We've had a few discussions here at Techdirt about anonymous commenters, coming down firmly on the side of the anonymous. Tim Geigner's response to Anil Dash's "If Your Website's Full of Assholes, It's Your Fault" turned the tables on the tired trope that anonymity breeds assholishness by stating that if your comment thread is awesome, it's your commenters' "fault." Many other pieces have been written by Mike Masnick, taking on various articles and editorials that claim that anonymity is ruining civil discourse, destroying the internet and (presumably) humanity as we know it in the process. Even in my post comparing trolls to town drunks, I took care to point out that not every anonymous commenter is a loudmouthed troll.

Via Above the Law's daily Non Sequiturs roundup comes a post at What About Paris? (a client-focused legal blog) reiterating site owner JD Hull's arguments against allowing anonymous commenters, namely that most commenters haven't earned the protection that anonymity affords them, using a photo of some French Resistance members to illustrate his point:

The revered French Resistance in action 70 years ago. Today, certainly, these heroes might need to comment and blog anonymously. However, lawyers, shoe store managers, Tulane grad students, accountants, and other country club Charlies haven't earned that privilege.

Hull goes further, equating anonymous commenting with less-than-desirable human traits including (as Techdirt's default anoymous option nods at) cowardice:

Absent compelling reasons, nameless blogosphere participants, in our view, are rarely worth anyone's time, thought, or respect--even when they think and say brilliant things... They are second-class citizens. They say third-rate things. Certainly, they have no incentive to exceed below-average...

It doesn't take much thought or courage to lob one in there when you don't sign your name. Our new digital culture permits a certain accepted wimpiness to masquerade as needed "privacy" and personal "style". But it's a ruse. Most of us can do better than that. Don't buy into nameless blogging and commenting (or participation through pseudonyms) unless it's deserved.

While the wording is harsh, some basic truths underlie Hull's arguments. Anonymity means never being able to take credit for brilliance or be assigned guilt for any written atrocities. As you can clearly see in the weekly funny/insightful comment wrapups, AC's gather a ton of votes in both categories, demonstrating that not every anonymous commenter is using anonymity as a cloaking device for misanthropic behavior. As much as we would love to know who's behind these comments, stripping away the "anonymous coward" option would most likely result in a severe dropoff of overall comment quality.

On the other hand, anonymity is very often used as a layer of protection for those whose comments are the very reason that so many websites have turned to less anonymous options, like Facebook comments or required registration. Without the cover of anonymity, would anyone log in to post something like this recent irredeemable piece of malevolence?

Using the AC option to make statements like this is exactly what Hull is referring to when he uses the word "cowardice." The anonymity afforded to commenters by Masnick's refusal to censor the comment threads in any way (by requiring registration or using a third-party comment system) allows them to operate without fear of reprisal. Making crass statements or baseless personal attacks doesn't require courage or even forethought. All it requires is a keyboard and the will to sink to the lowest level possible.

Back to Hull:

As Walter Lippmann once reminded us, "cowardice" is a strong word, and you don't throw it around. We dislike using it. It implies a certain moral superiority of the user (which the writers of this blog would never claim, and do not wish to achieve). It generally furthers no discussions, and justifiably puts people on the defensive. But that word, unfortunately, may fit here.

Hull references Above the Law, which is now looking to rid itself of anonymous commenters:

Check out the anonymous haters, nameless "experts" and scores of prissy pundits and lemmings who won't sign their real name to their rants and indictments. (We don't know how much David Lat is paying editor Elie Mystal these days, but it's not enough. Mystal is a mensch, soldier, hero and lightning rod who is often himself targeted for abuse.)

When people speak out against anonymous commenting, it's because of instances like these. And it's never a few outliers that cause the problem. It's wave after wave of anonymous commenters, all playing internet heckler, usually with nothing more interesting to contribute than random insults and f-bombs in the general direction of the writer and other readers.

It hurts the chances of other anonymous commenters to be taken seriously, especially when these non-trolling commenters offer up dissenting opinions. The tragedy is that the ACs who traffic in ad hominem attacks and drive-by insults could care less if they damage the collective reputation of anonymous commenters.

The good news is that Techdirt's comment threads are routinely full of awesome commenters, many of whom have taken it upon themselves to preemptively "troll" many of the posts, taking the words right out the mouths of would-be attackers. Hilariously, these ACs are taking offense at being "pre-trolled," going so far as to suggest that Mike himself is deploying an army of commenters to discredit the "real" ACs by (presumably) stating their own "arguments" before they've had a chance to.

