We've talked before about services that attempt to measure someone's social media "influence" and the inherent silliness of the concept. Although the numerical values assigned by services like Klout are, at best, weak indicators of a person's actual influence, it's not surprising that people are trying to make it work. The advertising industry has run on flimsy numbers for a long time: newspaper readerships and television ratings are all extrapolated, not directly measured, and advertisers pay rates based on numbers that may or may not be indicative of how much exposure they are really getting. This was an advantageous situation for the media industry, but the digital world has largely nullified that advantage. Today's advertisers are clamouring for social campaigns and viral ads, but ad agencies and publications aren't quite sure how to actually measure those things—or how to charge for them.

So it's interesting, but pretty bizarre, to see some short film creators attempt a promotion that places an arbitrary dollar- penny-value on their fans' Facebook friends:

A 40-minute film called Andy X (about the life of Andy Warhol), which was available for streaming starting Feb. 22, is offering interested viewers an opportunity to get a discount on the $6.99 price tag. As the promotion explains, "We're trying something a little different here. We're letting you pay to watch the movie by using your friends as currency."

In other words, one Facebook friend equals one cent. If you have 300 friends, you'll pay $3.99 for the rental. Don't get too excited if you have more than 400 friends since there is a cap ($2.99 is the least you'll be able to pay to stream the film).

It's a novel idea, but one that I doubt will work for a variety of reasons. For one thing, number of friends is an even worse influence metric than something like Klout, which at least looks at multiple factors. People use Facebook in all kinds of different ways: someone with 100 friends might be a quiet user who uses the site for little more than private messages and birthday wishes, or they might be a powerful voice who keeps a small social circle of others like them. Similarly, someone with 1000 friends might be a trendsetting socialite, or they might be an indiscriminate social media butterfly whose posts are lost in the noisy news feeds of other people who also have 1000 friends each, and who don't really remember who they are.

Moreover, the promotion doesn't actually encourage fans to do anything. Nobody is going to go out and add an extra hundred friends to save a dollar, and those getting the full discount have no added incentive to actually use their supposed influence on behalf of the movie. I bet this promotion will alienate a lot of people, since it's basically a direct insult to anyone with fewer than 400 friends. Telling your fans that they have to pay more because they don't use Facebook the way you want them to (or don't use it at all) is not going to endear you to them. "You have been weighed in the balance of customers, and found wanting."

I'm all for creators trying to leverage the evangelistic powers of their fans, but the creators of Andy X have really missed the mark. Their promotion comes across less as a reward for fans who have big social circles and more as a punishment for those who don't—and it doesn't encourage either group to do anything useful.

Lots of advertisers are turning to data mining techniques to try to squeeze more value out of their budgets. Given all the data that gets collected by our phones/browsers/credit cards/etc, it's not too surprising that ads can get pretty creepy, pretty fast. Here are just a few stories about ads that aren't technically doing anything wrong -- but that haven't quite gotten their privacy behavior right either.

• Target has been highlighted for its uncanny ability to predict when women shoppers are pregnant. Public birth records just aren't updated anywhere near fast enough for retailers who want to know when to start sending targeted ads to new parents ASAP. [url]
• Marissa Mayer said credit card companies can predict a divorce with 98% accuracy two years before it happens. Considering 50% of marriages end in divorce anyway, that might not be considered impressive..? [url]
• Facebook uses photos from some of its users to help promote various products, and sometimes the results are far from flattering. Becoming the new spokesperson for 55 gallon tubs of lubricant probably isn't what Nick Bergus wanted to be. [url]
• To discover more interesting advertising-related content, check out what's floating around on StumbleUpon. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

We've already discussed EPIC's silly attempt to legally force the FTC to punish Google for its new privacy policy, but it seems like it didn't need to bother. There is a fair bit of interest around the globe in smacking down Google for the new policy. Even the FTC (which fought EPIC's demands) has said that Google's new setup offers a "brutal" choice to users, in that they agree to the site-wide policy or cut off their Google accounts. But the biggest threat appears to be coming from the EU, where Justice Commissioner Vivane Redding has flat out stated that the new policies violate EU rules and regulations. The Canadians actually say the policy is a step in the right direction, but that the company hasn't been clear enough with users. Google, obviously, disagrees with these complaints, but there's no way this doesn't somehow end up in a legal proceeding on both sides of the Atlantic.

