Blenster points us to this fascinating post by Jonathan Akwue, in which he discusses how a piece of artwork he created a few decades ago actually became "famous," because of a bootleg poster maker who made a ton of unauthorized posters that got around quickly. Here's the image, which you may have seen (I definitely recall seeing it in the past, but had no idea of its background): Akwue talks about the process that resulted in the creation of the poster (that's him in front of it with his son above), and how he was even worried about the potential for bootleg copies of the poster. And, not surprisingly, he was upset when it first was bootlegged. But in retrospect he realizes that the bootlegger was much more efficient at getting his poster distributed and that helped him:

But something else happened. Among a certain set of people I became (almost) famous – or at least my picture did. Stan’s distribution network was far more extensive than I could have imagined. As a result the image cropped up in all sorts of places, from inner-city street corners to suburban offices. A friend spotted it on TV hanging on the wall of an architect’s home in New York. My brother found a reproduction in a street market in Switzerland.

The bootlegged copies didn’t entirely kill the market for the legitimate ones either. As the unauthorized prints were unsigned, the limited edition of 500 was sold to those who were willing to pay extra for a signed copy.

In the end, he compares this to similar cases in the internet era, such as with Adam Mansbach's Go the F**k to Sleep, and realizes that perhaps the bootlegging wasn't so bad:

I only ever met Stan once, in a council flat in Greenwich that served as a base for his bootlegging operations. I have no idea what happened to him, or if he got his comeuppance in the end. But if I did meet him again I’m not sure what I’d say. Perhaps it should be ‘Thanks’.

Having already covered the basics of the Google deal to buy Motorola Mobility, we asked Derek Kerton to weigh in with his thoughts on what the deal really means.

Some suggest that Google bought Motorola Mobility Inc (MMI) so that it can vertically integrate and produce flagship phone models that have the polish and seamlessness of the iPhone. But the real reason is a common theme here at Techdirt: Google needs to build its defenses against patent lawsuits in the smartphone industry.

On the very face of it, Google doesn't need a handset subsidiary to make a custom Google phone. They can easily commission a handset exactly how they want it from OEM brands like HTC and Samsung, and have already done just that with the Nexus models. They could easily design their own brand of phones and have it built by contract manufacturers like Foxconn (as Apple does). I've read elsewhere that Google now gets the benefit of better understanding of the challenges of integrating Android into handsets. That's also incorrect. Google has a history of sending teams of engineers to most of their handset and tablet partners to work side by side overcoming those challenges.

Perhaps Google just saw a good deal on Motorola. Its stock price has been dropping through the decade, and also the past year. The market value prior to today was just $7.3 Billion, compared to $20B for Nokia or $13B for RIM. Perhaps, like Nortel before it, the value of Motorola's Intellectual Property (IP) is being hidden by a poor operational record. A buyer like Gordon Gekko (of the 1987 film Wall Street) could have bought up MMI, divested the operational arm from the IP portfolio, and realized a gain by separating the parts (as Gekko famously did to an airline). Of course, that's a 'private equity' view on the purchase, but Google has indicated it will retain MMI for now. Still the sum of the parts might be worth more than the whole. Although not a startup, this seems similar to Masnick's post yesterday that the value of a startup's patents might exceed the value of the operation.

There is also the less-mentioned factor that Google now also owns MMI's set-top-box division, which might give a shot in the arm to the fledgling Google TV business. Bundling Google TV into every STB would be great for Google, but I would expect that, since these boxes are all bought by cable operators, the cable companies would ultimately decide if Google TV actually remained in the box once it was installed on the customer premises. Since Google TV competes with their on demand services, it may end up as popular as the built-in laptop tethering feature is on Verizon's Android smartphones - i.e. Verizon takes it out.

My understanding is that Google intends to run Motorola as independently as possible. That is, no doubt, to head off what is known as 'channel conflict'. Channel conflict occurs when one member of a supply chain, say the Android OS supplier to many handset vendors, expands into another part of the chain, in this case the handset industry. Now they are both a supplier AND a competitor to companies like HTC, Samsung, LG, etc. Historically, the other vendors start to mistrust their OS supplier, and become more reluctant to use the OS as they search for other options.

