; charset=UTF-8 8bit Content-length: 28424 Techdirt Daily Email for Friday, 21 March 2008 (Click here to visit the site) Limelight Gears Up For Patent Nuclear War (Legal Issues) by Michael Masnick from the wasted-money dept on Thursday, March 20th, 2008 @ 11:53PM Earlier this month, we wrote about Akamai's patent lawsuit against competitor Limelight. Akamai had dominated the content delivery network space for many years, but Limelight has made serious inroads lately, putting a ton of competitive pressure on Akamai. Akamai's response to sue for patent infringement is exactly the sort of societal negative that shows how the patent system harms society. To reinforce that, it appears that, rather than just further innovating, Limelight is now spending money that could have (and should have) gone to research and development on buying up its own patent portfolio to act as a nuclear stockpile to fight off Akamai. End result? Lots of money wasted on patents and patent infringement lawsuits, less innovation in the space and less competition. How can that possibly be a result that promotes the progress? Court Notes That Empty 'The Office'-Style Workplace Concepts Not Subject To Copyright (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 9:33PM In this age of increasingly aggressive use of intellectual property laws to try to take control over anything a competitor does in the name of competition, it's good to see at least a few judges pushing back. William Patry points us to a fascinating (and somewhat surprising) decision from a Massachusetts district court, involving two firms that produce workplace training manuals full of platitudes about management styles and concepts. One firm accused the other of stealing its ideas in creating its manuals. In fact, the second company was made up of ex-employees from the first company, and they admit to using what they learned at the first company in producing their own manual. However, the judge eloquently points out that these vapid concepts are not protected by copyright: "These works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid-hundreds of pages filled with platitudes, and observations of the obvious. While the workbooks' vague character may serve SMS well in the marketplace where it meets the demands of clients in different industries, they lack the “incident” that Judge Hand described as essential for differentiating the works from the underlying ideas. To the extent that the works contain expression, they are largely because they are devoted to describing a process or because they are not original.... At their creative zenith, these works translate common-sense communication skills into platitudinal business speak. One engaged in the industry might refer to the practice as jargonization. When an idea is cloaked in a neologism such as "innovision," copyright law permits protection over the cloak, but not the concept or the process it describes." The judge also notes that it is not illegal for the second firm to have based its work on the first firm's work, since it was not violating its copyright, but merely using the general and unprotected concepts to market its own, different, work: "[A] defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff's." For example, presuming Shakespeare's poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem's depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard's virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet's motives are of no moment so long as the final product is not substantially similar to the original. In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS's works to create ASP's. Even if they smuggled copies of SMS's programs and poured over them, redlining and rewriting, such "intentional dissimilarity" is permissible." This is an excellent reminder for those who seem to think that merely using the general concepts of someone else's work to create your own is somehow a violation of their IP rights. Competition in the marketplace is a good thing -- and some of that competition is always going to come from firms copying what the other has done and trying to improve on it. Limiting that competition hurts markets and hurts consumers. 3 Comments More Isn't Necessarily Better When It Comes To Preferences (Overhype) by Timothy Lee from the dept on Thursday, March 20th, 2008 @ 7:43PM Facebook has unveiled a new set of privacy settings that have been getting some positive reviews in some quarters. While I'm always happy to see a company that's not afraid to experiment with new privacy protections, I think Facebook has some more work to do on this one. One problem has been identified by Chris Soghoian: if you're in an academic network, you can theoretically limit access to your profile based on each viewer's academic status at your institution. So if you're an undergrad, you can set things up so that your friends can see those pictures of you doing body shots, but your professors and TAs can't. The problem is that apparently, peoples' status is self-reported, and can easily be changed. So a nosy grad student could temporarily switch his status to "undergrad" and to get access to an undergraduate's photos. This seems like a problem. The more fundamental flaw, I think, is that there are now way too many options. The exact options I see on my Facebook account are different from the ones Chris sees, presumably because he's a student and I'm not. But on my version of the preferences, there are a dozen categories of information, each of which have 6 to 8 different options. For example, there are separate privacy settings for "profile," "basic info," and "personal info." Do you have any idea what is in each of those categories? I don't. And then you have to decide whether each category will be available to "Only Me," "Some Friends," "All Friends," and "Friends of Friends." And you have to decide which of your "networks" will be able to see that information. And you can provide a list of people to exclude. This is a bewildering array of options, and it's likely to retard the usefulness of Facebook's privacy features. When it comes to user preferences, a handful of carefully chosen options is better than allowing users to adjust every conceivable setting. A well-designed user-interface should economize on the user's valuable time and attention by giving him a reasonable number of options that encompass the most likely use cases. If you give users a huge number