One of the reasons some people in the fashion industry have for desiring copyright on clothing designs is to stop knockoffs from entering the market and "harming" the original designer. We have pointed out before that this is a pointless request as the fashion industry is hugely successful despite the lack of copyright and presence of cheap knockoffs. However, it seems that some companies have decided to go another route to take out cheap competition: design patents.

karm sends word that yoga pants maker Lululemon has decided that it can't compete with cheaper alternatives and so will sue the competition.

"This is a low barrier-to-entry industry. Lululemon, their success, has drawn new competitors throughout the mall," said independent retail analyst Brian Sozzi. "The valuation is so high. It's tough to warm up to a stock when you see so many new competitors."

In the suit filed in federal court in Delaware on August 13, Lululemon accused PVH Corp's Calvin Klein brand and manufacturer G-III Apparel Group Ltd of infringing three patents on the design of its yoga pants. Design patents protect the appearance of goods, in contrast to more common utility patents, which focus on how things work.

If that is not crazy enough, this same company has been able to compete with other big players without going to trial.

The company says it competes with athletic apparel heavyweights such as Nike Inc and Under Armour Inc by offering better quality, and it maintains its enviable margins by taking charge of every stage of the process - from design, to production, to sale.

If Lululemon can compete with those two companies by offering better quality to its customers, why is it not able to do so with Calvin Klein? Well, it makes the claim that some of these new products match their own quality but are far cheaper. Gee. I wonder if maybe there was something other than litigate that Lululemon could be doing that could work to its advantage. Like maybe competing on price. If quality is no longer a defining feature, then price is another good place to compete.

It really is sad when we see a company which feels threatened by the competition resorting to lawsuits rather than competing in the market. We have already seen how ridiculous such lawsuits can get with Apple and Samsung. But I guess that since that came out in favor of design patents, at least for now, we can probably expect to see many more of these kinds of lawsuits in the future.

We've written plenty of times about public interest organization Public Citizen, mainly concerning efforts by its litigation group to protect those who have been sued in bogus lawsuits that would impact the internet's openness. However, every so often Public Citizen itself gets sued. Late last week, it revealed all of the details of a defamation lawsuit filed against it, concerning its letter to the FDA arguing that a certain product -- the LipoTron -- was being illegally marketed and promoted.

One of the organizations mentioned in the letter took exception to the claims in the letter and discussion on the web, and sent a cease-and-desist arguing that the claims were defamatory. In response, Public Citizen sent back a long letter backing up all of its claims (and also noting that they had never named the principal in the company, Mark Durante, so having him claim defamation personally didn't make much sense). This is the point where it makes sense to give up, but Durante's company, Advanced Aesthetic Concepts LP, sued anyway for libel, and asked the court for a temporary restraining order (TRO). When Public Citizen signed up a top local lawyer in Texas, pointed to Texas' new anti-SLAPP law (which would allow them to seek lawyers' fees), and told the lawyer that they were prepared to show up in court to contest the TRO, they were told that the case against them would be dropped.

At the very least, this yet again highlights the value of good anti-SLAPP laws in protecting those who are sued. But, once again we're amazed at how many people seem to think that filing defamation lawsuits in situations like this could possibly bring about a good result. In this case, all it's serving to do is call significantly more attention to the original claims that Public Citizen made in its original letter to the FDA (and then backed up in the legal filings).

Most of us take vision for granted, but about 21.5 million adult Americans have trouble seeing, even with glasses or other vision aids. The leading causes of blindness or low vision in the US are age-related eye diseases, and many of the treatments are in fairly early stages of research and development. It's not easy to replicate the functions of a retina, but here are just a few projects that are working on ways to restore vision with some interesting technologies.

