eBay's Fall Seller Update has just arrived, bringing with it several tables, FAQs, a bullet-pointed "Best Practices," and sadly, to the purveyors of certain goods, a list of categories that will no longer be welcome within the confines of Paypal Fraud Central eBay's listings. 

Several "metaphysical" categories are being dropped as of August 30th, and sellers will have to remove listings for "spells, curses, hexing, conjuring, magic, prayers, blessing services, magic potions, [and] healing sessions." Sadly, eBay says that "transactions in these categories often result in issues between the buyer and seller that are difficult to resolve," resulting in the discontinuation.

The full list of dropped categories also includes the following items:

work from home businesses & information; wholesale lists, and drop shop lists

It's not often that someone (inadvertently) makes the clear statement that, yes, work-at-home "information" is about as useful as a Haunted Magical Male Dog Familiar.

I have no doubt that any issues arising between the sellers of these "goods" and the purchasers would be "difficult to resolve." I can only imagine the response team asking questions such as "Did you feel you weren't getting scammed quickly enough?" or "Do you feel that the three day period was inadequate to test proper bonding with the dog spirit contained in the aquarium decor rock you picked up at a highly inflated price?"  This means that these sellers will most likely have to relocate* to the welcoming confines of Human Trafficking, LLC Craigslist, where buyers and sellers will be able to better match up vendors with victims, thanks to region-specific listings.

*Or, you know, just stay there.

While this news is likely disheartening to your average small businesswiccan and clickfraudster, it's probably for the best. The mantra around various suburbs, rural co-ops and unincorporated townships has always been "Put your money back into the community. Think Globally. Shop locally!" With these "alternative" businesses being shunted back to Craigslist (it's almost as if they never left!), citizens will be able to turn to their friends and neighbors for their next Incubus Succubus DJINN Summoning Spell or Doctor Job, Employment Website Sale. And that's the way things should be. Local merchants preying on local victims, all the while "thinking globally" about which offshore location would make a decent retirement spot.

Of course, as with any shakeup, there's bound to be a few victims. Due to eBay's culling of the categories, we may never know if this Haunted Doll Has Spirit Of An 18 YR Old Jogger Found Strangled To Death will ever find a happy home in which to "scream out loud and break things out of anger." But, if you act quickly, you could be the lucky person to give this possessed and needy doll "alot of attention," in order to prevent her from "screaming at night banging on the walls and knocking things over."

Perhaps picking up a cushy Doctor Job would give you the additional at-home time needed to give this doll your undivided attention, as well as allow you to get used to its "tendency to stare at people where it gets to the point of being very uncomfortable." Perhaps Haunted Doll could pitch in and babysit, giving you a much-needed night away from all the screaming, breaking and staring. After all, she is "good with kids and pets."

 

Dealing with customers can quite often be a pain for many companies and other people who offer goods and services that require some support from time to time. When offering a free service, the barrier for new customers is eliminated and you can get a whole lot of cranky people when the service is down or not operating to expectations. So what happens when a free user turns into a paid user? Will those people become even more entitled and become even more upset when downtime happens? Actually, it could very well be the opposite.

Over at the Agile League, one software developer, Micah, shares his experience with offering a paid subscription for a free service.

When I finally flipped the switch to add paid subscriptions to Obsidian Portal, I was terrified of the coming support nightmare. I reasoned that if people were angry and demanding when it was free, they would be infinitely more angry and demanding after they had paid. Instead, what I quickly learned was that the paying subscribers were vastly more polite, understanding, and patient than the free users.

So why exactly did this happen? Why did these customers, who decided to pay money, suddenly become more polite in their interactions with this developer? Micah offers what he feels is the best explanation for this change.

My customers don’t pay me in order to buy the right to yell at me. Most of them don’t care at all who I am. They pay money because my service addresses a pain point in their lives. They’re so happy at how well it addresses the pain point that they gladly get out their wallets and fork over payment. If there’s an interruption in the service, they aren’t interested in pointing fingers and assigning blame. They just want the service back. If service interruptions or bugs are the norm, they may get angry, but the point is that they don’t get extra angry just because they paid.

When people find software or any other service that addresses their needs, they will gladly pay for it and be happy about it. This is something we have addressed in the past on numerous occasions. This is what makes Valve's Steam platform so successful in the games industry. This idea is what leads us to shake our heads at the boondoggles that the movie and music industries throw out there. It is all about identifying a need in the marketplace and offering a service that is convenient and actually meets that need.

Of course this is not going to be true for 100% of users who do pay. There are still plenty of people out there who seek an opportunity to complain. The key is to not be afraid of putting yourself out there.

What I am suggesting is that you relax any fear you have about being beholden to them because they paid you. Asking for payment does not fundamentally change your relationship with your users. Some will love you, others won’t. But, there’s a good chance that the ones who love you will match up to the ones paying you.

