US Copyright Group was the first US operation to really dive into the whole copyright trolling business of suing thousands of people based on weak evidence of infringement and then offering to "settle" for less than it would cost to go to court. It was known that US Copyright Group was a front for DC-based law firm Dunlap, Grubb and Weaver, and a few months later it came out that US Copyright Group was actually a combined effort between Dunlap, Grubb and Weaver and a German "anti-piracy" tracking company named GuardaLey, who had set up similar partnerships elsewhere.

However, as TorrentFreak reveals, in a lawsuit filed against US Copyright Group over its legal strategy (more than 100,000 sued!), it appears that GuardaLey was the real driving force behind US Copyright Group... and its technology for identifying "pirates" has been found wanting (at best). A German court in a similar case found GuardaLey's tracking software to not be very good at actually identifying infringement, since it fails to determine if any work is actually shared. Now, though the RIAA may be pushing for the idea that "making available" equals distribution, some courts have already disagreed. If it can't show actual uploads or downloads, USCG may have a tough time proving infringement.

Even more troubling are claims that GuardaLey set up honeypots to try to get IP addresses to sue. If there's a honeypot, then, as long as the content is accurate, the download is authorized since the companies doing such copyright trolling usually have licenses over the content. Or, if the file is fake, then there's no infringement, since the actual file wasn't downloaded (let alone available).

Of course, we see this kind of thing all the time, with copyright supporters insisting that all you need is an IP address to identify someone. It's a lot more complicated than that, and making that assumption while going after 100,000 people suggests that any nuances around IP addresses are completely ignored.

A few weeks ago, AT&T accidentally revealed that it had a plan to cover 97% of the population with its 4G/LTE service. That's a big deal, because a big part of the rationale for the T-Mobile merger was that it simply could not deliver that kind of coverage without the merger. AT&T has worked furiously since then to basically deny what the filing clearly stated. They've been doing so by trying to change around what basic words mean (which is kind of funny). However, it looks like they haven't convinced one rather important player. The FCC is now asking for evidence that AT&T actually needs T-Mobile as it keeps claiming. It's still pretty likely that this all gets approved, but it definitely has presented pretty clearly how the rationales being given for why this deal is "necessary" are hogwash. No one denies that it will be much easier for AT&T, but that's not the same thing as necessary.

Money can't buy happiness, but if you have enough of it, you can get all kinds of publicity (whether or not you want it). Here are just a few folks that have been named on the various "these people are rich" lists.

• Justin Bieber made $53 million last year, making him the highest paid teenager. Just wait until he starts licensing his hairdo... [url]
• James Patterson was named the world's highest-paid author by Forbes. A Harvard professor described the experience of hearing Patterson give a talk to MBA students: "It was like listening to a can of Coca-Cola describe how it would like to be marketed." [url]
• Politifact rates Warren Buffett's statement that the rich have a lower tax rate than the middle class as "true." Warren Buffett has been saying this for a while, but maybe even though he's rich, people will listen to him, but not actually hear what he's saying. [url]
• To read up on building up your own business, check out some interesting entrepreneurial articles on StumbleUpon. [url]  

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

The latest in ICE's actions to be Hollywood's private police force came earlier this week when the group "protected our borders" by arresting a teen in NY for setting up a website that let people access streams of various Pay-Per-View events. His two domains were seized back during the February "Superbowl weekend" seizures.

There are a few problems with this, of course. First, it doesn't appear that the guy arrested, Mohamed Ali, actually provided the streaming content himself. He just linked people to it. Second, for all of the talk about how ICE is cracking down on these criminal endeavors because they're making tons and tons of money... yet again we see that there's barely any money here at all. Over the course of a year, he made about $6,000 according to the complaint. And, remember, ICE insists that it's only seizing the biggest "pirate sites."

