Not surprisingly, I've been reading up a lot on E-PARASITE/SOPA, and Larry Downes' recent analysis at CNET is, hands down, the most thorough and complete article I've seen highlighting the massive problems of the bill. Here's just a taste:

Stripped of their obfuscations, SOPA and Protect IP suggest increasing desperation by media companies. A bill that was to target only the "worst of the worst" foreign Web sites committing blatant and systemic copyright and trademark infringement has morphed inexplicably into an unrestricted hunting license for media companies to harass anyone--foreign or domestic--who questions their timetable for digital transformation.

Nothing can change the fact that Hollywood's way of life is transforming once again. The only unknown is time--will a profitable future for digital content arrive in a few years or will it take another decade? SOPA only seeks to delay the inevitable, at the cost of wasteful litigation and overzealous law enforcement.

The article is relatively long, but is still worth reading in its entirety, clearly quoting problematic sections of the law, and highlighting where and how it will likely be abused. I'd love for the small group of E-PARASITE defenders in our comments, such as the guy who claims to have worked on the bill and who still (incorrectly) thinks that it only applies to "foreign" sites, to see if they can actually defend against what Downes wrote (without resorting to insults), and actually respond to our concerns directly. Because, so far, every time we've raised key issues, we've been lied to and insulted, rather than having anyone address these issues. It's really quite amazing.

In the meantime, one other point that Downes raises, which is absolutely true, is that this bill shows the downside to Silicon Valley's general position of ignoring what's going on in DC. That has to change, and if one "good" thing comes out of this bill, perhaps it's that it's so insanely bad that it'll jolt people awake in Silicon Valley, and get them to recognize that they need to speak up.

Software is getting better and better at mimicking human behavior on the internet. People are fooled every day by automated messages that seem like they come from actual humans, and sometimes real human messages are mistakenly thought to be composed by computers. Here are just a few more examples of internet bots getting smarter.

• Software called Decaptcha is getting better at solving CAPTCHA challenges. Decaptcha can't foil CAPTCHAs from Google and reCAPTCHA, so it's not going to help digitize books (but maybe someday it will). [url]
• Google's indexing spider, GoogleBot, can now execute AJAX or JavaScript to get into dynamic commenting systems from Facebook and Disqus. When GoogleBot achieves self-awareness, hopefully it won't judge the human race from what it's read in blog comments... [url]
• Socialbots are infiltrating social networks and collecting as much personal information as they can, using fake accounts with attractive profile pictures to befriend unsuspecting people. If a man you've never met before suddenly gives you flowers... (or pokes you on Facebook) Guess what? It's probably spam or an ad for something. [url]
• To discover more interesting robot-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 Internet is under attack – but not, as politicians would have us believe, from hordes of cyber criminals, but from the politicians themselves. Alongside national legislation like E-PARASITE and international treaties such as ACTA, there is this proposal that a UN body should take over the running of the whole system:

The Indian government has formally proposed a government takeover of the Internet at the United Nations General Assembly in New York.

In a statement sent yesterday, India argued for the creation of a new body to be called the United Nations Committee for Internet-Related Policies (CIRP) which would develop Internet policies, oversee all Internet standards bodies and policy organizations, negotiate Internet-related treaties, and act as an arbitrator in Internet-related disputes.

The CIRP would exist under the United Nations, comprise of 50 Member States, be funded by the United Nations, run by staff from the UN’s Conference on Trade and Development (UNCTAD) arm, and report directly to the UN General Assembly.

Despite the proposal representing an extraordinary shift from the status quo to a single, purely government-run Internet body, India’s spokesman, Mr Dushyant Singh, argued that the proposal “should not be viewed as an attempt by governments to ‘take over’ or ‘regulate and circumscribe’ the Internet.”

In a nod to the multi-stakeholder model of decision-making that currently defines much of the Internet’s processes - and where all actors from business to academia to the technical community and governments are given equal say in decisions - the Indian proposal foresees the creation of four “Advisory Groups” that would represent civil society, the private sector, inter-governmental and international organizations, and the technical and academic community.

Those groups would provide recommendations to the CIRP. The CIRP would consider them, along input from the existing Internet Governance Forum, at an annual two-week conference at the UN building in Geneva and then present its own subsequent recommendations to the UN General Assembly.