So while there may be some paying users who do complain, there is still a large group who will not because they actually love your service enough to have paid. These customers feel that the service offered at the time of payment was worth the money. As long as the service meets those expectations, they are happy. When your customers are happy, you could make a lot more money in the process.

As YouTube sits in the uncomfortable position of being absolutely loved by the general public, while also being accused by media labels of being an engine for piracy, while also being used by those same labels to try to get free money off the backs of their signed artists, we have long said that it can also serve as an amazing promotional tool to help new artists get discovered. And, as the next generation of music fans move into their teens, one study appears to demonstrate that point.

Via CNN, we learn that the new Nielson Music 360 report has found that YouTube is the primary method for discovering new music amongst teenagers today. While it may not be any great surprise that kids use the free service to find and/or listen to music, I think the report includes a couple of important notes worth elaborating upon. First, take a look at the difference between the generations of music fans:

Among all adults, radio remains the most popular tool, with 48 percent saying that's how they usually discover their new jams. But more teens, 64 percent, cited YouTube, the Web's leading video-sharing site, as a place where they listen to music. Followed by radio (56%), iTunes (53% ) and CDs (50%).

The popularity of YouTube is dramatically higher among teens than all adults. Only 7 percent of all respondents said they discover music most frequently through the site.

Again, probably not the kind of statistics you'd exactly consider jaw-dropping. But let's think about this for a moment. If the jump between those that utilize evil YouTube the most to discover new music (for which they'll potentially buy either music, concert tickets, etc.) is from 7% of the total population and 64% of the teenage population, that indicates to me that the real transition in how we discover new music as an entire population has only just begun. And, if the music labels want to continue to fight against YouTube rather than utilize it, they appear to be ill-prepared for what is a statistical tidal wave that these teenagers will represent when they become paying adults and have children of their own. Failing to embrace YouTube as a promotional tool and fighting against that kind of tsunami is akin to...well...fighting against a friggin' tsunami!

From the CNN article we also learn this:

Strangely, the report doesn't address teens' listening habits on music-streaming sites such as Pandora, Spotify or Grooveshark.

And that's a mistake. If YouTube is the trend for this generation of teenagers, there is a very real likelihood that the next trend is going to be either those music-streaming sites, or others very much like it. That is, of course, if the music labels don't continue to try to kill them as well. 

But the point remains: people will use new internet services to discover new music. This represents a boon for music as a whole, and could represent the same for the major labels, but only if they stop fighting the tide and instead ride the wave.

 

Lobsters have an interesting culinary history. While these invertebrates are now generally considered an expensive meal for special occasions, they were once so plentiful in the northeastern US that they were a cheap food fed to prisoners -- and subsequently considered "cruel and unusual punishment" to be served as a daily meal. (Perhaps they just didn't have much melted butter in the 1800s...) But lobsters have re-gained their status as a luxury food item, and here are just a few interesting stories about these critters.

• An approximately 80-year-old lobster, named Larry and weighing 17 pounds, was saved from a fate of boiling water and butter by Don MacKenzie and released into the Long Island Sound. Larry's age was only approximate, but based on how many times he had molted, he's between 70-100 years old -- and probably wouldn't have been a very tasty meal anyway. [url]
• Getting lobster meat out of its shell can be messy, unless you use about 87,000 pounds of water pressure. Forget your nutcrackers. A water-filled pressure chamber humanely kills lobsters instantly and can cleanly separate every morsel of lobster meat from its shell. [url]
• Over the last few years, a bunch of strangely-colored lobsters have been caught. Blue lobsters, orange lobsters, white lobsters -- and even lobsters that are half one color and half another -- have been turning up more frequently. But they all still turn red after they're cooked, except for the white ones.... [url]

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

Just a few days ago, in mocking the MPAA/RIAA filing with the US's IP Enforcement Coordinator, we noted that they mocked Kim Dotcom as being arrogant and wealthy, but ignored the fact that their own execs made a ton of money. We specifically called out RIAA boss Cary Sherman's 2009 salary. At the time, I realized it was odd that we hadn't seen any update on salaries, since they have to file these things publicly. Well, it turns out that the RIAA was just dragging its heels, and Torrentfreak highlighted the latest filing, noting mainly that the RIAA's budget is shrinking drastically, as members are paying less (in part due to massive consolidation from the major labels).