Furthermore, as TorrentFreak notes in its coverage of the arrest, Ali appeared to abide by takedown orders. After Zuffa (the company behind UFC) went after him, he stopped allowing UFC streams, stating on the site "We don't want our site to get into troubles (sic) with Zuffa!" In other words, it seems like existing civil takedown procedures would have worked, rather than wasting ridiculous amounts of taxpayer money to go after a guy for hosting a website pointing people to some streaming sporting events and not making much money doing so.

Aren't there real threats that ICE could be focused on these days?

Righthaven seems to be collecting legal losses like they were going out of style. I wonder if there's ever been a company that has been slapped around so many times by so many judges. No matter how often Righthaven boss Steve Gibson pretends that the courts mostly agree with him and are just "giving guidance" to others, the reality of the matter is that the company hasn't just been losing, it's been getting regularly scolded by angry judges who appear to have no patience for the company's legal strategy.

The latest involves one of the key cases here: the Democratic Underground case. This is the case where the Strategic Agreement between Righthaven and Stephens Media finally came to light, showing that the copyright transfer was a sham. That resulted in the judge dismissing Righthaven from the case. The case kept going, however, because the Democratic Underground had filed a countersuit against Stephens Media to get it into the case. Of course, part of the reason why Stephens helped set up Righthaven in the first place was to avoid having to be involved in these lawsuits. So, ever the dutiful spin-off, Righthaven keeps trying to reinsert itself into the case.

However, yet again, the judge in the case, Richard Hunt, has clearly rejected Righthaven's attempt here (pdf). Hunt says that key reason for not allowing Righthaven back in was because of the timing of everything, noting that even if it's now offering a (twice) "amended" agreement to make its case, it's too late to change things in this case:

Righthaven argues that the application to intervene is timely because it brought the motion soon after being dismissed from the case and rectifying the problems with the SAA by creating the Amended and Restated SAA. The Court disagrees. Righthaven filed this case more than ten months prior to its application to intervene. It is true that Righthaven could not have sought to intervene until it was dismissed, but this is because of the method in which Righthaven chose to pursue this litigation. Righthaven’s application is untimely because ten months have passed since filing, intervention would prejudice Democratic Underground as multiple of their discovery motions were dismissed as moot when Democratic Underground was dismissed, and the reason for delay was of Righthaven’s own making. See, e.g., Cal. Dept. of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2009) (laying out factors to consider in timeliness analysis). In fact, the reason Righthaven now seeks to intervene is to circumvent the Court’s June 14 Order by creating standing and rights after the fact. This is improper and does not make the application timely.

And that's not all:

The Court is dubious as to whether Righthaven can essentially create standing in the middle of a case so as to either prosecute the case independently or intervene. Further, the Court questions whether Righthaven can even have a legitimate interest under any agreement (no matter the rights purportedly transferred) because Stephens Media and Righthaven’s arrangement seems very much like a contingency fee arrangement with an entity unauthorized to practice law.

In other words, the court is listening to the amicus brief filed by Todd Kincannon, which we've discussed before. Kincannon has been the lead voice is arguing that Righthaven is engaged in unauthorized practice of law, so it's interesting to see a judge suggest that he agrees.

At what point do the folks at Righthaven finally realize it's time to give up?

Last year, we reported on the really bizarre lawsuit of video producers Brownmark Films suing South Park, Viacom and Paramount for parodying the bizarre hit viral video What What (In The Butt). You can see the original video below, followed by the South Park parody:

It's worth noting that the actual song had been licensed, and the "singer" Samwell was apparently paid. The lawsuit was over the copyright on the video itself. Back in July a court ruled for summary judgment against Brownmark, noting it was a pretty easy case based on parody grounds. We had meant to cover it at the time, and the ruling is somewhat amusing, as the judge can hardly resist noting the general oddity of the video and the case -- but things got busy and it slipped away.

So, thanks to Nate Anderson for pointing our attention to Duke University's Scholarly Communications Officer, Kevin Smith's post discussing an important point that many overlooked in covering the case: that "fair use" was determined without a trial. One of the many problems with a fair use "defense" is that it's still considered a "defense" to a claim of copyright infringement, rather than a right on its own. That means, most courts have felt that in order to determine fair use, you first have to go through a full trial, in which infringement is proven, and then fair use is brought forth as a defense.