(Pro tip: don't want to be confused for a "fake" AC? Pick a name and stick with it. Value your anonymity? Well, either everyone gets an equal chance to be anonymous or no one does. Which do you prefer?)

While I can certainly appreciate the frustration of Hull and Mystal, trying to do away with anonymous commenting usually results in losing a lot of the good along with the bad, and the determined trolls will always be able to find a way to use your new comment system against you.

Anonymity on the web is still very much a good thing, especially considering how many entities, from Facebook to Google to various governments, are looking to take it away. I'd still rather wade through a ton of personal attacks than require registration for something as universal as expressing an opinion.

As pointed out by Harold Feld, it seems pretty messed up that our news media is going absolutely nuts over the story of the potential "Bieber baby," but has all but ignored the story of how the lack of clarity in the proposed SOPA law might mean Justin Bieber would go to jail for his performances of other people's works on YouTube -- something Bieber himself has spoken out against. Let's take a look. A basic Google News search on "bieber baby" turns up... 3,770 news stories: And then let's do a search on "bieber sopa." For that... we get... a grand total of 15 news stories (including one from Techdirt): Which story is actually more important? The one in which the government makes massive regulatory changes to the internet that will create felons out of ordinary people? Or the story about a baby that a pop star may or may not have fathered?

We've heard a particular argument a few times about the fact that just about anyone can create content thanks to new tools of creation, distribution and promotion and that all this new content somehow "buries" the good content. We have no doubt that much new content being produced is, in fact, pretty bad. I've never quite understood the argument, though, that bad content harms good content. You just have to ignore the bad content and follow the good content. What that means is that the world just needs good filters, and we keep seeing more and more of those showing up every day. In the music world, there's a ton of new music being produced all the time -- and much of it isn't to my liking. But at the same time I feel like I'm living in renaissance of wonderful music, because I'm able to find fantastic new music all the time via a variety of tools: friends, blogs, Spotify, Turntable.fm, Pandora, and even a few cool (small) record labels who I follow because they release a ton of music I like.

Apparently the same sort of argument is going on among elitists in the ebook world. Thankfully, JA Konrath has jumped into the debate and brought some sense to the world, explaining how authors shouldn't complain about all the new ebooks coming out:

First of all, there are billions of paper books on planet earth right now, but there was never any talk about being too many, or worries the paper market was saturated. What a ludicrous concept.

Author: Do you want put publish my new book?

Publisher: I'm sorry, but there are already too many books. We can't print anymore.

Silly, ain't it?

Furthermore, he points out that research has shown that people who have ebook readers actually tend to read more books than those who read paper books -- suggesting that the market for books is expanding. And, he notes that's likely to continue as ebook readers continue to sell quickly (outpacing the number of new ebooks, even). But the key point is that if you produce quality work, there are mechanisms to make those rise to the top via various filters.

As long as websites like Amazon make browsing easy, the cream has the potential to rise to the top. You don't have to be a monster bestseller. A hardcore niche group of 10,000 fans can support a writer quite easily. Write two ebooks per year at $2.99, and three shorts at 99 cents, and you're making $50k a year.

But ebooks don't stop selling after a year. They sell forever. And good books will eventually find more than just 10,000 readers. And every new book you write will find new readers along with old fans.

Going back to the 2031 figures, an author will have a much better chance of finding those career-sustaining 10,000 readers when there are 100 million ereaders out there.

Or, as his final sentence states, just keep making good content:

And for those not there, remember that cream rises. If you made cream, and it hasn't risen yet: make more cream.

I'd argue (and I think he'd agree) that you do have to do a bit more than just make good content. Connecting with fans and doing more with them certainly helps. But no one putting out bad content is going to impact things if you have good content. Just keep producing that good content.

The world's population recently exceeded 7 billion, so maybe it's time to start thinking about new methods to grow food in sustainable ways. Farming techniques are already pretty advanced (compared to just a few decades ago), but there's always room for improvement. Here are some examples of food technology that could help keep food availability at a comfortable level before we have to resort to Soylent Green.

