Facebook is known for not looking kindly (and for going legal) on sites that attempt to do pass through logins to do something with a Facebook account. I can understand why they don’t like these other services, but it’s difficult to see what’s illegal about them. The next potential legal battle apparently may be between Facebook and Seppukoo, a fun site that offers users an amusing way to close and delete their Facebook account by having it commit a virtual suicide:

The site, Seppukoo.com, offers ritual suicide for Facebook users’ virtual profiles by deactivating your account. And it doesn’t stop there. If you’re willing to end it all, the site will feature a RIP memorial page on its site and sends the page to all your Facebook friends.

Fun stuff. Except, of course, Facebook doesn’t want people deleting their accounts, and so it blocked Seppukoo. Now, the battle of words is heating up and lawyers are getting involved. Facebook has issued a cease and desist, insinuating that it will take Seppukoo to court for violating Facebook’s “rights and responsibilities” if it doesn’t stop offering the service. I’m still quite confused as to what legal leg Facebook has to stand on here. I can understand why it doesn’t like what Seppukoo is doing… but that doesn’t mean it’s illegal.

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We’ve had plenty of discussions about Thomas Jefferson’s views on the patent system. He is, clearly, the father of the patent system in the US. While he was incredibly skeptical of the idea of granting any monopolies originally, he did come around to accept patents in very limited circumstances, and when he oversaw the patent system, he was careful to make sure that the downsides of such monopolies were limited. Separately, for many years, I’ve heard the story of how Ben Franklin purposely decided not to patent his stove invention, stating:

“As we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously.”

However, I had not heard of a similar story involving Thomas Jefferson refusing to patent certain inventions he came up with as well. Reader jprlk points us to a recent Straight Dope column, which is mostly about George Washington and Thomas Jefferson’s exposure to marijuana, but there is one interesting part about how Jefferson refused to patent his “hemp brake” patent, because he found the invention to be “too important”:

Jefferson invented a better “hemp brake” to separate the fibers from the stalks, something he thought was so important agriculturally that he refused to patent it.

Combined with the Franklin quote, this is quite telling. In both cases, they realized that the invention could be a lot more useful if it were not limited. This goes against claims by patent supporters that (1) an invention is not a “real invention” if it’s not patented and (2) the patent system is necessary for better dissemination of ideas. It’s nice to see (yet again) that Thomas Jefferson, despite overseeing the early years of our patent system, clearly was quite skeptical of the actual benefits of such a system.

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It looks like Section 230 protections win out again. Some of the regular critics on this site like to make odd claims about Section 230 — insisting the Section 230 is quite limited, leaving a site liable if it cannot prove who created the content, or that it simply does not apply, if the site in question “helped” create the content in any way. A new ruling should help clear up those misconceptions. The case involves a car dealer, Nemet Chevrolet, that was upset about negative reviews on ConsumerAffairs.com. ConsumerAffairs is one of many “gripes sites” out there — with one interesting distinction. It works closely with class action lawyers to review the gripes and seek out opportunities for filing class action lawsuits. While this may be somewhat distasteful (class action lawsuits are all too often much more about getting money for the lawyers than actually helping the class), the site, like any other gripes site, is protected from defamation claims by Section 230.

Eric Goldman discusses the latest ruling, in which the appeals court upheld the dismissal by the district court, using Section 230. In the ruling, the court rejected two specific claims that Nemet made to try to get around Section 230. First, Nemet claimed that since ConsumerAffairs solicits complaints and asks users questions to draw out the details, it is partially responsible for the content (an attempted misreading of the Roommates ruling). However, the court tossed this out, saying that the problem with Roommates was that the questions asked specifically requested illegal information. That is not the case with ConsumerAffairs.

The other attempt by Nemet to get around the Section 230 issue was to say that because it couldn’t figure out who one of the complaints came from, ConsumerAffairs must have made it up, and thus it was liable since it created the content. That didn’t work either. Eric Goldman points out how silly this logic is on the part of Nemet:

This allegation has an obvious (and IMO embarrassing) logic flaw. Even if Nemet can’t use its records to validate the facts in a consumer review, ConsumerAffairs.com’s fabrication of the post is only one of many possible explanations. The court notes some other possible explanations: “the post could be anonymous, falsified by the consumer, or simply missed by Nemet.” (I would also add the possibility of weak recordkeeping by Nemet).

