There's a lot of discussion here at Techdirt about filesharing. Much of the discussion focuses on various legacy industries and their efforts to fight infringement, as well as their continued cultivation of artificial scarcity, which often sends potential customers towards unapproved sources. Various artists have also weighed in on the matter, offering their perspective as those most directly affected by filesharing. Some embrace it. Others view it as a threat to their chosen professions. No matter which side they take, it's largely viewed as inevitable or inescapable. But inevitable or not, the discussion continues.

In the interest of furthering the discussion, I'd like to draw your attention to three separate posts on the subject of filesharing, each one written by an artist with "skin in the game," as they say.

The first post is very timely, considering the recent rumor that Bruce Willis was taking Apple to court to secure his ability to pass his iTunes library on to his next-of-kin. Dessa, a rapper and member of the Doomtree Collective, draws a parallel between Monsanto and Apple and their sale of licenses rather than goods in order to better "secure" easily duplicated items and prevent sharing. Dessa also makes a further connection (filesharing to seed-sharing collectives), showing that these restrictive licenses fly in the face of normal human behavior.

Peddling a product that consumers can duplicate for free is a tricky business. With affordable consumer technology, you can now copy a song a hundred times, with no degradation in the sound quality—and most people seem to immediately recognize why that’s gonna make it harder to get paid for songs. But my first experiences with lossless, duplicable technology didn’t have anything to do with my career as a rapper. My first encounter wasn’t with a torrent site. Or a bootlegged disc. It was a tomato.

Seeds, quite obviously, are the mechanism of plant duplication. You drop a sunflower seed in wet dirt and, bang, you get a brand new one. Essentially, you just 'burned’ a sunflower. The seeds of this new plant can then be harvested and planted to create an infinite, almost lossless supply of flowers and seeds.

The connection continues. Monsanto sells licenses for the technology in the seed, not the seed itself, explicitly forbidding the resale or transfer of its seeds to unlicensed "users." iTunes does the same. Purchasers are forbidden from doing anything with their library other than what is explicitly allowed by the EULA. The right of first sale is stripped away because the purchasers have nothing to sell. They own nothing.

In addition, she points out that users agree to stipulations they'd never agree to with physical goods (as opposed to licenses), like being monitored (Apple says "technologies" will be used to verify compliance with the license terms; Monsanto's verification method is even more Big Brother-ish -- "aerial photography").

These rules and regulations can undermine our fundamental ideas of what it means to actually own something. In most of our purchasing lives, we pay for product and then we can do with it as we like... So If I’m only allowed to interact with my purchase in meticulously prescribed ways...it starts to feel less like mine. Like a pet I'm not allowed to touch or see.

Losslessly reproducible technologies are just complicated things to own... In many ways, the whole ownership model just seems poorly suited to duplicable technology... When we try to force new technology into the old model, our contracts end up sounding really, well, creepy. Instead of asking, Whose is this, who gets paid for it, and how much?, the conversation might be better reset by asking What is this, who made it, who uses it, and what’s fair?

The second post features the writing of recording artist and netlabel co-founder Bunny Intonamorous (presumably not his real name). His post goes long, spurred on by a statement made by a different set of artists, a pair that create likenesses of recording artists using the artists' own CDs.

Mirco Pagano and Moreno de Turco were quoted in the article as saying that "Piracy infects and destroys music, preventing artists to succeed and become idols as in the past."

My fury is two-fold: piracy of music prevents no-one from succeeding let alone infecting and destroying music, and also this (frankly outdated) notion that to be successful in music you have to be some kind of mega-stadium-level superstar money-machine.

There's a lot in Bunny's post (which runs a few thousand very entertaining and informative words) discussing what's wrong with these assumptions. While piracy has affected some artists ability to sell music, for the most part, that wasn't where they were making the most money anyway. Touring is where the money was and still is for many (though not all) artists. Piracy can't touch that.

The other positive aspect of piracy is that it has changed the music landscape from an industry that sold artists (and their art) to consumers, presenting the artists as "idols" and "icons," to something more democratic, more varied, and perhaps most importantly, more personal:

For better or worse (read: better) piracy is here and it's changed things. These days an artist has to have a presence over data-rich streaming sites such as soundcloud and bandcamp if they accurately want to gauge the size of their audience and tour efficiently enough to get money out of it and start building a reputation. And even then, it's risky, but it negates the main problems with piracy and money can, and will, still be made. I certainly wouldn't say that piracy is killing music. In fact, it's making a lot more music more widely available, which increases the amount of different breeding grounds there are, technically (though not necessarily) increasing the amount of interesting acts and artists out there.

In fact piracy of music software has broken down boundaries even further. Not only can people hear and experience a wider range of inspirational existing music, but now musical creation has become more widely available.

Just as there are those whose musical stasis prompts them to ask questions about who the next "Dylan" or "Led Zeppelin" or "Beatles" will be, there are those who wonder how today's severely fractured market and wealth of distractions will ever produce another 25-million-album seller like Michael Jackson (or even $35K a year). Those that blame this lack of multimillionaire chart dominators solely on piracy, rather than on underlying cultural shifts, economic woes, a multitude of new distractions and other disruptions are merely settling for a convenient whipping boy, rather than actually working on fixing their problems.

And this is one of many reasons I really appreciate how piracy has changed the face of musical culture (along with the internet in general, of course): it has forced musicians to stop the whole rock 'n' roll, "untouchable", get-the-fuck-away-from-me attitude that beleaguered "legends" for some time, and encouraged artists to interact with their fans. This not only creates entirely new platforms for interaction other than just through audio, but has also de-fangs and de-mystifies these people, which then decreases the amount of "artist anxiety" someone faces when looking to create.

Yearning for idols and blaming piracy for today's "weak" music market is nothing more than rose-tinted nostalgia rewriting the history of the recording industry, turning it from an exploitative commercial venture into the deflowered victim of millions of basement dwellers. Those who rail against the "level playing field" are constantly working to conform this disruption to fit their favored narrative.

