For the past few years, we've had a bit of a New Year's tradition here at Techdirt. The "final" post I put up for the year is a discussion on, well, awesomeness. Three years ago, it was "on staying happy", in response to people complaining that reading Techdirt made them upset, and wondering how I kept writing for it. I noted that there were so many more reasons to be happy and optimistic than pessimistic -- because even as there were some who fought against innovation, just look at how many amazing things happened anyway, in spite of the forces trying to hold back progress. The happiness comes from the conviction that innovation and opportunity always win out, even if it takes longer than it should.

Two years ago, I expanded on that to discuss the power of innovation and creativity to build out that optimism. I talked about a bunch of examples of folks who totally understood the power of what was happening thanks to innovation, and were embracing the tools creatively -- and spreading joy, even as others chose to freak out and complain.

Last year, the discussion was, once again, about why we should be both optimistic about the power of innovation, but frustrated about that which got in the way of its progress. You'll notice this is a running theme. Be happy about the power of change, but be frustrated that the rate of such change isn't as rapid as it should be.

This year has proven to be really quite an incredible one for those of us who believe in the power of innovation and who, while frustrated with the pace and with those who seek to block it, believe that over time you can't stop that innovation. The key element this year: the power of large groups of people to make use of the technology to start to say, "No!" to those who have sought to hold back progress. Of course, not all of these efforts will succeed, but the ability of people to speak up and actually make a difference is being seen all over the world these days -- and that power is only going to grow, not shrink. And that's something to be tremendously optimistic and happy about.

For years, when I'd complain about this or that industry seeking to impede progress, some critics would argue, "well, why don't you go change things!" In the past, you could only change things by becoming powerful -- and for most individuals, that was impossible. But what we've seen (over the last year especially) is that a new wave of change can spread by individuals coming together and doing something amazing as a group. It's tremendously inspiring in all sorts of ways, and I can't wait to see how more and more people learn to harness communication technologies and new services to make very real differences in the world that were impossible to even imagine just a few years ago.

We live in an exciting time, full of amazing opportunities. We can (and should) worry about those who fear where things are going and seek to impede this journey, but we should also be comfortable in the knowledge that we know how this story goes. Innovation and opportunity find a way. Once again, a huge thank you to everyone who makes up the Techdirt community. We've grown quite a bit in the last year (our traffic has doubled in just the last six months). Beyond covering some amazing stories, we've had some fascinating and educational discussions and experiences. We've been working hard to do more for the community -- including new stories, new tools and new services, many of which we'll start to roll out in the next few months, so stay tuned. But, most of all, from all of us who do this all day, every day, it's been a real pleasure having this ongoing discussion each and every day.

Seth Godin is nothing if not prolific. As well as publishing a string of popular marketing books with catchy titles like "All marketers are liars", "The big moo" and "Small is the new big", he writes short but smart blog posts every day, some of which are rather obvious, but many of which contain real gems of insight.

This fluency with words means he is well placed to comment on the age of abundance we are entering thanks to the rise of digital technologies. One of his latest pieces is entitled "How the long tail cripples bonus content/multimedia", and appears as part of The Domino Project, "a new way to think about publishing. Founded by Seth Godin and powered by Amazon" – a partnership that is itself symptomatic of the digital times.

The post is in response to a HuffPo interview with President and CEO of Ingram Content Group, David "Skip" Prichard. Prichard shows himself optimistic and surprisingly open to new ideas for someone leading a book distribution company – not a sector known for its innovation.

But Godin concentrates on one particular aspect of Prichard's replies, which is typified by the following exchange:

Are there enhanced books available this holiday season that have already changed the definition of a book?

Yes, for example, a biography can to come to life in many ways. Jacqueline Kennedy: Historic Conversations on Life with John F. Kennedy has all of the interview audios, videos, photographs, text, and transcripts available. Even classics -- Penguin has updated Pride & Prejudice with clips from the movie and even instructions on dancing. For the 75th anniversary of The Hobbit, HarperCollins released an e-version with exclusives including J.R.R Tolkien's book illustrations and recently discovered Tolkien recordings. Publishers are still learning what added value readers will or won't pay for. I expect we'll continue to see lots of experimentation in this arena.

Godin describes these "breathtaking visions of the future" as "economically ridiculous", and comments:

The Long Tail creates acres of choice, so much as to make the number of options almost countless. But at the same time, it embraces (in every format) much lower production values. For what Michael Jackson and Sony paid to produce the Thriller album, today’s artists can make and market more than 5,000 songs. You just can’t justify spending millions of dollars to produce a record in the long tail world.

This is an important point that the copyright industries are extremely reluctant to acknowledge, because it's at odds with their business models based on just a few massive blockbusters that are highly profitable. There's a good reason for their preference: the elevated costs involved in creating these works act as a barrier to entry for newcomers, and help preserve the status quo. The new model, based around large numbers of low-cost products, is available for anyone to adopt – including artists selling directly to their public.

As Godin puts it:

it’s not a few publishers putting out a few books for the masses. No, the market for the foreseeable future is a million publishers publishing to 100 million readers.

He explains what that means for ebooks:

The typical ebook costs about $10 in out of pocket expenses to write (more if you count coffee and not just pencils). But if we add in $50,000 for app coding, $10,000 for a director and another $500,000 for the sort of bespoke work that was featured in Al Gore’s recent 'book', you can see the problem. The publisher will never have a chance to make this money back.

Finally, Godin addresses the inevitable complaint that the imminent loss of those $500,000 multimedia ebooks – like the imminent disappearance of $100 million movies - means the end of creativity as we know it:

The quality is going to remain in the writing and in the bravery of ideas, not in teams of people making expensive digital books.

Even in the age of abundance, it's not about quantity, but quality.

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

I'm usually not one for the typical "end of year" summaries of what happened over the preceding twelve months, but Dave Kravets at Wired has put together an excellent post, bringing together a series of separate events that showed that politicians were quite eager to pass new draconian intellectual property laws all year, but shied away from anything that involved protecting our civil liberties. Reading through the article, it's a really sad statement over how the past year went from a politics perspective.

