We've been talking about the incredible and ridiculous level of secrecy that the USTR has kept with regards to the TPP negotiations. While industry lobbyists are free to look over the exact details of what the US is proposing, the public, and even key Congressional staffers are left out in the cold. While USTR Ron Kirk keeps insisting that any elected member of Congress is free to look at the negotiating text, he's being disingenuous. Elected members are allowed to go to the USTR and request the document, which they will be given -- but only for viewing in that room, and they're not allowed to bring staff members (such as those who understand the ins and outs of what's being negotiated, nor are they allowed to make copies or even take notes). At the same time, lobbyists who are members of the USTR's "advisory committees" can login via any computer with internet access, and see what the latest text is without any concern. That doesn't seem right.

It appears that more and more people in Congress are getting fed up with this. A new letter has been sent to the USTR, on behalf of Congress (though, not surprisingly, spearheaded by Senator Wyden and Rep. Issa) demanding that this insanity stop, and that the USTR reveal what it's pushing for on behalf of Americans -- especially when it comes to the intellectual property sections.

Regrettably, the American people know very little about what the USTR is seeking in TPP generally, but specifically on IPR (Intellectual Property Rights). We believe that among all the areas of the TPP negotiations, the matters considered in the IPR chapter are ones in which there is particular public interest, therefore the USTR should be especially transparent and collaborative with the general public on these issues.

The American people deserve to know what the administration is purportedly seeking on its behalf.

We insist that, as expeditiously as possible, the USTR provide to the public detailed information about what obligations (and exceptions) the USTR is seeking in the IPR chapter. We call on the USTR to be particularly explicit with respect to what it aims to obtain as it relates to pharmaceutical drugs and enforcement of intellectual property rights online. Finally, it is important that the USTR convey to the American people whether the USTR is pursuing disciplines elsewhere in TPP that will promote an open and free Internet, given the Internet's increasing role in facilitating American exports of traditional goods and services as well as digital goods and services.

It seems likely that the USTR will simply ignore this letter, showing what kind of respect it has for Congress.

Looking for extraterrestrial life has been a largely fruitless task for many decades. There have been a few times when people thought they might have found evidence of life that wasn't from Earth, but upon further analysis, those discoveries weren't so clear cut. Still, the search for ETs is on-going, and here are just a few links on some ways to find alien friends.

• Spectroscopic biosignatures could be detected in light reflections off of alien planets. Reflected sunlight is polarized when it bounces off the Earth, and plant life on Earth absorb specific bands of light -- so alien worlds may exhibit similar phenomena (if only we could detect it). [url]
• In the 1970s, there was some speculation that cellulose could be detected in interstellar space. However, it's not so easy to figure out how to detect biopolymers in the vast vacuum of space. [url]
• The Drake Equation estimates how many alien civilizations might exist in our galaxy. It's just an estimate, and there are a lot of unknown variables... [url]
• Moqui marbles are unusual spherical rocks that have a rusty iron oxide exterior and a sandy interior -- and were formed with the help of microorganisms. So if we find similar rocks on other worlds, we might be able to infer that extra-terrestrial microbial life also exists. [url]

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

Last year, we wrote about how high end fashion shoe designer Christian Louboutin* had lost a trademark lawsuit concerning the company's attempt to block other shoe makers from making high heel shoes with red soles. Louboutin is apparently famous for its red soled shoes, but the judge in the case pointed out that this was silly and the company never should have received the trademark in the first place:

“Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition,” Judge Marrero ruled, “the court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection, even if it has gained enough protection in the market to have secondary meaning.”

Unfortunately, on appeal, the 2nd Circuit has disagreed and said that the lower court erred -- though with a specific condition. It claims that Louboutin's red soled trademark is legitimate if and only if it's on shoes with a different color. If the shoe itself is completely red, then others can have a red sole (which was the situation in this particular lawsuit). Still, this seems troubling, as it seems to flat out limit reasonable design choices that other shoemakers might choose to make. The court goes through the caselaw history on colors as trademark, and the question of whether or not a color is "functional" or not (trademarks can't be functional). While the court admits that "aesthetic function and branding success can sometimes be difficult to distinguish" you'd think it would be careful not to overprotect, but the court comes down on the other side here, mainly because it says Louboutin's red soles have created a "distinctive" mark that identifies such shoes as Louboutin's. While I can see where the argument comes from, precluding other designers from offering red soled shoes seems pretty excessive.

