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Awesome Stuff: Cool Product Designs

Mike Masnick — Sat, 18 May 2013 09:00:00 PDT

For this week's awesome stuff, we've got three different projects that just caught my eye for being different and interesting in a design sense.

I don't know about you, but I've had a few too many experiencing having to try to inflate an air mattress of some kind or another, and realizing what a freaking total pain it is using regular valves (not to mention the inevitable annoying emptying process as well). So I have to say that the Windcatcher project definitely piqued my curiosity. I don't understand the mechanism behind it, but it certainly looks like an air mattress that you can fill with 4 or 5 breaths -- and all without having to put your mouth on anything. It looks kind of like magic, so check out the video. These guys still have a bit of a way to go on the funding front, having raised only about a quarter of the $50,000 they're seeking, but the product definitely has that neat design factor going for it.
There's been something of a hipster revival in pinhole cameras lately, it seems, but the ONDU Pinhole cameras are definitely the nicest design I've ever seen. A nice wooden box with no exposed screws. A backplate that's held on by magnets. It just looks cool. Also, bonus points for the cool music in the video (apparently this is the musician. This project has already surged past its goals, so it's definitely going to get funded, and with another 25 days to go, it'll likely end up much, much higher.
Finally, there are times when someone designs something and you wonder why no one else has done it before -- or even why such things aren't common. That was the feeling I got after seeing the Nuplug, which is basically an extension cord/surge protector/outlet that attaches to furniture. So, rather than having your outlets on the wall and behind furniture, you can connect them in a more convenient way. Given how much stuff folks are charging all the time these days, I could definitely see how this could be handy for many people. The one thing holding me back on this one, frankly, is that it's a bit on the ugly side -- in that it really stands out. Seems like something a little more subtle would be cooler. Maybe future iterations. This one also has a pretty ambitious $75,000 goal, and they're only a little past halfway there with 18 days to go.

That's all for this week...

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Rice University Professor: SkyNET's Gonna Take Ur Jerbs!

Timothy Geigner — Fri, 17 May 2013 19:39:00 PDT

It's sad to note how collective humanity has done an ostrich on the warnings about the machines. Still the NFL exists, robbing us of our best and brightest, who will no longer be available for the coming war with SkyNET. Conferences on what to do about the surely coming robot horde have produced little in the way of a path forward and have gone relatively unreported in any case. Due to this, we know very little about what form the non-existent threat of terminator-like metal monsters will take. Will they simply wage war against us? Will they syphon our body heat for energy? Will they farm our skin and dance around in it to Goodbye Horses, like some kind of graphite Buffalo Bill?

Not according to Rice University professor Moshe Vardi, who claims that they have a far more terrifying plan in store: displacing the human workforce.

Pictured: A Rice University professor in the near future
Image source: CC BY 2.0

According to Vardi, sometime around the year 2045, you won't have a job any longer because the robots will have taken it away from you.

In recent writings, Vardi traces the evolution of the idea that artificial intelligence may one day surpass human intelligence, from Turing to Kurzweil, and considers the recent rate of progress. Although early predictions proved too aggressive, in the space of 15 years we’ve gone from Deep Blue beating Kasparov at chess to self-driving cars and Watson beating Jeopardy champs Ken Jennings and Brad Rutter. Extrapolating into the future, Vardi thinks it’s reasonable to believe intelligent machines may one day replace human workers almost entirely and in the process put millions out of work permanently.

Well, looking back through the history of technological progress, you can certainly see his point. And once you've seen that point, you can laugh at it. And once you've laughed at it, you can call his local police station and request that they remove any science fiction movies from his home by force, because he's clearly seen too many of them.

The problem with thinking that artificial intelligence is going to replace us in the workforce is two-fold. First, it cheaply ignores the impact every other form of technological progress has had thus far. Robots are used on assembly lines, yet there's no drastic net loss of jobs. When the automobile was invented, it isn't as though the buggy whip makers simply died off in unemployed starvation. There are other jobs to be had, most often created as a direct result of the advance in technology. Assembly line workers become machinists. Buggy whip makers go to work for the auto companies. There can be pain in the market in the short term as it is disrupted, but on a long enough timeline everything seems to even back out.

The second problem is the failure to recognize that people value some products and services provided by our fellow meat-sacks. Can auto-attendant systems handle phone duties? Sure, but there are tons of companies that specifically advertise the concept of customers being able to talk to a "real" person. Can machines make rugs? Yup, yet there's a huge market in hand-woven rugs out there. And the service industries rely heavily on personality. A machine might be able to serve me my beer at my local watering hole, but will it listen to me complain about my job if I'm having a crappy day? Will it be able to offer me an opinion on which wine is the best on the menu? And, as the article notes, what if any workforce disruption that does occur is desirable?

Perhaps in the future, while some of us work hard to build and program super-intelligent machines, others will work hard to entertain, theorize, philosophize, and make uniquely human creative works, maybe even pair with machines to accomplish these things. These may seem like niche careers for the few and talented. But at the beginning of the Industrial Revolution, jobs of the mind in general were niche careers.

I call dibs on being the new Socrates.

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Make Art, Not Law

Nina Paley — Fri, 17 May 2013 18:33:00 PDT

Crossposted from Questioncopyright.org

Photo by Ravi Swami, London UK

QCO Artist-in-Residence Nina Paley’s interview with at Baixa Cultura, conducted by email with journalist and photographer André Solnik. The English below is the original; Baixa Cultura translated Nina’s answers.

1. When your interest on free culture has begun?

For a long time I thought copyright terms were too long and the law could use reform, but I didn’t really understand Free Culture until October 2008, after months on the film festival circuit with my then-illegal feature Sita Sings the Blues. Free Culture was too audacious a concept for me to think about clearly until then. One morning I finally got it — freeing my work would be better for the work — and I spent the next half-year preparing for a Free, legal release of SSTB. That finally happened in March 2009, when I finally cleared all the necessary (and bullshit) licenses at a cost of about $70,000 to myself.

2. Tell me in short why artists should free their work. Is it a good choice for both renowned and new artists?

From my article How To Free Your Work:

Why should you Free your work? To make it as easy as possible for people to share your work — as easy as possible for your work to reach eyeballs and ears and minds — to reach an audience. And to make it as easy as possible for audience support — including money — to reach you…. Copy restrictionsplace a barrier between you, the artist, and most forms of support. By removing the barriers of copyright, you make it possible to receive money and other kinds of support from your audience, both directly and through distributors, thereby increasing your chances of success.

3. Creative Commons has recently released the final draft of the version 4.0 of its licenses. What changes would you like to see? Do you think CC should keep on supporting the nonfree licenses?

Yes, CC should stop supporting the non-free licenses. What kind of “commons” is that?

4. Although they are probably the most known alternatives to more restrictive ones, they still remain unpopular compared to the “all rights reserved“. Why is that? Do you reckon people get confused by the many possibilities given by the CC licenses?

Most people who use CC licenses don’t understand what the different licenses mean; they just call all of them “Creative Commons” as if that means anything. CC’s modular system was a good idea, I see it as an experiment that was worth doing. But the results are in: it didn’t work. What we have now are a mess of incompatible licenses, most of which fail to contribute to any real “commons,” and an increase of confusion and misinformation.

You can’t really blame Creative Commons though — the problem is copyright law. Nothing can fix it at this point. Even CC-0, a valorous attempt to opt out of copyright, doesn’t work in practice, as my experience with the Film Board of Canada showed — even after placing SSTB under CC-0, their lawyers refused to accept it was really Public Domain, and made me sign a release anyway, just to allow one of their filmmakers to refer to it. I will be saddled forever with permissions paperwork even with CC-0. I’ll probably keep using CC-0, of course, but I have no expectation it will work as it’s supposed to.

5. The BY-NC-SA license, although nonfree, it’s pretty popular. Why do you think so? What are the main issues about licensing a work using it?

People are high-minded when they choose the -NC restriction, but it accomplishes exactly the opposite of their ideals. They want to “protect” their works from abusive exploitation from big corporate players. They don’t realize those big corporate players LOVE the -NC clause, because it’s a commercial monopoly. Big corporate players are all set up to deal with commercial monopolies: they have licensing departments and lawyers. It’s the big corporate players who can afford to license your -NC works. It’s your peers, small players with no legal departments and limited resources, who can’t. The -NC clause screws over your fellow artists and small players, while favoring big corporations.

The way to avoid abusive exploitation is to use CC-BY-SA, a Share-Alike license without the -NC restriction. This allows your peers to use the work without fear, as long as they keep it Free-as-in-Freedom. Big corporate monopoly players, however, are unwilling to release anything Freely: if they want to use your work, they’ll have to negotiate a waiver of the -SA clause. For this they will pay money. It works like a regular licensing deal: for $X you waive the -SA restriction and allow them to re-use the work without contributing to the community. I have had many corporate licensors offer me such contracts, although I didn’t sign any because I was such a Free license booster.

The only reason BY-NC-SA is popular is because people really haven’t thought it through.

6. Money seems to be one of the main worries artists have when they hear someone saying “free your work“. Is this “fear“ justified? Have you recovered all the money spent in the making of Sita Sings the Blues?

No, this fear is not justified. But your question sure is biased: “Have you recovered all the money spent in the making of Sita Sings the Blues?” As if with copyright I would have! I have made more money with Freeing my work than I ever did with copyright restrictions. Period. Where do people get this idea that putting a © on something will magically generate money? It doesn’t. If it did, I would fully support copyright, and be rich. Copyright is a “right to exclude,” not a right to make money. You are free to make money without copyright, and you stand a better chance to as well.

7. You have recently announced that SSTB is now in the public domain. Although now you are finally free of burocracy envolving copyright stuff and this action could help your movie to have more visibility, on the other side it could favour restricted modifications of your work (e.g.: a book inspired by SSTB released under “all rights reserved“). How do you weigh these two sides?

Eh, honestly I just don’t care any more. Let’s just put it out there and see what happens. If something terrible happens because I shared freely, I’ll learn from that. But I think it’s stupid to worry about what other people do, and try to control it, especially with broken laws. Even Free Share-Alike licenses require copyright law to be enforced, and copyright law is hopelessly broken. I don’t want to validate or support it in any way.