• It probably shouldn't be too surprising that artificial meat grown in a lab has the potential to significantly reduce the carbon emissions of the livestock industry. Getting people to eat cultured meat might be a bit difficult, though. [url]
• The company Shelf Reliance sells freeze-dried food that can last indefinitely -- so you can survive underground while the zombies roam the surface of the Earth. Based on taste tests: stick to the freeze-dried fruits and vegetables. [url]
• A shrimp production facility in Texas can grow record-setting amounts of shrimp using an indoor system of recirculating water. This technology also avoids the use of antibiotics and could make US shrimp production competitive with shrimp farms in countries like Thailand, India and Vietnam. [url]
• Growing vegetables on thin films of hydrogel polymers is a reality, producing commercially sold tomatoes. These thin film farming techniques also seem to work with melons, cucumbers, strawberries, lettuce and paprika. [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.

We've discussed a bunch of times how the lack of market forces in the textbook market has allowed publishers to jack up the prices massively. It's why various textbooks can cost around $200, and students can spend over $1000 a year just to get the textbooks they're required to buy for school. Aaron DeOliveira points us to an interesting story involving Washington State trying to end such practices by setting up an Open Course Library that will make course details and courseware much, much cheaper for students:

The goal of the Washington State Board for Community and Technical Colleges project is to boost college completion rates by making higher education more affordable. The online library will house a collection of textbooks, readings, activities, and other educational materials for 81 of the state’s most popular general education and pre-college courses. The texts are available under an open license to other higher education institutions, as well as anyone else who wants to access them.

The effort has the potential to save students millions of dollars. The average community college student in Washington spends about $1,200 per year on textbooks—about a quarter of the total cost of attending school full-time. Some classes will still require students to purchase a textbook, but for Open Course Library classes, the cost can’t exceed $30 per student. All other materials will be free.

That's quite a program, and should make for quite a difference in terms of costs for students. In his submission, Aaron wonders if this is market forces or market interference. It's an interesting question, and it makes me wonder if there might be a better solution. First, though, it's necessary to recognize that the textbook & courseware market is not an open and competitive market, because the buyers -- students -- aren't given any choice at all. They have to buy what their professors tell them to buy, for the most part. So, the state getting involved to force down prices is definitely a reasonable response to that problem.

But I do wonder if that solution creates other problems. Suddenly the courses and books chosen for that online library are the only ones likely to be used, which could leave out other courses and sources that may be even better. That leaves some concerns about who chooses what books go into the open library. The library does seem willing to let in other courseware, so long as it's posted online with a Creative Commons license -- so perhaps this concern is solved by that. The fact that this might encourage more courseware and text creators to move to Creative Commons or similar licenses may be a useful side benefit.

Either way, in the end, education is an area where smart government involvement makes sense (though, the "smart" part often isn't evident in education efforts we see). And, on its face, this seems like a good way to drive down costs and share more education information. And I'd guess that the more disruptive education tools providers -- like Flat World Knowledge and Khan Academy -- might appreciate and work with Washington State on this effort, benefiting everyone, and making sure that there really are a wide variety of courseware options that are either free or very cheaply priced.

As a search through the Techdirt archives shows, Phorm's behavioral advertising service based on watching your Web activity was beset by problems in its early days. One of the last Techdirt posts on the company from a couple of years ago explained how Phorm was planning to expand overseas, and here's some news on how that's been going:

Despite Phorm softening the service in response to privacy concerns, three UK ISPs who trialled it decided not to go deploy it. Phorm moved operations to South Korea but the same happened. So it moved to Brazil.

Now operating on an opt-in basis, Phorm has finally gained actual commercial roll-out with Brazilian ISPs Oi and Telefonica and with Romania’s Romtelecom. With them, Phorm says opt-in rates have met or exceeded targets, advertiser prices have been “significantly higher than forecast” while publisher costs have met or undermet targets.

With this record, Phorm could certainly use with a few more big new markets; its financial results so far have been dismal:

The company had never recorded any revenue until the first half of this year, just $17,336. (£10902.53) In 2010, Phorm lost $28.6 (£17.99) million.

Despite that track record, it is predicting big things:

"The potential scale ... of the Brazilian business could be £7.03 ($11.13) million... The (value) of Romania could be £78 ($124.03) million," Phorm itself forecasts modestly to investors. These targets are based on Phorm scaling up from small, post-trial deployment to large-scale adoption.

It also has high hopes elsewhere:

Phorm says discussions with other global ISPs have also continued for the last three years. It plans to roll out in China and a southern Europe country early in 2012. It also says it is due to deploy in a southern Europe country it values at £483 ($768.01) million and a south-east Asian country it values at £82 ($130.39) million early next year.