So, once again, we see that Section 230 is working properly, requiring that liability be properly applied. It does not mean that there is no liability at all — just that you can’t blame the tool or platform provider for the work of a user. The user may still be liable — which is fine — but the service provider is not.

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Back in October, we wrote about plans for yet another “free, but ad supported” music download startup, but didn’t see how the economics could work out. That site, FreeAllMusic, is apparently now getting set to launch, but it still doesn’t make much sense to us. Basically, you can download music (two of the four major labels have signed up) for free — and it’s not encumbered by DRM (that’s good), but you have to sit through some sort of video ad before you can get the music and you are limited in how much music you can download. The site’s CEO claims “We have made this process easier than stealing.”

We’ll ignore the confusion (most likely intentional) about the difference between infringement and “stealing” and focus on all the other problems with this service. First of all, it’s not easier than infringing. You have to sit and watch an ad. You don’t have to do that on file sharing networks. Second, the assumption behind the service is that people would use this the same way they use iTunes: meaning only a very small number of downloads per month. Initially, that means 20 downloads per month, total, and no more than five per session. That may be how people use iTunes, but that’s because each download costs money in iTunes. One of the reasons people prefer file sharing systems is because they’re not limited that way and can really easily sample lots of music quickly.

But the biggest problem with this concept remains with the basic economics. Since the argument remains the same as I stated a few months back, I’ll just repeat it:

You’ve got the record labels, who are used to getting approximately $0.67 per downloaded song. Assuming that needs to be made up by the ad (and even ignoring any profit for the site), then every single ad shown needs to cost that same $0.67. Translated into traditional ad terms, that’s a CPM of $670. Yikes. I don’t know any advertiser will to pay anything close to that — even if it’s targeted and you have a half decent chance of the person paying attention. Most CPM ad rates online these days are in the sub-$5 area. Convincing advertisers to jump to a $670 CPM on an unproven model? Good luck.

I’m all for experiments and new business models — especially those that make use of free music. I just don’t see this particular one getting very far. The economics are just not that compelling for anyone involved.

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We’re always interested in cool promotional and marketing ideas from content creators, and Hypebot alerts us to the news that musician Christopher Bryant is planning a neat concept for his solo shows: throughout 2010, he’ll “open for himself” when playing live. Basically, he’s playing two sets, but the first set will all be music by another artist. The first such artist is Ben Harper, who is apparently a huge inspiration to Bryant:

Now, of course, this might not sound like anything special. It’s just a musician playing a bunch of cover music before playing his own music. But the positioning is quite smart. It’s positioned in a different way that draws attention and helps better connect with fans. Not only that, but it helps this up-and-coming musician get some additional attention from fans of a much bigger artist. It’s a very smart move.

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We’ve seen how Nokia’s troubles in keeping up in the smartphone market have resulted in suddenly filing a whole bunch of patent lawsuits, including the big one against Apple over the iPhone. Of course, as usually happens in these types of situations, Apple fired back with a patent infringement lawsuit of its own against Nokia. Welcome to patent nuclear war.

And, of course, if you thought the battles would end there, you haven’t been paying attention to how patent battles work these days. For years now, we’ve been pointing out that many patent holders actually get two cracks at companies over the same exact patents. They sue in the courts, and they use the ITC loophole to get a second crack, which could have even worse consequences. You see, the International Trade Commission is supposed to watch out for unfair trade practices. So many patent holders go to the ITC and claim that companies that infringe on patents are using unfair trade practices and should be barred from importing those goods into the US. Of course, the ITC could rely on the courts to determine if the products are actually infringing, but it does not. It decides for itself. And while the ITC cannot issue fines, it can issue an injunction barring the import of these products. With so many high tech products being manufactured overseas, this creates an effective injunction against selling many high tech products in the US… even as the Supreme Court has made clear that injunctions don’t always make sense. But, the ITC is not bound by the Supreme Court on this and can do what it wants. A recent study has shown that this ITC loophole is frequently abused.