Of course, it will be interesting to see the coming backlash over this. We're already seeing the beginning elements of a reaction over SOPA (as well as the massive support for Ron Paul) and 2012 may make for an interesting year. Declan McCullough is wondering if the internet world is ready to "go nuclear" in the effort to stop SOPA/PIPA next year. As with anything, I think that there will be some mistakes made along the way, but as the internet community gets more organized and more vocal, I do wonder if these two trend lines (more draconian IP laws and less civil liberties protections) can really continue to move in the same direction much longer.

The new year is just around the corner, and the New Year's Eve parties wouldn't be complete without a few alcoholic beverages. But if you want to try something a little different, here are some other ways to imbibe ethanol.

• Making alcoholic ice cream isn't as simple as it might sound because the freezing point of alcohol is much lower than water. Add some gelatin to your concoction, and you can get a full cup of 80-proof alcohol into a quart of ice cream. [url]
• Bartenders are catching on to the molecular gastronomy fad with canisters of nitrous oxide and rotary evaporators. The laughing gas is not to be inhaled but used in flavor extraction processes... [url]
• Add vodka to gummi bears, refrigerate and wait. Eat. Repeat. That's a pretty simple recipe for getting some people drunk. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

Looks like Righthaven has finally reappeared... filing an "emergency motion" in the 9th Circuit appeals court trying to prevent Marc Randazza from continuing to move forward in the Hoehn case, where (as you may have heard) Righthaven has been ordered to hand over various assets (and the company's righthaven.com domain is being auctioned off). Randazza has filed a response (embedded below) in which he goes back to bringing up Herman Melville's classic story Bartleby the Scrivener, in which Bartleby never does any work because "I would prefer not to." If that sounds familiar, it may be because Randazza used that line the last time Righthaven filed for an "emergency" stay in the same 9th Circuit Appeals Court... in the same case. That time the court rejected it, and as Randazza explains, there are tons of reasons to reject it again. You can read the entire filing explaining all the reasons that Righthaven's emergency filing makes no sense -- especially since it failed to bother to oppose many of the things it's now fighting when they were happening in the district court. However, the key reason is simply procedural:

While it would be far more satisfying to see this motion defeated on substantive grounds, it fails cleanly as a matter of procedure. Rule 27-3(a) requires the movant’s counsel to make "every practicable effort" to notify opposing counsel before filing an Emergency Motion. Righthaven’s counsel failed to do so, and misled this Court about his efforts to do so. Hoehn’s counsel first learned of the Motion by receiving it through the Court’s cm/ecf system .... Only after receiving the Motion did Hoehn's counsel receive a fax from Righthaven's counsel notifying them of its intent to file this Motion

I used to think that Righthaven might make a useful law school case study some day, but now I'm wondering if there shouldn't be an entire class studying Righthaven in order to teach lawyers exactly what not to do in handling cases.

We recently pointed out that it was likely that candidates running against SOPA supporters (especially in the House) would start using SOPA as a campaign issue -- which could draw the attention and support of the netroots community, like the folks at Reddit, who are just itching to support candidates who oppose SOPA supporters. Well, here's one they might want to check out. Karen Kwiatkowski is running against Rep. Bob Goodlatte in Virginia, and is using SOPA as a key campaign talking point, noting accurately that Goodlatte both was in charge of putting SOPA together for much of the year (though, towards the end, Lamar Smith took over) and that he's become Smith's go to guy in ushering the bill through the House. Karen sees this as a big problem:

Bob Goodlatte spent 2011 CO-AUTHORING and INTRODUCING the Stop Online Piracy Act (SOPA). SOPA makes the federal government EVEN BIGGER.

If passed, SOPA will dramatically increase the federal government’s role in our lives, online and offline. It authorizes the Attorney General to block websites accused of copyright infringement from search engines and ISPs. And it allows the Attorney General to “commence action” against them without a court order. SOPA will result in fewer independent websites, blogs, media sources, start-ups and tech industry jobs. And as a result, lower quality.

How will it do this, you ask? Simple. It increases the cost of doing business for U.S. tech firms, payment network providers and advertisers.

In addition to increasing legal and compliance costs for small businesses, it also increases the size and scope of the federal government.

SOPA expands the State Department, Attorney General's Office, Copyright Office and other agencies and creates a new set of bureaucrats. One we have never heard of before is the “intellectual property attache.” IP Attaches will be trained and appointed to regional bureaus, embassies and diplomatic missions throughout the world. And they work with copyright holders at the expense of taxpayers.

With the Reddit community so actively looking for candidates to support, perhaps it's time to check out Karen.

Original concept and co-writing by Techdirt community member Nick Dynice.

This holiday season many lawyers, executives, lobbyists, and politicians will have their relatives, friends, and family members stay in their households. With the economy slumping, some out-of-town visitors can't afford to stay at hotels. When money is tight, these visitors know they can count on the hospitality of family and friends, who will welcome them in with open arms and good cheer.

However, these hosts need to remain vigilant and avoid being swept up in the general goodwill of the holiday season. In the rose-colored fog of the Christmas-to-New Year's festivities, it's easy for these situations to get out of hand. Guests have a tendency to get too comfortable very quickly and before you realize it, it's nearly February and a variety of house guests have begun to refer to you as "Dad" or "Grandpa" and you're on the hook for video rentals, dry cleaning bills and dental appointments. Your vehicle is now referred to as the "family car" (often by non-family members), your house has become a combination day care/animal shelter and your walk-in closet is now home to a family of Guatemalan refugees.

What starts as selfless "giving" swiftly becomes one-sided "taking." These interlopers are not only stealing the relatively priceless* time of their hosts, but also their unbillable goodwill. While "goodwill" would seem to be in infinite supply during the latter part of December, the available supply dwindles at a rate inversely proportionate to the number of hours the "family car" has been missing.

*Not actually "priceless." Billing for used time runs anywhere from $400/hr. [lawyers] to $55,000/hr. [executives] to $20+ billion/hr. [politicians].