Those are rather a jump from this year's six-month sales of $17,336. Undeterred by that fact, investors still seem to be piling in:

This time, it is raising £30 ($47.7) million, which will be used partly to repay a £16 ($25.44) million convertible-notes loan it took out this March and partly “to provide sufficient working capital to get to positive operational cash flow”. It is planning a cash burn of £1.1 ($1.75) million per month for the next year.

At this point, you could be forgiven for having lost track of how much money Phorm has raised and how much equity it has given out to finance its ongoing hefty losses. But paidContent has previously reported Phorm took a total £53 ($84.28) million between 2005 and 2010. The recent loan and latest funding bring that total to nearly £100 ($159.01) million.

That's pretty incredible: nearly $160 million for a service that has yet to prove itself in any large-scale deployment. There's something very strange about this persistent belief by investors that what the world is really waiting for is a service that watches your every move online to serve up targeted ads and content.

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Businessweek is reporting that Nintendo has won a patent infringement case brought by Motiva. Back in November 2008, Motiva filed a patent infringement suit, via the ITC loophole against Nintendo over its 7,292,151 patent for "Human Movement Measurement System" filed in June 2005 and granted in November 2007. Just this week the ITC ruled that Nintendo's Wii and Wii remote did not infringe on Motiva's patent and will not be blocked from import into the US. The judge on the case found that Motiva had not established a market behind its invention which is necessary to win an ITC case. The case still needs to be reviewed by the full six-member commission of the ITC, but Nintendo remains confident that they will also rule in Nintendo's favor -- which seems likely, since the commission frequently follows such rulings by ITC judges

This case has a couple of similarities to the two recent patent suits brought against Nintendo. Much like those patent suits, Motiva's involved a patent that was filed for the same year Nintendo introduced the Wii and the Wii Remote to the world. As with the UltimatePointer suit, Motiva does not have a product on the market, as can be seen by the lack of any product details on Motiva's website -- which, again, was fatal for the case, since the ITC cases (unlike federal court cases) do require some actual products. It's good to see the ITC recognize this case made little sense, and hopefully it bodes well for Nintendo's other cases brought by patent holders. However, just the fact that it keeps getting hit with questionable patent suits again should raise questions about the state of the patent system today.

If you haven't seen this short clip of a bunch of local TV newscasters all saying the exact same line about Conan O'Brien's officiating a same-sex marriage on stage in New York City during a show this week, it's really worth watching just for the mind-numbingly bizarre reaction you have to seeing so many newscasters all repeat the exact line: "Conan O'Brien may be about to push the envelope on late night television." Or, as O'Brien notes, watch as they each put "their own spin" on the news: Honestly, it's hard not to watch that and think that all of the newscasters didn't receive the identical script. While the phrase is a common one, it's not that common that it would lead so many newscasters to all use the identical phrasing. It's possible these are all news affiliates from a single company, who were sent a basic script -- but, once again, this seems to highlight the growing irrelevance/ridiculousness of TV news these days. If you're just going to have 50 different newscasters all read the identical script, why not just have a single newscaster do it, and air it directly on all those other stations.

When Eminem's publisher won its lawsuit with Universal Music over how to account for iTunes royalties, we expected a flood of similar litigation, possibly enough to seriously cripple the world's largest record label. Universal Music insisted that Eminem's deal was unique and the case was specific only to that, but so far, we're seeing more and more musicians understanding the implications of the ruling, and filing similar lawsuits. If you don't recall, the battle came down to the simple question of whether or not an iTunes sale was a sale or if it was a license. Amusingly, in almost all other legal contexts, Universal Music claims that when you "buy" a song at iTunes it's just a license. But that proved to be UMG's undoing here -- because many of its old contracts had extremely different terms for royalties on "sales" and "licenses."

Now, there's a good reason for this. Historically, sales were of things like CDs, where Universal had relatively higher production, storage and distribution costs. So for "sales" (of CDs), the royalty to the musician was lower. "Licenses" generally referred to things like licensing a song for a movie or TV commercial. There, labels were willing to share higher royalties with the artist, and for good reason. The costs to the label of such a license were minimal, and licensing was always a relatively small part of the business.

But, of course, iTunes makes for a weird situation. The labels want to pretend it's the same thing as selling a CD, and thus they've been paying the lower royalty rate. But, in other legal contexts they keep claiming that downloading a song from iTunes is not really a "sale" but merely a "license." Thus, the basic legal claim from musicians is that for iTunes sales, they deserve the much higher royalty rate (usually closer to 50%, rather than 10% for sales). The court in the Eminem/FBT case said that iTunes songs were licenses... and thus the higher rates applied.