For what it's worth, I tend to fall in the middle of these, leaning towards the same view as what the Canadian privacy commissioner said. There is actually some benefit for there being a single privacy policy across all sites, but giving users just over a month to process all of this, what it means, and how they want to deal with it does seem a bit abrupt. Also, as much as Google tried, it really failed in showing why this might benefit users, and may have crossed that "uncanny valley" line of suggesting that this would be used in somewhat creepy ways. Furthermore, it does feel like the new setup is a bit extreme in terms of the choices that people have. It would seem that a much more flexible policy would make a lot more sense.

There are ways to avoid having Google collect too much info on you, but they are a bit clunky, even if Google insists otherwise. It seems that a much better policy would have been to have given much more notice for such a change, along with much greater control for the users in terms of how it's implemented. I don't understand the gleeful cries of some suggesting that the new setup is a sign of "evil," but from a positioning standpoint, Google didn't do a very good job at all in explaining this to users.

We're going to try something new, starting today: The Techdirt Book Club. There are tons of interesting books coming out these days, and we keep getting questions from the Techdirt community about other things they should be reading. So, we're going to try to set up a somewhat informal "Techdirt Book Club" (not to be confused with the original Techdirt book club from a few years ago, where we offered a bundle of cool, signed books). In this case, we're going to pick a book to read as a community each month, and then host a discussion towards the end of the month about the book hopefully including the author of that book as a part of the discussion.

To kick it off, for the month of March, we're thrilled that Rebecca MacKinnon has agreed to take part in a discussion around her recently released book, Consent of the Networked, which discusses "the worldwide struggle for internet freedom." Considering recent events around the globe -- from the Arab Spring to the SOPA/PIPA fight to ACTA, Anonymous and Wikipedia -- that have touched on this topic, it certainly seemed timely. The book is fascinating, and there's plenty of "red meat" topics for discussion -- much of which people around here are likely to agree with... and some they might not. Thus, I'm sure it'll be an interesting and lively discussion.

If you'd like to take part... go read the book. Later on in the month, we'll get the discussion kicked off, but we didn't want to do that until people have actually had a chance to read the book. Then Rebecca will join in the discussion as well, and hopefully we'll all learn something and solve the world's problems (or something like that).

This is very much an experiment at this point, so we're learning as we go, but the plan is to do this with a new book every month, and hopefully have some great discussions with lots of interesting authors.

Back in January, we wrote about a quite limited ruling by the Supreme Court in the Jones case, which said that placing a GPS device on a car represented a search and was trespassing. Where the court held back was in discussing the reasonableness of the search, and whether or not it was actually constitutional to do so without a warrant. Some expect that a future case might rule that those searches are reasonable and don't need a warrant, but apparently the FBI isn't taking any chances. It's supposedly shut down 3,000 such devices -- and is now having trouble retrieving many of them since it doesn't know where they are (it's apparently asked courts to allow it to turn the devices on solely for the sake of retrieving them). Of course, this raises a bigger question that isn't answered: why didn't the FBI just get a warrant to use those devices in the first place? If it had done that, then there wouldn't be any issue to deal with here at all... It seems that the only reason not to get a warrant is because they're conducting fishing trips, rather than targeting those where there's probable cause.

We already wrote about the pointless copyright freakout that some are having about Pinterest -- and since then, not a day has gone by without someone pointing us to yet another hysterical article by someone about how Pinterest is some copyright horror show. Lately there have been a bunch of... silly... stories about the specifics of Pinterest's terms of service. However, in all of this debate, one rather important point seems to have been left out of most of the discussions: Pinterest drives a ton of traffic back to original sources.

For all the concerns about how Pinterest is infringing on various sites and copyright holders, the reality appears to be that it drives so much traffic that it's difficult to understand why people are complaining:

Beginning this summer, Pinterest became the top social referrer for marthastewartweddings.com and marthastewart.com, sending more traffic to both properties than Facebook and Twitter combined. Pinterest is on track to become the second highest traffic driver (after Google) to Cooking Light‘s website, up 6,000% from just six months ago. The social bookmarking site already drives three times the amount of traffic to Cooking Light compared to Facebook.