The result of this goodwill "piracy" is nothing short of tragic. As time and goodwill are swiftly "stolen" by house guests, the host's direct family often finds itself having to do without. At best, they can only hope to have a few moments between meals and Immigration raids to angrily discuss efforts to block the rogue infringers, perhaps by seizing the guest bedroom and posting a sternly-worded warning on the door.

Fortunately, someone is doing something about this rampant thievery, and by "something," we mean making concerned noises and crafting acronyms. Harry Herman, chairman of PARFF (People Against Rude Family and Friends) noted that theft of hospitality is causing an estimated $300 million in losses to American families, resulting in fewer presents and lower quality meals.

"And that's just the stuff we can quantify," Herman said. "We have also noticed a distinct decline in the 'quality' of 'quality time' spent with originating family members as overstaying guests continue to erode the remaining goodwill. Did you know that 1 out of 10 'tweens' will be expected to cobble together an understanding of the 'birds and bees' using only 1970s back issues of National Geographic and filtered Cinemax? And that 4 out of 10 children under the age of 10 will spend nearly 400 hours over the holiday season being raised by the internet? It makes you fear for the future of humanity."

Chris Dolt, spokesperson for the AIL (Anti Infringement League) adds:

"The encroachment of friends and family during the holidays is the true Grinch Who Stole Christmas and Some of January. These infringing 'guests' are as much a threat to family harmony as the VCR is to the woman home alone. It starts out with too much bourbon-spiked eggnog and before you know it, Uncle Joe has committed 'goodwill' robbery in broad daylight, briefly aligning himself with the protesters uptown by hanging an '#Occupy The Robertson's' sign on the den wall before passing out under the Christmas tree. Industry estimates have concluded that hosting rarely-seen family members during the holiday season is equivalent to removing two presents from under the Christmas tree and throwing them into the fireplace."

Dolt continues:

"Not to sound heartless, especially during this joyous time of the year, but when it comes to 'goodwill infringement,' there are no 'innocent' infringers. Uncle Joe may claim that his drunken antics are a 'victimless' crime, but sooner or later, the hosts will find their previously innocent children raiding the liquor cabinet to spice up their Nesquik. The best choice is to take action against the infringer as quickly and harshly as possible. For the well-being of all involved, your best bet is to throw Uncle Joe into the fireplace, thus returning the 'goodwill' back to the long-suffering hosts, who can now observe first-hand that the uncle that is twice as drunk burns half as long. For more handy tips, please see my simple 41-step G.E.T.O.U.T. plan (General Efforts To Oust Unwanted Tenants)."

For suffering hosts whose goodwill, time and energy is in short supply, there is good news. 90% of all goodwill infringement is only temporary, ending by January 3rd at the latest. Both spokesmen caution against hosting mothers-in-law, second cousins, and lazy grandparents, noting that for these risk groups, 'overstaying their welcome' can often occur within minutes of their arrival, resulting in unprecedented amounts of "goodwill theft" with no sure measure of recourse.

The lesson for this holiday season? Good guests don't infringe.

Phone companies are pretty notorious for their regular additions of all kinds of silly fees, and Verizon Wireless seems to be even more renowned than others for putting in place all sorts of crazy fees (and then denying those fees even exist... until they suddenly have to pay back $90 million in bogus charges). Its latest is that it's going to start charging a $2 "convenience fee" for those who pay their bills online or by the phone. The company claims it is doing so in order to provide you the "best wireless experience." At this point, you have to wonder if there are just some jokers at Verizon Wireless wondering just what they can get away with. Not that I'm a VZW customer, but perhaps some consumers could look into charging the company a reverse fee for "customer appreciation" in order to help the customer get the "best customer service experience."

Update... and backtrack. It's amazing. Does Verizon Wireless employ even semi-competent marketing people who can think through how these things happen?

It's really quite stunning to watch Lamar Smith pull out really out-dated talking points as he gets more and more desperate to defend SOPA, as he discovers that all the vaunted "support" that the US Chamber of Commerce promised him there was for the bill melts away. We've already gone through Smith's detailed "defense" of the bill and pointed out that nearly all of it was based on either false or misleading research. And what's worse is that Smith obviously knows this: he specifically cherry picks studies to support his position. In fact, he uses studies produced by lobbyists over the ones produced by the government, when the government ones show that the entire basis for SOPA is faulty. The only reason to do that is because you know the actual facts don't support your position.

His latest move is to pretend that the only opposition to SOPA comes from Google.

There is nothing that would require Internet service providers or bloggers to "censor" the Internet.

Since there is no basis for their complaints, one wonders what the bill's critics are really worried about. Perhaps they don’t want to be held accountable for directing consumers to illegal websites. We know that’s the case with Google.

There's so much wrong in just that little section, it's really quite incredible. First of all, the first statement is an outright fabrication. The entire point of the bill is to censor parts of the internet. Smith is trying to pretend that because the censorship is about stopping infringement, it's not censorship, but that's simply false. The government telling internet sites that they have to block access to other websites is -- undeniably -- censorship. If Smith were being intellectually honest, he would admit that and then we could have a nice discussion on whether or not this form of censorship makes sense. But, instead, he pretends that it's not censorship.

As for the next sentence, there is a very real basis for the complaints, and pretending there isn't is just ridiculous. Yes, it's true that some people have exaggerated some of the claims, but part of the problem here is actually Smith himself. His first version of SOPA was so bad and contained so many awful things that many people still think his latest version contains those things. Perhaps if he had taken the time to invite people who actually understand the internet to the table, he wouldn't be fending off the complaints of his original bill at this time.

But that also leaves out that there are, still, tremendous legitimate concerns with the bill, and that explains the widespread outrage.

