Another pretty quiet week, but with the NPD US November video games sales figures being leaked out in a timely fashion, I was able to get the analysis up. The big surprises were how well the Xbox 360 did (up 68% from the same time last year!), and how poorly the Wii *didn't* do (up 1% from last year, much better than the usual 30+% decline in previous months). The PS3 continues the trend in recent months of year-on-year declines, which is mostly due to the post Slim/price cut bump from last year, but it's still somewhat of a concern that the PS3 didn't even manage to sell half as many units in November as the Wii. And with Kinect being a bigger hit than Move, and with Blu-ray players being dirt cheap these days, Sony may have to re-evaluate pricing to spur sales. Speaking of Kinect, I managed to buy one this week. I haven't had much time to play with it yet (especially on the PC), but I can see the potential and the appeal (for casual gamers in particular), although the space requirement thing is kind of annoying. Let's get started with the news roundup.

In copyright news, more bad news for the US Copyright Group, as they had to drop 97% of the unnamed defendants in their "Far Cry" lawsuit.

The judge in the case ruled that due to jurisdiction reasons, most of the defendants had to be removed from the case, and so now, only 140 remain. The USCG has previously said that this wouldn't hurt their business, as they had always planned to do it this way, but with having to respect jurisdiction and having to file multiple lawsuits all over the place, the USCG's business case may have been damaged. These mass lawsuits rely on defendants paying up quickly, and so all these extra court procedures may very well be expenses that eventually make these lawsuits unprofitable.

The other famous mass copyright lawsuit law firm at the moment is Righthaven, doing the exact same thing but for posted newspaper articles. Even though they've had even less success than USCG, and have had to backtrack a few times when they sued the wrong high profile target, they're not giving up and have instead picked an even larger target this time – The Drudge Report. Righthaven is suing Matt Drudge and both drudgereport.com and DrudgeReportArchives.com for using images owned by The Denver Post, the latest newspaper to join the Righthaven stables. Righthaven is demanding Matt Drudge hand over these two domain names to them so the serious copyright abuse (of using one single image owned by The Denver Post) can be stopped post haste. According to my own estimates, the drudge.com domain name is worth about $7.8m alone (just the domain name, not the content), so I guess that's how much Righthaven thinks a single image is worth. Of course, picking on such a high profile target has its own problems, and although it will get Righthaven in the news, it could also backfire if the Drudge Report mount a legal defence instead of just paying the settlement fee, which appears to be the case.

But still, $7.8m for a single image may seem like a lot even when you compare that to the insane damage amounts being handed out for MP3 downloads. The most famous MP3 download case of all, you know the one, has had some development this week too, with Jammie Thomas-Rassett's lawyers asking the damages, of $62,500 per song, to be reduced to $0 per song. Yep, I can really see the RIAA agreeing to this latest demand. But Thomas-Rassett's lawyers do have a point in saying that the RIAA has not proved the financial damage being done by their client's actions, but with the current copyright laws and statutory damages, the RIAA does not need to prove actual damages,which I think is really unfair. I can see the value of statutory and punitive damages in commercial copyright cases, in which sometimes it is difficult to proof actual damages, but when you're suing students, single mothers and other net users, I just don't think it is appropriate. And judges don't think it's appropriate either, which is why the Thomas-Rassett case is still unresolved in terms of damages. The thing is, if the RIAA is trying to use this case to scare off other downloaders, it's not exactly working is it? And I think the laws needs to be updated so that a fairer punishment can be handed out. $50 per song, for a song that costs $0.99 to download (but one must also consider uploads in cases such as these), should be more than enough. It certainly shouldn't be $62,500, and such large amounts should remain for commercial cases only, such as when a TV network broadcasts a song without permission.

