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Feed Techdirt: IOC Threatens Ski Gear Company For Mentioning That Gold Medal Winner Wears Its S (techdirt.com)

The International Olympics Committee's abuse of intellectual property law continues to go to ridiculous lengths. Slashdot points out that apparently UVEX, makers of popular skiing gear such as goggles and helmets (I own a pair of their goggles, actually) had happily mentioned somewhere that gold medal winner Lindsey Vonn had worn some of their gear on their website... and the IOC sent them some sort of nastygram. Amusingly, UVEX responded in verse, with a blog post entitled Blonde we like wins Downhill (Last name rhymes with "Bonn"). Here's a snippet:

There once was a lawyer from the IOC,
who called us to protect "intellectual property."

"During the Olympics", she said with a sneer
"your site can't use an Olympian's name even if they use your gear."

"No pictures, no video, no blog posts can be used..."
Even if they are old? "No!", she enthused.

While Olympians chase gold the IOC pursues green.
Cough up millions, or your logo cannot be seen.
I can't see how such a claim could stand up in court. Accurately reporting that an Olympian wore your gear seems like it would fall under a perfectly legitimate fair use claim. But who has time to battle the IOC? In the meantime, did you know that Lindsey Vonn wore UVEX gear even though (*gasp*!) UVEX didn't sponsor the Olympics?

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Feed Techdirt: AdWords Collections Attempt By Google Mutates Into Antitrust Lawsuit (techdirt.com)

Last year, we wrote about an odd antitrust lawsuit against Google by a company named TradeComet. The lawsuit was a joke. Basically, the company was an arbitrage player that tried to create spam-like pages that people would find on Google searches, and would make money by then getting people to click on pay-per-click ad links to get where they really wanted to go. Google properly classifies sites like this as spam, and its ranking methodology punished the site accordingly. It had nothing to do with being "anti-competitive," it was just Google making sure its search results were better for users. That lawsuit is basically in a holding pattern right now, as the judge considers Google's motion to dismiss.

However, a similar lawsuit has popped up, and it's a bit strange. Eric Goldman has all the murky details, of how a shopping search engine named myTriggers apparently got a line of credit from Google and used it to buy a bunch of AdWords search ads to drive traffic to its site (and then raised money based on the resulting traffic). Once again, Google rejiggered its algorithm, and suddenly the ads for myTriggers were a lot more expensive (by one to two orders of magnitude). The company couldn't pay its bill to Google, so Google hired a local lawyer (in Ohio) and went to court to try to get myTriggers to pay the $335,000 it owed. Simple enough.

Except that myTriggers returned fire by claiming antitrust violations by Google, and even went out and hired three separate lawfirms, including (conspiracy theory time) the same law firm that represented TradeComet and which is closely connected to Microsoft. As Goldman notes:

I am struggling to make sense of myTriggers' litigation choices. Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.
Goldman also notes that Google probably wishes it hadn't filed a claim in a local Ohio state court, as the antitrust battle might now need to be fought there, rather than in a friendlier federal court closer to home:

Whatever the case, I suspect the antitrust claims caught Google flat-footed. A simple and low-stakes collections matter has blown up into a potentially significant lawsuit in an undesirable forum. Google chose Ohio state court for the collections matter despite its AdWords contract, so now it will have a tough time extricating itself from that court. But I suspect it would rather have an antitrust case in federal court, not state court--often (but not always) federal judges are more sophisticated than state judges and less susceptible to hometown bias. And I'm sure Google would rather fight antitrust claims on one of the coasts than in the Rust Belt, especially if myTriggers argues that Googleâs evilness cost Ohioans jobs. Google probably didnât mean to offer battle in this venue, but someone did a really good job of seizing the opportunity and forcing Google to fight the battle in a suboptimal setting.
As with the TradeComet case, the antitrust claim from myTriggers sounds incredibly weak, and it probably should be thrown out, but given the uncertainties of it being filed in the local court, Google may have to take it a bit more seriously. And, of course, the possibility of a secret Microsoft connection makes this even more interesting. Still, I can't see this getting that far in the long run. I hope that the judge recognizes the basic weaknesses of the case: here's a company that relied entirely on a single supplier who had every right to change its policies if it felt it didn't deliver a good customer experience, and it did so. myTriggers now seems to be suing as some sort of sour grapes for its own business failings.