My biggest gripe with the whole "legends" argument, however, is that there needs to be some form of monopoly on 1) record sales, and 2) the public consciousness in terms of music. The second point, I fear, is the impulse of monoculture - that same impulse that abhorred subcultures in times past (which is slowly also being eroded, thankfully - be who you want! choose your friends! etc. - another wondrous example of what technology can bring you). Either way the suggestion is that, the way musical culture has been headed for the past few years is utterly wrong.

Granted, musical culture and money are in a strange state of flux at the moment, but the trends have been leaning towards a more aware, more (arguably) moral state of business: that you pay for what you enjoy so that these musicians - who generally tend to be very thankful - get if not all the cash you gave them, then at least a fairly sizeable chunk.

There's a thought: Support your favorite artists directly, rather than hoping a small portion of your $14.99 makes its way to them after passing through an entire office full of unrelated staff and a multi-level supply chain.

The final stop on this filesharing three-fer is over at Feral Intensity, home of self-published author Gayla Drummond. If you're not familiar with her, all you need to know is this: she is one of the few authors who came to the defense of LendInk during the Twitter-fed witch hunt.

Drummond begins her filesharing saga by describing herself as someone who originally felt piracy was "bad," but unlike others, she didn't just make the assumption and move on :

I researched to discover what the major reasons for piracy were, and came up with three: availability, DRM, and price.

Her reaction?

As a result, I distributed my work to as many sites as possible, made it DRM free where I was able to, and experimented with pricing to find what people were willing to pay for it. I stated more than once that I was totally okay with people loaning my ebooks to others (before lending systems on Amazon, etc), but did ask that they please not put my work on file sharing sites.

This is a refreshing change of pace from so many other stories that begin and end with "there's no excuse for piracy" and result in the ratcheting up of various piracy countermeasures until they reach the "draconian" level. However, the story continues:

Then someone did. Tria’s Tale ended up on one in January 2011.

My reaction was something along the lines of ‘Jeeze, the one thing I ask people not to do!’ and then it was ‘Oh, well’. Except when I checked the file sharing site, I discovered they required people to pay a membership fee in order to download anything. That got my back up; the site was making money from offering access to my, and others’, content. They weren’t selling the actual files themselves, just access to them. That was not okay with me. I sent a DMCA notice and within 72 hours, the site removed the link to Tria’s Tale.

So far, par for the course. Sharing is one thing, piracy is quite another, etc. DMCA served and content removed. Except... this isn't the end of Drummond's brush with piracy. First, she noticed this:

I can’t say whether it’s related or not, since I actually just realized it last night, but my sales doubled in 2011. That link was only up for 10 days at the most, but for all I know, it was related to the sales increase.

Anecdotal. Correlation and causation, etc. It would be easy to dismiss this as a coincidence, but rather than just wave it away, Drummond decided to pursue this angle. Discouraged by a lack of feedback and the grind of self-publishing and self-promotion, she decided to turn over her books to the dark side. Her thought process was basically: why kill myself handling all the promotional work when so many others are willing to do it for me?

When everything you’re doing isn’t producing the desired results, it’s time to try something different.

That is why I’ve become a ‘self-pirate’.

I want readers. Readers who will enjoy my work and let me know in some fashion. So when Ashen made his suggestion to me after the Lendink mess, I said YES.

While he was busy doing the heavy work of file prep and ‘seeding’ (the FSM bless him for putting up with my stupid questions and general cluelessness!), Google alerts notified me that The Contract Bride was mentioned on a certain forum. I always check out my Google alerts, and went for a look.

Lo and behold, file sharing links to it had been posted.

For just a second, I was all petulant about it: ‘That’s not one of the titles I picked out!’, but I got over that and ran with it because someone thought it good enough to recommend to others, AND THAT IS WHAT I WANT! Joined the forum to leave a comment with a link to a newly created page on my author site.

The next day, I had 3 new sales on Amazon and had received a donation from someone from that forum. That is the most action I’ve seen in a single day in regards to my ebooks since March, people.

It has been said that filesharers purchase more music, ebooks, etc. than non-filesharers. The argument goes back and forth on this, but one thing's for sure: pirates know how to get your work in front of thousands of people you'd never reach otherwise.

Don’t get me wrong, I by no means think doing this is going to catapult me into fame and fortune. But file sharing is widespread, and may possibly be the most effective, least time consuming method of getting my work in front of eyeballs.

It’s not any different than offering freebies through Amazon’s Select program or other sites when you decide to put your own work out there, and it’s certainly not going to have anymore negative of an effect than doing that. It’s a different platform with content hungry people.

It's not exactly advertising but it's certainly better than locking your creative efforts up behind DRM or endless legal threats. And if you feel piracy is unstoppable/inevitable (no matter which side you come down on "morally"), why not start seeding your own stuff? If you think you can't stop someone else from doing it, get a step ahead of them and become your own worst enemy/best friend. Let the system work for you.

Drummond's put her money where her mouth is:

Wanna pirate some of my ebooks? Go here.

As she points out, the Harry Potter books were being passed around on the internet long before official ebook versions were (finally) made available and yet, millions of copies were sold.

Filesharing will continue to be villainized by certain industries and members of various creative fields, many of whom would rather find someone to blame than actually deal with massive disruption. But to see only the negative is to miss out on a lot of the positive effects while also scapegoating potential fans.

I've written before about robots when someone imagines them rising to the level of cognition. Usually these stories are filled with luddite fear of the coming robot apocalypse. This time, however, let's take a quick trip down a robotic philosophical rabbit hole.

Computerworld has a story questioning whether or not the robots that will be increasingly life-like and ubiquitous in our lives will attain the kind of rights we afford animals.

