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Jeremy Jaynes, considered one of the biggest spammers in the US was sentenced to nine years in prison for violating a Virginia anti-spam law. As part of his appeal, Jaynes claimed that the anti-spam law itself was unconstitutional, as it violated his right to free speech. It would appear that argument hasn't worked out, as a somewhat divided Virginia Supreme Court has ruled against him, upholding the conviction. It does raise some interesting first amendment questions -- but most spamming activity involves so many other things that could be considered illegal (such as computer trespass, identity fraud, false advertising, etc., etc., etc.) that you would think spammers could be convicted on charges that have little to do with free speech issues.

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While a bunch of consumer groups have come out in favor of keeping the internet neutral, a bunch of civil rights groups are taking the opposing view. However, the reasoning is hard to follow, as it doesn't make very much sense: "The effective prioritization of P2P traffic would represent an altogether new type of 'back of the bus' second-class status for our speech on broadband networks -- and ought to be resoundingly rejected." Actually, it's the use of traffic management that would create a second-class status for some traffic. Preserving network neutrality does exactly the opposite -- making sure all packets are treated equally. What the groups seem to be saying -- incorrectly -- is that by not using traffic management, P2P traffic is prioritized. That's not true. It's treated equally with any other traffic.

It's completely fair to argue that treating all packets equally doesn't make sense -- as many have. However, to claim that treating all packets equally somehow makes some traffic "second-class" is an outright misrepresentation. No one denies (perhaps other than these civil rights groups) that traffic management is all about officially making certain kinds of traffic second-class. They just argue that this is necessary and reasonable. The filing by these civil rights groups is simply backwards.

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The Streisand Effect is getting a bit more coverage these days. After the Associated Press mentioned it the other day, I got to sit down and talk with Robert Siegel for today's "All Things Considered" where we discussed The Streisand Effect starting with the Wikileaks case and moving on to some other cases where the Effect clearly made an appearance. If this keeps up, maybe we can look forward to a day when lawyers think twice about trying to force perfectly legitimate content offline.

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We've been posting a ton of examples lately of authors giving away ebooks for free and seeing that it noticeably increases sales of their actual books. By this point, I'd think that such stories are old hat and don't need to be repeated. But if you look through the comments on some of our posts, you'll find people who insist that this doesn't work or that we haven't shown any examples. One commenter recently said that there's no proof that this works unless "50% of publishers adopt such a model." So, for the time being, here's yet another example, as pointed out by my colleague, Chris. SciFi author John Scalzi just participated in publisher Tor's recent effort to offer up free ebooks, and discovered an almost immediate boost in sales. He admits that there could be other factors involved, but tries to account for all of them, and concludes that it's almost definitely the free ebooks that are driving the noticeable increase. So, here we are. Yet another example of it working. How long until someone points out in the comments that this, too, is a special case? Just how many special cases do we need to show before people recognize that this model does work?

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The rather infamous Jack Thompson gained his fame by picking up various lawsuits that involved kids shooting people and trying to get them off by blaming the video game. Rather than admit guilt, he was attempting to keep murderers from getting convicted by saying that it was the video game that made them do it. It appears that others are now picking up on this tactic. Adam Thierer points us to a recent case where a lawyer isn't arguing that his client, a 24-year-old, didn't commit a murder. He's arguing that the guy thought he was playing a video game. This is a really weak way to try to get someone acquitted of murder -- and says quite a bit about the lawyers who would use this sort of defense. As the article notes, the actual evidence suggests that video games had nothing to do with the murder, and that it was an old-fashioned robbery attempt.

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A couple weeks after trying to shut down Wikileaks a federal judge in California, after hearing the various first amendment concerns realized that perhaps he was a bit hasty. He has now reversed the order, allowing the site to have its domain name back. So, after all of this, the site still remains up and millions more people now know that the Swiss bank Julius Baer tried to shut it down to hide various documents. The end result: not only is the disputed content still available, many more people have seen it. I assume that this was not quite how the bank's lawyers expected this situation to turn out.