• Retrosense Therapeutics is working on a gene therapy that will allow ganglion cells (instead of rod and cone cells) to respond to light and send visual information to the brain. Patients with retinitis pigmentosa often have plenty of healthy ganglion cells, but they can't see because their natural photoreceptors aren't functioning. This therapy has restored some vision-based behaviors in rodents, and clinical trials could start in 2013. [url]
• Electronic devices to replace natural retinas are being developed by about 20 research groups around the world. The Centre for Ophthalmology, Tuebingen, Germany has transferred some of its research to a company (Retina Implant AG) for clinical testing of a subretinal chip. [url]
• Australian researchers have developed a prototype bionic eye and implanted it in a 54-year-old woman. The Bionics Institute in East Melbourne is studying how her brain reacts to the signals from this implant, and so far, Dianne Ashworth can now see some flashes of light. [url]

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

So the folks over at "Be the Robot" decided to make a cute little robot that could be controlled via your mobile phone. Not surprisingly, they decided to launch the thing on Kickstarter. You might notice that the robot has some resemblance to the Android robot... but it's not quite the same. Why? Well, originally it was going to be designed as the Android robot... but then at the last minute, they realized that might be a legal issue. Even though Google encourages the use of the robot, it wasn't clear if this was allowed. So the team delayed launching the Kickstarter campaign to go visit Google and to seek permission... where hilarity (and no actual answer) ensued:

Just after we had uploaded the complete project on Kickstarter and about to press the “Submit to the world button” …we started to second guess ourselves and wanted to know are we really allowed to do this?

After further investigations, as well as talking to a few lawyer friends, we discovered that the Google Bug Droid in 2D form and in printed materials is in fact Open Source, so anyone can stick it on posters and make cut outs. But there seemed to be a gray area regarding the issue of whether a 3D version is in fact allowed for resale. So instead of killing the project or possibly getting into legal issues, we thought it would be a good idea to meet with some higher-ups at the Google Android headquarters and hear what they had to say. To make a long story short, at this meeting (during which we felt like we were on a reality TV show) the concept was well received, but there was not definitive answer as to “Yay” or “Nay”.

Not wanting to kill the project after having already put so much work into it, and to make sure we could launch without any issues; we redesigned the outside shell to have a different appearance, while maintaining the same internal integrity and design we developed in the BERO secret lair.

So, it's sorta a little like the Android bot, but not quite, because no one could tell them definitively one way or the other if doing what they wanted to do was allowed. Isn't permission culture just great?

As publicity rights become more in vogue these days, we're seeing stories of them being invoked in silly situations. We recently discussed Kim Kardashian suing Old Navy because someone looked like her. And, as if that weren't bizarre enough, this explosion in interest for publicity rights has led to the rather unsettling question of who owns the rights of dead people, like Marilyn Monroe.

Now, to add another ridiculous example, reader Eric Wisti writes in about The Julia Child Foundation for Gastronomy and the Culinary Arts going up against BSH Home Appliances Corp., manufacturers of the Thermador oven line, for noting in marketing material that Child used their ovens on her popular television shows. It's an interesting case in that BSH allegedly used images of Child in their material, but this was again to demonstrate a historical fact.

The Julia Child Foundation for Gastronomy and the Culinary Arts claims BSH Home Appliances Corp. is using Child's name and image without permission. The Irvine, Calif.-based manufacturer says it is simply making a factual reference to Child's use of its appliances.

Child, who died in 2004, had a Thermador oven in her Cambridge kitchen. It's now displayed at the Smithsonian National Museum of American History in Washington. She also used Thermador products on the set of her popular television show, "The French Chef."

The JCFGCA (Holy acronym, Batman!) sent a letter to BSH informing them that they have exclusive rights to Child's "name, image, likeness and celebrity identity" and that the marketing material and images the company put together infringed upon those rights. They are seeking an injuction and the always ambiguous unspecified monetary damages.

The crux of the issue from the foundation appears to be that they think BSH's material implies an endorsement by Child, despite the chef being historically reluctant to endorse products in general. I'm a bit confused as to how acknowledging Child using a product equates to an endorsement of that product. I'm perhaps even more confused as to how someone who has been dead for eight years could suddenly begin endorsing anything at all anyway. It seems to me that the kind of person who would be swayed by an edorsement by Child likely is aware of her current incapacity to endorse... well, anything. The company's filing concurs:

BSH acknowledges that it has used images of Child and references to her use of Thermador products on its website and on social media sites, but its attorneys wrote in the complaint that "those uses do not state or imply any endorsement by Ms. Child."

The company said its references to Child "reflect on the long history, significance and influence of Thermador products on American society and culture, and Ms. Child's documented and well-known use of those products."

The material, it would appear, was used simply to state a historical fact. Using Child's image may fall into more of a grey area, but I would think historical facts are not subject to publicity rights.

On the other hand: won't somebody think of the dead culinary artists!?!?!

