Another day, and another group of folks points out how SOPA/PIPA will cause problems. This time, it's a large group of folks involved in the production of educational content and services -- including folks associated with MIT's OpenCourseware project, the Internet Archive, Creative Commons, Harvard, Stanford and many other places, pointing out that SOPA/PIPA threaten the innovation and adoption of technology in the education space:

Today, there are myriad sites that encourage lawful distribution, remixing and redistribution of educational content (e.g. Curriki, Connexions, P2PU, YouTube, CK12). These services are democratizing access to educational content.

Of course, sometimes they are misused. Fortunately, today the Digital Millennium Copyright Act safe harbors craft a careful balance -- a content owner would issue a DMCA takedown to remove the content, but otherwise the platform is not held liable for alleged copyright infringement.

These bills would undermine this framework and chill the creation of educational content. Sites that host or use user-generated content could be required to monitor their site for infringing material, and could potentially have their domain name blocked by the government if content owners thought that infringement was occurring on that site. This represents an entirely new legal power given to content owners to control the flow of content online and to shape the very foundation of the Internet. Indeed, it could lead to entire sites becoming unavailable due to the behavior of a tiny minority of confused or malicious users.

Will Congress still ignore all of these complaints?

This is barely even worth mentioning, but it's making some news, so we'll point it out. The MPAA's point man on SOPA/PIPA, Michael O'Leary, told the press today that they're willing to "tone down" the legislation in response to the "legitimate concerns" raised:

“We will come forward with language that will address some of the legitimate concerns” of technology companies that have opposed the Stop Online Piracy Act in the House, and a similar Protect I.P. Act in the Senate, Mr. O’Leary said.

First of all, this is nothing new. Rep. Lamar Smith, the official sponsor of the bill had already been on record using that exact same phrase: "legitimate concerns." The thing is, what they consider to be "legitimate concerns" are basically none of the concerns that many people have raised.

The more telling point in all of this is the outright admission that the MPAA is the one writing the bill. We've seen some reports making the rounds where defenders of the bill keep insisting "this bill isn't being written by Hollywood," but in the quote above, you can see that O'Leary is confirming that the MPAA is providing the language. The NYTimes report makes this point even clearer:

He said those who were pushing the far-reaching antipiracy legislation have been huddling with Congressional staff members from both parties and both the House and Senate in the last few days, in an effort to answer some objections raised by Google, Yahoo and others who say the bills reach too far.

Notice who's not included in those discussions? That's right. Everyone who raised objections. How the hell do you address concerns if you don't actually include the people who are concerned? The answer is you don't, and the whole thing is a sham. O'Leary also points out that most of the tech folks still won't be satisfied, which basically is an admission that he doesn't actually care about the concerns. From there he starts making stuff up:

“It’s all rhetoric and there are no proposals,” he said of the position staked out by the opponents to the bills. “From where I sit, it’s hard to see that as anything but a pretext for running out the clock and preserving the status quo.”

The thing is, O'Leary knows that's untrue. He knows damn well that plenty of folks have presented or are working on alternative proposals. It's just that when they're not allowed in the discussion at all, it's kinda difficult to have those proposals heard. Meanwhile, as we noted earlier, Senator Wyden has already said he's working on an alternative bill. Pretending otherwise is simply false.

The moon is a nice place to visit, but you probably wouldn't want to live there. We've left quite a bit of space junk behind on the surface of our nearest natural satellite, but maybe someday we will go back and clean up after ourselves. Here are just a few more quick links about some moon projects.

• Shackleton Energy wants to be the first company to set up a lunar base for mining the moon and offering a re-fueling depot for spacecraft. If you think gas prices are high, the prices for refueling cryogenic liquid propellants in space are insane... [url]
• NASA has released a detailed map of the moon using data from the Lunar Reconnaissance Orbiter (LRO) spacecraft. A single pixel on this map corresponds to about 100 meters of elevation on the moon. [url]
• If you've ever wondered what the moon smells like... there's an app for that. Spoiler: It smells like gunpowder, not cheese. [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

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

I have a friend who is obsessed with the fast food restaurant Chick-fil-A. Many years ago, he made me travel nearly two hours once just to get lunch there (the nearest one to the Bay Area is way outside of town on the way to Sacramento). Given all the talk about it, I expected it to be quite an amazing restaurant. I wasn't prepared for it to be a dingy mall fast-food/food court place. They make a decent chicken sandwich, but it's hardly worth going out of your way. Either way, I definitely won't be going out of my way for Chick-fil-A again, because I try not to patronize businesses that are insufferable intellectual property bullies. As a whole bunch of you have been submitting, the fast food restaurant has threatened a Vermont Artist for using the phrase "Eat More Kale." Chick-fil-A pretty clearly does not do a brisk business in kale. In fact, I'm pretty sure no kale has ever entered a Chick-fil-A kitchen. However, Chick-fil-A has an ongoing marketing campaign, involving cows urging people to "eat mor chikin." It has somehow decided that any version of "eat more" is too close and that morons in a hurry would be confused.

I'd really like Chick-fil-A to point out the moron in a hurry who would see "eat more kale" and suddenly get confused into biting into a clucking bird instead.

Now, it is worth noting that the artist, Bo Muller-Moore, may have brought this partially upon himself by applying for a trademark himself on the "eat more kale" slogan -- which is likely what prompted Chick-fil-A to send the letter opposing the trademark and challenging the phrase. This is what happens when we battle over who can try to lock up the English language. Either way, Chick-fil-A looks like a world class trademark bully, clearly overstepping the powers given to it under trademark law. "Eat mor chikin" is trademarkable not because of the phrase "eat more" but for the full phrase, including the misspellings. Pretending that any version of "eat more" is a trademark violation is simply an attempt to expand the trademark well beyond what is reasonable.

For whatever reason, some people falsely seem to think that part of what I argue is that no one should ever try charging money for digital goods. Nothing is further from the truth. I have said over and over and over again, the important thing is figuring out what it makes sense to charge for, and what it doesn't make sense to charge for. The problem we have is when people just assume that because they put a price on it, that's the right price. On top of that, those who charge without recognizing the potential pitfalls of charging for things in certain situations shouldn't complain when that effort fails. But if you do it right, you can absolutely charge for certain digital things -- and, in fact, many of the examples we point to of success stories involve charging for digital things.