We've seen this before with Nokia's handling of Symbian. Since 2001, Symbian was, ostensibly, an openly available smartphone OS that any handset manufacturer could use. Nokia got behind this idea full force, not wanting to cede the market to OS companies like Microsoft. They pushed the idea of other handset vendors joining them, in competition against Redmond. Some did adopt Symbian, including Ericsson, Motorola, Siemens, NTT DoCoMo. But Nokia struggled with the notion that Symbian was "too controlled by Nokia" since around 2003, so they spun it off into an open consortium in 2009. Too little too late. The other OEMs didn't ever really believe that Symbian was truly independent. The end result is that very few other handset vendors ever got fully behind Symbian, even during the time when it was the best smartphone OS in the world. So Nokia just ended up buying it back again in 2010, and finally killing it off recently.

With Android linked too closely to Motorola, companies like Samsung might be driven more to their own OS, called BADA, while others like LG could seek new alternatives (Windows, QNX...) Thus, Google now must re-interpret the same dance that Nokia did years ago: "No, don't worry, Android is still open. You will have as equal access as Motorola." This may succeed, but is a precarious position. The dance partners may have changed, but the music is still the same. Let's see if they come up with some new moves.

OEM confidence that Google will keep equal access to Android to all handset vendors is made even more precarious since the recent moves by Google to prefer some vendors of its formerly "open" Android OS. Google only released the latest tablet version of the OS (Honeycomb 3.0) to select partners, shutting out the open source community and other hardware vendors from the OS for now. The first to get exclusive access? Motorola, for the Xoom tablet. This is not the best way to ease OEM concerns around equal access, given that some may be 'more equal than others'.

It becomes clear that what Google truly needs from the acquisition is the patent portfolio of Motorola Mobility. The smartphone patent wars have been raging lately. It seems every handset vendor is getting sued by big competitors and by patent trolls alike on a daily basis. Android vendors, for example, pay nothing to Google for use of the OS... but they must pay about $5 per phone to Microsoft because MSFT had the smartphone patent leverage against Google. In another dire example of the risk of patent assault on Android device makers, the Samsung Galaxy 10.1 Tablet has been shut out of European and Asian markets by injunctions based on patent claims from Apple.

To fend off patent assaults, companies seek to build their own patent arsenals. That, for example, is why so many vultures hovered around the carcass of Nortel, and bid up its patent portfolio to 4x what the market expected. Google bid, but did not win at the Nortel auction. But with Motorola's 14,000+ patent portfolio in the mobile phone industry, Google can not only defend Android much better from the patent assault (by threatening counter-assault), but Google can thus reduce risk and uncertainty for its handset partners, thereby making Android more attractive.

Think about it. One of the biggest features of the Android OS for device makers was the license fee: free. Free, as Techdirt readers know, offers some very powerful mathematical and business implications. Suddenly, building an in-house OS for your car stereo or TV remote control may look less attractive than a more powerful, free, Android OS. Same goes for tablets, fridges, netbooks, or phones. But if MSFT and Apple (and countless others) can layer up license fees, the attractiveness of Android starts to diminish. The power of 'free' disappears, and instead, uncertainty and risk of lawsuit reign supreme.

So, the deal results in two opposing forces for the future of Google: IP cost and risk mitigation, and potential channel conflict. If Google can succeed at making the IP risk mitigation more important than the channel conflict for the OEM vendors of the world, thereby winning more handset and device partners, the Motorola purchase can be a success. If channel conflict is the more important part of the equation, Google loses big. I wonder if Google might someday sell off the handset maker, but keep the IP. Big news, either way. It'll be interesting to see how it plays out.

The national debate over education in the US seems to be gaining more steam. Part of the issue is that funding for education is at a crossroads, and decisions about how to best allocate funds need to be made soon. There don't seem to be any clear solutions so far, but there are plenty of opinions. Here are just a few.