• The online security concerns are extremely real and legitimate. Every single credible technology and security expert has agreed on this point. To date, Smith has been unable to find a single independent security expert to back up his side of the argument. He's found two or three think tank "policy analysts" who don't understand the technology issues in play (and it's amusing to watch them run for the hills any time a real DNS engineer shows up), but there has yet to be a single credible technologist to say that provisions in the bill for blocking sites won't do harm to years of careful work on internet security.
• The State Department remains horrified at the message this bill sends to the rest of the world, as they are trying to push the concept of internet freedom to country's with oppressive governments. Even if the purpose of the blocking in the US is quite different, the bill alone gives foreign repressive regimes the perfect blueprint for repressing free speech in a way that the US can't protest: just say you're going after infringement, and the US can't complain.
• The threat of collateral damage against legitimate sites is extraordinarily real. It's so real we have clear evidence of it happening at home, in the case of Dajaz1.com. Or with the death of Veoh. Or with the very fact that SOPA supporters continue to claim that RapidShare is one of the key sites they seek to kill via SOPA, despite it being declared legal in both the US and Europe.
• Finally, there's the fact that all of the evidence suggests that SOPA won't actually help to either stop infringement or to get people to pay more for content. Considering the widespread collateral damage, when all of the evidence suggests that the bill itself won't actually help solve the specific problem it's supposedly targeting, isn't that a cause for a concern?

But rather than address any of those (or many other legitimate) concerns with the bill, Smith falls back on the talking point he was given at the beginning of this: the only company who doesn't want this is Google and that's because Google profits from illegal activity. Neither statement is accurate.

First of all, hundreds upon hundreds of companies have come out against the bill -- including supposed "supporters" on the list that Smith's own staff at the House Judiciary Committee put out, claiming they supported the bill. The idea that these are all driven by Google is hilarious. On top of that, Smith is being downright insulting to the hundreds of thousands of people who have written and called Congress to express their displeasure with the bill. They weren't doing so because Google wants to profit from illegal activity online, but because they're legitimately worried about the bill.

Certainly, back over the summer when Hollywood told Smith he had to take the bill away from Rep. Goodlatte and put in all of their favorite concepts to censor the internet, the most vocal opposition had come from Google. But since then, pretty much the entire tech industry has risen up to point out the problems of the bill. And, even worse for Smith, so have many in the creative community. We have movie and TV stars, along with best selling authors. We've seen more and more in the creative community itself speak out against this bill, because they recognize that they use and rely on the internet as well.

The truth is that the remaining "support" for the bill has been reduced to a few big (but shrinking) companies in a legacy industry who have chosen not to adapt to changing times. And while all of this is happening, the people in that same industry who aren't tied down looking at the past are adapting and making tons of money.

The basic fact of the situation is that Lamar Smith is wrong in almost everything he argues here. He's wrong about what the bill is. He's wrong about whether or not it's needed. He's wrong about the impact of the bill. He's wrong about the opposition. He's wrong about the criticism. The public is recognizing most of this. Smith's decision to double down on the old story that this is just about Google is a sign of a sad politician lashing out because his plan to help his biggest campaign contributors is being seen for what it is: a government hand out to a few Hollywood fat cats too lazy to adapt... and all done at the expense of the one part of the economy that has continued to grow and to shine: the internet.

We've certainly talked about how ridiculous patents have gotten in the way of health care professionals and doctors providing the best care they can. Beyond basic things like gene patents, the idea that diagnostic tests are patentable is somewhat horrifying for anyone with any sense of decency when it comes to trying to keep people healthy. But, apparently the issue doesn't stop there, and the medical community is suddenly grappling with some doctors using aggressive copyright enforcement to block competing diagnostic tests from being available.

The story comes from Dr. John C. Newman and lawyer Robin Feldman in the respected New England Journal of Medicine, where they recount the story of the Mini–Mental State Examination (MMSE). A simple 30-item screening test that was first published in 1975 basically became a defacto standard that was used (and published!) widely. As the authors note, it was available in textbooks, pocket guides and websites -- and "memorized by countless residents and medical students." All in all, it sounds like a useful tool that was being put to good use. But then, decades after it was created, the authors of the diagnostic test discovered copyright. And that's when the trouble began:

In 2000, its authors, Marshal Folstein, Susan Folstein, and Paul McHugh, began taking steps to enforce their rights, first transferring the copyright to MiniMental, a corporation the Folsteins founded, and then in 2001 granting a worldwide exclusive license to Psychological Assessment Resources (PAR) to publish, distribute, and manage all intellectual property rights. A licensed version of the MMSE can now be purchased from PAR for $1.23 per test. The MMSE form is gradually disappearing from textbooks, Web sites, and clinical tool kits.

Clinicians' response to this "lockdown" has been muted. A few commentators have expressed concern about continuing to use a now-proprietary tool in training or about implications for the developing world, echoing debates about patented pharmaceuticals. In our experience, many clinicians are either unaware of the MMSE's copyright restrictions or simply ignore them, despite the risk of copyright infringement.

But then in March 2011, a promising new cognitive screening tool that was to be available through "open access," the Sweet 16 -- a 16-item assessment of thinking, learning, and memory developed by Harvard's Tamara Fong -- was removed from the Internet at the request of PAR in an apparent copyright dispute. The Sweet 16 includes orientation and three-object recall items, similar to the MMSE's, along with a digit-span item. This action, unprecedented for a bedside clinical assessment tool, has sent a chill through the academic community; clearly, clinicians and researchers can no longer live in blissful ignorance of copyright.

It's difficult to see how this isn't copyright abuse in the extreme. The copyright on the MMSE is not on the "idea" of a "3 object recall" test, but the specific expression. If you look online there are a few different versions of the MMSE that you can find pretty easily and the content at issue seems really basic. For example, the "three-object recall test" appears to consist of this:

Name 3 objects: 1 second to say each. Then ask the patient all 3 after you have said them. Give 1 point for each correct answer. Then repeat them until he/she learns all 3. Count trials and record.

Then, a couple questions later, it says you should ask the patient to repeat the same 3 objects. This is pretty straightforward -- a direction. Suggesting a similar test, by itself, should not infringe at all in that it's not making use of any "creative expression" from the original (if there even is any creative expression in the original). And that's outside the question of whether or not there would be a fair use defense even if the sentence was used exactly and in its entirety.