As the author of that report, Kieren McCarthy, points out:

A very similar proposal to that proposed this week was published by a joint group of the Indian, South African and Brazilian governments just prior to the Internet Governance Forum (IGF) in Nairobi last month and caused some controversy when it clearly implied that the proposal came with the support of civil society and the technical community.

Its recommendations, which also foresaw all Internet organizations being pulled under the control of a new government-run United Nations body, were disowned by civil society and they then received a definitive thumbs-down from the broader Internet community during the IGF open session on “critical Internet resources”, during which the Indian government representative stated that the paper had only been put out for discussion.

Despite the very negative response to that paper, however, the Indian government pressed ahead with discussions on the exact same lines at an IBSA Summit on 18 October in Durban, South Africa. And the result of that meeting was the proposal put to the UN General Assembly yesterday.

That would suggest that the Indian proposal doesn't really stand much of a chance, and many will doubtless cheer that, seeing it as a dangerous attempt to "take over" the Internet – despite India's assurances to the contrary.

But here's an interesting contrarian view from Jeremy Malcolm on his site Internet Governance Forum Watch:

If a UN Committee for Internet-Related Policies, adequately linked to multi-stakeholder public sphere, were able to set global norms for the Internet in an adequately open and inclusive manner, then neither the US government, corrupted by big-pocketed IP rights-holders, nor repressive governments such as China, would be able to regulate the Internet in isolation from these norms.

Now, some might say that governments have no role in setting policy norms for the Internet, even if it is in consultation with other stakeholders. In the long run, I agree: we should be able to develop a multi-stakeholder transnational governance mechanism that is not grounded in the nation-state. But we are far from that position now, and it is those most opposed to Internet governance reform who make this point most often, when opposing a norm-setting role for the IGF. They insist that the discussions at the IGF should merely inform norm-setting processes that take place at higher levels.

But where are those norms to be set, where no authoritative transnational institution already exists to set them? Unless an expansion of the IGF's mandate can be considered, then clearly some new mechanism is required. This was recognised at WSIS [World Summit on the Information Society] in 2005 when an "enhanced cooperation" mechanism was mandated, and it remains equally true today. The Indian proposal for a UN Committee for Internet-Related Policies is the first serious attempt by any government to propose such a mechanism, and for this it is to be welcomed. Civil society ought not to fall into the trap of rejecting this proposal out of hand, if the alternative is to leave existing more narrow Internet governance hegemonies unchallenged.

It's an important point: after all, the way the Internet is run and developed at the moment is hardly perfect. As Malcolm notes:

some of the most important areas of public policy online are not governed by multi-stakeholder networks at all, not even by any existing intergovernmental organisations, but by individual national governments and big businesses. The most blind to this seem to be representatives of technical community, who for practical purposes maintain a very narrow pre-WGIG [Working Group on Internet Governance] definition of Internet governance that excludes vital issues such as intellectual property enforcement, privacy and data protection, online filtering and censorship and network neutrality.

It is precisely those issues that are driving many of the recent ill-conceived legislative proposals around the world aimed at "taming" the Internet. Maybe we do need a new approach to Internet governance; whether or not the Indian initiative is the way forward, it is a at least raising some crucial questions.

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

I've recently (separately) questioned some dubious claims by neo-luddites Rob Levine and Scott Timberg, so when the two of them get together to have a conversation, I have to admit that it almost made my head explode in seeing almost every sentence be chock full of "wrong." Let's dive in to some of it:

The premise of my book is that most online companies rely for their content, and hence for their money, on traditional media companies. If they destroy that business model, it’s unclear what they’re going to have to distribute.

Yes, because no one else ever shows up to fill that gap. Does Levine have no idea how culture responds to demand? Besides, this is just another line like Valenti's old "Boston Strangler" line. People who don't know or understand culture or history always blame the new technology for "killing" off the old industry. The reality -- as shown time and time again -- is that it actually enhances and grows that industry. You see it again and again. The sheet music industry insisted the player piano would kill the music business. John Philip Sousa insisted that the phonograph would kill the music industry, because with it, no one would ever learn to play music or want to hear live music again. The publishing industry insisted that the photocopier would be the end of its business model.