That said, it doesn't seem to have dampened the salaries the RIAA is paying its top execs. This report covers 2010, so it's out of date. Mitch Bainwol is still there and Cary Sherman is the number two guy, rather than top dog as he is now. Still, if being rich and arrogant is evidence of someone up to no good, the RIAA's top brass may have some explaining to do: It certainly looks like nearly all of the RIAA's top brass are either deeply embedded in the top 1% of earners or very close to the borderline (about $380k per year). Mitch Bainwol and Cary Sherman each made over $1 million. Neil Turkewitz, Mitch Glazier and Steve Marks all made over $600k. Considering how phenomenally unsuccessful the RIAA has been over the past decade, you'd think that its members could find cheaper execs to keep driving the organization into the ground. As TorrentFreak points out, membership dues dropped from $49.76 million in 2008 down to just $27.88 million in 2010. You'd think that money could be spent somewhat more effectively, rather than pining for a past where they were gatekeepers in control of the market.

Via Slashdot, we learn about how Joyent offered early customers a "lifetime account," (via TextDrive, a web hosting company it acquired) in which they promised the account would exist "as long as we exist." Well, the company still exists, but it's now sent notices to those lifetime customers telling them that their "lifetime" is apparently up on October 31:

We appreciate and value you as one of Joyent's lifetime Shared Hosting customers. As this service is one of our earliest offerings, and has now run its course, your lifetime service will end on October 31, 2012

One would imagine that the FTC might have some questions for Joyent's management on the nature of living up to the promises of what was offered. Jason Hoffman, who apparently co-founded both TextDrive and Joyent, seemed to make things worse with his defense of the decision, basically admitting that this is screwing over their earliest supporters and biggest advocates:

Having co-founded two companies that ultimately became Joyent, growing from a tiny startup to where we are today has had its ups and downs, and this is one of the toughest decisions I’ve made. In particular because I've always been the biggest advocate for pushing a shared hosting product forward, and then here I am, the only remaining "founder" that is active.

It's ironic that our biggest advocates are the ones most affected by this and I know many of you are disappointed in me. I’ve received many questions and comments about why the service is being discontinued and I'm listening and will continue to listen. And like the past, this response won't be my last.

Making the decision to discontinue the service was extremely difficult. It was driven by some simple things: the hardware is simply old (6-8 years old), it's failing, there isn't an upgrade path from it, there's more than many of you likely realize and oddly enough it's more expensive with time (while not being used much). The rest of the Joyent's business has been paying for that, and I can't make the argument as to why it can continue.

Yet, we're only here because of the initial community that trusted us, and I'm genuinely grateful for the support. I’m sorry that I've lost that trust and I've upset you. You have a right to be upset. This was a tough decision with some nuance to it and none of this is lost on me.

This seems to go back and forth. First off, it's not "ironic" that you're screwing over your early supporters and not giving them what was promised. It's a highly questionable business practice. As for not being able to make an argument for why the service can continue, one would think keeping Joyent's name and reputation from being dragged through the mud would be a potential argument. Also, avoiding possible smackdowns from government officials for selling one thing and delivering another.

I recognize that things change and businesses change over times. But the company did make the promise that these were lifetime accounts and that they'd stay up for as long as the company was around. It seems only reasonable that it should not just cut off those accounts without any sort of recompense.

While we recently discussed how licensing schemes can make the intersection of the internet and education very expensive and complex, there's also been some news recently going in the opposite direction. Coursera, a company that partners with colleges to provide free online courses, recently announced that it has expanded its partnerships to include several top-tier schools, such as Princeton, Duke, and Johns Hopkins. Meanwhile, MIT, Berkley, and Harvard announced that they are going to start a similar program at their schools called edX. The goals for both of these groups is to democratize higher education, opening the doors of social progress through the power of the internet and online courses.

And yet some would argue that the opposite will occur. Take, for instance, Noliwe M. Rooks, associate professor at Cornell and author of several books. Contributing to Time, she argues that online courses will have the opposite effect and actually widen the socio-educational gap between the rich and poor, and also along racial lines. I think such a theory is horribly myopic, but let's take a look.

Despite near universal enthusiasm for such projects, it’s important to take a few steps back. First, although the content is free now, it’s unlikely that it will remain that way for long. According to an analysis of one of Coursera’s contracts, both the company and the schools plan to make a profit — they just haven’t figured out the best way to do that yet.

A couple of problems here. First, while the industries are by no means fully analogous, I imagine that there were people years back who said the exact same thing about Google's search business. Or YouTube's video business. You'll note that both remain free to users to this day. Perhaps so shall Coursera. But, secondly, even the link Rooks provides to demonstrate her fear that students will eventually be charged doesn't really do that at all. The team at Coursera is currently brainstorming ways to monetize the business, but charging for what the company is calling course-completion "certificates" is only one idea. They've also discussed corporate sponsorship and advertising-supported monetization. The point is that charging for courses isn't some forgone conclusion and, whatever these certificates would cost, the investment on the part of the student would still be a far cry from what it costs to attend a university these days. But then Rooks goes on to make what are her two key points. The first is that online education isn't as effective as the classroom experience.

