Marietje Schaake, a member of the European Parliament often credited as one of the most tech savvy (and, yes, a regular Techdirt reader) has penned an excellent article, In defense of digital freedom. It's well worth a read, even if it covers many things that regular readers of the site will be familiar with. The key point it makes, however, is that we shouldn't be frightened by all the "cyberwar" FUD out there, which is designed to get us to give up our ideals on internet freedom. It discusses how much hype there is around "cyber" everything, nearly all of it trying to scare people. She admits that there are real threats, but those driving the discussion seem to have little interest in parsing them out from the hype and bluster. She notes that, in this rush for new laws, we seem to ignore that existing infrastructure can actually handle most of the actual problems.

The good news is that we don’t need ‘cyber democracy’ to guarantee ‘cyber security’. In most cases the foundations for resilience are already in our existing laws and regulations. Technologies are an essential part of our daily lives, businesses, education, cultural experiences and political engagement. As a result, resilience and defense need to be integrated and mainstreamed to strengthen both freedom and security.

[....] To prevent fear, hype and incident-driven policies and practices, knowledge, transparency and accountability are needed. Let us not make ‘cyber’ into something completely different, alien or spacy. But rather, let us focus on integrating technological developments in a way that allows us to preserve core (constitutional) principles, democratic oversight, and digital freedoms as essentials in our open societies.

She also notes that much of the hype may be driven by companies and politicians who benefit from such hype, driving new business to companies and passing new laws that give politicians more power. But, she notes, if we make policy based on those two drivers, internet freedom will certainly be put at risk. The unintended consequences are pretty clear:

US government has stated that American made, lawful intercept technologies, have come back as a boomerang when they were used against US interests by actors in third countries.

Other companies, such as Area Spa from Italy designed a monitoring centre, and had people on the ground in Syria helping the Assad government succeed in anti-democratic or even criminal behaviour by helping the crackdown against peaceful dissidents and demonstrators.

One key point she makes is that we need to have a fact-based, careful look at the issues, in which we avoid conflating very, very different things (i.e., random hacking with "war").

To avoid a slippery slope, clear distinctions between various crimes and threats are needed. Economic damage as a result of criminal activity should render a different response than a state-led attack posing national security threats. Yet, at the moment, at least in the public debate, the distinction between various cyber threats is very unclear. Uncertainly can make people feel vulnerable, while it is internet users and citizens that need to be informed and empowered. We need to build resilient and educated societies instead of installing fear.

States also need to prioritise in their partnerships, and look for consistency of actions by different government departments. Recently, the United States chose to sign a bilateral agreement with Russia on combatting Intellectual Property Rights infringements. The agreed cooperation seems in direct contradiction with objectives of the State Department in the field of internet freedom. In Russia, a newly adopted law gives the state the authority to use Deep Packet Inspections in internet traffic.

There's a lot more in the piece as well, and I think many of our readers will find it quite interesting. It's always nice to know that there are some elected officials in the world are trying to base key policy decisions, including those around internet freedom, on reality rather than fear and hype.

Unless, like me, you are looking at the release dates for the next generation of gaming consoles the way a starving hyena watches an approaching gazelle that's been eating nothing but butter for weeks, perhaps you're not up on all the information coming about regarding Microsoft's next console. Actually, as I'll discuss in a moment, even if you are paying constant attention, you probably still don't know a whole lot for sure. See, after months and months of speculation on possible features of the next Xbox, Microsoft stupidly decided to not firmly address any of that speculation at the release event for the Xbox One. The most troublesome in terms of bad press have been rumors about online connection requirements and how used games would be handled. I say press, but perhaps I should rather say non-mainstream press, because it's really been the smaller blogs and citizen journalists that have produced a roundly negative buzz for the Xbox One.