The RIAA's answer to this is three-strikes, or something like it. Strategically, it makes sense to keep pursuing Thomas-Rassett, keep on getting awarded huge damages, and they too can use it as example of how the current copyright laws do not work. But the change they want will be to their own benefit, so that it would make it easier to sue and suspend downloaders, and lawmakers may just make this dream a reality via Three-Strikes. But before the music industry seeks government cooperation, they'll do a bit of ISP threatening to get them to adopt Three-Strikes "willingly", and it appears this strategy is working, at least in Ireland. Eircom has agreed to the Irish music industry's demand for Three-Strikes, and will begin to ban users from their network after spying on their downloading activities and detecting anything the music industry finds offensive. And to stop the mass exodus of users to other ISPs that don't spy on their paying customers, Eircom and the music industry has come up with some sweetners, such as unlimited music streaming and cheaper music downloads. Of course, if they really believe that music streaming and discounted music downloads can help people move on from piracy, they should have just offered this, without three-strikes, in the first place.

I've talked a lot of nonsense in the copyright section of the WNR in the last couple of years (yes, it really has been that long!). But I think if I had to sum up my opinion on web anti-piracy, it would this: be pragmatic! It's clear that the technological solutions, namely DRM, has failed. Whether it's Blu-ray releases like Avatar that come with "enhanced" anti-piracy solutions, or the latest Ubisoft game – the only disruption these new DRM measures usually cause is to legitimate buyers, with pirates still easily able to pirate the content (and without the pesky annoyances brought on by DRM, and so pirates are actually getting a better product thanks to the use of DRM by publishers). One news I found interesting this week was that pirates have found a way to pirate 3D movie screenings at the cinemas, using a special lens on video cameras. If pirates are going to this length to pirate a movie, I just don't think there are any technical solution to piracy, nothing that can't be bypassed, hacked or simply ignored.

The legal solutions, like the mass lawsuits or Three-Strikes either have no intention in stopping piracy (only to monetize it), or will only push people towards piracy solutions that cannot be tracked, and that means they don't work either. So why not be pragmatic, and seek a real solution, instead of band-aids or measures that will only give the industry a false sense of security, and at the same time, cause massive collateral damage in terms of consumer and civil rights.

But the industry is obsessed with doing things the wrong way, and with all the powers granted to them by governments, they are getting more and more belligerent. The MPAA's latest demand is for Universities to crack down on students downloading movies, or face the possibility of losing federal funding, following the RIAA's footsteps in making similar threats. But they could only make this threat if they can back up their threat, and unfortunately, they can, via the Higher Education Opportunity Act of 2008. So the RIAA/MPAA have gone to a lot of trouble, a lot of money spent on lobbying, to get the act passed, and this act forces Universities to divert funding away from education, and towards deploying anti-piracy tech, and what has it all achieved? This is what I mean about being pragmatic, because I don't think this "solution" solves any problems. College students downloading movies may be stopped (or maybe they'll just use their own personal Internet accounts to do so), but how much money has that made for the RIAA/MPAA? Will these students, many of whom have trouble paying their tuition fees, all suddenly stop downloading pirated content and start paying for everything? And all of this "result" after millions and millions of dollars, was it worth it? And is it really worth it to endanger the education of tomorrow's workforce so that the RIAA/MPAA can chalk up another "theoretical" victory, which gains them little, if any, actual benefit? It is really worth it?

And to round off the copyright news, LimeWire is shutting down again, but this time, it's the legal part of LimeWire. It was originally set up to appease the music industry and to transition LimeWire to a legal service, but it looks like it failed to achieve either of its objectives. The service will shut on at the end of the year.

In HD/3D news, not much going on really. I suppose I should cover the fact that Blu-ray has just had its best Black Friday sales yet.

$83 million dollars worth of Blu-ray movies were purchased during the Black Friday sales week. This in itself is not a record, and "only" represented a 20% increase on last year's Black Friday results, but what was more impressive was the market share, which traditionally favours DVDs during this period (due to aggressive discounting). This year, Blu-ray's market share was 16.82%, an improvement on last year's 12.33%. It seems that the aggressive Blu-ray pricing has had an effect.

The next few weeks will generally favour Blu-ray as well, so while Blu-ray growth has slowed a bit, it is at least growing, which cannot be said of DVDs. The economy, Blu-ray, and downloads are all taking market share away from DVDs, so its decline isn't too surprising either.