Elsewhere, Pinterest is the fourth largest source of traffic for Country Living, up 150% from August to the end of January, and accounts for 3% of all referrals. It was the ninth largest traffic source for both Elle Decor and House Beautiful last month, both of which have seen triple-digit percentage increases in referrals over the last six months, and was among the top 10 referral sites for Self magazine.

In other words, as we've seen time and time again, it appears that, for those who are willing to embrace the new technology and service (rather than freak out) there are tons of opportunities. Unfortunately history tells us that more will continue to freak out before they realize this.

Last month, we wrote about how the USPTO had stepped in to a brewing fight between copyright lawyers and patent lawyers, saying that it believed that submitting journal articles as part of the patenting process was fair use. Apparently, the copyright lawyers working for the scientific journals disagreed... and the fight is on: the journals have sued a bunch of patent lawyers for making use of articles from the journals in preparing their patent applications. The journals, in their desperate desire to squeeze more cash out of everything, were demanding that patent lawyers get an additional license if they wanted to submit copies of journal articles along with patent applications.

While it's rare that you'll find me agreeing with the patent bar on very much, on this one, I'm on their side. The lawsuit, lead by publisher John Wiley, is kind of crazy. We're not talking about people who are getting copies of the journal for free. These are generally people who have a legitimate subscription to the journals, and are submitting copies of the information as part of the patent process -- as they're required to do by law. This is just yet another attempt by the publishers to get paid for every single possible use, even for those who already have legitimate access. And, of course, these journals don't have the best reputation these days, with their attempts to block open access requirements. While there may be some appeal in making it more difficult to get a patent (something where I believe the bar needs to be much, much, much higher), I don't think this is as reasonable way to do so.

In nearly every way, it seems like submitting such a journal article as part of a patent application process should be seen as fair use. It really does fit the kind of key "spirit" of the fair use rule.

For many years now, I've argued against the idea of calling for "balance" in copyright law -- because I don't think it makes much sense. In articles from 2007, 2009 and 2011, I argued that by focusing on "balance" -- as many critics of copyright law do today -- we make a huge mistake. Arguing for balance is setting up the system as a zero-sum game where each trade-off involves a winner and a loser. But history has shown that not to be the case. It is not a zero sum game, and things that might make one side think they're "losing" might actually make them better off (take the VCR for example -- which the movie industry insisted was a horrible abuse of copyright law... until it became the key reason why the industry thrived).

Now, following the postponement of the Africa IP Forum, which came about, in large part, due to civil society groups arguing that the event wasn't "balanced" enough, lawyer Alan Story has put together an altogether brilliant condemnation of the talk of "balance" in copyright law, arguing that it is impossible to balance a fundamentally unbalanced system. Much of his attack isn't necessarily on the concept of copyright law itself, but on the nature of the Berne Convention, on which (tragically) much of modern copyright law is based. There's so much in Story's writeup that is worth reading that I recommend you go check out the whole thing, but here are just a few snippets and some commentary.

Every one of the central principles or elements of copyright is one-sided and unbalanced, that is, they favour the owners of copyrighted goods..... The main elements of copyright include the ideology that the world’s knowledge and creations should be owned as private property, that they should be traded as commodities in global capitalist markets, that copyright owners should have exclusive rights, that fair dealing /fair use principles mean what is fair to owners, that creativity will dry up without the incentive of copyright, that there are no alternatives to copyright, that spreading copyright regimes (and the stricter the better) benefits the whole world, and a few other foundational principles and justifications of this Western legal and philosophical export to the global South. Take away these principles and you know longer have copyright. Conversely, accept these principles and you have accepted 98% of the story that WIPO and the US Department of Commerce will be disseminating in Cape Town when their re-scheduled IP summit is held. All that is required, they suggest, is some fine-tuning, a bit of ‘tweaking’ around the edges of the remaining 2%.

Story argues that the entire system is based around giving a ton of power and control to the copyright holder (who, he notes repeatedly, is very rarely the content creator). A system "balanced" between the rights of "users" and "creators" would actually contain, you know, some rights for users:

If you have an hour or two in the next few days, read through Berne, clause by clause, and keep a running tally of: a) how many rights are guaranteed and mandatory to the users of copyright in every Berne Convention country? ; b) how many rights are guaranteed to the owners of copyright? The answer to question a) is very brief. Other than what is included in Article 10 (1) of Berne, namely, the right to use quotations already available to the public, there is not a single mandatory right that all users in the world possess, and even this narrow right is qualified. This is another reason why some of us believe that not only is the international copyright system grossly unbalanced, but it is also unbalanceable.