Aaron DeOliveira points us to another fascinating example, involving the free-to-play online video game, DarkOrbit. Within the game, there's a special item, known as the 10th drone -- or the Zeus Drone -- that is highly desirable. As you might imagine, to get the 10th drone, you first have to get all 9 previous drones... and some blueprints to make the 10th drone. Apparently, this is quite involved. BigPoint, the company behind DarkOrbit, also tried another tactic: the company has run an occasional promotion, where you can buy the 10th drone for 1,000 euros (~$1,330). Here's the amazing part: apparently two thousand people paid, bringing in about 2 million euros, or $2.7 million. For a single digital item. Update: Or.... not quite. A clarification makes it clear that it did not bring in that much. People did buy, but they had to buy with in-game currency. You can sometimes buy such currency... and sometimes it's discounted. If it wasn't discounted and you had none in the game... then the cost of the drone would have been 1000 euros. As that's not likely to be the case, while the game did still sell 2000 such drones, it was clearly for less money. However, it is still an example of where people can be willing to pay if done right... just not as amazing.

But the real key here is in what they did to make this possible. First, used "free" to get lots of people in the door, connect with them, and make them totally bought into the game, such that they'd be willing to spend. Then, build up the overall "value" of such an item, and then offer it in a way that people really wanted to buy even at what many of us might consider to be an insane price. However, it's a perfect example of how if you really connect with fans, and carefully figure out what it makes sense to charge for... you can do quite well.

We've noted widespread, mainstream media coverage of the massive problems with both SOPA and PIPA (PROTECT IP). With papers like the NY Times and the LA Times coming out against SOPA, this isn't just a fringe issue any more. But you know where it's been almost totally absent? TV news. In particular, cable news has been totally ignoring the concerns with the bill. Want to take a guess as to why? Perhaps it has something to do with the fact that all of the big TV news channels -- Fox News, MSNBC and CNN -- happen to be owned by the very companies that are the biggest supporters of this bill. NBC Universal, of course, has been making a big push to get the bills approved. Think they would allow SOPA/PIPA criticism on the air?

So, it's interesting to see that someone who is willing to discuss this issue on TV is Keith Olbermann. Love him or hate him (and I recognize the strong emotional feelings he brings out in people), he's still a big name in TV news... just not on one of the big channels any more. As you may recall, he had a bit of a "falling out" with MSNBC. One of the points he made when he signed on with Current TV was that he constantly felt some pressure not to piss off corporate ownership:

During the conference call, Olbermann acknowledged another upside in his new arrangement: not being tied to a larger corporation like Comcast or G.E. Olbermann said the “purity of this operation” is that he doesn’t have to worry about whether what he says on air will affect the conglomerate's other non-news businesses.

"There is nothing on my shoulder other than getting the best news, information and commentary show on the air every day," Olbermann said, adding later that in writing practice shows, "I’ve stopped myself from stopping myself."

Thus, it should come as no surprise that while the big cable channels seem to have a blackout on anything criticizing these bills, Olbermann had Senator Wyden come on to discuss the problems with the bill, as well as some of Wyden's suggestions for ways to fix the bill. Wyden also noted that he's working on a bipartisan alternative bill that doesn't involve censorship or breaking fundamental tenets of the internet, and which (hopefully) won't hold back innovation online. We'll certainly be interested to see what he comes up with.

Either way, it kind of makes you wonder how much longer the big cable news channels can continue to ignore the story... and what that says about the editorial independence of their reporters and commentators. Still, the message should be loud and clear for those working at any of those stations: if your corporate bosses get pissed off at you for challenging them on SOPA/PIPA... the internet will be quite happy to embrace you.

The legacy entertainment industry absolutely loves to blame Google for its problems. As I've noted in the past, it's mostly a correlation-not-causation error. That is, they see their own difficulty in adapting and sinking revenues (mainly at the record labels) and they see Google making a ton of money -- and they conclude that the two things are related, and that Google must be to blame. That's why they keep demanding that Google "take action" against the so-called "rogue sites." It seemed like a reasonable question, then, to see just how much traffic Google actually sends to these sites. Thankfully Compete tracks a lot of this kind of data... and the MPAA recently handed us a list of "rogue sites" to look at.

Pulling up the data on traffic sources for every site listed there shows that taking the big search engines out of the equation would barely matter. Across all 19 sites listed, 85% DOES NOT come from search (Google, Yahoo and Bing). Specifically, across all of those sites, the big three search engines deliver a whopping 15.2% of the traffic to those sites. Google sends about 11.5% of the traffic. Remove search links... and those sites will see a slight dip -- at best.

Of course, not all of these sites are equal, so we decided to look more closely at the favorite bogeyman of the legacy entertainment industry: The Pirate Bay. To hear the industry tell the story, if Google just blocked The Pirate Bay from its results, traffic would dry up. The evidence there suggests that the entertainment industry doesn't have the facts on their side (do they ever?). Google search drives slightly less than 22% of The Pirate Bay's traffic. Considering how many sites rely on Google for traffic, this is well below average. Add in Yahoo Search and Bing, and we're still talking about less than 28% of TPB's traffic actually coming from search.

And of that search traffic, what are people searching for? Well, most are searching for some variation on "the pirate bay." We looked at all of the search traffic to TPB for the past three months. The top 16 search terms that send traffic to TPB are some variation on the site's name. These are the top eight search terms, for example:

1. pirate bay
2. the pirate bay
3. piratebay
4. thepiratebay
5. tpb
6. piratebay.org
7. pirates bay
8. thepiratebay.org

In other words, people getting to TPB from Google already know exactly what they're looking for. It's actually pretty rare for people to just randomly search on an artist's name, and have Google send them off to The Pirate Bay. In fact, going through the top 100 search terms that take people to The Pirate Bay, less than 30% appear to be direct searches for infringing material -- and only two of those don't involve the material in question and a word that shows the person is clearly looking for infringing material (mostly "torrent", but sometimes "serial number" or something like that). Meaning that only 2 of the top 100 searches that drive people to The Pirate Bay actually involve people just searching for content without making it clear that they're looking for either TPB or a torrent file specifically. Those two searches? "Drake take care download" and "r kelly sex tape."

Take Care, of course, is Drake's high profile new album -- the same one that Drake made clear he didn't mind if people listened to the leaked versions online -- effectively sanctioning people to search for the downloads. It's also been a highly successful album on the sales front, anyway -- selling over 600,000 copies in its debut week. Doesn't sound like Drake is really suffering because of this search. As for the R. Kelly tape... well... let's just not go there.