In terms of learning on the college level, the Department of Education looked at thousands of research studies from 1996 to 2008 and found that in higher education, students rarely learned as much from online courses as they did in traditional classes. In fact, the report found that the biggest benefit of online instruction came from a blended learning environment that combined technology with traditional methods, but warned that the uptick had more to do with the increased amount of individualized instruction students got in that environment, not the presence of technology. For all but the brightest, the more time students spend with traditional instruction, the better they seem to do.

It would be very easy at this point for the reader of Rooks's piece to see a fork in the road, where one must choose to either agree that online education is inferior or disagree and dismiss her argument. I'll do neither, because the question is moot. Remember that we're talking about the impact this is going to have on the socio-educational gap, not on the average student. Looking at it from that perspective, the effectiveness of free online education at Princeton (or any other school) compared with the effectiveness of in-classroom education at that same school is of no meaning whatsoever. The comparison to be made is between the effectiveness of free online education at Princeton (or any other school) versus not being able to afford an education at that same school at all. When viewed in its proper context, I can't see how anyone could argue that these free courses will do anything besides close the socio-educational gap.

And, finally, we have the argument that this will chiefly benefit both rich and white communities:
 

Supporters of online learning say that all anyone needs to access a great education is a stable Internet connection. But only 35% of households earning less than $25,000 have broadband access to the Internet, compared with 94% of households with income in excess of $100,000. In addition, according to the 2010 Pew Report on Mobile Access, only half of black and Latino homes have Internet connections at all, compared with almost 65% of white households. Perhaps most significant, many blacks and Latinos primarily use their cell phones to access the Internet, a much more expensive and less-than-ideal method for taking part in online education. In short, the explosion of this type of educational instruction, though free now, may leave behind the students who need education the most.

Again, it would be very easy for the reader at this point to pick a side, either believing Rooks's numbers or not and drawing a conclusion. I won't, because no matter where those numbers are right now, they are not static. I would argue that anyone believing that wider adoption of internet connections and greater reliability aren't only going to increase as time goes on doesn't know what they're talking about. So, even if there is an "internet gap" of sorts today, be it along racial or economic borders, that's only going to decrease. Given that Coursera just started up, drawing the conclusion that it, and future companies like it, are going to help widen the socio-education gap seems rather odd.

We've noted before just how fickle fair use determinations can be when judges go through the standard four factor test of what qualifies as fair use. I've heard lawyers say that with any fair use case, it's possible to make an argument that will make all four factors side with one party -- meaning that the courts can basically just decide who they think should win and fit the analysis to that end result. You can see that quite clearly in the 9th Circuit appeals court ruling and dissent in the Monge v. Maya Magazines case (pdf and embedded below).

The case involves a pair of Latin American celebrities (the singer Noelia Lorenzo Monge and her manager/husband Jorge Reynoso). Because they wanted to cultivate the image that Monge was single, the couple tried to keep the news of their marriage (done quietly in Las Vegas) secret from everyone (including their parents). Someone who did some driving for the couple found a memory card that included a bunch of photos and videos, and because he claimed he hadn't been paid what was owed, he sold the card to a magazine, who found photos showcasing the couple's wedding, and published a story with the images.

So here's the question: is this fair use? Unfortunately, the majority stampeded through the four factor test like a bull set on the red flag at the end, tossing aside any sort of reasoned analysis, and finding against fair use on every account. To do so, it had to twist quite a few concepts and make some highly questionable claims about the law. Just as a starting point, the court argues that the anti-circumvention measures of the DMCA "supersede" the key ruling in the Sony Betamax case that made VCRs and time-shifting legal. If that's true, it's certainly news to many copyright lawyers. I asked a few and none could understand this particular claim.

From there the four factors fell one-by-one, as the court seriously suggested that such photos weren't newsworthy and that the same story could have been written without the photos by using other evidence (like a marriage certificate).

I'd walk through and highlight the mistakes made by the majority decision in great detail... except that I don't need to. Because Judge Milan Smith did a better job than I ever could with the dissent, picking apart the mistakes of the majority ruling with detailed citations for why it was wrong. However, I do think that Smith may have overstated some of the significance of the case in his opening:

Copyright is not an inviolable right that confers upon creators absolute control and ownership over their creations. Copyright protection was enacted “[t]o promote the Progress of Science and useful Arts” by creating a system in which authors and artists may reap the benefits of their creative contributions.... The fair use doctrine was designed to act as the counterbalance to copyright by “permit[ting] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.”...

The majority’s fair use analysis in this case is inconsistent with Supreme Court precedent, and thwarts the public interests of copyright by allowing newsworthy public figures to control their images in the press. The majority contends that the public interest in a free press cannot trump a celebrity’s right to control his image and works in the media—even if that celebrity has publicly controverted the very subject matter of the works at issue. Under the majority’s analysis, public figures could invoke copyright protection to prevent the media’s disclosure of any embarrassing or incriminating works by claiming that such images were intended only for private use. The implications of this analysis undermine the free press and eviscerate the principles upon which copyright was founded. Although newsworthiness alone is insufficient to invoke fair use, public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies.