of options, most of them will give up in frustration, leaving them in a much worse position, privacy-wise, than if you'd given them a smaller menu of options to choose from. 6 Comments Lessons From The 700 MHz Auction? More Of The Same (Wireless) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 5:57PM So the winners of the 700 MHz spectrum auction have been announced and to say that there were no surprises would be an understatement. It played out almost exactly as most observers predicted it would. Verizon Wireless ended up with the C-block (with Google only bidding right up to the cut-off amount to force Verizon to play by "open" rules) and AT&T added some spectrum as well, which it can add to the 700 MHz spectrum it picked up separately last year. The end result? Nothing too exciting for consumers. Whether or not Verizon Wireless's required "openness" makes a difference remains to be seen. What didn't happen was someone new entering the scene -- meaning that we're not going to see anything really new come out of all this spectrum. In fact, perhaps the most bizarre bid of all was EchoStar spending $700 million on spectrum that can only be used for one-way communication. One-way communication is less and less useful these days. EchoStar has been making some interesting moves of late, but using this spectrum to build a mobile TV broadcast solution (which is what many expect) makes little sense. It will cost the company billions, and then they'll be limited to a one-way communication system just as people are recognizing that the real value is in communications. It may give the company another option rather than relying on satellites (which are costly and troublesome at times), but the expense is way too high considering the limitations. So, even with EchoStar, we're talking about "more of the same." That's too bad, as there was a quiet hope that someone different would step in and do something really new and interesting with this valuable spectrum. 5 Comments Should Kids Get Control Of Their Data When They Come Of Age? (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 4:29PM If you're under a certain age, websites (at least under the law in many countries) cannot collect data on you -- or are required to get "consent" from an adult first. However, that's leading to a separate discussion about whether or not kids should have the right to take back that data once they come of age. A parent may agree to share certain data about a kid with a certain website, but once that kid is old enough, what if he wants to revoke that permission? It may sound like a simple thing, but once that data is out there, getting it back is nearly impossible. Yet, some politicians are trying to make that the law, even though it will be almost impossible to enforce in many cases. 4 Comments Click This Link, Go To Jail (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 3:02PM Declan McCullagh has written up an article about a questionable tactic used by the FBI to go after people looking for child porn. It set up a honeypot server and then posted links to it on a forum frequented by those who are looking for child pornography. It then used the IP address of people who clicked on the link as enough evidence to charge them with a crime. In the specific case McCullagh discusses, the guy was found guilty of simply clicking on that link. Of course, it's always difficult to separate out legal discussions like this from the fact that it involves child pornography -- which immediately sets off an emotional response. The problem here, though, is that the evidence on which the guy was found guilty could be used to find many people guilty of many things. The FBI didn't even track the referrer log -- just who went to the site. In other words, if someone had taken that link out of the forum and posted it on another site, a blog or sent an email around -- and anyone clicked on it without knowing anything about the link, they could have broken the law. This is open to tremendous abuse. If all you need to do to get someone convicted of child porn charges is get them to click a link, that doesn't seem right. Furthermore, in this case, the only other evidence was two small (admittedly questionable) thumbnail images, that there was no evidence that the guy looked at. In other words, to have enough evidence to convict someone and send them to jail for years (and get them listed as a sex offender), you could just send them an email with a link and some thumbnail images attached. If they click on the link (even if they don't ever look at the attached files), that's enough evidence, according to this case. That seems incredibly problematic. 32 Comments Comcast Says FCC Has No Authority To Stop Traffic Shaping (Politics) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 1:26PM This probably won't come as much of a surprise, but Comcast is now suggesting that the FCC doesn't have the authority to regulate its traffic shaping activities. This comes in response to Kevin Martin suggesting that the FCC would rule against Comcast for traffic shaping (which seemed odd enough, considering that Martin was perfectly fine with AT&T traffic shaping). Comcast is already suing the FCC over its telco favoritism, so this might just be one more thing to toss on the pile. It's tough to know who to favor in this situation -- but Comcast may be technically correct that this extends beyond the FCC's authority. Still, it might not be good policy for the company to say so, considering the efforts being made to put in place net neutrality legislation. If supporters of this legislation notice what Comcast is saying, it might just explicitly add language to the bill to give the FCC the authority that Comcast now says it doesn't have. So, even if Comcast is right, saying so out loud may not have been the wisest move at this juncture. 