Still, the point is pretty clear: Google and the other search engines don't really drive that much traffic to TPB (or other so-called "rogue sites"), and an awful lot of the traffic they do drive... is people searching for TPB itself (meaning they're just using Google as a shortcut, rather than to "discover" infringing works). And, when Google does drive people to specific content, it's usually because the person is already looking for what's almost certain to be an unauthorized version. Thus, the picture the industry paints of people doing innocent searches for authorized content, and somehow being waylaid by Google pointing them to TPB just isn't seen in the data. At all.

Force Google, Yahoo and Bing to "block" links to TPB and it will have almost no impact on traffic to TPB. It may annoy some people who use Google for navigation (rather than discovery), but it won't stop them from going to TPB, since that's clearly what they want. The drive to force Google to either block or "warn" people about these links seems entirely pointless based on the data. So, once again, the data suggests that the industry is in hysterics based on reasons not supported by the data. The effort to make search engines block links would be a total and complete waste of time.

I've written about best-selling author Barry Eisler a few times, for his recent decisions to turn down a half million dollar publishing deal in order to focus on alternative paths to bringing his books to market (first self-publishing ebooks and then doing a deal with a much more innovative and nimble Amazon). I had the pleasure of meeting up with Barry for lunch recently, where we had a fascinating conversation on a variety of topics -- some of which we decided to turn into a few interview posts for Techdirt. The first one is on copyright, a subject Eisler is quite familiar with. Prior to becoming such a successful author... he was an IP lawyer. Of course, now, as an author, many might think he would support stricter copyright laws, but he actually goes the other way and makes a bunch of cogent points not just on copyright in general, or even the legal proposals like SOPA and PIPA, but also why we're in such a situation with those laws being proposed.

Techdirt: While millions of people know you as a bestselling novelist, many people might not realize that prior to your career as a writer you were an intellectual property lawyer. Obviously, the combination gives you an unusual perspective on the question of copyright law. What are your thoughts on the state of copyright law today?

Eisler: It’s out of balance. The purpose of copyright laws—indeed, the purpose of intellectual property laws generally—is to create a limited monopoly on the part of the copyright holder sufficient to incentivize artists and inventors to create. The theory behind copyright is that without a means by which they might profit from their work, many artists might not bother, in which case the wider society would be denied the benefit of paintings, movies, music, novels, software, etc. But extending the monopoly past the point at which it creates the incentive itself is harmful to society, because doing so keeps copyrighted works out of the public domain. Think of it this way: anything beyond what’s required to incentivize artists is a windfall to artists and a detriment to society.

Historically, copyright law has moved in one direction only—it’s expanded. A common theory of copyright is that great protections must be good for authors, and if it’s good for authors, it’s good for the public. In your experience, is that accurate... and as an author, how do you feel about this view of copyright law?

Many people approach the question of how long a copyright should endure from the standpoint of what’s fair to artists (purely coincidentally, many of these people are artists). “But the artist created it!” the thinking goes. “Shouldn’t she profit?”

The answer is yes—but unless you believe that, for some sort of artist-centric moral reason, the artist should profit forever (along with her heirs into perpetuity), the next question is, “For how long?” And this question is properly answered not only by reference to profits for artists, but also by a consideration of benefits for society.

Imagine you’re starting a new country and that you have three alternatives for the creation of the country’s copyright law. You can have no protection for artists at all, in which case less art and fewer useful inventions will be produced, meaning that society is denied the benefit of these unproduced items. Second, you can have copyright protection lasting forever, in which case art and inventions will be available but always at a price. Third, you can have a limited copyright term just sufficient to incentivize the production of art and useful inventions, in which case art and inventions will be available and in relatively short order will become part of the public domain. Of these three possibilities, if your primary concern is what is good for the wider society, you’ll design your copyright laws based on #3, and you won’t have a term that’s a day longer than what you judge necessary to incentivize artists and inventors.

Copyright terms have grown to be over a century. No reasonable person can claim that, with a term of less than a century, artists wouldn’t be adequately incentivized to create. So current copyright terms are clearly too long from the standpoint of what’s best for society overall. Personally, I think a twenty-five year term would be more than enough. Anyone who claims he wouldn’t bother creating if he could only commercially exploit his creation for a quarter century wasn’t going to create anything worthwhile anyway.

Frequently, the battles over copyright law are positioned as being the “tech industry” vs. the “content industry.” And yet, many of the innovations from the tech industry have resulted in a much healthier content industry—since the tech world provides many of the tools that help create, distribute, promote and monetize works. As someone who’s lived in both worlds, is this a battle between two sides? If not, why do you think many view it that way?

I don’t see it as a battle at all, for precisely the reason you articulate. For example, I sell more books now in digital than I ever did in paper, so without the advent of digital distribution technology, I’d be making less of a living from my books. Now, digital enables piracy in a way paper never did, so you might argue that digital is bad for authors, but this argument is belied by my own bottom line and that of increasing numbers of other authors. In fact, anyone who thinks that new distribution technology, by enabling piracy, must be bad for artists must also believe artists were better off in the age of papyrus scrolls and stone tablets, which, as we all know, are notoriously difficult to pirate.

Anyway, all these concerns about new technologies enabling piracy are missing a larger and more important point. To prove that piracy has hurt an artist’s profits, you have to demonstrate that: (i) the artist would be making more money in the absence of the pirate-enabling technology than in its presence (that is, that for example a novelist would be making more money in a pure paper world than in an increasingly digital one); and (ii) pirates, if somehow denied the opportunity to pirate the artist’s work for free, would have instead purchased a legitimate copy. These are exceedingly difficult things to prove and so far as I know no one has ever offered empirical evidence in support. By contrast, there is ample empirical evidence to show that piracy actually boosts legitimate sales.

One other thing you’d have to do to prove that piracy is harmful: you’d have to screen out the benefits of piratical word of mouth. Because how many legitimate copies were purchased as a result of the wider awareness of the work caused by pirates accessing it for free? Novelist J.A. Konrath, for example, practically begs people to pirate his books, and has sold over a half-million legitimate copies in part as a result. Anyone who believes there’s no word-of-mouth benefit to piracy must also believe there’s no word-of-mouth benefit to library loans.

The only way to fight piracy, and the best way to turn it to your advantage, is with cost and convenience. Fighting piracy with DRM and lawsuits is not only futile; it’s actually detrimental to the artist’s bottom line.