Licenses are not going to fix our problems. What is fixing our problems is increasing numbers of people simply ignoring copyright altogether. Instead of trying to get people to pay more attention to the law, as CC does, I’d rather encourage them to ignore the law in favor of focusing on the art. Licenses are the wrong solution. Art is the solution. Make art not law.

8. Are you keen on the free software movement as well? Any of your works was made using free softwares?

I’m attending the 2013 Libre Graphics Meeting in Madrid this year, to discuss building a good Free vector animation tool I can actually use. More in this article, It’s 2013. Do You Know Where My Free Vector Animation Software Is?

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AP's Attempt At DRM'ing The News Shuts Down

Mike Masnick — Fri, 17 May 2013 17:27:00 PDT

Plenty of people rightly mocked the news a few years ago that the Associated Press was working on a plan to "DRM the news." The idea was to put some sort of licensing mechanism together to get news aggregators to pay to promote their news. This seemed incredibly dumb for a whole host of reasons. It added no value. Its only purpose was to limit the value for everyone in the system by putting a tollbooth where none needed to exist. When it finally launched last year to great fanfare in the newspaper world, under the name "NewsRight," we pointed out that, once again, it made no sense. Basically, the whole focus appeared to be on getting bloggers and aggregators to pay for a license they legally did not need.

Since the launch... we heard absolutely nothing about NewsRight. There was a launch, with its newspaper backers claiming it was some huge moment for newspapers, and then nothing.

Well, until now, when we find out that NewsRight quietly shut down. Apparently, among its many problems, many of the big name news organization that owned NewsRight wouldn't even include their own works as part of the "license" because they feared cannibalizing revenue from other sources. So, take legacy companies that are backwards looking, combine it with a licensing scheme based on no legal right, a lack of any actual added value and (finally) mix in players who are scared of cannibalizing some cash cow... and it adds up to an easy failure.

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DailyDirt: DIY Junk Food

Joyce Hung — Fri, 17 May 2013 17:00:00 PDT

Is it still junk food if you make it yourself? If you feel guilty about buying junk food and have lots of time on your hands, here are a few links that might inspire you to try recreating some popular snacks at home.

Here's a recipe for homemade Cheez-It crackers, which supposedly taste better than the store-bought version. By the time you're done making these, you'll wish that you had just gone to the store and bought a box of Cheez-Its. [url]
McDonald's Canada has revealed exactly how they make their fries, "from the farm to the fryer." If you've ever wondered whether their fries are made from real potatoes, the answer is yes. Their fries are cut from whole potatoes harvested from farms in New Brunswick, Alberta, and Manitoba. [url]
Read about one junk food enthusiast's attempts to recreate Twinkies, Hostess Cupcakes, Oreos, and Fritos. While some of the homemade versions were somewhat "healthier" calorie-wise, the general concensus was that there's just nothing like the real thing. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Suburban Express Goes Double Or Nothing On Their Aggressive Behavior

Timothy Geigner — Fri, 17 May 2013 15:40:00 PDT

Hopefully you recall the story of Suburban Express and its owner, admitted domain squatter Dennis Toeppen, but let me catch you up and let you know what's been going on since that post ran. Suburban Express is a bus company that caters to Midwest students traveling to and from Chicago. And by "caters" I apparently mean they make them sign contracts designed to extract unreasonable fines from their wallets and threaten lawsuits against them if they have anything less than glowing things to say about their experience online. While this has gone on for some time, a new spotlight was shown when one rider, Jeremy Leval, related on Reddit a tale of one of the company's drivers berating a customer for speaking less-than-perfect English. That customer happened to be an exchange student. Toeppen went nuclear on Reddit, threatened litigation via their corporate counsel, and also threatened the Reddit moderator. Once the story began to spread, the company was introduced to Ken "Popehat" White, at which point the tone of all their communications took an almost cartoonish turn towards congeniality. Suburban Express promised to drop their 100-plus lawsuits against customers, which they've done, and doesn't appear to have filed against the Reddit moderator. They were a bit too late, as the internet backlash led to someone defacing their website, but at least they learned a lesson in how to treat their customers, right?

Well, perhaps not entirely. See, Toeppen has chosen to show off his aptitude for pettiness online, and has actually decided to use the Suburban Express website to continue to publically go after Leval, with whom this all began.

Toeppen relaunched his online attacks against Leval, posting a page to Suburban Express' website that recounted the March 31 incident from Toeppen's point of view and calling Leval "nothing but a bullying, self-important brat." The page reiterated Toeppen's claim that Leval was trying to smear Suburban Express to help his own since-aborted plans for a student ride-sharing site, saying, "A blogger suggested that Leval may have been motivated to harass Suburban Express as a means of furthering his business interests."

Toeppen's post didn't end there. He also recounted a conversation that Leval and his girlfriend allegedly had with a driver from another transportation service. "On May 12, 2013, Jeremy Leval and his girlfriend interacted with an EAC driver at Armory around 2:50pm. Jeremy approached the driver and asked if he had heard of Suburban Express. Jeremy went on to boast that he is the guy who is causing Suburban Express lots of trouble. This makes [me] question Jeremy Leval's motivations. Is he a selfless individual fighting for the rights of the oppressed, or is he a self-promoting, troublemaking, attention-seeker?"

There's a couple of problems with this kind of response. First, note that none of this has anything to do with refuting the company's generally anti-customer behavior. Yes, Toeppen pushes back slightly on Leval's story, indicating that some kind of apology was made to the exchange student, by someone, somewhere, and at some time. Gee, wonderful. Nothing about suing their customers, however. Nothing about $100 fines for simply giving the driver the wrong ticket, calling such mistakes "ticket fraud."

Second, what difference does it make if Leval is proud of publically slapping around a company doing these kinds of things? Hell, I'd be proud of myself, too. There's no prohibition on enjoying doing good works. And the fact that Leval might (might!) be thinking of starting his own competing company is a complete non-issue relating to the facts. Again, what happened is what happened, regardless of Leval's future business endeavors.

And, finally, did Toeppen learn nothing from round one of this mess? Going after a former customer right on the company website is exactly the kind of behavior that got them into this mess to begin with. Business takes thick skin, even for those that aren't engaging in questionable behavior. I don't know what kind of profit Toeppen sees in using his company website in this manner, but I fear he's in for yet another lesson.

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Want To Destroy Any Hope Of Serious Cybersecurity? Give The DOJ Its Desired Backdoor Wiretaps On All Communications

Mike Masnick — Fri, 17 May 2013 14:34:00 PDT

The Obama administration has supposedly been "considering" the latest version of the DOJ's plan to require backdoor wiretapping abilities in any form of digital communication. If you don't recall, the FBI asks for this basically every year. The latest version would lead to fines for any company that doesn't build in a backdoor wiretapping ability. We've been pointing out for quite some time that putting in such backdoors only makes us all less safe, because those with malicious intent will find and use those backdoors.

A new report has been released, put together by some of the best known technologists and security experts out there, saying that the plan, as being considered would effectively undermine any cybersecurity regime. At a time when the administration and Congress keep insisting that we need better cybersecurity, to undermine it all with wiretapping backdoors would be ridiculous. And let's not even begin discussing how this would play out if it passed and number one CISPA backer Mike Rogers then became head of the FBI.

Among the report's authors are names you might recognize, like Ed Felten, Peter Neumann, Bruce Schneier and Phil Zimmerman. You can read the full report (pdf) to see all the details. As Ed Felten told the NY Times:

“It’s a single point in the system through which all of the content can be collected if they can manage to activate it,” said Edward W. Felten, a computer science professor at Princeton and one of the authors of the report... “That’s a security vulnerability waiting to happen, as if we needed more,” he said.

Once again, all of this suggests that the efforts around "cybersecurity" have always been more of a cover story to try to make it easier for law enforcement to access data, rather than any legitimate effort at improving security.

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Nintendo Exchanges Goodwill For Control; Issues Mass Monetization Claims On Let's Play Videos

Tim Cushing — Fri, 17 May 2013 13:34:00 PDT

Nintendo's history of aggressive IP enforcement is long and colorful and, occasionally, completely ridiculous. No one protects the brand quite as fiercely as Nintendo does, an unfortunate byproduct of its obsession with maintaining a clean, family-friendly image.

Its latest misadventure into "controlling all things Nintendo" was brought to our attention via a post to Reddit's r/games by a prolific creator of Let's Play videos, Zack Scott. For whatever reason, Nintendo is performing a "mass claiming" of Let's Play videos featuring its titles. Scott notes in his post that Machinima has seen these claims increasing exponentially recently, pointing towards this being an active move on Nintendo's part.

The speculation is now over. Nintendo has released a statement to Gamefront, which reads as follows.

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

For more information please visit http://www.youtube.com/yt/copyright/faq.html

A few observations on this statement:

1. In terms of the internet, the present will always be relegated to some distant point in the future for Nintendo. The fact that it took until three months ago for Nintendo to join forces with the world's largest video site is astounding. This is probably has something to do with Nintendo's recent shuttering of several Wii channels, many of which were underwhelming and ignored by a majority of its customers. (The "flagship" of the lineup -- the Nintendo channel -- was one of the worst, featuring haphazardly posted content that seemed to mistake throwing darts at a lineup for curation.)

2. Nintendo's self-consciously squeaky clean image? This IP grab is about that, too. Why else would a company that only recently decided YouTube might be a viable outlet use the phrase "shared... in appropriate and safe ways" to justify slapping ads on tons of pre-existing content uploaded by its customers and fans?

3. "...unlike other entertainment companies, we have chosen not to block people using our intellectual property." Good Guy Nintendo says No Blocking! While other "entertainment companies" have blocked thousands of videos, most video game companies don't. With the exception of Sega's promotional push for its new Shining Force title that took the form of widespread takedowns, most gaming companies take a more hands-off approach, realizing that Let's Play videos are a form of advertising that costs them nothing.