I think this actually would only apply to photos over which the celebrity held copyright -- so not "any" works, as Judge Smith says. That could be an important distinction (in fact, one might question whether or not the couple actually holds a legitimate copyright registration, since they did not take the picture, and while not true in every case, it's mostly accepted that the photographer holds the copyright, even when using someone else's camera). However, that issue isn't even up for consideration here. The case is focused exclusively on whether or not this was fair use.

And for each prong that the majority finds against fair use, Smith makes compelling arguments that fair use clearly applies. Here's just one example, concerning the purpose of the use:

The majority contends: “[i]n one sense, the parties’ purposes are identical: Photographic documentation of the wedding.” However, the majority repeatedly confuses the original subject matter of the photos with the intended use of the images. For the Couple, these were personal images, originally taken to capture the night of their marriage. After they were married, however, the photos were kept secret for the Couple’s commercial gain. As Reynoso testified, the images were withheld from the public solely for “marketing” purposes, in order to maintain Noelia’s “image of being a single singer appeal to young people.” (“Q: Why did you decide to have a secret wedding? A: I just mentioned to you that we’re trying to protect her image of being a single singer to appeal to young people . . . Q: Were there any other reasons? A: No, just marketing reasons.”). For Maya, the photos were used as direct, documentary evidence of a clandestine wedding that had been hidden from the public for years, disproving the Couple’s representations to the contrary.

If you look around, it's not that difficult to find some of the photos in question. Normally I'd post at least one with the story, but given this ruling, I'm at least sufficiently concerned about doing so. I would argue that, rather than the wedding itself, this particular story really is just focused on the photo image, which would make it much more likely to be considered fair use. But, as noted, the judges can be pretty arbitrary on this particular issue...

It's election season, people. You know what that means. It means irritating and/or hysterically innaccurate advertisements. It's the time of year when roughly ninety percent of your social media "friends" become "fully vetted political pundits" to the point where you want to "throw them out of a five story window if only you could reach through your computer and get to them." And, because any creator you might believe in apparently understands that we need a little comic relief at times like this, it's that special time when politicians use tunes at campaign events, resulting in angry musicians (because they're also "fully vetted political pundits" to the point where you want to...well, you get the picture).

The list for this kind of nonsense runs long. There was that time when Heart insisted McCain stop introducing Sarah "Barracuda" Palin with their well-known song. Then there was a magical moment where former-Eagles guitarist Joe Walsh sued Republican Congressional candidate Joe Walsh (...seriously) over the use of one of his songs. Tom Petty went after Michelle Bachman. Survivor's Frankie Sullivan went after Newt Gingrich. Even Hollwood Ronald Reagan got into it with The Boss by hillariously using Born In The U.S.A. as some kind of pro-America rallying cry (when the song's message is the exact opposite).

Which brings us to Mitt Romney, who apparently played Sliversun Pickups' song Panic Switch at a campaign rally (again, hilarious) only to find a cease and desist letter in his mailbox. 

The rock band Silversun Pickups this week served Romney's campaign with a cease-and-desist order after it says Romney's campaign used its song "Panic Switch" at an event earlier this month.

"Seems as if the GOP is once again whimsically ignoring our great nation's laws to do whatever it wants to do, and shooting itself in the foot in the process," band representative Ken Weinstein said in a statement.

Interestingly, as with many of the aforementioned examples, Romney may well have done nothing of the sort. Most of these campaigns have a blanket license to use such music and, while the cease and desist letter reportedly also included a mention of Trademark law, they're likely covered on both ends. The blanket license takes care of copyright, and the fact that I'm fairly certain Mitt Romney is not about to launch a new career venture which in any way involves him performing as a musician should nix the trademark issue. Even if the band disagrees with Mr. Romney's politics, that isn't cause for them to exclude his campaign from using what is covered by the license for which they paid.

For what it's worth, this isn't the first time Romney has had to deal with this kind of thing, either. Both Al Green and K'naan have had recent scuffles over the use of their music. For you young kids out there, Al Green made the music your parents were listening to as you were being conceived. And for you older folks, K'naan, judging solely by his name, is apparently an alien from Rob Reid's Year Zero universe.

In any case, from the band's perspective, given the speciousness of their claims, they probably would have been better served simply voicing not only their disagreement with the Romney campaign's politics, but pointing out the absurdity of using a song with a title that is the very antithesis of a campaign working feverishly to demonstrate that it is in control. What they should not have done is hire an attorney who wrote their cease and desist letter, full of smug educational quips about copyright and trademark law, and that referred to such serious topics as the First Amendment and Fair Use in this manner:

"We anticipate that you, or your general counsel, may respond to this letter with a letter of your own using all those neat lawyerly words like “First Amendment,” “fair use” and “parody.” Please know that none of those buzzwords (or the law they represent) works for you here."

