The folks over at ReasonTV have put together a great episode about the state of copyright law today. Hosted by Zach Weissmueller, the video includes three guests. Professor Tom Bell, who is well known for his useful depiction of the insanity of copyright extension via the Mickey Mouse curve, Cheezburger CEO Ben Huh, and the MPAA's Ben Sheffner. There's a nice animation of the Mickey Mouse curve which is even more powerful than the standard image version: Sheffner trots out the usual lines about property rights and how we're going to see less content going forward, which Bell rightly scoffs. The video then uses our Sky Is Rising report to highlight how silly Sheffner's claims are. Sheffner also has the unenviable task (because it's a despicable position to take) of claiming that site blocking is a perfectly reasonable solution. Go censorship!

It's also nice to see ReasonTV highlight the ridiculousness of copyright laws today by refusing to use any material covered by copyright to demonstrate certain points. So, rather than show Mickey Mouse, they show three revolving balls, and ask you to imagine how they might come together to form a mouse-like shape. Is this an exaggeration of the restrictions in place today? Sure. They have a perfectly valid fair use claim to showing Mickey Mouse -- but they're being safe in an era where people are getting sued for the same sorts of things all the time. And, in an era where the MPAA argues, with a straight face, that blocking entire sites is a reasonable remedy, you can understand why they'd rather be safe than sorry.

The whole thing is worth watching, but the key point really comes at the end from Ben Huh, and it's a point that we've been raising for years:

This disconnect between the public's view of copyright and fair use and what should and should not be prosecuted vs. the copyright maximist's view of the law is our generation's prohibition. The law no longer reflects what the society believes to be true. And I think that if they continue to go down that route, they're going to see even bigger backlash.

This is such a key point, and one we've raised over and over again. The disrespect for copyright law today is not because people are uneducated or immoral. It's because copyright law just doesn't make any sense at all. It's so disconnected from reality and societal norms, that people can't respect it. The fact that the industry's response to this is to push to make the laws even more ridiculous and push them further away from people's natural tendencies, is only going to serve the opposite purpose of the maximalists' intentions. They are driving an entire generation into thinking that the whole of copyright law is entirely pointless.

We recently posted what I thought was an interesting essay by musician Erin McKeown on her reaction to seeing someone copy a song of hers, and have that other song become a "hit." We thought it was an interesting and nuanced exploration of some of the challenges of being a musician and thinking about copyright -- from both an emotional and logical perspective -- and thought it would make for an interesting discussion. And, in fact, it did make for an interesting discussion. With well over 100 comments, representing a variety of different viewpoints, there was a pretty deep dive into the myriad responses the piece brought out. Like pretty much any online discussion, some of the comments were more polite than others. But, when viewed on the whole, it struck me that the conversation was much more polite than most online discussions around copyright. In fact, what was interesting was that because the discussion was quite nuanced, most of our usual haters didn't take part. So we didn't have, for example, anyone calling me a slimy lying sociopath or a disgusting human being.

Some of the comments were pointed in their disagreement with Erin, but almost immediately others came in to defend her, and the overall discussion was quite interesting in my mind. And, yet, a bevy of the standard Techdirt critics took to Twitter to claim that Erin's article was proof positive that Techdirt was pure evil, hated artists and was the disgusting underbelly of the internet (a very close paraphrase of actual statements). I'm not going to link to any of these, because I don't mean to call out those people specifically. Similarly, there was a thread on a music site that was entitled "why does Techdirt hate musicians?" I suddenly had people tweeting at me, personally, about how I was somehow destroying music and why did I not want artists to get paid.

I honestly can't figure out why this was the response. First of all, we've regularly been attacked because (we're told) we never, ever post an article where we show sympathy for artists' difficult plight these days. So here was an article, from a musician, explaining her plight -- and we get attacked for that?!? Furthermore, I'm long since past the time when I could read all the comments on the site, but I do read a pretty large number of them, and the amount of hate and vitriol that has come from Techdirt haters (see above, for two very recent examples) is way, way, way, way beyond anything seen in that particular thread.

In fact, the further you read into the comments the more you realize it's a detailed and nuanced discussion on many important issues. People don't agree, but no one's calling each other a slimy lying sociopath or a disgusting human being. Yet, because a few commenters (not even the majority, as far as I can tell) disagree with Erin, all of Techdirt hates musicians? There were a few tweets and statements elsewhere saying that Techdirt hates it when artists make money. Of course, that's ridiculous. We regularly celebrate artists earning money -- sometimes lots of money. What we get nervous amount is when artists start making use of laws in ways that may actually do them more harm than good in the long term, by attacking their fans as if they were criminals, or when they seek to abuse laws that take away fundamental rights of others.