8 Comments Why Do Patents Tend To Cause More Harm Than Good? (Studies) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 11:46AM Continuing my series of posts on some of the basics behind intellectual property, I wanted to delve further into the discussion I kicked off last week about judging the harm vs. benefit of intellectual property, and being able to properly balance the two. As we pointed out last week, nearly all of the economic evidence shows that patents tend to do more harm than good. Researchers James Bessen and Michael J. Meurer (perfect timing again) have gone into a little more detail as to how much damage is done, but I wanted to focus on why the downsides to patents are so often worse than the upsides. At one level, it goes back to basic fundamental economics. Any given monopoly is going to be bad. There are economic rents associated with a monopoly. It limits the supply available and increases the cost, acting as a deadweight loss to society. That's absolutely true with patents as well (as much of the research has shown). However, there are a few more reasons why patents tend to be a net negative. First, let's focus on why the reasons in favor of patents aren't particularly strong. The first is that it should act as an incentive to create the product. Yet, as the research has shown, that's almost never true in practice. More innovation tends to happen with weaker patent laws, and when stronger patent laws are put in place, the pace of innovation decreases. The reason is that real innovation almost never happens because of patents. Very few people invent stuff "to get a patent," but because there's a need in the market and they can help solve it. That's true with, or without, patents. Furthermore, it's that need in the market that is the real incentive for innovation. If you can serve a market, there's a way to make money from that market, and that acts as plenty of incentive. The fears that an "easily copied" product will damage the original inventor are also wildly overblown. Study after study after study has shown that there is a distinct first mover advantage, and even things that are easily "copied" doesn't mean that the copycats get success in the market. People put a premium on buying from the original creator. Furthermore, they often believe (correctly in many cases) that the original creator has a better understanding of the market, and is likely to continue to innovate faster and with better solutions. Finally, in the worst case scenario, where a copycat is able to do a better job, that's also not a bad thing, because the societal benefit is still a better product. It's called competition, and is generally considered a good thing in a market economy. Another popular claim is that patent benefit us via "disclosure." Because patents require the inventor to "disclose" the invention, the idea is that these patents will spur additional innovation as others learn from the patents and build on them. The idea is that there's obvious benefit in keeping the idea secret, so in exchange for disclosing the idea, the government gives the inventor a monopoly. However, this is easily shown to be false. First, very few patents these days are written to the point where they actually disclose enough to be useful. They tend to be broadly written in a way that can cover as much as possible. However, there's an even better simple logical rationale for why disclosure is a myth when it comes to patents. If the inventor truly believes there's tremendous value in keeping the idea secret, he or she will still keep it secret. There's no real benefit to disclosing it to get the patent. You get just as much benefit from keeping it secret. The only benefit is if you think that others will be able to figure out the same concept in less time than it takes for the patent to expire. In other words, if you realize that others will be able to come up with the same thing in that amount of time. So getting a patent prevents others from doing that. But if you truly believe that it would take longer than the length of the patent to figure out its secrets, then you'll keep it quiet anyway. As for why the downsides to patents are almost always present, it's based on a fundamental understanding of how innovation works. If most innovation was a single burst of inspiration, then patents could make sense. However, in a scenario where innovation is an ongoing process of building, trying, adjusting, building, trying, adjusting -- then patents are likely to be harmful. They add a cost and a hassle at many of the steps along the way. They add a series of hurdles that involve time, money and effort for each step of that process. That, alone, significantly slows down innovation. Studies have shown, in fact, that most innovation is an ongoing series of innovations rather than a single burst of inspiration. Furthermore, great breakthroughs tend to come not from a single mind, but in different people looking at the same problem, learning from each other and building on each other's work. By throwing tollbooths into that process, you slow down the innovation. Thus, the supposed benefits of patents rarely are all that beneficial, and yet the downsides to patents are quite large and show up quite often. So, it should be no surprise that the research shows patents tend to do quite a bit to slow down innovation, rather than accelerate it. Links to other posts in the series: On The Constitutional Reasons Behind Copyright And Patents Patents, Copyrights And Trademarks, Oh My! If Intellectual Property Is Neither Intellectual, Nor Property, What Is It? What Kind Of Progress Are We Promoting? Why Do Patents Tend To Cause More Harm Than Good? 32 Comments Antigua Says It's Going To Start Ignoring US Copyrights (For Real This Time) (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 10:24AM Officials in Antigua are now trying to draw a line in the sand, claiming that if the US doesn't finally agree to allow some forms of online gambling by the end of this month, it will go ahead with its threats to ignore US copyrights with the approval of the WTO. As you may recall, back in December, the WTO granted Antigua that right, after a loooooooong series of battles with the US over whether or not the US was violating free trade agreements by banning online gambling. Of course, every time the WTO sided with Antigua, the US would stall, claim the WTO sided with the US (when it clearly did not) and (my personal favorite) claim that even if it had broken trade agreements, it didn't matter any more because the US was unilaterally changing its trade agreements so that it was no longer violating them. Of course, when Antigua won the final decision in December, allowing the country to ignore US intellectual property rights, the US government and the entertainment industry quickly warned Antigua not to follow through on those plans -- but the US government still won't shift in its position on the matter. Thus, Antigua is agitating to get this show on the road. While it first needs to get one last permission slip from the WTO, once that's in place, it can start ignoring the copyright on American movies and music. Of course, while some are suggesting that it may make sense for The Pirate Bay to move to Antigua, that's not accurate. After all, the WTO has said that Antigua can only violate $21 million worth of intellectual property, and with the way the entertainment industry counts damages, that's like half an album or so. In fact, that seems to be exactly the angle that the entertainment industry is taking in this fight. An MPAA letter warning: "The proposed retaliation would be impossible to manage. The real and resulting economic harm would vastly exceed any amount the (WTO) might approve, even the grossly exaggerated amount ($3.4 billion) for which Antigua seeks approval, plus the economic harm would extend to other WTO members." 