A recent interview with Apple co-founder Steve “the Woz” Wozniak is making some headlines because Woz is communicating some criticism of the current patent system. As much of an innovator as he’s been, I would have to argue that none of his comments on the problem of patents come anywhere close to innovative, let alone as acerbic as they rightly should be.

Suggesting that software patents stymie innovation and tax content creation is like suggesting that bombing might lead to casualties or fast food to obesity. Why the safe stance? Who knows. But at least he’s saying something, and not merely relying on the same ‘ole song and dance: that patents are a great way to encourage innovation.

They’re a great way to float patent lawyers, just in case the world needed a few more lawyers (about as much as it needs more pollution or more disease, I’d say). But with all the patent-grabbing going on – between Facebook and AOL and AOL and Microsoft – it should be obvious that patents serve the IP rich and tax the IP poor.

Indeed, there have been several small trolls who’ve found a niche in patents: suing large companies for violating patents that stood in the path between idea and execution. But do – as Woz suggests – small companies really find any incentive in the patent system? Perhaps.

Likely, though, the motivation is in patenting a process in order to cash in on someone else’s use of that process, through forbidding them and then suing, not through licensing. The motivation is likely seldom close to the original purpose of the patent: to create some manner of monopoly over an innovative design.

It’s no coincidence that this battle has moved away from, say, patents on refrigerators or bicycles and into software. This is a recent phenomenon: that patents can cover the result or outcome of a piece of software, and not merely a physical aspect of mechanics. The problem here is obvious: while you may build a refrigerator many, many ways, what matters are the mechanics of the device, not the result (ie – cooling or freezing its contents).

You can build an application many ways as well – use any of multiple languages and write virtually limitless ways of having the program perform a task. But the outcome is limited and even predictable: a piece of software that, say, allows an action in one click instead of two. That points an arrow toward a destination. But these are the very outcomes that have been restricted by patents. Nothing about the code itself, but a clamping down of the outcome of that code.

The eventual end to all this, I imagine, is that larger companies holding fistfuls of patents will incentivize upstarts only so far as it serves them, gobbling them up and bringing their ideas and innovation into the fold, and not necessarily to see such ideas to fruition, but just as often to squash them before they can represent competition to the existing cash cow. While patent lawyers and patent law grow fatter and fatter until there are few reasons to create at all, save to serve patent holders and hope for acquisition dollars.

How does this serve innovation? It doesn’t, why do you ask?

In many ways, arguments for thick copyright are just more of the same polemic side-choosing that we see in most public politics. We’ve become convinced that doubt or criticism of any current policy is the sine qua non for two-party schisms, and that any uncertainty or two-sidedness is the mark of a hopeless, temporizing waffler. That any insecurity need be squashed, and that our policies should bear no scrutiny unless paraded as political spectacle.

Such it is with a recent speech for the American Association of Publishers given by US Register of Copyrights Maria Pallante. She seems determined to express her position with polemics, as if doubt, consideration, and scrutiny would be akin to a show of weakness. This is endemic of our 24/7 news culture, however, where one is free to assert a stalwart and contentious stance on an issue that – mere years later – turns out to be completely misconceived and erroneous.

Take the battle against the VRC, the mix-tape, and cable television as fine examples of this. Bought-and-paid-for politicians echoed industry lobbyists in asserting the evil of these devices, only to forget their complete lack of prospection when such technology produced more media, not less; more money, not poverty.

She begins with the popular mantra: “It goes without saying that where there is publishing, there is copyright,” which would come as a great surprise to Nigerians, who make 1,200 films a year (the US makes about 600) without any existing copyright to protect the content. Implying that publishing cannot exist without copyright (particular in its current, unprecedented form) is wholly bogus, and implies that the argument for whether copyright is needed at all is completely off the table (which it certainly is not).

She also says that rights-holders have “long served the public interests,” but this has to be a joke. Any “service” rights-holder have performed is – at best – an adventitious outcome to serving their own best interests. Let’s be clear: rights-holders do not care about common interests, about public benefit, or even about art. They care only for return on their investment. This is not – in and of itself – wrong or egregious, and certainly isn’t evil. It is, however, NOT to be confused with benevolence, concern, or public service.

