We've been following the Ultramercial case quite closely over the past few years. If you're not aware, this involved a company that more or less patented the idea of "you must watch this ad to get this content" (US Patent 7,346,545) and then sued pretty much everyone. Most of the companies it sued settled rather than fight (which happens all the time), including YouTube and Hulu, but one company, WildTangent, has continued the fight. Eventually, though, the case reached the Supreme Court with the key question being does taking an abstract idea like "watch this before getting that" and adding "on the internet" to it make it patentable? It's well established that you can't patent an abstract idea, but for some reason many seem to think that if you say "on the internet" it's no longer abstract. The Supreme Court did not do a full hearing on the case, but asked the appeals court of the federal circuit (CAFC -- known as the patent appeals court) to reconsider its original ruling in light of the Supreme Court's ruling in the Prometheus case, where it said that you can't patent broad medical diagnostics. The rule there was that you "could not simply recite a law of nature and then add the instruction 'apply the law.'" So, is the same true for "abstract idea" plus "on the internet"?
Apparently, for CAFC, the answer is that there is a difference, and that merely adding "on the internet" to an abstract idea makes it patentable. The ruling is quite incredible, not just for the fact that it sets up a ridiculous standard, but also for its technical naivete. CAFC basically says, gee, there are a lot of steps and graphs and charts in the patent, so, it's probably not abstract.
Viewing the subject matter as a whole, the invention
involves an extensive computer interface. Unlike Morse,
the claims are not made without regard to a particular
process. Likewise, it does not say “sell advertising using a
computer,” and so there is no risk of preempting all forms
of advertising, let alone advertising on the Internet.
Further, the record at this stage shows no evidence that
the recited steps are all token pre- or post-solution steps.
Finally, the claim appears far from over generalized, with
eleven separate and specific steps with many limitations
and sub-steps in each category. The district court improperly
made a subjective evaluation that these limitations
did not meaningfully limit the “abstract idea at the
core” of the claims.
Part of the issue is that it needs to show something new here, and the court seems to argue that any software effectively creates a "new machine" based on some really wacky logic. It states "as computer scientists understand":
a
programmed computer contains circuitry unique to that
computer. That “new machine” could be claimed in terms
of a complex array of hardware circuits, or more efficiently,
in terms of the programming that facilitates a unique
function.
Read that again. They're saying every software program creates "unique circuitry." That's how they claim this is a "new machine" making the idea patent eligible. However, as computer scientist, Tim Lee pointsout, this claim is "nonsense."
It seems that, once again, CAFC is not getting the Supreme Court's message clearly. We've already gone through this with Myriad and Mayo cases. In Mayo, CAFC twice ruled that diagnostic tests were patentable, even after the Supreme Court gave it an extra chance to correct that. That resulted in the Supreme Court slapping down CAFC and rejecting medical diagnostic patents. Then, CAFC, similarly did the same thing with gene patents, only to be smacked down just last week.
This is a nearly identical situation. CAFC rules one way ("yes, of course this abstract idea/thing of nature is patentable"), the Supreme Court says "are you sure?!? please look at this other ruling," and CAFC comes back with "yes, we're sure! patent patent patent!" The last few times that's happened the Supreme Court has had to smack CAFC down, and it looks like it may need to do so again.
You may recall the concern some have raised over Smart TVs, those internet connected glowing boxes with cameras ripe for exploits that would allow hackers to watch you watch TV. Supposedly less nefarious were concerns over technology that would allow those same Smart TVs to recognize when you had left the room or were looking away, subsequently dimming the screen to conserve energy. Whether or not either is a concern rising to the levels of epidemic privacy invasion, one thing that is clear is that the general public is a bit dubious about being monitored within their own living rooms.
The patent, snappily titled "Awards and achievements across TV ecosystem", describes camera sensors monitoring the eye movements and heartbeats of TV viewers. Which means a console will know if you're in the room when an ad break is on, or if you've popped out to make tea. It'll also be able to tell whether you're actually watching the ad or if you're engrossed in the latest issue of Heat magazine. And don't even think about gaming the system by watching telly with the lights off: the XBox would be able to monitor you even in the dark.