But, in this case, the court skipped all that and said you can determine fair use at the summary judgment stage. That's important. As we've seen, even those who believe they have a strong fair use claim will often settle rather than fight, knowing that the cost of a trial is prohibitive.

What is significant here is that the judge made the fair use decision before there had been a trial. He examined the pleadings and found that everything he needed to make this easy call was already before him. Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it).

Librarians and other academics are often afraid to rely on fair use, even when there arguments would be strong, because of the expense of defending a lawsuit even when you win. Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial. While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence.

In his ruling to dismiss, Judge Stadtmueller explicitly notes that “evaluating an affirmative defense, and indeed the ‘fair use’ defense, at the pleadings stage is ‘irregular’.” But he thinks it is justified precisely because when the case for fair use is “obvious,” “the court can conclude that this dispute does not warrant ‘putting the defendant[s] through the expense of discovery’.” In other words, in straightforward cases, a fair use claim can be evaluated before there is a trial, explicitly to prevent the cost of litigation from itself becoming an obstacle to proper exercise of fair use.

Who knows if other judges will follow this lead -- and, again, this case may be seen as extreme because it's so obviously fair use. But it would be nice if judges were willing to rule on fair use upfront, rather than go through a protracted and expensive trial.

On Tuesday, we questioned John Sununu and Harold Ford Jr.'s assertion that Netflix was somehow getting a "free ride" on the internet these days, by asking if they'd be willing to swap broadband bills with the company for the rest of the year. On Wednesday we upped the ante, by offering to give each man $500 if they'd pay Netflix's broadband bill for the final quarter of the year. $500 would come from Derek Kerton who suggested it, and another $500 would come from us at Techdirt. Since then, a few more people have contacted me and offered (anonymously) to put up another $1,500 between them. So we're now up to $2,500 total (or $1,250 each) if John Sununu and Harold Ford Jr. agree to pay Netflix's broadband bills for the months of October, November and December. Or, you know, they could admit that their op-ed was misleading claptrap. Of course, their failure to accept this "free" money sorta makes that statement for them.

Yesterday morning, I was on a panel discussion at an event, where at one point I was asked about how I choose what to write about. I explained a little bit about the kinds of topics we cover, and then finally said, as I've said for years: "In the end, it comes down to whether or not I find something interesting and if I have something to say about it." I then said: "If there's a story everyone is covering, but I don't have anything to say about it, I don't feel the need to cover it." Hopefully this isn't surprising. We're not a "news" site, but an opinion site. But there's really more to it than that. There's something a little strange in seeing a ton of publications all rushing to cover the same news. There is this focus, these days, on the so-called "SEOing" of the news, where various sites act as "content farms," focusing on writing about whatever's "hot" to try to get the pageviews. As an example of this, earlier this week, right after the East Coast earthquake, I saw someone Twitter joke about an infamous tech news site (who shall remain nameless), saying that its staff were probably rushing out dozens of stories about how the earthquake news spread on Twitter. Anything to get the "pageviews" on searches about the earthquake.

But, as I've said over the years, this strategy makes no sense to me. Why would you ever focus on a strategy of trying to downgrade your content to commodity level, rather than working on content that is unique and actually stands out? Writing the same story that everyone else writes about, without adding anything of value to it just seems like a fool's game. I can recognize that "news" sites feel the need to cover such stories on a completist level, but does the online news reader really need so many stories about a single event? Isn't part of the point of the internet that we can link without having to recreate the wheel thousands of times every time some big news breaks?

Which brings us to the title of this post. When the news broke that a certain famous and visionary tech CEO was retiring, I honestly couldn't think of anything to say about it that wasn't being said everywhere else. But, of course, everyone else felt the need to write something. Just a quick look at Google News on the topic shows nearly 5,000 stories on just that: And that doesn't count the sections below that main one, where tons of folks tried to come up with other takes on the story. There are, as I write this, 157 stories on how various stock markets reacted to the news. There are another 50 or so stories on his health history. Obviously, this is big news and it's important, but should everyone cover it?