Pallente also makes a rather circular argument regarding copyright “respect” by citizens, suggesting that if copyright in its current form is not adhered to, then congress will have no choice but to make the laws stricter. This one-way-valve approach is for more “dangerous” (a word she uses for a lack of respect for current copyright) than actually thinking critically about WHY people might not abide by current copyright laws.

This suggests that the only path toward compliance is to tighten the belt, restrict more content, enforce more laws, enact greater controls. This wholly ignores the possibility that applying heavy-handed, thick copyright to modern media is counter-productive to all but a select few (those already owning massive amounts of content) and highly detrimental to anyone creating content hereon or to those consuming it.

I understand that context indeed matters. She is speaking to a group of old white guys who own a lot of content, so of course she’s going to kiss their asses and suggest that they are nothing short of demi-gods of information and pillars of our age. She needs their support. But to suggest that copyleft agenda are laughable and “dangerous” ignores the slew of well-educated, forward-thinking, powerful minds showing daily that what she believes to be a bulletproof truth contains myriad flaws. Just as similar arguments from our past we now know and believe are ridiculous, such as copying sheet music bringing about the end of music creation.

So once again we come to a rather frustrating impasse: where corporate-funded politicians and state-appointed potentates such as Pallente have only one rabbit in their hats – absolute compliance. No criticism. No introspection. No wiggle room. But so long as the same economic cycle continues, the same policies will resurface. SOPA will be back. Three or six or however many strikes will again have its turn. The very ideals necessary for real change in the way we handle IP in the US will simply not come from our government, not so long as they remain perpetually beholden to corporate interests.

Oh, and what does this have to do with art and culture? Nothing. Why do you ask?

A recent story in Ars Technica refers to an upcoming documentary on the thriving video arcade industry of Japan, which stands in stark contrast to an almost complete void of such businesses in the US. Ars’ writer Kyle Orland gives a couple of possible reasons for this, among which are the denser population of Japan and the prevalence of home gaming in the US. But I’m not so sure.

I remember the days of arcades being wildly popular, even in my tiny little hometown of 24,000 people and especially in my new home of a still-modest 75,000 people. But those memories also provide a possible answer to the riddle. I would meet a friend of mine right when the mall opened, and we would play games all Saturday AND buy a soda the size of a garbage can – all on five bucks apiece.

Sure, much of this had to do with our mad skillz at Virtual Fighter and X-Men, where we could play for half an hour on a quarter easily. But it had more to do with the contemporaneous understanding of how IP and video gaming really works. I’ll give you a hint: Dave and Buster’s ain’t even close.

When I was in Korea, the arcades were a madhouse. When I went in, I found out why. The games – all of them – cost 100 wan (at the time, about 8 cents), and they were games whats sole objective was NOT to boot you off as quickly as possible. The result was that the arcade became a community, not just a revolving door that sucked in customers, cleaned their wallets, and spit them out again.

And yet that’s what US arcades have become: hordes of golden-age-seeking thirty-somethings drinking overpriced domestic beers and paying two bucks for an idiotic surfing game that lasts three minutes no matter how well you play the game. No one goes to Dave and Buster’s for community; they go as an occasional treat, and leave a lot poorer. This is a horrid business model.

So what does this have to do with IP? A lot, actually. It is our cultural misconceptions regarding the value of IP that slowly shaved off repeat customers to arcades. We kept tweaking up the prices: a new game going from a quarter to fifty cents up to a dollar per play. The arcade owners charged more because the rights-holders charged more. But let’s get real: no game needed that kind of profit margin to be created.  The proof? Just look at Japan and other Southeast Asian nations. You think they’re playing Pong and Pac-Man? Hardly. Game manufacturers still enjoy plenty of economic incentive when charging far less and allowing the game to be a meritocracy instead of consistently minimizing the average playtime by design. Thus, their arcades hold scores of the latest, greatest games. Games we’ll likely never see because we’ve affectively ruined our market by cashing in on immediate returns and price insensitive customers – NOT the bread of butter of any long-lasting business, whether selling IP or widgets.