Rebecca Tushnet does her customarily comprehensive breakdown of the insane parts of the decision, pointing out that "it's notable just how many contradictions the court has to swallow" to come out with the ruling it does. It basically sidesteps key questions, dances around the caselaw, and figures out a way to back into the conclusion it was comfortable with issuing, while avoiding some larger questions. As a result it's a bit of a mess, but shoemakers be forewarned: apparently red soles on other color shoes is the sole domain of one shoemaker.

* As we wrote in our last post on this case: for reasons that go way beyond my understanding, it seems that one of (if not) the largest comment spammers we get are people trying to sell (probably counterfeit) Christian Louboutin shoes. Talk about bad targeting by spammers. This is not exactly a Louboutin audience. However, we get hundreds of such comments a day. Our spam filters use a few heuristics to determine what is spam and what is not and while it's not definite, there's at least a high likelihood that if you mention "Louboutin" in your comment that it will be held by the spam filter. We'll endeavor to free this as quickly as possible. Or just don't mention it in your comment at all, and hopefully it'll get through...

There have been a number of cases on the legality of police going through your mobile phone, and the courts are basically all over the place on rulings, with very little guidance from the Supreme Court. You can find cases where it's legal and some where it's not. The Supreme Court had a chance to clarify and punted (as it often does these days), choosing instead to tap dance around the 4th Amendment issue and deal with the case on other grounds.

Now we've got yet another ruling saying that looking at texts without a warrant violates the 4th Amendment. The case involved a six year old boy who stopped breathing and later died. His mother had called the police to report the not breathing bit... and while the police were in the house, they picked up the mother's cell phone and noticed a written (but unsent) text to her boyfriend which suggested foul play:

Wat if I got 2 take him 2 da hospital wat do I say and dos marks on his neck omg

Other texts mentioned punching the kid. Not surprisingly, police used this to start a murder investigation, leading to the arrest of the kid's mother's boyfriend. Except... the court has now rejected much of the evidence because it was obtained in a manner that violated the 4th Amendment. Even though such info is clearly useful for the case, this (Rhode Island state) court didn't fall for the claim that "if it helps police, there aren't any 4th amendment concerns."

... the Defendant has a reasonable expectation of privacy in his text messages and in the apartment where the subject cell phones were searched and seized so as to grant him standing, under the Fourth Amendment, to challenge the legality of the searches and seizures of those phones and their contents by the police. Based on the tsunami of illegal evidence collected by the Cranston Police Department, this Court grants Defendant‘s suppression motions and excludes the State‘s core evidence from being used at trial, including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police.

The ruling will almost certainly be appealed, and it's reasonable to want to make use of any evidence that points to a potential murder suspect (especially one who killed a six year old boy!). But, at the same time, we believe in the 4th Amendment for a reason -- and we expect law enforcement to live by that in collecting evidence, or we cross over into a police state (and yes, some people think we're already there). It's the cases like these that are often the toughest, because it's so tempting to come up with some sort of excuse to allow the evidence in order to lock up someone "bad." But at the same time, you want courts to recognize the importance of the 4th Amendment for all of those other cases where people get unfairly searched without a warrant.

*No, not really.

We all yearn for several things, among them true patent reform and the touch of another human being. Especially there. And there. But maybe not there... at least not without some... but I digress. The U.S. has long held to the notion of "first to invent," rather than "first inventor to file." Until recently, that is. The America Invents Act silenced critics who complained that "first to invent" made the system slightly harder to exploit. But that's all behind us now. As these three lawyers point out in their hilarious parody video, "first inventor to file" opens the door for some pretty devious behavior. (CAUTION: Probably NSFW. Contains sexual terminology, some light swearing and Patrick Leahy.)

There's a lot to love in the video, even if the opening is a little slow (but entirely necessary). If you're a patent wonk (does such a thing exist?), shout-outs to patent laws (PL 112-29, yo) and an appearance by David Kappos, the director of the USPTO, will provide a few thrills. If you're everyone else, there's a ton of sexual verbiage and Patrick Leahy, both Obamas and Michael Jackson all get name checked. Keep your eyes peeled for a distracted patent officer 'rubber-stamping' an application.