You would think that in a negative and uncertain climate that's been brewing for the past several months, Microsoft would use the official release press event as a way to clear all of this up. Good answers or bad answers, it's important that the public and the press have a firm understanding on what to expect out of the console. Aren't we constantly told that uncertainty is four letter word in economics and business? That's why it's so curious that Microsoft appears to have provided very little in the way of answers and what answers it has chosen to supply have been both contradictory and confusing.

So, let's take the two issues in order. First up is rumors about online requirements.

It turns out that the detail we were murkiest about was the one Microsoft themselves are the murkiest about. The official Microsoft party line on the day the company revealed the Xbox One: "It does not have to be always connected, but Xbox One does require a connection to the Internet."

Welcome back. I say that because I assume you just spent the past fifteen minutes rereading that last sentence over and over again trying to figure out what the hell it means. As it turns out, the key word is "always." The Xbox One will require an internet connection at certain points, but it won't need to constantly be connected to function. So, what are those certain points? Well, nobody, including Microsoft, seems to know, which is strange of them to admit since it's their nun-punching freaking product. Microsoft executive Phil Harrison told Kotaku that he "believes" a connection is required once every 24 hours. Oh, and possibly one is needed in order to play a new game for the first time. Also when you first use the console. The lack of finality in these answers is astounding, particularly coming from a Microsoft executive giving interviews at the release event. Imagine going to your local auto show and having a Ford Motor VP telling you how wonderful their new car is, but can't firmly answer any questions about its motor or how many miles-per-gallon it gets?

And with the question of used games, we do no better. Harrison told one reporter:

"We will have a system where you can take that digital content and trade a previously played game at a retail store. We're not announcing the details of that today, but we will have announced in due course."

Then told another:

"We will have a solution—we're not talking about it today—for you to be able to trade your previously-played games online."

What you immediately notice is not only the lack of any specifics to one of the major questions hanging over the console like a set of rain clouds, but even these two non-answers are different. The first talks about used games being traded at retail stores, while the second seems to mention trading games online. That'd be a huge development if true, with some kind of Microsoft online trading platform threatening GameStop and other used game retailers. Speaking of which, reports are already surfacing that Microsoft is requiring agreements limited to select retailers to actually be able to buy and sell used games. If those reports are accurate, trading games will only be possible through those select retailers and the game publisher and Microsoft will take a massive cut of the transaction, leaving retailers with very little margin. The end results of this setup will be higher prices for used games and the inability for gamers to trade games with one another.

Still, as bad as that would be, Microsoft hasn't even officially confirmed that program either. Between that uncertainty and that of online connection requirements, it's no wonder the general public hasn't been keen on the Xbox One release yet. There is a market, sadly, for the kind of walled gardens and restrictive requirements discussed above. Apple's mobile devices prove that. But where Apple officially and boisterously owns those concepts, Microsoft's opaque stance on these questions can only mute any release buzz for their new console. It's high time the company got everyone on message.

We've already written about how the DOJ has a bit of history of spying on journalists' phone records without following the rules, and that was only scratching the surface. On Monday we showed that to be the case with the revelation about the questionable spying on a Fox News reporter. The DOJ didn't just spy on him, but also suggested he was a co-conspirator, for merely doing basic journalism. Over at Mother Jones, Julian Sanchez has an article, which was written prior to the revelation about Rosen, but talking about how everyone claiming that the DOJ's actions with the AP are "unprecedented" are probably wrong. The Justice Department has a variety of loopholes it can jump through to claim spying on reporters is legal. Often, this seems to happen because the FBI/DOJ seem to believe that they get to interpret the rules however they want to interpret them with little or no oversight:

Only in January 2009 did the FBI think to ask the Justice Department's in-house lawyers whether the press restrictions apply when reporter records are obtained through indirect means such as community of interest requests. Government lawyers said yes, but the FBI concluded it didn't have to tell the press in the specific case it had inquired about, because agents had not "understood at the time the subpoenas were issued that the subpoenas called for reporters' records."

As he points out, the real story around all of this might not be the "unprecedented" nature of spying on reporters, but rather how common it is, without anyone knowing that it's happening (and while the DOJ's publicly stated rules suggest that this kind of spying won't happen).