And doesn’t this neatly reflect the way we create other media? Films that rely heavily on opening weekends instead of being made – y’know – WELL and then enjoying the long tail in the after-market. A consequence from which we all suffer culturally – every dollar spent on the latest Adam Sandler turd, a dollar not invested in solid films that – God forbid – don’t cater to impulsive teens with Daddy Dollars.

Fortunately, I’ve not seen anything conspicuous blaming piracy for the collapse of arcades (not sure how rights-holders could spin that, but you never know). But the finger is no doubt pointed firmly at consumers, instead of indicting content creators and rights-holders media distribution models, which are as or more liable for the failure of mainstream media than consumer preference. Certainly more than piracy.

But I suppose we can’t expect the slogan-makers to come up with a campaign about their own failures.

Perhaps it’s heresy, but I am not a huge fan of the free EPUB reader Calibre. Doubtless, this has just as much to do with the not-so-well-formatted ebooks I read as it does sloppy coding, but – I admit – looks go a long way. I do work on a Mac after all.

So I naturally came upon Adobe Digital Editions eventually, which reads EPUB and other ebook formats, looks pretty sharp, and it’s free. Free from financial cost, at least. Since this is Adobe we’re talking about, I figured there might be a string or two attached, and rightly so.

Foremost Adobe makes you “activate” Digital Editions in some form. One way is to register with them, which restricts access to titles with Digital Rights Management (DRM), but lauds this as a good thing. The DRM system is called ADEPT, similar to what many ebook readers use. You can choose not to register (but still “activate”), and it gives the toothless warning that you won’t be able to see your books from PC to PC.

The rhetoric here is clear: That DRM is good and the absence of DRM somehow magically restricts your access. Thus, DRM = Greater Access. Of course, this isn’t true. DRM is ONLY for rights management; it has nothing to do with enabling sharing – just the opposite. But it could be perceived as such if companies such as Adobe bind customers when they refuse DRM and free them when they acquiesce.

Of course, if DRM is so snazzy, then why are there third-party programs out there with the sole object of removing ebook DRM? Are there consumer apps that embed DRM?

Even for the lay person unwilling to find a sharing solution, the ability to see one’s collections on other machines pales in comparison to the inevitable lack of freedom inherent in most DRM. You can’t share it, copy it, print it, change it. You can only consume it. And only you.

This is wholly different from the way traditional books operate, of course. You can transfer ownership of a traditional book an infinite number of times, even if only the first person pays for it. You can resell a used book. You can copy it at work or at the library, and though this is not likely legal (unless it fits snugly into a fair use exemption), but no one’s going to stop you, either.

So what is the difference in choosing NOT to register with an Adobe ID and thus forbid DRM from entering your life? How does this differ so far as access is concerned? Not much, it turns out. If you have Digital Editions installed on, say, your work PC and your home PC, you can access the same ebooks (even at the same time) so long as they’re stored in some shared space, such as in a mutual DropBox folder. This degree of freedom – just as with most any freedoms worth having – simply takes a little research and creative thinking. But this is preferable for a few reasons.

For one, while I don’t think any government spook is going to come knocking on my door because I’m reading Marx and Rand at the same time (just creepy!), I’m not crazy about the idea of my reading habits being logged, either. Mostly because I don’t want Adobe making a few bucks selling that data in the creation of some targeted advertisement scheme. Would they? I don’t know, but with every business on earth trying to get people to log in via their Facebook accounts nowadays, this is obviously a booming business.

Second, Adobe has a long history of loving DRM, so perhaps registering with them would forbid me from reading a random copy of an ebook instead of one bought from a traceable, legal channel (no doubt from which they would receive kickbacks). Akin to my vehement dislike of Windows Media Player, if a media player cares about the source, I’m simply not interested. Let ME worry about the source. A media player’s job is to play media – that’s it. If it cannot do this, there are usually about a zillion free apps out there unwilling or uninterested in playing Copyright Cops.

Indeed, not using an Adobe ID means Editions cares nothing about the source of my ebooks, which is a fine start. Alas, it’s likely most anyone installing Editions is going to buy into Adobe scare tactics and opt for DRM-laden literature only. Good luck sharing that $15 copy of “Hunger Games” with your best bud. You’ll be lucky to be able to open it five years down the road.