All in all, it's good clean fun that takes a few jabs at the more ludicrous aspects of the patent process. I'd love to see them expand this idea out further, perhaps encompassing some of the research aspects, like somehow making Google's Prior Art finder harvest results from Google Images. Or checking a sexual partner for infringement by requiring a list of past partners and positions. Or maybe tackle the "patent troll" angle: the guy who patents sex but never actually performs the act.

Amazon announced a ton of new ereader/tablet devices this morning, which is being covered to death on the various gadget blogs out there. While some of the devices look interesting (and could put some pricing pressure on other tablets), what caught my eye was the addition of a 4G LTE mobile data plan on the Kindle Fire HD. It's $49.99 for the year, though it's limited to just 250MB per month -- which is tiny. Amazon has included mobile data before in its Kindles, but those were strictly for books (which don't take up that much data). As they go further into the fully functional tablet world, this starts to become more interesting. That's because mobile data continues to be something of a racket, with just a few national providers: Verizon, AT&T, T-Mobile and Sprint (and there are limitations there). The pricing offered by those guys always seems to border on collusion (amazing how closely they track each other's pricing changes) and is always focused on keeping the prices very high.

Amazon's offer here is a way to tiptoe into that pool with something of an alternative. Yes, they're just piggybacking on someone else's network via some sort of MVNO (mobile virtual network operator) agreement, so you're still really using one of the national carriers' networks. But from a consumer standpoint, it is offering something of an alternative for mobile data, at much more reasonable prices (though, obviously, the super low caps match that super low pricing). That, alone, doesn't revolutionize mobile data pricing, but it does seem like a way for Amazon to get its foot in the door and expand over time. Amazon has a long history of figuring out ways to do things in a consumer-friendly manner, even if it means undercutting others to do so (which has made it a few enemies). In the presentation itself, Jeff Bezos noted that they're focused on making money elsewhere -- basically as people buy things via the device -- and thus the company has tremendous incentive to keep the prices of the devices and the service quite low. And that has the potential to be quite disruptive.

In some ways, I look at it as similar (in a very different context) to Google's fiber effort in Kansas City. In both cases, you have companies sort of dipping their toes in the water of ancillary markets that make their primary markets more valuable. They're very limited at this time, and many people may brush them off as being useless. But that's what always happens with The Innovator's Dilemma. Offer something simple and small, and the legacy players brush it off as too small or too limited to matter. But keep improving on that, and you undercut legacy providers without them fully realizing what's happening -- often because you're using your tiny and "weak" efforts there to actually enhance your primary market, where the traditional players have no presence.

Lots of people are reasonably mocking the 250MB limit. It is kinda useless. But, look at it as a wedge, and the beginning of the climb up the innovation slope, making Amazon's core business more valuable... and things could actually get quite interesting.

Judge Denise Cote wasted no time at all in approving the DOJ's settlement with three book publishers in its antitrust lawsuit over ebook pricing. While there had been some concerns about the settlement, the judge saw no problem with it at all, and very quickly issued an order approving the settlement (pdf) between the government and HarperCollins, Simon & Schuster and Hachette (the case against others, and Apple continues). The terms of the settlement are straightforward:

1. They must terminate their Agency Agreements with Apple within seven days after entry of the proposed Final Judgment.
2. They must terminate those contracts with e-book retailers that contain either a) a restriction on the e-book retailer’s ability to set the retail price of any e-book, or b) a “Price MFN,” as defined in the proposed Final Judgment, as soon as each contract permits starting thirty days after entry of the proposed Final Judgment.
3. For at least two years, they may not agree to any new contract with an e-book retailer that restricts the retailer’s discretion over e-book pricing.
4. For at least five years, they may not enter into an agreement with an e-book retailer that includes a Price MFN.

Cote basically said that this is a perfectly straightforward price fixing case, and the settlement directly counteracts the price fixing issues, so there's no reason not to just move forward with it.