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Feed Techdirt: Does 'Radiohead Journalism' Make Sense? (techdirt.com)

Wired has a story written by journalist Paige Williams about her experience putting up a long form feature story about the pseudonymously named Dolly Freed, who had written a rather successful book as a teenager called Possum Living: How to Live Well Without A Job and (Almost) No Money -- but following the publication, Dolly decided to effectively disappear. Williams tracked her down and wrote a feature article about her, but couldn't find anyone willing to publish it. The NY Times was going to, but backed out when Williams refused to reveal Freed's real name. So, instead, she put the article on her own site and put up a Paypal donation button, hoping to recover her expenses. She calls it "Radiohead journalism" after Radiohead's famed "name your own price" experiment.

Then, with little direct publicity -- beyond mentioning it on Facebook and Twitter -- the story got a bit of attention. Not a ton, mind you, but a few thousand views, which resulted in about 160 people donating a bit over $1,500. Combined with the kill fee from the NY Times for backing out on publishing the feature, her expenses were covered.

There are some interesting things here, but I'm afraid that the catchy name "Radiohead journalism" is not really accurate or a very good way of thinking about this particular experiment. Radiohead had a variety of other income streams, and from the very beginning, the band admitted that the "name your own price" offering for digital files was part of a way to get more attention for the fancy "discbox" tangible version of the album. In other words, Radiohead always had an additional reason to buy, which Williams didn't really have. Her model was more of a "give it away and pray" for donations, which can work in some cases, but isn't really sustainable.

Still, it does show that there are some creative ways (and this is but one of many) to fund longer form journalism -- and, contrary to the opinion of some, if there's real demand for such things, business models will begin to develop. Williams, for her part, seems interested in further experimenting and improving on the model, and I'm hopeful that she'll look at some more involved business models that go beyond a straight donation model.

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Feed Techdirt: Can Any Smartphone Survive The Patent Gauntlet? (techdirt.com)

With the news coming out that the US International Trade Commission (ITC) has agreed to investigate both RIM and Apple over patent claims brought by Kodak, it makes you wonder if we'll soon be able to have any smartphones at all. As you hopefully know the ITC process is a sneaky loophole used by patent holders to get two totally unrelated shots at putting the same company on trial for infringing on the same patents. There's the regular court process, and then there's the ITC, who can't fine companies, but can issue injunctions barring the import of the products. This process is regularly abused for anti-competitive purposes. Of course, there are other, similar charges that the ITC is reviewing as well, and it begins to make you wonder if any smartphone can actually "survive" this process.

Pretty much all smartphones are made outside of the US, so they can all be barred by the ITC, and with the technology in your average smartphone being covered by hundreds of patents, it's almost certain that every smartphone infringes on a slew of patents. Obviously, it's unlikely that anything will ever result in a full import ban on any particular phone -- the second that happened, the company would just give up and pay a ton of cash to make the complaining company go away -- but it does highlight what a wasteful process this is, and how it's taking good money away from actual innovation in smartphones and having it go towards stunts like this.

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Feed Techdirt: Michael Powell A Bit Quick To Claim Google Broadband Is Viable Competition (techdirt.com)

Former FCC chair Michael Powell really, really, really wants to believe that there's viable competition in the broadband market, but he seems to have a history of using tiny experiments (that may go nowhere) as if they prove that there's real competition. You may recall that when he was in charge of the FCC he declared broadband-over-powerlines "the great broadband hope" despite years and years of failed trials. Following his pronouncements on how BPL would present a viable "third" entrant into the competitive space, the prospects for BPL have continued to dwindle.