As Public Knowledge rightly points out, these are not buzzwords. They are also not "lawyerly" words. The First Amendment is more of a Constitutionly term and Fair Use and Parody are Case-Law-ly terms. Snide degredation does not a good legal notice make.

On the other hand, perhaps the band's legal team can find respite from those snide remarks in the fact that their cease and desist letter may have been plagiarized from the attorney that wrote his letter for Joe Walsh when he was (I still can't belive this) complaining about Joe Walsh. Lest your sweet little minds think that this is too funny to be real, I give you this quote from Silversun Pickup's lawyer, Tamara Milgros-Butler:

"When I needed to write a cease and desist letter, I did what almost any contract lawyer does many times day and I looked at historic forms," she says. "I simply loved the tone of this language (in the Walsh letter). And geez, I looked back when my boss raised the issue and ran a red-line comparison. While the language isn't precisely the same, I borrowed liberally from Peter's letter."

Asked whether she regrets what she did, Milagros-Butler says "I regret not looking back or thinking more. I regret not thinking more backwards to see if it was our letter or someone else's. If I thought about it more, I would have realized that we didn't represent Joe Walsh."

God bless America (please don't send a C&D letter, Irving Berlin. I totally loved White Christmas. Also, you're dead, so you probably can't hear me.).

“Eagles come in all shapes and sizes, but you will recognize them chiefly by their attitudes.”
– E. F. Schumacher

NON GENERANT AQUILÆ COLUMBAS
– Unknown

For the feds, it’s not enough to simply seize domain names without warning or due process—they want to make sure everyone knows the website operators were breaking the law, even if that has yet to be proven in court. That’s why every domain that gets seized ends up redirecting to one of these dramatic warning pages, replete with the eagle-emblazoned badges of the federal agencies involved. You know the one I mean:

I thought eagles were solitary birds—but apparently they'll flock anywhere the RIAA points. At least that seemed to be the case with the hip-hop blog Dajaz1, which was treated to a year of Promethean pecking while the court waited patiently for the RIAA to fail to produce any evidence.

And that's just one of over 700 websites seized without due process. The first round of seizures, commencing the so-called Operation In Our Sites (which I suggest renaming to Operation Motherfucking Eagles), was announced from Disney headquarters, possibly by a tyrannical Mickey Mouse, but more likely by ICE Director John Morton sporting a dumb grin over the presence of whatever movie stars Disney managed to rustle up for the event. It's Chinatown Hollywood. The only place where eagles and mice get along.

To commemorate the fruits of this alliance, I created the Seized Tee for Techdirt's new Insider Shop. Government regulations prevent us from directly replicating agency badges, but that proved to be a plus, since I think I have drastically improved them in terms of both clarity of purpose and, more importantly, overall eagle-ness, which was clearly a prominent factor in their original design:

Buying the Seized Tee also gets you access to the Techdirt Crystal Ball for one year, two First Word/Last Word credits, and an Insider Badge on your profile and comments. Wear it with pride, and when people ask you about it, be sure to tell them that this kind of government censorship is a real thing that is happening as we speak, and it's a problem that's only going to get worse if it goes unchecked. Eagles do not beget doves.

I honestly had to read this article by Philip Howard at Slate three times to convince myself that it wasn't just a Swiftian Modest Proposal. But Howard's discussion of why it might make sense to "Nationalize Facebook" really does appear to be an honest thought experiment, even if he admits it's unlikely (he's wrong, it's not just unlikely, it's not even a remote possibility).

By “nationalizing Facebook,” I mean public ownership and at least a majority share at first. When nationalizing the company restores the public trust, that controlling interest could be reduced. There are three very good reasons for this drastic step: It could fix the company’s woeful privacy practices, allow the social network to fulfill its true potential for providing social good, and force it to put its valuable data to work on significant social problems.

None of that makes any sense. Think of companies that tend to be government run or owned. How many of them have "public trust"? Right. Second, while many people are uncomfortable with Facebook's view on privacy, it seems like a stretch to call the practices "woeful." The real complaint Howard seems to have here is with privacy laws -- and it seems to be based on an ignorance of what kind of mess it would make to start mandating privacy rules of the nature that he seems to think are important. Next, I don't even know what that part about "social good" means, let alone how it makes even a sliver of sense. That same argument could be used to "nationalize" any company. You know, the laundromat on the corner isn't providing enough social good, so we should nationalize it. Finally, nationalizing a company to force it to provide data to solve "social problems" again makes no sense at all. And, um, who determines what the "social good" is here or which social problems to focus on? Howard? The President?