Oft times, conventional wisdom errs far on the side of caution, and this has been the case when it comes to recording the police – video or audio. In some states, this is illegal (and only then in some cases) because it falls under wiretap laws. The unfortunate by-product is that many police officers believe that there is simply no excuse for filming them, which isn’t so. The real trouble is, many citizens believe this as well.

In 2007, a Bostonian named Simon Glik was arrested for recording another man’s arrest on his cell phone. Just in last few days, courts determined that the man was well within his rights to record it, despite wiretap laws. Because of this case and ostensibly the egg on the face of the police department, the Boston police now watch a training video on how best to handle similar situations.

This is what’s known as a “win”.

Alas, in order for this to happen, Glik had to win a suit against the City of Boston to the tune of $170,000 in damages (and who knows how much in court and lawyer fees). I’m not suggesting that Glik doesn’t deserve to be compensated for his loss of liberty, time, suffering, and even inconvenience. I am, however, sorry that the only way to incite changes in legal policies is for the lawyers to step in and for money to change hands.

Ideally, I would love to see Glik donate every penny to organizations educating people about their rights. This would speak even more loudly about the wrongness of his arrest and about how money needn’t be the only incentive to see policies change.

While this isn’t exactly germane to copyright, it’s ballpark. That is, we’re encouraged every day to consume, consume, consume all of these electronics that facilitate sharing, media creation, and expression, and then we’re consistently beat back and stuffed into hegemonic containers that insist we should only use such media in specific, passive, and ultimately vapid ways. And yet, what Glik did wasn’t subversive to law; it was endemic to our times.

I’m just waiting for their to come some semblance of victory without the cachet of the glacial and inefficient courts, or having to pass through the sticky fingers of lawyers.

But while I’m no citizen of Boston, I would still claim that $170,000 is a low price to pay for this sort of victory; I only hope that – like the electronics that make such cases inevitable – such wins will drop in price.

While the Stop Online Piracy Act (SOPA) and its evil twin PIPA have been defeated for now (thanks very largely to consumer efforts to show vehement disapproval to elected officials that will otherwise just vote with the money), it seems now Internet Service Providers (ISPs) have become ready bedfellows of entertainment trade organizations. What could this mean?

In sum, it would mean ISPs using code – which I’ve stated before has ZERO accountability or judgment – to flag customers using their Internet connection in any violation of copyright. This could mean downloading, uploading, posting copyrighted content to YouTube, Facebook, Pinterest, etc. It could mean a lot of things, since copyright violation has developed a broad enough set of actions in its definition to include everyday activities such as forwarding a funny email, reposting a cute pic, or even singing out loud.

The agreed-upon model will allow for six violations before termination of the customer’s account, but in the mean time, it could mean putting bandwidth restrictions on them, or re-directing their homepage. If this sounds EXACTLY like what spyware does, you’re getting the picture.

There are two things to take away from this. First, punishment at the customer level has led to nothing but EPIC failure. Look at the music industry suing fans. They lost tons of cred, causing even more people to file-share, and they LOST MONEY on the suits, despite getting the occasional hefty settlement. (Lawyers don’t come cheap, mon ami). And punishing this was might scare off the johnny-come-lately violator who will then be more cautious when posting to Facebook or refrain from putting anything on YouTube (way to squash little Billy’s dream of becoming a filmmaker), but it will do NOTHING to even hamper the majority of file-sharing. There are simply too many channels for allowing file-sharing to continue.

You punish me for using Frostwire, I’ll move to BitTorrent. You shakedown my speed for upping torrents, and I’ll just move to newsgroups or Direct Download (DDL). Take away my connection altogether, and I’ll just hop onto public wifi to get my media. The point is, this simply will not work. All it will do is wash out any consumer spending that might come from not file-sharing based on the cost of enforcement and lobbying. Of course, no RIAA or MPAA lobbyist is going there. They have to keep pretending that their presence is the last bastion between lawful consumption and absolutely free media. Rights-holders, alas, keep employing these tools perhaps more out of habit than good business sense.

Secondly, the ISPs are not bound by law to enforce this graduated response. Thus, some will enforce it, and some will not. That will mean that the moment one ISP is tightening the belt too much, customers will drop them like a hot potato and go with an ISP that doesn’t kowtow to trade organizations’ ever wish. Sure, the more loosely-enforcing ISPs will become the target of more rights-holder and trade organization pressure, but so long as they have a slew of loyal customers to whom they show loyalty in turn, it’s business as usual.