17 Comments FCC Finally Admits Its Broadband Penetration Numbers Are 'Stunningly Meaningless' (Studies) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 9:03AM For years, the FCC has been publishing numbers about broadband penetration in the US that were clearly bogus. They considered anything above 200kbps as broadband and did zip-code level comparisons. Thus, if one house in a zip code had access to broadband from a certain provider, the FCC assumed that every house in that zip code had access to broadband. As someone who lives in the heart of Silicon Valley and could not get DSL above 128k until a few months ago, I can point out how inaccurate that claim is. DSL is such a local technology that judging it on a zip-code-wide system is bound to be woefully inaccurate, even in heavily populated areas. Despite having the government condemn these bogus stats over and over again, the FCC kept releasing them... and it's done so again (pdf). However, the good news is that it's finally admitting that its own numbers are bogus and changing the way it calculates broadband penetration. Why they're doing so right after releasing the latest report makes little sense -- but the FCC isn't known as being the most logically run organizations. In fact, it's so ridiculous to release bogus numbers after admitting that they're bogus, that two of the FCC's commissioners voted against releasing the report at all, with one calling it "stunningly meaningless." The new methodology will consider 768kbps the cutoff for considering a connection as "broadband." It will also look at both up and downstream speeds, rather than just downstream. Finally, and most importantly, it will stop using the zip code system for determining penetration, but will require ISPs to report buy onliners at the census-block level, which is much more fine-grained. This would present a much more accurate picture, so expect to hear ISPs complaining about the new methodology in 3... 2... 1.... 11 Comments DirecTV DVR Will Delete Pay-Per-View Shows ((Mis)Uses of Technology) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 7:32AM First we had ABC thinking that not allowing people to fast forward through commercials on a DVR-type product was a good idea, and now comes the news that DirecTV will automatically delete Pay-Per-View shows you record with your DVR after 24-hours. This is apparently at the request of the major Hollywood studios who have decided that the best way to build up an audience is to piss them off by not allowing them to record the movies that they legally paid for via PPV, and then chose to record and time shift. Time shifting is perfectly legal, so there's absolutely no legal reason for DirecTV to ban the practice. As for the Hollywood studios, this is more backwards thinking. One of these days, someone in Hollywood is going to realize that pissing off your loyal customers isn't a good idea. 80 Comments Of All The Reasons To Say No To Internet Voting, Wouldn't Porn And Beer Be Near The End Of The List? (Say That Again) by Michael Masnick from the try-that-again dept on Thursday, March 20th, 2008 @ 5:55AM There are many, many reasons to be against the idea of allowing political voting via the internet, starting with questions about the security, accuracy and reliability of the technology. However, former Polish prime minister Jaroslaw Kaczynski, who admits he wants to attract younger internet users to his conservative party, gave some bizarre reasons for not being a fan of internet voting. Apparently the problem isn't questions about the technology but the idea that voters may be multitasking with beer and porn: "I am not an enthusiast of a young person sitting in front of a computer, watching video clips and pornography while sipping a bottle of beer and voting when he feels like it." Does that mean he'd be okay with if it people agreed not to watch porn or sip beer while voting? 24 Comments NY Legislator Looks To Outlaw Behavioral Targeted Ads Without Opt-In (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 2:42AM A New York Assembly member is pushing to outlaw targeted advertising without opt-in approval. Given the scrutiny facing companies like Phorm in the UK, this isn't all that surprising. However, the complaints around Phorm are that it tracks all of your surfing activity and generates ads based on that aggregate info. The bill that is being discussed in New York would apparently apply to websites that do targeted advertising within the site. That seems both extreme and unnecessary. Even though the law would technically only apply to New York, since it would be difficult to figure out who's in NY and who's elsewhere, it would force many providers to get rid of targeted advertising. It seems a bit extreme to think that targeted advertising should be banned entirely, without an initial opt-in. By this point, most people probably expect basic targeting to take place, and when done right, such targeted ads should be more effective. The real problem comes in when such targeting presents a privacy violation, but the focus then should be on privacy laws, not specifically targeting a single activity such as targeted ads. 15 Comments Visit Techdirt. -- The following information is a reminder of your current mailing list subscription: You are buy onlined to the following list: Techdirt Daily using the following email: You may automatically purchase from this list at any time by visiting the following URL: If the above URL is inoperable, make sure that you have copied the entire address. Some mail readers will wrap a long URL and thus break this