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We've been discussing how patents can have a serious economic downside (as was recognized by Thomas Jefferson and James Madison as they designed the patent system). It appears that some researchers are trying to quantify just how much damage bad patents are doing to the economy. Against Monopoly points us to a blog post at Technological Innovation and Intellectual Property that discusses the results of a preliminary study (pdf file) that estimates a loss of $22.5 billion due to bad patents. The researchers admit that the findings are preliminary, but it does create an initial framework by which to look at the negative impact of bad patents on the economy. Among other things, the paper lists out the following ways that bad patents harm the economy:

• Cause consumers to absorb monopoly prices over "inventions" that were already effectively common knowledge
• Direct resources away from productive research and instead towards strategic accumulation of patents already filed over innovations already deployed
• Divert resources to "defensive patenting" or securing offensive "blocking patents
• Direct research away from areas of existing patents that should not have been granted
• Direct resources toward acquiring and enforcing substandard patents and collecting royalties rather than other more-productive fields of economic activity.

We've seen all of these in action lately. And, of course, this doesn't even get into how much is thrown away in legal resources to litigate patents and defend infringement claims on patents that should not have been granted. Also, it's worth noting that the TIIP blog post reminds us that the author's own book Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk comes out next month.

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The LA Times has a story about a Japanese man who has been wanted on charges of murder for over 25 years, who was finally arrested thanks to him tipping off authorities on his blog that he would be traveling to the US territory of Saipan. Kazuyoshi Miura is believed by US authorities to have killed his wife, while the pair were visiting the US in 1981. He was tried and convicted in Japan -- but the case was overturned. US authorities have been trying to arrest him ever since. Apparently, a few years back he set up a blog, and US police have been monitoring it to see if he would do something so silly as to mention the fact that he'd be traveling to a US territory -- which he actually did. So, just as a public service announcement: if you're a wanted fugitive in the US, perhaps don't announce on your blog that you'll be traveling there.

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My friend Reihan Salam has an interesting piece in Slate that nicely pulls together much of the discussion at Princeton's Computing in the Cloud workshop last month. He argues that web startups that have cultivated a squeaky-clean image start to have difficulties when they start trying to monetize all the traffic they've generated. The most obvious example is Facebook's Beacon fiasco. Reihan suggests that the "immaculate capitalism" of early-stage startups gives way to ordinary profit-seeking once companies face pressures to turn a profit. There's clearly something to this, but I think Reihan's time horizon might be a little bit too short. Keep in mind that even the mighty Google faced questions about its profitability as it stubbornly resisted the pay-for-placement schemes that many other search engines adopted. Google's refusal to compromise the quality of its search results for short-term profits helped it build market share, and it ultimately found non-disruptive ways to monetize all of those eyeballs. Facebook and Wesabe are much younger companies, and so it's not too surprising that they haven't found the right model for monetizing their users. Ultimately, their reputation with users is their most valuable asset, and so it's smart business to safeguard that reputation, even at the cost of foregoing some short-term business opportunities.

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

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It's a refrain we've been repeating year after year: patent examiners don't scale. While some patent system supporters continue to insist the only problem with the patent system is not enough examiners, that's simply incorrect. Thanks to the way the patent system has changed over the years, combined with the ever-increasing rate of technological change and advancement, the number of patent applications are only going to increase at a rather rapid rate -- far exceeding any attempt to hire out of the backlog. The Government Accountability Office has basically said as much, admitting that even if the USPTO could hire 1,200 new examiners each year over the next five years, the patent backlog would continue to increase.

The answer is clearly not to focus on hiring more patent examiners. The way the system is currently designed, this is not a problem you solve by hiring more people. You only solve this problem by reducing the number of patent applications. And, the only way to do that is to completely revamp the patent system itself. Don't think the current attempt at patent reform is the answer, either. While there are some good things in there, the proposal to switch from a "first to invent" system to a "first to file" system will make this problem worse. By using a "first to file" system, the incentive is to file as quickly as possible for any idea possible, to make sure you beat anyone else. A first to invent system at least gives the person some leeway to make sure that it's worth filing.

In the meantime, let's repeat it once more: patent examiners don't scale. If you design the patent system to expand at a rapid rate (which, thanks to the USPTO, the courts and Congress, we have...), then it's only natural that it will scale well beyond the reach of a system that requires humans to analyze each and every patent. The end result is that a lot of bad applications get approved, which only increases the problem, since more people try to patent bad concepts, knowing that they have a decent chance of getting it through the system.

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