As to why some people insist on viewing the relationship between content and distribution technology as a battle, I think it’s a manifestation of a weird but widespread human tendency to think in either/or terms when more often things are both. Look at the way digital publishing is often discussed, with many people, including authors, insisting that writers must be legacy-published or self-published when common sense and empirical evidence demonstrate that in fact, authors can (and often should) be both.

I think there’s an element of fear at work, as well. After all, if we’re making a living one way and something disruptive comes along, it’s natural to see the new thing as a threat to what’s established rather than as an enabler of something even better, and we’ll often fight the new thing rather than opening our minds and figuring out a way to embrace and exploit it. Natural, but from a business standpoint, counterproductive.

Do you have any thoughts specifically about the new bills proposed in Congress to expand copyright law (SOPA in the House, PROTECT IP in the Senate) by making third party service providers liable for certain forms of infringement and/or requiring them to cut off access and services to accused websites?

I’d call these bills insane except that, like many bills that seem insane when you judge them by their ostensible purposes, this one begins to make a great deal of sense when you understand what it’s really intended to do. For example, you might wonder why the Bush administration scooped up thousands of terror suspects and tortured them in Guantanamo and black sites, or why Obama administration has been so public about its torture of accused Wikileaks whistleblower Bradley Manning. Both cases, at first blush, seem to be public relations disasters for the politicians in question, and it’s only when you understand what these politicians are in fact trying to accomplish—a demonstration that the US government can pluck you out of any recognizable legal framework, prevent you even from access to a lawyer and from visits from the Red Cross, hold you indefinitely and abuse and torture you mercilessly—that you can begin to understand that these policies are not insane, but are instead carefully designed to strike fear into the hearts of anyone who might oppose US policy or undermine its obsessive secrecy.

Similarly, you might think Obama’s attempts at health insurance reform were a fiasco, until you realize that it makes perfect political sense for him to pay lip service to progressive goals so as to garner progressive votes, and then blame Republican obstruction for the failure to achieve those goals and for the passage of insurance industry-serving legislation instead, thereby ensuring continued receipt of industry campaign contributions. Votes from the base; money from the corporations. Every politician’s wet dream, and no accident when it happens.

So yes, on the surface, the notion that the government might via SOPA shut down any website that doesn’t police content to the government’s satisfaction seems insane—as insane as penalizing kitchen knife manufacturers for stabbings or automotive companies for drunken driving or telcos for crank calls. But when you consider that SOPA will not only grant content providers enormous power to intimidate and disable content outlets of which they disapprove—a shortcoming that has been extensively covered here on Techdirt and elsewhere—but also that SOPA will give the government, too, unprecedented power to police Internet content, you start to understand that from a certain nefarious perspective, SOPA begins to make a great deal of sense indeed. And for anyone who values Internet freedom, such a purpose and result should be extremely disturbing and worthy of a fight.

As someone who has long relied on new technologies yourself—and who is now betting strongly on ebooks—do you worry about the unintended consequences of bills like these to actually do more harm than good to your own efforts as an author?

I do. Every time content providers try to slow, control, or stop new distribution technology, they wind up hurting not just consumers, but also themselves. Hollywood fought television and then video recorders, both of which turned out to be huge Hollywood moneymakers after Hollywood’s litigation attempts failed. The music industry succeeded in destroying Napster, and in the process helped turn Apple into the world’s largest online music retailer, with the record labels as its supplicants. Lower-cost, more efficient distribution methods are developments content providers should embrace, not attempt to stymy, and fighting technologies that benefit consumers is about the best way I can imagine to lose money, create new pirates, and seed business opportunities to competitors.

And of course, then there’s the problem of a new Chinese-firewall level of governmental control over content. But as I note above, that’s not an unintended consequence. That one is by design.

What would you say to the big traditional publishers in New York who think laws like this are necessary?

I’d tell them to make original mistakes instead of repeating ones already made by the music and movie industries. I’d tell them to stop relying on monopoly rents to shore up their business and learn to compete in the digital marketplace, instead. I’d tell them that properly understood, digital distribution is an enormous opportunity, not a threat, and if they could only focus on building windmills rather than windbreaks, they could survive and even thrive in the digital world that, whether they like it or not, is fast displacing analogue.

Thanks to Barry for an enjoyable conversation. We'll have a further discussion more specific to publishing and his experiences there soon....

The issues of SOPA/PROTECT IP and censoring the internet are slowly creeping into more mainstream news sources. PBS Newshour hosted a brief debate, mostly focused on the recent domain seizures. The debate was between Steven Tepp, the former Copyright Office official, who jumped ship to the world's largest lobbying organization, the US Chamber of Commerce (who, along with the MPAA has been leading the charge in getting SOPA and PROTECT IP approved) and Larry Downes, author and consultant, whose excellent work on both the domain seizures and SOPA/PIPA we've mentioned repeatedly. Unfortunately, as you might expect in 10 minutes, it's hard for anyone to get into much depth. I think Downes made a key point early on in noting that these domain seizures are almost entirely "symbolic," since the sites themselves aren't seized.

But what I really wanted to focus on was how Tepp misleads with statistics. This is a specialty of the US Chamber of Commerce, and Tepp plays exactly to expectations here. First, you can watch the full 9 minute video, if you'd like: And let's call out the specific examples of how Tepp misleads with stats:

"The scope of the problem is unbelievably huge. Rogue websites -- those dedicated to the theft of American intellectual property, our creative and innovative products -- get over 53 billion visits every year. That's 9 visits for every human being on the face of the earth. And they've been estimated to do at least $135 billion in harm to legitimate businesses. The products they sell are made in completely unregulated facilities, and can often be, not only shoddy, but harmful to consumers' health."

So much misleading in one little paragraph. Lets start with the 53 billion claim. Guess what? It's from a US Chamber of Commerce-funded study by an anti-piracy monitoring company called MarkMonitor. And the details suggest serious problems with the study. First, the study itself was based on Alexa, widely considered the least accurate web traffic measuring tool out there. Second, the number of "visits" to any site is an especially meaningless number -- especially when trying to discuss the actual economic impact of such visits. Who cares how many visits there are if we don't know anything about what people do on those sites?

Third, a large percentage of those visits all come from three sites: RapidShare, Megavideo and Megaupload. These are three cyberlockers that the industry has declared as "rogue," but which have significant legitimate purposes. Rapidshare, in particular, has been repeatedly ruled to be perfectly legal, both in Europe and in the US. The company follows DMCA takedown rules and has plenty of legitimate uses. Including Rapidshare in these calculations makes the whole thing a joke. And none of those sites are involved in "selling" counterfeit goods that put US citizens in harm's way.