He also hits on a key point that many have talked about in regards to the fact that nearly all creativity builds on the works of others. That's a recognition that users are creators so separating out "rights of users" vs "rights of creators" ignores the reality that nearly everyone falls into both camps:

To pit the interests and rights of users against those of authors (again used as a term to designate all creators, whether composers, sculptors, or video game developers) is also a serious mistake. It is based on binary formulation which suggests that users of copyrighted materials are not also creators and that creators of copyright materials are not also users. To return to the same sentence quoted in point 3) above, where else do creators get the requisite tools for their work other than from ‘education, research and access to information’?

Story also points out a specific problem under Berne, in that beyond the fact that it doesn't actually establish any real rights for users -- just for copyright holders -- it makes the system even worse (significantly worse) by merely setting "minimums," with mandatory floors. That means that copyright generally can only be ratcheted up, not down.

The question of duration of copyright provides us with one easily-grasped example. The Berne Convention states that member countries must, at a minimum, establish a copyright term of life of the author, plus a minimum of another 50 years. As is sometimes not appreciated, this already is a very long period of time; it means that a pop song written this year by a 25-year-old songwriter could still be restricted by copyright in the year 2112. Yet it is perfectly legal for a country to extend its copyright term to life of the author, plus 100 years, which would restrict the same song until 2152. This is what Mexico has done. Or the copyright term could be raised until it was forever, minus one day. Consider what would have been situation if Egyptian government had gone ahead with its announced plan of 2008 to use copyright law to protect its pyramids as cultural property. The Egyptian term of copyright would then have become life of the author, plus 5000 years. Absurd? Yes. Perfectly legal, however, under the Berne Convention. Conversely, if a country decided to reduce its term to simply life of the author, which would still often leave a term of 30 to 40 years or even longer, such a law could result in that country being expelled from the Berne Union as well as the World Trade Organisation. Moreover, copyright owners might complain future years of royalty payments had been lost due to term reduction and claim their private property had been taken without compensation. Such a circumstance shows the impossibility of balance.

You can't have "balance" when the entire system is set up strongly to benefit one particular group. And the thing is, that "group" is rarely actually the creators. Again, Story provides some details:

As for the supposed rights which the copyright system gives to musicians in disputes with recording companies, consider what happened to two leading musicians of the past century. If, as already mentioned, Bob Marley (1945-1981), called the ‘Third World’s first pop superstar’ (Wenner), was unable to hold onto the copyright to many of his best known songs, what chance does the so-called average musician have? Or how about what happened to the path-breaking US bebop jazz pianist Thelonius Monk (1917-1982) who signed a long-term recording in 1962 with Columbia Records, a major recording label at the time. When the contract was over in 1970, Monk amazingly owed Columbia more than US$100,000. Copyright did not help Monk much.

There's a lot more in the article and, if you haven't done so already, I really encourage you to read the whole thing. Story is arguing something slightly different than my argument against balance, but the two arguments are related. My argument is that balance only belongs in a system where you have a zero-sum game and giving one side something automatically means another side gets less. If you have a non-zero sum game, then the goal should never be about finding the balance, but about finding the "maxima" -- the point on the curve that provides the most benefits. If you actually believe the (US-defined) purpose of copyright law to be to "promote the progress" then it seems that should be the goal.

However, what Story is arguing is that the entire system of copyright was never set up to be a balance at all, but rather as a system to grant powers to copyright holders against everyone else -- and that the Berne Convention, in particular, is particularly nefarious in how this is set up. I don't think our arguments contradict each other, but are merely just two different ways of noting that copyright law today is not about balance at all, and focusing on balance is a mistake, and doesn't really help the situation. Like Story, I'd urge even those pushing for copyright reform to avoid the use of "balance" in discussing copyright law, because you're already playing into the wrong framework.

A recent NY Times article about the changes happening at the Washington Post noted that, for years, the company was boosted by its subsidiary, Kaplan, famous for its test preparation offerings. However, thanks to some new federal rules, that business has been shrinking. Apparently Kaplan's lawyers are looking for other ways to pick up some spare cash -- such as ignoring the First Sale doctrine that lets people resell legally purchased books without it being a copyright violation.

