totally something Kim Kardashian would have done". I mean, if the commercial showed the actress, oh I don't know, waving the Armenian flag, that would've been one thing. And perhaps if the commercial showed her videotaping herself being nailed by a mildly talented R&B singer, I would have inferred the reference. But the casting call for the commercial didn't even call for a Kim look-a-like! The actress, Melissa Molinaro, told E! Online that her casting call had been "for a true dance pop superstar."

Well, those questions may go unanswered now, as we learn that the two parties have settled the case. It would be very easy to assume that, with a settlement, Old Navy didn't feel as though they were in the clear enough to fight this all the way through. However, a couple of things are to be noted in this settlement.

First, as with many settlements, the terms have not been publicized. No dollar amounts have been discussed at all. So, when it comes to monetary settlement figures, we know exactly nothing. Or, more precisely, we know that Old Navy paid Kardashian somewhere between zero and twenty million dollars. The linked article suggests that the commercial has been pulled from YouTube, which doesn't seem to be the case since the embedded example above works as of the time of this writing. It looks like a whole lot of nothing, as far as I can verify.

Second, while the article doesn't indicate which party engaged to reach a settlement first, there is some interesting information of the full-court press Old Navy was preparing to unleash on Kardashian in court.

After the lawsuit was filed, attorneys for Old Navy parent The Gap were aggressive in the discovery phase, launching an investigation to see whether Kardashian's reputation has been tarnished.

Around the time the Old Navy commercial was cast, Molinaro reportedly was dating one of Kardashian's ex-boyfriends, football star Reggie Bush, who was one of the people The Gap wanted to depose. The Gap also had sought information about why the clothing retailer Bebe decided to drop its Kardashian clothing line, financial records concerning Kardashian's clothing deals and further information about "Kim Kardashian's reputation as a singer and dancer."

It sounds as though Old Navy (The Gap) was going to drag a bunch of Kardashian's personal life into the court room. This may strike some as vindictive, but I'd suggest that there was simply no getting around this. If The Gap wanted to investigate the impact of an alleged publicity rights violation had on someone who has made a name for themselves almost purely through exploiting their personal life (as is the case with Kardashian), that will inevitably drag that personal life into the courtroom.

So, while there are no details on the settlement terms at this point, the coupling of a weak case by Kardashian with what would have assuredly been an uncomfortable witness list put together by The Gap, makes it very easy to imagine Kardashian wanting the whole thing to go away quickly. And if that acts as a deterrent to future lawsuits over so-called publicity rights, that's a good thing.