Every move you make, every breath you take, the Xbox would be watching you – but also rewarding you. The patent suggests that sitting through commercial breaks would rack you up points to buy both virtual and physical awards. The thinking behind this being that people today need to be bribed in order to sit still and watch a commercial. As the patent application explains: "With the proliferation of digital video recording devices, advertisers are finding it increasingly difficult to introduce their advertisements to viewers."
While the above can be slightly misleading in that this is a patent application, not a granted patent, the response to it is the same. Fun, right? Here's the problem. I am aware that, at some level, everything about video games is reward-based. The obvious Xbox achievements are in place and people ostensibly seek them out, though I have yet to attain any modicum of understanding as to why people do this. Less obvious is the concept of gaming in general. Get to the next level. See that next cut-scene. Advance the plot. Unlock the new weapon, the new armor, or the new ability to shoot a bad guy directly in the balls. These are things that are important to gamers. It might therefore seem natural to build a rewards-based system for advertising as well within this audience.
Except advertisements are different, aren't they? If we're skipping ads, it's because they're an annoyance. Whereas stopping the bad guy, winning the World Series, or uncovering a mystery are all integral to the playing of whatever game we're enjoying, advertisements are, by definition, a break from what we're actually interested in doing. In fact, the label of "achievement" itself relating to watching advertising reeks of a gross misnomer. Granted, being able to stomach a minute's worth of Miss Cleo advertising may seem like a challenge, but it isn't an achievement in the same way.
More importantly, as the article notes, getting people to watch ads isn't a problem solved by some kind of Pavlovian reward system. It's solved by having creative, interesting, and entertaining ads.
The proliferation of digital video recording devices is something of a red herring when it comes to ad-viewing. After all, people aren't forced to skip the ads when they watch a time-shifted show; rather, they're free to watch them over and over again if they like. Just, err, most people don't like. Research conducted by Deloitte in 2010 found that 90% of TV viewers always skip through the adverts on their DVR. But the answer to stopping this behaviour doesn't lie in sophisticated motion-detecting technology, it lies in making ads that people actually want to watch. The biggest threat to advertising isn't technology like Sky+; the biggest threat to advertising is bad advertising.
Because advertising is content and content is advertising. And these invalidating arguments are made without even bothering to touch upon the public's reaction to being watched through the all-seeing eye in Microsoft's device. In a world where authors like Rand and Orwell are well-read, I expect a line to be drawn between cameras in the public square and cameras within our own walls. That this would be done to solve a problem better solved through smarter means is a fact I hope won't be lost on anyone.
Commercials are always trying to get people's attention -- sometimes by being controversial and sometimes by being shocking. But even when a company tries to broadcast only sensitive and feel-good messages, there will always be some folks pointing out that companies don't really care about people as much as profits. Here are just a few advertisements that might have just missed getting their message across.
It's been a bad few weeks for some big brand advertisers, as a slew of offensive commercials had to be pulled and disowned by the likes of Pepsi, GM and Hyundai. In the case of Hyundai, the company apologized for an ad that showed off its new "pure water emissions" SUV by showing a guy try to commit suicide by running the car in his garage, only to discover that the lack of carbon monoxide emissions made that attempt a failure. Yes. Pretty insensitive. The ad agency, Innocean Europe -- which happens to be owned by Hyundai's chairman and his daughter -- also apologized, saying "the intention of the viral ad was to employ hyperbole to dramatise a product advantage, culminating in a positive outcome. Clearly, we were mistaken, and we sincerely apologise."
However, rather than just apologize for the ad and pull down the official version, some quickly noticed that Hyundai and/or Innocean went all out claiming trademark violations against every copy posted on YouTube:
Of course, in true Streisand Effect manner, that just resulted in more people uploading it:
And, of course, the video is now available from other sources as well, such as below:
Yes, I can understand why they would make the effort, in an attempt to show that they really, really are sorry and don't want this ad online, but of course once "the story" takes over, a lot more people are interested in seeing the video. And, try as you might, you can't make online content completely disappear.