The Complaint and CIS provide a sufficient factual foundation as to the existence of a conspiracy to raise, fix, and stabilize the retail price for newly-released and bestselling trade e-books, to end retail price competition among trade e-books retailers, and to limit retail price competition among the Publisher Defendants. Although the Government did not submit any economic studies to support its allegations, such studies are unnecessary. The Complaint alleges a straightforward, horizontal price-fixing conspiracy, which is per se unlawful under the Sherman Act.... The Complaint also details the defendants’ public statements, conversations, and meetings as evidence of the existence of the conspiracy. The decree is directed narrowly towards undoing the price-fixing conspiracy, ensuring that price-fixing does not immediately reemerge, and ensuring compliance. Based on the factual allegations in the Complaint and CIS, it is reasonable to conclude that these remedies will result in a return to the pre-conspiracy status quo. In this straightforward price-fixing case, no further showing is required.

Because of this, Cote rejects the idea of any evidentiary hearing and just approves the deal. She notes that due to tons and tons of public comments that were allowed in the case, she is quite well informed of the issues and sees no additional benefit from such a hearing:

It is not necessary to hold an evidentiary hearing before approving the decree. Given the voluminous submissions from the public and the non-settling parties, which describe and debate the nature of the alleged collusion and the wisdom and likely impact of settlement terms in great detail, as well as the detailed factual allegations in the Complaint, the Court is well-equipped to rule on these matters. A hearing would serve only to delay the proceedings unnecessarily.

She does try to summarize the comments against the settlement into four broad categories: (1) that the settlement would harm third party players like indie book stores, indie ebook retailers, indie publishers and authors, (2) that the settlement is "unworkable," (3) that there weren't enough facts to support the price fixing claim, (4) that the impact of such price fixing was actually pro-competition, in that it broke up Amazon's market dominance. She then breaks down each of these arguments to show why none of them apply and the settlement should move forward.

I won't go through all four issues, but I would like to focus on the two that get the most attention, the first and the last. On the first issue, she points out that antitrust law is not designed to protect businesses from the working of the market, but to protect the public from the failure of the market. If the settlement causes some businesses to suffer, but it's in the public interest, there is no problem there.

If unfettered e-books retail competition will add substantially to the competitive pressures on physical bookstores, or if smaller e-book retailers are unable to compete with Amazon on price, these are not reasons to decline to enter the proposed Final Judgment.

As for the last issue (breaking up Amazon's dominance), she notes that it was "perhaps the most forceful species of criticism" but still does not find it persuasive here. The court more or less notes that Amazon's market position isn't on trial, and its use of wholesale pricing does not equal price fixing, as some have alleged. Nor does it show "predatory" pricing, which was a key complaint. The problem there: the evidence showed that Amazon was "consistently profitable." And, to show predatory pricing, "one must prove more than simply pricing below an appropriate measure of cost" but also that the company will jack up prices down the road. And all of the comments failed to do that:

None of the comments demonstrate that either condition for predatory pricing by Amazon existed or will likely exist. Indeed, while the comments complain that Amazon’s $9.99 price for newly-released and bestselling e-books was “predatory,” none of them attempts to show that Amazon’s e-book prices as a whole were below its marginal costs.

Oh, and finally, the court points out that swinging back the blame to Amazon is meaningless for the purpose of this case, anyway, because even if the court accepted that Amazon was price fixing too, that doesn't make it okay for the publishers to price fix themselves. Think of it as the "two wrongs don't make a right" rule.

Third, even if Amazon was engaged in predatory pricing, this is no excuse for unlawful price-fixing. Congress “has not permitted the age-old cry of ruinous competition and competitive evils to be a defense to price-fixing conspiracies.” ... The familiar mantra regarding “two wrongs” would seem to offer guidance in these circumstances.

This probably does not bode well for the other publishers and Apple who are fighting the whole thing...

The draft bill of the UK's "Snooper's Charter", which would require ISPs to record key information about every email sent and Web site visited by UK citizens, and mobile phone companies to log all their calls, was published back in July. Before it is debated by politicians, a Joint Committee from both the House of Commons and House of Lords is conducting "pre-legislative scrutiny."

As the list of questions on the Joint Committee's Web page makes clear, it seems to be doing a thorough job, exploring every aspect of the proposed legislation. As well as a public consultation (now closed), it is also taking oral evidence from a wide range of interested parties, both for and against the plans. Yesterday, one of the people who spoke before the Committee was Jimmy Wales, who did not mince his words:

Jimmy Wales, the founder of Wikipedia, has sharply criticised the government's "snooper's charter", designed to track internet, text and email use of all British citizens, as "technologically incompetent".