Back in May, we were one of the first to write about some people claiming to have figured out a new cut of steak, and trying to patent that cut. The story got a lot of attention in a lot of places, as many people (reasonably) think that patenting a cut of meat seems particularly crazy. The good folks over at Planet Money just recently decided to explore the question of meat cut patents. They talk to Tony Mata, the "inventor" of that new meat cut, dubbed the Las Vegas steak, but the... er... "meat" of the conversation actually involves talking to his mentor, Gene Gagliardi, the "inventor" of the Steak-Umm, KFC's popcorn chicken and, according to this video, Popeyes' "Rip'n Chick'n", which Gagliardi calls "Fing'r Pick'n Chick'n" and for which he holds US Patent 5,346,711 on a "Method of making an animal muscle strip product." In the Planet Money podcast, he also demonstrates some other cuts, which he won't let them videotape. I'm guessing he's okay with showing off the method in the '711 patent because, if I read it right, that patent expires in a month. In the video, he actually appears to admit that the "invention" itself wasn't original. He was "inspired" by the famed "Bloomin' Onion" at Outback Steakhouse, and a challenge from his wife to make a chicken version of the Bloomin' Onion.

Gagliardi appears to hold somewhere around 40 patents on various cuts of meat, all starting from back in the day when he tried to make the meat in Philly Cheesesteaks easier to chew, and supposedly came up with the product that eventually went on to be marketed as "Steak-umms," which were popular when I was a kid. As for "popcorn chicken," well that's US Patent 5,266,064, for a "Method of making a food product from the thigh of a bird and food product made in accordance with the method." And, if I'm reading it correctly, that patent should have expired earlier this year. Assuming that's the case, you may now be able to make your own popcorn chicken without infringing. How exciting.

Of course, for some of us, this still seems ridiculous. Is the progress of the "useful arts" really being promoted by giving a monopoly to someone figuring out new and different ways for fast food joints to chop up their chickens?

Venture capitalist Fred Wilson has a typically insightful post discussing the question of whether or not being "open" conflicts with making money, building off a post by Mathew Ingram about his love/hate relationship with Twitter in which he notes:

Lastly, I hate that Twitter’s metamorphosis seems to reinforce the idea that being an open network — one that allows the easy distribution of content across different platforms, the way that blogging and email networks do –isn’t possible, or at least can’t become a worthwhile business.

Fred is a well known believer in "open" projects and has quite literally put an awful lot of money into a variety of startups that espouse a very open philosophy. So it's not surprising that he disagrees that it's not possible to make money and be open. But his view is nuanced:

I do not think open conflicts with making money and further I think there are ways to make more money by being open rather than closed, but it takes imagination and a well designed relationship between your product/service and the rest of the Internet.

I also think it is better to open up slowly, cautiously, and carefully rather than start out wide open and then close up every time an existential threat appears on the horizon.

He points to Etsy as an example of a company that has become more open over time, and to Twitter as one that started out very open and has had to close up over time (Fred is an early investor in both companies). At the end of his post, Fred tosses in an aside to the "O'Reilly Doctrine" referring to one of Tim O'Reilly's (many) great maxims:

Create more value than you capture

I've actually been thinking about this quite a bit lately, and I think that when you recognize how growing markets tend to work, and the way openness can influence markets, that the O'Reilly Doctrine explains -- in a backdoor way -- why it appears that open platforms are antithetical to making money, when the truth is often quite the opposite. I've been trying to explain this (unsuccessfully) for years, but hopefully I can express it more clearly here.

Economic growth comes from the sharing of ideas (once you get past growth through scarce resource discovery). This is the key realization of a number of economists over the past few decades, most notably, Paul Romer. As we've noted in the past, knowlege is a universal resource that does not diminish and can expand -- unlike scarce resources that are limited. Knowledge and information only expand, and in doing so they often make all of those other scarce resources more valuable. Knowledge and information makes things more efficient and makes things better, thereby increasing economic value and expanding the overall pie. Or, as Romer has said:

Economic growth occurs whenever people take resources and rearrange them in ways that are more valuable. A useful metaphor for production in an economy comes from the kitchen. To create valuable final products, we mix inexpensive ingredients together according to a recipe. The cooking one can do is limited by the supply of ingredients, and most cooking in the economy produces undesirable side effects. If economic growth could be achieved only by doing more and more of the same kind of cooking, we would eventually run out of raw materials and suffer from unacceptable levels of pollution and nuisance. Human history teaches us, however, that economic growth springs from better recipes, not just from more cooking. New recipes generally produce fewer unpleasant side effects and generate more economic value per unit of raw material.