So, it’s not at all surprising that (yes, indeed), Nokia has jumped in with both feet and has filed a complaint with the ITC as well over the Apple iPhone and its alleged infringement on Nokia patents. So now we have two totally seprate processes, either of which could conceivably bar Apple from selling iPhones in the US, just because Nokia’s been too slow in coming up with its own iPhone competitor. That’s not encouraging innovation at all. It’s proactively trying to use the US government to slow it down.

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The big news in security circles this week is the fact that a security researcher claims to have cracked the encryption used to keep GSM mobile phone calls private. It looks like he and some collaborators used a brute force method. He admits that it requires about $30,000 worth of equipment to de-crypt calls in real-time, but that’s pocket change for many of the folks who would want to make use of this. What’s much more interesting (and worrisome) is the GSM Association’s (GSMA) response to this news:

“This is theoretically possible but practically unlikely,” said Claire Cranton, an association spokeswoman. She said no one else had broken the code since its adoption. “What he is doing would be illegal in Britain and the United States. To do this while supposedly being concerned about privacy is beyond me.”

There are so many things wrong with that statement it’s hard to know where to begin. First, claiming it’s “theoretically possible, but practically unlikely” means that it’s very, very possible and quite likely. To then say that no one else had broken the code since its adoption fifteen years ago is almost certainly false. What she means is that no one else who’s broken the code has gone public with it — probably because it’s much more lucrative keeping that info to themselves. Next, blaming the messenger by announcing that cracking the code is “illegal in Britain and the United States” is not what anyone who uses a GSM phone should want to hear. They should want to know how the GSMA is responding and fixing the problem — not how they’re responding to the public release. Finally, if it’s “beyond” her why cracking a code used for private conversations and showing that it’s insecure is all about being concerned about “privacy” — she should be looking for a different job. This has everything to do with privacy. The GSMA claims that the code is secure for private conversations, and this group of folks is showing that it is not. That seems to have everything to do with privacy.

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It’s no secret that I’m a supporter of allowing more skilled immigrants into the US. The arguments against it make little sense and are usually thinly veiled racism against foreigners. Plenty of studies have shown that skilled immigrants help create new jobs rather than take them away. And barring skilled immigrants from coming into the US just means that they end up working for non-US competitors, rather than helping US companies grow. It’s hard to fathom a reason to be against increasing skilled immigration, other than being racist or economically illiterate. Now, that said, it’s also no secret that the H-1B process that is one of the main (though not only) routes for skilled technology foreigners to work in the US has some serious flaws and is often abused. But the response should not be to end the H-1B program, but to fix the abuses.

All that said, I’m somewhat horrified at the reports (which a whole bunch of you are sending in) about a judge ordering three anti-H-1B websites be taken totally offline. I disagree heavily with those three sites, and think that they are misleading in the extreme, but the order to take them offline goes way overboard. The judge even went further and ordered Facebook to disable the Facebook page of one of the sites.

At issue are libel and copyright charges from a company named Apex, which these sites accuse of abusing the H-1B process. Given that I’m very much against the abuses, I’m all for exposing those who abuse the process. Now here’s where things get weird. The main issue is that these sites posted a copy of what’s supposedly an employment agreement from Apex, and the discussion “alleges that employees will find it difficult to leave Apex because of its contract terms.” Apex claims that this is defamatory, and notes that it had three “consultants” refuse to report for employment because of it. Yet… it also claims that it holds the copyright on the documents. In other words, it admits that the documents are real and legitimate. Otherwise it wouldn’t hold the copyright. Thus, it’s hard to see how the two charges can stand together. Either the documents are false and defamatory, or there’s (potential) copyright infringement and the documents are accurate in portraying Apex’s contract terms. So which is it?

Unfortunately we don’t know, because the judge has shut down everything.

What’s not at all clear is why the judge would completely shut down all three websites and the Facebook page. If there are problems with just this document, order an injunction against that document. Completely shutting down all three websites goes way too far, and seems to go well beyond what either defamation law or copyright law should allow.

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The online version of the YouTube-based music service includes content from Vevo without pre-roll advertisements, as well as a crossfader. And there’s more to come.

Originally posted at Digital Noise: Music and Tech

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