Back in November, we wrote about a rather bizarre patent lawsuit filed against Google. It concerned a patent held by a professor at Northeastern, named Kenneth Backlawski, and had to do with doing searches across a distributed database. The key point was that Backlawski himself didn't even think that Google infringed on the patent (which had been granted years earlier) until a patent attorney told him he should sue over it -- and even then it took two and a half years to actually find a patent attorney who thought the patent was worth suing over. Google has now struck back, claiming that the patent is clearly invalid and even if it was valid, the company isn't infringing. It also claims that Backlawski didn't file the suit in a timely manner, invoking the doctrine of laches, which is used occasionally in patent disputes, but is far from common. Basically, Google is throwing everything in the book at this patent. Once again, this is a clear example of how the patent system was not supposed to work. No one is accusing Google of "stealing" this idea or benefiting from the work done by Backlawski. The fact that Backlawski himself didn't even realize that Google potentially infringed on his patent is quite telling. It is clearly a case of someone trying to squeeze money out of a successful company, using a patent as the weapon of choice.

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Obviously trying to deflate a possible Apple announcement about movie rentals, Netflix has announced a service for unlimited movie downloads that lets its customers stream as many shows as they can watch to their PCs. Netflix has been testing this 'unlimited' offering for a few months with its new subscribers -- and it's not exactly surprising that Netflix would have to offer an all-you-can-eat plan at some point, given its existing DVD-based service plans. But Netflix is still playing with the term 'unlimited' in that the downloaded movies are streaming, so presumably, unlimited actually means something more like "up to 744 hours of video" in a month with 31 days (if you don't stop to sleep or eat).

More interestingly, though, is that this announcement places Netflix firmly in the movie downloads business. Mailing DVDs will clearly remain part of Netflix for quite some time due to the lack of broadband penetration for many US customers, but the increasing costs of shipping physical media will likely doom that business. So now the questions of how to handle the distribution of digital data will really become a mainstream issue -- and a serious business test for Netflix. Will the delivery of streaming movies be hampered by the likes of Comcast and ISPs who compete with their own movie downloading services? Does the iTunes pay-per-title model make more sense than a subscription plan? Netflix faces a number of large competitors, as well as pirating consumers. On the upside, however, there is also potential to expand internationally if Netflix doesn't rely on the USPS.

Netflix is trying a few different tactics to support downloading, but its real threats may be the copyright holders who could giveth and taketh away the shows and movies. With around 6,000 titles available for streaming from Netflix, that's only around a year of straight watching if you actually wanted to watch everything -- and didn't need to sleep.

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All too often, we're seeing the DMCA abused by people who aren't using it to takedown copyright infringing materials, but to shut down sites they don't like. The latest example involves some filmmakers and a movie review site. The review certainly was not particularly positive, leading to a rather random series of complaints and threats against its author. While we won't get into the claims of libel and defamation, which go into an entirely separate arena, the fact is that the filmmakers are using the DMCA to try to get the site taken down completely, bringing up all sorts of claims in the DMCA notice. It's difficult to see how a review of a movie can infringe on the copyrights of that movie unless it was showing the movie itself (which does not appear to be the case). It's worth pointing out that a DMCA takedown notice is only supposed to be for copyright infringing material, so including charges of libel and defamation in the takedown seem rather unnecessary. Even more amusingly, though, the takedown notice includes a bunch of random charges that aren't actually illegal, such as: "linking to other websites without any authorization to do so." In fact, the whole thing is so over-the-top, you have to wonder if it's simply part of an attempt to use the Streisand Effect to drum up some publicity for the movie.