Imagine that Apple will develop a walking, smiling and talking version of your iPhone. It has arms and legs. Its eye cameras recognize you. It will drive your car (and engage in Bullitt-like races with Google’s driverless car), do your grocery shopping, fix dinner and discuss the day’s news.

But will Apple or a proxy group acting on behalf of the robot industry go further? Much further. Will it argue that these cognitive or social robots deserve rights of their own not unlike the protections extended to pets?

If you're like me, your gut reaction may have been something along the lines of: of course not, idiot. But the article actually raised some interesting questions, based on a paper by MIT researcher Kate Darling.

The Kantian philosophical argument for preventing cruelty to animals is that our actions towards non-humans reflect our morality — if we treat animals in inhumane ways, we become inhumane persons. This logically extends to the treatment of robotic companions. Granting them protection may encourage us and our children to behave in a way that we generally regard as morally correct, or at least in a way that makes our cohabitation more agreeable or efficient.

Now, this, to me, makes a bit of sense save for one detail. Yes, our values are reflected in the way we treat some animals, but there seems to be a vast difference between organic life and cognitive devices. Robots, afterall, are not life, or at least not organic life. They are simulations of life. This is, of course, where the rabbit hole begins to deepen as we have to confront some tough philosophical questions. How do you define life? If at some level we're all just different forms of energy, is the capacity to think and reason enough to warrant protection from harm? Can a robot be a friend, in the traditional sense of the word?

But, putting aside those questions for a moment and assuming robots do attain some form of rights and protection in the future, this little tidbit from the article made me raise my eyebrows.

Apple will patent every little nuance the robot is capable of. We know this from its patent lawsuits. If the robot has eyebrows, Apple may file a patent claiming rights to “a robotic device that can raise an eyebrow as a method for expressing skepticism.”

Here's where we may find commonality with our metallic brethren. With the expanded allowance for patenting genes, it becomes all the more likely that the same codes that manufacture our humanity could indeed be patented in the way that a robots manufactured "humanity" would be. If robotics progresses to produce something along the lines of EDI, the very things that make her "human" enough to be worthy of rights will be locked up in an increasingly complicated patent system. And, with our courts falling on the side of gene patents for humans, we've virtually ensured that all of that robotic humanity will indeed be patentable.

On the other hand, what happens if future courts rule that human genes cannot be patented? And then what happens if we do indeed define some kind of rights structure for our robotic "friends"? Do those rights open up the possibility that robotic "genes" should not then be patented?

We keep seeing various DMCA takedown failures, and the folks over at TorrentFreak have discovered another common error while going through Google's Copyright Transparency Report and found that big copyright holders are still filing DMCA takedown notices on content hosted on sites like Megaupload and BTJunkie, despite the former being shut down in January and the latter shutting itself down in February.

If you look, you can see a bunch of takedown requests for Megaupload links in the past month. Some of these are by smaller players, whom you might expect to be confused, but there are some big guys as well. In the screenshot above you can see both BPI and the IFPI (on behalf of Sony Music). There are also DMCA requests from Universal Music, EMI, the Publishers Association and others. All for content that clearly doesn't exist and hasn't existed in months. Kinda makes you wonder if they even check this stuff. Considering that all of these copyright holders seem to think that Google and others can just magically "know" when there's infringing content around, it's pretty telling that even they don't seem to know how to tell if content exists, let alone if it's infringing.

Cupcakes were really trendy for a while, but they've probably jumped the shark by now. Still, who doesn't enjoy a good cupcake every now and then? Here are just a few examples of some interesting twists on the traditional cupcake -- that include a few more animal parts than you might expect (or want).

• Cupcakewurst is actually somewhat meatless -- it's a sausage casing filled with cupcake batter. This dessert is baked, and then *grilled* a little before serving to provide a sweet ending to a meaty meal. [url]
• The Meatloaf Bakery in Chicago has created a burger cupcake with a cheesy mashed potato frosting. "That'd be a really good dessert for your kid's surprise party, if you didn't like your kid." [url]
• If you live in the DC area, you can get a BBQ pulled pork cupcake for about $9 as a bar snack at the Bourbon Steak Lounge. It's a cheddar-flavored biscuit in the shape of a cupcake, filled with pork... yum. [url]

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

It is no secret that many people in the Big Six publishing houses do not understand or do not care for the lending of ebooks. This has made the shift from physical to digital very difficult for libraries. Libraries have been a staple of many communities and those people's ability to have access to new books to read. Now that many readers are going digital, libraries are finding it harder and harder to keep up with demand, primarily because of publishers holding out.

Over at Joe Konrath's blog, we learn of the plight of one such library system in Houston, Texas. Mike and Linda, librarians from the Harris County Public Library, explain to Joe that trying to work with the publishing industry can be a big headache for libraries.

Libraries are not able to purchase all of the eBooks we would like to purchase due to publisher and author concerns about copyright protection in the digital format. Only two of the big six publishers will sell eBooks to libraries, and those pricing models either limit us to a low number of checkouts or charge us more than twice the retail price for a book. Very few picture books are available for us to purchase, even though small children are a large part of our customer base and we often use digital books in storytimes. With adult fiction titles, we can't always offer complete series because of format availability or publisher restrictions. Some publishers would even like to implement a plan that would force people to come to the library to check out eBooks, rather than being able to do it online, which kind of defeats the purpose.

Right off the bat, with only two of six publishers willing to sell ebooks to libraries, we have a big problem. Unfortunately for the libraries, buying and lending ebooks is nothing like the physical world in which a library could just pop over to Walmart or get on Amazon and order a couple copies of the latest hit. With ebooks, they have to deal with licensing issues and other restrictions from publishers that would block any such ability in the digital realm.

Second, there is the lack of availability of ebooks in a variety of formats. If a person comes in without a supported ereader, then that person is left unserved by the library, something that most librarians do not like. What is worse is that person who wanted to read a book had to walk away empty handed, thus limiting the exposure of the book and author to a potential new fan. 