He said Wikipedia would move to encrypt all its connections with Britain if UK internet companies, such as Vodafone and Virgin Media, were mandated by the government to keep track of every single page accessed by UK citizens.

He went on to suggest that other Internet companies would do the same, forcing the UK authorities to resort to what he called "black arts" to break the encryption. As he pointed out: "It is not the sort of thing I'd expect from a western democracy. It is the kind of thing I would expect from the Iranians or the Chinese."

To a certain extent, this is just bluster: Wales has no formal power to instruct Wikipedia to encrypt its connections, and even assuming that happened, it's not certain that companies like Google and Facebook would risk fines or imprisonment for their staff by refusing to hand over encryption keys. But Wales' intervention had a big symbolic importance: he's not only the co-founder of Wikipedia -- which even politicians have heard of and probably use -- he's also one of the UK government's own special tech advisers, appointed back in March.

His comments are, therefore, a real slap in the face, and a useful reminder that by pushing for this kind of total surveillance the UK government is not only making itself look oppressive, but stupid too.

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I've pointed out before that, contrary to the smug insistence of many people who dislike this site, I don't download any unauthorized content. At all. In 1999 I had Napster on my computer, but I was stuck on a dialup connection, so I never had a chance to test it out before it got shut down (and, at the time I had no real desire to listen to music via my computer). Since that time, I've always legally obtained the various content I consume, preferably directly from artists themselves, but otherwise through buying the CD or via Amazon or CD Baby (and now I use Spotify a lot too, though I still like to directly support artists when I can). Despite people insisting that I must be "pirate Mike," as I've said repeatedly, I'm simply not comfortable with going against the wishes of copyright holders. My arguments concerning the economics of free and why I think many artists should embrace these markets has a lot to do with what I think would be best for them, but I've never tried to use that to justify copyright infringement (again, contrary to what some insist).

During the SOPA fight, I explained this to someone who was heavily involved on the other side of the debate, and he simply couldn't believe it, and made comments to the effect that even he would download unauthorized content, even if he felt it was wrong and he felt morally obligated to pass an internet-harming law to try to prevent himself from continuing to do so. Of course, for what it's worth, I'm sure that I accidentally and incidentally infringe all of the time. Someone sends me a YouTube video? Could be infringing. These days it's impossible not to accidentally infringe all the time. But when it comes to actually getting copies of content, I feel a personal obligation to do so in an authorized manner.

So, I identify quite closely with Brian Barrett's recent article at Gizmodo, where he basically explains that he's just like me: he pays for all the content he consumes. And he follows it up by noting that, even as he knows this is the "right" thing to do, it makes him "feel like a sucker," because the experience he gets is much worse than what those who download unauthorized copies get.

I waited nearly a full year to watch Game of Thrones, because that's how long it took to get from HBO to iTunes. If I had any interest in purchasing a Avatar 3D Blu-ray, I would have either had to buy a Panasonic 3DTV or wait three years just for the right to spend thirty bucks on FernGully with giant blue cat-people having tail sex.

Even content that's accessible doesn't often make much financial sense. Amazon's the most reasonably priced e-retailer in the world (seriously, it's got 1,000 albums for five bucks each right now), but even it can be fraught with peril and annoyance. Ebooks that cost more than their paperback equivalents. The specter of DRM haunting every click. A layout so unnavigable you feel like you're being punished.

Want to comparison shop? Forget about it. Ecosystems aren't just apps and software anymore, they're movies and TV shows and everything you'd ever want to watch, read, or listen to. On any given day the best price might be on Amazon or iTunes or Google Play or Xbox, but if you want the simple comfort of knowing everything you paid for with your own American dollars lives in one place? Expect to pay full freight for most of it.

This is why I've always been arguing from the position of copyright holders and the content creators for why they shouldn't just scream about how awful piracy is, but rather learn from it, and note that many people who are infringing are getting a better user experience. When they don't do that, the end result may not be "infringement," but it may just be people dropping out of the market entirely. Lately, that's what I've done with movies. Despite being a movie buff, the limitations and controls on movie efforts has just made the whole thing not worth it. Combined with less time than I used to have (yay, family life), it's made me pretty much stop watching movies or TV shows over the past two years. These days, the market is so fragmented, and the offerings still all seem so half-baked, that I'd rather spend my time reading or writing or just spending time with friends and family. I don't necessarily feel like a "sucker" as Brian does, but I find that it's just not worth the hassle.