Levine follows in a long line of people who got it wrong. People who don't understand technology or culture or trends. When technology makes things more efficient you get more of it, not less. It may change business models, but in the end it always creates greater output, greater value. Timberg, of course, doesn't challenge Levine on this bizarre assertion, but remember, Timberg is the guy who claimed our creative class is gone because no one works at record stores any more.

If you look at YouTube, eight of the top 10 videos are major-label music videos. If the major labels shrank to the point where they can’t make videos, YouTube isn’t much of a business.

Does Rob not know how much money YouTube is making for the smart acts that use it correctly? Ask the band OK GO where they'd be without YouTube. Ask the Gregory Brothers. For content creators that know how to use the platform (not Levine, apparently), it's a huge boost to their business. And, if the major labels shrank to the point where they can't make videos, (1) others would still make music videos and (2) YouTube is still a huge business. Levine offers no proof that without Universal Music making videos YouTube stops making money. That's because he can't. It's a blatantly ridiculous assertion.

technology creates uncertainty and regulation solves uncertainty.

I'll just leave that one hanging for people to laugh about. I'm wondering which world Levine lives in where regulation solves uncertainty.

When the car was [created], no one knew how fast you were allowed to drive. We came up with speed limits and that solved some of the uncertainty – didn’t solve it perfectly, but it made the roads safer.

Actually, it didn't. As multiple studies have shown over the years, speed limits have had almost no impact on road safety. Well, that's not entirely true. One report says that the implementation of speed limits appears to decrease road safety. And that's because speed limits were never actually put in place for road safety, but for state revenue generation. How can anyone trust Levine when he claims things to be facts that the data shows just isn't true?

Then [Congress] came up with the DMCA, which I think was sort of the original sin. The idea was we have to say something before you want to take something that infringes on copyright down.... The important provision was notice and takedown. You have safe harbor from copyright liability if you follow this notice and takedown procedure. It turns 300 years of copyright law on its head by making it an opt-out system instead of an opt-in system.

Someone doesn't know the history of copyright law at all. The notice and takedown provision certainly has many problems, but the idea that you properly apply liability to those who actually do the infringement is sorta common sense. The problem is that Levine is confused. He seems to think that a site is the content creator or publisher, rather than the tool. We never blamed the physical printing press for the infringement that was done on them. So why does Levine want to blame the tool now? That would be turning copyright law on its head.

And, if he's honestly talking about what turned copyright law on its head by making an opt-in system into an opt-out system, he must actually be talking about the 1976 Copyright Act, which put all new creative works under copyright at the moment they were fixed, rather than requiring you to register and follow certain formalities. That was about turning copyright on its head. Using the DMCA to clarify that you don't blame the tool for the user's actions? That's just common sense to keep the clueless in line.

Dozens of sites will use this interview until you specifically tell them not to.

Including mine. And in this case, it's called fair use. But Levine prefers permission culture. And that should be scary to anyone who understands how culture works. You don't want artists asking for permission. You want them to create.

One of the desirable things that copyright laws do is create some kind of market for intellectual property

This is economically wrong. While it's true that copyright law creates a market for copyright, there's no economic evidence that that, in itself, is desirable. If you have something that is infinitely reproducible, such as ideas, to put artificial limitations on them is economically inefficient and limits growth. It's the opposite of a "desirable thing." There's this problem with people who know just enough economics to be dangerous, where they learn that "free markets" are a good thing, and they seem to think that means all markets are good things. But artificially created markets are, by their very definition, inefficient. The value brought about by markets is in their efficiency.

A simple example. We could, if we so chose, create a "market" for air. You and I breathe freely (in monetary terms), but based on Levine's reasoning, we'd be better if we charged. After all, it would create a market for air. That would make some people rich, but it would make most people poor (and potentially kill a bunch too, but that's besides the point). Putting in place an artificial barrier to create a market where none is needed is not "desirable," it's the very definition of economic waste and inefficiency.

Google News is not as useful if there’s not as much news to Google. I mean, Google is an information search tool, right? It’s not a moral issue. But the problem you’ve created, you create a very powerful incentive for somebody to create a better search engine. You eliminate [the] incentive to create better journalism. That is a problem.

As far as I can tell, the number of sources within Google News appears to keep going up. And, frankly, I'm seeing better and better journalism. Even Salon, which has published this Timberg/Levine disaster, often has good journalism (just not in this particular piece). So, um, where's the evidence that journalism is somehow getting worse. I just don't see it.