My advice: find out if your ISP is planning on implementing a graduated response, and tell them you think it’s a bad idea. And let’s be clear: there is NO WAY that this benefits the consumer. This is completely and wholly bad for you. So putting some pressure on your ISP is not only apropos, but could have a real positive effect on whether they pull a stunt like graduated response.

Every once in a while, it’s a great day in the copyfight. And now that pay-up-or-else law firm Righthaven, LLC is going belly up, this is one such day.

You might remember Righthaven as the scheming ne’er-do-wells I wrote about before. They’re the ones who scour the Web for reposts of news stories, and then they would contact the news organization, buy the content, and then sue for infringement. What’s a daily pub care if someone pirates their week-old content? Not much, so they naturally were keen on selling content to Righthaven.

Righthaven had no intention of fighting the supposed good fight: that is, STOPPING copyright infringement. They wanted sites to infringe so they could sue them. Nowadays that means sending a pay-up-or-else notice rife with legalese and crossing their fingers that the suit never made it to court.

Well, some did, and it seems that there are still some judges out there with sense enough to not only laugh at such antics, but also to hold Righthaven to their threats. As it turned out, Righthaven often DIDN’T EVEN OWN THE COPYRIGHT, but simply claimed they did to extort a settlement. This happened enough times to result in a few losses, and build up quite a bill for Righthaven. Here’s where it gets fun.

A Las Vegas judge ordered that Righthaven surrender its interest in the more than 200 copyrights they owed. The irony is that Righthaven insisted they had no assets to cover the almost $200,000 in court costs they racked up over four losses in court, and yet this assertion flies in the face of the supposed value of intellectual property. How indeed can vampires like Righthaven file million-dollar lawsuits for infringement when the practical value of their own copyright holdings can’t even cover their court fees?

In a lovely twist, Righthaven doesn’t even have its trademark anymore, so I suppose I should more accurately refer to them as “the lichen formerly known as Righthaven” though that’s not terribly catchy.

The important take-away here is that it is worthwhile and vital that more people stand up to these predatory legal practices, because it’s obvious that few indeed have a legal leg to stand on. They buckle under the slightest scrutiny, and while it may seem easier and cheaper to acquiesce and simply pay the few thousand dollars to make such filth go away (regardless of guilt or innocence, harm or complete lack of harm), the more people and businesses stand up to these schemes, the less effective they become.

In case you’ve been under a rock for the last couple of months, the latest social media buzz app is Pinterest. Largely because of a lucrative and very wise affiliation with Facebook, Pinterest went from no name to household name in just a few days. Now many sites sport the red push-pin icon that allows users to “pin” images of “interest” (get it?) to their profile, which is then shared with the world.

The problem, or shall I say, the obstacle? You guessed it: our friendly, dated copyright law. Despite sites such as Google getting by with posting thumbnails of images thanks to a 9th Supreme Court decision (someone was finally awake to make a good call that day), that doesn’t mean that rights-holders are bananas about users posting copyrighted images to their Pinterest profiles.

How is this any different from Facebook? One photog who decided to scrap her Pinterest account thereafter, noted that the EULA for Pinterest puts more liability on the users than Facebook. So what does this ACTUALLY mean?

Nothing at all.

Let’s be honest. No one (not even Supreme Court justices) read EULAs, which leaves them legally binding, but realistically toothless. In other words – sure, a photog whose images are posted on someone’s Pinterest profile without permission might have a greater legal leg to stand on to take action against the infringer than he would were the photo on some other social media platform such as Facebook. But in reality, there’s no difference.

Here in the land OUTSIDE the courtroom, we share because we are tribal animals. Sharing is hardwired into our DNA. The ways in which we shared are dictated by the means readily available to us, not legalese pasting into some banal EULA. Can’t say as I’ve ever read an EULA unless I was searching for all the legal loopholes the company (here’s lookin’ at you, Apple) likes to sneak in there.