Fourth, that "estimated to do at least $135 billion in harm," is a totally made up number. The US Chamber of Commerce cites a different MarkMonitor report to support that. But it's not actually a report or a study or anything like that at all. Instead, it's promotional "white paper" (read: sales pitch) from MarkMonitor entitled "Seven Best Practices for Fighting Counterfeit Sales Online." That report does say that "criminals" setting up ecommerce storefronts "will likely cost legitimate businesses $135 billion in lost revenue this year." But it doesn't source that number. Notably, other statistics in the report are sourced. Which makes you realize that the $135 billion is basically made up. But Tepp doesn't mention that.

Fifth, he focuses on "the products they sell." This is the really slimy part, for which Tepp should be ashamed (if the man had any shame at all). The obvious implication of all of this is that when you tie together these disparate numbers -- you've got 53 billion visits to sites selling counterfeit goods that may be harmful to consumers. We've already pointed out that the 53 billion is bogus -- but it's even more bogus when combined with this final sentence. That's because that same MarkMonitor report that gave us the 53 billion, also notes that the traffic to sites selling counterfeit goods is a minuscule percentage of the 53 billion. Specifically, the same report says that the sites selling counterfeit goods receive merely 87 million per year... or 0.1642%. That's not 16.42%. Or even 1.642%. It's 0.1642% of the total. In other words, the sites actually selling counterfeits... seem pretty small.

Sixth: even that exaggerates the problem -- because even then you'd have to assume that every one of those sites involves selling counterfeits that are shoddy or harmful. But that's crazy. Most counterfeits are merely replica versions, that are passable. They're not harmful in any way. So now we're talking about significantly less than 0.1642% of the big scary 53 billion he's talking about. Basically, the 53 billion, besides being meaningless in general, has no connection to the rest of the claims about losses and harm to consumers. It's complete and utter bunk.

What you have here is that Tepp and others are taking a real, but tiny problem: mainly an exceptionally small number of counterfeit drugs, and then pretending that the "harm" is broad and applying it to sites already judged to be perfectly legal, because some people use them for copyright infringement. The reports he relies on actually show what a tiny problem this is, but tries to mask that by lumping a bunch of totally disparate things together, from the tiny percentage of fake drugs out there... to the already judged to be legal cyberlockers like Rapidshare.

Tepp's misleading bogosity doesn't stop there. He then goes on to claim that these sites "steal jobs." Um, how? But beyond the rhetoric, lets get back to the misleading numbers. Later on he states:

"Another study, earlier this year, showed that 19 million Americans have jobs that rely on 'IP-intensive industries.' This is a huge part of the American economy. 60% of US exports are from 'IP-intensive industries' and $7.7 trillion dollars are output from 'IP-intensive industries.'"

This one we've attacked head on before. The intellectually dishonest bit here is easy to spot. It's the reliance on "IP-intensive industries." Not IP. The "study," if you can call it that, involves the biggest maximalists teaming up to fund a report that defines "IP-intensive industries" extremely broadly and then pretends that everything that comes from such industries... is because of strong IP laws. That's ridiculous, because you know who's included in the "IP intensive industries"? Basically every tech company -- including all of those which are fighting against these crazy new laws.

Tepp is being intellectually dishonest in the extreme here, suggesting that the only reason that the broadly defined "IP-intensive industries" are so successful is because of IP law. But that's showed to be bogus quite simply. As CCIA has done for years, it uses the very same methodology to show that exceptions to IP contribute more to the economy than IP laws themselves. You can't except one report without accepting the other since the methodologies are identical. There are only two logical conclusions from this: (1) the suggestion that those jobs, exports and output numbers are due to IP are complete bunk or (2) Tepp and the US Chamber of Commerce really believe we should do away with IP completely, since his own favored methodology shows that the less IP laws we have, the greater the output. So which is it, Steve?

Either way, Tepp is being painfully intellectually dishonest throughout the entire interview, citing facts and figures that are misleading in the extreme, if not completely bogus. What's unfortunate is that none of the press that lets Tepp speak his mind ever calls him on these ridiculous claims.

The White House has shown itself to be totally and completely out of touch on intellectual property issues for a while, so it should come as little surprise that it went even further into silly town, with a big White House briefing, involving IP Czar Victoria Espinel, Attorney General Eric Holder, Acting Deputy Secretary Rebecca Blank and ICE boss John (due process? what due process?) Morton to announce (I'm not kidding) that McGruff the Crime Dog was taking a bite out of "intellectual property theft."

Of course, the first thing McGruff the Crime Dog (and our illustrious White House officials) might want to do is learn what the actual law says and recognize that infringement and theft are two different things. It seems like in all his "biting" out of crime, McGruff forgot that lying about what the law actually is isn't a particularly good idea.

The campaign is really ridiculous, with tons of absolutely laughable statements, debunked claims and web design from a decade ago. For example, it takes the famously and thoroughly debunked (years ago!) claims that "counterfeiting and piracy costs the U.S. economy more than $250 billion in lost revenue and 750,000 jobs every year." Those numbers came from the upper end of a "stick your finger in the air" estimate from a few decades ago. And they have no bearing on reality. Even the US government in the form of the GAO has debunked these numbers. So why is the White House standing behind them? Espinel isn't stupid. She knows that these numbers are false and have been shown to be false. Why would she support a campaign based on them?

The site just gets more and more full of stupid the deeper you dig. It feels like it was put together by someone with only a passing familiarity with the actual debate on copyright infringement (and one that is about 10 years out of date) and a heavy dose of US Chamber of Commerce propaganda. It's like what you'd get if you simply hired some random clueless ad agency to create the campaign -- which it appears is exactly what was done here. Take a bow, CauseWay Agency of Westport Connecticut. You bring the debate over infringement down to new lows by repeating long debunked information and stats as if it were factual. Next time, maybe find someone who actually understands these issues.

Take this page of "facts" for example (complete with stock photo of a girl using a rather old ipod.

Piracy of intellectual property that’s protected by copyright law is a serious crime. Not only does it rob the makers of recordings, videos, movies, games, and other creative works of the money they are entitled to, but it costs tens of thousands of people their jobs each year. It also deprives governments at all levels of tax revenue. Piracy itself is a crime, and it causes an increase in other types of crime. Gangs and organized crime groups have both been linked to the piracy of creative work.