automatic purchase mechanism. You may also change your subscription by visiting this list's main screen: If you're still having trouble, please contact us by using this form: ; charset=UTF-8 8bit Content-length: 37722 Techdirt Daily Email for Friday, 21 March 2008 (Click here to visit the site) Limelight Gears Up For Patent Nuclear War (Legal Issues) by Michael Masnick from the wasted-money dept on Thursday, March 20th, 2008 @ 11:53PM Earlier this month, we wrote about Akamai's patent lawsuit against competitor Limelight. Akamai had dominated the content delivery network space for many years, but Limelight has made serious inroads lately, putting a ton of competitive pressure on Akamai. Akamai's response to sue for patent infringement is exactly the sort of societal negative that shows how the patent system harms society. To reinforce that, it appears that, rather than just further innovating, Limelight is now spending money that could have (and should have) gone to research and development on buying up its own patent portfolio to act as a nuclear stockpile to fight off Akamai. End result? Lots of money wasted on patents and patent infringement lawsuits, less innovation in the space and less competition. How can that possibly be a result that promotes the progress? Court Notes That Empty 'The Office'-Style Workplace Concepts Not Subject To Copyright (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 9:33PM In this age of increasingly aggressive use of intellectual property laws to try to take control over anything a competitor does in the name of competition, it's good to see at least a few judges pushing back. William Patry points us to a fascinating (and somewhat surprising) decision from a Massachusetts district court, involving two firms that produce workplace training manuals full of platitudes about management styles and concepts. One firm accused the other of stealing its ideas in creating its manuals. In fact, the second company was made up of ex-employees from the first company, and they admit to using what they learned at the first company in producing their own manual. However, the judge eloquently points out that these vapid concepts are not protected by copyright: "These works exemplify the sorts of training programs that serve as fodder for sardonic workplace humor that has given rise to the popular television show The Office and the movie Office Space. They are aggressively vapid-hundreds of pages filled with platitudes, and observations of the obvious. While the workbooks' vague character may serve SMS well in the marketplace where it meets the demands of clients in different industries, they lack the “incident” that Judge Hand described as essential for differentiating the works from the underlying ideas. To the extent that the works contain expression, they are largely because they are devoted to describing a process or because they are not original.... At their creative zenith, these works translate common-sense communication skills into platitudinal business speak. One engaged in the industry might refer to the practice as jargonization. When an idea is cloaked in a neologism such as "innovision," copyright law permits protection over the cloak, but not the concept or the process it describes." The judge also notes that it is not illegal for the second firm to have based its work on the first firm's work, since it was not violating its copyright, but merely using the general and unprotected concepts to market its own, different, work: "[A] defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff's." For example, presuming Shakespeare's poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem's depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard's virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet's motives are of no moment so long as the final product is not substantially similar to the original. In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS's works to create ASP's. Even if they smuggled copies of SMS's programs and poured over them, redlining and rewriting, such "intentional dissimilarity" is permissible." This is an excellent reminder for those who seem to think that merely using the general concepts of someone else's work to create your own is somehow a violation of their IP rights. Competition in the marketplace is a good thing -- and some of that competition is always going to come from firms copying what the other has done and trying to improve on it. Limiting that competition hurts markets and hurts consumers. 3 Comments More Isn't Necessarily Better When It Comes To Preferences (Overhype) by Timothy Lee from the dept on Thursday, March 20th, 2008 @ 7:43PM Facebook has unveiled a new set of privacy settings that have been getting some positive reviews in some quarters. While I'm always happy to see a company that's not afraid to experiment with new privacy protections, I think Facebook has some more work to do on this one. One problem has been identified by Chris Soghoian: if you're in an academic network, you can theoretically limit access to your profile based on each viewer's academic status at your institution. So if you're an undergrad, you can set things up so that your friends can see those pictures of you doing body shots, but your professors and TAs can't. The problem is that apparently, peoples' status is self-reported, and can easily be changed. So a nosy grad student could temporarily switch his status to "undergrad" and to get access to an undergraduate's photos. This seems like a problem. The more fundamental flaw, I think, is that there are now way too many options. The exact options I see on my Facebook account are different from the ones Chris sees, presumably because he's a student and I'm not. But on my version of the preferences, there are a dozen categories of information, each of which have 6 to 8 different options. For example, there are separate privacy settings for "profile," "basic info," and "personal info." Do you have any idea what is in each of those categories? I don't. And then you have to decide whether each category will be available to "Only Me," "Some Friends," "All Friends," and "Friends of Friends." And you have to decide which of your "networks" will be able to see that information. And you can provide a list of people to exclude. This is a bewildering array of options, and it's likely to retard the usefulness of Facebook's privacy features. When it comes to user