It's been a while since the dotcom boom days when human billboard tattoos were all the rage. Getting a tattoo is usually not considered a prudent decision, but it does attract attention... and that's usually what people are trying to get with tattoos. Maybe tattoo advertising is making a comeback, or maybe it's just as permanent as the ink in people's skin. Just make sure if you're getting a tattoo for money, that you really like your corporate sponsors.
My goodness. Yesterday we posted about Rep. Louis Gohmert's incredible, head-shakingly ignorant exchange with lawyer Orin Kerr during a Congressional hearing concerning "hacking" and the CFAA. In that discussion, Gohmert spoke out in favor of being able to "hack back" and destroy the computers of hackers -- and grew indignant at the mere suggestion that this might have unintended consequences or lead people to attack the wrong targets. Gohmert thought that such talk was just Kerr trying to protect hackers.
I thought perhaps Rep. Gohmert was just having a bad day. Maybe he's having a bad month. In a different hearing, held yesterday concerning ECPA reform, Gohmert opened his mouth again, and it was even worse. Much, much worse. Cringe-inducingly clueless. Yell at your screen clueless. Watch for yourself, but be prepared to want to yell.
The short version of this is that he seems to think that when Google has advertisements on Gmail, that's the same thing as selling all of the information in your email to advertisers. And no matter how many times Google's lawyer politely tries to explain the difference, Gohmert doesn't get it. He thinks he's making a point -- smirking the whole time -- that what Google does is somehow the equivalent of government snooping, in that he keeps asking if Google can just "sell" access to everyone's email to the government. I'm going to post a transcript below, and because I simply cannot not interject how ridiculously uninformed Gohmert's line of questioning is, I'm going to interject in the transcript as appropriate.
Rep. Gohmert: I was curious. Doesn't Google sell information acquired from emails to different vendors so that they can target certain individuals with their promotions?
Google lawyer whose name I didn't catch: Uh, no, we don't sell email content. We do have a system -- similar to the system we have for scanning for spam and malware -- that can identify what type of ads are most relevant to serve on email messages. It's an automated process. There's no human interaction. Certainly, the email is not sold to anybody or disclosed.
Gohmert: So how do these other vendors get our emails and think that we may be interested in the products they're selling.
Okay, already we're off to a great start in monumental ignorance. The initial question was based on a complete falsehood -- that Google sells such information -- and after the lawyer told him that this is not true, Gohmert completely ignores that and still asks how they get the emails. It never seems to occur to him that they don't get the emails.
Google lawyer: They don't actually get your email. What they're able to do is through our advertising business be able to identify keywords that they would like to trigger the display of one of their ads, but they don't get information about who the user is or any...
Gohmert: Well that brings me back. So they get information about keywords in our emails that they use to decide who to send promotions to, albeit automatically done. Correct?
NO. Not correct. In fact, that's the exact opposite of what the lawyer just said. Gohmert can't seem to comprehend that Google placing targeted ads next to emails has NOTHING to do with sending any information back to the advertiser. I wonder, when Rep. Gohmert turns on his television to watch the evening news, does he think that the TV station is sending his name, address, channel watching info, etc. back to advertisers? That's not how it works. At all. The advertisers state where they want their ads to appear, and Google's system figures out where to place the ads. At no point does any information from email accounts go back to anyone. And yet Gohmert keeps asking.
And not understanding the rather basic answers. Unfortunately, the lawyer tries to actually explain reality to Gohmert in a professional and detailed manner, when it seems clear that the proper way to answer his questions is in shorter, simpler sentences such as: "No, that's 100% incorrect."
Lawyer: The email context is used to identify what ads are most relevant to the user...
Gohmert: And do they pay for the right or the contractual ability to target those individuals who use those keywords?
