DMCA: Skipping Straight to the Hanging

Legend has it that in Judge Roy Bean‘s courtroom everyone was entitled to a trial before they were hung. Under the Digital Millennium Copyright Act (DMCA), Congress has dispensed entirely with the matter of a trial and moved straight to the hanging. And the rate of digital hangings in increasing at a prodigious rate.

The DMCA Title II allows copyright holders or their agents to demand that web content that infringes on their copyrights be removed, so called “takedown notices.” In the case of content hosts (like your internet service provider) and search engines (like Google or Bing), they can avoid liability by removing the content or removing the link to the content, a so-called “safe harbor.” There are statutory procedures for counter demands that content be restored, as well. And the form of all of these notices is also mandated by statute.

But this is the digital age, and before you could say “Microsoft” a whole crowd of digital rent-a-cops had sprung up, in the business of hiring themselves out to find and slap down copyright infringement. The copyright rent-a-cops wrote software to troll the Intertubes, looking for suspicious activity, and completely automated the process of sending takedown notices. The results were predictable.

Google tracks the number of takedown notices it receives each week. Here’s the chart as of October 9, 2012:

Google DMCA Take Down Notices Per Week, January 2011 to October 2012

Since mid-year, there has been an explosion in the number of takedown notices. Google alone has had 6.9 million in the past month. And this explosion in copyright infringement claims has occurred at a time when even the RIAA admits illegal copying is declining.

Now the practical effect of this is that it is impossible for Google or anyone else to evaluate the merits of a takedown notice. The burden shifts to the target of the notice, who must make a counter demand. So if one of these attack dogs sends Google a takedown notice on your web site, claiming your content infringes on their copyright, whether or not the claim is true, Google, to protect itself, may well remove your site from its search results. You can make your own demand back to Google, but Google, to stay in the “safe harbor,” has to wait ten days to see if the internet rent-a-cops do anything in response before it can return your site to good standing. If the copyright claimant sends a takedown notice to your ISP, you’re not only out of the search engines; your web site doesn’t have a digital existence.

That’s what WC meant by skipping from the accusation to the hanging, without troubling with a trial along the way.

Now all of that would be bad enough if the copyright rent-a-cops were careful about their takedown demands but, apparently, they get paid for the number of tickets issued, not the number of people caught speeding. Their algorithms for detecting copyright violations are laughably bad.

Let’s do a case study. Let’s pick, say, Microsoft’s impending Windows 8 operating system. There are beta versions out there, distributed by WC’s good friends in Redmond. Microsoft hired one of these internet bullies, called Marketly, LLC (and owned by a former MS employee) to make certain that there weren’t any unauthorized copies of Windows 8 Out There. Marketly’s idiot algorithms decided there were. It sent 5 million takedown notices to Google in one year. Alleged infringers included AMC Theatres, BBC, Buzzfeed, CNN, HuffPo, TechCrunch, RealClearPolitics, Rotten Tomatoes, ScienceDirect, Washington Post, Wikipedia and even the U.S. Government. Marketly even demanded on several occasions that Google censor Microsoft’s own search engine, Bing. Of course, none of those sites were using or running Windows 8; Marketly’s search algorithm was a piece of crap and reported millions of bogus positives.

Because Google’s own mechanisms for dealing with takedown notices are themselves highly automated, many of these completely innocent sites were kicked out of Google without anyone, you know, thinking “I wonder if the BBC is really sharing illegal copies of Windows 8?”

What’s worse, Google’s processing rules are mostly confidential, so we don’t even know what the threshold for enforcement action is. One notice? Ten? Who knows. Google doesn’t care. Takedown notices to Google on Google-owned sites like YouTube get special, secret treatment.

But what a great way to derail your competition, huh? Flood Google with false claims of copyright infringement and they’re kicked out of the world’s biggest search engine. If you get caught, just blame faulty programming.