Every generation has perceived the limits to growth that finite resources and undesirable side effects would pose if no new recipes or ideas were discovered. And every generation has underestimated the potential for finding new recipes and ideas. We consistently fail to grasp how many ideas remain to be discovered. The difficulty is the same one we have with compounding. Possibilities do not add up. They multiply.

Possibilities do not add up. They multiply. But take that a step further. One of the ways to increase this kind of growth and to increase this kind of knowledge sharing is to be open and to allow everyone (or larger groups of people) to contribute. And that requires openness. But there's a related caveat to that. When you're open like that and allowing others to contribute, you're also "leaking" some of the benefits as well -- often a very large amount. In economic terms, these are often referred to as positive externalities or spillovers. Basically things that one party does that benefit others widely. I think both terms are slightly misleading in that when most people think about externalities or spillovers, they assume a small bit off the top.

But when it comes to knowledge and information in open systems, it's not that way at all. The vast majority of the benefit is actually going back to the public, because you don't have the walls and the gates to contain it and capture all that value directly. But that doesn't mean there isn't a tremendous amount of value that can be captured by those responsible for creating the open systems. It's just that on a percentage basis, it seems much less. They create these massive and expansive fields of value out of nothing, and only capture a small piece of it -- leaving the rest of those benefits to be enjoyed by the public. But these fields are so big that the businesses themselves can be huge and can make a ton of money (think: Google, Twitter, Craigslist, Kickstarter, etc...).

Yet, in the old, closed way of doing business, the mentality is very much about how much of the value did you capture. They're not concerned about expanding the overall market and just keeping a small part. They're focused on capturing a larger and larger piece of the existing market. It's why, for example, with the entertainment industry, we see them so focused on taking bigger and bigger licensing deals, and making it so businesses like Netflix and Pandora and Hulu have trouble building long term viable businesses -- because the old gatekeepers look at them and say they're benefiting too much from the value we created -- and we need to take our "fair share." The open systems look at the absolute amount of money they're making, and say "wow, by creating so much more value, and just taking our sliver of the proceeds, we're doing great!"

It's a completely different view of the world.

But, from the outside looking in, if you view the two using the same "metrics" as the old, closed systems, the new "open" ones don't appear to make as much money. But it's not that they can't or don't make a lot of money. They do. It's just that they make less as a percentage of the value they create. And while it's the absolute number that really matters, it seems that our brains are sometimes hardwired to focus on the relative value capture.

Open systems can and do make lots and lots of money. As Fred notes, it requires a lot more thought and planning in terms of figuring out where and how (and often it requires a much closer relationship between products/services and users). But often, looking at the wider market, it feels like those businesses must be leaving more money on the table because they capture a relatively smaller portion of those markets, even if the dollar amounts may be bigger in real terms.

In the simplest of traditional terms: it's better to capture a small slice of a massive pie then a large slice of a small (and shrinking) pie. And being open is how you grow the pie -- not incrementally or linearly, but exponentially.

Last week we wrote about weaknesses in the Republican's platform on internet freedom, noting that the MPAA's endorsement of it showed that it wasn't recognizing the importance of fixing copyright law, rather than expanding it. And, of course, we've now been pointing out significant issues with the Democrat's platform as well. Once again, on internet and innovation issues it falls down completely when it comes to copyright and patent issues.

Tim Lee has a perceptive piece (as per usual) noting that both party platforms appear to be in denial about the need for copyright and patent reform. He also mocks how both talk about "vigorous" enforcement of certain laws when they relate to the internet (porn for the Rs and copyright for the Ds).

But the reality is that neither party is willing to take a really principled stand on the need to reform copyright and patent laws in the name of freedom and innovation. That's not surprising, really. Doing so in either party would upset some of the "old guard" who tend to donate a lot of money to political campaigns. But, from the viewpoint of what really matters when it comes to internet freedom and innovation, it's yet another sign that the major parties don't want to deal with reality.