All these problems and more limit the ability of libraries to spread the love of books, which also limits the ability for authors to gain the needed exposure and resulting sales.

So what does the library have to offer? Book borrowing habits are changing, mainly because of eBooks. People are more open to impulse browsing and discovery of new authors and titles and the library provides the collection and staff to aid them in this discovery. Once they’ve discovered a new favorite, the quest for reading gratification leads to backlist purchases. (We speak from personal experience on this.)

This ability to try a new author or series without having to spend money is something that we have supported many times. It is one way to battle obscurity as a creator. Without the ability for readers to try out a new author for free, that author may lose out on potential sales. Libraries are important tools in gaining that exposure and publishers are blocking them from doing their job. So what is a library to do? In this case, skip the publisher and go straight to the author.

Public libraries have always selected print books based on professional reviews and public demand. This doesn’t always work with eBooks. With eBooks, we have to focus on availability and public interest. We are also rethinking our relationship with self-publishing. Many libraries, such as ours, are now looking for ways to purchase eBooks directly from authors and independent publishers.

This is the way to go. We have learned over the years that it is the gatekeepers that tend to be the roadblock toward better exposure and better terms for readers and authors alike. By skipping the Big Six and any other publisher that does not want to allow lending on fair terms, these libraries can expand their collections and better serve the public.

In response to this change in plan from this library, Joe Konrath has decided on some very favorable terms for his books, which he hopes other authors adopt as well.

Blake and I are willing to sell our entire ebook catalog to the Harris County Public Library, and to any other libraries that are interested, under these terms:

1. Ebooks are $3.99

2. No DRM.

3. The library only needs to buy one ebook of a title, and then they can make as many copies as they need for all of their patrons and all of their branches.

4. The library owns the rights to use that ebook forever.

5. The library can use it an any format they need; mobi, epub, pdf, lit, etc. And when new formats arise, they're free to convert it to the new format.

In short, the library buys one copy, and never has to buy it again.

Why is he willing to make such favorable terms? Wouldn't doing so cut into his potential sales? Not in the slightest.

No I'm not. They bought a copy. They can do what they want with it. And my hope is because I don't have restrictions, and keep my costs low, the library will continue to buy my new ebooks as I release them. There are a lot of libraries in the US, and a lot more globally. If I sell every library one of my ebooks for $3.99, that's a nice amount of money.

One could certainly make a nice amount selling just to libraries. Add to that the additional sales as you would gain from exposure with new fans and you could make a nice living. All because an author embraces the advertising power of libraries.

This consensus between these librarians and Joe shows that there is little reason for publisher to continue their unfavorable attitude toward libraries. Libraries have never been a threat to publishing prior to the adoption of ereaders, there is no reason to think they will be now. If publishers are willing to embrace the lending culture that has been around for hundreds of years, they could have a far easier and more successful transition to the digital age.

For years, we've talked about how the Justice Department has massively abused the "National Security Letters" (NSLs) process that lets it seek information from third parties without judicial oversight. At least with FBI NSLs, the FBI is required to release some (though not all) info on how they're used, which is why we have some indication of how widely they're abused. However, as Dave Kravets recently detailed in a fantastic article at Wired.com, the use of "administrative subpoenas" (NSLs are a form of administrative subpoena) allowing government officials to issue mandatory subpoenas to third parties with no oversight at all has become quite widespread. Even worse: most government agencies don't seem to have any interest in revealing any data about them. In other words, if you thought the FBI was abusing NSLs, you should probably be even more concerned about some of these others administrative subpoenas.

Meet the administrative subpoena (.pdf): With a federal official’s signature, banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers — virtually all businesses — are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.

In fact, there are roughly 335 federal statutes on the books (.pdf) passed by Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena, according to interviews and government reports. (.pdf)

It's worth reading Kravets' full article, even if it is depressing. What amazes me is that we let this kind of stuff continue unabated. We've seen increasing surveillance and abuse over the years, but it seems that any time people push back on these processes, they're brushed off because "OMG!Terrorists!" or something along those lines. It's sad that we, as a country, seem so accepting of the government taking away basic Constitutional rights if it just screams something about terrorists and crime.

For the last year, it seemed like the German Pirate Party could do no wrong. In November 2011, it won 9% of the vote in the Berlin parliamentary elections, then 7.4% in Saarland in March, 8.2% of the vote in Schleswig-Holstein in May, and a similar level in North Rhine-Westphalia shortly afterwards. There was a little pushback from copyright maximalists, but after ACTA's defeat in July, you might have expected the Pirates to be riding even higher in the public's favor. A recent article in the German news magazine Der Spiegel reveals that's far from the case:

a new opinion poll by the German public broadcaster ZDF put support for the party at just 6 percent, its lowest level since March. Another survey recently conducted by the Forsa research institute found that the Pirates only enjoyed 7 percent of the electorate's support, down from 9 percent in July. Indeed, it would seem that the up-and-comers are losing a bit of their magic.

As Der Spiegel points out, this is largely the Pirates' own fault. Brutal in-fighting, made all-the-more evident because of the party's laudable belief that internal discussions should be conducted in the open, is undermining the party's credibility as a serious political player:

What other party streams the meetings of its national committee live on the Internet or allows people to watch sessions of its parliamentary groups? Is there another party where it's possible to find its members' cell-phone numbers via a Google search? But the constant chatter of the crowd also has negative consequences: It makes it difficult for the party to be taken seriously as a political actor.

Equally serious has been an inability to set any overall sense of political direction:

it is still unclear where this journey is leading, and the party can't answer the relevant questions. "A unified strategy is not observable," Klaus-Peter Schäppner of the Emnid opinion-research institute told SPIEGEL ONLINE.

It is perhaps understandable that a party that coalesced around a small number of digital issues -- absurdly harsh punishments for unauthorized file sharing, or the increasing invasion of privacy by governments through the use of online surveillance -- should find it harder to arrive at a consensus on more traditional ones, like economic and social policy. But it was widely assumed that in the field of copyright, at least, it would be able to make radical and concrete proposals that set it apart.