Lawyer: I might phrase that slightly differently, but the gist is correct, that advertisers are able to bid for the placement of advertisements to users, where our system has detected might be interested in the advertisement.
Gohmert: Okay, so what would prevent the federal government from making a deal with Google, so they could also "Scroogle" people, and say "I want to know everyone who has ever used the term 'Benghazi'" or "I want everyone who's ever used... a certain term." Would you discriminate against the government, or would you allow the government to know about all emails that included those words?
Okay, try not to hit your head on your desk after that exchange. First, he (perhaps accidentally) gets a statement more or less correct, that advertisers pay to have their ads show up, but immediately follows that up with something completely unrelated to that. First, he tosses in "Scroogled" -- a term that Microsoft uses in its advertising against Gmail and in favor of Outlook.com -- suggesting exactly where this "line" of questioning may have originated. Tip to Microsoft lobbyists, by the way: if you want to put Google on the hot seat, it might help to try a line of questioning that actually makes sense.
Then, the second part, you just have to say huh? The lawyer already explained, repeatedly, that Google doesn't send any information back to the advertiser, and yet he's trying to suggest that the government snooping through your email is the same thing... and Google somehow not giving the government that info is Google "discriminating" against the government? What? Really?
Lawyer [confounded look] Uh... sir, I think those are apples and oranges. I think the disclosure of the identity...
Gohmert: I'm not asking for a fruit comparison. I'm just asking would you be willing to make that deal with the government? The same one you do with private advertisers, so that the government would know which emails are using which words.
Seriously? I recognize that there are no requirements on intelligence to get elected to Congress, but is there anyone who honestly could not comprehend what he meant by saying it's "apples and oranges"? But, clearly he does not understand that because not only does he mock the analogy, he then repeats the same question in which he insists -- despite the multiple explanations that state the exact opposite -- that advertisers get access to emails and information about email users, and that the government should be able to do the same thing.
Lawyer: Thank you, sir. I meant by that, that it isn't the same deal that's being suggested there.
Gohmert: But I'm asking specifically if the same type of deal could be made by the federal government? [some pointless rant about US government videos aired overseas that is completely irrelevant and which it wasn't worth transcribing] But if that same government will spend tens of thousands to do a commercial, they might, under some hare-brained idea like to do a deal to get all the email addresses that use certain words. Couldn't they make that same kind of deal that private advertisers do?
Holy crap. Gohmert, for the fourth time already, nobody gets email addresses. No private business gets the email addresses. No private business gets to see inside of anyone's email. Seeing inside someone's email has nothing to do with buying ads in email. If the government wants to "do the same deal as private advertisers" then yes it can advertise on Gmail... and it still won't get the email addresses or any other information about emailers, because at no point does Google advertising work that way.
Lawyer: We would not honor a request from the government for such a...
Gohmert: So you would discriminate against the government if they tried to do what your private advertisers do?
No. No. No. No. No. The lawyer already told you half a dozen times, no. The government can do exactly what private advertisers do, which is buy ads. And, just like private advertisers, they would get back no email addresses or any such information.
Lawyer: I don't think that describes what private advertisers...
Gohmert: Okay, does anybody here have any -- obviously, you're doing a good job protecting your employer -- but does anybody have any proposed legislation that would assist us in what we're doing?
What are we doing, here? Because it certainly seems like you're making one of the most ignorant arguments ever to come out of an elected officials' mouth, and that's saying quite a bit. You keep saying "private advertisers get A" when the reality is that private advertisers get nothing of the sort -- and then you ignore that (over and over and over and over again) and then say "well if private advertisers get A, why can't the government get A." The answer is because neither of them get A and never have.
Gohmert: I would be very interested in any phrase, any clauses, any items that we might add to legislation, or take from existing legislation, to help us deal with this problem. Because I am very interested and very concerned about our privacy and our email.