Now he's claiming that Google's latest decision to offer high speed broadband in very limited trials, shows that the market is generating competition just fine without unnecessary interference from the government via any sort of broadband stimulus plan.

Of course, there are a few problems with this. First, Google has only announced stuff, it hasn't done anything yet, and even if it does, it appears the trials will be quite limited. But the bigger issue is this myth that the current market is this free and open market unencumbered by bad gov't regulation. The history of the broadband market is the history of government's subsidizing and favoring large incumbent telcos. The idea that suddenly everyone wants to "protect the free market" for internet access, when the market has never been a free market is pretty silly. What they mean is actually to protect the market for incumbents. Unless, of course, the incumbents are willing to pay back all the subsidies and preferential treatment they've received from the government over the years?

On the whole, I do agree with Powell's position that we should be careful how we implement any national broadband plan, and that the focus should be on more competition -- but I wouldn't take Google's announcement alone to be any sort of "evidence" of a free market in internet access.

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Feed Techdirt: Ubisoft DRM Gets Worse And Worse: Kicks You Out Of Game If You Have A Flakey WiF (techdirt.com)

Last month, we wrote a bit about Ubisoft's bizarre anti-consumer policy of using DRM on games that requires an internet connection to check in (even if you're just playing locally). But, it gets worse. As a whole bunch of you sent in (but compgeek was first), apparently it doesn't just check once to see if you have an internet connection, but regularly checks, and if you've lost that internet connection, it will boot you out of the game and you'll lose everything that you've done since your last checkpoint or save. This is a serious problem for anyone who has even slightly flakey WiFi or an internet connection that goes down frequently (all too common these days). Ubisoft's history with DRM is filled with similar missteps, and it's really amazing that the company seems to be so oblivious to why treating fans badly is such a bad idea.

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Feed Techdirt: Camper Van Beethoven Funds Their SXSW Trip By Letting Fans Sponsor Songs At Thei (techdirt.com)

American rock band Camper Van Beethoven is traveling to South by SouthWest this year without the support of a record label, so in order to raise funds, they're selling off the right to choose the songs that go on to their setlist for the 2 shows that they're going to play. The first 35 fans to pony up $102 get:

  • A Santa Cruz Roller Derby Girl will walk/skate across the stage carrying a placard announcing your sponsorship of the song, within full view of the audience or cameras, to have the moment captured on film or video for all of eternity!
  • You can have up to 4 names or one business on each placard.
Sounds like an excellent leveraging of a few of the scarcities that we've mentioned here before, in this case, attention, exclusivity and patronage. With the "Santa Cruz Roller Derby Girl," CVB's personality definitely shines through in this unique offer that should resonate nicely with their fans (in fact, I learned of this promotion via a friend sharing it through Google Buzz). So, once again, it's great to see yet another label-free band (who once was on Virgin, years ago, actually), explore new and creative ways to give their fans a reason to buy.

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Feed Techdirt: Australia Disagrees With Spain & France; Says Nintendo Mod Chips Are Illegal (techdirt.com)

Copyright rulings in Australia have been a real mixed bag lately, haven't they? There was the wonderful iiNet ruling that said ISPs weren't liable for actions of their users, and the ruling on telephone books saying you can't copyright facts. But then there was the Kookaburra ruling that found infringement in an 80s song of a popular children's folks song. And, to balance things out, now there's another bad ruling, that seems to go against the very principles explained in the iiNet rulings.

Slashdot points us to the news that an Australian court has ruled in favor of Nintendo, against the distributor of mod chips that can be used in Nintendo DS devices. Nintendo has been busy suing such distributors around the globe, though so far without much success. In places like Spain and France, courts were smart enough to realize that just distributing these chips -- which can be used for legal purposes as well as infringing purposes -- should not be considered infringement itself. It's the basic question of secondary liability, and figuring out if a third party should take the blame for actions of end users. In the iiNet case, the court realized that doing so would result in misplaced blame. In this case, the court didn't seem to care.