4. Nintendo passes the buck on its particular copyright "strategies" by directing readers to YouTube boilerplate. Weak.

Nintendo is well within their rights to monetize these videos and images. But, as anyone who's had experience with situations like this can tell you, being "within your rights" isn't the same thing as "right," either in the moral sense or in the "opposite of wrong" sense.

Nintendo can (and does) monetize gameplay videos using its IP. There are some valid arguments for fair use that can be applied here (Techdirt contributor E. Zachary Knight runs down a few over at Gamasutra), but when it comes to uploaders v. content companies, the algorithm tends to side with the YouTube partner and the registered content. Once Nintendo makes this monetization claim, there's very little the uploaders can do to fight it.

On the plus side, Nintendo isn't actually taking down videos. This means uploaders may lose the income (many uploaders have never attempted to monetize their uploads), but their accounts will remain strike-free. (Unfortunately, having several videos from the same account claimed by ContentID tends not to reflect well on the account holder and will probably be taken into consideration should other infringement issues arise.)

The money gained from applying pre-roll/post-roll ads to Let's Play videos is likely insignificant in terms of Nintendo's annual income. (It's certainly not going to make up for the WiiU's rather inauspicious debut.) Nintendo's past IP battles make this more about control than income. This also builds Nintendo a useful database of "offending" titles that it can easily block or take down by doing nothing more than changing its ContentID options.

Is the additional control worth it? If nothing else, it will be easier for Nintendo to control its online "representation" as its actions have decreased its customer base. Zack Scott, whose account contains dozens of Nintendo Let's Play videos, has already announced he will no longer be supporting the company.

I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game.

Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.

There are many better ways Nintendo could have handled this (a monetization split with uploaders, an invitation to upload to Nintendo's official channel, DOING NOTHING...), but the company's antagonistic attitude towards anything it doesn't directly profit from made this situation one of the better outcomes, unfortunately.

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Indian Publishing Firm Can't Take A Little Criticism, Threatens Blogger With $1 Billion Lawsuit, Criminal Charges

Mike Masnick — Fri, 17 May 2013 12:32:00 PDT

Here's a fun one via Popehat. Apparently an Indian publishing firm by the name of OMICS can't take some criticism from a blogger. The blogger, Jeffrey Beall, who is based in the US, has a blog called Scholarly Open Access (he's also a librarian at the University of Colorado, Denver) in which he reviews and critiques various open access programs. As we've discussed, open access is really important for the sharing of knowledge -- but not all open access programs are created equal. In fact, there are serious complaints about many of them. Beall had some choice words for some of OMICS practices, which he claimed involved spamming and bait-and-switch. For what it's worth, Beall is hardly the only one to question OMICS' tactics. The Chronicle of Higher Education discussed OMICS in an article about "predatory" open access journals. As The Chronicle explains:

In 2012, The Chronicle found that the group was listing 200 journals, but only about 60 percent had actually published anything.

OMICS' response to Beall is almost too incredible to be believed, but it threatened to sue Beall for $1 billion and seek criminal penalties as well. Yes, billion with a b -- so insert your Dr. Evil jokes here. Oh, if you're asking under what law?

In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information. The punishment can be as much as three years in prison.

As Ken White points out, the SPEECH Act clearly protects Beall from any ruling in India. We've been waiting for the first attempt to see that law used to protect someone from some insane foreign claim. If you don't recall, the SPEECH Act says that the US will not recognize foreign civil rulings over speech that would violate US law, such as the First Amendment.

Similarly, criminal charges would be meaningless, because any attempt at extradition to India would require dual criminality -- such that the acts would be criminal in both countries. That's clearly not true here (and it's debatable if they're actually criminal in either country).

Amazingly, when asked about this whole thing by The Chronicle of Higher Education, the lawyer representing OMICS, Ashok Ram Kumar, a lawyer with the firm IP Markets, appeared to double down on the threats and insist that he was "very serious" (TM), though various lawyers are a bit more skeptical of that.

"What he has written is something highly inappropriate," Mr. Kumar said. "He should not have done something like this. He has committed a criminal offense."

While Mr. Kumar said he and his client are "very serious" about the $1-billion amount, Jonathan Bloom, a lawyer with Weil, Gotshal & Manges, in New York, said it seemed more like a publicity stunt. "Sometimes people just want to puff their chests, indicate their reputation, and try to intimidate people that criticize them," Mr. Bloom said.

One thing that is clear, however, is that any company that would send out such a ridiculous threat over a blog criticism isn't a company worth trusting. Whether or not they spam and engage in bait and switch or other predatory practices, we do know with certainty that they send out insane legal threats. That's enough information necessary to decide that OMICS is not a company worth supporting.

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Lots Of People Don't Turn Off Their Devices When They Fly

Mike Masnick — Fri, 17 May 2013 11:29:00 PDT

I've always been careful about putting my phone into "airplane mode" when flight attendants ask. However, a few years back, for reasons that I've yet to see any explanation for, flight attendants changed the script and started insisting that "flight mode" wasn't enough any more and you had to turn the phone all the way off. I've asked many times why this switch was made, and no one can say. At the point when that happened, I happened to have a smartphone that had no ability to turn off. I looked. There was no power button. There was nothing in the software that was a "turn off" function. The only way to turn it off was to pull out the battery. I did that on a few flights and then figured it was stupid. So I stopped. And nothing happened. With my current phone, I've tried to "turn it off" but even when it says it's turning off it's not really turning off (because when I switch the battery, it takes about 3 minutes to boot up -- but if I "turn it off" and then turn it back on, it's ready to go within a second). Today, I still always put it into flight mode, but that's it. I turn off the screen and put the phone away, but I don't "turn it off" because it's pretty clear the phone doesn't actually turn off. And the requirement is silly. Similarly, my tablet stays on in my bag and my laptop is generally in "sleep" mode, but not off.

And I'm not alone. It seems that lots of people leave their devices on when they fly.

In a study released on Thursday by two industry groups, the Airline Passenger Experience Association and the Consumer Electronics Association, as many as 30 percent of all passengers said they had accidentally left a device on during takeoff or landing. About 67 percent said they had never done this, always ensuring that their electronics were turned off. Four percent were unsure.

In another segment of the study, passengers were asked if they turn their devices to “off” when instructed to do so by the pilot. Although 59 percent of passengers said they do fully turn their electronics off, 21 percent said they often simply switch to “airplane mode,” which disables the main radios of a gadget. Five percent sometimes adhere to the rule. And others were either unsure or do not carry electronic devices on a plane.

People give all sorts of reasons for why the devices should be turned off, but none of them make much sense. There is the interference question, but given how many of these devices stay on, there would be at least some real evidence of interference by now if that were really a big concern. There is the "gotta pay attention to the flight attendants" argument, but then they wouldn't let you sleep or read a book during takeoff. There's the "flying device is dangerous if something goes wrong" argument, but that applies equally to books. So, what is the reasoning? There's either some reason that no one's explaining... or just a ridiculous overabundance of caution where it's clearly not necessary.

Of course, as I was finishing up this post, someone passed along a Bloomberg video that claims that phones do interfere with flight GPS. If you look at at the text that goes with the video, they cite a story of a flight that went off course until flight attendants convinced someone to turn off an iPhone. However, nowhere in the video do they even mention that story or give any data or support for that claim. The video claims are also suspect. They name a single study from nearly a decade ago talking about a single phone, which is no longer on the market, that caused some interference. The other "studies" they look at include a very small number of claims from pilots who claim problems and that they "suspect" interference from phones, but those are never confirmed. They found 75 such claims over six years, but without any evidence to back them up.

Again, given how often people leave their devices on, you would expect a lot more verifiable evidence beyond a few pilots "suspecting" that phones were the problem, when a variety of other variables might have been a part of it.

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Bogus Lawsuit Plus Threats To Those Who Write About It Leads To Epic Response

Mike Masnick — Fri, 17 May 2013 10:32:43 PDT

Reader Jason sent over a blog post that sent me down a bit of a rabbit hole, following the story through a variety of twists and turns. The key player in the story is Jonathan Monsarrat, who among other things founded the video game company Turbine (Asheron's Call, Lord of the Rings Online, Dungeons & Dragons Online, etc.). In early 2010, Monsarrat was arrested concerning events at a party in Massachusetts. The charges against him were later dismissed. However, there were various blog discussions among local bloggers and commenters. Not long ago, approximately three years after all of this happened, Monsarrat sued two named defendants and 100 "John Does" in a Massachusetts (not federal) court on a variety of charges, centering around defamation, but also including copyright infringement, commercial disparagement, deceptive trade practices and conspiracy. He's asking for an astounding $5.5 million.

Reading through that complaint first, before digging deeply into a variety of other sources, there were some immediate oddities. Many of the "defamatory" statements didn't seem to have anything that could possibly be defamatory in them. Some of them possibly reached the level of defamation, but at worst they read like typical silly hyperbole among internet commenters. Hardly worth worrying about. But other stuff seemed even odder. A copyright claim not in federal court? And for what sounded like adding context/imagery to a news article? Hmmm. That doesn't sound right. State copyright claims are pre-empted by federal copyright law (and, no, this isn't one of those possible exceptions involving pre-1972 recordings). Commercial disparagement? Over some blog comments? There were a lot of alarm bells, signalling something that required a lot deeper look.

Then, I came across the actual news reports of his arrest -- both the Boston Globe one linked above and the Wicked Local story. Both seem to be pretty clear that they're reporting based directly off of a police report -- and state things from that police report that Monsarrat is now claiming are entirely untrue and defamatory. But... for those who repeated them on the blog, even if they did turn out to be untrue, they'd have an incredibly strong fair report privilege claim. For example, the lawsuit suggests that Monsarrat was just a guest at the house and knew little of the party before it happened. From his filing:

The party leading to Plaintiff's arrest was hosted by another third party, "Trano", and not by Plaintiff.

This other third party, Trano, provided music entertainment, bouncers and beer at this party, which Plaintiff knew nothing about until the immediate time leading up to the commencement of the party.

The non-use of Trano's full name is also an interesting choice. Anyway, according to the Boston Globe coverage of the incident:

Upon arriving at the scene, police found broken beer bottles near the door of the first floor of the apartment and 25-30 teenagers inside. Many were attempting to conceal bottles of beer and other alcoholic beverages, the police report states. Open bottles of alcohol were found in the kitchen area as well as a small amount of marijuana.