Almost everything in that paragraph is either wrong or highly misleading. Most infringement is a civil offense. Some may be criminal, but most of it is not. Implying otherwise is pretty sleazy. And someone sharing some stuff with a friend is hardly "robbing" anyone. The jobs estimates have already been debunked. The "tax" claims have also been debunked years ago, based on pretending that money not spent on content never gets spent.

Worst of all? That whole thing about "linked to gangs and organized crime"? Totally and completely debunked. SSRC investigated such reports in their report that came out earlier this year and it could find no evidence to support any links to organized crime or gangs, and pointed to additional research that found "no overt references to professional organized crime groups" anywhere in relation to copyright infringement. The one key study that claimed there was such a connection was from a RAND report that involved "Decades-old stories... recycled as proof of contemporary terrorist connections, anecdotes... as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low." In other words, there's no there there. At all.

Why would the White House support something so clearly false?

Pirated materials are everywhere. All you have to do is walk down a city street to see all the CDs and DVDs for sale by street vendors.

Hello five years ago! As that same SSRC research found, CD and DVD bootlegging by street vendors has been decimated itself by competition online: "they piled out of the business in the past decade as profit margins on pirated CDs and DVDs collapsed. We see no evidence that DVD piracy is still a high margin business... Rather, our work documents that pirate prices have fallen dramatically as burners became cheap in the early 2000s and, more recently, as non-commercial internet-based file sharing began to displace DVD piracy." Someone should tell the White House to update their out of date report.

Making unauthorized copies of these creative works is against the law, and breaking it may subject the person who does it to civil and criminal liability—especially if they distribute the stolen product to others. The penalties for first-time offenders include jail time of up to five years and fines of up to $250,000.

Holy exaggeration McGruff! Making unauthorized copies may be against the law. They might also be fair use or allowed for the purposes of backing up legally obtained materials. Merely making a copy is also almost certainly not criminal infringement, not subject to jail time or fines up to $250,000 (yet, though we'll see what happens with various laws...).

Once a tune or movie is posted on the Internet, it lives forever—and the artist behind the product is forever deprived of income.

Really, now?

When you buy a tune on the Internet and download it, make sure you don’t send a copy to a friend or someone who might sell it to others

Wait, what? The White House and McGruff think that people are selling the MP3s their friends send them?

If you get a tune from someone, don’t re-send it to others.

What if the artist wants you to send it to others?

Don’t instant message a tune.

Just yesterday I sent a friend of mine a song via IM that was released under a Creative Commons license. Why shouldn't I do this? Really. Why?

Don’t burn CDs or DVDs.

Why not? Depending on the context, this can be absolutely legal. These days, CDs and DVDs are kinda outdated, but is the White House and McGruff now arguing that making a mixtape is a crime?

If shopping online, beware of sites that aren’t familiar to you—and that are selling expensive products at prices that are way too good.

Watch out, GroupOn, McGruff is ready to take a bite out of you.

About the only nod to the idea that infringement can actually be a market opportunity occurs on the trends page that more or less reprises the story we recently had about how Rovio (makers of Angry Birds) discovered that infringement in China wasn't actually a problem. This seems like perfect evidence that (as many people have been pointing out for ages), this is a business model issue, and those who are smart can take advantage of them.

One anomaly to the damage caused by piracy recently took place in China, where the small Danish company that makes the "Angry Birds" game actually found a benefit in the widespread, illegal copying of the game, which has been downloaded 50 million times in that country. The company turned the widespread knowledge of its brand in China that resulted from the piracy into a marketing advantage for its other products in the country. Moreover, since consumers couldn’t tell the difference between the fake and genuine products, and sales of the game skyrocketed. In the United States, however, piracy of creative products can damage the brand of the original manufacturer when consumers can’t tell the difference between a counterfeited product, which may be shoddy, and the genuine article. Cheapening of the brand can be a serious problem, especially as reputations are hard to recover when lost.

First of all, McGruff may have just caused an international incident there. Rovio is a Finnish company, not a Danish one. Seriously. Don't they have anyone looking over this stuff? Second, notice that they ignore the key point of the story: Rovio didn't freak out, but embraced the market, used the infringement as market data on what to do, and then came out with a better offering for the market, not one that users "couldn't tell the difference" on. The McGruff report makes it sound like Chinese people are a bunch of idiots who buy Angry Birds products willy nilly, some legit, some not. And somehow, in the US things are different?

This honestly may be the most poorly conceived "anti-piracy" campaign ever. It makes the White House look pretty damn foolish.

Oh, and then there are the videos. How could we forget the videos. Some propaganda PSAs that again go back to bootleg DVDs, claiming that they lead to child labor and gangland murder. Amusingly, the title of the marketing campaign is "Get Real." If only the National Crime Prevention Council did "Get Real" and decided to stop repeating these debunked claims. Then there's the heartstrings-pulling video of a young woman busking in a subway station, with her guitar case open with some cash. People stop, listen, and then take her cash. It's a metaphor! For something. I'm not sure what. Because the internet is kinda the opposite. People who have set up donation and pay what you want models find that fans donate. No one takes money away.

In the end, the whole thing actually makes the White House look really, really bad. It could have been a real leader here, outlined the actual issues with infringement, how the market is changing. It could have pointed out resources showing those who are adapting, highlighting strategies and business models that work. It could have pointed out actual data (not old, debunked or made up stats) that show more content than ever before is being produced today, more people are earning money making content than ever before, and that the overall size of the content industries continues to grow. All of that would be useful. None of that is here. Just pure FUD.

For what purpose? It's not clear. McGruff is aimed at kids, but multiple studies (including the SSRC study) have looked at "education campaigns" on copyright infringement and have found that they have no impact at all. It's not an education issue. It's that people intrinsically don't see what's wrong with sharing music and movies in many cases. And the really bizarre part is I have no clue who this campaign is actually targeted at. It feels like it was perhaps targeted at people who aren't on the internet and who live in 2003 or so. What a waste of time, and what a shame that the White House would put a stamp of approval on such an amateurish mess.