The middleman hasn’t been eliminated. There’s a new middleman. YouTube is the new middleman. YouTube, just now, was giving professional content creators advances against future royalties. Is it a good middleman? I don’t know. YouTube has a lot of good technology. They obviously have other advantages. It could be a smart deal. It depends on the advance; it depends on what you want. But I would say that the idea that YouTube is fundamentally different from a record company is silly. YouTube probably has a higher percentage of the market for online video than all four major labels combined have of recorded music. Who’s stopping their market power? No one, and everyone is saying it’s a progressive thing.

Wow. Levine was an executive editor for Billboard. He must be familiar with record label deals. To claim that YouTube is the same sort of middleman as a record label pretty much destroys any and all credibility he might have. And, as we've pointed out many, many times, the whole idea that middlemen go away is a myth. It makes for a nice strawman from Timberg, but it's always been a myth. What go away are gatekeepers. There's still obviously a massive role for middlemen who enable artists, but that's different from gatekeepers who give back very little to artists.

A record label deal involves giving up all of your copyrights, entirely. It involves one of the worst deals you'll ever see, in terms of getting a tiny percentage of royalties, and every expense that the label spends on your behalf first has to be "recouped" out of just your (tiny) portion of the revenue. Basically, the labels give you a loan with ridiculously bad terms... and then get to keep the collateral no matter what. When YouTube starts offering deals as ridiculous as that, let me know. Because as far as I can tell, it seems to be enabling careers of all sorts of new artists who are making tons of money off of YouTube (or because of YouTube) without having to give up any control or all future profits.

What you rarely hear is that the French tradition – and this applies, to varying degrees, to a lot of other countries in Europe – copyright is a fundamental right. It is your work and you have a fundamental right to it. What’s interesting is you have a lot of people talking about the right to remix. In Europe, not only is there very little legal support for a right to remix, there’s a decent amount of support for a right not to be remixed. You have a right to the paternity and the integrity of your work. It’s a moral right. So someone says, “I want to remix Rob Levine’s book so that every 10 words it’s going to say: Rob Levine eats stinky poo” – by the way, I’m fairly certain that somebody would call this an art project – I can say, “No. I have a right to my work.” I think a lot of people would find that very reasonable.

I really do wonder why that's "very reasonable." If someone were to write that remix of Levine's book... who would care? Would it impact Levine's actual book? Would the creation of such a work somehow make Levine's actual book disappear and the only way you could read his book is with the words "Rob Levine eats stinky poo"? Of course not. No one would care, because putting such things in his book is a stupid idea that no one in the market would care about. Now, if someone actually does create something that the market cares about, in the form of a remix (for example, someone like Girl Talk or Kutiman), then the world is actually better off. It takes nothing away from the original and people get an amazing new work. How is that a bad thing? It seems like a very good thing.

When Google says newspapers should be free on the Internet, they may really believe that, but you also have to keep in mind that it’s a huge help to them. Right?

I'm curious where Google has ever said that newspapers "should be free on the Internet," as Levine claims here. I distinctly recall Google actually building its own tools to help with paywalls. So I'm at a total loss as to why Levine would claim this. Furthermore, Levine seems to not understand the nature of non-zero sum markets. If something benefits Google (or any other third party) that doesn't mean it can't also benefit the content creator.

This is a common logical fallacy among folks who don't understand new business models and new platforms. They seem to think that these markets are zero-sum games. Thus, when iTunes starts doing well, the record labels freak out that it's making too much money (as if some of the money Apple made for dragging them into the digital era belongs to them). It's why you now see Hollywood trying to cripple Netflix, and the TV guys trying to kill Hulu (even though they own it). They're treating these all as zero sum games. They see Apple, Netflix and Hulu making money and they say "that's not fair, that's money that's being taken away from us." What they don't see is that these systems are doing no such thing. They're expanding the market, making things more efficient, and moving away from old inefficiencies. And, yes, they put in place smart business models so that they get a cut of that, but that doesn't mean they're not also incredibly useful to content creators.

The interview goes on and on from there... in a similar vein. At this point, my brain is so full of wrong ideas from the two of them that I'm giving up. This is pretty disappointing from Salon, which I thought would like to publish things that were, you know, based in fact.