I asked, via various social networking platforms, if anyone minded if we just didn't cover the story at all. And I was a bit surprised at how the near unanimous reaction was to thank us for deciding not to cover the news. There were a few people who disagreed. Only one person seemed really surprised that we wouldn't, saying, "he is significant, why wouldn't you" cover the story. One person offered to give us money if we could go three weeks without covering the story (I'm guessing this post may disqualify us). A few people did say they would like our take on "the impact" of the story. In this case, the answer is I have no idea.

So this post isn't about his resignation. It's about this question of how people cover the news online today, and the desire for everyone to "have the story" just because everyone else does. I'm wondering if that really makes sense. I am, of course, quite comfortable with not covering the story at all. There are lots of stories we don't cover. But I'm wondering about the value of so many publications all writing the same basic story. Yes, some (perhaps many) do add value or different perspectives. But the basic facts are pretty much the same.

So, if we don't cover a story, it's not because we didn't see it or don't know about it. Sometimes, it's just because we think it's pretty well covered by everyone else already -- perhaps too well covered -- and our time may be better spent doing something else where we can actually add some value.

Another editorial has appeared supporting PROTECT IP, this time at the Washington Post. The writer, sporting the unlikely nom de plume "Editorial," makes the usual statements rehashing the usual arguments. In true pro-PROTECT IP fashion, it begins by pretending this act has something to do with counterfeited goods:

CITY SIDEWALKS ONCE were lined with merchants peddling counterfeit designer handbags or second-rate copies of popular movies. Such vendors are less commonplace today, but counterfeit goods have proliferated more than ever, thanks to the Internet.

Fake goods - from sneakers to pharmaceuticals - are produced half a world away but can be marketed to U.S. consumers through foreign Web sites.

So far, so what. If anyone is still clinging to the notion that PROTECT IP is being cobbled together to stop trafficking of counterfeit goods, then these few lines of lead-in should allow them to remain comfortably misinformed. Editorial (or "Ed," for short) gets to the real driving force behind the act in the very next sentence:

Some sites stream pirated U.S.-produced or -owned movies and television shows. Such theft costs the copyright- or trademark-holders billions of dollars each year and thwarts the ability of writers, producers, songwriters and others in the creative arts to earn the royalties they are due.

Costs? Really? Piracy COSTS the rightsholders billions of dollars?

Now, you can make the argument that piracy results in lost sales or that a decline in revenues can possibly be attributed to piracy (no really, go ahead... the comment threads are open), but I don't think that you can say that piracy of goods costs these companies anything. Just because the content providers of the US may be routinely filling out large numbers under the heading "PIRATES" in their collective Accounts Payable columns, they are incurring no costs as a result of piracy.

Now, those in the industry may be confused and point to the dollar amount expended to fight piracy as a "cost," but if that's the case, it's very much an optional cost. More to the point, pretty much every dollar spent on this fight is a wasted dollar. For all the good it does them, they may as well just contact major pirates (whoever they are) and offer them X amount of dollars to stop running their piratey websites. Sure, these pirates might take the money and some might even cease their piratical operations, but someone else would take their place and no one would be better off but a limited number of pirates.

In short, discussing piracy as a "cost' when it comes to digital goods is completely misrepresenting what's actually going on here. If we were discussing physical goods, then yes, theft (a word that is perfectly logical when referring to physical goods) could be considered a cost. But when it's just a matter of bandwidth usage paid for by the uploaders and downloaders, then there's no real "cost."

However, the inanity/insanity doesn't stop there. Read on:

Consumers often find themselves saddled with shoddy goods and little or no recourse to get their money back. Unlike domestic sites, these foreign-registered businesses are often out of reach of U.S. laws.