And on a personal note, the Blu-ray's I picked up during Amazon's Black Friday sales arrived this week. This is why I prefer to shop from Amazon: not only did they upgrade shipping from standard to express at no charge (the item arrived from the US to Australia in only 4 days, and one of those days was a customs delay), they didn't even make a fuss about it – I only found on when they sent me the "dispatched" email with the shipping details and tracking option, which is normally not available with standard shipping. This contrasts to an experience I had with an Australian online store this week. I purchased Kinect Sports from Big W as part of their online sales at the end of November. My credit card charged immediately. But having not heard anything about the order, and with their online order tracking system down, I emailed customer service. I only received a response a day later, and was told that in fact, my order had not gone through due to an IT problem, and that instead of resolving this and sending out my item, they had simply cancelled it. My credit card has yet to be refunded! And the worst part is that I could have picked this title up for even cheaper just a few days after my original order, but I chose to stick with Big W since I thought, wrongly, that my order had already been processed and dispatched. Was I angry? Well, put it this way, it's unlikely that I would shop at Big W ever again, online or in store. Not if I have a choice.

Not much to say in gaming, nothing that I haven't already covered in the NPD analysis anyway, so I'll skip it for this edition. Although I will add that the NPD analysis focuses on US sales only, and the global picture, especially in Japan, is actually very different, with the PS3 outperforming the Xbox 360 and the Wii quite consistently. Global sales wise, the PS3 has nearly caught up, or has already caught up, to Xbox 360 sales, whereas in the US, the Xbox 360 still has a 1.6:1 advantage over the PS3. But if Kinect is the next big thing, or really just the next Wii, then even global sales may start to reflect the Xbox 360 dominance, because finally, we have a console that can do almost any kind of games – from the hard core, to the casual. The only thing it doesn't do is Blu-ray, but with standalones so cheap these days, the PS3's advantage in this area is diminishing, especially since multi-platform games aren't really taking advantage of the space offered by Blu-ray, and the PS3 version is often worse than the Xbox 360 version, due to the more difficult time devs have with PS3 development.

And this "PS3 is harder to develop for" isn't just a myth, or can be attributed to lazy programmers. I've heard this personally, and constantly, from people working in the industry, and it seems the main issue is the whole hardware architecture of the PS3, which will always makes it more difficult to develop for than the Xbox 360 – even doing the same things on the PS3 takes a lot longer than on the Xbox 360, and so while developers may be able to do more with the PS3, time constraints means that they end up doing less (or just the minimum required to get the game running at the desired FPS). It seems Microsoft, being primarily a software company, did a lot of work to ensure the Xbox 360 was easier to programme for, while Sony, being primarily a hardware company, made a superior piece of kit. So it's no surprise, really.

Okay, no more writing. Head hurt. Want Fallout gaming. NOW! See you next week.

Damn it. November went by and I didn't even get to mention that it was the 'penultimate' month of 2010. I love to use the word 'penultimate', and so you can imagine how disappointed I am. There's a surprising amount of news this week. Surprising because I still managed to play something like 25 hours of Fallout New Vegas, so I don't know how I managed to find the will to quit the game and search for news. So let's get started …

… with Copyright news. The cracks are starting to appear in the US Copyright Group's attempt to monetize anti-piracy, and they're bringing out the kitchen sink to stop anyone getting into their way.

Document lawyer Graham Syfert is just the latest to try and stop the USCG mass lawsuits, and he did it by producing and selling self-help documents and selling them to those that have been sued. These documents can be used to keep the USCG busy, in the hope that they will eventually drop the case because it's just not worth the trouble. The documents can be purchased for as little as $9.95, but according to the USCG, it's costing them thousands. Which is why the USCG has just sued Syfert. Apparently, it's only okay for the USCG to make money off anti-piracy, and anyone getting in their way is a bad person. Syfert, being a lawyer himself, has fired back claiming that the USCG's actions are "completely insane". And if that wasn't bad enough for the USCG, they are now facing a class action lawsuit filed by one of the defendants of their 'Far Cry' case. The class action alleges "fraud, extortion and abuse" on the part of the USCG. I've always been told that the US is a particularly litigious country, and so I guess the USCG should have expected something like this to happen. And it's interesting to note, that apart from some porn lawsuits, there aren't too many other law firms taking up the anti-piracy settlement business, at least not many that are high profile. Perhaps they're all waiting around to see what becomes of USCG's business model, whether it is workable at all. Which is more reason to hope that USCG fails completely to monetize, so it puts an end to this sort of thing. And hopefully with the porn lawsuits, someone will step up and also claim "fraud, extortion and abuse", particularly the extortion bit, because threatening to make public one's sexual habits does seem a bit extortionate.