Monsarrat identified himself as the host of the party, but denied that any alcohol was being served, the report states. When asked by an officer to inform his guests that the party was ending, Monsarrat became “argumentative” and refused to follow instructions, police said. Officers asked for identification from several partygoers who responded, “We're in high school, we don't have ID."

Then the story gets even odder. In researching it, up popped a press release from Monsarrat himself about the lawsuit, in which he refers to himself as a "dotcom era icon and Internet expert." Also, there's this:

Jon Monsarrat announced this week that as part of an Internet defamation case, he will expose the real identities and addresses of 100 cyber bullies as part of his new cyber investigation service.

Oh, wait a second...

Earlier in 2013 he created a cyber-investigation service, which cracks the real identities of cyber bullies who post defamatory material online. The release of names and identities is part of this new service, for one of Monsarrat's client with an ongoing legal case against cyber bullies. His company is working in partnership with Defend My Name, perhaps the most technically advanced of the top anti-defamation services, and Ishman Law Firm, which has expertise in defending victims from cyber-attack.

Jon Monsarrat said, "Cyber bullies harass and spread lies about their victims using the power of the Internet, which leads to thousands of suicides a year. The police and courts are not always up to the challenge of fighting back. Now I'm bringing two patented technologies to bear to help people in need." Monsarrat was referring to his two patents in collecting and analyzing data from public websites.

This might present a possible reason that it took about three years after the original blog posts to file a lawsuit (by the way, statute of limitations on defamation in Massachusetts: three years).

And then, a bunch of LiveJournal users -- including some who claimed they never commented on the original blog post -- began receiving letters saying that they're being added to the lawsuit. Apparently, those letters have some bogus boilerplate in them claiming copyright on the letter and stating "I prohibit anyone from publishing or disclosing it in whole or in part, on the internet or any other venue or any other means, without first obtaining my written consent." That, of course, is bullshit. It is not how copyright works, especially on a legal threat letter. At least one blogger has written that Monsarrat threatened to include him in the lawsuit for merely writing about the lawsuit and for the comments others had left on that blog. Of course, there is no legitimate claim against writing about the lawsuit, and the blogger is protected from liability from the comments under Section 230 of the CDA.

Then, and only then, did I finally get to reading the epic response letter from the lawyer representing Ron Newman, one of the two named defendants in the lawsuit. The lawyer is Dan Booth of Booth Sweet LLC, a law firm you may recognize from its awesome job fighting back against numerous Prenda Law cases. I cannot do justice to the entire 18 page letter, so I suggest you read it in its entirety, but I will give you a few highlights. I will note that this is not a legal document filed with the court in response to the lawsuit, but rather a letter to Monsarrat's lawyer, Mark Ishman, of the Ishman Law Firm, which Monsarrat's press release names as a "partner" in this new "expose-the-cyber-bully" business.

The letter picks apart the case piece by piece in devastating fashion, noting repeatedly that the claims made in the lawsuit are so far removed from reasonable that if Ishman and Monsarrat do not drop the lawsuit, Booth and Newman will seek sanctions for bringing bad faith claims. He then goes on to lay out, in excruciating detail, what their arguments would be in court, repeatedly asking Ishman if he's ever actually read the statutes he's relying on. He notes the articles based on police reports as just a starting point. He then points specifically to the few quotes that were actually Newman's, showing how the complaint appears to take them entirely out of context and misrepresent what they were saying, and there is simply no way they were even remotely defamatory. Some of them are ridiculous when put back into context -- including using a comment about how Newman and some other admins had agreed to close the original thread to more comments, and saying that was defamatory. It also, of course, references CDA 230 to point out that Newman clearly is not liable for anyone else's comments.

Those are the basics. Then it goes even deeper. I'll let Dan Booth handle this part:

The second claim for relief is supposed to be under Chapter 93A of the Massachusetts General Laws. Have you ever actually read that statute? I'm not sure you made it all the way through to Section 9(3), which requires that a demand letter complying with certain statutory requirements must be mailed to a defendant at least 30 days before filing suit under Chapter 93A. "[T]he thirty-day requirement, as part of the requirement of a written demand for relief, is a prerequisite to suit, to be alleged and proved." York v. Sullivan, 369 Mass. 157, 163 (1975). Perhaps you jumped the gun a bit here? You filed suit on February 4, so you would have needed to send a demand letter before January 5, 2013 to satisfy the statute. Mr. Newman received no such letter. As far as I can tell, you didn't even comply with the spirit of the 30-day requirement -- you made no attempt to settle the dispute amicably before filing suit, or before filing the amended complaint, or before having it (and its telephone-book sized pile of exhibits) served on Mr. Newman.

How about the commercial disparagement stuff? Yeah, under the law, such statements need to be made by a competitor, which Newman clearly isn't. Oh, and Booth notes he didn't actually disparage any products or services, as required by the law. And then we move on to the copyright claim. We already noted the oddity of trying to shove a copyright claim into a state (okay Massachusettians: commonwealth) court, and Booth highlights some more problems:

Attorney Ishman, I see on your website that you hold yourself forth publicly as a copyright lawyer. I am too. I commend you for that, and for any work you do to legitimately support and protect creators. I like copyright law a lot; I just hate to see it abused. So I wonder whether you may have gotten a bit ahead of yourself with this cause of action.

Claims of common-law copyright are preempted by the Copyright Act, 17 U.S.C. § 101 et seq. Have you read that statute? Since the 1976 Copyright Act became effective, Section 301 has explained that copyright claims are "governed exclusively" by the Act, and that "no person is entitled to any such [copyright] or equivalent right in any such work [within the subject matter of copyright] under the common law or statutes of any State." 17 U.S.C. § 301(a).

In other words, common-law copyright claims are a relic. "Under the Copyright Act of 1976 ... common law copyright is abolished." Burke v. NBC, Inc., 598 F.2d 688, 691 n.2 (1st Cir. 1979). There have been no reported cases in Massachusetts state courts since the 1976 Act in which a common-law copyright was found valid. But there have been several that say things like, "These common law claims ... have clearly been preempted by the 1976 Copyright Act." Sicari v. Raccula, 2 Mass. L. Rep. 109 (Mass. Super. Ct. May 8, 1994). To the extent such claims exist, they're generally limited to media where, due to quirks of the Act's history, no statutory right ever existed, such as extemporaneous speeches or pre-1972 sound recordings. But the copyright claim in this case concerns a photograph, and those have been covered by the Copyright Act since Oscar Wilde was a young man. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). Your assertion that Mr. Monsarrat's images are "subject to common-law copyright protection under the laws of the state of Massachusetts" (Complaint ¶ 102) is wrong as a matter of black-letter law.

Booth even goes through a "sake of argument" explanation for how, even if common-law copyright could apply to a photograph (which, as noted, it cannot), via Monsarrat's own actions, that photograph would be in the public domain under the specifics of the prevailing copyright law.

Booth then goes on to point out when you look at Newman's actual comments, he actually was quite even handed when the story broke, noting things like, "To my knowledge he hasn't been found guilty of any crime in a court of law." And he invited Monsarrat to present his side of the story. And yet, Monsarrat tries to paint Newman's activity as "extreme and outrageous" for the sake of "intentional infliction of emotional distress."

And then, Booth goes on to point out that the record suggests the version of the story that Monsarrat presents in his filing is less than accurate:

Those assertions are directly contradicted by the record. Set aside the fact that Mr. Monsarrat was at the party and that he was arrested at the party. Set aside the fact that both the police report and the Somerville Journal article stated plainly that Mr. Monsarrat had "identified himself as the host of the party." Set aside the fact that the police report indicates that Mr. Monsarrat denied, to the arresting officer, that there was any alcohol at the party, despite the officer's firsthand observations. Mr. Monsarrat publicly announced his role in the party online, before his arrest. As Mr. Newman pointed out at the time, Mr. Monsarrat had posted an open invitation on his Wheel Questions blog, announcing that he was holding the party, two days before it happened. Complaint Exhibit 4 p. 69 ("I'm holding a party Friday in the Boston area. RSVP to johnny@wheelquestions.org and say a little about yourself for the location.") (quoting Mr. Monsarrat). If Mr. Monsarrat wants to clear his name by suggesting that he was a mere innocent bystander at the party, he cannot hope to succeed in rewriting the public record. His own words will be admissible as non-hearsay, to prove the truth of his statements identifying himself as the host, and to disprove statements to the contrary in the complaint. See Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998) ("A party's admission is excluded by definition from the hearsay rule.") (citing Proposed Mass. R. Evid. 801(d)(2)); see also Flood v. Southland Corp,. 33 Mass. App. Ct. 287, 294-95 (1992).

And we're not done yet. He points out that many of the comments included in the claim are way outside the statute of limitations, and Massachusetts has a well established single publication rule, meaning that the date when the content is published is when the clock starts ticking on the statute of limitations. The fact that the content remains online is meaningless. Booth also points out the ridiculousness of the $5 million dollar demand.

The complaint seeks punitive damages in an amount to exceed $5,000,000. That is outrageous on its face, and wholly unsustainable under controlling law. Massachusetts has not allowed such damages since 1974. "In a case of defamation the plaintiff's recovery is limited to actual damages, which are compensatory for the wrong done by the defendant. ... Punitive damages are never allowed ... even after proof of actual malice." Stone v. Essex County Newspapers, Inc., 365 Mass. 246 (1974) (citations omitted). The Supreme Judicial Court of Massachusetts reaffirmed that position the following year: "We reject the allowance of punitive damages in this Commonwealth in any defamation action, on any state of proof, whether based in negligence, or reckless or wilful conduct. We so hold in recognition that the possibility of excessive and unbridled jury verdicts, grounded on punitive assessments, may impermissibly chill the exercise of First Amendment rights by promoting apprehensive self-censorship." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860 (1975).