When he was 20 years old, Pete Townshend of The Who wrote the classic line "hope I die before I get old," as part of the anthem Talkin' 'bout my generation. As a Townshend fan, I'm certainly happy to know that he didn't die before he got old... but it does seem rather ironic that he's now acting just like the "old folks" that he once mocked. At an event earlier this week, he claimed that the internet is destroying copyright, and declared that iTunes is a "digital vampire." His complaint there is that it takes an "enormous commission." Um. Ok. So, according to most reports, iTunes' commission on music is approximately $0.30 on the dollar. While some may claim that's high, compare that to how much a record label takes on each sale, where artists often get perhaps 10 to 15% royalties, with the label taking the rest. Which one seems more like a vampire?

He says that iTunes should employ A&R people, but why is that Apple's business? That's like saying Tower Records should have had A&R people to guide musicians a decade ago. It appears his complaint is that new musicians are allowed into iTunes even if they suck. But that's an issue for filters and mentors to deal with, and the internet seems to be taking care of that. Is there bad music on iTunes? Sure, but you can get around that by not listening to it, and those musicians can get guidance from all sorts of people. He also talks about why Apple should give away computers to 500 musicians they like. But... why? What is focusing on just a few musicians going to do? The power of the internet is that it empowers tons of new musicians. Having Apple give free computers to the musician it likes kinda misses the point of the democratization of the market. It will leave out all sorts of wonderful artists that niche groups in the public might like.

He then goes on to complain that Apple won't stream full albums. Why is that Apple's job? Has no one shown Pete Spotify or any of the many other streaming players out there these days?

Of course, he won't listen to me on this, because he talks about the "vilest" parts of "blogland" where people are "drunk, or just nuts."

And, of course, he goes on a bit of a rant about file sharing. Beyond just the internet "destroying copyright," he compares someone downloading one of his songs to someone coming into his house and stealing his kid's bike (interesting comparison). Of course, as anyone who's ever thought about this for more than a second knows, making a copy doesn't remove anything. Making comparisons to stolen physical goods just makes it look like you're... well... not talking about our generation. So, as a retort, I'll just "infringe" on Mr. Townshend's own words:

People try to put us d-down (Talkin' 'bout my generation)
Just because we get around (Talkin' 'bout my generation)
Things they do look awful c-c-cold (Talkin' 'bout my generation)
I hope I die before I get old (Talkin' 'bout my generation)

This is my generation
This is my generation, baby

Why don't you all f-fade away (Talkin' 'bout my generation)
And don't try to dig what we all s-s-say (Talkin' 'bout my generation)
I'm not trying to cause a big s-s-sensation (Talkin' 'bout my generation)
I'm just talkin' 'bout my g-g-g-generation (Talkin' 'bout my generation)

As the fight over the E-PARASITE/SOPA bill continues, it's worth taking a step back, and conducting a short thought exercise:

What would the movie business be like today, if the MPAA had succeeded in banning the VCR?

Remember, in the Betamax case, the studios sought to kill off the VCR, leading to the famous quote from MPAA boss Jack Valenti:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

And, Valenti and the MPAA came very close to convincing the courts, who only granted immunity for those offerings with substantial non-infringing uses by the narrowest of margins (though court initially decided to side with the MPAA before changing its mind). Unfortunately, while SOPA seeks to couch its broad upending of the legal and technical frameworks of much of the internet in the claim that this is "just" about "stopping pirate sites," twenty years ago, this case was about "just" stopping this "pirate technology."

But what happened after that? Once the court finally declared VCRs legal, suddenly the movie industry exploded. With this new method of video distribution, the entire movie business was reinvented in a good way. It meant no longer just viewing in the theaters. An entire new category soon took over: home movie viewing (and renting). Before long, the home video market actually overtook the theater. And, these days, ironically, what do you hear the MPAA whining about the most? That online sharing is decimating the home video market. Of course, if the MPAA had had its way 20 years ago, we wouldn't even have a home video market.

So the thought exercise of where the movie industry would be today, if the VCR had been declared dedicated to infringing purposes twenty years ago, seems particularly relevant. That's doubly true, seeing as the E-PARASITE bill effectively looks to overturn the court's Betamax decision, and open up the floodgates for the MPAA (and others) to cut off all funding from any new technology it believes is "dedicated to the theft of US property" under the exceedingly broad definitions in the bill.