But, really, what was most amazing to me was how quick some of these people were to jump on the entire Techdirt community, because a few comments disagreed with one musician's opinion. They ignored everyone who came to her defense. They ignored the fact that we posted the story in the first place. They ignored all the people on other stories who attack Techdirt supporters in often extremely personal ways (I've been threatened with physical harm as well as seen multiple comments I won't repeat about my family). But most people -- myself included -- see those kinds of comments as part of the price you pay for having an open discussion. Some people are going to disagree and some will use different levels of speech, some more polite than others. To tar and feather everyone on the site because someone on it disagrees with your personal views is to suggest that every community online is a problem.

Is it that difficult to distinguish a nuanced conversations where not everyone agrees with each other... from the "dark underbelly" of the internet?

You know how we're not supposed to have our mobile phones on in the air? Right. There may not be very good reasons for that any more from a technology point of view (there used to be concerns about the impact on cell towers, but that can be solved today with picocells on the planes themselves). But, that still doesn't mean that pilots should be texting while they fly. Is it better or worse than texting while driving? In an age where autopilots do most of the work on landing, perhaps it wouldn't seem like a huge deal, but a Jetstar pilot landing a 220-seat Airbus A320 in Singapore had to abort the landing after realizing he forgot to lower the landing gear, because he was too busy responding to text messages. For whatever reason, the pilots shut off the autopilot, but then got distracted with text messages.

Somewhere between 2500 feet and 2000 feet, the captain's mobile phone started beeping with incoming text messages, and the captain twice did not respond to the co-pilot's requests.

The co-pilot looked over and saw the captain "preoccupied with his mobile phone", investigators said. The captain told investigators he was trying to unlock the phone to turn it off, after having forgotten to do so before take-off.

At 1000 feet, the co-pilot scanned the instruments and felt "something was not quite right" but could not spot what it was.

There followed a series of errors, with the pilot and the co-pilot not communicating with each other -- the pilot trying to drop the wheels as the co-pilot prepared to abort the landing -- and then both pilots becoming confused about their actual altitude. Oh, and then there was the fact that the flaps were set incorrectly.

I'm not necessarily one to bemoan the way people get obsessed with text messaging these days, but I generally think that if you're flying a commercial airplane, and taking it in for landing... it shouldn't be that hard to know that it's a good idea to not worry about your phone for five minutes.

Bacon is an almost universally-loved food item -- it's salty and fatty and meaty all at the same time. So it's not too surprising that people will try to add bacon to almost any dish. Everything is better with bacon... and here are some examples that test that assertion.

• The makers of Baconnaise and Bacon Baby Formula have created a bacon-themed coffin for sale. For about $3,000 plus shipping, you too, could be preserved in a casket that looks like bacon. [url]
• Bacon-scented hand sanitizer is a great way to pickup stray dogs. Or to get your hand bitten... [url]
• Burger King has introduced a bacon sundae to its menu. It's not available at every location yet -- only a few hip places around Nashville, Tennessee. [url]
• Jack in the Box has a bacon milkshake that packs 773 calories into 16 ounces of bacon-flavored refreshment. No actual bacon was harmed to create this milkshake, just bacon-flavored syrup. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

We were somewhat surprised by the Associated Press' decision to sue news search engine Meltwater, because we couldn't see how the AP -- even with its absurdist interpretation of copyright law -- had any case. Meltwater works with companies to help them track news about themselves. While it's similar to a clipping service, it doesn't actually "clip" the news. Instead, just like Google News or other news search engines, it provides a headline, a snippet and a link to the full story. In other words, if the AP's argument gains traction, the AP may have effectively outlawed search engines. That's ridiculous. Among the AP's silly claims in the lawsuit (and there are many), is one that says because users can cut and paste AP stories from their original websites and "save" them in a Meltwater archive, Meltwater is guilty of violating copyright law. Under that argument, so is any email program or word processing program.