As for the letters that various LiveJournal users are receiving:

It is my understanding that Mr. Monsarrat has busied himself, since the filing of the amended complaint, by reaching out to people he believes responsible for these three-year old discussions, sending them wildly improper threatening letters and/or directly confronting in person. In at least one of those letters, he states, "The purpose of this correspondence to is [sic] notify you that I am suing LiveJournal forum moderator Ron Newman for $5,500,000 for defamation, and that you are named as a Doe Defendant in this lawsuit..." These actions are deeply dismaying. Mr. Monsarrat is tarnishing Mr. Newman's name in scattershot fashion, to many people who may have had no relation to the postings at issue. He may not harass people in the Somerville community by seeking to intimidate them into removing their legitimate free speech comments.

Booth also points out that in intimidating various LiveJournal users into possibly removing their comments, there may be further issues with regard to encouraging the destruction of key pieces of evidence:

When Mr. Monsarrat succeeds in this intimidation, he helps to destroy the record that would be at issue if the litigation were to proceed. If this pattern of behavior continues, he may be subjecting himself to sanctions for suborning spoliation. Thanks to poor formatting, many of the Complaint's Exhibits reproduce discussion threads in piecemeal fashion, omitting much or all of the text of longer comments. See, for just one example, Complaint Exhibit 4 pp. 31-42. These fragmentary Exhibits leave the original online discussions as the only reliable source of material evidence. Any deletion of those comments, as Mr. Monsarrat demands, makes them invisible to subsequent viewers, depriving defendants of the context-specific defenses that a defamation claim requires. "'The destruction of relevant evidence ... has a pernicious effect on the truthfinding function of our courts.' ... The doctrine of spoliation permits the imposition of sanctions or remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced." Scott v. Garfield, 454 Mass. 790, 797 (2009) (quoting Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 553 (2002)).

Booth also notes the same press release I saw, and raises some questions about it:

It appears this action has been filed with an ulterior purpose: not as a good faith means to redress any legitimate grievances, but as a case study to be used in marketing one of Mr. Monsarrat's business ventures. That would be more than improper enough, but worse, the entire purpose of "cyber investigation service" seems to be to empower litigants to make endruns around the discovery process, as Mr. Monsarrat has done.

And, also, the oddity of the fact that Ishman appears to be both a lawyer for Monsarrat and a business partner:

This partnership, in the place of a putative client and attorney relationship, is more than irregular. It may subject Attorney Ishman and his law firm to the same liability as Mr. Monsarrat, based on their involvement in a larger scheme. See Kurker v. Hill, 44 Mass. App. Ct. 184, 192 & n. 8 (1998). "[A] civil action is wrongful if its initiator does not have probable cause to believe the suit will succeed, and is acting primarily for a purpose other than that of properly adjudicating his claims." G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). It appears that Mr. Monsarrat has dragged Mr. Newman into court, and badgered an untold number of others, to make a name for his "cyber investigation service." This ulterior purpose, combined with the paucity of the complaint's factual allegations and legal claims, strongly suggest that the action has been undertaken without good faith. These improprieties would support counterclaims of abuse of process, see generally Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010), and under Chapter 93A, see Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co., 986 F.2d 607, 611 (1st Cir. 1993) (filing legal claim "which proves baseless" is an unfair trade practice if claim brought with "ulterior motive"); Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 44 n. 7 (2010); Refuse & Envtl. Sys., Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 43 (1st Cir. 1991) ("bringing [a] lawsuit in spite of the evidence" can violate Chapte 93A). These improprieties would further support sanctions under M.G.L. c. 231, § 6F, see Fronk v. Fowler, 456 Mass. 317, 334 -35 (2010) ("Claims that are so unmoored from law or fact are the very definition of 'frivolous': 'Lacking a legal basis or legal merit; not serious; not reasonably purposeful.'") (quoting Black's Law Dictionary 739 (9th ed. 2009)), and under Mass. R. Civ. P. 11, see Van Christo Adver. v. M/A-COM/LCS, 426 Mass. 410, 416-17 (1998).

Believe it or not, those aren't even all of the highlights of the letter. I imagine that this one could get interesting if Ishman and Monsarrat choose not to take Booth's stern suggestion that they immediately dismiss the claims against Newman with prejudice.

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Big Pharma Firms Seeking .pharmacy Domain To Crowd Out Legitimate Foreign Pharmacies

Mike Masnick — Fri, 17 May 2013 09:29:43 PDT

For years, we've noted that the big drug companies like to conflate legitimate foreign pharmacies (often based in Canada) that sell back into the US (the so-called "reimportation" or "parallel import" market) at cheaper prices with out and out bogus or counterfeit online pharmacies. The drug companies like nothing better than when people lump the two very different beasts together and label them all as "counterfeit." Of course, for many Americans, relying on cheaper legit drugs from Canada is the only way they can survive, and there have been efforts made at times by US politicians -- including President Obama -- to support more parallel importation to ease the high cost of drugs in the US.

However, there's an interesting tidbit coming out in the ongoing battles over new top level domains. It appears that the National Association of Boards of Pharmacy is seeking a .pharmacy domain, which (obviously) they would then only bestow upon pharmacies that they like. That could be a big issue, because it's likely they wouldn't allow that for certain Canadian pharmacies and other foreign legitimate pharmacies that may offer cheaper drugs. Both Demand Progress and Public Citizen recently filed comments with ICANN about why NABP should not be allowed to control .pharmacy.

From Public Citizen's filing:

Granting the .pharmacy domain to NABP would confer legitimacy on pharmacies sanctioned by NABP, to the detriment of those that are not.

NABP has proposed an unfair standard that would bar online pharmacies that serve US consumers but are located outside of the United States from using the domain (see NABP’s application at Section 18(a) IV*). This would exclude many licensed pharmacies which offer American consumers low-cost medicines of quality.

Whether a pharmacy is located in the United States does not determine whether a pharmacy is licensed and provides medicines of quality.

Consumer access to medicines depends in significant part on price and competition. It would be inappropriate to allow NABP to control such an important gTLD while it maintains exclusionary plans for the domain, which work against the consumer interest in a robust market of quality affordable pharmaceuticals.

And, from Demand Progress's filing:

The pharmaceutical industry has prioritized trying to shut down legitimate pharmacies selling safe Canadian drugs to U.S. consumers (as currently allowed by the U.S. Food and Drug Administration). But their tactics to achieve these anti-consumer goals involve censorship regimes allowing government seizure of domains, blacklists of sites, or suspended hosting services for legitimate competitors.

NABP supporters have justified their actions by preying on consumer fear of counterfeiters, when their real goals include shutting down sites providing cheaper legitimate drugs. Pfizer joined the assault on the Net in 2011, testifying to Congress that: "The major threat to patients in the U.S., however, is the Internet..." ...

NABP's supporters define "fake pharmacies" as those not registered with VIPPS, rather than only those selling actual counterfeit goods.

The Demand Progress comment also points out how the big pharmaceutical companies supported SOPA and PIPA, since they knew that it, too, would be useful to use as a sledgehammer against foreign online pharmacies that sold legitimate drugs back into the US.

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A Framework For Copyright Reform

Mike Masnick — Fri, 17 May 2013 08:32:43 PDT

I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:

Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?

Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.

Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.

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Saudi Religious Police: Anyone Using Twitter 'Has Lost This World And His Afterlife'

Glyn Moody — Fri, 17 May 2013 07:03:43 PDT

A couple of days ago Techdirt wrote about how Murong Xuecun, a well-known user of the Chinese microblog Sina Weibo with over a million followers, had his account closed down suddenly. Murong has now written a fine article about the background to what happened: he points out that the deletion of his account looks to be part of a larger clampdown on the use of microblogging services by well-known figures who are critical of the Chinese government. The problem for the latter is that these services are becoming a real channel for free expression and less-than-perfectly-censored information: Individuals are silenced on daily basis, and the pool of sensitive words grows by the hour: Liu Xiaobo, Gao Xingjian, Ai Weiwei, Wei Jingsheng, Liao Yiwu, Ma Jian, Mo Zhixu, Xiao Shu … The list goes on. It now includes me, as well as two more scholars who have since been silenced: Wu Wei and Wu Zuolai, whose accounts were deleted on the morning of 13 May. Lurking in the shadows, the "relevant organs" carry out such work as part of their daily routine, and expect people to remain silent. They have perhaps failed to foresee that in the age of Weibo, their actions could trigger such a severe backlash. To this, they responded with more censorship.
Given the problems that even China is having with controlling such services, it's no surprise that other nations are getting nervous. Here's a story from the BBC about what Saudi Arabia is doing in an attempt to counter the threat from Twitter: The head of Saudi Arabia's religious police has warned citizens against using Twitter, which is rising in popularity among Saudis.

Sheikh Abdul Latif Abdul Aziz al-Sheikh said anyone using social media sites -- and especially Twitter -- "has lost this world and his afterlife".
The Saudi authorities are evidently grappling with exactly the same issues as the Chinese government: Many Saudis have seized on Twitter as the most immediate and effective way to open little windows into a traditionally opaque society.

Recent protests in the Eastern Province have been tweeted and images of human rights activists on trial have been uploaded directly from courtrooms, challenging many taboos.
The situation in Saudi Arabia is complicated by the fact that the well-known Saudi Prince Alwaleed bin Talal bought a $300 million stake in Twitter back in 2011. That doubtlessly explains in part the following comments he made recently using his own Twitter account, quoted in an article from CNN: Dear Saudi Telecommunication Authority, social media is a tool for the people to make the government hear their voices. Just thinking of blocking them is a losing war, and a way to put more pressure on the citizens
As Twitter continues to gain market share -- already standing at a massive 51% of all Internet users in Saudi Arabia according to the CNN piece -- it will be interesting to see whose view prevails there: that of the religious police or a secular prince.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Congress Grandstanding Over Google Glass 'Privacy' Concerns; Next Up: Privacy Concerns Over Your Eyes

Mike Masnick — Fri, 17 May 2013 05:27:43 PDT

We should have know that once the press started picking up on the ridiculous moral panic over Google Glass that Congress would be quick to follow. In a move that smacks of traditional political grandstanding, a group of Congressional Representatives have sent a letter to Google raising a bunch of questions about the supposed "privacy concerns" of Google Glass. I'm wondering if next they'll summon a representative of the seeing public to discuss the privacy concerns of your own two eyes.