• No Child Left Behind is about to be ousted, as many states are facing far less than 100% proficiency in math and reading skills by 2014. I can haz education, 2? [url]
• "The best thing you can do is get children in front of an extraordinary teacher." There might be a ceteris paribus missing from that statement. [url]
• Smaller class sizes don't seem to necessarily mean kids will learn more... But that doesn't mean class size doesn't matter at all. [url]
• To discover more interesting education-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

The latest chapter in the bizarre story of Paul Ceglia claiming a right to more than half of Facebook is that Facebook -- who has previously claimed that Ceglia is nothing but a fraud -- says that in the discovery process it found the original contract, and that contract doesn't even mention Facebook. Facebook pretty clearly is suggesting that Ceglia doctored the contract he did have with Mark Zuckerberg, to work on a Ceglia project called StreetFax, and changed it to supposedly cover Facebook. If you look at the two documents side by side you can see clearly that the original was changed. The fact that both have handwriting and both MZ and PC's initials on it show that this is the same document: Given this evidence, and how this case has gone so far, especially with multiple lawyers dumping Ceglia (including some big names who surprised a lot of people in taking his case originally), it doesn't look like Ceglia has much of a chance here. I'm still a bit mystified that Zuckerberg and Facebook didn't come out more vehemently originally. When the story first came out, Facebook's lawyers simply said they were unsure if the contract was legit. You would think that if he'd never signed any such thing, the denials would have been a lot more upfront. Still, in the end, this case looks dead in the water.

It's that time of the year again, where the SXSW PanelPicker opens up for public voting. This year, I just pitched one session, for SXSWfilm, which I'm pretty excited about if it gets chosen. Rather than a typical panel, it's going to be an open brainstorming session for filmmakers, trying to come up with cool plans to better "connect with fans" and give those fans a "reason to buy." I'm really excited about the team that's ready to take part in this workshop, as they've got a ton of experience and smarts in this field, including filmmaker/author Jon Reiss (who beyond his long career in film has also written books like Think Outside the Box Office and regularly holds similar workshops), indie film marketer Sheri Candler (who is also writing a book with Reiss entitled Selling Your Film Without Selling Your Soul) and filmmaker/consultant Ross Pruden, who (among other things) runs the #infdist panel on Twitter, which is an ongoing conversation on how to better connect with fans and give people reasons to buy. If we get picked, it should be a blast.

Separately, while I didn't organize it, Alex Wright was kind enough to add me to his panel on Creative Business Models Beyond Copyright for SXSWinteractive. The idea behind this panel is to get people -- especially smaller businesses or those just starting out -- to think outside the box about alternative business models that go beyond just relying on copyright. Once again, I imagine it'll be a fun discussion. If you'd like to see me speak at SXSW, please vote for those two panels. Thanks!

Some other potentially interesting panels (I have no association with any of these, they just looked interesting scrolling through the list):

• Surviving Lulz: Behind the Scenes of LulzSec (this one looks fascinating)
• Set Your Content Free (It's Harder Than You Think)
• The Systematic Undoing of Copyright Trolls
• Appetite for Enforcement: IP Policy Evolves
• 3D Printing: Not Everyone Will Be Excited
• Hey, That's Mine! Who Owns Content?
• Thank You, Wow & Done: The 3 only metrics you need
• "Now there's music cloud, where's movie cloud?"
• Tricking People Into Reading Again
• The Revolution Will Be Published (by Richard Nash, who you should be paying attention to)
• Can Free Streaming Music Survive and Thrive?
• Everything is a Remix, So Steal Like An Artist
• Vote4Geeks: Why Techies Should Run for Office
• Promoting the Innovation Economy (Rob Pegoraro is always interesting)

I'm sure there are plenty of others, but those are the ones that caught my eye...

Over the last few months, there was a fascinating "real" experiment going on. A mobile apps guy named Jonathan Stark opened up his Starbucks mobile app code to the entire world so they could give or take (if there was any money available) at will. He was pretty clear that it was a "social experiment" and he did it to see what happens -- not because he necessarily wanted something specific to happen. The info was available for a few weeks without much happening, and then some blogs, followed by the mainstream press, picked up on it, and suddenly it got lots of attention and a fair bit of usage. That's when something really interesting happened. A guy named Sam Odio heard about it, set up a script that would monitor the amount of money on the card and alert him every time it hit a certain amount. While sitting at a Starbucks, each time the card had enough money on it, he transferred money to his own cards. He sat for about five hours in a Starbucks and was able to effectively "skim" $625 from the card.

And while he noted that $625 is the price of an iPad, and provocatively titled his post "How to use Jonathan's card to buy yourself an iPad," in this case Odio took the $625 he got and decided to put the cards on eBay with a promise to donate any proceeds to charity (eBay has a system to confirm that proceeds are donated to the charities named).