The “guilty until proven innocent” approach, vulture capitalism and sloppy programming have created a toxic, dangerous situation on the Intertubes. It’s too much to hope that our do-nothing Congress would understand, let alone act, on the problem. But it’s all we’ve got.

R.I.P. Evan Gross, 1960-2012

In 1986, WC purchased an early product for the Macintosh called Thunder. It was simply amazing; it could detect spelling errors as you typed and, if you pressed a key sequence, it popped up a dialog that let you select the right word and pasted it in, all without taking your hands off the keyboard. The whole business of a mouse was still new, but as John Dvorak had observed, “A mouse is a great tool for anyone with three hands.”

What was especially cool was that you only needed one dictionary; Thunder worked in all of your programs. It was there when you needed it, unobtrusive and helpful.

Thunder, and its many upgrades since to the current Spellcatcher X 10.4, was the product of Evan Gross, a wizard programmer and interface genius. Gross nurtured and improved Spellcatcher across 25 years, adding a thesaurus, a glossary feature, multi-lingual support, additional specialized dictionaries and other wonderful features. WC has sung the praises of Spellcatcher before and won’t do so again here, but it is one of the handful of programs that WC has encountered which just works, all the time, just as it should.

WC met Evan Gross half a dozen times, generally at MacWorld Expositions in San Francisco, where he tirelessly demoed his program, listened to problems and offered solutions, and gave programming advice to anyone – including WC – who asked. He was patient, polite and charming. When WC had a rare problem with Spellcatcher, usually resulting from an operating system upgrade, Gross unfailingly responded quickly and helpfully. His company, Rainmaker Research (two men and a Jack Russell Terrier) would be on WC’s short list of great software companies.

But we have lost his genius. Evan Gross died suddenly and unexpectedly at the end of June. WC has no idea the cause of death, but Gross was just 52 years old. WC offers his belated sympathies to Gross’s family, friends and co-workers. And to all of those Spellcatcher users out there, orphaned now.

A sad, sad loss. Smart folks will go to Rainmaker‘s web site and buy Spellcatcher before it vanishes forever.

The Infinite Tool

Visicalc Screen Shot

Today is the 33rd anniversary of Visicalc. Visicalc was the first spreadsheet program for a personal computer. Until Visicalc was developed by Dan Bricklin and Bob Frankston, primitive early personal computers like the Apple II were seen as toys. Visicalc didn’t ship as a package until October 1979, but there were copies out in the hands of beta testers – although that phrase hadn’t been invented yet – the second week of March. WC and his Apple II+ computer was one of those beta testers.

WC showed the beta Visicalc to a CPA in Fairbanks, a guy who was a high school classmate and friend. The guy was stunned to silence. The first thing he said after he could talk was, “You just changed my world.” WC showed it to his father, who was a construction contractor who did a lot of project cost estimating on a hand-cranked adding machine. His reaction was even stronger: rather than learn to use a computer, he quit the contractor side and went to work for the State of Alaska.

Visicalc was the program that took the personal computer from a hobbyist’s toy to a business tool. Wozniak and Jobs, the founders of Apple, hadn’t built the Apple or the Apple II as business tools. But they built the Apple IIe as such a tool. Visicalc changed everything. The personal computer industry exploded. Today, Microsoft’s Excel is the great-grandchild of Visicalc and is installed on millions of computer around the world. But it was the demonstrated infinite flexibility the personal computer that was the real revolution. The personal computer was revealed to be an infinite tool.

WC thinks we are seeing a similar revolution today in the tablet computers like the iPad. The iPad, when it was first announced, was derided by its critics as a closed box, good for consuming media but not much else. But theiPad turns out to be an infinite machine as well, and it may be working as big a revolution as the Apple II.

When Apple built the iPad, they didn’t think of it as a replacement for the satchel briefcase of manuals and logs that commercial pilots carry on board every flight. But the iPad was sufficiently flexible that, today, the majority of commercial pilots carry an iPad instead.