The real scandal may be just how much snooping on the media the current rules permit. To fully understand the AP seizures, the media and the public need a clearer picture of the rules governing all forms of spying on media—and how often such info-grabs have happened. Maybe the seizure of AP records is an extraordinary case. Or maybe the only extraordinary thing is that we're hearing about it.

So, instead of being outraged about just how unprecedented these events appear to be, perhaps we should be outraged over how common they probably are -- and how the DOJ appears to have a totally cavalier attitude towards spying on journalists.

Making your own carbonated soft drinks has a few benefits -- from knowing where all the ingredients came from (eg. no brominated vegetable oil) to getting the satisfaction of creating your own custom flavoring. It's not quite as simple as punching a button on a vending machine, but it's not exactly rocket science, either. Here are just a few links on being your own soda jerk.

• Sodastream has been around since 1903, but it went public on the Nasdaq in 2010 and started expanding its DIY soda making system to take on the big soft drink makers. But marketing itself as an alternative isn't always easy, and it had to change its 2013 SuperBowl commercial to remove Coke and Pepsi logos. [url]
• The secret recipe for a can of Coca-Cola isn't just getting the mixture of caramel coloring and phosphoric acid right; there are also a zillion other details from packaging and distribution that have been optimized. The top of the aluminum can is actually a different aluminum-magnesium alloy from the rest of the can, engineered so it can have a pop-top and still withstand the pressurized contents. [url]
• When making your own soda, be sure to use 100% essential food oils that are rated food grade. Recipes to make Open Cola and the "original" Coke are available, but there's a bit of set up involved. [url]

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

During the course of President Obama's administration, he has gone back and forth over support for the WIPO treaty for the blind, which would make it easier for vision impaired people to get copies of books that they can read (allowing legally made copies to be shared across borders). It's a pretty simple proposition, and while the White House had announced support for the agreement back in 2009, the people who were responsible for that position were later replaced by content industry folks, who suddenly changed the administration's position on the treaty. Since then, the administration has been responsible for blocking the treaty from getting done. And, of course, we've seen the MPAA celebrate this lack of a treaty, because it sees any attempt to negotiate a treaty that includes "exceptions" to copyright (i.e., rights of the public) expanded as a problem.

With the next round of negotiations set to take place soon in Morocco, a "We the People" petition has been set up to ask President Obama to side with the blind, rather than the MPAA.

Less than 1% of printed works globally are accessible to the blind. This is because laws around the world bar printed material from being turned into formats useable by the blind and visually impaired, or for such material to be shared across borders.

That’s why 186 countries will soon convene in Morocco to finalize a Treaty that would empower the world’s nearly 300 million blind citizens with the same rights to read, learn, and earn that the sighted enjoy. However, huge and powerful corporations – many wholly unaffected by the proposed Treaty – are working to fatally weaken it or block its adoption.

Ask the President to compel US negotiators to fight for a strong Treaty that gives blind people equal access to books and doesn't burden those who want to provide them. Please sign today!

It may be difficult to get to 100,000 signatures, but We The People petitions have previously been successful in getting the administration to come out against SOPA and against the Library of Congress' decision to say that unlocking mobile phones is a form of copyright infringement.

Here's a wacky one. Blogger Mark Reinhardt, who blogs about Idaho, had written a blog post critical of local TV station KTVB and its news reporting. With it, he included a YouTube clip of the reporting in question, along with some of his own commentary about why the reporting was "one sided journalism." While the disclaimer he posted with it, which implied that he believed the use was fair use, was legally meaningless (and slightly incorrect), using a news clip and commenting on it is still a classic form of fair use. Either way, KTVB claimed the video and had YouTube take it down, saying it was infringing. Whether or not it was actually infringing is actually not a huge part of the issue, because what happened next was interesting.