As we noted, when others started suing, this could lead to somewhere around $2 billion that the labels may need to pay out to artists, and the artists are noticing.

The latest to file suit is is Chuck D of Public Enemy, claiming that Universal owes him hundreds of millions of dollars.

The full filing (embedded below) provides some additional details about UMG's "standard" recording contract. As was detailed earlier this year by entertainment industry lawyer, Martin Frascogna, royalty rates are often just a part of the calculation -- and those royalties tend to come after a bunch of other "deductions." In the Chuck D lawsuit, he notes that the "sold" equation includes a ton of additional "deductions" compared to the "licensed" equation. This includes a "container charge" and an "audiophile deduction." Because of those significant other deductions that only are used on "sales," the claim is the amount owed is even larger than just the discrepancy in royalty rates... and considering that the "container charge" is officially for physical packaging of a CD, it seems pretty ridiculous that UMG has been applying the container charge to digital licenses like iTunes.

In the lawsuit, Chuck D actually reveals the data on how UMG has been calculating royalties... and how they should. It highlights record label accounting at its finest: As you can see, just as Frascogna explained in his video, the "standard" way of accounting for "sales" is pretty ridiculous. First, there's a "net sales" deduction, which simply deletes 15% of sales from the equation. Then the "container charge" takes out another 25%. So, on 1,000 units -- which brought UMG $700... UMG is able to say that Chuck D is only provided with $80.33... despite a (quite generous for a record label deal) royalty rate of 24% (standard deals start closer to 10%). In other words, the real royalty rate for Chuck D is actually more like 11%, rather than the 24% claimed in the contract.

As the lawsuit notes, the proper way to account for digital royalties would show a much, much higher number: $315.85 for every 1,000 units sold: The lawsuit goes on to make similar (though with even more number discrepancy) arguments around ringtone royalties, suggesting that UMG is paying $49.89 per 1000 ringtones sold... when the actual number should be more like $660.

UMG is going to be facing a lot more of these kinds of lawsuits, and it's somewhat amusing to see it hoisted on its own petard for being so insistent that iTunes and other digital stores were "licensing" deals. And, for what it's worth, Chuck D has actually been one of the artists on the forefront of embracing the internet and what it allows -- way before almost any other artist. All the way back in 2000, we had an article about him defending Napster in a debate against Lars from Metallica. If anyone deserves to take Universal for "hundreds of millions of dollars," he seems like a good candidate.

One phenomenon we often write about on Techdirt is how the internet has completely killed the music industry and how it has turned our world into a culturally barren wasteland, deprived of art and even joy. More accurately, we write about people who say such things and point out the inaccuracies, ignorance or basic flaws in their logic.

Critically acclaimed pop culture critic Simon Reynolds was recently interviewed by Andrew Keen and made a bunch of generalizations and claims that are in seeming contrast with his progressive outlook previously shown in musings about punk and post-punk, as well as rave culture.

The interview starts off as you expect it would:

"It's much less likely that you'll be able to make a living doing it."

And how have you measured that 'likelihood'? Even if there are less people making a living from making or performing music, a claim for which I have yet to see good proof, is it really less likely that anyone will be able to make a living off of it?

Instead of backing up his claim, Reynolds continues and discusses the way things used to be in a romantic tone which doesn't change as he compares the old label-centric model to a "lottery", with artists usually having to get "in the red." Misplaced nostalgia. What a long way we have come from that - from a world where artists were at the mercy of corporations to a world of empowered artists in which they are at the mercy of their fans, their customers.

In fact, people have a much larger chance to make a living from music these days. This can be witnessed very clearly in electronic genres, where it is the norm for people to start as 'bedroom producers' and, if they're good enough, they'll get picked up by blogs, then labels and will then be able to build a proper studio and make a living from touring. If they're good enough, according to fans and curators within their niche - not according to label execs or music journalists. Anyone can become a producer and anyone that manages to find an audience and connects with them properly has the opportunity to start making a living from it. It's not easy, but at least it's not a lottery.

Next claim:

"A generation has come along who don't think they should pay for music."

Then explain Justin Bieber. Where does the demand for his merchandise come from? Who is attending his tour events? About 30% of all music recordings are still bought by people under 30, the generation that grew up with the internet. Even the RIAA's numbers show it. That does not take into account live shows or other ways of 'paying for music'. True, the same group used to be responsible for 45% of the purchases, but that still doesn't mean they don't believe in paying for music. Just because only 20% of teenagers will clean up their room out of their own free will, that doesn't mean an entire generation has come along who don't think they should clean. Then again, where would music be without people talking about new generations they do not understand.