But, even just getting beyond the copyright issue here, the very fact that Marshal Folstein, Susan Folstein, and Paul McHugh, along with their partner, Psychological Assessment Resources (PAR), are using copyright to stifle important and useful processes for diagnosing cognitive states should simply be repugnant to all.

The NEJM article goes on to talk about various copyright issues, and explain why it's important for doctors to understand concepts like open access, the public domain, Creative Commons and open source licenses.

We suggest that authors of widely used clinical tools provide explicit permissive licensing, ideally with a form of copyleft. Any new tool developed with public funds should be required to use a copyleft or similar license to guarantee the freedom to distribute and improve it, similar to the requirement for open-access publication of research funded by the National Institutes of Health. The solution can be as simple as placing a copy of the tool on the authors' Web site, with a statement naming or linking to the license. Clinicians and researchers would be free to use, copy, and improve the tool; improvements would have to offer a similar copyleft license, perpetuating the benefits. Yet authors would maintain ownership and copyright of their tool and could profit by licensing it for a fee to commercial users or publishers who wished to include it in a non-copyleft work.

We've certainly talked about the importance for folks in other professions to recognize the importance of open access. It's honestly tragic (and just a bit horrifying) that this should even be an issue in the medical space at all. Either way, it's yet another sad reminder of the state of "ownership culture" driven by copyright maximalists, pushing people into believing that ideas can and should be owned and limited.

Every year for the past few years, we've been noting that, even as the MPAA whine and cries about "piracy," it's been doing record business at the box office. It's been up, up, up. Until this year. It appears that there's been a rather slight downturn in box office take, though it still exceeded $10 billion. A lot of people are focused on fewer tickets being sold, but the number of tickets is a pretty meaningless measure. What matters is revenue, and that's still strong, if slightly off from its previous highs. But, of course, no business always sets a record.

And what's good here is that it seems most folks involved in the movie business seem to recognize that online infringement has nothing to do with the dropoff in box office revenue this year. Reports are chalking it up to "a combination of a weak economy and expanding home entertainment options." The most thoughtful explanation I've seen comes from Roger Ebert, who puts forth a series of compelling reasons why box office revenue is down, starting with the lack of good quality movies that are "must sees."

The key thing about the reasons he gives? Almost every one is something that the industry could have fixed if it only was smart enough to have a long term strategy.

1. Obviously, the absence of a must-see mass-market movie. When moviegoers hear about "Avatar" or "The Dark Knight," they blast off from home base and land in a theater seat as quickly as they can

Definitely a huge and important point. If you don't make quality films that people want to see, the box office is going to suffer. It seems that the industry has become so risk averse these days, that it keeps churning out rather formulaic pieces -- sequels and reboots, mainly. Sometimes you can do those kinds of movies in amazing ways ("The Dark Knight" is certainly one example), but too frequently these movies seem to rely on their "built in" audience, rather than working to find an audience. So the ticket sales decline.

2. Ticket prices are too high. People have always made that complaint, but historically the movies have been cheap compared to concerts, major league sports and restaurants. Not so much any longer. No matter what your opinion is about 3D, the charm of paying a hefty surcharge has worn off for the hypothetical family of four.

This was bound to happen and there are two reasons for it. The first is that the industry was experimenting with different price points, and when that happens, sooner or later you're going to find the ceiling. That finally happened. I don't think it's wrong that there were experiments with price points, but the industry needs to be careful to avoid continually pushing those boundaries.

The 3D issue is a bigger one. As I've noted in the past, it's good that the industry looked to add value to give people more of a reason to buy. Doing things like 3D films and IMAX films give people good reasons to go to the theaters, rather than watching at home... but in typical Hollywood fashion, they understood the superficial aspect ("ooh, with 3D we can charge more") and ignored the real underlying reasons why it worked ("we have to add real value"). So they just rushed out a bunch of crappy 3D movies where the 3D added no value, and people started rejecting it. As they should. If the industry had focused on real value, rather than just assuming "3D = more money" perhaps this wouldn't be an issue.

3. The theater experience. Moviegoers above 30 are weary of noisy fanboys and girls. The annoyance of talkers has been joined by the plague of cell-phone users, whose bright screens are a distraction. Worse, some texting addicts get mad when told they can't use their cell phones. A theater is reportedly opening which will allow and even bless cell phone usage, although that may be an apocryphal story.

Preaching to the converted here. Some of us have been arguing this point for a decade and are still amazed that the theater owners and the Hollywood studios just don't seem to get it. People go out to the movies because it's a social experience -- with part of the key point being the experience. You can cook your own dinner at home, but people like to eat out at restaurants. What's amazing is just how bad the experience has become, and how little effort most in the industry (with a few notable exceptions!) have made in trying to improve the overall experience. If the theaters and Hollywood actually focused on improving the overall experience, they'd be having much better performance.

4. Refreshment prices. It's an open secret that the actual cost of soft drinks and popcorn is very low. To justify their inflated prices, theaters serve portions that are grotesquely oversized, and no longer offer what used to be a "small popcorn." Today's bucket of popcorn would feed a thoroughbred.

This goes back to number 3, really. The food is a part of the experience. Making it ridiculously overpriced doesn't contribute to the overall experience at all. You can price it reasonably, make a good profit and use that to attract more people to the theater. Or you can do what the theaters do and seek to gouge.

5. Competition from other forms of delivery. Movies streaming over the internet are no longer a sci-fi fantasy. TV screens are growing larger and cheaper. Consumers are finding devices that easily play internet movies through TV sets. Netflix alone accounts for 30% of all internet traffic in the evening. That represents millions of moviegoers. They're simply not in a theater. This could be seen as an argument about why newspapers and their readers need movie critics more than ever; the number of choices can be baffling.

I'd argue it goes beyond just other forms of delivery, to competition from other forms of entertainment. The wider internet has grown quite a bit over the past few years, and video games, in particular, have become a much, much, much bigger industry. Plenty of people who might have wanted to go out to see a movie in the past, might prefer to just stay home and play video games online instead.