If you were either interested or concerned then you would know that no such information goes back to advertisers before you stepped into the room (hell, before you got elected, really). But, even if you were ignorant of that fact before the hearing, the fact that the lawyer tried half a dozen times, in a half a dozen different ways to tell you that the information is not shared should have educated you on that fact. So I'm "very interested" in what sort of "language" Gohmert is going to try to add to legislation that deals with a non-existent problem that he insists is real.
Gohmert: And just so the simpletons that sometimes write for the Huffington Post understand, I don't want the government to have all that information.
Rep. Sensenbrenner: For the point of personal privilege, my son writes for the Huffington Post.
Gohmert: Well then maybe he's not one of the simpletons I was referring to.
Sensenbrenner: He does have a Phd.
Gohmert: Well, you can still be a PHUL.
Har, har, har... wait, what? So much insanity to unpack. First of all, Gohmert seems to think that people will be making fun of him for suggesting that the government should "buy" access to your email on Google. And, yes, we will make fun of that, but not for the reasons that he thinks they will. No one thinks that Gohmert seriously wants the government to buy access to information on Google. What everyone's laughing (or cringing) at is the idea that anyone could buy that info, because you can't. No private advertiser. No government. It's just not possible.
But, I guess we're all just "simpletons."
Seriously, however, we as citizens deserve better politicians. No one expects politicians to necessarily understand every aspect of technology, but there are some simple concepts that you should at least be able to grasp when explained to you repeatedly by experts. When a politician repeatedly demonstrates no ability to comprehend a rather basic concept -- and to then granstand on their own ignorance -- it's time to find better politicians. Quickly.
One of the slogans of the copyright industries is that you can't make money from giving things away. Unfortunately for them, examples just keep coming up showing that's simply not true. Techdirt wrote about the interesting case of the London Evening Standard back in 2009, shortly after its new owner decided to turn it from a (loss-making) paid-for newspaper, into one that was given away. So, three years later, how did that work out?:
Andrew Mullins, the paper's managing director, says that in the year up to 30 September [2012], the Standard managed to return a profit of just over £1m [$1.5 million].
The transformation from loss into profit is remarkable when set against the background of the paper's enormous losses when it was a paid-for title.
At the time the paper went free, on 10 October 2009, the previous quarter's figures, if annualised, would have registered a loss of £30m [$45 million].
Confronted by this kind of result, the copyright maximalists will probably say: so what? One success proves nothing -- it can't be generalized. But it turns out that another London publication, the weekly listings magazine Time Out, has recently made a similar move, reducing its price to zero. Not surprisingly, that has allowed it to boost its circulation hugely:
According to figures from the Audit Bureau of Circulations, Time Out had an average weekly circulation of 305,530 in the final four months of 2012, over five and a half times its 54,875-strong circulation in the same period of 2011.
Of course, giving away more copies is easy; the hard part is making money by doing so:
Although Pepper declined to comment on profit targets for the free magazine he said the Time Out business "makes money" and he hopes it will stay in profit.
Pepper said: "Ad revenue has massively exceeded our expectations. We have seen very strong double-digit year-on-year growth. You can read as much as you like in to that but the print market is not having a strong time in general."
Given the tough economic climate, it's impressive that not one but two companies have turned around ailing publications by giving away copies of previously paid-for titles. Of course, the copyright industries will once more dismiss these as "only" being two examples. So the question has to be: just how many dramatic success stories like these does it take before that tired old cliché about the impossibility of making money by giving things away is taken out the back and finally put out of its misery?
Another day in which Google makes a move that leaves me scratching my head about what it's thinking. It has decided to remove Adblock Plus from the Google Play store arguing that it interferes "with another service or product in an unauthorized manner." Obviously, some will argue that of course Google is doing this to protect its own ad revenue, but it still surprises me. Google's entire premise was built on the idea of building advertising that was non-intrusive and non-annoying such that it created value for people. The whole reason that Adblock exists is to fight back against bad advertising. On top of that, Adblock is a very popular tool, in part because it helps stop annoying advertising. If anything Adblock represents a useful way of exposing information about when and why people find advertising annoying.