Either way, Meltwater has hit back with a response (embedded below) that pushes back on all of these points, explains pretty clearly how it doesn't actually infringe... and also claims that the AP's arguments amount to "copyright misuse":

Plaintiff’s claims are barred in whole or in part by the doctrine of copyright misuse. Through this Complaint and through other means, Plaintiff seeks to misuse its limited copyright monopoly to extend its control over the Internet search market more generally, thereby improperly expanding the protections afforded by U.S. copyright law. Among other things, AP has misused its copyright monopoly by demanding that third parties take licenses for search results, which do not require a license under U.S. copyright law, and AP has also formed a consortium (called NewsRight) with the purpose of further misusing its copyright monopoly to extract licensing fees that exceed what the law allows.

Meltwater also brings up multiple other defenses, including a bunch of defenses highlighting how the AP failed to bring its lawsuit in a timely manner. They also point out that since the AP posts these articles freely on the web, there's an implied license that you can link to it and point people to the content.

There is, of course, also the AP's attempt to bring back the bogus "hot news" doctrine, which some companies like the AP have been trying to revive after it was considered a completely dead concept. So far, the courts aren't buying these hot news claims, and hopefully they get rejected here as well. Meltwater attacks the hot news claims head on with two interesting arguments. First, it claims that Section 230 protects it from any hot news claim. That's an interesting argument, though I'm not sure it really applies here. Separately, however, they argue (correctly, in my view) that hot news doesn't exist any more, effectively, because it's really a form of a copyright claim, and all state copyright claims (hot news is a state law issue) are preempted by federal copyright law. It would be nice to have a court officially kill off hot news as a concept, so here's a chance for that to happen.

Honestly, I still can't figure out what the AP thinks its doing here, other than trying to shake money out of a search engine because its execs remain too clueless on how to run the organization in this modern era.

Playmobil, makers of the rather popular little toy people that many of us had as kids, has a bit of a history of being over aggressive when it comes to what it thinks you're allowed to do with the toys you've purchased. A few years ago, we wrote about how it sued over an "unauthorized" use of the toys to depict violent scenes. It seems its latest complaint is with the fact that its pirate figures have been used in photos describing The Pirate Party: The company sent a letter to the German Pirate Party declaring that it was a "politically neutral toy," and indicating a concern that the toy should be associated with the party. As the Pirate Party responded, those who purchased such figures should have the right to then do with them as they wish, considering they are their property. They also noted that they have not used the figures for "marketing," and no one would assume that Playmobil the company had specifically endorsed the party. Thankfully, the company has indicated that they don't see any reason to take this issue any further, such as by commencing legal action, but merely the decision to raise this suggests a company that believes it has much more control over toys that it sold than it really does.

In the meantime, if Playmobil does not want to be associated with the Pirate Party, perhaps it shouldn't sell Pirate Party Cups.

The number of significant mistakes by law enforcement in the Megaupload case continues to grow, with the latest one being a big one. Apparently, the US judge on the domestic part of this trial has noted that a pretty big problem with the case may mean the trial never actually moves forward at all. You see, you have to actually serve criminal charges, but US officials never served Megaupload -- and due to some specifics, the concern is that Megaupload can't actually be served as a foreign company. So, due to procedural rules, the judge in the case is warning US officials that they may have a significant (to insurmountable) hurdle in actually bringing any case forward. Oops. This is becoming a huge comedy of errors.

We've discussed a few times the legal fight in Germany between YouTube and the overbearing collections society GEMA. German law is a bit bizarre in that it has very little regard for secondary liability protections, and often seems to default to blaming third parties for the actions of their users. On top of that, GEMA is incredibly powerful and controlling in Germany. When I was there a few years ago (in part to discuss this case), I had musicians explaining to me that they had "secret websites" because GEMA wouldn't let them offer their own music for free. The GEMA/YouTube dispute centers around the fact that GEMA wants YouTube to pay a fixed fee every time a video that includes a GEMA-covered song is played (and GEMA has actually suggested the fee for each stream should be identical to the cost of a download -- no joke). After suing YouTube/Google, GEMA refused to negotiate, making Germany the only modern country in the world in which a collection society didn't work out a deal with YouTube (and meaning that Google started blocking tons of music videos in Germany).

Unfortunately, the court has now ruled in the case, and the results seem ridiculous. It has said that YouTube is liable when users post videos (third party liability concepts still just don't make sense to German courts). Even more ridiculous, however, is that the court has said that YouTube's famous ContentID system is not enough. Instead, it must also install a keyword-based filter to block GEMA songs from being uploaded. Keyword-filters? Really. We've done this before a bunch of times and it doesn't work. At all. Keyword filters are really stupid ways to deal with these kinds of things. First off, they tend to block all sorts of legitimate content. But, more importantly, users figure out how to get around them in less than an hour. They just start coming up with easy-to-decipher substitutes. Comparing a keyword filter to ContentID is like comparing a human strapping on wings to a modern fighter plane. One of them works and can actually get the job done. One of them just makes you look like an idiot.