Maybe those consumers who are purchasing counterfeit products are finding themselves with shoddy goods, but I can guarantee you that consumers who are availing themselves of pirated digital goods (movies, music, games) are finding themselves "saddled" with clearly superior goods, free of region locking, DRM, ridiculous street dates, a million anti-piracy intersitials and the like.

It goes on from there, sounding more and more like an MPAA press release than an actual editorial. There's some stuff about how PROTECT IP won't break the internet or violate anyone's free speech. There's talk about how "reasonable" and "fair" it is and how it will only be used to deal with consistent violators (the ever-popular "rogue sites") before wrapping it all up with this paragraph:

The Protect IP Act takes pains to protect Internet service providers, search engines and others that may have done business with a rogue site. They are not required to scour the Internet for offenders nor are they held liable if they happen to host or provide services to a site that is eventually deemed unlawful. They are only required to take "reasonable" and "technically feasible" measures to obey a court order. There may still be room to tweak these provisions to ensure that they are not more sweeping than necessary. But there is a need for a legal tool that stops those who persistently leech off of the innovations of others.

While I would like to believe that efforts enforced by the DHS (in association with the MPAA and RIAA) would result only in tempered responses to the "worst" sites, there is nothing in the collective past of all the entities involved that indicates this would happen. And as has been proven already, what the MPAA/RIAA/DHS feels is reasonable is far removed from what ISPs and search engines feel is reasonable. So the definition of "reasonable" will obviously be left in the hands of those tasked with enforcing the legislation and, as other nations instituting various anti-piracy programs have shown, the public is already persona non grata during the debate of these bills. It can't be too much longer before everyone else on the "outside" of this bill (ISPs, search engines, etc.) finds themselves completely shut out of the input process.

And what exactly is this supposed to mean? "Not more sweeping than necessary?" Everything implemented in a top-down fashion by government entities is "sweeping." The government only knows how to do "macro." That's what government does best. The government should not be in the micromanagement business, but thanks to the fiduciary arm twisting of various lobbyists, it's finding itself in exactly that position. Even worse, "Ed" here is relying on the fact that the government (again, in conjunction with the RIAA and the MPAA) has any idea what "necessary" is and can be counted on to not "sweep" past it.

None of this is truly necessary and as such, it can pretty much be guaranteed that the implementation of PROTECT IP will bring about tons of enthusiastic sweeping with a large number of overreaching brooms. And not only will the taxpayers be handed a broken internet (while being scolded about "why we can't have nice things"), we'll also be expected to pay for the privilege, including any internet repair work down the road.

I'm constantly amazed at the general cluelessness of the video gaming industry on basic economics concerning the concept of the first sale doctrine and the ability to resell a product. More than pretty much any other industry, the video game industry is vehemently against the idea of reselling used games. They've claimed that it defrauds the industry, that it hurts consumers (say what, now?) and that it "cheats developers." All of this is ridiculous and economically ignorant.

The latest to jump into the fray, as pointed out by Copysense, is some industry consultant who basically calls used games sales by Gamestop a version of money laundering:

It is time to for Gamestop to fess up and acknowledge their real business. Relative margins reveal Gamestop's actual business to be the collection and resale of used games. New game and accessory sales revenue may equal or exceed the used game revenue, but they do not come close to matching the profit. The stock of used games is financed by the very publishers who are being harmed by the market. They put up the risk capital to make and market the game and put the unit on the shelf. Publishers receive a one time, per unit fee for putting the game into the Gamestop system and are required to pay marketing development funds to Gamestop to have posters and other promotions in store. But Gamestop does not pay for the games, customers do. Gamestop only provides credit until the games are sold. The consumers' payment covers Gamestop's initial outlay, plus a profit. Because Gamestop pays on terms, the consumers' money is in the bank before Gamestop ever makes a payment on the new game units. If the consumers do not sufficiently cover the expense, Gamestop will call on the publishers for price adjustments and protection. While this business shows a profit with no downside risk, the entire retail side is merely a highly cost effective way of funding the used game inventory. To ensure return of the games, consumers who buy a games are bombarded with offers to turn them back in for credit. Each turned in game builds the used inventory, at no cost to Gamestop. When sold, the only person receiving the benefit, is Gamestop. When I put it this way . . . . I don't want to say it sounds like laundering, but . . . . . They take a game unit a publisher should get paid for, run it though a consumer, and turn into a game unit they can sell over, and over, and over, and over without compensation to the publisher.