Eventually, I figure the market will catch up, and perhaps I'll go back to it at that point. But if the industry has lost some of my spending dollars it's not because of infringement -- but because they've failed to deliver a compelling customer experience for me.

The Economist has an interesting article suggesting that perhaps the tide is finally turning on bad copyright laws, and we're beginning to see real efforts at reforming copyright in the right direction:

Canada passed a law in June that sets a new standard of permissiveness. It caps statutory damages if copyright is breached for non-commercial purposes. It expands the definition of “fair dealing” (“fair use” in America) and creates exemptions for educational purposes and for parody. Firms must pass warnings about infringement to the person who posted the material rather than immediately take the content down themselves. This contrasts with practice in America and Europe, where a web company alerted to infringing material must remove it. This encourages knee-jerk responses to complaints.

Britain too plans to introduce internet-friendly legislation this autumn after a review led by Ian Hargreaves, professor of digital economy at Cardiff University. As with Canada’s law, the recommended new code entails exemptions for non-commercial uses and user-generated content. Also mooted is a “digital copyright exchange” that would establish a marketplace for copyright. A musician could list her song and the licensing terms. A filmmaker wanting to use it would know quickly and simply what to do.

It also talks about how Ireland and Australia are both exploring more open and internet friendly copyright reforms. The article does note that this is not all going smoothly. There are efforts to create taxes on content to preserve old business models, for example. But it does seem like, for the first time in pretty much anyone's lifetime, there actually are real and legitimate efforts to push back on the excesses of copyright law, with the recognition that it's done more harm than good.

I'm not quite as optimistic as the Economist piece, as almost all of those efforts (Canada excepted, and even that came with bad digital locks/DRM anti-circumvention provisions) are still nascent and are facing tremendous lobbying pressure to go in the other direction. Furthermore, we just got through the SOPA and ACTA fights, and the latest round of TPP negotiations are going on as we speak. Plus, there's plenty of evidence suggesting that even as the RIAA and MPAA have had their budgets slashed, they're gearing up to continue the push for copyright maximalism in all corners. There are inklings of hope and greater and greater recognition of the problem, but I'd say that we're a long, long way from seeing the tide really turn -- and there's still an unfortunately large possibility of things going back to maximalism-as-usual.

There have been numerous attempts by various parties (including, in a few cases, the EFF) to sue the US government concerning various aspects of its warrantless spying on Americans. Pretty much all of these cases end up failing, often for reasons that are suspect. However, it appears that the EFF is going to try again. As you may recall, back in July, the feds admitted to Senator Wyden that their own analysis discovered that they had violated the 4th Amendment on occasion in carrying out surveillance under the FISA Amendments Act.

In response to this, the EFF filed Freedom of Information Act requests, asking for documents concerning the situation in which such searches were deemed unreasonable under the 4th Amendment. The feds more or less ignored the FOIA request. So the EFF is suing for violations under the FOIA. It may not be as sexy as suing about the actual spying, but that path has already been shut down plenty of times. I'd guess that this approach won't succeed either (though I hope it does!). But, at the very least, hopefully it can call some attention to the massive secrecy by the feds as Congress gets ready to re-approve the FISA Amendments Act without bothering to understand how it's being used.

For many years, Ubisoft has been the go-to company for stories about DRM gone horribly wrong. They really seemed to believe that always-on DRM actually does something to stop piracy. That was followed with story after story after story of Ubisoft doing things that harm only paying customers and generally shoot themselves in the foot. You can go back over our posts about the company to see just how badly they have handled piracy for years. It really looked like the company was never going to learn the simple fact that it is more important to maximize sales than to fight piracy. So imagine our surprise when the following story came to light.

Ubisoft began making the rounds early this week, contacting a number of video game sites including Gamasutra and Rock, Paper, Shotgun and providing interviews. The purpose of these interviews? To tell the world that Ubisoft has changed its DRM ways. Much like the end of Charles Dickens' 'A Christmas Carol' in which Scrooge takes to the streets to spread peace and goodwill, Ubisoft wants the world to know that it believes that providing its customers with the best gaming experience is the most important part of its new strategy.

In the interview with Gamasutra, Ubisoft's VP of digital publishing Chris Early speaks about its past use of always-on DRM.