In the UK there is currently a campaign and associated petition from the organization "Safety Net: Protecting Innocence Online", which calls for mandatory Net filtering of pornography -- people would need to opt out of the system if they wanted to view this material. The justification -- of course -- is the usual "won't someone think of the children?" Here's the pitch:

Every day children and young people are accessing mainstream pornography on the internet, including the most hardcore, violent and abusive images. Evidence clearly shows pornography has a detrimental impact on children and young people including premature sexualisation, negative body image and unhealthy notions about relationships. This cannot be allowed to continue.

Nick Pickles from Big Brother Watch looked into what that "evidence" might be, and found something rather interesting:

One of the key statistics relied upon by the campaign is that "1 in 3 10 year olds have seen pornography online". They do recognise it was published in Psychologies Magazine in 2010, but the appearance is given that this is a serious statistic. It’s also used in their 'Key Facts' briefing.

When you dig a little deeper however, that definitely isn't the case. The full section in the magazine reads:

"We've had plenty of letters from concerned readers on this very topic, and when we decided to canvass the views of 14- to 16-year-olds at a north London secondary school, the results took us by surprise.

Almost one-third first looked at sexual images online when they were aged 10 or younger."

So, the statistic -- […] at the heart of the petition's press release -- is based on one magazine's anecdotal research at a single school.

Actually, it's even more ridiculous than that. That "statistic" states "[a]lmost one-third first looked at sexual images online when they were aged 10 or younger." But as is well known, UK newspaper titles like Rupert Murdoch's "The Sun" carry "sexual images" -- pictures of topless women -- every day. Given the large circulation of the those titles, it's far more likely that children will have seen "sexual images" there, rather than online, and that their attitudes to women will have been harmed more by this kind of relentless objectification than by isolated images they come across on the Internet. And yet strangely no one is calling for Rupert Murdoch's newspapers to be censored.

It's a classic demonization of the Internet that ignores the broader context, and is based on the flimsiest of pretexts. Worryingly, the UK government is sending out clear signals that it supports this campaign regardless. It's currently conducting a consultation on "Parental Internet controls", which closes on September 6. It's extremely poorly worded and clearly biased in favour of the idea of making blanket censorship the default.

If such Net blocks are brought in, legitimate sites will inevitably be blocked by mistake, but it's not so clear that the objectives of protecting children will be achieved. With blocks in place, parents may be lulled into a false sense of security, and so fail to supervise their children's online activities adequately, which will leave the latter exposed to greater not lesser risks. Meanwhile, young people will find ways to circumvent the blocks -- or just buy a copy of "The Sun".

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Wells Fargo, of course, was one of a bunch of the big banks heavily involved in questionable activities that brought the world to the precarious economic conditions we're still living in today. Just a few weeks ago, the company settled charges that it had misled cities and non-profits when selling them risky securities without disclosing the risks. The company gets a slap on the wrist -- without having to admit guilt -- and one executive (again without admitting guilt) gets a six month suspension. Have you heard about any top execs at any of the banks getting fired for financial malfeasance? No? Well, perhaps it's because they're focusing on the real trouble makers. Like Richard Eggers. 49 years ago, Eggers, as a teenager, tried to stick a cardboard cutout of a dime into a washing machine. He didn't get away with it at the time, and was arrested for fraud. He somehow put his life back together and, until recently, was a phone customer service agent for Wells Fargo.

And now he's really paying the piper: Wells Fargo has just fired him for the decades-old incident that, again, involved a dime. Even accounting for inflation, we're talking about a dime. However, thanks to supposedly "tough" new regulations concerning financial institutions, barring them from employing execs convicted of fraud, Wells Fargo is claiming that it had to fire Eggers.

“We don’t have discretion to grant exceptions in situations like this. Once we find out someone has a criminal history of dishonesty or breach of trust we can no longer employ them.”

Eggers has responded by filing a civil rights complaint against the company and federal regulators. He and his lawyers are hoping to turn it into a class action lawsuit, as apparently a number of other employees at banks have lost their jobs under these rules. Actual execs responsible for the financial crisis? Not so much.

This is yet another case where laws like this must "sound good at the time" to the policy makers putting them together without any sense of who it will really impact. And the end result is that we sure are making Mr. Eggers "pay" for that dime stunt in 1963, huh?