Everything that he discusses is already handled, and handled much better, by keeping Facebook as a private company. If it loses the public trust (which it hasn't), they'll go elsewhere. If it's not giving off enough social good, users will go elsewhere. If that data can really solve significant social problems, there are plenty of incentives to make Facebook release it. None of these arguments make even a sliver of sense, other than that Howard apparently thinks that Facebook should be working on a few of his pet projects. If the post was designed as satire, then I'll grant that it fooled me, but if it is actually serious, it just seems like pure troll bait.

Hopefully, many of you have been following the legal fight in Russia over the band/collective Pussy Riot, who performed an anti-Putin song inside a key Moscow cathedral. If so, then you know that, today, the band was sentenced to two years in jail. The sentence could have been worse, but just the fact that they're being punished, at all, for expressing their views is troubling enough. The three women have already been in jail since March, while the case moved forward. At the beginning, it was assumed that they would end up with jail sentences, but there had been some hope that the Russian judiciary would recognize the general horror of the rest of the world at the case and perhaps back down. The women are planning to appeal, so this isn't over yet.

Either way, the verdict is unfortunate in many ways. We talk about free speech issues all the time around here, and we recognize that other countries don't always view freedom of speech as being as central or as important as the US does. That said, the whole idea that a band would end up in jail over political speech should be distressing and problematic to anyone with a developed sense of "right" and "wrong." Some will say this isn't surprising, or that this is the way that some countries operate, but that doesn't mean we shouldn't still be offended by the decision on principle.

When I began thinking about writing this post, I wanted to start with the opening line "Remember Avatar?" Then I stopped, shook my head, and figured that such an opening line would be ridiculous. After all, Avatar is the highest worldwide grossing movie of all time. Despite everyone on the planet apparently believing that the movie was based on something they had themselves done, the movie essentially ushered in the era of the 3D movie experience for our generation. I mean, come on, it's Avatar.

But then I thought about it a little longer. When's the last time I heard anyone talk about this groundbreaking movie? Months ago? Years ago? Wait, when did this thing come out? 2009? Is that really correct? Is anyone really thinking about this movie anymore? So, because of all those questions, I give you this:

Remember Avatar? You should, for all the reasons mentioned above, but you may see the movie mentioned again now that Fox will finally release the 3D Collector's Edition Blu-Ray of the film. It's one hell of a release window for the 3D version of the movie. And some, like Gizmodo, are pointing to story of how it happened to explain why people turn to infringment for the entertainment they want.

On April 22, 2010, [Avatar] is released on DVD. It's now August 14, 2012. In what world does it make sense for the movie that basically defibrillated the entire notion of 3D movies to take three damn years to make a wide release on 3D Blu-ray? Ours, apparently.

Here's how we got here: Panasonic got in bed with Avatar early on, promoting the film with 103 trucks with giant 3D TVs on them. That was kind of cool, actually. But then, it turned out you could only buy the 3D Blu-ray with a Panasonic 3D TV. Which turned out to cost, all things considered, about 300 damn dollars for a $30 Blu-ray, no matter how you spun it. Totally dumb, totally anti-consumer.

So, through a complicated series of exclusive contract hoops, Fox essentially set up a monetary obstacle course all the way back in late 2010. If you wanted Avatar in 3D, you had to buy a television at a price that far exceeded any added value from the movie. You know who likes obstacle courses built almost two years ago? Time-travelling hamsters, that's who. Last time I checked, there aren't a great deal of time-travelling hamsters paying for movies.

And neither were the people who wanted the 3D version of Avatar, apparently. Panasonic posted huge losses in the television space. Avatar went on to become the most pirated movie of all time. And the Gizmodo piece points the finger directly at Fox:

All of this matters. Especially right now. Demonoid just went down for the count. The RIAA and MPAA want the US to stomp on the Pirate Bay the same way. And we're just a few months removed from the Supreme Court declining to hear an appeal for a $675,000 fine levied against Joel Tenenbaum for, as a teen, downloading a few dozen songs. The subtext is clear. It's not even subtext—it's super-text. We are the assholes. It's our fault that movies are bad and the music industry can't figure out how to monetize itself. And the copyright gestapo is coming for us. That's the message, the threat, looming over every idiotic decision that pushes us closer to BitTorrent.

And in the meantime, as all of this anti-consumer-ish-ness is being dolled up in a wig and a makeup and called "a business model", fans of Avatar will finally be able to get the movie in 3D in October. Yes, a movie designed to be watched with cardboard skittles goggles on your head wasn't available across the board for three damned years. That isn't a release window. It's a message to the movie's fans:

Fox doesn't give a damn about you.