When Apple built the iPad, it didn’t have in mind physicians making hospital rounds. It turns out that there are real and substantial savings in giving hospital doctors iPads to access patient medical charters, order up prescriptions and makes nots on care.

When Apple built the iPad, they didn’t think of it as a substitute for the racks and racks of blueprints at job sites, or a tool for speeding up solutions to the problems that arise in reconciling blueprints to conditions in the field. But now architects, engineers and contractors are using iPads as field tools for construction. For the first time in decades, there’s a potential increase in the productivity of the construction trades. A change to drawings is available to everyone at once; no clumsy substitutions. Unexpected field conditions can be photographed and transmitted quickly to the designers.

And there’s some chance that the iPad will replace schoolbooks in the near future. Adobe Photoshop is threatening to turn iPads into digital darkrooms.

Those are the hallmarks of an infinite tool. There will be refinements, of course: more power, faster speeds, even more flexiblity. But they are refinements, just as today’s personal computer is a Boeing 777 to the canvas-coverd biplane of the Wright brothers and the Apple II personal computer.  It shouldn’t be a surprise that iPads already outsell every personal computer vendors unit sales.

The New York Times worried recently that Apple could not continue to grow at its present rate, that it would saturate the market. WC suspects the clever folks at Times are wrong, that iPad sales are just entering the steep part of the sales curve. The next Visicalcs for the iPad are still being written. The world is just beginning to find uses for the newest infinite tool.

UPDATE: Corrected a reference in the final paragraph. The WSJ started the discussion of Apple being trapped by the Law of Large Numbers. The Times picked it up. The WSJ is behind a paywall. So WC gives the Times the credit and the link.

Is Google Evil? The Law of Unintended Consequences

The curmudgeonly Robert X. Cringely, formerly a columnist and now a blogger for Infoworld, recently bemoaned the world-wide web’s horrible quality of writing in general and journalism in particular. He points to the old journalism line: “Cheap, fast, or good. Pick two.” And then proceeds to demonstrate that the web, all to frequently, proves the truth of the old saw.

Cringe has a pretty good example:  AOL Hell: An AOL Content Slave Speaks Out, by young writer Oliver Winter. Young Oliver did not have a pleasant experience, although his article demonstrates some pretty decent writing. But that’s not the point. Writing, according to young Oliver and Cringe, is driven by what will score well on Google. As Cringe puts it,

Web publications are under tremendous pressure to crank out as much material as they can as quickly as possible. More stories equals greater Google juice and more traffic; more traffic equals more ad impressions and clicks, and thus more revenue. That’s the formula. And it’s getting worse.

That is why we see the rise of content factories like Demand Media and AOL’s Seed that use algorithms to determine what stories to publish based on Google trending topics. The economics of Web publishing demand cheaper and cheaper methods of producing content, editorial ethics be damned.

Seriously, if publishers could figure out how to train monkeys to do this, they would. Only I’m not sure the monkeys would stand for it.

WC cranks out a single blog piece very nearly every day, and that’s hard enough. WC would like to think his work is a little higher quality than what Cringe’s monkeys could produce, although WC recognizes a subset of his readership will disagree. But that has happened is that Google’s approval means so much revenue now that Google’s system has itself become evil.It’s an ironic fate for a company whose slogan was, “You can make money without doing evil.”

To Google’s credit, it recognizes the problem and has tried to reconfigure its search engines to recognize valuable, useful content and disdain the trash. The Panda algorithm isn’t fully implemented, but may help. At least until the junk generators reverse-engineer that algorithm to save their business plans. Because the idea of generating actual, useful content won’t work.

Happily, Wickersham’s Conscience is a revenue-free product. WC isn’t involved in the Google antics. WC’s host, WordPress, may or may not play the Google game. But, WC promises you, if there is any ad revenue, the checks haven’t reached WC yet.