Rick Falkvinge has a post up on his website highlighting how copyright is antithetical to the free market. We've pointed this out many times in the past, though for reasons I don't fully understand, some people still don't quite get it. Copyright is a government-granted monopoly privilege. In a true free market, you don't have monopolies (and you certainly don't have government's granting them). This doesn't necessarily mean that copyright is bad. It's just that it's clearly not a free market concept. It is, at best, a mercantilist concept of protectionism for the holder. Falkvinge digs in on this idea further, noting that copyright is, in many ways, also antithetical to the concept of personal property in that it seeks to limit what people can do with things they own:

When somebody buys something, no matter what, they own it. They have the right to do pretty much anything with it, they have the right to perform work on the object they have bought. Such work includes duplicating the object that you own; on a fair and free market, such duplication work is an offering like any other that competes with other people performing a duplication of the object in question.

In culture sharing, people perform this work for free for one another – duplicate files for one another – as a good social deed, just like helping anybody else out with your own time is a good deed. (The copyright industry tries to vilify this activity as somehow being immoral and unfair, which completely misses the positive social mechanisms of good people helping friends and strangers alike, and only makes the copyright industry appear absurd, anachronistic, and downright evil.)

He also notes where much of the confusion comes in -- which is that the legacy players "deliberately" confuse "the goods that they offer for sale with the service of duplication, which is a completely different kind of offering." And that leads to problems -- because the "markup" that the legacy players are trying to charge on the services of distribution are astronomical:

The competition in the copyright monopoly and culture-sharing field is about who executes the “copy file” command the most cost-efficiently. That is largely a pointless debate, as the cost of executing a “copy file” command is trillionths of a cent – nobody would buy it from anybody, as everybody can do it themselves. Claiming a legal right to charge a premium of a gazillion percent over and above the real cost of this service is absurd and macroeconomically counterproductive.

And what we're left with is a world that is not, in any way, a free or fair market, but one where there are inefficiencies due to government-granted monopolies.

In a fair and free market, competitiveness rules, and nobody has a monopoly – such as the copyright monopoly – on doing a particular kind of work, like duplication of a specific object. If somebody else can duplicate your original at a lower cost than yourself, then you weren’t able to compete and you’ll find yourself out of business. That’s called marginal cost – that competition takes place on the additional cost of every product once the investments are made, on the cost of duplicating an original – and that’s how the market works for all products in fair and free markets. It’s actually Economics 101.

So if we're going to argue over whether or not today's copyright system (or any copyright system) makes sense, it's important to recognize these basic facts. You can argue that copyright is good and necessary, but you can't argue that it fits into a free market system, because it doesn't.

For years, we've pointed out that neither major political party in the US seems to be very good on the issues that concern us most around here -- which is truly disappointing. With the Democratic National Convention going on this week, some are pointing out what a difference four years make. Back when President Obama was the outsider running for office, he made reversing Bush-era attacks on civil liberties a target for change in his platform. And then he won. Not only did he leave in place most of the programs against civil liberties, but he often expanded them. So here we are, after four years in power, and with the new platform out, some are noting that the strong defenses of civil liberties found four years ago are conspicuously absent this time around. Adam Sewer goes through this year's platform and the one from four years ago and points out all of the differences. Here's just one example, but click through to read them all:

Warrantless Surveillance/PATRIOT Act

2008: "We support constitutional protections and judicial oversight on any surveillance program involving Americans. We will review the current Administration's warrantless wiretapping program. We reject illegal wiretapping of American citizens, wherever they live. We reject the use of national security letters to spy on citizens who are not suspected of a crime. We reject the tracking of citizens who do nothing more than protest a misguided war...We will revisit the Patriot Act and overturn unconstitutional executive decisions issued during the past eight years."

2012: The platform is silent on this issue.

This is not surprising, but it's depressing just the same. Once they're in power, people tend to want to keep power, and one way to do that is to suppress the civil liberties of the public. Wouldn't it be nice if we actually elected a principled politician? Do they even exist any more?

The BitTorrent protocol is an extremely efficient way of moving files around the Internet, especially big ones. That makes it highly popular with those seeking to download unauthorized copies of music and films, for example. But the clever approach that enables BitTorrent to do that, which involves downloading fragments of a file from a shifting swarm of fellow peers holding some or all of it, is also a weakness from these users' point of view: it means that downloads take place in public, rather than as a private transaction from a client to a server (as with cyber lockers.)