preferences, a handful of carefully chosen options is better than allowing users to adjust every conceivable setting. A well-designed user-interface should economize on the user's valuable time and attention by giving him a reasonable number of options that encompass the most likely use cases. If you give users a huge number of options, most of them will give up in frustration, leaving them in a much worse position, privacy-wise, than if you'd given them a smaller menu of options to choose from. 6 Comments Lessons From The 700 MHz Auction? More Of The Same (Wireless) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 5:57PM So the winners of the 700 MHz spectrum auction have been announced and to say that there were no surprises would be an understatement. It played out almost exactly as most observers predicted it would. Verizon Wireless ended up with the C-block (with Google only bidding right up to the cut-off amount to force Verizon to play by "open" rules) and AT&T added some spectrum as well, which it can add to the 700 MHz spectrum it picked up separately last year. The end result? Nothing too exciting for consumers. Whether or not Verizon Wireless's required "openness" makes a difference remains to be seen. What didn't happen was someone new entering the scene -- meaning that we're not going to see anything really new come out of all this spectrum. In fact, perhaps the most bizarre bid of all was EchoStar spending $700 million on spectrum that can only be used for one-way communication. One-way communication is less and less useful these days. EchoStar has been making some interesting moves of late, but using this spectrum to build a mobile TV broadcast solution (which is what many expect) makes little sense. It will cost the company billions, and then they'll be limited to a one-way communication system just as people are recognizing that the real value is in communications. It may give the company another option rather than relying on satellites (which are costly and troublesome at times), but the expense is way too high considering the limitations. So, even with EchoStar, we're talking about "more of the same." That's too bad, as there was a quiet hope that someone different would step in and do something really new and interesting with this valuable spectrum. 5 Comments Should Kids Get Control Of Their Data When They Come Of Age? (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 4:29PM If you're under a certain age, websites (at least under the law in many countries) cannot collect data on you -- or are required to get "consent" from an adult first. However, that's leading to a separate discussion about whether or not kids should have the right to take back that data once they come of age. A parent may agree to share certain data about a kid with a certain website, but once that kid is old enough, what if he wants to revoke that permission? It may sound like a simple thing, but once that data is out there, getting it back is nearly impossible. Yet, some politicians are trying to make that the law, even though it will be almost impossible to enforce in many cases. 4 Comments Click This Link, Go To Jail (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 3:02PM Declan McCullagh has written up an article about a questionable tactic used by the FBI to go after people looking for child porn. It set up a honeypot server and then posted links to it on a forum frequented by those who are looking for child pornography. It then used the IP address of people who clicked on the link as enough evidence to charge them with a crime. In the specific case McCullagh discusses, the guy was found guilty of simply clicking on that link. Of course, it's always difficult to separate out legal discussions like this from the fact that it involves child pornography -- which immediately sets off an emotional response. The problem here, though, is that the evidence on which the guy was found guilty could be used to find many people guilty of many things. The FBI didn't even track the referrer log -- just who went to the site. In other words, if someone had taken that link out of the forum and posted it on another site, a blog or sent an email around -- and anyone clicked on it without knowing anything about the link, they could have broken the law. This is open to tremendous abuse. If all you need to do to get someone convicted of child porn charges is get them to click a link, that doesn't seem right. Furthermore, in this case, the only other evidence was two small (admittedly questionable) thumbnail images, that there was no evidence that the guy looked at. In other words, to have enough evidence to convict someone and send them to jail for years (and get them listed as a sex offender), you could just send them an email with a link and some thumbnail images attached. If they click on the link (even if they don't ever look at the attached files), that's enough evidence, according to this case. That seems incredibly problematic. 32 Comments Comcast Says FCC Has No Authority To Stop Traffic Shaping (Politics) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 1:26PM This probably won't come as much of a surprise, but Comcast is now suggesting that the FCC doesn't have the authority to regulate its traffic shaping activities. This comes in response to Kevin Martin suggesting that the FCC would rule against Comcast for traffic shaping (which seemed odd enough, considering that Martin was perfectly fine with AT&T traffic shaping). Comcast is already suing the FCC over its telco favoritism, so this might just be one more thing to toss on the pile. It's tough to know who to favor in this situation -- but Comcast may be technically correct that this extends beyond the FCC's authority. Still, it might not be good policy for the company to say so, considering the efforts being made to put in place net neutrality legislation. If supporters of this legislation notice what Comcast is saying, it might just explicitly add language to the bill to give the FCC the authority that Comcast now says it doesn't have. So, even if Comcast is right, saying so out loud may not have been the wisest move at this juncture. 