Reynolds continues:

"I think there's something about paying for music that makes it more intense; you've got to listen harder to music. If you pay for it you're going to pay attention to the record you bought and get your money's worth."

Does music that depends on the psychological phenomenon of cognitive dissonance really deserve to be bought? At the end of the day, music being available in a 'feels like free' manner, for instance via YouTube or Spotify, means that your music has to stand out. Either by being really good or by having a unique sound. Preferably both. Quality gets rewarded with attention and attention is what can be monetized down the line. No more lotteries.

Then follows a breakdown of mash-ups. Two lines really stand out:

"A mash-up is not something that you'd really want to listen to more than a few times because it's like a joke, isn't it, really?"

"And they're not adding anything. They're not adding--they're not a contribution to the future of music, I don't think."

Come on! That's what my parents said about house music when I first heard it as a kid. Those statements, especially the latter, sound like an echo of the criticisms early rave innovators like Shut Up And Dance and The KLF received from the previous generation that did not understand the new revolution in music.

Perhaps some explanation is needed. Part of the mash-up culture is indeed like an out of control meme - nerd humor at its finest, focused more on the joke than on the art. However that's definitely not what all mash-ups are. Take a look at this live mash-up by Madeon, which we covered a while back: Or look at Girl Talk. Or look at absolute classics like De La Soul's 3 Feet High And Rising album, which is basically composed of intricate mash-ups layered with raps. The same for the Beastie Boys' Paul's Boutique album, of which someone composed a great Spotify playlist with all the tracks that were sampled on the album by the way.

Many new, trendsetting genres, such as dubstep or moombahton, rely or have relied heavily on remixing, altering or mashing-up previous works. The outright dismissal of mash-ups as a contribution to the future of music is nothing new though. This dismissal was false when hiphop and house DJs started mashing up disco and funk records in the late 70s and early 80s, and it is false today. Mash-up culture is pop art on steroids.

After Keen notes that "you're not allowed to be on TechCrunch and be too miserable," they aim to end the interview on a cheerful note and start talking about radio (yes, really).

"Anything that can take on the role that radio used to have and deliver new things to people that they're gonna like. It's gonna prosper."

I think he's on to something there. Personally I have very high hopes for something called... the internet. It's common to see people looking for ways in which 'new technology X' can replace 'old technology Y', although that's never the people that grew up using the new technology. The internet's purpose was never to create a way to replace old technologies with some a single new alternative. What the internet has done is take all the different roles of radio such as curator, broadcaster, gatekeeper, commentator, critic, entertainer and more, and it has separated or perhaps eliminated some. Now anyone can take on one of those roles or any combination thereof. It's no longer something exclusive.

Hope you don't mind the sarcasm here and there, Simon. You've got a great mind, but I couldn't let these claims go by unchallenged. If you'd like to retort, please get in touch. We'd be glad to feature it on here.

Personally, I think this is an awesome time for both musical artists and fans right now. There is so much opportunity and freedom. I think it's a great time for music and perhaps it will take some more years and further disruption for some folks to finally be able to see that -- just like the general music industry's shifted opinion about that De La Soul album mentioned above, which was initially met with plenty of animosity from the traditional industry. Luckily, true pioneers ignore such animosity, move on and set the standards for tomorrow for both musical artists and fans.

We already, briefly, touched on the recent district court ruling in Massachussetts, in one of Liberty Media's mass infringement cases, covering the tangential legal question of whether or not porn can even be covered by copyright, but the actual legal issues raised in the case are pretty interesting as well.

Marc Randazza, Liberty Media's lawyer on these cases, and I disagree over whether lumping together a bunch of unrelated individuals is proper "joinder." Randazza has argued that many other mass infringement lawyers do this wrong, but his decision to focus on those in a single swarm makes it a more effective argument. In this case, the court certainly bought Marc's argument, and became one of a small number of courts not to throw out most of the Does sued. Though I find it a little disingenuous in that the judge notes a few other cases that have allowed the joinder to stand... but leaves out the many, many cases where all but one of the Does was dismissed from the suit.

One of my issues with this kind of joinder is that the defendants are all unique and may have very different arguments and defenses. It seems inappropriate to lump them all together. The court rejects that, saying that defendants can raise their separate defense later in the case, but that the basic questions of law are identical across the cases.