If you look back to early 2011 and before, we did at one point in time go with an always-on activation, for any game. We realized that while it was probably one of the strictest forms of DRM, it wasn't the most convenient for our customers. We listened to the feedback, and have removed that requirement from those games, and stopped doing that going forward.

This is interesting because we had been complaining about always-online DRM since at least 2010 and other forms of Ubisoft DRM since 2006. However, the fact that they are actually listening to the feedback of consumers is a huge plus for them. This is a bold move for the company that decided that paying customers wouldn't miss playing their games at all for a few days while it moved its servers.

What we're trying to do is make [playing a game] easy for players who have legitimately bought our software, and at the same time put a registration requirement, or one-time activation requirement in, that includes some element of [software] protection.

The reality is, given enough time and effort, any game can be pirated, and many are. But what we're looking to do is validate the customer, then provide value to that customer for registering their software.

This is exactly what many customers have been asking for and many other successful companies have been giving. This idea that providing value to paying customers is a better way for success has been one that companies like Valve, Stardock and CD Projekt Red have known for years. But this lesson on DRM is not the only one that Ubisoft has learned.

Ubisoft also seems to have learned some very important lessons about piracy in general. Specifically, that not all people pirating a game are doing so just to get free stuff and that not all pirated copies are a lost sale.

I don't believe that every single pirated copy is a lost sale. In some cases I'm sure it's just someone trying out a game. At some level, you can almost look at it as a demo program. So as far as many of those could've been sales? I'm not sure.

In general, when people talk about piracy, there are all kinds of reasons cited, whether it's because of an economic imbalance, where people can't afford to buy a game in that particular [geographical territory], or it's a challenge, or it's someone who doesn't believe in supporting publishers by giving them money. There's a whole variety of reasons. That's why we want to focus on the rewards and benefits of owning the software.

This is another idea that other companies have known for a while, that piracy is the result of under-served customers. By focusing efforts on making the paid option more attractive than the free options, you can capture more sales than if you spent your time trying to stop piracy.

Over at RPS, They didn't go quite so easy on Ubisoft's representatives. RPS asked many times for a statement on just how bad its DRM was for paying customers and whether Ubisoft had any regrets, but all RPS ever got were whitewashed PR statements.

RPS: Do you acknowledge that always-on DRM has been extremely damaging to Ubisoft's reputation?

Burk: I think that, as Stephanie said, I think this is where that feedback comes in. We've obviously heard from PC customers that they were unhappy with some of the policies that we had in place, and that's why we're looking to make these changes – why we have been implementing these changes, as Stephanie says.

RPS: Would you be willing to say that it was a mistake?

Burk: No, I wouldn't say that. I'll let Stephanie say what she thinks, but I wouldn't use those words. This is a process, and we listened to feedback.

Perotti: I would say the same.

This attitude of not wanting to admit to any mistakes while still making this sweeping change in policy has the potential to leave a lot of people with a bad taste in their mouths. While the company is no longer hitting their customers over the proverbial head, they have not yet apologized for those actions, at least not out right. A good apology could go a long way in smoothing things over with their past and future customers -- though perhaps just the act of changing and admitting to the change is a form of an apology for many.

Over all, this is a great move by one of the last hold outs in regards to video game DRM. While many other companies still require some form of DRM, none were quite so bad as Ubisoft in that regard. Hopefully, this change of heart will echo throughout the gaming industry and all developers will abandon efforts in the futile fight against piracy and instead focus on maximizing sales through added value for their customers. Ubisoft has a bright future ahead of itself on this path and I wish them all the best of luck.

We heard some rumblings out of Japan over the weekend that the ruling party was seeking to ram ACTA through the ratification process there. This wasn't a huge surprise. Japan was actually a key player in the formation of ACTA at the very beginning, and it was where the first official "signings" all took place. Japan has been pushing for exceptionally strict copyright laws and ACTA was supposed to help spread such laws further around the globe. Already, we've seen the country criminalize unauthorized downloads and making DVD backups... leading to a publishing exec facing jail time for offering a book that tells people how to back up their DVDs.