After sending a nastygram with a demand for $300 to a student who put up a used copy (which she had purchased used as well), a letter was sent to Kaplan's lawyers from Paul Levy at Public Citizen explaining the law to Kaplan and refusing to give in to the crazy demands in the letter:

In fact, elisha8779 is a medical student who bought a used copy of the notes from another student. Regardless of whether Kaplan might have a contract action against that seller, Kaplan has no copyright claim against anybody, and it certainly has no claim against elisha8779. This issue was conclusively determined by the Supreme Court of the United States in Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908), a case that is still good law.... Consequently, in response to your "cease and desist," elsiah8779 will not return any books in her possession and she is certainly not going to send you $300 dollars for having exercised her statutory first-sale rights.

Levy then goes on to directly scold Kaplan for this move and suggests that the company not pursue similar claims against others:

Beyond that, you and your client should be ashamed of yourselves for trying to intimidate students into giving up their first-sale rights. elisha8779 is not planning to file a class action for a declaratory judgment of non-infringement--she wants to get on with her life--but we are going to be looking for other clients who may not be so charitable toward Kaplan. I strongly suggest that you stop sending these frivolous demands.

Following the feds seizing bodog.com, Mark Jeftovic from EasyDNS wrote a really interesting post pointing out just how insane these domain seizures are. He focused on the fact that Bodog was run outside of the US, hosted outside the US, and the domain registrar was even outside the US. Thus, the feds went straight to Verisign to seize the domain. For what it's worth, while I share his concern about the insanity of this, I don't actually think this is new. As we discussed back in 2010, the government appeared to go direct to Verisign for earlier seizures. As we said at the time:

It appears that Homeland Security contracted out the seizures to a private company, immixGroup IT Solutions, which set up the "seizedservers.com" domain that the seized domains now point to. The other bit of useful info is that the seizures appear to have been done directly by VeriSign at the top level domain level. VeriSign, of course, controls the .com TLD, and so Homeland Security appears to have just asked VeriSign to move the domains (with a court order, of course), and it did so.

However, we agree with Jeftovic that this is crazy, and if it finally gets some more attention now, that would be a good thing. Another point that he raises is that the Bodog seizures seem to be based on a violation of Maryland state law, which raises additional questions about jurisdictional issues. You may recall a few years ago, that the state of Kentucky tried to seize a bunch of gambling related domains, and the world freaked out about a massive overreach by that state against websites that had no presence in the state. Shouldn't there be similar concerns when it comes to a Maryland state law... and the federal government?

But there's a bigger point in all of this, which Jeftovic raises at the end, which deserves a lot more attention: where the hell is ICANN on this and why isn't it speaking out against these domain seizures?

Where the fsck is ICANN in all of this?

They are nowhere. They are collecting their fees, pushing their agenda of as many possible new-top-level domains and despite the fact that SOPA, ACTA, PIPA et aim directly at the interests of their core stakeholders, for whom they are supposed to be advocates and stewards.  ICANN is conspicuous in their absence from the debate, save for a smug and trite abdication of involvement (i.e. "ICANN Doesn't Take Down Websites") – translation: "This isn't our problem".

And therein lies the issue. ICANN needs to make this their problem, because it very much is. If ICANN isn't going to stand up, and vigorously campaign for global stakeholder representation in these matters, than they are not only abdicating any responsibility in the ongoing and escalating crackdown on internet freedom, they are also abdicating their right to govern and oversee it.

They need to be visible, they need to be loud and they need to come down on the right side of these issues or they need to be replaced.

It's a good point that highlights what a joke ICANN has been on this front. It should have come out right when ICE started seizing domains. The longer it's silent, the worse it makes things.

In the past we've discussed the ridiculousness of claiming that the internet is some sort of "wild west" without laws just because some people don't like the laws covering the internet. Clearly, there are plenty of laws that deal with the internet. What people really mean when they call the internet "the wild west" is that they simply don't like the laws -- and specifically that those laws don't fit into the analogy they have crafted for the internet.

But it's important to recognize that the analogy they have crafted is just an analogy.

Just as claiming that copyright infringement is "the same as taking a CD out of the store" is a bad analogy, so are the claims that the internet is lawless. The fact is that the internet is different. That doesn't mean that there shouldn't be any laws online -- and as noted, there are tons of laws that impact the internet already. It's just that you can't do a one-to-one comparison between situations online and offline, because they're not the same.