8 Comments Why Do Patents Tend To Cause More Harm Than Good? (Studies) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 11:46AM Continuing my series of posts on some of the basics behind intellectual property, I wanted to delve further into the discussion I kicked off last week about judging the harm vs. benefit of intellectual property, and being able to properly balance the two. As we pointed out last week, nearly all of the economic evidence shows that patents tend to do more harm than good. Researchers James Bessen and Michael J. Meurer (perfect timing again) have gone into a little more detail as to how much damage is done, but I wanted to focus on why the downsides to patents are so often worse than the upsides. At one level, it goes back to basic fundamental economics. Any given monopoly is going to be bad. There are economic rents associated with a monopoly. It limits the supply available and increases the cost, acting as a deadweight loss to society. That's absolutely true with patents as well (as much of the research has shown). However, there are a few more reasons why patents tend to be a net negative. First, let's focus on why the reasons in favor of patents aren't particularly strong. The first is that it should act as an incentive to create the product. Yet, as the research has shown, that's almost never true in practice. More innovation tends to happen with weaker patent laws, and when stronger patent laws are put in place, the pace of innovation decreases. The reason is that real innovation almost never happens because of patents. Very few people invent stuff "to get a patent," but because there's a need in the market and they can help solve it. That's true with, or without, patents. Furthermore, it's that need in the market that is the real incentive for innovation. If you can serve a market, there's a way to make money from that market, and that acts as plenty of incentive. The fears that an "easily copied" product will damage the original inventor are also wildly overblown. Study after study after study has shown that there is a distinct first mover advantage, and even things that are easily "copied" doesn't mean that the copycats get success in the market. People put a premium on buying from the original creator. Furthermore, they often believe (correctly in many cases) that the original creator has a better understanding of the market, and is likely to continue to innovate faster and with better solutions. Finally, in the worst case scenario, where a copycat is able to do a better job, that's also not a bad thing, because the societal benefit is still a better product. It's called competition, and is generally considered a good thing in a market economy. Another popular claim is that patent benefit us via "disclosure." Because patents require the inventor to "disclose" the invention, the idea is that these patents will spur additional innovation as others learn from the patents and build on them. The idea is that there's obvious benefit in keeping the idea secret, so in exchange for disclosing the idea, the government gives the inventor a monopoly. However, this is easily shown to be false. First, very few patents these days are written to the point where they actually disclose enough to be useful. They tend to be broadly written in a way that can cover as much as possible. However, there's an even better simple logical rationale for why disclosure is a myth when it comes to patents. If the inventor truly believes there's tremendous value in keeping the idea secret, he or she will still keep it secret. There's no real benefit to disclosing it to get the patent. You get just as much benefit from keeping it secret. The only benefit is if you think that others will be able to figure out the same concept in less time than it takes for the patent to expire. In other words, if you realize that others will be able to come up with the same thing in that amount of time. So getting a patent prevents others from doing that. But if you truly believe that it would take longer than the length of the patent to figure out its secrets, then you'll keep it quiet anyway. As for why the downsides to patents are almost always present, it's based on a fundamental understanding of how innovation works. If most innovation was a single burst of inspiration, then patents could make sense. However, in a scenario where innovation is an ongoing process of building, trying, adjusting, building, trying, adjusting -- then patents are likely to be harmful. They add a cost and a hassle at many of the steps along the way. They add a series of hurdles that involve time, money and effort for each step of that process. That, alone, significantly slows down innovation. Studies have shown, in fact, that most innovation is an ongoing series of innovations rather than a single burst of inspiration. Furthermore, great breakthroughs tend to come not from a single mind, but in different people looking at the same problem, learning from each other and building on each other's work. By throwing tollbooths into that process, you slow down the innovation. Thus, the supposed benefits of patents rarely are all that beneficial, and yet the downsides to patents are quite large and show up quite often. So, it should be no surprise that the research shows patents tend to do quite a bit to slow down innovation, rather than accelerate it. Links to other posts in the series: On The Constitutional Reasons Behind Copyright And Patents Patents, Copyrights And Trademarks, Oh My! If Intellectual Property Is Neither Intellectual, Nor Property, What Is It? What Kind Of Progress Are We Promoting? Why Do Patents Tend To Cause More Harm Than Good? 32 Comments Antigua Says It's Going To Start Ignoring US Copyrights (For Real This Time) (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 10:24AM Officials in Antigua are now trying to draw a line in the sand, claiming that if the US doesn't finally agree to allow some forms of online gambling by the end of this month, it will go ahead with its threats to ignore US copyrights with the approval of the WTO. As you may recall, back in December, the WTO granted Antigua that right, after a loooooooong series of battles with the US over whether or not the US was violating free trade agreements by banning online gambling. Of course, every time the WTO sided with Antigua, the US would stall, claim the WTO sided with the US (when it clearly did not) and (my personal favorite) claim that even if it had broken trade agreements, it didn't matter any more because the US was unilaterally changing its trade agreements so that it was no longer violating them. Of course, when Antigua won the final decision in December, allowing the