First, they jump to the go-to point that any anti-Google privacy activist goes to: the data collection from open WiFi. What no one ever seems willing to discuss is the fact that this is the nature of open WiFi. Anyone can see any of the unencrypted data traveling over that access point. Why that gets blamed on Google makes no sense. They also worry about privacy of non-users, which is definitely a point that others have raised. But, how is this privacy issue different than one of basic sight. Google Glass sees what a user sees. If they can see you doing something you don't want exposed, they can reveal that as well. How is that a privacy issue specific to Google Glass? There are a number of other odd questions, including whether or not Google considered the privacy implications of the NY Times' Google Glass app. Huh? First off, if there were privacy implications, shouldn't they be the NY Times' concern on that issue? And second, can anyone explain why possible privacy issue could be in play here? It's a news app on a tiny screen. So what?

When regular cameras first came on the scene, there were similar scare stories and people worried about the privacy impact of still photo cameras. We pretty quickly learned how to cope and adapt to that. Why do people think we can't learn and cope with Google Glass?

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Court Dumps Prenda's Subpoena

Mike Masnick — Fri, 17 May 2013 03:25:43 PDT

You may recall that Prenda had (not surprisingly) gone crazy overboard with subpoenas in its attempt to intimidate some anti-copyright troll bloggers and their commenters. The EFF stepped in and asked a court to quash the subpoena, which the court has now done, in large part because Prenda never even bothered to respond.

As of this date, no responsive memorandum has been filed. LRCiv 7.2(i) provides in part “if the opposing party does not serve and file the required answering memorandum, ...such noncompliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.” Pursuant to this rule, the Court deems Plaintiff's failure to serve and file the required answering memorandum a consent to the granting of Defendant-Movant's Motion to Quash the Subpoena to Wild West Domains Seeking Identity Information.

I guess Prenda's a bit busy. Or someone there realized this subpoena had zero chance of actually going forward. Either way, the subpoena is dead.

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US Uses Special 301 To Bully Ukraine, Likely Violating WTO

Sean Flynn — Fri, 17 May 2013 00:01:00 PDT

In this year's Special 301 report, the United States Trade Representative listed Ukraine as a "Priority Foreign Country" (aka PFC), triggering a 30 day countdown to initiate an investigation under Section 301 of the Trade Act to determine trade sanctions. 19 USC 2412(2)(A). This is only the second time that the U.S. has threatened a WTO-member country with sanctions as a PFC. And thus it is an appropriate time to ask what restrictions the World Trade Organization places on the operation of the Special 301 program. As described more fully below, any sanction of Ukraine, including removal of General System of Preferences (GSP) benefits, would likely violate WTO rules. Indeed, the listing of Ukraine as a PFC, and the more general operation of "watch lists" threatening sanctions for intellectual property matters, could be challenged under the WTO even prior to any sanction actually going into effect.

Special 301 is a Unilateral Adjudication of Foreign Countries for IP Matters both Covered and not Covered Under any Trade Agreement

Special 301 is an offshoot of the more general "Section 301" program which authorizes the USTR to unilaterally sanction foreign countries for a domestic law which either "violates, or is inconsistent with, the provisions of, or otherwise denies benefits to the United States under, any trade agreement" or which does not itself violate any agreement but nevertheless "is unreasonable or discriminatory and burdens or restricts United States commerce." 19 USC § 2411. One ground for finding an "unreasonable" policy subject to trade sanction includes the denial of "fair and equitable . . . provision of adequate and effective protection of intellectual property rights notwithstanding the fact that the foreign country may be in compliance with the specific obligations of the Agreement on Trade-Related Aspects of Intellectual Property Rights." 19 USC 2411(d)(3)(VB)(ii). Possible sanctions can include the suspension of "benefits of trade agreement concessions," "duties or other import restrictions," or the suspension of General System of Preferences (GSP) benefits. 19 USC 2411(c).

Special 301 is integrated into the Section 301 sanctioning process through a public adjudication and notification mechanism. Under Special 301, the USTR is required to annually publish in the Federal Register a list of countries that deny "adequate and effective protection of intellectual property" or "deny fair and equitable market access for U.S. firms that rely on intellectual property," and then designate among those countries the subset of worst actors to be designated "priority foreign countries." 19 U.S.C. § 2242. USTR holds an annual hearing and publishes an annual report containing two levels of "Watch Lists" below the "Priority Foreign Country" designation. As described by USTR in the 2013 report:

Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on IPR. Countries placed on the Priority Watch List are the focus of increased bilateral attention concerning the problem areas.

Designation as a "Priority Foreign Country" is a statutory criteria that triggers a 30-day countdown during which targeted countries must "(enter) into good faith negotiations" or "(make) significant progress in bilateral or multilateral negotiations" or face an investigation under the Section 301 process for determining unilateral sanctions. Priority foreign country determinations are reserved for countries "that have the most onerous or egregious acts, policies, or practices," that "have the greatest adverse impact (actual or potential) on the relevant United States products," and for which "there is a factual basis for the denial of fair and equitable market access as a result."

This framework for unilaterally sanctioning foreign countries for intellectual property matters pre-dates the World Trade Organization's rules. Indeed, it was the lack of binding international trade adjudication, such as that created under the WTO, that was the primary justification for Congress's enactment of the 301 unilateral adjudication in the 1980s. [See 301 Historical Primer]. There has always been a serious question as to how the statutory program could continue after the WTO, and there has been one adjudication of the more general 301 program explained below.

One of the noticeable trends in Special 301 in the Post-WTO 1994 period is the steep drop off in listings of countries as a "Priority Foreign Country," most directly threatening trade sanctions. Only three countries were designated as PFCs after 1994: China in 1996, Paraguay in 1998, and Ukraine in 2001-05. Of these, only Paraguay was a member of the WTO in the year it was listed as a PFC. Ukraine was not a WTO member when it was initially listed, but now it is.

Using 301 to Adjudicate TRIPS Violations Would Violate the WTO Dispute Settlement Understanding and U.S. Law

On their face, the 301 complaints against Ukraine do not appear to raise challenges to Ukraine's implementation of the WTO agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The 2013 Special 301 Report describes three grounds for Ukraine's PFC listing:

[T]he specific grounds for the U.S. Trade Representative’s designation of Ukraine as a PFC are: (1) the unfair, nontransparent administration of the system for collecting societies, which are responsible for collecting and distributing royalties to U.S. and other rights holders; (2) widespread (and admitted) use of illegal software by Ukrainian government agencies; and (3) failure to implement an effective means to combat the widespread online infringement of copyright and related rights in Ukraine, including the lack of transparent and predictable provisions on intermediary liability and liability for third parties that facilitate piracy, limitations on such liability for Internet Service Providers (ISPs), and enforcement of takedown notices for infringing online content.

None of these grounds explicitly refer to complaints under TRIPS. Unilateral adjudication of TRIPS violations is prohibited by Article 23 of the Dispute Settlement Understanding, explaining under the title "Strengthening of the Multilateral System":

1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.

2. In such cases, Members shall:

(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding

The import of this language is fairly clear. The Dispute Settlement Understanding (DSU) procedures, and only those procedures, can be used for findings that lead to the "suspension of concessions or other obligations" under GATT.

After the WTO accords went into effect, the U.S. did not dismantle the Section 301 or Special 301 programs, which became the subject of a trade dispute in the WTO in United States – Sections 301-310. In that case, a WTO panel held that Section 301 sanctions were only still legal under the DSU because of a "Statement of Administrative Action" pledging to "base any section 301 determination" on "panel or Appellate Body findings adopted by the DSB" and only sanction countries with "authority from the DSB to retaliate."

The panel decision went further, discussing in a key package that the U.S. also could not threaten to sanction countries in ways that, if actually implemented, would likewise threaten the WTO:

Members faced with a threat of unilateral action, especially when it emanates from an economically powerful Member, may in effect be forced to give in to the demands imposed by the Member exerting the threat... To put it differently, merely carrying a big stick is, in many cases, as effective a means to having one's way as actually using the stick. The threat alone of conduct prohibited by the WTO would enable the Member concerned to exert undue leverage on other Members. It would disrupt the very stability and equilibrium which multilateral dispute resolution was meant to foster and consequently establish, namely equal protection of both large and small, powerful and less powerful Members through the consistent application of a set of rules and procedures.

After this ruling, the USTR has been relatively carefully not to use Special 301 to explicitly threaten other countries with trade sanctions for alleged violations of TRIPS. It more commonly describes Special 301 as being a component of the evaluation of whether it will grant other countries GSP benefits, which it asserts unilateral authority to determine the criteria for. And the criteria listed in the 301 reports most commonly refers to the lack of domestic policies that are "TRIPS-plus" -- i.e. go be beyond those required by the TRIPS agreement. But, as explained below, the developed countries do NOT have unilateral authority to determine GSP benefit criteria. Under the reasoning of the Sections 301-310 panel, any country on the various Special 301 Watch Lists would likely have standing to challenge the Special 301 program as threatening denial of GSP benefits for criteria that violate the WTO accords.

TRIPS-Plus standards may be challenged as not being "non-discriminatory" and "non-reciprocal" criteria tailored to "respond positively to the development, financial and trade needs of developing countries."

The U.S. legal authority for denying GSP benefits based on intellectual property policies is contained in 19 USC 2462(c), requiring consideration of the "the extent to which such country is providing adequate and effective protection of intellectual property rights." The 2013 Special 301 report signals that it intends to evoke this criteria with respect to Ukraine, stating:

When Ukraine was designated a PFC in the past, it failed to address the grounds for its designation during the following investigation. As a result, Ukraine lost its eligibility for benefits under the Generalized System of Preferences (GSP). Once Ukraine addressed the issues that led to its designation as a PFC, its eligibility for GSP benefits was reinstated.

Thus, the central question under the WTO accords may be: may the U.S. suspend GSP benefits from a country as a sanction for not adopting TRIPS-plus policies? Current law under the WTO Appellate Body provides a strong argument that the U.S. cannot maintain such policies.