6. Lack of choice. Box-office tracking shows that the bright spot in 2011 was the performance of indie, foreign or documentary films. On many weekends, one or more of those titles captures first-place in per-screen average receipts. Yet most moviegoers outside large urban centers can't find those titles in their local gigantiplex. Instead, all the shopping center compounds seem to be showing the same few over-hyped disappointments. Those films open with big ad campaigns, play a couple of weeks, and disappear.

This is also a big one that gets very little attention, unfortunately. It's typical Hollywood thinking though. They're driven solely by the hits, and have never understood the value of solid movies that can make a profit without being a blockbuster. We're not even talking about the full long tail here, but anything beyond the "short head." If Hollywood would stop thinking in terms of finding only the "big hits," and actually looked at how to make profitable movies, they'd do things pretty differently. Unfortunately, that's just not how they think.

All in all, I believe the movie industry will eventually figure this out, though it may take some outsiders and fresh thinking, rather than today's studio bosses. Unfortunately, in the short term, we're likely to hear the MPAA and others pretend that the decline has something to do with "piracy," when there's little (if any) evidence to support that.

As you hopefully recall, a few years back, the press revealed that the Bush Administration had begun a rather sweeping wiretapping campaign, working with major telcos to get access to all sorts of phone and internet communications... without a warrant. That revelation resulted in a bunch of lawsuits against both the telcos and the government. In response, Congress quickly passed the FISA Amendments Act (FAA), which included a provision granting retroactive immunity to the telcos who helped the government by passing along private info despite the lack of any warrant. Then Senator Obama originally opposed this provision, but changed his mind at the last minute... and has been an enthusiastic supporter of retroactive immunity since becoming President.

A series of 9th circuit appeals court rulings on various cases related to these issues all came out on Thursday. The big one, Hepting v. AT&T, was on the question of the Constitutionality of the retroactive immunity clause. While the specifics of the ruling focus on some tricky specific legal claims (and you have to wade through 26 pages listing all the parties to the case...), the basic summary: granting retroactive immunity is perfectly Constitutional, in large part because of the big scary bogeyman of "national security." For example, in the discussion of whether or not Congress had an "intelligible principle" in delegating authority concerning retroactive immunity under the Act to the Attorney General, the Court basically "national security" is good enough:

When considering how to respond to lawsuits like this one, the Committee "recogniz[ed] the importance of the private sector in assisting law enforcement and intelligence officials in critical criminal justice and national security activities." ... The Report further states that "electronic surveillance for law enforcement and intelligence purposes depends in great part on the cooperation of the private companies that operate the Nation's telecommunication system." ... The intelligible principle that comes through in the legislative history is one of protecting intelligence gathering and national security information.

The fact that § 802 arises within the realm of national security--a concern traditionally designated to the Executive as part of his Commander-in-Chief power--further suggests that the intelligible principle standard need not be overly rigid.

This strikes me as somewhat bizarre reasoning. Even if we recognize that the government has to rely on the private sector in intelligence gathering, that should never create immunity for illegal activities. The concerns that telcos would be afraid to help the government without immunity seems ridiculous. If the actions were legal then it would already have effective immunity, in that suits would be quickly dismissed. It's only if the actions are illegal that they would need immunity.

There are a number of other specific points in the ruling, but the other one that strikes me as ridiculous is the court's response to Hepting's claim that another problem with the Act is that it puts a biased party in charge of determining who gets immunity, and that's a due process violation. To put it simply, if it's the government's own Attorney General deciding to grant telcos immunity to coverup the government's own illegal wiretapping... then that's a due process violation in that the plaintiff has no way to get a fair hearing from a neutral or unbiased judge. Amazingly, the court rejects this in two ways. First, by saying that the Attorney General "certifying" the actions of telcos to qualify them for immunity does not count as "adjudicating," but is merely "factfinding." But if that "factfinding" blocks any chance of the case being heard, isn't that effectively the same as "adjudicating."

The second reason for rejecting this argument is that we just have to assume the Attorney General is unbiased, according to the court:

Hepting views Attorney General Mukasey as operating under "a structural, institutional bias" because he served during the Bush Administration, which advocated for the legislation, and was counsel to the United States in these lawsuits. He follows with the claim that Mukasey "had an actual bias in this matter," because he stated publicly that the immunity provision was "important" and that immunity represented "a fair and just result," and also conveyed this opinion to members of Congress.

Hepting ignores that the Attorney General has a legitimate policy role. It is well established that "[a]dministrators . . . may hold policy views on questions of law prior to participating in a proceeding." .... Public officials are presumed not to be biased; expressing an opinion, even a strong one, on legislation, does not disqualify an official from later responding to a congressional mandate incorporating that opinion.

Yeah, but that's not the issue. No one's saying that public officials can't make use of legislation they supported in general. But in this specific situation, the law allows the AG to very easily cover up illegal activities performed by companies to help his own investigations. That's the bias concern. No one cares that he supported the law. They're concerned that his bias is in covering up illegal actions that helped his own efforts.

The courts also rejected Hepting's argument that retroactive immunity precludes any legal action against the wiretapping, by noting that retroactive immunity only applies to the telcos -- but the government itself can still be liable. And that's where the second important ruling on this issue comes in. The ruling in Jewel v. NSA is at least slightly more encouraging, in that it sends a separate, but related case against the government for warrantless wiretapping back to the district court, rejecting many of its arguments that led it to dump that case earlier.

In that case, the district court dismissed the case, claiming that Jewel lacked the standing to sue the government. However, the appeals court disagrees and says that Jewel does have standing. It finds that Jewel showed "concrete and particularized injury." Of course, the district court may still turn around and dump the case, agreeing with the government's other key assertion that the "state secrets privilege" kills off the case. Of course, if that's what happens it kind of undermines the claim in the Hepting ruling that telco immunity is fine because you can still sue the government. Furthermore, even if the government loses here, it's not clear that it matters. As in the similar Al-Haramain case, if the government is found to have illegally wiretapped someone, so what? In Al-Haramin, the government just had to fork over about $40,000. That's hardly going to make the government stop...