A recent policy document on the subject, drawn up by the Pirate Party in Berlin (pdf, in German), disappoints those expectations. Where the German Pirate Party's page on copyright boldly calls for the legalization of copying for non-commercial purposes, the rejection of DRM as "immoral", and "a drastic reduction of copyright periods, far below the periods specified in the TRIPS agreement," the Berlin Pirates' paper is content to produce a series of meek observations about ways in which small improvements could be made without rocking the boat. These include the wider use of Creative Commons licenses, making court rulings freely available, and more transparency for negotiations with the German performance rights organization GEMA. None of these are bad ideas, but they're hardly the significant reform proposals that helped get the party so much attention in the first place.

Maybe the Pirate Party wants to prove its rigor and seriousness by starting from the current position, rather than seeking to overturn it; perhaps it is trying to work with the mainstream parties, and doesn't want to frighten them with radical proposals; or perhaps it has simply lost its way and ended up being assimilated by the system.

Whatever the cause, the consequences of this lack of vision could be serious. As Der Spiegel notes:

polling experts say the party is in freefall and that it may struggle to get the 5 percent of the vote it needs to win seats in the German parliament, the Bundestag, in the 2013 national election.

That's by no means inevitable, but the German Pirates certainly face a huge task if they want to avoid becoming a textbook example of how quickly a new political party's fortunes can wax and wane.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

crashsuit alerts us to the bizarre story that a Chinese phone knockoff maker, who took some supposed "leaked" photos of the still unannounced iPhone 5 and not only produced a knockoff device called the Goophone I5 (running Android, naturally), but also is claiming to already have a Chinese patent on the design.
Of course, we've talked about Chinese manufacturers creating rather interesting mashups of phone ideas by ignoring patent, trademark and copyright laws (sometimes all at once!). And the decision to file for a design patent is made that much more amusing when you consider how design patents were at the center of some of Apple's big case against Samsung (for the non-patent nerds out there, design patents are a bit different than what most people traditionally think of as patents, and some actually suggest that they're really closer to trademarks than "patents" in that they really just cover a basic design look and feel, rather than a method or process).

That said, the details of this "Chinese patent" are a bit sketchy. Was it just applied for? Or granted? No one seems to be saying. It could just be a joke. That said, we've been noting for quite some time that while the US has been pushing China to respect patents a lot more (due to lobbying pressure from US companies), China has been mocking them all by suddenly "enforcing" patents much more stringently... but almost always against foreign companies and to benefit Chinese competitors. So, it's not completely crazy to suggest that a Chinese company might be able to secure such a patent and use it to stop Apple, though it would take a fair amount of chutzpah (or whatever the Chinese equivalent is) to make such a claim.

I don't know about all of you, but thanks to Techdirt, one of the first things I think of when porn is brought up is trademark law. Okay, so that isn't even remotely true, but I have written about the convergence of those topics before. Back then, it was porn studio Vivid complaining that HTC calling one of their phones "The Vivid" was a trademark violation. They apparently thought the phone came with an app that (joke deleted due to extremely poor taste of the author).

But trademark complaints can flow in the opposite direction as well. Reader Will writes in about how Ben & Jerry's, the ice cream producer, is suing Rodax Distributors and Cabellero Video for trademark violations surrounding their DVD "Ben & Cherry's".

The trademark lawsuit in U.S. District Court in Manhattan said the sale of hardcore and exploitive pornographic DVDs and related goods is tarnishing Ben & Jerry's Homemade Inc.'s name by creating an association with pornography. It said the claims arise from the distribution and sale of a series of DVDs containing "exploitative, hardcore pornographic films" featuring titles and themes based on "well-known and iconic" Ben & Jerry's ice cream flavors as well as packaging that contains key company features such as a grazing cow, green grass and large white puffy clouds.

Yes, a cow eating its natural food below clouds is a key company feature. Even granting that, this is exactly how parody works. If you're making fun of something, which is what the pornographic movie purports to do (I haven't seen the video in question, only the cover, but I promise to do as much hands on research as possible), you're going to create a similar look and feel to whatever you're mocking. Porn has relied on parody protection in the past. I can understand why this might make Ben & Jerry's (BJs, if you like...) uncomfortable, but that doesn't make it actionable. Certainly it would be difficult to allege brand confusion, since no one in their right mind is going to think an ice cream company is going to dive into porn.

Even their complaints about the "names" of some of the film's stars should be covered by parody.

It identified some of the X-rated names similar to its own as "Boston Cream Thigh," "New York Fat & Chunky" and "Peanut Butter D-Cup." Ben & Jerry's has ice cream flavors titled: "Boston Cream Pie," "New York Super Fudge Chunk" and "Peanut Butter Cup."

Again, parody. And those names aren't even all that risque. In fact, I'd say they're about on par with names like "Schweddy Balls" and "Caramel Sutra", which are actual Ben & Jerry's flavors. Now, as of the time of this writing, a judge has issued a temporary restraining order (pdf) against the porn producers pending an appearance on September 12th to hear their side of things. In the meantime, I'll be awaiting the court's decision at home, while trying to determine whether the Chubby Hubby in my freezer is a tasty treat or a sex toy.