Suddenly, the social experiment got even more interesting from a variety of angles. The general sense of "the internet mob" was that Odio somehow "abused" the system or did something wrong. People have called for him to be arrested or physically harmed. Apparently some have reported him to the FBI.

As this was going on, Odio reached out to Stark and asked him if he was okay with how this was going. Stark upped the social experiment another degree by simply posting Odio's email and responding publicly that:

My impression is not the one that matters. The impressions that matter are those of the people who have been touched by and participated in Jonathan’s Card. If you’d like to speak to them, you can do so on their Facebook page.

Again, the general community response is that Odio is somehow evil. Others are arguing that he somehow "ruined" the experiment. To be honest, I don't see the logic in most of these arguments, though I understand the emotional place from which they come. Part of the reason why people jumped in to support the whole Jonathan's Card experiment is because people really do seem to like supporting these types of experiments where it allows people to "feel" altruistic in some ways while supporting the view that humans are "generally good." Odio's simplified skimming presents a bit of a shock to the system to a bunch of people who have bought into the argument that "here's an experiment that shows people are basically good," because it feels like he's taking advantage of the system.

I'd argue that emotional feeling, while a legitimate feeling, is misguided. Stark set this up as a social experiment and part of that experiment is what happens and how people react when things don't quite go according to plan. To some extent, Odio was also just tweaking the knobs on the experiment to see how more people reacted (and, in the end, one could make an argument that what he did may have a better societal benefit than what Stark did). But, obviously, the point that many people are upset about is not that aspect, but just the fact that someone didn't use the card as those other users thought it was intended to be used. But, the important thing is that Stark made no such restrictions, and Odio doesn't appear to have broken any laws. He did exactly what Stark allowed when he made the card public.

If anything, part of the social experiment's results was a reminder that someone could do things like this. But the flipside to the experiment is how the community of supporters reacted, generally acting to express clearly to Odio that they did not like his actions. While that sort of response might not really matter to someone who just wants to take money for free, community pressure can be quite effective in other cases. The real issue, to me, however is that community pressure can be good in some scenarios, but can border on going overboard and creating a "burn him" pitchforks & torches mob at times -- and in a few instances seemed to border on that in this case. While I'm a big believer in the ability of communities to police behavior, I do worry about when a community makes an emotional response that isn't always completely rational, as may have happened here.

All in all, if you view this very much as an experiment, there's a lot to learn from it. You can see some interesting group dynamics. How people respond to opportunities to be altruistic or to benefit from altruism. And how communities respond when "unwritten" or even "unspoken" rules may be broken, even if they don't actually violate any real rules. I find it hard to "side" with Stark or Odio or the community here, as it's one of those cases where I think (and hope) both Stark and Odio have viewed this mainly from an impartial "this is interesting, let's see what happens" standpoint, rather than any big moral claim.

Either way, for now the experiment is over. Last Friday, Starbucks finally realized what was going on and shut down the card. Still, I imagine we'll be discussing the implications of this and similar experiments for a long time.

For all the stories of doom and gloom in various entertainment industry segments due to "piracy," the deeper you look, the more you realize that each of these areas seems to be growing quite nicely, contrary to what's being claimed. Remember last week, when we showed the US Chamber of Commerce's propaganda video in favor of the PROTECT IP Act, in which various artists claimed that their industries were being "hurt" by internet piracy? It included clips of the author Tracy Deebs (who also goes by the name Tracy Wolff), claiming that "piracy" had hurt the publishing industry badly and suggesting that she might lose her deal because book publishers don't believe she can sell enough books.

Well, tragically for Deebs/Wolff, the actual data suggests she and the US Chamber of Commerce are totally full of it. FormerAC points us to some new reports showing that the publishing industry is growing thanks to the rise of digital:

BookStats, a comprehensive survey conducted by two major trade groups that was released early Tuesday, revealed that in 2010 publishers generated net revenue of $27.9 billion, a 5.6 percent increase over 2008. Publishers sold 2.57 billion books in all formats in 2010, a 4.1 percent increase since 2008.