The bigger issue to me is a different point raised by the defendants in this and many other cases involving gay pornography. For better or worse, one of the fears of many (including myself) is that such cases work even better as a "shakedown" game, because defendants who either are in the closet or are not gay and fear being sued for downloading gay porn are more likely to just pay up to avoid the embarrassment. I raised this issue with Randazza directly, who argues that my argument is actually homophobic, suggesting that there is something wrong with being gay. To be clear: I don't think there's anything at all wrong with being gay, and, in fact, think that those who are gay should be proud and comfortable with that fact. But, I also think one's sexual orientation and preferences are a personal and private matter -- and that bringing them out through a legal process, as part of an effort to put pressure on someone to pay up, is highly questionable (and morally dubious). If someone has made the decision not to "out" themselves, that's their decision.

Unfortunately, the court doesn't buy this argument, and says that the names of defendants should be made public, rather than allowing them to remain anonymous. In fact, the court suggests there's no evidence that Liberty Media intends to use this info to pressure people into paying up:

Unnumbered Doe suggests that Liberty Media sought the public identities of Does 1-38 to coerce pretrial settlements. Unnumbered Doe’s Mot. 7 (“While we cannot know for certain how the Plaintiff intends to proceed . . . the likely course of action is to contact each of the individuals and demand a monetary payment for settlement of the claims in question.”). This allegation is not supported in the motion papers or by Liberty Media’s actions to date. It is purely speculative and not grounds for allowing the moving defendants to proceed anonymously.

I find this part to be the most questionable, seeing as Liberty Media, in the past, has actually been quite active in trying to get people to "settle" to avoid lawsuits -- including its infamous pay us before we even accuse you plan.

Still, the most troubling idea is that the court seems to think that outing someone who does not want to be outed is "mere embarrassment."

Unnumbered Doe further argues that the anonymity of Does 1-38 should be protected because the disclosure of their identities in conjunction with this lawsuit, which involves homosexual pornography, may cause reputational harm and intrusion upon their privacy. Id. Unnumbered Doe asserts that being named as a party to this action amounts to “a public accusation” that the defendants downloaded and viewed homosexual pornography. Id. Doe 15 similarly argues that their public identification in the lawsuit will expose the defendants to “intrusive public scorn.” Doe 15’s Mot. 3.

The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously. As the Superior Court of Massachusetts stated, “mere embarrassment [is] not sufficient to override the strong public interest in disclosure.” Roe, 2011 WL 2342737, at *1. Thus, the potential embarrassment or social stigma that Does 1-38 may face once their identities are released in connection with this lawsuit is not grounds for allowing them to proceed anonymously.

Now, personally, I don't think such a revelation should even be considered "embarrassing," at all. But, I'm not in a position to talk. And, from what we've seen of folks -- especially younger people -- who have had such info exposed against their will to family and friends who might not be accepting, the idea that this is a "mere embarrassment" doesn't seem accurate at all. Such revelations have resulted in suicides. That's not mere embarrassment. Even if we all agree that no one should be embarrassed about their sexual orientation, or even their interest in pornography, to make that decision on those individuals' behalf just seems questionable to me, and fraught with potential trouble.

Following on our story about questions concerning the copyright status of both Debbie Does Dallas and Deepthroat, we're pointed to a copyright lawsuit concerning porn, in which the judge notes that in many parts of the country, it's actually an open question if porn can even be covered by copyright. The case involves Liberty Media, and I'll have another post later about the more pertinent pieces of the lawsuit, but for now, I'll just show the footnote discussing this, in which it's pointed out that there are some doubts about whether porn is eligible for copyright:

It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was "effectively unavailable for pornography" until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858 (5th Cir. 1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of "obscene materials," such as the films at issue there, and rejecting the defendant’s affirmative defense of "unclean hands"). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (stating, in the context of copyright infringement of a pornographic film, that "[p]ragmatism further compels a rejection of an obscenity defense" because "obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether"). Compare Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174, 175-77 (S.D.N.Y. 1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business," holding that the films were "obscene" and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are "obscene" is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008). This issue, however, is not presently before the Court and the Court expresses no opinion on it here.

My guess, to be honest, is that most courts would find that porn can, in fact, be covered by copyright. The fact that the copyright act makes no statement either way tends to lean towards it being covered. Furthermore, given the ruling in the Fifth Circuit, and the failure of Congress to then jump in and "correct" it, if that ruling went against Congress' belief, provides evidence that, in general, copyright protection would be considered available for original pornography. That said, it would make for an interesting legal argument in any of the many ongoing copyright troll lawsuits, if someone could come up with compelling legal arguments to the contrary.