As we've argued before, even though things like Adblock directly mean less revenue for us, we don't begrudge anyone for choosing to use it. To us, it's just a sign that we're not doing a good enough job delivering what our community wants in a manner they want it. That's useful. It sometimes puts us in a difficult position, because we have to deal with advertisers who only seem to want banner ads that our audience doesn't like. But we should never take that out on our community, but rather the responsibility is on us to seek out ways to convince advertisers and sponsors to work with us in ways that benefit everyone, rather than intrude or annoy our audience. On that front, we've always found Adblock to be a useful tool.
While Google may not view it totally that way, in the past, Google has generally taken the position that what's best for the user is something that it will support, even if it's not directly the most beneficial thing for Google. Instead, it took the longer term view that doing what's right for the consumer would mean that consumers would stick with them and trust them. But blocking AdBlock goes against that very concept. It's a short term move and one that the EFF (with whom we agree) sees as simply a bad move for Google.
Part of the appeal of the Google Play store is the lack of Apple iOS style walls and gates. Putting up those gates in a way that goes against user's own interests just seems like a bad long term decision.
Last week we, like many other publishers, saw Google's Matt Cutts post a "reminder" that Google's PageRank system punishes sites that sell "links" or "advertorial pages" that pass along an impact on PageRank. After reading it, it actually sent us in a bit of a scramble, because while we're pretty careful about these things, and have no desire to help others boost their PageRank, we suddenly got worried that even some of our fully disclosed and clearly labelled advertising/sponsorship partnerships might technically run afoul of the rule. After reading through a bunch of documentation, we're pretty confident that we're in the clear, but not entirely sure.
Apparently, we're not the only ones. Among those who have been found to be violating Google's stated polices is Google itself. SearchEngineLand has a pretty detailed expose of a variety of ways in which Google appears to violate their stated rules, and also notes that its own site might also accidentally violate the rules in a few places. At that point, you have to wonder if the rules themselves really make sense.
I'm sure that the rules are intended for all the right reasons: no one wants someone to pay to impact search results. But blanket statements about some of these things can get pretty tricky, pretty fast. Google, for its part, insists that it is reviewing its own violations, and the webspam team won't treat its own divisions any different than anyone else. And, in fact, we've seen Google punish itself for similar violations in the past. But the bigger issue is that rather than just showing that it doesn't have a double standard for itself, wouldn't it be better to realize that perhaps the rules aren't as clear cut as some would want them to be, and that perhaps there are better ways to tackle this particular problem?
It's almost that time of year again, when many of us lesser beings will gather together to watch super-human men on all manner of PEDs and deer antler urine sprays smack each other around while an oblong leather ball sits somewhere in the background. We'll leap for the pizza and chili like salmon during mating season while, between whistles, obligatory commercials with Avatar-like production budgets glow at us. That's right sports fans, it's [editor redacted] time!
Wait, hey! What the hell? I said it's [editor redacted] time! Oh, come on. I can't say [editor redacted]? Fine, what about a euphemism, like [editor redacted]? No, can't say that either? Maybe [editor redacted]? Damn it, this is stupid. I'm talking about something that rhymes with "Pooper Hole" (heh, got you, editor!).
Fortunately for our entertainment sensibilities, Samsung decided this year to combine a distaste for trademark stupidity and our concept of advertising being content in this gem of a spot.
Pictured: million dollar passive aggression
Yes, Samsung has decided to do a game-that-shan't-be-named commercial making fun of how the NFL is overly aggressive with their trademarks. I'd call Seth Rogen and Paul Rudd's delivery "brilliant", but that'd be like referring to Natalie Portman as "mildly attractive", and even I have some damned sense, people. The NFL likes to toss around a great deal of words and pretend like they're true even when they're not, especially when it comes to trademarks. This spot uses the absurdity of it all to highlight how aggressive they are. Maybe it will even open up an eye or two to the silliness of the ever-growing permission culture.