The fallout from the recent Homeland Security domain seizures, and the threat looming from the controversial Combating Online Infringement and Counterfeits Act (COICA), it seems that BitTorrent websites are taking pre-emptive action to protect themselves. Which is why this week, private BitTorrent tracker Demonoid has decided to move away from its .com roots, and instead move to .me, to counter the threat of having their domain seized by US authorities (who have jurisdiction over .com domain names, I suppose). Several private DNS systems have also been set up recently, in case COICA becomes law and thus giving the US government the ability to tamper with the Internet's domain name system. This fracture into a public (both censored and uncensored) and private Internet is exactly what academics and engineers have warned about when they first heard about COICA. And it also again shows that even with the risk of catastrophic damage to the Internet as we know it, the actual effect of COICA in stopping piracy is negligible, because people can simply switch their DNS to an offshore one, and continue to access all the websites the US government doesn't want you to look at.

Viacom is eager to get back to court so they can lose again to Google/YouTube, as they filed their appeal against the June decision which say their copyright lawsuit thrown out of court. More money wasted instead of pursuing innovation, but I guess the lawyers will be happy. In totally unrelated news, Google is beefing up its anti-piracy credentials by buying DRM firm Widevine, as well as implementing several features on their websites that will make it about 2.3% harder to find pirated stuff on the Internet. The first major change is to remove piracy related keywords, such as "torrent", from auto-complete suggestions (so that when you search for "Megamind", the phrase "Megamind torrent" isn't a recommended search term, and only maybe shows up if you type the first few letters of "torrent"). This adds keywords such as "torrent", or maybe even "free download", to the list of naughty words such as "lesbian" that Google keeps out of the recommendation list. I'm sure this will make the entertainment industry slightly happier, although it makes absolutely no difference to those actually searching for torrents (because, what, if Google doesn't suggest it, people are going to stop searching for it?). I'm sure the entertainment industry will be a lot happier if Google actually blocked displaying results for bad keywords, but that would be censorship of the worst kind and would go against everything democracy stands for, which just makes the entertainment industry want it even more. And the idea that "torrent" automatically means piracy should be challenged as well, and unless Google's system is clever enough to distinguish between legal and illegal torrents, then searches like "Windows Vista Service Pack 2 Torrent" will be blocked too from auto-complete recommendations.

And I guess people searching for what about keywords such as "rapidshare"? There are still lots of people searching for "Windows 7 activated rapidshare" (it's the third post popular recommendation), should that be blocked too? I mention Rapidshare because I wanted to segue into the news about Rapidshare being ordered by a German court to pay eBook publishers a hefty 150,000 Euros fine for not successfully blocking out pirated eBooks from being uploaded and downloaded, as ordered by the court back in February. I guess it's only fair that Rapidshare do make an effort to block these downloads after a court order and everything, and if every publisher wanted to get their content blocked, then they should also go an get a court order. Of course, filtering is never really foolproof, and so the court should take this into account too. After all, it's the users of Rapidshare that's committing the real crime here, and if Rapidshare did their best to prevent it (even if their best does not match up to the content owner's expectations), then they should not be found guilty. This is basically why Viacom lost its lawsuit against YouTube.

And in this week's "Oh no, what has Sony done now" section, Sony's latest SNAFU is to demand music that it doesn't own to be removed, despite the fact that it was uploaded by an artist belong to a competing studio. This "innocent mistake", or so Sony claims, even went as far as Sony lawyers writing to Mediafire and getting them to remove the uploaded home demos, although they did eventually write back to say "never mind". Now this is but one, fairly high profile, mistake. How many other lower profile mistakes have been made by Sony, and other labels and studios in their anti-piracy hunt? And should they not double check that they actually have the legal right to sent off legal threats? But I guess if banks can foreclose houses they don't even own, anything could happen I suppose.