Take a moment, and consider where the movie business would be today, if the VCR never existed. And think about just how wrong the MPAA was then to freak out about a technology that later saved it. And consider that perhaps we should wait before changing the law to allow the MPAA to kill off the next "VCR" in the digital age.

Recently, Rovio CEO, Peter Vesterbacka attended the Disrupt conference in Beijing. At that conference he walked on stage clutching a bunch of counterfeit Angry Birds balloons. However, he was not angry. He was actually happy. Why is this? Because it showed him that his game is hugely popular in China.

Vesterbacka said that the increase in counterfeit merchandise has influenced Rovio's retail strategy:

There are a lot of Angry Birds products out there, but most of them aren't officially licensed. Angry Birds is now the most copied brand in China, and we get a lot of inspiration from local producers.

Right now, we've proven that there's demand, and we're going for 100 million downloads this year for Angry Birds, and again the same demand for the physical products.

The way we look at it is, of course we want to sell the officially licensed, good quality products, but at the same time we have to be happy about the fact that the brand is so loved that it is the most copied brand in China.

It's great for us to see the demand, and that's why we're building our own stores here. And actually we're building our first stores here, and not in Helsinki... We hope to have quite a few over the next 12 months.

This line of thinking really flies in the face of most content producers. While other companies are ranting, raving and trying to legislate counterfeiting out of existence, Rovio is working to compete against counterfeiters on their home turf. It recognizes that those who buy counterfeits do so because of an unavailability of the real thing. By bringing authentic merchandise to China, Rovio is hoping to increase its revenue and capture a market that is based around its properties. Not only that, but he even admits that Rovio is learning from those counterfeits, and getting "inspiration." It's a form of free market research, so that Rovio can understand ahead of time what consumers want... for free.

There's no reason why this will not work. The Chinese people want Angry Birds merchandise. Rovio is providing said merchandise. That is pure supply and demand at work. It's crazy that many other companies do not get that pure and simple lesson. Perhaps it's time for the CEOs and boards of directors of other companies to take a note from the Rovio playbook and put it into action. They might find a world that doesn't need poorly written legislation like PROTECT-IP/E-PARASITE or secret treaties like ACTA, but rather companies who listen to fans and provide them the goods and services they desire.

It's no secret that the Hollywood studios have a reputation for highly questionable accounting practices, and apparently that carries over into their attempts to show "support" for censoring the internet via PROTECT IP/E-PARASITE. A few weeks ago, we wrote about the totally bogus group CreativeAmerica, which is an astroturfing group set up by the major Hollywood studios, pretending to be a "grassroots" group. Dig a little, and you'll find that CreativeAmerica was actually set up by Disney, Warnber Bros., NBC Universal, Viacom, Fox and Sony Pictures. "Grassroots" that is not. It's made even more obvious by the fact that the folks at CreativeAmerica don't even hide it. If this were really an upstart grassroots campaign, would NBC Universal hand out its mugs to employees, and if it were really an upstarts grassroots campaign, would 20th Century Fox put up a giant banner on its studio lot for the group?

The answer is no. Anyone who takes a few seconds to investigate recognizes that this is a slick studio-run operation... from the same studios that use creative math to never pay royalties to actors in even some of the most successful movies of all time.

So is it really any surprise that they're playing fast and loose with the facts when it comes to puffing up their support. Yesterday, CreativeAmerica (and the MPAA) hyped up on Twitter that members had sent over 100,000 letters to Congress in support of PROTECT IP/E-PARASITE. Of course, if you actually went to CreativeAmerica's website, where the letter generator existed (and, again, unlike all of the letter generators for those against these bills, on CreativeAmerica's site, no creativity is allowed -- you can only send their exact message) you see the following: I'm pretty sure I can count. And, um, 4,191 appears to be just a bit short of 100,000. Well, it actually appears to be 95,809 short. And while it might be okay to round up if you were actually getting close, I don't think rounding up from 4,000 to 100,000 is particularly honest. Two of our regular contributors challenged the studio-run CreativeAmerica on this, and they were both told that CreativeAmerica was also counting the people who signed a Change.org petition. First of all, a petition is not a letter. They're two separate things. So that seems a bit misleading. But, okay, in the spirit of giving Hollywood a fighting chance here, even if we grant them the petition signatures, a look at the actual petition shows the following: Okay, that's 33,000 more signatures. Even if we take all of these at face value, we're at just about 37,500 signatures. Again, even at that point you can't round up to 100,000. Well, I mean, you can, but it makes you a blatantly intellectually dishonest liar. CreativeAmerica: creative about numbers, apparently.