Yesterday, we wrote about the judge in the ebook price fixing case quickly approving the settlement the government had reached with three of the book publishers involved (Harper Collins, Simon & Schuster and Hachette). There was one side note that I thought was amusing enough to be worth a separate post. One of the stranger filings in the case was an amicus brief filed on Tuesday by Bob Kohn, protesting the settlement. After Judge Cote made it clear that such filings should be no more than 5 pages, Kohn decided to file his in a graphic novel format, that both (slightly) mocks the 5 page limit and tries to explain the basics of his argument. The full filing is embedded below, but here's a clip: Of course, much of the "argument" made by Kohn is really a thinly veiled suggestion that the judge look at the 93-page "comment" he had filed earlier in the case. The Justice Department was not impressed by Kohn's stunt. As for Judge Cote? She doesn't even mention the nature of the "graphic novel" filing -- but repeatedly addresses Kohn's points and calls him out by name. In the end, she doesn't find his theories or arguments persuasive -- noting that his comments "are insufficient to compel denial of entry of the proposed Final Judgment" -- but this may be the first time that I know of where a judge took a filing done in cartoon form seriously. That doesn't mean I would recommend it, or that I would expect to see more such filings. It's also unclear to me how what he did via the cartoon couldn't have been expressed just as easily in pure text.

Last month, I posted the letter I helped put together from a bunch of entrepreneurs to the US's Intellectual Property Enforcement Coordinator, Victoria Espinel, as a part of the open comment period on the most effective forms of copyright enforcement. One of the most frustrating responses I heard was "it doesn't matter, the law is bought and paid for already." I can understand why many people feel that way, and it's absolutely undeniable that the entrenched entertainment industry interests have a very successful lobbying program that has a long history of success in getting the laws they want. But such things are not set in stone, and can absolutely be overcome.

Earlier this year, when This American Life did an hourlong episode on lobbying, there was one message that has really stuck with me: yes, lobbying has tremendous power in terms of its impact on Congress and the White House, but votes will trump lobbying every single time. I can't remember which politician said it during the episode, but it was made clear: in the absence of the public speaking out on an issue, yes, the lobbyists will likely win. But if the public is interested, no matter how much money is spent, the public will win, because the votes matter more than the lobbyists. Always.

I'd been meaning to write about this in response to the defeatism I saw after that letter, but Public Knowledge's Sherwin Siy beat me to it (and did it much better, since he's got a hell of a lot more experience on this front), pointing out that the best way to fight big money politics is to speak out and take part. Yes, it may seem like the deck is stacked, and yes, the lobbyists have plenty of power -- but that power only works if the voting public stays quiet.

In other words: your cynicism only helps the lobbyists.

Trust me, I understand where that cynicism comes from, and there are significant problems with the way money works in politics today and just how corrupt the system often appears. But, as Siy notes, all that money is a means to an end, and the end is to get re-elected (or elected in the first place). And that means that votes -- and the people behind the votes -- can trump money in politics. The larger problem is that we can't do that for any and every issue. But saying that you shouldn't even bother to speak out at all is self-defeating. It's automatically handing victory to the lobbyists.

We recently discussed the GOP's decision to sabotage its new "internet freedom" platform by including some unfortunate anti-porn provisions. Romney declared that, if elected president, every new computer would have an anti-porn filter installed. At the very least, this filtering would be redundant. As Mike pointed out, porn filters already exist and are easily available. If this is being done "for the children," perhaps the application of a porn filter should be left to the parents, rather than made mandatory via legislation.

That handles the user end of the experience. I would imagine that additional filtering might be suggested (or required) at the ISP level, aligning it with efforts in the UK. Whether or not an opt-in Known Perverts option will be available is still open to speculation. Most likely, once the rhetoric clears, it will simply be a matter of computer manufacturers offering filtering software right out of the box. This will fulfill the requirement without needing much more than some cursory compliance checks, and everyone involved will feel proud to have "done something" to keep porn out of kids' eyeballs. This will also be a boon for developers of filtering software, who will be jockeying for lucrative OEM contracts.

Romney hasn't really specified what he means by "computer," meaning that the spread of pre-installed filterware could envelop any device that connects with the internet, including tablets and smartphones. There is also no information on how "mandatory" these filters will be or what issues computer/device manufacturers will face should they fail to comply.

It's a vague concept that hardly anyone will argue against for fear of appearing to be siding with pornographers, or worse, child pornographers (thanks to always-handy conflation). Perhaps more unsettling than the feel-good, do-nothing "filtering" promise is another sentence lurking in the platform: "Current laws on all forms of pornography and obscenity need to be vigorously enforced." Eugene Volokh tackles the troubling implications of this phrase, putting together a set of tactics the government could implement in an effort to enforce standing obscenity laws.

First off, Volokh tries to determine the endgame? Is the intent to shut down as many US pornographers as possible? If so, supply from other sources will fill the demand:

[E]ven if every single U.S. producer is shut down, wouldn't foreign sites happily take up the slack? It's not like Americans have some great irreproducible national skills in smut-making, or like it takes a $100 million Hollywood budget to make a porn movie. Foreign porn will doubtless be quite an adequate substitute for the U.S. market. Plus the foreign distributors might even be able to make and distribute copies of the existing U.S.-produced stock — I doubt that the imprisoned American copyright owners will be suing them for infringement (unless the U.S. government seizes the copyrights, becomes the world's #1 pornography owner, starts trying to enforce the copyrights against overseas distributors, and gets foreign courts to honor those copyrights, which is far from certain and likely far from cheap).

This is an interesting conjecture. Removing the producers from the equation opens up the possibility that foreign producers would simply do the math and up their profits by reselling product they didn't create. Having the US government eliminate their competition is an added bonus. It seems unlikely that the government would act on the behalf of porn companies it's legislated or prosecuted out of existence. But would it tolerate abuse of American IP, no matter how abhorrent the subject? Probably. The porn industry isn't known for its lobbying efforts.

Moving on, Volokh speculates on three possible outcomes of enforcing existing laws on pornography and obscenity.

The U.S. spends who knows how many prosecutorial and technical resources going after U.S. pornographers. A bunch of them get imprisoned. U.S. consumers keep using the same amount of porn as before.

This tactic sounds like it would work as well as current IP enforcement measures. As it stands now, ICE is better known for its RIAA/MPAA lapdog status than for producing credible results. Sites get taken down, sat on and returned to their owners with no charges brought or apologies offered. Drawing a bead on targets like porn producers makes for some rah-rah press but will have little effect on the amount of porn available. 