Deebs, who it should be noted, writes young adult fiction, and who markets her own young adult fiction book as "a paranormal romance," might be most interested in this particular line:

Juvenile books, which include the current young-adult craze for paranormal and dystopian fiction, grew 6.6 percent over three years.

Deebs uses the name Tracy Wolff when publishing "adult fiction." And thus, I'm sure she's also interested in the following line:

One of the strongest growth areas was adult fiction, which had a revenue increase of 8.8 percent over three years.

So, once again, we have to ask both Deebs and the US Chamber of Commerce who is exploiting her apparently false claims, exactly how was she a "victim"? It certainly looks like the market is thriving. If Deebs isn't capitalizing on that, it's probably because either her book is no good or she's not doing a very good job selling it. Perhaps the Chamber of Commerce can help her with that, rather than having her appear in ridiculous videos in support of a bad law that promotes internet censorship.

As UK politicians and law enforcement still argue over things like blocking access to social media or shutting down Blackberry Messenger during times of riots and/or protests, it seems that some UK police know when to just jump right in. They've arrested and charged a guy for daring to organize a water gun fight using Blackberry messenger and Facebook. We're not making this up, though we wish we were:

The 20-year-old from Colchester was arrested on Friday after Essex police discovered the alleged plans circulating on the BlackBerry Messenger service and Facebook.

The unnamed man has been charged with "encouraging or assisting in the commission of an offence" under the 2007 Serious Crime Act, police said.

He was arrested with another 20-year-old man the day the water fight was allegedly due to take place, and has been bailed to appear before Colchester magistrates on 1 September.

It's a "serious crime" to organize a water gun fight? Is there no right to bear supersoakers?

It's been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a "termination right," which cannot be contractually given up, which allows the original content creator to "reclaim" the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as "work for hire." I'm actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they're there... and they scare the entertainment industry silly.

The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman's creators having won back some rights to Superman -- while Jack Kirby's heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby's family just appealed and there are still additional disputes around the Superman stuff.

However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.

“We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians. As is clear in this case, the RIAA's interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don't apply to most sound recordings is so intellectually dishonest.

The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn't basically depended on who was in the room and who was more aggressive in their lobbying. Nine "work-for-hire" exceptions were put into the law. It doesn't make much sense which ones made it and which didn't, but that's lobbying for you.

However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared "works for hire." This literally happened overnight with no elected officials who were voting on the bill being made aware of it.

Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It's one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he's just been promoted to the number two spot at the RIAA.

If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It's put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn't believe sound recordings qualify for termination rights.

So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year's ruling concerning Bob Marley's recordings, in which they were declared "work for hire" and his family was unable to reclaim the copyright. But that's a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn't apply.

Instead, my bet is they're going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while "sound recordings" are not covered as a "work for hire," "compilations" are. Of course, the obvious intent of including "compilations" was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA's claim above.

Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music "within the scope of his or her employment." That, obviously, is completely laughable, since the labels don't hire musicians, nor do they pay them salaries. In fact, while they give them "advances," those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren't even paying for the music creation.

Either way, it's pretty stunning that the RIAA has so blatantly declared war on artists. I'm somewhat surprised that more musicians aren't speaking out about this, but it's going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it's going to be increasingly difficult for the RIAA to keep up the facade about how it's representing the interests of musicians while it's actively and vocally trying to totally screw them over.

Pretty stunning to see L. Gordon Crovitz, the former publisher of the WSJ (and now a columnist) make the argument that shutting down social media is fine and dandy, if governments say that it's to stop bad stuff (as defined by those governments). Specifically, he defends UK politicians calling for blocks on social media in response to the London riots. Crovitz's reasoning isn't just weak, it's full of bizarre logical fallacies.

But all uses of technology are not equally virtuous. Enthusiasm for technology should not lead to a moral and political relativism that confuses crime with free speech and the British police with authoritarian governments.

No one has claimed that the two are the same. The point, which seems to sail way, way, way over Crovitz' head, is that the ability to block communications in one case quite easily leads to it being used in the other. Bizarrely, Crovitz then defends the highly questionable BART cell service shutdown in response to the threat of protesters, by saying it's fine because "the world did not end."

And the world did not end when police did indeed temporarily shut down social media. This happened last week in San Francisco, Calif., one of America's most liberal cities.