Fascinating new research entitled "The Unbearable Lightness of Monitoring: Direct Monitoring in BitTorrent" (pdf), from researchers at the University of Birmingham, explores just how public. It seeks to quantify how many peers in a swarm are actually being run by companies monitoring unauthorized downloads, and how long it takes for them to detect such activity:

From our experiments, we derived a number of interesting properties of monitoring, as it is currently performed: e.g., that monitoring is prevalent for popular content (i.e., the most popular torrents on The Pirate Bay) but absent for less popular content, and that peers sharing popular content are likely to be monitored within three hours of joining a swarm.

Many BitTorrent users are aware that such monitoring is going on, and try to avoid detection by using some kind of blocklist designed to catch peers being run by companies offering digital forensics. But if the current research is accurate, those lists have big gaps: of the peers the researchers identified as likely to be run by monitoring companies, only 69% were found on the blocklists they checked. In other words, there was nearly a one in three chance that they would not be blocked, and would therefore be able to monitor unauthorized downloads. Despite this, one of the study's authors, Tom Chothia, told New Scientist that file sharers needn't be worried too much by the revelation they are being monitored -- at least, not yet:

"All the monitors connected to file sharers believed to be sharing illegal content. However, they did not actually collect any of the files being shared. So it is questionable whether the observed evidence of file-sharing would stand up in court."

More cautious users of BitTorrent may find other ways to avoid detection, using VPNs or proxies. But as Tim Lee points out, the main effect of this new analysis will probably just be an escalation of the long-standing arms race between file-sharers and copyright enforcers:

Users will presumably take advantage of the new monitor-detection techniques identified by Chothia et al to produce more accurate blocklists. Monitoring firms may respond by tweaking their monitoring clients to behave more like real clients, and by more frequently changing the subnets they use for monitoring.

And so the game of cat-and-mouse will continue.

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Here we go again. Less than 24 hours ago, content-protection bots killed a livestream of the Hugo Awards, thanks to the brief appearance of fully approved clips from an episode of Dr. Who. The whole situation was completely absurd to anyone harboring the tiniest vestige of common sense, but IP-protection software isn't built on common sense: it's built on algorithms.

This time, content protection via crawling bots have taken down another approved, perfectly legal stream. The victim this time? The Democratic National Convention's official stream, hosted at YouTube. As Wired reports, if you're looking to catch up on last night's activities, including a speech by Michelle Obama, don't bother:

The video, posted by the official YouTube account for the convention, DemConvention2012, was blocked, according to YouTube, for ostensibly infringing on the copyright of one of many possible suspects:

This video contains content from WMG, SME, Associated Press (AP), UMG, Dow Jones, New York Times Digital, The Harry Fox Agency, Inc. (HFA), Warner Chappell, UMPG Publishing and EMI Music Publishing, one or more of whom have blocked it in your country on copyright grounds.
Sorry about that.

When contacted by Wired for comment, Erica Sackin, an Obama campaign staffer who works on digital outreach, had no knowledge of the outage, asked this reporter for the url and then upon seeing the takedown, said, "I'll have to call you back."

The video has since been updated to state that "This video is private." There's probably quite a bit going on behind the scenes at the moment, but fortunately Wired snagged the complete list of claimants for future reference. Take a good, long look at that list. There's a few of the usual suspects in there, including AP, UMG and Warner, entities not known to be shy about claiming content that isn't theirs.

Now, these entities aren't directly responsible for this takedown. This is more of an automated match situation, but it still doesn't change the fact that the inherent stupidity of the action, automated or not, does absolutely nothing to lock down stray, unmonetized content and absolutely everything to highlight the ridiculous nature of copyright protection in a digital age.

If Google can work with copyright holders to produce content matching software, it seems like it might be possible to designate certain accounts or entities as "off limits" from the wandering killbots. If the stream is authorized by, I don't know, the party of the current President of the United States, maybe, just fucking maybe, everything's "above board."

Sure, defining legitimate, pre-approved accounts may prove to be as difficult as determining which content is infringing and which isn't, but this should be the sort of thing that content holders should be working toward, rather than simply moving from disaster to disaster, smugly secure in the knowledge that filthy file sharers are getting content-blocked thousands of times a day.

Nice going, huge list of content holders. Your boundless, maximalist enthusiasm is just another nail in the coffin containing what's left of copyright's reputation.