As ineffective as these actions would be, the greater issue is that increased enforcement will do absolutely nothing to change people's perception of porn:

Nor do I think that the crackdown will somehow subtly affect consumers’ attitudes about the morality of porn — it seems highly unlikely that potential porn consumers will decide to stop getting it because they hear that some porn producers are being prosecuted.

This falls right in line with the perception of file sharing as a "moral" issue. It's all well and good to claim the high road in the fight against infringement, but if the general public doesn't share your beliefs then the battle is not winnable. Legislation and prosecution aren't going to change anyone's mindset. It just makes the punishment seem ridiculous or unduly harsh.

There are more echoes of the ongoing anti-piracy efforts. Volokh's next scenario involves going after foreign producers:

The government gets understandably outraged by the “foreign smut loophole.” “Given all the millions that we’ve invested in going after the domestic porn industry, how can we tolerate all our work being undone by foreign filth-peddlers?,” pornography prosecutors and their political allies would ask. So they unveil the solution, in fact pretty much the only solution that will work: Nationwide filtering.

It’s true: Going after cyberporn isn’t really that tough — if you require every service provider in the nation to block access to all sites that are on a constantly updated government-run “Forbidden Off-Shore Site” list. Of course, there couldn’t be any trials applying community standards and the like before a site is added to the list; that would take far too long. The government would have to be able to just order a site instantly blocked, without any hearing with an opportunity for the other side to respond, since even a quick response would take up too much time, and would let the porn sites just move from location to location every several weeks.

This goes far beyond simply requiring pre-installed filtering software. Instituting any sort of a blacklist combines the futility of whack-a-mole with the "we don't have time to follow procedures/respect rights" urgency of "doing something" to make the internet a "safer" place. As these actions prove futile, enforcement will move to cutting off the money supply, targeting credit card transactions, pressuring foreign governments to play by the US''s rules, etc.

The third option, and probably the least palatable to politicians? Going after end users:

Finally, the government can go after the users: Set up “honeypot” sites (seriously, that would be the technically correct name for them) that would look like normal offshore pornography sites. Draw people in to buy the stuff. Figure out who the buyers are. To do that, you'd also have to ban any anonymizer Web sites that might be used to hide such transactions, by setting up some sort of mandatory filtering such as what I described in option (2).

Then arrest the pornography downloaders and prosecute them for receiving obscene material over the Internet, in violation of 18 U.S.C. § 1462; see, e.g.,United States v. Whorley (4th Cir. 2008) (holding that such enforcement is constitutional, and quite plausibly so holding, given the United States v. Orito Supreme Court case).

Politicians may state that they think porn should be outlawed or controlled, and some are even willing to trample on some rights to put that in motion. But it's hard for most to jump from taking down the supply side to attacking the demand. If your aim is to make the internet "safer," it's fairly easy to see that removing users has no effect on "safety." But while this logic leap is hard, it is by no means impossible. The War on Drugs has locked up thousands of users by making possession a crime. "Possession with the intent to distribute" is simply a matter of going above an arbitrary quantity. Possession laws assume the only reason a person would be carrying [x] amount of drugs is because they're selling to others. Would a person with more than [x] megabytes of porn on their hard drive be considered a distributor, thus opening up the possibility of additional charges? I don't see why not, given the attitude surrounding the issues.

There's plenty of food for thought in Volokh's post, especially considering the faint echoes of SOPA/PIPA present in the discussion of enforcing morality. Both parties claim to be working towards a more open internet, but seem willing to scuttle that openness in reaction to hot-button issues or overly-friendly nudges from lobbyists. Ultimately, the question isn't about whether or not porn is "bad" for citizens, but rather, how can these laws possibly be enforced without descending quickly into "draconian measures"?

How can the government's policy possibly achieve its stated goals, without creating an unprecedentedly intrusive censorship machinery, one that's far, far beyond what any mainstream political figures are talking about right now?

The answer is: it can't. But these concerns aren't being considered, at least not during an election run. Post-election, if anyone gets around to fighting this unwinnable battle, the concerns likely won't be considered at that point, either. It's usually not until the public gets noisy enough to jeopardize politicians' careers that any sort of consideration is given to the rights of the people affected. Even more disturbing is the fact that pursuing this end effects both sides of the creative effort: the producers and the consumers. Considering the resemblance these actions have to past overreaching legislative efforts crafted to "protect" certain industries, it's rather disconcerting to see the possibility of these same actions being used to destroy a creative industry simply because certain people don't care for the product.

We've been following (for years) this ridiculous German proposal to make sites that link to and/or excerpt tidbits from news websites to have to pay for the privilege of sending traffic to the sites. While it's a spectacularly short-sighted proposal that will lead to significant problems and costs (without much real benefit), it's no surprise that publishers in other countries are getting jealous and are seeking to get the same sort of deal. Apparently, the fact that this proposal is gaining steam in Germany has emboldened French publishers to start seeking similar rights in France with which they could demand that Google pay newspapers for linking to their stories with a snippet. In other words, these publishers see a chance at a cash cow from actual innovators, right into their pockets, if they can just convince the government that "well, Germany's doing it!!!"

As the case against Bradley Manning moves forward, the government is doing what it always seems to do: trying to keep everything secret. However, over 30 news organizations have now asked the armed forces appeals court to open up, allowing public access to motions, briefs and written rulings associated with the case. The military's response has been that the only way the press should be able to access such documents (which are regularly available via things like PACER in the civilian court system) is through filing Freedom of Information Act (FOIA) requests, which can take a long time, and are all too often ignored. Of course, it's the over aggressive attempts to keep information secret that may have resulted in this case even existing in the first place, as Manning allegedly believed that the over-classification of documents was harming US interests.