Mark Reinhardt remembered that, last year, KTVB had used one of his videos to illustrate a story. Amazingly, they didn't even credit it to him, but generally to "YouTube." So, he went tit for tat, and sent KTVB an email demanding that they remove his video (or, that they properly credit him). There are, of course, a number of legal problems with his particular notice. It does not meet the requirements of a proper DMCA takedown notice (not even close). Also, while he's emailing KTVB, he only provides them with a YouTube link, rather than the link of the story. If he wants the video taken down from YouTube (unlikely, since it's his video), then he needs to alert YouTube. If he wants it off of KTVB's site, then he needs to file a compliant DMCA notice pointing to the KTVB story. Of course, KTVB would have a number of reasonable defenses (including fair use and implied license, given that the video was on YouTube with embedding enabled).

Either way, it does seem rather interesting that the news channel issued a takedown on his use of their video, when it had no problems running one of his videos without credit.

It looks like the bill for Prenda Law is going up. Yet another court has now awarded attorneys' fees, telling "AF Holdings" (one of Prenda's shell companies) to pay $9,425. Of course, since Prenda still tries to deny that it controls AF Holdings, I'm sure they'll try to avoid paying up. It would be extra amusing if they suggested Alan Cooper should pay up, since that's the name that was signed on various AF Holdings' filings, but which many people believe was really signed by John Steele. Of course, since that whole "faking the name" thing flopped, it's now been Mark Lutz -- former paralegal/lackey of John Steele -- who has been "named" as the boss of AF Holdings. So, it sounds like Lutz should pay this one... Now the question is how long does it take Lutz to realize that Steele, Hansmeier and Duffy will probably leave him hanging out to dry as well?

Assuming you haven't been under a rock, there's a decent chance that you've seen astronaut Chris Hadfield's rendition of David Bowie's Space Oddity (with the lyrics conveniently changed to skip the whole dying in space part). The video was released just before Hadfield returned to earth, and completely fit with Hadfield's time on the International Space Station, where he became the world's first serious social media expert from space -- tweeting, Tumbling and YouTubing up a storm. But... filming a cover song and releasing it via YouTube from space had some people wondering: can you untangle the copyright issues here? Thankfully, Glenn Fleishman dug in over at the Economist (which, lamely, still refuses to name their writers, but now provides the "initials" of bloggers, so you can parse out who's who), and explained what a fine mess it is.

The punchline here is that it doesn't really matter, because after a bunch of back and forth negotiations, they got all the permissions they needed directly from David Bowie. But, assuming others start going up into space (yay, private space tourism), this issue is going to be raised sooner or later. Glenn points out that it's kind of messy, because different countries have very different compulsory licensing laws for cover songs, and there are no compulsories for sync licenses, which are needed to put the song to a video. There was also the issue of the International Space Station having different sections "owned" by different countries, and the official agreement says that it matters where creation happens -- so if the video had been done in all different parts of the space station, it potentially could have been a mess (though, it looks like it was all filmed in parts owned by NASA).

While there's no issue with this specific case, Glenn alerts us to a paper from a few years ago that lays out how copyright in space is about to get complicated:

The copyright issue may seem trivial, but the emergence of privately funded rocket launches, space tourism and space exploration hold the potential for more substantive disputes. If an astronaut were to travel to the Moon, an asteroid or Mars on a privately funded spacecraft, the situation would become knottier still, because the United Nations Outer Space Treaty of 1967 applies to countries, not companies or private individuals. J.A.L. Sterling, a London-based expert on international copyright law, anticipated all this in a 2008 paper, "Space Copyright Law: the new dimension", in which he lists dozens more potentially problematic scenarios that could arise, some seemingly risible at first. He asks what would have happened if, on a moon landing broadcast live by NASA across the world, two astronauts were overcome by emotion and burst into song—one covered by copyright. NASA might still be engaged in litigation 40 years later. More prosaically and immediately plausibly, Sterling considers space travellers who put copyrighted material from Earth on a server reachable from space, or engage in rights-violating "public performances" for crewmates. If the first person to walk on Mars decides to launch into "A Whole New World", the rights will need to have been cleared with Disney first.