Of course, all of this is based on faulty economic theory. They all seem to ignore the fact that a healthy resale market increases primary market sales, by making the primary sale more valuable. It's a pretty simple equation. If I can buy a $60 game, knowing that I can sell it back later, that reduces the risk and the real "cost" to me. That increases sales. Separately, a strong resale market has other secondary benefits, such as hooking people on series of video games, so that they're more interested in buying the "new" (full price) versions.

But, overall, what these gaming industry execs and consultants are whining about is that they just don't like a free market where they can't artificially inflate the market price of games even higher. The used market acts as a check on the primary market to keep it realistic. And, as a result of a more efficient market, you actually have a bigger market. Those who assume that demand is totally inelastic think this is bad, but they don't recognize that game buyers have choices, and one of those choices is not to buy games that are too expensive. It's not fraud and it's certainly not money laundering. It's called keeping a market healthy.

Over the years, we've been threatened with defamation lawsuits more times than I'd like to recall, though nothing has ever come of any of them (even the latest threat, which seemed more likely to end up in court than others). Apparently, we're not alone. Filing highly questionable defamation lawsuits is apparently the hot new Hollywood trend.

Everyone who's someone is getting in on the action. Of course, almost all of these lawsuits are unlikely to get very far. Defamation of a public figure has to involve "actual malice" rather than just false statements, and it's pretty rare that any of the statements rise to that level. And, really, so many of the claims seem pretty ridiculous anyone, in that no one is actually taking them at face value. Take, for example, Lindsay Lohan's latest ridiculous defamation lawsuit against the rapper Pitbull for including the line: "I got locked up like Lindsay Lohan." Lohan's lawyers are claiming that such a "disparaging or defamatory" lyric is "destined to do irreparable harm." Seriously? Does no one put these things through a reality filter?

Of course, Lohan is also the celeb who once sued E*Trade for $100 million, because one of its commercials referenced a baby named "Lindsay," who was described as a "milkaholic." Nothing in the ad implied that this baby "Lindsay" had anything to do with Lohan. But she still sued.

Like certain other laws, the root cause of defamation laws seem to make a lot of sense. If someone is publishing or saying completely false things about you, shouldn't there be some form of recourse? But, as we see more and more of these ridiculous claims, I'm beginning to wonder if defamation law really makes much sense any more. It made a lot of sense when you had gatekeepers for getting information out to the world. If a newspaper lied about you and there was no way to get your response published, defamation lawsuits could help solve that. But, today, anyone can publish and anyone can speak up. In fact, there are stories all the time about "big bad things" that people or companies do to others.

In an age where most of the gatekeepers are disappearing, it seems like the answer to defamatory speech should really be "more speech," in all but the most extreme cases. Instead, even though the "actual malice" standard should forestall most of these suits, we get dozens of such lawsuits that seem to be because someone's feelings are hurt. That's not what defamation law is about, and it seems more like such lawsuits should qualify for anti-SLAPP sanctions, as they too often appear to be attempts to get someone saying something that's "not nice" to shut up.

We've covered the overreach of law enforcement several times here at Techdirt. Whether it's cops objecting to being filmed, cops abusing wiretap laws to prosecute those who have filmed them or cops acting at the behest of their cities to shut down rogue lemonade stands, it's all been detailed here.

Finally, thanks to Reason's Hit & Run blog, we can finally bring you the Holy Trinity of excessive law enforcement: Cops + Cameras + Lemonade Stands! Reason's Mike Riggs has the details:

A Concord man giving away lemonade at a farmer's market was threatened with wiretapping charges last Saturday when he refused to stop filming a police officer and a fellow vendor. Garret Ean didn't have a permit to sell lemonade, which drew the ire of the president of the Concord Farmer's Market. Ean filmed the confrontation, and continued to film when a Concord cop showed up and threatened to arrest him for wiretapping.