There was a third ruling related to all of this as well, in McMurray v. Verizon, which more or less was the same thing as the Hepting case, but also added one separate argument: that the FISA Amendments Act represented a violation of the Takings Clause. The court keeps this one short, and says that while the idea is a "novel approach," it really just doesn't apply here, in large part because McMurray "failed to seek just compensation from the Court of Federal Claims," as required for a Takings Clause claim to be valid.

In the end, the Jewel ruling is nice, but may not get much further, and the acceptance of the Constitutionality of retroactive immunity is pretty horrifying. Obviously, this seems not just ripe for abuse, but pretty clearly a sign that there was past abuse that the government is happy to keep covering up.

By their very nature, drug patents can create monopolies that allow prices to be kept artificially high. In other domains that may be simply an annoyance or inconvenience, but in the world of medicines, it can be a matter of life or death for those unable to afford those inflated prices.

To get around this, various alternatives have been suggested, such as prizes – an example of how that might work for the development of drugs to treat HIV/AIDS was discussed recently in Techdirt. An alternative approach is the use of patent pools. Here's how the Medicines Patent Pool explains the system:

With the patent pool model, multiple patents are ‘pooled’ and licensed out by one entity, in order to cut down on transaction costs for all parties involved. In the case of medicines, this allows more affordable and more adapted versions of patented drugs to be produced as generics, long before their 20-year patent terms run out. Not only will the Pool help speed up the process of getting urgently-needed newer and improved HIV medicines to people who need them at much more affordable prices, it will also foster the development of needed products that do not yet exist, such as certain ‘ fixed-dose combination’ (FDC) pills containing two or more newer medicines in one pill, adapted medicines like those that can be used in hot climates without refrigeration, and HIV medicines for children.

The Pool is a win-win-win model, whereby patent holders are compensated for sharing their patents, generic manufacturers gain access to markets, and patients benefit more swiftly from appropriate and adapted medicines at more affordable prices.

This is not a matter of "expropriating" patents, but removing roadblocks and simplifying licensing mechanisms so that everyone gains. Sadly, that's not how Johnson & Johnson sees it:

on December 19, Johnson & Johnson continued to turn its back on people living with HIV/AIDS in many developing countries by telling the Pool it refused to license its patents on the HIV drugs rilpivirine, darunavir, and etravirine.

Johnson & Johnson's reason? According to Doctors Without Borders/Medecins Sans Frontieres (MSF):

Johnson & Johnson says there is no urgency for making these drugs widely available in developing countries. That’s simply not true. MSF now provides treatment to more than 180,000 people living with HIV worldwide, and is beginning to witness the inevitable, natural phenomenon of treatment failure, whereby people develop resistance to the drugs they are taking and need to graduate to newer medicines.

As MSF further points out:

Unless Johnson & Johnson and other companies take part in a collective way forward to bring affordable medicines to more people in all developing countries, they are not part of the solution as they want the public to think. They are contributing to the problem. They want to control who can make and use their drugs based on their commercial needs rather than the needs of people living with HIV.

What makes that particularly frustrating for doctors seeking to widen the availability of these drugs is that Johnson & Johnson has an entire section of its main web site entitled "Our Credo Values", which are summarized as follows:

The values that guide our decision making are spelled out in Our Credo. Put simply, Our Credo challenges us to put the needs and well-being of the people we serve first.

Moreover, that Credo even has the following commitment:

We must constantly strive to reduce our costs in order to maintain reasonable prices.

Johnson & Johnson's refusal to participate in the patent pool is not only ill-advised in terms of the negative publicity this is likely to generate, but ultimately counterproductive. As MSF notes:

Going forward, mechanisms to promote generic competition by overriding patents—as allowed by international law—in addition to voluntary initiatives, such as the Medicines Patent Pool, will be crucial to ensuring that monopolies do not stand in the way of patients' access to lifesaving drugs.

That is, when companies are persistently obstructive, countries will simply override patents altogether, as treaties permit when public health is at stake. Is that really what Johnson & Johnson wants?

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Venkat Balasubramani has the story of a bizarre fight between a company, Sawabeh Information Services, and the founders of Edcomm, a company that Sawabeh bought in 2010. A few months later, the founders of Edcomm were fired, and the lawsuits commenced. There are a variety of issues here, and Venkat's post goes through most of them in detail, but I wanted to focus on just one: the fight over who gets to control Dr. Linda Eagle's LinkedIn account. Eagle was one of the founders of Edcomm and the key figure in this fight. Sawabeh claims that Eagle "misappropriated" her own LinkedIn account and the contacts associated with it, by continuing to use it after being fired.

While I can kind of understand some of the legal fights over who gets to control Twitter accounts, the entire point of a LinkedIn account is to represent an individual and their job history. How would it possibly make sense for a company to control an ex-employee's LinkedIn account?

The company seems to think that the LinkedIn account was more like a rolodex. Because (for reasons that are beyond me), Eagle had let others in the company access and manage her account, as soon as she was fired, people at the company accessed her account and then changed her "name" and profile picture to someone else at the company. That would be pretty shocking for her connections, who might not know who the guy was at all. They also tried to do this with the account of one of the other fired founders, but they didn't have his password. Apparently the company asked LinkedIn to hand over the password, and LinkedIn, properly, told the company to get lost.

Either way, the court digs into the "misappropriation" question with the LinkedIn account and refuses to dismiss it out of hand (at this stage of the case), which seems too bad. However, there's an unclear issue of who "developed" the contacts in the account:

The Counterclaim Complaint expressly alleges that, with respect to the LinkedIn account connections and content, "Edcomm personnel, not Dr. Eagle, developed and maintained all connections and much of the content on the LinkedIn Account, actions that were taken solely at Edcomm’s expense and exclusively for its own benefit." ... While Plaintiff argues that Edcomm fails to allege facts that would show that it made a substantial investment of time, effort, and money into creating the cell phone number or LinkedIn account, Edcomm counters that its employees developed the accounts and maintained the connections, which are the route through which Edcomm contacts instructors and specific personnel within its clients. As these conflicting allegations create an issue of fact requiring further discovery, the Court must deny the Motion for Judgment on the Pleadings as to the misappropriation counterclaim.