As a whole bunch of folks have sent in a District Court judge in Nevada issued some rather stunning orders lately concerning websites that luxury brands company Chanel has argued "advertise, promote, offer for sale or sell" possibly counterfeit Chanel goods. The order is basically a more expansive private version of SOPA, in which the judge has let Chanel directly "seize" about 600 domains, as well as issued restraining orders and injunctions, including orders to Google, Bing, Yahoo, Facebook, Google+, and Twitter to "de-index and/or remove [the domain names] from any search results pages." Venkat Balasubramani covers the other wide-reaching aspects as well:

• an injunction against the defendants prohibiting them from using any Chanel marks or selling any Chanel products;
• an injunction against the top-level domain name registry, directing it to change the registrar of record for the domain names to GoDaddy (!);
• an injunction telling GoDaddy to change the DNS data for the domain names so the domain names resolve to a site where a copy of the case documents are hosted (servingnotice.com/sdv/index.html);
• authorization for Chanel to enter the domain names into "Google's Webmaster Tools" and cancel any redirection of the domain names;

Venkat also points out how crazy this whole thing is:

First, I did not get a clear sense that this is an enforcement action against a single defendant. If there's no credible allegation of a conspiracy or an arrangement between whomever is behind these domain names, it strikes me as problematic for Chanel to file a placeholder lawsuit and then add or remove defendants at its convenience.

Second, it was not entirely clear why the lawsuit was in Nevada. The domain names are not registered to a registrar that is based in Nevada, and there's no clear basis for in rem jurisdiction. It's possible that plaintiff picked this jurisdiction as a matter of convenience, but there's no apparent relationship between the alleged counterfeiting activities and the State of Nevada.

Then there's the matter that some of the court's relief is directed at a variety of entities that are not parties to the dispute (including the registrars, the registry, Facebook, Twitter, Google, etc.). I'm not sure how this court can direct a registry to change a domain name's registrar of record or Google to de-list a site, but the court does so anyway. This is probably the most problematic aspect of the court's orders. [Interesting that GoDaddy was chosen as the registrar that the domain names would be transferred to.]

Finally, there's no clear basis to authorize a transfer of a defendant's property pending resolution of a lawsuit to the plaintiff. (See Bosh v. Zavala.) I don't see this as particularly problematic in this case because Chanel is not looking to liquidate the domain names, but it certainly raises due process red flags, given that this is all done with minimal (or no) notice to defendants.

There are all sorts of issues with these rulings that appear to go way, way beyond what the law allows (even if SOPA were passed). And the fact that this includes sites that might only "promote" possibly counterfeit Chanel products? It sounds like many of the sites are entirely clear that they're offering replicas, meaning no likelihood of confusion being at issue. Furthermore, some of the order appears to also bar even the "promoting" of legitimate Chanel products. How is that reasonable?

Beyond that, the broad disappearing of these websites, ordering search engines and social networks to totally block their existence, despite the lack of an adversarial hearing, or any allowance for those search engines or social networks to have a say, seems immensely troubling. Why even bother with SOPA at all, when judges feel they can just order broad censorship based on one side's claims? These rulings are quite worrisome. One really surprising bit is that the judge, Kent Dawson, was one of the judges who smacked down Righthaven, so he at least understands how companies can abuse IP rights. It's surprising that he'd issue such a broad reaching order like this.

Furthermore, as Ars Technica points out, the judge doesn't even bother to look at the jurisdictional questions, and seems to order the global disappearance of sites outside the US, without any clear mandate to do so:

Missing from the ruling is any discussion of the Internet's global nature; the judge shows no awareness that the domains in question might not even be registered in this country, for instance, and his ban on search engine and social media indexing apparently extends to the entire world. (And, when applied to US-based companies like Twitter, apparently compels them to censor the links globally rather than only when accessed by people in the US.) Indeed, a cursory search through the list of offending domains turns up poshmoda.ws, a site registered in Germany. The German registrar has not yet complied with the US court order, though most other domain names on the list are .com or .net names and have been seized.

Who knows if anyone will even step up to appeal such broadly rulings (probably not), but they set a very scary precedent.

The supporters of SOPA/PIPA practically shoved each other aside this week to hype up a "study" released by the "American Consumer Institute,*" which claims that Americans support things like SOPA and PIPA by a wide margin (basically 80%). Of course, the actual survey used suggests no such thing. If it were true, there wouldn't be so much grass roots opposition to the bills (and hardly any grassroots support).

The details of ACI's study suggest why it got the responses it wanted -- it's basically because they asked ridiculous, leading questions where the answers are obvious, rather than asking anything about what people are really concerned about. You can see the full results here, and the questions have nothing to do with what SOPA/PIPA actually do. These are the three key ones:

3. Would you support or oppose legislation that would increase criminal penalties for anyone who knowingly sells counterfeit goods, equipment and parts to the U.S. military?

A. Support (80%)
B. Oppose (14%)
C. DK/Refuse (6%)

4. Would you support or oppose legislation that would increase criminal penalties for anyone who knowingly sells counterfeit drugs and medicines to Americans online?

A. Support (81%)
B. Oppose (13%)
C. DK/Refuse (6%)

5. Would you support or oppose legislation that would help block foreign-based Internet websites from trafficking counterfeit goods, content or services to Americans?

A. Support (79%)
B. Oppose (14%)
C. DK/Refuse (7%)

Note, first of all, that nowhere does ACI ever actually say what the current criminal penalties are for such offenses. That right there makes the whole thing pointless. How can you ask someone if penalties should be worse or better when most respondents have no idea what the current penalties are. It's like me asking you "do you think I should walk my dog more or less each day." Since you have no clue how much I currently walk my dog, it's a totally meaningless question. You don't ask an "increase/decrease" question when people have no idea what the starting position is... unless your intent is to mislead.

And, of course, these questions are designed to get people to say "support." In fact, the only really surprising thing is that anyone said "oppose." Nobody wants counterfeits going to the military or for counterfeit drugs to be sold to people. But those are the very narrow and extreme cases that supporters of SOPA and PIPA rely on in trying to push this bill forward. If SOPA and PIPA focused solely on stopping people from knowingly selling actual counterfeit military products and drugs, I would support the bill. I don't think many people would oppose it. The problem is that the bill goes way, way, way beyond that, and targets a ton of stuff that have absolutely nothing to do with the military or drugs.

Finally, when you have a five question survey, and you kick it off with the first four questions all being about "horrors" associated with the absolute worst of the worst in counterfeiting -- the parts that everyone agrees should be dealt with -- and then you finish up with a broad question about supporting legislation that would "block foreign-based Internet websites from trafficking counterfeit goods, content or services to Americans?" of course people are going to say yes. You've led them down that path.