Ironically, Ean wasn't even selling lemonade. He was giving it away to celebrate Lemonade Freedom Day. So, in response to him showing his solidarity with this cause, he is first hassled by Steve Blasdell, who is apparently in charge (or so he makes it appear) of the Concord Farmer's Market and makes various attempts to bluster Ean out of the area.

When this fails, Blasdell goes for the camera. Unfortunately for Blasdell, Ean remains in control. At that point the only reasonable response is... call the cops! Yes. Exactly. Someone as threatening as a skinny guy armed with a half-bag of plastic cups should be dealt with by professionals trained in the art of subduing skinny guys armed with plastic cups and (unfortunately for them), a printout of the state's wiretap law.

The cops show up and inform him that they "won't arrest him today." Well, god bless 'em. Still, a simple "this looks to be within your rights as a citizen" would be so much nicer than an open-ended threat. In between all the action, some kids take advantage of the free lemonade offer.



At what point, as either the self-appointed mayor of a certain street or as an employee of the city (read: taxpayers), do you find it necessary to curtail this sort of behavior? At what point does it seem like this would further relations between anyone involved? Is it impossible for some people to walk by something that strikes them oddly without feeling the need to enforce something?

There are probably no answers to these questions. I would imagine that the first two questions were never considered and the last question is largely rhetorical. But despite its rhetorical nature, we see answer after answer arriving, often captured on camera.

Yesterday, I went to the Computer History Museum in Silicon Valley for a lunchtime debate on software patents. It was one of those things where an official "motion" was put forth, and then people voted before and after to see if the debate changed anyone's mind. In this case, the motion was simple: "software patents encourage innovation." Arguing for the motion was Bob Zeidman, a consultant/writer who sells software for... analyzing intellectual property. Arguing against the motion was Edward Lee, a Berkeley CS professor. The audience, as is (unfortunately) typical at the Computer History Museum definitely skewed "older." I ended up at a table with some guys who worked at IBM many decades ago. There were also a fair number of patent lawyers in attendance.

There's this view outside of Silicon Valley that folks here love patents, but in my experience, most people don't seem to like patents at all. They get in the way of actually innovating -- as we've shown time and time again -- and the thing that Silicon Valley folks like more than just about anything else is building something cool. The idea that someone else can sue you for building something cool just seems incomprehensible.

Before the debate, the vote was already against the motion: 64 people voted for the motion (35.7%). 89 people voted against (49.7%). Another 26 didn't vote at all.

The debate itself struck me as rather tame. Niether side really made as strong an argument as they could. Obviously, given what I write about here, and the rather staggering evidence that's out there that the patent system tends to do a lot more harm than good, I was inclined to support Lee "against the motion." But even there, it felt like he could have made much stronger arguments. For the most part, he just repeated claims from James Bessen and Michael Meurer's book Patent Failure. It's an excellent book and completely worth reading, in large part because it cites dozens of studies to show how the costs of the patent system greatly outweigh its benefits. It's definitely a good starting point, but there's a lot more out there that let's you take their argument further, and I was a bit disappointed that Lee didn't do so (though the debate format is a tough one). For example, Lee repeated a few key claims from Patent Failure, such as the idea that patents don't work well as property, because the reason "property" works is because there are clear boundaries. But, with patents, the boundaries are (often intentionally) unclear, meaning more and more litigation. Good property rules should mean less litigation.

But all that presumes that property rights make sense around ideas. And there's a strong argument that they don't. I also would have liked at least some more discussion about the fact that so many patent lawsuits involve work that was independently invented. Lee mentioned it in passing, but it's a key point in this debate, and it wasn't highlighted nearly enough.