In the meantime, there are entire industries now given over to deducing or reverse-engineering Google’s search and ranking algorithms. Google itself makes obscene amounts of money selling its ads. Google makes so much money that Microsoft noticed and marketed Bing to compete. There’s so much money involved that it’s not going to change. So we’re stuck with ”Cheap, fast, or good. Pick two.” And an escalating race between Google in its effort to give its search engine credibility and the junk content generators, trying to beat Google. WC supposes we should be grateful for two choices.

PS. It’s also ironic that Bob Cringely wrote about ”Cheap, fast, or good. Pick two.” Cringe doesn’t exist. Except as a registered trademark. But that’s a different essay.

Update on the Patent Troll

Long-time readers of WC will recall WC took multi-zillionaire Paul Allen to task for acting like a greedy patent troll.

The trial judge in Allen’s case agreed. He dismissed the case because the complaint lacked specificity. Allen’s company, Interval Licensing, can re-file the complaint if it does so by December 28. And it probably will. After all, you can’t be too rich.

Paul Allen: Patent Troll

Patent Troll (Not to Scale)

Paul Allen’s net worth is $13.5 billion, give or take. He’s about 57 years old. He’s had cancer twice. But let’s give him a life expectancy of 25 years. To spend his net worth, if he never made another dime, he’d have to go through $540 million a year.

That’s $1.5 million a day.

Even a guy who owns two giant yachts, the Seattle Seahawks and the Portland Trailblazers would be hard-pressed to blow through $13.5 billion. WC thinks this qualifies as obscenely rich.

But a guy who would have to spend $62,500 per minute the rest of his life is not, apparently, rich enough.

So he has caused his company, Interval Research, to file a patent infringement lawsuit against most of the world’s high tech companies.

WC is no IP lawyer, but he think the patents themselves are darn pretty vague:

• U.S. Patent No. 6,263,507, for “Browser for Use in Navigating a Body of Information, With Particular Application to Browsing Information Represented By Audiovisual Data.” Think news aggregator (like Google News or Digg) or, really, any of the thousands of sites featuring a box with “related stories” on it (including the one you’re reading right now).
• U.S. Patent Nos. 6,034,652 & 6,788,314, both titled “Attention Manager for Occupying the Peripheral Attention of a Person in the Vicinity of a Display Device.” Think stock ticker, headline feed, Twitter widget — anything that updates continually in the periphery of a site.
• U.S. Patent No. 6,757,682, for “Alerting Users to Items of Current Interest.” Think RSS feeder, Google alerts, anything that presents content based on keywords you’ve selected or on your past activity, like Amazon or Netflix recommendations.

It will take a very long, very expensive lawsuit to determine if these are valid patents, and whether use of similar technologies by Google, Apple, AOL and a dozen other major companies infringe on those four patents. The intellectual property lawyers will make a fortune, but you have to ask why the world’s 31st richest person is acting like a patent troll.

A patent troll is a company that produces nothing, but purchases intellectual property rights and then sues anyone and everyone it thinks infringes on those intellectual property rights. Mostly, these are hold-up lawsuits. The real economic pressure is the millions of dollars that the defendants will have to spend prove there is no infringement. And, for the most part, it’s all a consequence of the deeply dysfunctional patent law. In the finest tradition of the Bush Administration, these bottom feeders have emerged as a kind of sick, anti-entrepreneurism. A kind of parasitic tapeworm on businesses that actually do something.

So why is Paul Allen, who has no use for or need of additional wealth, playing the role of tapeworm? Does he feel overshadowed by his former Microsoft partner, Bill Gates? Is he worried that Steve Jobs is more famous? Does he really think that playing patent troll will gain him fame?

Lord knows he doesn’t need the money. But be careful clicking on links on this page: you may be violating Paul Allen’s patents.

Nice Essay on Steve Jobs

There have been hundreds of thousands of words written about Apple’s Steve Jobs. Most of them aren’t very insightful. But here’s an essay from Bruce “Tog” Tognazzini that nails some of the critical bits of Jobs’ special genius.