Oh, and let's just take a look at the "reasons why people signed" the petition that CreativeAmerica is so proud of. It looks like almost half of the people who chose to leave a message are asking how to "unsign" the petition, because they didn't realize that the group was an astroturf group looking to go against the best interests of actual artists. Here are a few examples:



So, it seems like a bunch of the folks who "signed" the petition are now asking to back out. Just for the sake of comparison, I spoke to the folks at Demand Progress to find out how many letters they had sent... and the answer is 100,000 in the last week alone, and they have the stats to prove it. On top of that, the Fight for the Future guys have been able to get over 80,000 people to sign petitions. So if we just look at that (and note that the CreativeAmerica campaign has been going on for much more than a week), it seems like CreativeAmerica is taking after its corporate masters on PROTECT IP/E-PARASITE: ignore what the data actually says and lie, lie, lie... all the way up to Capitol Hill.

The saga of Righthaven continues... and may finally be nearing a close. With Righthaven failing to get a court to change the requirement to put up a bond for the $34k it owes in legal fees for its bogus lawsuit against Wayne Hoehn, the deadline for Righthaven to pay up (or post such a bond) has passed. As such, it appears that the court has now signed off on a writ of execution for the US Marshal Service to seek to get from Righthaven the money owed, including additional accrued costs to make the total at stake: $63,720.80. In fact, they're "authorized to use reasonable force in the execution of this Judgment/Order." It seems that missing deadlines for filings may be the least of Righthaven's problems at this point.

Lots of folks sent in variations on the story last week that Apple was able to get a patent on the "slide to unlock" feature. Most of the submissions were outraged that this patent was granted, with many pointing to prior art from before the patent was filed. What most people missed was that this patent, 8,046,721 is actually a continuation patent from an earlier patent, 7,657,849.

The real issue here isn't just that Apple was able to patent something as simple as "slide to unlock," but how it shows the evils of double patenting and the use of continuation patents. We've pointed to problems with continuation patents in the past, in that they have been used to "submarine" legitimate inventions. You could just watch what others were doing in the space, and file a later "continuation" patent on your earlier patent, and have an earlier priority date, despite actually copying the work from others.

The M-CAM document linked above looks deeply at the patents in question, noting how the claims in Apple's original patent were completely rejected three separate times. For whatever reason, the USPTO refuses to really issue final rejections. So those desiring patents, can just keep adjusting and adjusting. The document also is left wondering how come the original claims were rejected while the final claims somehow made it through, noting that the changes seem meaningless: As the report notes: "Evidently, restating the purpose of the patent – that one touches and drags the image continuously – makes it novel and nonobvious after three rejections."

M-CAM's analysis highlights the massive failure of the USPTO examiner here:

First, there are over eight hundred relevant patents that precede the ‘721 by a year, that both Apple and Mr. Gutierrez fail to cite, though 38 of these are owned by Apple themselves. The entities in this relevant space are displayed visually to the right.

In addition, we have a list of 120 related patents, with priority dates of a year before both slide-to-unlock patents, that are in the public domain (read: this technology is FREE TO USE and NOT PATENTABLE AGAIN). A sample of these can be found in Appendix A.

But we’re not done. Going back to the patents the examiner used as evidence to reject the claims of the ‘721 patent – the Tokkonen patent, which is owned by Nokia, and the Gauthey patent, which is owned by Asulab (the R&D division of Swatch Group) – we see that they both deal with either inputting a security code or controlling lock functions. We look at one patent that is never acknowledged by Apple (though it’s been cited by IBM, Microsoft and Nokia in their touch-screen patents), U.S. 6,209,104 which actually provides context for the innovations that the examiner thought to be relevant against Apple – patents that include but are far from limited to the patents the examiner actually considered.

In other words, this patent never should have been granted, and it used the almost always questionable "continuation" process to patent something fairly common, with lots of prior art. Good thing the patent reform bill that recently passed doesn't touch on any of this stuff.