We are all very much aware that it is an Olympic tradition to make sure that no one enjoys watching the games. The IOC and its sponsors take additional steps to avoid commentary that is not completely controlled by them, even if its own commentary is completely ignorant. With that in mind, it shouldn't come as any surprise to hear that the IOC has taken it upon itself to seek and destroy any viewer sourced commentary that brings laughter and greater exposure to the Olympic games.

This is where one amatuer commentator, Francis Higgins, finds himself. Francis had taken the time to watch the Olympic Radial event and provide a play by play commentary of his own as he tried to make sense of it all. His commentary is pretty funny and introduced me to a sport that I did not know existed. Apparently that is not something that the IOC wants anyone to experience. It has decided to takedown the video in an effort to kill everyone's buzz.

Of course this being the internet where nothing ever disappears, the video has made it back online in various places. You can watch it embedded here.

No one really understands the state of mind behind those sending the takedown. This video is actually bringing in new viewers and interest in an event that doesn't get as much attention as events like Gymnastics, Soccer (Football for those outside the US) and Dressage. But, since it isn't "official" commentary it simply can't be allowed. Or it could just be that the IOC has no sense of humor and felt humiliated and/or offended that someone would have anything but the nicest flattery to say about one of its events. 

Either way, the fact remains that such remixing and satire is a very powerful tool in promoting the original product. Francis's video had received 500,000 views prior to being taken down. That is a lot of people who may have not known about the Radial event. If the IOC really wanted to spread the message of the Olympics and bring in new viewers, this is the type of video that would accomplish that goal. Sadly, I don't see it changing its policies anytime soon.

A few weeks back, Mike wrote a piece about the recently passed America Invents Act. One of the details he noted was that the US Patent system would be switched from a first-to-invent to a first-to-file platform under the notion that this would both bring us in line with how most other nation's patents work and cut down on wasted time required to prove the difficult matter of who was first to invent. As the post noted, this could cause some problems:

First, it encourages inventors to file for lots of patents as early as possible to beat anyone else to the Patent Office, rather than making sure that the invention is actually worth patenting. It also seems to go against the basic principle of the patent system, if it's supposed to reward actual inventors.

Of course, this attitude of focusing on filing first before doing anything else is already permeating many businesses. BusinessWeek has the story of a company called Tactus Technology, who hired patent attorney Jeffrey Schox and managed to make its first priority the filing of twenty patent applications. It did this before getting funding. It did it before even beginning to build a prototype for their invention. And it did it because their attorney is teaching the company to use its patents not as a defense, but as a weapon:

The Schox method revolves around teaching startups to view intellectual property as a weapon. How might a rival get around those patents? What features might they think of? Schox often asks engineers who haven’t even built their first prototype to conceptualize unusual extensions of the technology, so that these ideas can be protected just in case. It’s well worth the trouble. Schox says the going rate for a hot patent now is about $1 million. “Decades ago a machine might have five or 10 patents,” says Schox. “Today, the phone in your pocket has about 5,000. It’s just a much different landscape to think about.”

This is how broad-based patent applications get written. The strategy appears to no longer be to have a great idea and invent it. Instead, the strategy is to have a great idea, patent the ever-living hell out of it, then patent every conceivable other use for anything similar to your idea, then maybe actually build something (note: Tactus is actually building something), but also get your wallet ready for all the licensing money that is going to come your way.

Now, perhaps some will suggest that all of this pre-emptive patenting is the incentive that sparks the work on inventions to begin with, but it certainly can't be what the originators of patent law had in mind. And I think there's a better argument made that all the time spent working with lawyers and filing patents, which the article says, in Tactus' case, took years, is time lost on having a great invention built, marketed, and sold. After all, we might already have experienced the next great innovation if Tactus' invention had been built three years earlier, but instead, the market only gets the fruit of their labor now because of the drawn-out patenting process resulting from a first-to-file mentality. Tactus' owner, Craig Ciesla, even admits as much in the article:

Following Schox's advice, the company avoided looking for new investors even during the lean times out of fear that its ideas would be exposed. “We made a choice to go with the intellectual property,” Ciesla says. “Now that choice is paying off.”

Wonderful for Ciesla, I guess. However, that certainly doesn't sound like a mentality that fosters "promoting the progress." If anything, it sounds like delaying the progress.

I've already noted that I don't understand the fuss over Facebook's facial recognition feature -- but plenty of people (including many of you) completely disagree. And, so do regulators in Germany, apparently. As they've suddenly re-opened their investigation of the feature (jumping on the bandwagon with Ireland and Norway) and told Facebook that it needs to destroy its database of faces collected in Germany, and change the system so that people have to opt-in, rather than opt-out.

Of course, I'm still wondering how this is different than existing tagged images. If my friend Joe "tags" me in an image, then Facebook already has that info. Is it that different if Facebook's system tagged me or if Joe tags me? Should Joe have to first get permission from me to identify me in a photo? That seems like a stretch.