Lee did get in a few good one-liners, though, which the crowd appreciated. He noted that in Silicon Valley today, if you actually do something well, you're guaranteed to get sued for patent infringement. Separately, he argued that patents tend to encourage more patents, rather than innovation. The one point he "conceded" was that patents did seem to encourage "innovation" in one area: Zeidman's arena of writing software to analyze patents.

The one point he made that struck me as compelling and not discussed nearly enough was his response to the common claim that patents are all about "disclosure," and without patents everything would be kept as a trade secret. There are a bunch of good responses to this that we've discussed in the past, but he noted (1) that patents don't seem to disclose much that is useful to a software developer and (2) that the real purpose of "disclosure" is education, and there are better ways to educate software developers. I hadn't made that connection between disclosure and education before, and it's a good point.

As for Zeidman, not surprisingly, I found his arguments completely uncompelling. He kicked off with an attempt to play to the ego of the crowd, asking them how many had programmed stuff, and how many of those people felt that "just anyone could do that." He was a little surprised that some people said, yes, just about anyone could program what they programmed, and accused the audience of being too modest. But, really, this argument is a total non-starter. He used it to claim that creating software is a "creative skill." That's true, but it's meaningless. The patent system has nothing to do with encouraging creativity. And, more importantly, the very crux of this particular debate for many people is that software is already covered by copyright. And the whole "creative" part is the part that copyright covers. So what does that have to do with patents? I submitted that as a question, but the moderator didn't ask it. The whole argument made no sense in the framework of what was actually being debated.

The other thing that caught my attention was that Zeidman tried to brush off the argument of patent trolls suing the companies who actually innovate, by suggesting it's not really a big problem. He specifically stated that "less than 2%" of patent lawsuits involve patent trolls. That number struck me as ridiculously low, so I first asked folks on Twitter if that could be possible, and received back a few responses, including from Mark Lemley, who said the real number is between 25 and 40% depending on how you count. Separately, a few folks pointed me to a research paper by Colleen Chien, which suggests the number has been growing recently, and agrees with Lemley's basic range. For example, from 2006 to 2008, defendants sued by trolls represented 36% of all defendants sued.

After the event I went over to ask Zeidman about the 2% number, and he claimed that he actually thinks that estimate is too high. He mentioned that he cited the source in the Wall Street Journal, but the only citation I can find that seems to match is a claim that "roughly 2%" of patents end up in court. Perhaps he means that he used the 2% number from the Wall Street Journal somewhere else, but the fact that only 2% of patents end up in court (which seems ridiculously high, actually) has nothing to do with how frequently trolls are suing companies.

Anyway, after an hour-long debate, another vote was taken, and since a bunch of folks showed up in the middle, the numbers were higher across the board: 70 people were for the motion that software patents are good for innovation, 112 were against and 42 didn't vote. On a percentage basis, those supporting software patents dropped to 31.3% and those against rose marginally to 50%. Given the fact that there were a fair number of patent lawyers in attendance (one sitting at my table mocked the whole debate because no one defined software patents, and then argued that Professor Lee was probably a hypocrite, because while he contributed to open source software, he probably wanted to get paid for his book), and they seemed to be the most vocal in supporting software patents, it seems likely that of the actual developers in the audience, well more than 50% were against patents for software.

We had mentioned earlier this year how NBA player Chris Bosh had sued the producers of the reality TV show Basketball Wives for having an ex-girlfriend of his on the show. He claimed that it was a violation of his trademark, publicity rights and life rights. Oh yeah, he also complained that since the woman was never his "wife" there's a problem with the name of the show. Beyond just suing the producers of the show, he also sued the woman for appearing on the show, and she countersued him in part because she was soon kicked off the show. Either way Bosh and the producers settled, but the lawsuit against the woman continued... but has now been tossed over jurisdictional issues. You see, neither Bosh nor the woman, Allison Mathis, are in California, where the lawsuit was filed. Amazingly, Bosh tried (and failed) to get around this by saying that, well, she "has mastered a California accent." The court, pretty clearly, did not find that a compelling explanation for why the case belonged in California.