About a month ago, the upper house of the Japanese legislature passed ACTA, as the first step in ratifying it. Some had thought that ACTA might stall out as a minor issue while other political turmoil went on, but it appears that Japan's ruling party has decided to push forward with the ratification. Last week, the Foreign Affairs Committee within the legislature tried to push through ACTA without allowing any discussion from opposing politicians -- which caused a ruckus, leading to a slight delay. However, after a few days, the committee passed it anyway. The ruling party then sought to do something similar, rushing it through a full vote, which appears to have just happened, resulting in ACTA's approval with effectively no real debate. In fact, it was mostly a non-story in Japan. It wasn't covered by the press and most politicians were basically silent about it.

This is fairly incredible, given the widespread protests we saw towards ACTA in Europe and a rapidly growing protest movement in Japan. Still, the protestors admit that ACTA just hasn't caught on as an issue in Japan like it has elsewhere. That's unfortunate for a variety of reasons, but they're hoping to change that with a protest on September 9th.

Of course, there's a question of how useful is it to ratify ACTA when many of the other negotiating parties (mainly the EU countries) don't seem likely to follow through and ratify the document in its current form. One report I heard out of Japan suggested that the ruling party there recognizes that ratifying ACTA is mostly symbolic at this point, but that it needed to be done to "save face" for the negotiators. Of course, if they really wanted to "save face," perhaps they shouldn't have negotiated for absolutely awful limits on how copyright can be reformed, while pushing for greater enforcement without necessary safety valves against abuse. Either way, the whole thing definitely has all of the appearances of ACTA being rammed through by political interests who don't want any debate on such a topic.

Over the weekend, when the news broke that Gottfrid Svartholm, the founder of The Pirate Bay, had been arrested in Cambodia, I didn't think too much of it. It was well known that he was in that part of the world, and you had to figure that sooner or later he'd be tracked down. Despite claims that he was too ill to show up for the appeal of The Pirate Bay trial in Sweden, many questioned if he was just hiding out in southeast Asia to avoid any potential jail time. Over the past few days, some additional info has come out that is certainly raising eyebrows, even if the evidence is circumstantial. And the biggest bit of news may be that his arrest might not even be about The Pirate Bay.

Either way, let's start with the basics. First, Cambodia has admitted that it will be deporting Svartholm, even though there's no extradition treaty between Cambodia and Sweden. Of course, deportation and extradition are not the same thing, and you don't need an extradition treaty to deport someone. But it is still notable.

But then there are two bits of news that seem like quite the coincidence. First up: Ron Kirk, the US Trade Rep, and the main US government official responsible for ACTA and the TPP... just happened to be in Cambodia the very day that Svartholdm was arrested... and, the very next day, Sweden just happened to announce a $59 million "aid package" with Cambodia. Is it any wonder that some are asking if Sweden basically paid Cambodia to arrest Svartholm... and if the US had a helping hand in all of this?

At this point, it certainly could all be a coincidence -- which is the direction I tend to lean for the time being -- but it is quite a coincidence. We already know that the US government has been heavily involved in getting Sweden to put The Pirate Bay on trial. In fact, the US's deep involvement in Swedish copyright laws and policies has been a source of friction with some Swedish officials. Furthermore, Ron Kirk's entire role is about negotiating agreements and treaties between countries -- so the fact that a Swedish/Cambodia deal came together just as he was in the country? It certainly wouldn't be shocking to find out that he had a hand in making the deal happen.

But, let's add in one more bit of info. Svartholm's fellow TPB'er Peter Sunde is claiming that the arrest is not related to The Pirate Bay, though other reports claim otherwise. Some other friends are also insisting that it's not related to TPB, though I will admit to being skeptical. More surprising, perhaps, is Sunde's suggestion that the arrest may actually have more to do with Wikileaks, which Svartholm's company used to host, rather than The Pirate Bay... Of course, if that's the case, it doesn't discount the involvement of the US or Sweden (and might only reinforce it). Though it does add an element of... oddity to the whole situation.

Of course, even if the arrest is about something else, if he does end up being shipped back to Sweden, the TPB issue won't just go away. And it's likely that whoever is involved -- whether it's these other two governments or not -- recognizes that as well.

Update: TorrentFreak is now reporting that the arrest is about a tax hack:

Svartholm’s arrest is related to a hacking operation that may date back to 2010.

The hack targeted Swedish IT company Logica, which supplies services to the Swedish tax office. Earlier this year the hack made the headlines when the tax numbers of 9,000 Swedes leaked online.