Last I checked, the Constitution of the United States says, "Congress shall make no law... abridging the freedom of speech." It does not say, "Congress shall make no law abridging the freedom of speech... but it can if the world won't end from doing so." From there, Crovitz just gets weird:

Permitting peaceful protests while stopping violence seems like a reasonable compromise.

Let's be clear: when discussing the First Amendment, the phrase "reasonable compromise" generally means someone taking away your rights. The problem, which Crovitz can't seem to get his head around, is that you can't set up a system that properly determines what speech is allowed and what speech is violence-inducing. People who trample on the First Amendment assume, falsely, that it's easy to tell one form of speech from another. If someone is committing violence, arrest them for committing violence. Don't take away their free speech rights.

From there, Crovitz insists that China's free speech trampling is different. Why? Because it is! Don't you see? The problem is that it's very much in the eye of the beholder. China continues to insist that its trampling of free speech is a "reasonable compromise" because it keeps "bad stuff" away from the people. How do you determine where that line is? Crovitz pretends its easy. Our founding fathers knew that it was not, which is why they specifically wanted to make sure that "dangerous speech" was allowed.

Then Crovitz jumps into obnoxious false dichotomy territory:

Robert Andrews, a reporter for the paidcontent:UK website, asked Twitter users whether they would prefer to keep the service available so they could chat about the television music competition "The X Factor" or let the service be closed temporarily "so that fellow citizens like shopkeepers need not be assaulted, have their property and premises pilfered and trashed, and so that they need not live in fear."

Though it was an admittedly unscientific survey, Mr. Andrews nevertheless reports that every Twitter respondent opted for "The X Factor." He concludes: "So addicted are we to our electronic connections, we simply cannot bear to be parted, for even an hour or two, in the name of public safety while London burns."

Or perhaps the people responding to Andrews recognized the ridiculousness of the question, and knew damn well, that social media is used for a hell of a lot more than discussing some TV show... and that allowing communications platforms to be shut down, because the government and Crovitz think "bad stuff" might happen, is a path to censorship. It's not that people are "addicted to electronic communications." It's that people believe in their rights to free speech. Taking away social media wouldn't stop London from burning, but it might harm some pretty core principles of democracy and the ability to speak your mind.

Techno-utopians would like to believe that digital technology is always a force for good, but technology can also accelerate evil. As Thomas Hobbes would say, without the enforcement of rules for ordered liberty, life is "solitary, poor, nasty, brutish and short," both in the real world and online.

And since we're doing a grand tour of logical fallacies, Crovitz closes with a claim that is simply unsubstantiated because it's false. I've never heard the folks normally associated with "techno-utopianism" ever claim that digital technology is always a force for good. In fact, I've almost always heard them claim that technology itself is neutral and can be used for both good and bad. If anything, people tend to note that it can help amplify both good and bad uses. But the point that they make is that you can't somehow cherry pick the "good" stuff to allow and the "bad" stuff to ban, because that always fails in the long run. It always leads to greater than "reasonable" censorship and always leads to important critical speech being stifled. Crovitz may have no problem with trampling on the rights of others. I, on the other hand, have serious problems with it -- and with the WSJ advocating what appears to be flat out censorship.

Apparently the police in Long Beach, California, have a policy that says if a police officer determines that a photographer is taking photos of something with "no apparent esthetic value," they can detain them. This revelation came after photographer Sander Roscoe Wolff was taking the following photo: The police officer somehow determined that there couldn't be esthetic value there, and thus, the photographer had to be detained and checked out. The police are defending this policy, saying that while officers don't have any specific training in what qualifies as "apparent esthetic value," they will stop anyone photographing things they don't consider to be something a "regular tourist" would photograph. I actually have to go down to Long Beach next month for a speaking engagement, and I'm now tempted to take a bunch of photographs that have "no apparent esthetic value."

Late last week, after it came out that BART had decided to shut down mobile phone service in one station because of the threat of a protest (which never actually materialized) many people started questioning the legality of the move. Now comes the word that the FCC is investigating. It will be interesting to see what they have to say. I'm not sure if it actually did violate any specific FCC rules, though I would imagine that the FCC might worry about this kind of thing becoming more common. It seems to me that the First Amendment argument (which I would believe is outside the FCC's purview) is much stronger. Here, an entity acting on behalf of the government shut down a form of communication specifically directed at a form of protest speech in an attempt to block that speech. You can get away with things if they're "content neutral," but in a case where BART officials have flat out admitted that they were targeting speech they didn't like, it seems like there's a strong First Amendment claim, though I'm not sure who would actually bring such a lawsuit.