country to ignore US intellectual property rights, the US government and the entertainment industry quickly warned Antigua not to follow through on those plans -- but the US government still won't shift in its position on the matter. Thus, Antigua is agitating to get this show on the road. While it first needs to get one last permission slip from the WTO, once that's in place, it can start ignoring the copyright on American movies and music. Of course, while some are suggesting that it may make sense for The Pirate Bay to move to Antigua, that's not accurate. After all, the WTO has said that Antigua can only violate $21 million worth of intellectual property, and with the way the entertainment industry counts damages, that's like half an album or so. In fact, that seems to be exactly the angle that the entertainment industry is taking in this fight. An MPAA letter warning: "The proposed retaliation would be impossible to manage. The real and resulting economic harm would vastly exceed any amount the (WTO) might approve, even the grossly exaggerated amount ($3.4 billion) for which Antigua seeks approval, plus the economic harm would extend to other WTO members." 17 Comments FCC Finally Admits Its Broadband Penetration Numbers Are 'Stunningly Meaningless' (Studies) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 9:03AM For years, the FCC has been publishing numbers about broadband penetration in the US that were clearly bogus. They considered anything above 200kbps as broadband and did zip-code level comparisons. Thus, if one house in a zip code had access to broadband from a certain provider, the FCC assumed that every house in that zip code had access to broadband. As someone who lives in the heart of Silicon Valley and could not get DSL above 128k until a few months ago, I can point out how inaccurate that claim is. DSL is such a local technology that judging it on a zip-code-wide system is bound to be woefully inaccurate, even in heavily populated areas. Despite having the government condemn these bogus stats over and over again, the FCC kept releasing them... and it's done so again (pdf). However, the good news is that it's finally admitting that its own numbers are bogus and changing the way it calculates broadband penetration. Why they're doing so right after releasing the latest report makes little sense -- but the FCC isn't known as being the most logically run organizations. In fact, it's so ridiculous to release bogus numbers after admitting that they're bogus, that two of the FCC's commissioners voted against releasing the report at all, with one calling it "stunningly meaningless." The new methodology will consider 768kbps the cutoff for considering a connection as "broadband." It will also look at both up and downstream speeds, rather than just downstream. Finally, and most importantly, it will stop using the zip code system for determining penetration, but will require ISPs to report buy onliners at the census-block level, which is much more fine-grained. This would present a much more accurate picture, so expect to hear ISPs complaining about the new methodology in 3... 2... 1.... 11 Comments DirecTV DVR Will Delete Pay-Per-View Shows ((Mis)Uses of Technology) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 7:32AM First we had ABC thinking that not allowing people to fast forward through commercials on a DVR-type product was a good idea, and now comes the news that DirecTV will automatically delete Pay-Per-View shows you record with your DVR after 24-hours. This is apparently at the request of the major Hollywood studios who have decided that the best way to build up an audience is to piss them off by not allowing them to record the movies that they legally paid for via PPV, and then chose to record and time shift. Time shifting is perfectly legal, so there's absolutely no legal reason for DirecTV to ban the practice. As for the Hollywood studios, this is more backwards thinking. One of these days, someone in Hollywood is going to realize that pissing off your loyal customers isn't a good idea. 80 Comments Of All The Reasons To Say No To Internet Voting, Wouldn't Porn And Beer Be Near The End Of The List? (Say That Again) by Michael Masnick from the try-that-again dept on Thursday, March 20th, 2008 @ 5:55AM There are many, many reasons to be against the idea of allowing political voting via the internet, starting with questions about the security, accuracy and reliability of the technology. However, former Polish prime minister Jaroslaw Kaczynski, who admits he wants to attract younger internet users to his conservative party, gave some bizarre reasons for not being a fan of internet voting. Apparently the problem isn't questions about the technology but the idea that voters may be multitasking with beer and porn: "I am not an enthusiast of a young person sitting in front of a computer, watching video clips and pornography while sipping a bottle of beer and voting when he feels like it." Does that mean he'd be okay with if it people agreed not to watch porn or sip beer while voting? 24 Comments NY Legislator Looks To Outlaw Behavioral Targeted Ads Without Opt-In (Legal Issues) by Michael Masnick from the dept on Thursday, March 20th, 2008 @ 2:42AM A New York Assembly member is pushing to outlaw targeted advertising without opt-in approval. Given the scrutiny facing companies like Phorm in the UK, this isn't all that surprising. However, the complaints around Phorm are that it tracks all of your surfing activity and generates ads based on that aggregate info. The bill that is being discussed in New York would apparently apply to websites that do targeted advertising within the site. That seems both extreme and unnecessary. Even though the law would technically only apply to New York, since it would be difficult to figure out who's in NY and who's elsewhere, it would force many providers to get rid of targeted advertising. It seems a bit extreme to think that targeted advertising should be banned entirely, without an initial opt-in. By this point, most people probably expect basic targeting to take place, and when done right, such targeted ads should be more effective. The real problem comes in when such targeting presents a privacy violation, but the focus then should be on privacy laws, not specifically targeting a single activity such as targeted ads. 15 Comments Visit Techdirt. 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