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With increased home connectivity and gas prices on the rise, telecommuting has grown in popularity. But, a recent study warns that organizations with high numbers of telecommuters can damage traditional workers' job satisfaction. The study, published by RPI management professor, Timothy Golden, found a correlation between the number of teleworkers in the office and lower job satisfaction in non-teleworkers. Perhaps a better explanation would be that the non-teleworkers feel like they're being treated unfairly. Although studies have shown that telecommuters are happier and less stressed, the happiness actually comes not from the telecommuting itself, but from the higher flexibility and autonomy afforded by telecommuting policies. By not chaining workers to a desk for 8 hours a day (which has also been shown to stifle productivity), employees are afforded the flexibility they need to mold their job around their busy lives, and not the other way around. Golden does realizes this fact in his report, so instead of making the telecommuters feel "special," he recommends that telecommuting be approached at an organizational level rather than a case-by-case basis. Whether or not your desk sits in your house, at the office, or both, it is not the location of the desk that is important, but rather the flexibility to choose when and where you sit.

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It was quite predictable that as the recording industry finally realized that DRM was a bad idea that it would move on to digital watermarking. The idea sounds appealing. It doesn't have the feature that people hate about DRM: preventing you from doing what you want with the music you've purchased -- but it does have a number of other downsides. First, it tends to degrade the quality of the audio. Second, it's often relatively easy to remove the watermark, making it effectively useless. Third, if watermarks are used to link a specific file to a specific user (which the industry insists it isn't doing... yet), it suddenly becomes a huge liability just to have those music files. Imagine if you lose your iPod full of watermarked tracks, and all of those tracks find their way onto file sharing sites? Even more importantly, the whole concept of watermarking is counterproductive to what music files should be about. If the industry were smart and understood the basic economics of what was happening, they'd want people to be sharing music. They should want people to be their biggest (free!) promoters of music. They should want people to be spreading the music of their musicians as a way to get the word out. The whole concept of watermarking goes against that very idea. It's more backwards thinking from an industry that is more focused on protecting an old way of doing business, rather than recognizing the opportunities of a new way of doing business.

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Following last week's New Hampshire primary, I've been besieged by people pushing stories suggesting massive problems with Diebold/Premiere's optical scan machines. It's well-documented that the machines have poor security and can be hacked, but it's a big leap to go from "can" to "were." And while some point to discrepancies in the vote tallies in places that used the Diebold counters and places that hand counted, a more thorough look at the numbers doesn't suggest anything nefarious. However, the really key point is that, thanks to years of doubletalk from e-voting vendors, as well as story after story after story about e-voting insecurities -- which none of the major vendors took seriously -- we've now reached a point where many people's natural conclusion is that these insecure machines were at fault. This is an issue that could have easily been solved years ago if the folks at Diebold/Premiere, ES&S, and Sequoia hadn't acted like e-voting security was a private matter, rather than a matter of national interest. If they had recognized that their own business prospects would be much stronger if the populace actually trusted their machines, perhaps they would have actually responded to security concerns, rather than laughing them off or denying them entirely. So while there may not have actually been any security problems with the voting machines last week, it's Diebold's fault that so many people think it's plausible.

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If you haven't yet read John Hockenberry's fascinating piece in the current issue of Technology Review, you ought to. Hockenberry was a longtime correspondent for Dateline NBC and went from there to the MIT Media Lab. It's hard to think of anyone more qualified to assess the news industry's relationship to new technology. And although the article does eventually devolve into (juicy) carping about his former employer, prior to that point Hockenberry's analysis of the media's failure to meaningfully embrace online technology is incisive.

But Hockenberry also makes this more general point:

Networks are built on the assumption that audience size is what matters most. Content is secondary; it exists to attract passive viewers who will sit still for advertisements. For a while, that assumption served the industry well. But the TV news business has been blind to the revolution that made the viewer blink: the digital organization of communities that are anything but passive. Traditional market-driven media always attempt to treat devices, audiences, and content as bulk commodities, while users instead view all three as ways of creating and maintaining smaller-scale communities. As users acquire the means of producing and distributing content, the authority and profit potential of large traditional networks are directly challenged.

By now everyone is familiar with the "Long Tail" concept, which, among other things, points out that information technology makes niche communities and products viable at a much more specialized scale than was previously possible. It's fairly well accepted that this focus on niche products may decrease the profitability of the mainstream hits found to the left of the long tail (see here for a good example).