And this works in reverse as well, which was brilliantly demonstrated a few weeks back by Julian Sanchez, who sought to flip the analogies by posting the typical "lawless internet" script, followed by a similar screed looking out from the internet:

At regular intervals—too short for it to even be amusing anymore—we now hear that debates over Internet regulation would be more productive if only people would get it through their thick skulls that the Internet is not some special free-for-all zone. There’s no reason it can or should remain magically exempt from the rules that apply everywhere else (we are reminded) and it is absurd and mysterious that some people (we are assured) believe otherwise.

This is a fair point. But what about all these hippy-dippy Real World anarchists who think meatspace can remain immune to the rules any well-managed virtual community understands to be essential? How is it, for instance, that citizens are physically capable of injuring each other, regardless of whether they’ve opted in to player-versus-player? And what fool designed it so that my image is visible to all other users in the same city, even if we aren’t friends? You’ve even apparently got to jump through a bunch of hoops to get something called a “restraining order” just to implement a simple user block!

The key point: there are certain things that are simply different in both worlds, and while you can try to create a direct analogy -- or even say that we must create an analogy, all of those analogies break down as you dig deeper. In the real world, someone taking a CD means there's one less CD to sell. That's not true online. While you can make copies of something in the real world, online it's instantaneous and exact. No matter what the analogy, you'll run into problems, which is why relying on analogies never involves looking at the real issues. So using such analogies is always going to be a mistake. Again, to Sanchez:

What will actually make debates over Internet regulation more productive is universal recognition that the first paragraph is exactly as dumb as the second. (Possibly more so, since the second at least hints at some interesting possibilities.) You cannot implement an analogy. The rules that you’d want to apply if you could make it so just by wishing are not always the rules it is wise or feasible to attempt to actually put in place, once you’ve factored in the probable efficacy of that attempt and its unintended side-effects. Both of these, alas, are determined by annoyingly stubborn “facts” about the nature of the technological context in which you want to enforce the rules.

If we're going to address issues involving the internet, it's going to take actually understanding the internet, rather than trying to apply misleading analogies that don't actually represent the situation. The internet is different. That doesn't mean it is (or should be) lawless. But if there are going to be appropriate laws, they need to recognize the realities of the technology, not pretend that the internet is just like the physical world... but in pixels.

One of the striking features of the demonstrations against ACTA that took place across Europe over the last few weeks was the youth of the participants. That's not to say that only young people are concerned about ACTA, but it's an indication that they take its assault on the Internet very personally -- unlike, perhaps, older and more dispassionate critics.

As sometimes happens, a text has been floating around that captures rather well the spirit of that generation. It was originally written in Polish, and released under a liberal cc-by license; there are now a number of translations. As its author, Piotr Czerski, wrote in an email to Techdirt, its origins were quite humble:

I was asked by the journalist from local newspaper to write a text explaining difference between "analog" and "digital" generations. I thought that I should write something more: text, which can offer some kind of self-identity for all this different people protesting against ACTA. So I used the poetics of manifesto.

The whole piece is really well-written and perceptive. Here's the key self-definition of those "Web kids" in the English translation by Marta Szreder:

We grew up with the Internet and on the Internet. This is what makes us different; this is what makes the crucial, although surprising from your point of view, difference: we do not ‘surf’ and the internet to us is not a ‘place’ or ‘virtual space’. The Internet to us is not something external to reality but a part of it: an invisible yet constantly present layer intertwined with the physical environment. We do not use the Internet, we live on the Internet and along it. If we were to tell our bildnungsroman to you, the analog, we could say there was a natural Internet aspect to every single experience that has shaped us. We made friends and enemies online, we prepared cribs for tests online, we planned parties and studying sessions online, we fell in love and broke up online. The Web to us is not a technology which we had to learn and which we managed to get a grip of. The Web is a process, happening continuously and continuously transforming before our eyes; with us and through us. Technologies appear and then dissolve in the peripheries, websites are built, they bloom and then pass away, but the Web continues, because we are the Web; we, communicating with one another in a way that comes naturally to us, more intense and more efficient than ever before in the history of mankind.