And Ubisoft is back with another form of annoying DRM, but this time I can see the funny side of it. Those that pirated Ubisoft's new Michael Jackson game on the DS will find that all of the music have been replaced with annoying vuvuzelas sounds.

In HD/3D news, regular readers of my Blu-ray sales analysis (which also includes DVD sales figures) will have noted the year on year decline of DVD sales, which is pretty much the norm for most weeks.

And this drop in DVD sales has many in the industry worried, and many are blaming downloads and streaming content, the legal kind, for it. I guess the term "blame" is perhaps the wrong word to use, because this shift was always coming. Music is mostly sold via digital means these days, and with faster Internet connections and more generous bandwidth quotas, the same will be true of movies. For really high quality stuff, stuff that can't be downloaded easily, there's Blu-ray (which has recorded year on year growth). For everything else, downloads and streaming should suffice. And it will really take off once pricing because a bit more reasonable. In the article, there's a guy from the BBC that says that "long tail" is where the future is. And I think I touched on this in my TV Networks for the 21st Century blog post, basically the future may be one where people pay very little per download, but they download a lot more and from a vast library of titles where every TV show, programme, episode, is available to download 24/7 instantly. This is very much a "long tail" approach, as opposed to the more traditional approach where content owners rely on people downloading the latest and greatest in great numbers, while limiting access to their entire catalogue (mainly due to technical reasons, not exactly intentional). And the reason why DVD/Blu-ray has been a huge success (despite what Hollywood wants you to believe … the home video sell-through market basically didn't exist before DVDs), that's to allow people to access their old favourites. And many of Blu-ray's biggest hits have been classics, not new releases – like all the Disney animated classics, Sound of Music recently, classic TV shows – these all have done just as well, if not better combined, than a single new release. And with digital downloads and streaming, the access could be even greater, especially if delivered in an on-demand fashion. There aren't any technical hurdles any more to achieving this (at least for SD content), so the only reason why we're not able to select and watch any episode of The Fresh Prince of Bel-Air or Bewitched is more to do with other reasons (irrational fear of unauthorised copying, and also of fear of losing a grip on their existing, outdated, business model).

Also, I've been thinking about the 3D Blu-ray of Avatar and how it's selling for $400 or more. With no signs of a general release (director James Cameron's comments about "2 more years" is worrying), I wonder if this exclusive deal may actually do more damage than good. I'm sure Panasonic paid a lot of money for the exclusivity, but I think this move is actually driving people to consider piracy as an alternative to paying $400 for a single movie, and how will this hurt sales when it becomes available via general release? People have purchased 3D TVs in anticipation of Avatar really, and if the general release is not just around the corner, then expect 3D Blu-ray Avatar to be the most pirated Blu-ray movie of all time (even if it takes about a week to download).

And finally in gaming, I have bit the bullet and ordered Kinect. I've always wanted one to see what it can do, especially when the hardcore games arrive next year (and they will arrive), but in the end, it was all the crazy PC hacks that have been posted in the last couple of weeks. It makes me, as a software developer, want to get my hands on one as quickly as possible just to see what kind of things I can make Kinect do.

But it might be a while before my order arrives, because according to my local (as in Australia) wholesale sources, stock is a huge issue for Kinect at the moment. And a quick search online reveals pretty much the same thing, with most online stores (again, locally) out of stock of the sensor + Kinect adventures pack. This leaves buying Kinect as part of a new Xbox 360 bundle the only option for many. It is also sold out on Amazon.com as I type, with 4.5 stars average rating after 320+ reviews. Microsoft has revealed that 2.5 million Kinect units have been sold to customers in the first 25 days of release, which could have been even better had stock been more plentiful. Sony later countered with their own "sales" figures of 4.1 million since release (a bit more than a full month longer than Kinect), but it was later revealed that this figure is the number of units shipped to retailers, not the actual number sold to customers (cue thousands of web editors updating articles at the same time). Although the demand for the Move means the shipped to retailer and sold to customers number may not be that far apart, some of the 4.1 million units may be reserved (ie. stock held) for yet to commence December sales at the time of Sony's sales data, and so in any case, the two numbers cannot be compared without more information.