Rightaven's summer of trouble continues. Having already lost its case against Wayne Hoehn for the same reasons it's been losing a bunch of cases lately (its sham copyright transfer), the court (as in a few similar cases) was asked to make Righthaven pay Hoehn's legal fees and, in a short and sweet ruling, Judge Philip Pro has agreed and told Righthaven to hand over $34,045.50, stating that awarding such fees seems reasonable in this case. Can't wait to see how Righthaven's Steve Gibson spins this to say that it's really just a court giving guidance to Righthaven's competitors who just aren't as sophisticated as Righthaven.

One of our usual critics pointed us to a recent article at Billboard about the insane lengths that Jay-Z, Kanye West and the producers of their joint album went through to keep the album from leaking early. The whole thing sounds pretty extreme. They recorded in "pop up" studios they set up in hotel rooms, rather than at real recording studios. Then there were three key engineers who turned off all computer WiFi in the rooms. Collaborators were not allowed to hear tracks outside of the room (so no emailing around tracks for ideas). Everything had to happen in person. Meanwhile, all the work was saved on hard drives locked up in a briefcase. The drives apparently had biometric security, in that you could only access them with a fingerswipe matching fingerprints.

And, amazingly, all of this "worked." The album apparently was released on time without any leaks. Our critic said this proves that I'm a liar when I say "musicians don't care about piracy." Of course, I've never said nor implied any such thing. I know that plenty of musicians "care" about piracy. But this story first of all wasn't about "piracy" so much as it was about leaks. It's clear from the article that it wasn't about the economic threat of a pre-release, but how it fit into the marketing strategy. Jay-Z wanted to try to get people to listen to the whole album.

On top of that, all the crazy "CIA" stuff isn't what stopped the album from leaking. For all the talk of "hackers" breaking into computers and grabbing copies of tracks early, most tracks leak because of one thing: someone in the final processing chain gets the master early and leaks the tracks. The reason this album didn't leak early was because they delivered the masters as close to the release as possible. Any artist who wants to avoid leaks really just needs to do something like that, and ignore the Mission Impossible crap.

But the larger point is... is something like this even worth it? The article also notes that others may follow suit. But I'm curious if the "cost" really is worth it. It limits the creative freedom (such as emailing back and forth tracks). It does little to nothing to stop actual infringement. All it does is make sure the marketing plan goes down without anyone being able to listen to it early or help promote it on blogs and such when it comes out. If anything it seems to ignore the modern marketing strategy, where new tracks are purposely leaked to get the buzz going. I'm sure the album will do fine, given the two names attached to it. But I don't' see how this has anything to do with "piracy," and I can't see how any "benefit" outweighs the cost. I have to imagine that if other artists go down this same path, they're going to discover it's a waste of time and money for almost no benefit.

Tim Lee has another excellent post on the state of the patent system these days, taking on the claim by Michael Mace that software patents are good because it stops big companies from competing with him, by questioning whether or not there's a reasonable policy rationale for this. Lee's point is that it's not at all clear that letting the "first" own the market makes much sense:

Companies have other ways to protect their innovations. They can use copyrights, trade secrets, and the head start that any inventor has over copycats. Mace objects that these protections aren't adequate to guarantee that the original inventor will win in the marketplace. But that's the point: consumers benefit from the robust competition that results when inventors have only a limited advantage over competitors. The first company to enter some market shouldn't be able to simply rest on its laurels. Remember, Facebook was a "me-too competitor" in the social networking space; it's a good thing that Friendster and MySpace weren't able to stop Mark Zuckerberg from entering its market.

The function of the patent system isn't to maximize the profits of inventors. Rather, it's to provide inventors with sufficient incentives to ensure they continue innovating.

This is a big point that is all too often ignored in these debates. People seem to think that the entire purpose of the patent system is to maximize the benefit of whoever got their first. But that's simply not the case, and any argument based on that is faulty.