The starting point for the trade law analysis is the WTO's requirement of Most Favored Nation (MFN) treatment for all members, contained in Article I:1 of the General Agreement on Tariffs and Trade 1994 (GATT). The MFN principle requires

any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country be accorded immediately and unconditionally to the like product originating in or destined for territories of all other contracting parties

By withdrawing trade benefits from one country (e.g. Ukraine), but not from other WTO-members, the U.S. GSP program facially authorizes conduct that violates MFN treatment. The conduct must, therefore, be authorized by an exemption to MFN.

GSP programs are authorized by the exception to MFN known as the GSP "Enabling Clause." The two key provisions in this clause for our purposes are located in Paragraphs 2 and 3. Paragraph 2 (footnote 3) of the Clause states that GSP programs are authorized only in so far as their criteria are "generalized, non-reciprocal and non discriminatory." Paragraph 3 of the Clause adds the additional requirement that GSP criteria "be designed and, if necessary, modified, to respond positively to the development, financial and trade needs of developing countries." The use of TRIPS-plus criteria to deny GSP benefits does not appear to meet either standard.

The WTO Appellate Body (the highest court in the WTO and the authority on matters of WTO interpretation) was tasked with interpreting the GSP enabling clause requirements in the case of EC -- Preferential Tariffs. The matter involved a challenge by India of the EC's program to award additional GSP benefits to countries that participated in a special drug eradication program. The Appellate Body held that GSP programs could have criteria that result in different benefits being afforded to different developing countries, but that such differential treatment must itself be based on criteria that meet the Paragraph 3 requirement of responding "positively to the development, financial and trade needs of developing countries." The Appellate Body explained:

In granting such differential tariff treatment, [ ] preference-granting countries are required, by virtue of the term “nondiscriminatory”, to ensure that identical treatment is available to all similarly-situated GSP beneficiaries, that is, to all GSP beneficiaries that have the “development, financial and trade needs” to which the treatment in question is intended to respond.

The Appellate Body continued:

[T]he expectation that developed countries will “respond positively” to the “needs of developing countries” suggests that a sufficient nexus should exist between, on the one hand, the preferential treatment provided under the respective measure authorized by paragraph 2, and, on the other hand, the likelihood of alleviating the relevant “development, financial [or] trade need”. In the context of a GSP scheme, the particular need at issue must, by its nature, be such that it can be effectively addressed through tariff preferences. Therefore, only if a preference-granting country acts in the “positive” manner suggested, in “respon[se]” to a widely-recognized “development, financial [or] trade need”, can such action satisfy the requirements of paragraph 3(c).

Under this standard, TRIPS-plus criteria may be challenged for being insufficiently related to the needs of developing countries and rather tailored to meet U.S. intellectual property industry export needs. The U.S. is not free to define any "needs" it chooses as GSP criteria for developing countries. The Appellate Body admonished that "a 'need' cannot be characterized as one of the specified "needs of developing countries" in the sense of paragraph 3(c) based merely on an assertion to that effect by, for instance, a preference-granting country or a beneficiary country." Such need, the Appellate Body held, must be assessed according to an "objective," "[b]road-based recognition of a particular need," such as those "set out in the WTO Agreement or in multilateral instruments adopted by international organizations."

Here, the U.S. is on the horns of a dilemma. For the criteria to be sufficiently "broad based," the WTO Appellate Body suggests that they need to be incorporated into a broad multilateral agreement like TRIPS. But the U.S. cannot unilaterally adjudicate TRIPS disputes.

The specific issues that the U.S. raises -- the administration of collecting societies, rules on the government use of copyrighted software, and intermediary liability and "enforcement of takedown notices for infringing online content" -- are not subject to broad-based international standards. None are explicitly recognized duties under TRIPS. There are very general standards in the WIPO Internet Treaties on copyright in the digital environment, but only a small number of controversial international agreements -- in the form of bilateral trade agreements with the U.S. -- contain standards on intermediary and third party liability and the enforcement of takedown notices for online infringement. The U.S. would like these to be areas of broad-based agreement, but thus far they are not.

Ukraine may also argue that using removals of GSP benefits as a sanction for disfavored policies and practices is not a "positive" use of GSP benefits. The Appellate body explained that the GSP Enabling Clause "mandates that the response provided to the needs of developing countries be 'positive,'" which it defined as "consisting in or characterized by constructive action or attitudes." It continued:

This suggests that the response of a preference-granting country must be taken with a view to improving the development, financial or trade situation of a beneficiary country, based on the particular need at issue.

It is difficult to explain the use of PFC listings under Special 301 as "positive" in this respect. The PFC listing is rather clearly designed as a threat to withdraw benefits as a punitive sanction for acting against U.S. interests, not as an enticement or reward for responding to its own development needs. As one commenter noted: "The EC rewards "good" behavior with extra preferences; the U.S. penalizes "bad" behavior by taking away preferences." Whether the WTO allows the latter use of GSP criteria as a sanction is yet to be decided by the Appellate Body.

Conclusion

The implications of the two lines of cases discussed above suggest that Ukraine has strong arguments for challenging its PFC listing, and any subsequent denial of GSP benefits, in the WTO. In addition, using the discussion of the prohibition of "threats alone" from the Section 301-310 case, other countries on the various watch lists could challenge Special 301 as implicitly threatening GSP benefit withdrawal for criteria that do not meet the WTO’s standards. Doing so and succeeding would relieve the world of a much hated vestige of the Pre-WTO "aggressive unilateralism" in U.S. trade policy.

Sean Flynn is a professor and associate director of the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law.

Cross posted from infojustice.

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NZ Supreme Court Will Review Kim Dotcom's Extradition Case

Mike Masnick — Thu, 16 May 2013 19:58:00 PDT

Back in March, we noted that while a district court had ordered the US to hand over the evidence it was planning to use against Kim Dotcom, an appeals court had overturned that ruling, and said that the evidence wasn't needed for the extradition fight. Dotcom immediately appealed to New Zealand's Supreme Court, who has now said that it will review that ruling as well, so this case will continue to drag on for some time.

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DailyDirt: Getting An Online Education...

Michael Ho — Thu, 16 May 2013 17:00:00 PDT

The existing system of going to a school, listening to lectures and getting a degree after you've passed some tests might not be the way education will operate in the near future. Massive open online courses (MOOCs) promise to teach a wide array of subjects, and there are plenty of students willing to try out these online classes instead of sleeping through another boring lecture at 8am. Obviously, not all the kinks have been worked out yet, and there will undoubtedly be online degrees that aren't worth the paper they may (or may not) be printed on. Still, there are some interesting developments in the field of education, and here are just a few.

Sebastian Thrun is optimistic about creating an online class that will confer a master's degree in computer science. All the class material will be online for free, but the actual degree will cost a few thousand bucks still (via Georgia Tech). [url]
The traditional education system might be in for some disruption as more online education startups attract students and pull tuition dollars away from bricks and mortar institutions. If professors don't like their student reviews now, it's going to get a bit worse when online classes are rated instantly by students.... [url]
Professor Sugata Mitra has demonstrated that kids don't necessarily need a teacher -- if you just set up an internet-connected computer in the middle of a village in India, you'll be surprised by what the kids learn all by themselves. And now, Mitra has $1 million from a TED prize to further his research into self-organized learning. [url]
Don't have time to attend a class? You might not need to with the University of Wisconsin's upcoming program to grant bachelor degrees based on existing experience. You still have to take some tests and demonstrate your skills, but the school of hard knocks might be good enough in some cases? [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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This Week's Bad Photoshopping Lesson Comes From Scientology

Timothy Geigner — Thu, 16 May 2013 16:01:56 PDT

The universe has a sense of humor. I'm convinced of it. See, as someone who believes that humor is a wonderful way to deal with otherwise disheartening topics, I'm amazed at how often the world around me will give me something to laugh at when I'm feeling blue. Take the world's current climate on the topic of religion, for instance. It'd be very easy to get down in the dumps over the Westboro Baptist Church, religious fundamentalists engaging in acts of terror, and the never-ending saga known as the Middle East "peace" process. None of those things are laughing matters. But then, reading the forlorn expression on my face, the universe sends me another story from the Church of Scientology.

The Tom-Cruise-iest religion on the planet took a break from their attempt to destroy free speech to celebrate the grand-mega opening of their new ironically named Ideal Organization in Portland by producing the worst photoshopped picture this side of the Iranian military.

The crowd was around 450-750 people. But the church claims it was more like 2,500, and it Photoshopped in the proof. Except the proof is about as convincing as your thetan's origin story. In reality, there were no people in the right-hand side of the photo. There was actually a line of rented trees set up to block the view of people not so friendly to Scientology (see the photo below), as well as police blocking off a four-block radius for the event. And it's not just that the picture was doctored, it's that it was done quite poorly. They added people right on top of the trees in the altered section.

Tony Ortega has the two photos that demonstrate this. First was the "official" photo from the Church which is clearly photoshopped. And then a shot from a different angle showing that the people on the right section above aren't actually there. What was an attempt to make turnout of the "event" look bigger than it was resulted in, at best, Scientology looking silly yet again for their combination of secretiveness and lying about their own events. Or, at worst, it suggests that Scientology turns human beings into a kind of hybrid tree-people, in which case we're all going to be subject to an aphid plague that may undo all of humanity. Ahhhh!

So a word of friendly advice to my Scientologist friends: brainwashed graphic designers are a better asset than brainwashed Tom Cruises. For ever and ever. Amen.

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One Simple Copyright Reform Idea: Government Edicts Should Never Be Subject To Copyright

Mike Masnick — Thu, 16 May 2013 15:01:56 PDT

With copyright reform back on the table, there are bound to be more and more discussions and various ideas suggested. But here's one that we hope is a no brainer for everyone. Carl Malamud, who has worked on making more public information available to the public than anyone else (and, yes, it's crazy that he needs to do this), has famously highlighted many cases of governments locking up key information that the public ought to have, including official copies of laws, judicial rulings and the standards that are referenced by various laws. So he has now proposed -- with the support of a bunch of big thinkers in this arena -- a simple proposal for one specific type of copyright reform: The Edicts of Government Amendment. The idea is simple:

To promote access to justice, equal protection, innovation in the legal marketplace, and to codify long-standing public policy, the Copyright Act of the United States, 17 U.S.C., should be amended as follows:
“Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.”
This language comes directly from Section 206.01, Compendium of Office Practices II, U.S. Copyright Office (1984). It reflects clear and established Supreme Court precedent on the matter in cases such as Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) and Banks v. Manchester, 128 U.S. 244 (1888). The law belongs to the people, who should be free to read, know, and speak the laws by which they choose to govern themselves.