At no point did ACI actually explain what SOPA and PIPA really do or the much wider impact they would have. Nowhere does it explain that the mechanism behind the bill is to censor websites, using the same functional system as the Great Firewall of China. Nowhere does it mention that even the leading legal experts who support SOPA and PIPA admit that the bills will censor protected speech. In other words, nowhere does the study actually ask about SOPA and PIPA. Instead, it asks about some mythical version that the US Chamber of Commerce and the MPAA want you to believe SOPA and PIPA are about.

And, of course, we've actually seen what happens when a real academic does a study that asks people about the things really found in the bill: they don't support it.

* You should be quite wary of the "names" of various groups. There are multiple reports out there that suggest that the American Consumer Institute is purely an astroturfing group, with no actual consumer mandate or interest. It came on the scene a few years ago, started by a former big telco exec, and was almost exclusively focused on putting out research that (conveniently) claimed that everything the big telcos wanted was actually wonderful for consumers. Even Consumers Union -- the well-respected publisher of Consumer Reports -- and who really does have a reputation for looking out for consumers -- has called out the American Consumer Institute and questioned why its positions seem to contradict that of "nearly every other major consumer group." Make of that what you will.

The Pakistan Telecommunications Authority has taken a bold new step in the censorship arena, compiling a list of words and phrases deemed "inappropriate" for texting. This list has been forwarded to the nation's mobile operators, making a brief appearance as a publicly-available Google doc. Although the public permission has been rescinded, a version of the list appears here (very probably NSFW, especially if someone is reading over your shoulder or if you tend to read everything aloud).

According to a mobile operator representative:

"There are more than 1,600 words in the list including indecent language, expletives, swear words, slang etc, which have to be filtered. The filtering is not good for the system and may degrade the quality of network services-plus it would be a great inconvenience to our subscribers if their SMS was not delivered due to the wrong choice of words"

To give you the gist of the forbidden texts, imagine George Carlin's "Seven Words You Can Never Say on TV," attach nearly any other imaginable word to those seven, add a couple hundred euphemisms for masturbation, some drug slang and a slew of misspellings and you'll be in the general neighborhood. It's what's lying on the outskirts of this neighborhood where things get weird.

Athletes Foot. Defecate. Deposit. (Yes, I know, but I would imagine some Pakistanis still use a banking system.) Do Me is thwarted by removing a space, leaving Pakistanis with no word for "enclosed arena." G Unit. God Damed Motha Fucka. I'm saddened to see "sexwhore" is no longer permissible, as it has become my go-to texting phrase, especially when contacting immediate family members.

Famous STD gonorrhea narrowly avoids the ban, thanks to an apparent lack of reference material ("gonorrehea"). Of course, infection tends to lead to a burning sensation that also makes the "no-go" list: "smagma."

Got Jesus. (It's cool, though. "Satan" is banned as well.) Hobo. Hoser. Idiot and "idoit." Juggalo. Kmart. Kotex. Lotion.

Inveterate masturbators will be thrilled to learn that many variations have been banned (mastabater, masterbate, mastrabator) but the original, correctly spelled version lives on. Sadly, inveterate jokesters will have to make do without their precious, um, "pun tang."

Neon Deon. Rae Carruth. (Apparently, the Pakistani government has something against flashy/homicidal football players, not to mention the defunct XFL ("he hate me/hehateme")).

"Tongue" gets twisted as well, appearing on the list as "tonge," "toung" and "tounge." #1072-1074 are apparently intentionally left blank.

All in all, a very dirty and plentiful list. One can almost imagine the censoring group giggling childishly long into the night while coming (I KNOW) up with this list.

Many Pakistanis have taken to the internet to express their displeasure with having their constitutional free speech rights violated. Of course, officials are quick to point out that this censorship is "for the children."

Mohammad Younis, a PTA spokesman claims the ban was a "result of numerous meetings and consultations with stakeholders," and went on to point out that "nobody would like this happening to their young boy or girl."

(Oddly enough, "Wuutang Clan" is forbidden, despite the fact that they are sporting an additional "u" and are distinctly "for the children.")

The spokesman also points out that they never thought they'd get caught:

Mr. Younis also added that the list was never intended to be distributed publicly and was only intended to be used for testing purposes.

Supposedly the final version will be much shorter, leaving Pakistani texters only "partially censored" which is better than "completely censored" but still much, much worse than enjoying their right to free speech. Citing Pakistani court precedent, the Pakistani government representative helpfully pointed out that, like many "unlimited" data plans, constitutionally-protected free speech isn't "without restrictions."

All in all, this move sounds like a nanny-state circle****, presided over by officious ***hats with too much free time and way too much power.

Back in September, Techdirt wrote about an important case that had been passed up to the European Court of Justice. It raised some key questions about creating software that was interoperable with an existing program – whether, for example, the features of the latter were in some sense copyrightable.

Although the full Court decision won't be out until next year, one of the Court of Justice's Advocates General (there are eight of them, "to present opinions on the cases brought before the Court") has published his views on the case [pdf]:

In the first place, with regard to the functionality of a computer program, the Advocate General defines it as the set of possibilities offered by a computer system – in other words, the service which the user expects from it.

Starting from that premiss, the Advocate General considers that the functionalities of a computer program are not eligible, as such, for copyright protection. The functionalities of a computer program are in fact dictated by a specific and limited purpose. In this, they are similar to ideas. That is why there may be a number of computer programs offering the same functionalities.

That seems like common sense: the functionality of a program is just something that it can do, which is itself just an idea. The Advocate General then goes on to make a very important point:

if it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development.

The thing is, exactly the same could be said about software patents too. One of the problems with them is that they often concern basic programming techniques, and as such give the patent holder a monopoly on those key ideas. It's why copyright – which protects the implementation of ideas – is more appropriate than patents, since it does not block alternative ways of creating the same effect. It's also why markets like smartphones have turned into impenetrable patent thickets.

This is not the final judgment of the European Court of Justice, although the Advocate General's opinion does carry considerable weight. Moreover, even the European Court of Justice does not decide the case definitively, but merely offers its interpretation of European law. It is ultimately down to the national court in the UK to use that ruling to make its own judgment. So there's still a long way to go before this case and the issues that it raises are settled. But it's definitely off to a good start with this opinion: had the Advocate General opined differently, creating interoperable programs in Europe would have started to look a much more perilous – and expensive – undertaking.

It's also worth noting that there is a very similar case going through the courts in the US: Oracle has accused Google of infringing on its Java copyrights in much the same way that SAS accused WPL in Europe. It will be interesting to see whether the US judge agrees with the Advocate General's analysis.

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