Of course, I wonder if they're arguing about the wrong thing here. If the company developed the contacts, perhaps it has a right to ask for a copy of the contacts, but the account itself seems like it should belong to Eagle. Part of the problem here is the idea that contacts are some scarce resource. Both parties can have them, and the simplest thing would be, if there is a legitimate claim that the company developed those relationships, to require that their contact info be provided to the company -- but leave the account in the hands of Eagle.

Either way, the case should be a warning for any company that wants to control the LinkedIn accounts of its employees.

Yesterday, we noted that it appeared that the "GoDaddy boycott" concept may have been losing steam, thanks to the company's decision to move away from supporting the bill... combined with a new aggressive advertising campaign. Finally, on Thursday morning, the company went a step further: saying it hadn't just stopped supporting SOPA but now directly opposed SOPA. Even though the company notes that it saw "a spike in domain name transfers," it looks like the actual "boycott" day fizzled out. Looking at the results from DailyChanges shows that GoDaddy actually had a strongly positive day, netting 20,748 more domains at the end of the day than the beginning. On transfers alone, there were nearly double the number of transfers in as out (27,843 in to 14,492 out) as well as more new registrations than deleted domains (43,304 new registrations compared to 35,907 deletions). This isn't that surprising, really. There was a big burst last week, which is what resulted in GoDaddy changing its stance on the bills. In other words, it seemed like most people jumped to make the move immediately, rather than waiting a week. On top of that, GoDaddy's change in position very likely did ease the concerns of many. And, many made the quite reasonable argument that continuing the boycott after GoDaddy officially changed positions would be counterproductive, since it would discourage other companies from changing their position as well. Of course, a counter argument would be that the goal of the boycott was less about convincing others on the list to change positions as it was to make sure that no other companies decided to support SOPA or any similar future regulations.

Either way, it appears that for those who were hoping for a big boycott on Thursday, that didn't happen. I'm sure some SOPA supporters will use this as fodder to suggest the whole effort was a failure, but that's ridiculous. The whole thing still got a large company that was a huge supporter of these terrible bills to switch its position and recognize that it can't run roughshod over the wishes of its customers. It also helped draw more attention to the overall issue, and helped in getting other companies to back away from supporting the bill. It also got some attention among elected officials about how supporting this bill could get the internet activated. It may not be enough to kill the bills yet, but more politicians are aware of the issues. All in all, getting GoDaddy to change its position was a huge victory against SOPA and PIPA, but remains just one battle in a long and still ongoing war.

Update: There are a bunch of comments insisting that this can't be true, and I'm happy to see more data. NameCheap claims that it had 32,000 domains transfer in, and it's true that Daily Changes isn't a perfect proxy for domain transfers -- but it's a pretty good one. Some are suggesting that delays in processing will show more transfers over the next few days. We'll be watching. It's possible that there were a lot more transfers, but just because people want it to happen, doesn't mean it actually happened. Update 2: NameCheap says in the last week they've received around 80,000 transfers.

One of the striking features of some of the most successful startups over the last ten years – companies like Google, Facebook and Twitter – is that their infrastructure is based almost entirely around open source. Of course, that shouldn't really be surprising: open source allows people to get prototypes up and running for the price of a PC, which is great for trying out ideas with live code. And yet despite these zero-cost origins, open source software scales up to supercomputing levels - the perfect solution for startups that hope to grow.

Today, no startup would consider doing it any other way, which means that the initial competitive advantage of taking the open source route has largely vanished. So the question for entrepreneurs looking to ride the next wave becomes: what's next for commoditization? This fascinating post by Ed Freyfogle on the blog of the property search engine Nestoria suggests it might be swapping out proprietary mapping services for those based on the collaborative open data project OpenStreetMap (OSM):

this week we went live with a significant change to our service - in most countries we've moved away from Google maps and are now relying exclusively on OpenStreetMap maps served by MapQuest.

Freyfogle then goes on to explain the four key reasons why Nestoria decided to make that move:

1. The maps are equal or better

in many places of the world, particularly the European countries we were focused on, OSM maps are of equal or better quality than any other widely available mapping service.

That mirrors earlier moves to open source, which matches closed-source software is most areas, and bests it in many – Web servers, for example. It's a reflection of the quality of OSM that Nestoria did not have to compromise on quality in order to make the move.

2. It's another visible way for us to support open data

Our service does nothing more (and nothing less!) than aggregate data from many different sources and present it in an easy to use format. We benefit greatly from open data, and as such we want to do our part (within the limited resources of a start-up) to help the open data movement.

Again, this is very similar to the attitude of companies that use open source. Google, Facebook and Twitter, among others, have all released significant quantities of their home-grown code as open source, recognizing that the stronger the overall ecosystem, the better it is for them too.

3. Google introduced charging for map usage

Earlier this year Google announced that they would begin introducing limits to the use of Google maps by commercial websites.

This basically meant that Nestoria would have to start paying for something that it had until then been able to use for free. That obviously helped concentrate people's minds, and doubtless encouraged them to take a look at the practicalities of moving to services based on OpenStreetMap's data.

4. The tools are ready.

Despite all of this, we would not have been technically able to make the switch unless there was a solid set of tools and services around OSM that made the switch possible.

A crucially important issue. Even if all the others had been present, without the tools – and the emerging ecosystem they imply – the move from Google Maps to OpenStreetMap would have been hard, if not impossible, for most companies. It's the availability of these tools – and the incredible richness of the underlying OpenStreetMap data, of course - that makes it likely that others will be able to follow Nestoria's move here, adopting and adapting OpenStreetMap just as people adopted and adapted open source a decade ago, with the results we see today.

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