This Court should find that such an arrangement is uncon-stitutional. More than thirty years ago, the U.S. Supreme Court recognized a presumptive right of access to criminal proceed-ings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion). As discussed below, the Court has reiterated its holding repeatedly, and the nation’s military courts have applied the same reasoning to extend this right of public access to courts-martial. Amici recognize that various interests, including the need to protect national security information, may justify sealed records in certain circumstances. They do not, however, general-ly justify complete secrecy. In fact, previous disputes about claims of national security have been litigated in the open: “Briefs in the Pentagon Papers case and the hydrogen bomb plans case were available to the press, although sealed appendices discussed in detail the documents for which protection was sought.”

Hopefully the court recognizes the significant public interest here and makes such documents public by default.

I'll admit that video game producer Electronic Arts confuses me quite often. Any company their size is going to suffer from some internal conflicting opinions, but as an organization EA sometimes comes off as suffering from multiple personality disorder. One personality says that sales pricing on games is horrific, while the other embraces free games. They've shown that they can use trademark law well, but then manage to swallow a crazy pill when it comes to recognizing how an endless stream of sequels hurts their business. That last link is from 2007, when the boss of EA at the time admitted that pumping out sequels instead of original titles was having a negative effect on the bottom line. It seems that in five short years, the new brass at EA forgot that admission.

Speaking with Games Industry, current President of EA's labels, Frank Gibeau, discusses the chaos of the marketplace and the golden era of gaming he believes is going to come out of it. I'll admit, there's some very encouraging stuff in the piece, between once again acknowledging the emerging success of new business models, free to play games, and the power of the internet to massively expand the marketplace for gaming as a whole. That's all good thinking. But then we get to where he discusses EA's intellectual property strategy.

"The time to launch an IP is at the front-end of the hardware cycle, and if you look historically the majority of new IPS are introduced within the first 24 months of each cycle of hardware platforms," Gibeau says. "Right now, we're working on 3 to 5 new IPs for the next gen, and in this cycle we've been directing our innovation into existing franchises.

"As much as there's a desire for new IP, the market doesn't reward new IP this late in the cycle; they end up doing okay, but not really breaking through."

In case you don't want to parse through the exec speak, let me break this down for you. EA is actively working on new, original franchises, but they won't release them until the next generation of consoles comes out. This is under the notion that new franchises released in the middle or late stages of a console's life are doomed to failure or mediocrity. There are examples of why that outlook shouldn't be taken as gospel: Pokemon (released 7 years into the original Game Boy's life), Grand Theft Auto (released roughly 4 years into the original Playstation's life cycle), Gran Turismo (released roughly 3 years into the original Plastation's life cycle), or Guitar Hero (released roughly 5 years into the PS2's life cycle). All of those titles, by the way, are among the best selling franchises of all time. The point is that if you match the desire for new titles that Gibeau acknowledges with great game franchises, you build huge sales.

But even if Gibeau's supposition was true, there is a problem: the console life cycle this go around is longer than previous generations. While rumors about the next generation of gaming consoles surfaced way back in 2010, everyone's best guess for the soonest release is sometime in 2013 (and by "sometime", they mean Christmas at best). The XBOX 360 and PS3 came out in 2005 and 2006 respectively, which puts us somewhere in the neighborhood of a seven or eight year gap between console releases, depending on who gets to market first. Wii consoles are in roughly the same boat.

For the sake of comparison, here are some other timelines for console generations:

1. Console generartion jump between the NES to Sega Genesis: 4 years
2. Console generation jump between the Genesis/SNES to Playstation/N64: 5 years
3. Console generation jump between the Playstation to PS2/Xbox: 5 years
4. Console generation jump between the PS2/XBOX to PS3/XBox 360: 4 years for Xbox, 5 years for Playstation

The point is that the strategy is going to have to change with what is looking like something between 1.5 and 2 times the life cycle of the console. Customers simply aren't going to buy sequels for longer periods of time and if EA doesn't want to fill their need for new titles, someone else will. And, despite his earlier words, even Gibeau hints that he recognizes this.

"This is the longest cycle that any of us have ever seen, and we're at the point where a little bit of fatigue has set in, and people are wondering what they can possibly do next. I've seen the machines that we're building games for, and they're spectacular."

But then he goes right back to discussing how balls-droppingly great the next generation of hardware is going to be and how that's where they'll focus.

"Gen 4 hardware is a huge opportunity, and it's going to lead to a huge growth spurt for the industry."

Once again, it seems like they have multiple personality disorder. In the meantime, perhaps actually developing new material for the consoles your fans will have to deal with for the next couple of years yet might do wonders to turn around that sliding stock price.

 

The term "open source" was coined back in February 1998, and initially it applied only to software. But as the power of open, collaborative development became apparent, other spheres have adopted the "open" tag along with the underlying approach. Here's the latest example -- open source planes:

MakerPlane plans to do for the aviation industry what Firefox and Linux did for computers. By adopting open source design and digital manufacturing, MakerPlane's founder John Nicol hopes to overcome the frustration and disappointment that most kit plane builders encounter. Over 60 percent of all kitplanes started end up collecting dust and those that are finished must overcome the challenges of complicated plans, the need for special tools and thousands of hours of labor with little or no manufacturer support.

The idea is a good one: to use Computer Numerically-Controlled (CNC) machining tools and 3D printers to fabricate many of the parts more quickly and cheaply than with conventional methods. To aid that, all the electronic files needed will be supplied. But this does raise some questions.

For example, quality control becomes an issue when parts can be made by anyone with the right equipment. What guarantee is there that they meet the needs of a full-sized plane? Even more problematic is the open nature of the project: if people can modify the design files before producing them, what implications does this have for the airworthiness of the final result? In particular, who is responsible if something goes wrong, and someone is injured?

It's great to see open source methods being applied to ever-broader fields, but we also need to make sure that there are no high-profile disasters -- like open-source planes falling out of the sky -- that could set back the wider application of the idea for years.

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