But Hockenberry's observation makes obvious a point that's often neglected: that the shift in cultural attention that comes with the long tail may be closer to zero sum than we might imagine. It's not just that the network allows niche communities to proliferate; people also value those precisely-targeted communities more than they value media experiences designed for a general audience.

With this in mind it's a little easier to excuse the lame online efforts cited by Hockenberry. A broadcast network like NBC is fundamentally designed to produce at most a handful of signals, each as broadly appealing as possible. There's just no way to retrofit such a system into something that can compete with the endlessly precise intimacy of online communities. Sure, NBC may have missed some opportunities. But it's hard to believe that any of them would have stopped the inevitable diminution of mass media's importance to the average person.

Tom Lee is an expert at the Techdirt Insight Community. To get insight and analysis from Tom Lee and other experts on challenges your company faces, click here.

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Pepsi did a big promotion with Apple a few years back to give away iTunes songs, and the latest news is that Pepsi has crossed over to the other side and will be doing a similar promotion with Amazon.com offering free DRM-free downloads from all the big labels... except Universal Music. This story actually demonstrates two important points. First, the fact that the labels themselves apparently are pushing this as an alternative to doing the iTunes promotion, shows how some of the bizarre industry logic has twisted things around. The major labels were originally the ones who were totally adamant that iTunes needed to carry DRM, which actually is part of what made Apple so powerful in the first place -- creating tons of lock-in among customers who wouldn't switch to another provider. However, that is coming back to haunt Apple, as the labels are more reluctant to allow it to also offer DRM-free tracks. No doubt, Steve Jobs recognized this fact a year ago when he called for the labels to drop DRM.

A second, perhaps more important point, is that this once again shows that there clearly are business models surrounding "free" music. One of the points that we've tried to make when people claim that there's simply no incentive for anyone to create music if the customer is getting it free is that there's always going to be incentive for someone to pay for the music in some form or another. In this case, it's Amazon and Pepsi who are paying for the music itself ($0.40/track) recognizing that giving away that music for free helps both of them promote their own businesses. In other words, the music is acting as a resource to make their own business models more valuable. I think I've heard that idea mentioned before somewhere. Of course, that doesn't mean the record labels have figured this out. And, it's especially not surprising that Doug Morris has refused to let Universal Music go along with this, as he's already made clear that he doesn't believe in the concept of promotional goods, no matter how much damage it might actually be doing to musicians under the Universal Music umbrella.

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Every few months someone has to put up some scary news article about something horrible that's putting our children at risk. Sometimes it's video games. Sometimes it's the internet. Sometimes it's social networks. CNN is the latest to join the pack with an article going a bit overboard on how mobile phones are providing a "secret path" for teachers to prey on your kids. It's based on some recent stories of teachers who had affairs with students, which they covered up via messages on their mobile phones. Is this happening that widely? Who knows? Are there any stats to show that this is a major problem? Stats? Who needs stats when we have a few scary anecdotes! Instead, you just tell the story, and then say, matter-of-factly: "Now, teachers have weeks, months and years to secretly undermine a child's parents and get a student to go along with sexual contact." Actually, that doesn't sound like it's mobile phones that are the problem, but teachers! I say we ban them all.

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While much of the attention paid to the RIAA's case against Jeffrey Howell has been on the incorrect assertion that the RIAA was claiming Howell infringed simply for ripping his own CDs, what the RIAA is actually claiming is still quite questionable. What it was really claiming was that simply by putting any files (ripped or downloaded) into a shared folder, he was infringing. This is the same "making available" theory that the RIAA has been pushing for quite some time -- despite having courts clearly say that making available is not infringement. Of course, by constantly pushing this point in case after case (and usually losing), the RIAA has found a few judges who agree -- though, it almost always comes in cases where the defendant is acting as his or her own lawyer, rather than having a real lawyer defend the case. The key question is what part actually constitutes infringement. Is it actually having the copy made, or just offering the file up? With most courts agreeing that the actual act of making the copy has to occur, the EFF has filed an amicus brief in the Howell case, notifying the judge of all the various cases where "making available" has been rejected as being infringement.

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