It's really too bad, because the court is basically saying that users don't have the right to modify a product they legally purchased and own. And, on top of that, a company selling a product that has perfectly legal uses can be held liable for the fact that some users also do unauthorized things with it. That's a troubling precedent by any measure.

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Feed Techdirt: It's Probably Not A Good Idea To Ask People To Spam The Judge Hearing Your Case (techdirt.com)

Generally speaking, if you're on trial for something, it's probably not a good idea to piss off the judge. Informercial king Kevin Trudeau has been battling the FTC concerning his pitches for a diet book, which the FTC felt were deceiving. The court case itself has had a series of twists and turns, but as the latest case moved forward, Trudeau posted the judge's email address to his website, and announced it on his radio show, and asked people to email the judge in his support. Apparently, quite a few people did so -- and the judge was not amused, sentencing him to 30 days in jail. As Consumerist notes, the types of people who buy the sorts of things Trudeau is selling might not be the most rationally-minded people, and apparently a few took it upon themselves to not just email the judge their support of Trudeau, but to send vaguely threatening messages as well.

Still, there is an open question as to whether or not this is actually illegal. Eric Robinson points out that it's common enough for those on trial to have friends contact a judge, sometimes even via email. Of course, those sorts of setups are usually more limited to a specific group of selected friends, rather than broadcast to the public at large. Either way -- whether legal or not -- it does seem like a generally smart tip to remember: don't piss off a judge in charge of dealing with your case, and urging a hoard of followers to email that judge is pretty certain to piss him off.

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Feed Techdirt: Philly City Council Members Want To Sue Facebook And Twitter Over Flash Mob Snow (techdirt.com)

And here we go again. Apparently there was recently a "flash mob" snowball fight in Philadephia that got a bit out of control, resulting in a "rampage" through a Macy's department store. Nobody was hurt, but 16 people were arrested. So how are Philly officials dealing with it? They're threatening to sue Twitter and Facebook. Seriously. Two city council members say that those companies deserve some of the blame and a lawsuit is an option:

"While [the kids] certainly owe this city an apology and deserve to be punished under the fullest extent of the law, we believe that social media outlets should also bear some of the blame." The letter, written by council members Frank DiCicco and James F. Kenney, explains that this is the second such time a band of mischievous teens has formed via social media and went on to destroy property. "We believe that the lack of monitoring of these sites allows for mass, organized riots to occur."
Hopefully someone explains to these two council members that both sites are certainly protected from liability under Section 230 of the CDA. But, more importantly, beyond just invoking those safe harbors, can someone explain to them how silly it is to blame a communication tool for how it's used? Do they want to sue the phone company when criminals use phones to plan their crimes? Do they threaten to sue the car companies when a car is used in a crime? Furthermore, if their complaint is that these sites failed to "monitor" what people were planning, then isn't the city council actually even more to blame? The content of Twitter is available to the public, and these days much of Facebook is as well (and info on such a flashmob would almost certainly be public). Then shouldn't Philadelphia officials be aware of what's being planned in their own city? Based on the reasoning of DiCicco and Kenney, perhaps they should be suing themselves for failing to monitor what kids in their city were planning on some very public forums.

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Feed Techdirt: School Accused Of Spying On Kids In Their Homes With Spyware That Secretly Activ (techdirt.com)

A whole bunch of you are sending in this absolutely horrifying story of a school district outside of Philadelphia that apparently gave its students laptops that included hidden software that allowed district officials to secretly turn on the laptops' webcams and monitor student activities, no matter where they were. This all came to light when a student was disciplined for "improper behavior in his home" with the evidence being a photo of the kid from his laptop webcam. The district is now being sued for this. It's rather stunning that anyone thought this was a good idea. Secretly spying on children in their homes when they have a very real expectation of privacy is downright horrifying. It's not hard to see how this could be abused in very dangerous ways.