Michael Pachter of Wedbush Securities has revealed, based on access to NPD data, that his predicted "to customers" number for Move is about 2.5 million, the same as Kinect, although over more than double the time frame (since late September for Move, 25 days for Kinect). And of course, every Move controller sold is counted as a single unit, even if purchased by the same household for multiplayer (whereas Kinect has built in 2 player support). Without knowing the pairing rate of Move controllers to PS3s, there's no real way to compare to Kinect sales numbers. If the pairing rate is 1.5 Move controllers per PS3, for example, and taking into account that the Move has been released for twice as long as Kinect, then even taking the 4.1 million as total sold, Kinect is already twice 1.8 times more popular than Move. If the pairing rate was 2, then Kinect is 2.4 times more popular. If taking Pachter's estimates of 2.5 million sold through, then Kinect is 3 or 4 times more popular if the pairing rate is 1.5 or 2. If my maths is right. Which it usually isn't.

And some news outlets are incorrectly stating that the Sony numbers do not include PS Move sales not part of the standalone bundle (with PS Eye) or console bundles. The numbers, from what I can gather, do include it, it just doesn't include separate PS Eye and Navigation controller sales (the Navigation add-on is useless without the Move wand, and you can almost say the same thing about the PS Eye these days, given how poorly it was selling before Move arrived).

It's all quite confusing really, and I think Sony should have just kept their mouth shut unless they really did outsell the Kinect, which looks unlikely at this stage. The same wholesale source I mentioned earlier showed that the Move bundle still had plenty of stock, and more online stores had stock of them on my last search.

Okay, enough fanboi baiting for this week. Have a good one.

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3. Weekly Software Roundup

December 5, 2010	MkvConvert 1.4 Freeware
December 5, 2010	MeGUI 0.3.5.29 Freeware
December 5, 2010	Collectorz.com Movie Collector For Mac OS X 3.4.5
December 5, 2010	Submerge 1.9.4
December 5, 2010	ProgDVB 6.49.8 Freeware
December 4, 2010	MediaCoder 0.7.5 Build 4796 Freeware
December 4, 2010	ReClock DirectShow Filter 1.8.7.3 Freeware
December 4, 2010	PlayOn 3.0.34.1372
December 3, 2010	VideoStudio X3 SP2
December 3, 2010	Fraps 3.2.5
December 3, 2010	XBMC media center Dharma 10.0 RC2 Freeware
December 3, 2010	BluffTitler 8.1.0.3
December 3, 2010	3D Subtitler 1.0.06 Freeware
December 3, 2010	EncodeHD 1.2.224.0 Freeware
December 3, 2010	MPEG-VCR October 2010 Update
December 3, 2010	VDownloader 3.0.733
December 3, 2010	rebox.NET 1.0.0.0 Freeware
December 3, 2010	Cyberlink PowerDVD 10.0.2325
December 3, 2010	MC-TVConverter 1.4.1 Freeware
December 2, 2010	Miro 3.5.1 RC1 Freeware
December 2, 2010	AsfBin 1.8.1 Freeware
December 2, 2010	AVStoDVD 2.3.3 Freeware
December 2, 2010	Avanti 0.5.0 Freeware
December 1, 2010	EMDB 1.22 Freeware
December 1, 2010	doubleTwist 3.0 Freeware
December 1, 2010	Media Player Classic HomeCinema Edition 1.4.2747 Beta Freeware
December 1, 2010	XviD4PSP 6.0 Beta (30 Nov) Freeware
December 1, 2010	ConvertXtoDVD 4.1.8.344 pre-release
December 1, 2010	All My Movies 6.1 build 1305
December 1, 2010	WinMPG Video Convert 9.1.9
November 30, 2010	VidCoder 0.7.2 Freeware
November 30, 2010	DVDAuthorGUI 1.027 Freeware
November 30, 2010	J. River Media Center 15.0.159
November 30, 2010	BSplayer 2.57 Freeware
November 30, 2010	SolveigMM AVI Trimmer 2.0.1011.29 Beta Freeware
November 30, 2010	DVD slideshow GUI 0.9.4.0 Freeware
November 30, 2010	MediaPortal 1.1.2 Freeware
November 29, 2010	eXtreme Movie Manager 7.0.9.8
November 29, 2010	Mp3tag 2.47b Freeware