It's been unfortunate that the mainstream press hasn't really spent much time digging into the actual details of the text of the E-PARASITE/SOPA bill, and just how awful it is. At best, some of them have done a "well, the tech industry is worried about it" kind of piece, without actually looking at the details. Thankfully, some in the press really are digging in. James Temple, at the SF Chronicle, has an excellent and detailed piece about how SOPA would do more to "stop online innovation" than it would ever do to stop online "piracy." Just a snippet:

There are lots of concerns here, including the amount of discretion it hands to the attorney general. But another big worry is that blocking the domain name for one infringing site (say, latviablogging.com/counterfeitrolexes) could prevent access to thousands of innocent ones also hosted under that domain (like latviablogging.com/motherscookierecipes).

"It is inevitable that there will be bad behavior on any site that has thousands and thousands of dedicated subsections," said Dane Jasper, CEO of Santa Rosa Internet service provider Sonic.net. Cutting off the entire site's traffic and funds amounts to an "Internet death penalty" without a trial, he said.

It also highlights the ridiculous broad drafting and confusing language in the bill -- something SOPA/E-PARASITE defenders still refuse to admit. The worst of the worst is in the definition of what constitutes "dedicated to the theft of U.S. property." The dreadful drafting is going to lead to massive lawsuits:

This section of the bill appears to apply to both U.S.-based sites and foreign ones, or even a portion of a site, if it's "dedicated to theft of U.S. property." One of the key definitions of that is if a site "is taking, or has taken, deliberate actions to avoid confirming a high probability" of infringement. Public Knowledge, a Washington, D.C., public interest group, helpfully boiled down that clumsy legalese to: "lacking sufficient zeal to prevent copyright infringement."

In other words, it would place the responsibility for detecting and policing infringement onto the site itself, rather than content owners, as required under the DMCA.

"There's really not much question that this bill is designed to do an end run around the DMCA," said Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, a digital rights group in San Francisco. "What has been affirmed by court after court is that service providers do not have to affirmatively police infringement. That's a good thing because it's a terrible burden to put on a service provider."

The thing that gets me is that if defenders of this bill were intellectually honest, they'd just admit that they were, in fact, trying to change the DMCA, and have a conversation on that point. So far, only Rep. Bob Goodlatte has been intellectually honest enough to admit that's the case. However, others in our comments and on other sites keep insisting that the bill is "narrowly drafted" just to impact the worst of the worst. Anyone who reads the plain (if convoluted) text of the bill knows that's simply not true. A "narrowly drafted" bill does not impact pretty much every internet property, like SOPA does.

When Google, Amazon and Apple all entered the "cloud music" space at about the same time, we pointed out that we seemed to be missing the real point of the cloud. That was, that all of the services required the storage provider's own client app to play the music stored there. As I noted, that's not what the promise of the cloud is. It should be about being able to store data in the cloud and then let any relevant app access that data through an API. It's positively ridiculous that the (all legal, by the way) music I have is stored in multiple places in the cloud. For years, I've backed it up with a person Amazon S3 account. But when Amazon launched its cloud music player, I couldn't just point the player to my S3 storage, but had to re-upload. Then when Google launched its Music Beta... re-upload. The best player in the space may be MP3Tunes, who is the most open and willing to let third parties in. But most of the big guys are limited.

So it's interesting to see that some folks are writing third party apps to access music in Google and Amazon's cloud... but apparently Amazon flipped out about the aMusic iPhone app and, as sent in by Jeffrey Nonken, politely asked the developer to kill the app, noting that since Apple doesn't have licenses that "allow" third party access, he has to wait until they have such licenses.

This is, to put it mildly, stupid. If I have legally obtained files, and I put them in a locker where only I have the legal access to them, why shouldn't I be able to point any app I want at it. This would be like saying that if I had a cllient side app playing music on my hard drive, I couldn't then get another app to play the same files... unless the hard drive maker got the right "licenses" from the record labels. How does that make any sense at all?

This is definitely a big problem with "cloud" services these days however, where folks like the record labels think they retain ownership and control of files that people think they legally "own," limiting how they can listen to them. That seems to give the labels much greater rights than are reasonable granted under copyright law... just because the files are stored at a data center, rather than on a local hard drive.