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Feed Techdirt: French Government Looking To Set Up The Great Firewall Of France? (techdirt.com)

We've seen our fair share of bad legal rulings come out of France over the years (remember when they declared Yahoo a war criminal? And, of course, we're all familiar with France's ridiculous three strikes "Hadopi" law, that will kick people off the internet based on accusations (not convictions), and which apparently doesn't apply to the government itself, which has been caught infringing on the intellectual property of others multiple times. But, apparently, that was all just the warmup for a law that will turn France into the China of the west when it comes to Internet censorship and ISP secondary liability.

Kevin Donovan points us to a report noting that a bill cruising through the French Parliament would massively increase state-backed internet censorship and surveillance with a bill called Loppsi 2. Beyond requiring ISPs to completely block access to a list of sites the government doesn't like, it would also:

"[make] it the responsibility of each Internet service provider to ensure that users don't have access to unsuitable content."
That's the kind of secondary liability for ISPs that is used in China to create the "Great Firewall" of censorship, and it's the same sort of thing that is currently being pushed in ACTA negotiations by certain parties as well.

But, that's not all. Loppsi 2 also would allow for massive government surveillance via trojan horse applications that would let the government spy on computer usage:

Police and security forces would be able to use clandestinely installed software, known in the jargon as a "Trojan horse," to spy on private computers. Remote access to private computers would be made possible under the supervision of a judge.
So why is France doing this? From the article linked above, the speculation is that it's a really base political ploy by president Nicolas Sarkozy, worried about his and his party's poll ratings, and looking to be seen as a "tough on crime" and "for the children" kind of candidate:

In the face of a rampant economic crisis, growing unemployment, a devastatingly large budget deficit and various political scandals, Sarkozy is pulling out a presidential trump card. He is hoping that fear of criminals will convince voters to come to the polling booths.

In that respect, there is no more suitable issue than child pornography on the Internet and the hunt for pedophile criminals whose only desire is to seduce innocents via their home computers. According to that argument, it is necessary to impose controls on the digital world and introduce state surveillance, so that a pro-active Big Brother can fight the cyber world's sexual deviants who are, in all likelihood, lurking on Facebook or Twitter.
Please tell me French citizens are smart enough not to fall for something like that. In other places, proposing such strict censorship and surveillance legislation has been known to backfire, and already it does look like Sarkozy's political opponents are screaming in protest over this. Taking away people's rights over a bogus "but think of the children" scare, seems like the kind of old school political tactics that hopefully will start to backfire more often than succeed as people realize that they're being lied to.

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Feed Techdirt: Australian Copyright Agency Paid Itself More Than It Distributed To Content Crea (techdirt.com)

One of the key problems we have with any sort of collection agency/performance rights organization/collective licensing scheme is that they introduce an unnecessary bureaucracy into the equation and, as a result, money gets redirected from the actual creators to the bureaucracy itself. It's a giant economic inefficiency that harms content creators. Case in point: Michael Geist points us to the news that the Australian copyright collection group, The Copyright Agency Limited, spent more on its own staff than it gave out directly to content creators. In 2009, it paid its staff $9.4 million, and it disbursed... $9.1 million directly to content creators.

Now, to be fair, the article buries the fact that CAL also gave $76 million to publishers "on the assumption that a proportion of this money will be returned to authors," but it also notes that it has no checks to see if that money is ever distributed. In other words, CAL doesn't actually do anything concerning that $76 million other than pass it on to other bureaucracies (not content creators) -- who might just be keeping it, rather than disbursing it. As the report notes, CAL collected $114 million last year, and can only say, for certain, that $9.1 million got distributed to actual content creators. Now that's efficient! Certainly, some of that $76 million may have reached content creators, but no one knows for sure.