Yeah, remember Rob Reid's funny sci-fi novel about copyright in space? Perhaps, like many sci-fi books, it will eventually turn out to be an accurate prediction of the future.

Leonard Barshack, who founded BigFoot, which was a (quite popular) internet forwarding mailing service in the dotcom era, has apparently sued Twitter for taking away his username, @SunValley and giving it to the Sun Valley resort. Barshack, who lives in Sun Valley, Idaho, claims that taking away his username was a violation of Twitter's policies, because he didn't really violate Sun Valley's trademark. As Eric Goldman notes, this lawsuit has little likelihood of succeeding. Twitter claimed that the combination of using the name @SunValley with a sun logo similar to Sun Valley's, was a non-parody impersonation of the trademark holder.

Reading through the actual filing, Barshack, who is represented by his wife, Erin Smith, who also is a plaintiff, focuses on the fact that Sun Valley doesn't indicate on its website that its logo is covered by trademark. That's about as close to meaningless as you can imagine. Not only do you not have to show that it's a registered trademark, you don't even need to have a registered trademark (though, it helps if you're seeking damages) because common law trademarks are perfectly acceptable in most cases.

But, more to the point, Twitter has no legal obligation to let you keep your account. If it wants to take away the account and shut it down, it can. If it wants to change the name of your account, it can. I just don't see what the purpose of the lawsuit is, other than that Barshack is upset. I can understand that, and I might even agree that Twitter could and should handle disputes like this differently, but that doesn't give him any basis at all for a lawsuit. Not liking something that a company does isn't a reason to sue.

While we realize that the intricacies of IP law (and its often-attendant ridiculousness) can be rather difficult for the average, uninterested person to parse, it's really not asking too much to expect large international news agencies to make an effort to get the terminology right.

As you recall, Kim Dotcom recently announced he holds a patent for two-factor authentication, which he then waved in the direction of other internet titans like Twitter and Google, promising not to sue in exchange for contributions to his legal defense fund.

Here's how AFP (Agence France-Presse), the third-largest news agency in the world (and one of the oldest) titled its coverage of the Dotcom/patent story: Kim Dotcom might sue Twitter, Google and Facebook over copyright infringement.

Congratulations, AFP. The headline sounds like Facebook itself wrote it, using machine learning to gather IP-related flotsam from the feeds of millions of teenagers, each one bragging about trademarking their copyright on some catchy phrase they misheard on Twitter ("Be careful talking when you have a mouthful of glass") and regurgitating its findings in 40-pt font across the top of Raw Story's piped-in news selection.

The story reiterates the "copyright" claim in the opening paragraph.

Internet mogul Kim Dotcom said Thursday he was considering taking legal action against tech giants such as Twitter, Google and Facebook for infringing copyright on a security measure he invented.

Then it quotes Dotcom tweeting about his patent and even remarks on the fact that Kim posted a patent approved in 2000 as proof. But, even with multiple chances to rescue this story from the unfortunate headline, AFP continues down its chosen path.

Dotcom said he had never sought to enforce copyright on his invention but was now reconsidering in light of the US case accusing him of masterminding massive online piracy through his now-defunct Megaupload file-sharing site.

Now, the hypothetical teens used above can be excused their (hypothetical) ignorance. But a news agency, especially one of AFP's size and longevity? Not a chance. It's especially inexcusable when AFP seems to know the correct terminology when its suing Google for linking to its stories or suing a photographer whose photographs it used without permission. (No, you read that last part right.)

Perhaps AFP truly doesn't understand the definitions and limitations of various IP protections. It certainly doesn't seem to be too well-informed in the linked stories. Maybe AFP views all IP terms as interchangable. It may be striving to know just enough to be dangerous, but to date, it only seems to have gathered enough knowledge to injure itself.