Tog was a part of the original Macintosh design team, and has a long series of publications on human-computer interfaces that are very good. He’s currently working with Jakob Nielsen, arguably the leading authority on web design (the New York Times called him “The guru of web page usability”), and Donald Norman (The Way Things Work), inarguably the leading authority on all things design. Heady company, but Tog’s a bright guy, and his stuff is always worth reading.

Aperture 3.01 – A Big Improvement

Software Review – Aperture, Version 3

Aperture Version 2 was a fine photo management tool. I’ve been using Aperture since Version 1.0. And I’ve evaluated each released version of Adobe Lightroom. But there’s no serious question that Aperture 3.01 is the fastest, most stable, easiest to use photo management tool that’s been released. I’ve just spent three weeks using Aperture 3.01 to manage the 6,000 photos I took on a recent trip. I’ve exported photos, built a web site and synched albums to my iPhone. I’ve used the Brushes feature to retouch hundreds of photos. All worked perfectly, and 2-3 times faster than Aperture 2.X.

Because I am mostly a nature photographer, I didn’t and don’t use the Faces feature; I can’t speak to it. But the Brushes feature is pretty amazing. As a selective sharpening tool, for example, it has no peer in any other Mac photo software. Seriously, the upgrade is worth it for the Brushes features alone.

Conversion of my 11,000 photo, 282GB Aperture library to version 3 was admittedly time-consuming. I’d estimate 6 hours, running on a 2 quad-core Mac Pro with 4GB of RAM. I did compact and backup my Aperture Version 2 library before converting; I can’t say if that was necessary or not. I also keep one-third of my primary drive empty. And I did install the upgrade to version 3.01 before doing anything. Except for the duration, there were absolutely no problems with the conversion. No keywords in my complex keyword system were lost. No photos were lost.

Keyword searches are now blindingly fast: before you can click the Close box on the search dialog, the photos have been found and displayed. Smart Albums display the photos almost the instance you click on a key word. Opening a photo for editing in Photoshop – yes, you still need PS – is much faster.

I’ve only discovered one problem, and while it is definitely Apple’s issue, I’m not sure it is Aperture’s. The otherwise excellent Magic Mouse will occasionally cause random scrolling in the Browser window of Aperture. It happened in version 2.X; it still happens in version 3.01.

I have to wonder if those reporting various problems with Version 3 don’t have underlying hardware problems. After a month of daily use, I haven’t had a single crash.  This is a terrific piece of software, in my experience. My unqualified recommendation.

Simple Software That Works: Spell Catcher

I write for a living. This blog is the least of it. Useful writing tools are simply indispensable to me. And because I am an especially bad typist, tools for correcting typographical errors are particularly useful to me.

There are certainly any number of bad tools out there. Microsoft Word on a Mac, for example, nicely underlines with red any doubtful spelling. But to correct it, you have to click on the word with the mouse while pressing the control key. It’s an acceptable technique for any writer with three hands, I suppose, to paraphrase John Dvorak. For those of us with two hands, it’s cumbersome and breaks our concentration.

By contrast, there is the wonderful Spell Catcher, which gives you a single, universal dictionary, user-definable shortcut keys, and the ability to correct almost any spelling error without taking your hands of the keyboard. Add to that a thesaurus, a user-definable glossary feature, superb technical support and Evan Gross, a genuinely nice-guy developer, and you have an outstanding product. I’ve owned Spell Catcher since it was called “Thunder” and ran on a Mac Plus. There hasn’t been a time since the early 1990s I haven’t had Spell Catcher installed on my Macs. In fact, I waited to install Mac OS X until Spell Catcher was available for the platform.

Batch-checking, interactive checking, glossaries and more. This is software the way it is supposed to be: there to help you when you want it, but out of your face the rest of the time. Unlike MS Word, where I seem to spend half my time fighting the program and turning off features I don’t want – not always an easy task, either – Spell Catcher is there when I need by otherwise lets me alone, like a useful assistant. There’s even a Windows version.

Outstanding software, wonderful features and great support. I strongly recommend it to anyone who writes for a living.