Such a basic concept, I'm wondering if there's anyone who will present a counter argument for why this shouldn't be done today.

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Judge Rejects Lawsuit Against YouTube As 'Frankenstein Monster Posing As A Class Action'

Mike Masnick — Thu, 16 May 2013 13:54:24 PDT

You may recall that soon after Viacom sued YouTube, the Premier League football association (which is notorious for aggressively seeking to enforce its copyrights) sued as well, and sought to turn its case into a class action lawsuit for basically anyone who might have had their copyright-covered works uploaded to YouTube. The court has now eloquently smacked that attempt down, pointing out that the issues for different individuals and organizations would be totally different, making it inappropriate to lump them all together.

Forty five years ago Judge Lumbard of the United States Court of Appeals for this circuit called a case a "Frankenstein monster posing as a class action." ... The description fits the class aspects of this case.

The putative class consists every person and entity in the world who own infringed copyrighted works, who have or will register them with U.S. Copyright Office as required, whose works fall into either two categories: they were subject of infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the "repeat infringement class"), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the "music publisher class"). Plaintiffs assert that there are "at least thousands of class members" the Repeat Infringement Class, and "hundreds" in the Music Publisher Class...

It then goes on to point out that YouTube is just the platform, and just because infringing content is uploaded to YouTube, it doesn't automatically make YouTube liable. It notes that "YouTube does not generate infringing material." And, given that, the situations of various potential class members is quite different. Then there's a strong point related to all of this: because there are all sorts of different issues related to copyright, "copyright claims are poor candidates for class-action treatment." Specifically, there would need to be specific evidence relating to each individual infringement, and that makes it silly to do this as a class action.

Here to make resolutions which advance the litigation will require the court to determine, for each copyrighted work claimed to have been infringed, whether a copyright holder gave notices containing sufficient information to permit the service provider to identify and locate the infringing material so that it could be taken down. That requires individualized evidence. Further, the analysis required to determine "fair use," and other defenses, is necessarily specific to the individual case.

The court points out that the benefit of a class action is that there's "an issue that is central to the validity of each of the claims in one stroke" but that's clearly not true with mass copyright claims. Given all that, the class certification (for both classes) was denied.

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AT&T Continues To Mock The Concept Of Net Neutrality; This Time With Google Hangouts Block

Mike Masnick — Thu, 16 May 2013 12:52:53 PDT

The big telcos (AT&T and Verizon) have been trying to move more and more to wireless networks over wired networks, in large part because they've realized that, for whatever reason, the FCC more or less gave them pretty free rein to completely ignore net neutrality concepts on their wireless networks. So it really shouldn't come as much of a surprise to see that AT&T has responded to the latest Google Hangouts app, which replaces the standard Google Talk app, by blocking video while on a cellular connection on Android phones (oddly, it works on iPhones). As you may recall, AT&T actually got into trouble for doing the same thing with FaceTime on the iPhone. AT&T's statement about this, as given to The Verge, parses its words very carefully, as if they think everyone is a complete moron:

All AT&T Mobility customers can use any video chat app over cellular that is not pre-loaded on their device, but which they download from the Internet. For video chat apps that come pre-loaded on devices, we offer all OS and device makers the ability for those apps to work over cellular for our customers who are on Mobile Share, Tiered and soon Unlimited plan customers who have LTE devices. It's up to each OS and device makers to enable their systems to allow pre-loaded video chat apps to work over cellular for our customers on those plans.

The whole focus on "pre-loaded" apps was how AT&T tried to tap dance around net neutrality questions last year with FaceTime. And it's completely made up and bogus.

Basically, they're saying if you want to do video, you have to ask permission. That's a broken system. It goes against what makes the internet good and useful: the fact that you can innovate without permission. A mobile carrier -- one who may see video chat apps as competition, for example -- being able to act as a gatekeeper to block the usefulness of such apps is a dangerous situation for those who believe in promoting innovation. We shouldn't stand for an internet where one company gets to pick what you're allowed to do.

And, just to cut this off before anyone brings up a really silly argument to defend AT&T: yes, bandwidth on mobile broadband networks is somewhat more limited (though not as limited as they would have you believe). But, these networks, for the most part, have all done away with unlimited accounts anyway. So if people use up all their broadband quota on video calls, that should be their own decision. AT&T has already made pricing decisions that limit bandwidth to consumers, so further limiting their choice in apps makes no sense on top of that.

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Footage Of Lethal Beating Deleted From Seized Phone; Sheriff Asks FBI To Take Over Investigation

Tim Cushing — Thu, 16 May 2013 11:56:00 PDT

Well, this is rather unexpected. After sheriff's deputies seized cell phones containing footage of David Silva's death at the hands of nine law enforcement officers, the assumption was that Kern County Sheriff Donny Youngblood's promise of a full investigation would result in little more than some officious noises being made and declarations that the recordings were "inconclusive" or "unrecoverable."

That this is the most common assumption shows how far the trustworthiness of law enforcement has fallen. This precipitous drop in trust is almost inversely proportionate to the increase in recordings captured by members of the public. Law enforcement has long been in control of the cameras and this power shift has resulted in some very ugly behavior. The expected mode is cover up and obfuscate, abusing the power that comes with the position.

The unsurprising part of the David Silva beating is this: when one of the phones confiscated by law enforcement (one without a warrant, the other after an illegal nine-hour detention) was inspected at the Sheriff's office, Sheriff Youngblood discovered the footage had been deleted.

The surprising part is that Youngblood decided to call in the FBI to head up a parallel investigation into the death of David Silva. Even better, he had the phones flown out to the FBI's Sacramento office for analysis. This is a rather unprecedented move. The general response from local law enforcement to situations like these is to close ranks and make vague promises and statements about "justice" and "truth." Instead, Youngblood opted to turn the investigation over to a more neutral party (and one with better tech tools).

The fact that this story has attracted national interest probably pushed Youngblood to consider other options. There's little chance the Sheriff's department would be able to control the narrative (or contain the fallout) at this point and with potentially damning footage being deleted by a law enforcement officer, there's no chance for redemption without making the investigation more neutral.

This isn't to say the FBI isn't capable of covering up misbehavior, but in this instance, it really doesn't have much of a stake in the outcome. If the footage shows what eyewitnesses have described, there shouldn't be too much of a question as to where the guilt lies.

The deputies named by the department have been put on paid administrative leave pending the outcome of the investigation, and Sheriff Youngblood has stated that these officers have been receiving death threats and negative email. This, too, is an expected outcome. The court of public opinion creates a lot of judge/jury hybrids. Naming the officers involved is a small but significant step towards a transparent investigation. Hopefully, the FBI's involvement will continue in this fashion, rather than take a turn towards the opaque.

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Florida's Redlight Program Designed To Make Driving More Dangerous By Shortening Yellow Lights

Mike Masnick — Thu, 16 May 2013 10:52:00 PDT

For years, we've been critics of red light cameras, which have been shown time and time again to actually increase accidents rather than decrease them -- which you would think should be the goal. Of course, we all know that's not really the goal. The goal has always been revenue generation for cities. If they actually wanted to increase safety there's a very simple way to do it: you increase the timing of yellow lights (and for the places, like where I live, that don't have an interval between when one direction turns red and the other turns green, you add that brief interval where all directions are red). Do that, and you increase safety and decrease accidents. And it's incredibly easy and cheap to do.

But, of course, various governments hate that idea, because it would decrease the massive revenue from red light camera fines. That's why over and over and over again, we see that various governments are caught redhanded lowering the time for yellow lights. Make no mistake about it: this increases the danger, and puts many more people at risk. Stupidly, it probably also could end up costing the city more in terms of having to respond to more accidents and deal with more injuries. But, boy, I'm sure it pumps up the revenue on red light camera violations.

The latest example of this comes via Darby Keene, who points out that the Florida Department of Transportation quietly tweaked its own standards for yellow light intervals in 2011, allowing them to be shorter without breaking the law (after many cities have been caught violating official standards). And, of course, various cities quickly did lower the interval timing. Yes, revenue at the expense of public safety. Research has shown that reducing the time of a yellow light by a mere half a second can double the number of red light camera citations -- and in some cases, the changes to FDOT's regulations meant cities reduced the length of a yellow light by an entire second. Smell that? It's the smell of revenue for cities, intermingled with wrecked cars and destroyed lives!

Even worse: while FDOT is claiming that it changed its regulations to clean up some wording, and not because of potential revenue, the report from WTSP, also found emails from FDOT engineers telling local government officials to lower their yellow light intervals to the absolute minimums allowed. That is, they weren't even saying it was just an option, they were being told to decrease the timing to make the intersection less safe, but more profitable.

And, while FDOT defended the whole thing claiming that they changed the policies to "match federal guidelines," the report explains that federal guidelines actually recommend longer yellow light times, just as we discussed above.

A USDOT/Federal Highway Administration (FHA) report said cities should not use speed limit in the yellow interval equation because it results "in more red light violations and higher crash rates." And if drivers' average speeds cannot be calculated, it's recommended engineers use the "speed limit plus 10 mph" variable to producing more conservative, and safer, yellow intervals.

Another report stresses the importance of using 85^th percentile speed to calculate yellow intervals, while slide 28 on this report indicates when yellow light times are lengthened, severe crashes drop.

USDOT also recommends an extra half-second of yellow time at intersections with lots of trucks or elderly drivers to allow them to react safely. And despite the fact that Greater Tampa Bay is home to five of the nation's 12 oldest counties (by median age), it's also home to some of the shortest yellow lights.

Don't you feel safer now?

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