Because of this, the Web kids depend on the ability to access a vast range of content online:

Participating in cultural life is not something out of ordinary to us: global culture is the fundamental building block of our identity, more important for defining ourselves than traditions, historical narratives, social status, ancestry, or even the language that we use. From the ocean of cultural events we pick the ones that suit us the most; we interact with them, we review them, we save our reviews on websites created for that purpose, which also give us suggestions of other albums, films or games that we might like. Some films, series or videos we watch together with colleagues or with friends from around the world; our appreciation of some is only shared by a small group of people that perhaps we will never meet face to face. This is why we feel that culture is becoming simultaneously global and individual. This is why we need free access to it.

But they are not naive: they know that artists need to earn money to live, and even have practical suggestions about how that can be done in a world of digital abundance:

This does not mean that we demand that all products of culture be available to us without charge, although when we create something, we usually just give it back for circulation. We understand that, despite the increasing accessibility of technologies which make the quality of movie or sound files so far reserved for professionals available to everyone, creativity requires effort and investment. We are prepared to pay, but the giant commission that distributors ask for seems to us to be obviously overestimated. Why should we pay for the distribution of information that can be easily and perfectly copied without any loss of the original quality? If we are only getting the information alone, we want the price to be proportional to it. We are willing to pay more, but then we expect to receive some added value: an interesting packaging, a gadget, a higher quality, the option of watching here and now, without waiting for the file to download. We are capable of showing appreciation and we do want to reward the artist (since money stopped being paper notes and became a string of numbers on the screen, paying has become a somewhat symbolic act of exchange that is supposed to benefit both parties), but the sales goals of corporations are of no interest to us whatsoever. It is not our fault that their business has ceased to make sense in its traditional form, and that instead of accepting the challenge and trying to reach us with something more than we can get for free they have decided to defend their obsolete ways.

The text makes lots of other interesting comments, and I urge you to read it. It goes some way to explaining why so many young people were prepared to brave sub-zero temperatures across Europe to march against what is, after all, just a trade agreement -- not something that normally brings people onto the streets. It also suggests that the European Commission's tactic of referring ACTA to the European Court of Justice, in the hope that people will forget about it and move on to other concerns by the time the decision is handed down, is doomed to failure. As the Web kids manifesto explains:

To us, the Web is a sort of shared external memory. We do not have to remember unnecessary details: dates, sums, formulas, clauses, street names, detailed definitions. It is enough for us to have an abstract, the essence that is needed to process the information and relate it to others. Should we need the details, we can look them up within seconds.

The Web certainly won't forget about ACTA, and neither will the Web kids.

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Well, we saw this one coming a mile away. Last week, in talking about the current fight in the Senate over the new cybersecurity legislation that's making the rounds, we noted that the behind-the-scenes story appeared to be that the NSA was going to make a power play to try to get responsibility for cybersecurity handed to it, rather than Homeland Security. Over the last few days, it's become clear that's exactly what's going on. While neither the NSA nor DHS inspire much confidence when it comes to heading up cybersecurity, the NSA plan is really crazy. It's expected that Senator McCain will be introducing legislation shortly that would give cybersecurity responsibility to the NSA.

McCain is positioning his version of the bill as one that focuses on "a cooperative relationship with the entire private sector through information sharing, rather than an adversarial one with prescriptive regulations." However, reports are that McCain's version involves a plan that the NSA has been aggressively lobbying for to give it access to networks deemed "critical." The NSA says that it wants to monitor these networks in case of attack so it can spring into action.

However, given the NSA's other mandates (spying!) this certainly has raised some fairly significant concerns. Should every private company running a network deemed critical automatically be required to install a special NSA spying box? Even the White House and the Justice Department (no strangers to over aggressive monitoring) have pushed back that this would be "unprecedented government" intrusion into the civilian internet. It's apparently gotten so bad, that the Obama administration has privately slapped down NSA boss General Keith Alexander (last heard talking about how Anonymous was going to shut down powerlines) for "advocating for something beyond that, that is undermining the commander in chief."

Of course, the administration can't stop former NSA boss Mike McConnell from running around spreading fear mongering stories about how the entire internet is at risk if we don't give the NSA unprecedented spying powers. Left out of his talks on this matter is that, not only has he been making these claims about how the internet is on the verge of collapse if the NSA doesn't get these powers for many, many years (without any evidence to show that it's true), but he's also now employed by Booz, Allen as a VP -- which is relevant, because Booz is already profiting massively from all this fear mongering, by getting hundreds of millions of dollars in federal contracts to "help" the government deal with the scary threats of the internet.