Can rights-holders still file suit? Of course. But once again, people need to understand the enormous rift between FILING a suit and WINNING a suit. While anyone who’s ever had to rely on legal proceedings well knows, thelaw is a costly avenue for resolution. So the idea that a photographer can merely wave a magic rights-holder wand and the infringer’s account is depleted of a hefty settlement is complete crap at best and a dangerous but popular misconception at worst.

The best rights-holders can hope for is the opt-out of allowing Pinterest users to snag the photo for their page. While the tradition for intellectual property has been either to decry all unauthorized usage while doing nothing or making prevention of infringement criminalize all (even legit) users, it might be time for rights-holders to take a few minutes and PREVENT infringement instead of criminalizing and finger-pointing.

And that’s only if they think that Pinterest will somehow hurt them. (SPOILER: It won’t). Since when is exposure bad for photographers? I know I’d sure hate to see one of my blogs cut and pasted all over the Web for millions to read. I’d much rather waste hours each week trying to pull in and maintain the measly readership I currently enjoy. That’s much more effective.

Just as rights-holders of other media, photographers (and rights-holders who just own the copyright on images) need to ask themselves some important questions in regards to sharing and exposure.

1. Is it hurting you (or anyone)?

2. Are you losing money because of it?

3. Do you honestly think, after the music industry not only ruined their already shady rep by filing pay-up-or-else lawsuits, and STILL ended up taking huge losses in legal fees, that the sue-happy model is the way to make a living as a content creator?

No? Well, perhaps it’s time to let Pinterest do its thing, and – god forbid - actually enjoy the kind of prodigious and harmless sharing it represents.

With the tag line “Every image gets it credit”, the service Pic Scout seems innocuous enough. It scours the Internet searching for evidence of its clients’ photos and then reports back any usage so that the rights-holder can then determine if the use if authorized.

But why does such a service exist? Plainly spoken by Victor Perlman, the general counsel for the American Society of Media Photographers in an interview with the Copyright Clearance Center, he says that most photographers don’t even know when their photographs are being used without authorization. So this should immediately solicit the question: Who is hurt? Obviously the photographer is not hurt directly, since he didn’t even know about the usage. But the implication here is that he’s hurt INDIRECTLY. That someone on the Web using his images without consent is affecting his business.

But this erroneously assumes that there is money to be made in legal use where there is currently illegal use. That someone, say, operating a blog would be willing to pay anything at all for the use of an image of the Eiffel Tower, or a waterfall, or a small boy blowing bubbles. More likely, the site administrator would simply remove the image and find another, and perhaps this is enough for many rights-holders (especially ones that are the content creators) – that someone “respect their rights” and take down their images or – even more reasonably – simply accredit the photo to the photographer, and perhaps a link back to the photog’s Web site.

Of course, this is NOT the result of services such as Pic Scout, else they wouldn’t have very many clients. No, the result is litigation. Always more and more litigation. Instead of using technology to demand payment, removal, or accreditation (none an unreasonable result) rights-holders use such search engines to file lawsuits. These rarely make it to court no doubt, but more often result in the typical pay-up-or-else suit extorting small settlements from unauthorized users who are threatened with the costly avenue of a legal defense.

Did I just make unauthorized users the victims? I suppose I did. Well, how dissimilar is rights-holders hunting down pirate usage to police officers hawking over otherwise lawful drivers in hopes of extorting fees and fines? In both cases, the “criminals” are largely ignorant of the law, since in both traffic and copyright law there are intricacies not meant to be understood, entrapment meant only to raise revenue, and court systems happy to oblige the business. Likewise in both cases, there is not so much right and wrong as there is someone who is ignorant of and/or skirting the law, and someone who is using the law to extort funds. The vast majority of the time, the overwhelming majority of us remains on the “criminal” side. So where should my sympathy lie?

As Perlman notes, there are indeed many problems surrounding orphan works – those copyrighted works for which no rights-holder can be identified. But I whole-heartedly disagree that the fix lay in more control, more bureaucracy, and (especially) more lawyers. This will only exacerbate the problem. And while no one can blame Pic Scout for making money off a legitimate service, the benevolence of that service need bear the same scrutiny as any unauthorized use: that is, we should ask for evidence of harm and proof of loss, not simply assume that any unauthorized use implies lost profits or a detriment to culture.