So, again, we're left wondering why such a setup makes sense at all? All that's happening is that money that could go directly from fans/consumers to content creators gets filtered through inefficient bureaucracies that take huge cuts. That harms content creators.

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Feed Techdirt: Nathan Myhrvold's Intellectual Ventures Using Over 1,000 Shell Companies To Hide (techdirt.com)

It's no secret that we think Nathan Myhrvold's Intellectual Ventures is a dangerous, innovation harming monstrosity. The company used a bait and switch scheme to get a bunch of big tech companies to fund it, not realizing that they were then going to be targets of his shakedown system. Basically, IV buys up (or in some cases, applies for) tons of patents, and then demands huge cash outlays from those same companies (often hundreds of millions of dollars) for a combined promise not to sue over those patents and (here's the sneaky bit) a bit of a pyramid scheme, where those in early supposedly get a cut of later deals. Of course, to just talk to IV requires strict NDAs, so the details of these deals are kept under wraps and only leaked out anonymously. But the hundreds of millions of dollars going towards this sort of trolling behavior, rather than any actual innovation in the marketplace can be seen on various financial filings (you can't hide hundreds of millions of dollars in payments that easily).

Now, for years, Myhrvold tried to avoid the term "patent troll," by claiming that IV had never actually sued anyone. Two years ago, though, it seemed clear that the company was on the verge of breaking out the lawsuits. However, the company still hasn't been directly linked to a lawsuit. Late last year, though, some eagle-eyed reporters noticed that IV patents were showing up in lawsuits, but those lawsuits were from different companies. Reading between the lines, it became clear that IV had decided to protect its brand name by getting other companies or creating those companies itself, giving the patent to those other companies that no one had ever heard of, and having them sue. This is a very common practice among patent hoarders. They set up shell companies for their lawsuits, that often make it difficult to track back who actually owns what patents. It's all a shell game to extort more money.

The NY Times is now running yet another profile (they do this every two years or so) of Myhrvold and Intellectual Ventures that covers the usual bogus claims by Myhrvold about how he's creating "invention capital," with very little skepticism. However, it does reveal one interesting tidbit that we had missed. Last year, a research firm released a report highlighting that Intellectual Ventures has up to 1,110 shell companies, with which it can hide its activities. No wonder IV can pretend it doesn't sue anyone. It can simply hide behind its shell companies.

It's hard to find anything in Myhrvold's activities that actually contribute to any innovation, but you can see billions of dollars being siphoned away from actual innovation -- the kind that brings real products to market -- and see it being fed into what appears to be a giant shakedown scheme that is trying to pull as much money out of the system as possible before Congress wakes up and realizes it needs to fix an incredibly broken patent system.

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Feed Techdirt: Why Can't All These Ideas For Content On The iPad/Tablets Also Work On The Web? (techdirt.com)

Last month, at a panel in Silicon Valley on the future of journalism, one of the topics of discussion was whether or not tablet computing would be the "savior" of news, with most of the focus being on a recent video put together by Sports Illustrated of what a specialized tablet version of the magazine might look like. More recently, Wired Magazine demonstrated a working prototype of a tabletized version of the magazine. Both of these demos are certainly impressive -- but I'll say the same thing that I said about the SI demo on that panel discussion: why is the focus on the hardware? Nothing in either demo really requires a tablet. If this format is so compelling, why aren't these publications already offering it for use on regular computers? Certainly, the ability to use touchscreen controls is nice, but you could easily replicate the basics with a mouse. If the overall format is so compelling, then what does it have to do with a tablet/iPad, specifically? Now, perhaps Wired does intend for this to be useful on other platforms, as its version is just an Adobe AIR app, and so it could function just fine on a desktop/laptop, but again, the video seems to keep focusing on the tablet as if that's necessary. Yes, perhaps the form factor of a tablet computer makes this experience more enjoyable, but I think it's important in judging whether or not these apps actually make sense to separate the hardware from the software, to see if either makes sense without the other, or if they really are joined at the hip.

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