Jim Dempsey, over at CDT has a discussion of just how ridiculous this NSA powergrab is, in that it makes some key assumptions that just don't seem supported by reality:

The NSA’s claims are premised on the dual assumptions that the private sector is not actively defending its systems and that only the NSA has the skills and the technology to do effective cybersecurity. The first is demonstrably wrong. The Internet and telecommunications companies are already doing active defense (not to be confused with offensive measures). The Tier 1 providers have been doing active defense for years – stopping the threats before they do damage – and the companies have been steadily increasing the scope and intensity of their efforts.

The second assumption (that only the NSA has the necessary skills and insight) is very hard for an outsider to assess. But given the centrality of the Internet to commerce, democratic participation, health care, education and multiple other activities, it does not seem that we should continue to invest a disproportionate percentage of our cybersecurity resources in a military agency. Instead, we should be seeking to improve the civilian government and private sector capabilities.

Dempsey goes on to say that the NSA has already been helping Tier 1 providers by sharing its "secret sauce" to protect them against attack without having to have full access to the networks, and it seems silly that a process like that can't continue and be quite effective without giving up all privacy. Similarly, Jerry Brito, who has been following all of this very closely, notes that it's somewhat crazy to think that we can't just continue with the NSA assisting at arms-length without giving them full access to private networks.

Brito further highlights that there's a reason why we have civilian law enforcement for domestic issues, not military officials -- noting that (while they don't always succeed), civilian law enforcement is used to working within "an environment where constitutional rights apply and to use force only as a last resort." That is simply not true of the military or the NSA, whose operations usually involve issues outside the US, where the Constitution does not apply. And yes, they've certainly blurred that domestic/foreign line over the years, but that's no reason to go even further and give the military more power of the private domestic internet.

Just as the original term of copyright has been constantly extended from the original 14 years in the Statute of Anne, so the the scope of intellectual monopolies has been widened by the introduction of new ways in which people assert ownership of abstractions. Here's the latest idea: a right to protect your image.

It comes from an unusual quarter: the island of Guernsey, officially "Bailiwick of Guernsey", one of a group of small islands off the northern coast of France. Despite its geographical location, it is not part of France, or of the UK, and it is not even a member of the European Union. This unique situation perhaps encourages it to try out novel ideas like the proposed law, claimed to be a world first:

Image rights (or the 'right of publicity') are generally recognised as the right to control the commercial use of a person's identity and images associated with that person including distinctive expressions, characteristics or attributes.

The importance and value of those rights have become an increasingly controversial topic, the latest instalment being the UK debate over the role of super injunctions as public figures seek to exercise significant control over the use of their image in the media.

That last paragraph underlines one of the key problems with image rights. Like the UK's infamous libel laws, such rights might enable the world's rich and powerful to censor stories that presented them in an unflattering light, by invoking their "image rights".

The same article quoted above talks about how the "legislation will define the rights of an individual to protect their own image and balance those against the freedom of news reporting and the public interest." But a new law -- especially in completely uncharted areas as here -- is likely to require a number of detailed court cases to establish its contours. That's going to be expensive, and not something that news organizations can lightly undertake, to say nothing of lone bloggers, which gives those with deep pockets a powerful weapon against the media.

The Internet's global reach means that anything placed online could theoretically be viewed in Guernsey, and might therefore "infringe" on somebody's image rights there; this could presumably result in local courts applying financial sanctions. The question is, what happens next?

One response might be for most Web sites to attempt to block all access from Guernsey in order to avoid image infringements. That's likely to be imperfect, but it would be enough to cripple Guernsey's economy by cutting it off from huge swathes of the Net. Alternatively, other countries might pass legislation that forbids the enforcement of any awards based on image infringement, just as the US did to nullify libel tourism directed against its citizens.

Either way, it's hard to see much benefit to Guernsey from creating a new monopoly here. If it does, the island runs the risk that it will become isolated in a more modern, and ominous sense: cut off from the Net, and its legal decisions ignored by foreign courts. Neither would be very good for the island's own image as a modern forum for business.

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