The only "concession" the court appears to have given YouTube is that it only expects such filtering to work going forward, rather than having them search the archive. That, of course, is barely a concession at all. If I remember correctly, this particular court, in Hamburg, is somewhat notorious for siding with copyright holders, so I wouldn't be surprised to see an appeal on this case...

The US State Department keeps saying it wants to support a free and open internet, and to build systems that protect dissedents and reformers who are speaking out. But it seems that they can't get the message through to the rest of the US government. Apparently the FBI has seized a server used by various people to anonymize their emails, because it was also used as part of a bomb threat:

On Wednesday, April 18, at approximately 16:00 Eastern Time, U.S. Federal authorities removed a server from a colocation facility shared by Riseup Networks and May First/People Link in New York City. The seized server was operated by the European Counter Network (“ECN”), the oldest independent internet service provider in Europe, who, among many other things, provided an anonymous remailer service, Mixmaster, that was the target of an FBI investigation into the bomb threats against the University of Pittsburgh.

“The company running the facility has confirmed that the server was removed in conjunction with a search warrant issued at the request of the FBI,” said May First/People Link director Jamie McClelland. “The server seizure is not only an attack against us, but an attack against all users of the Internet who depend on anonymous communication.”

Disrupted in this seizure were academics, artists, historians, feminist groups, gay rights groups, community centers, documentation and software archives and free speech groups. The server included the mailing list “cyber rights” (the oldest discussion list in Italy to discuss this topic), a Mexican migrant solidarity group, and other groups working to support indigenous groups and workers in Latin America, the Caribbean and Africa. In total, over 300 email accounts, between 50-80 email lists, and several other websites have been taken off the Internet by this action. None are alleged to be involved in the anonymous bomb threats. The seized machine did not contain any riseup email accounts, lists, or user data. Rather, the data belonged to ECN.

As the announcement from Riseup states, the FBI (as is all too typical) is "using a sledgehammer approach," killing off this important service that many used, just because one person abused it.

“We sympathize with the University of Pittsburgh community who have had to deal with this frightening disruption for weeks. We oppose such threatening actions. However, taking this server won’t stop these bomb threats. The only effect it has is to also disrupt e-mail and websites for thousands of unrelated people,” continues Mr. Theriot-Orr. “Furthermore, the network of anonymous remailers that exists is not harmed by taking this machine. So we cannot help but wonder why such drastic action was taken when authorities knew that the server contained no useful information that would help in their investigation.”

Why is it that law enforcement almost never seems to think through the actual consequences of actions like these?

First off, I should note that I like Judge Alex Kozinski -- the chief judge of the 9th Circuit appeals court. He's almost always entertaining (some consider that to be a fault, actually) and has many fans of his choice of language at times. Also, it's tough not to like a judge who amusingly enters himself into a blog contest for "judicial hotties" with the following opening line in a letter: "I must say that I'm severely disappointed in the slate of candidates you have fielded for your Judicial Hottie contest. While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me." Also, some of his rulings really are fantastic. However, he does seem to have a blind spot, where he starts sounding a bit like the old man screaming "you kids get off my lawn!" when he talks about the internet.

Judge Kozinski recently spoke at a Stanford Law symposium, and the text of his speech has been posted online, and in it, he admits that he's not particularly adept with modern technology -- in fact, he refers to himself as a "troglodyte." However, he then goes on to talk about how modern technology is destroying our privacy -- but not because of the technology itself, or the government (even though he discusses both things), but in the way in which people themselves share all sorts of private info.

Certainly, much of the talk is a thoughtful examination of how privacy norms have changed over time, and the role of technology, government and culture as it happens. Here's just a snippet:

I flew here today from Los Angeles. I drove to LAX, landed at San Jose Airport and a student drove me to Palo Alto. Who knows this? Big Brother knows. Why? Because I carried my cell phone, and who doesn’t carry a cell phone nowadays? The cell phone logs in every few minutes to a nearby cell tower, so if you obtain the telephone company’s records, it’s pretty easy to piece together exactly where I’ve been all day. And, if you have the student’s cell phone number, you’d also know how long we spent together and where we went.

Does the government obtain such records to check people’s alibis in case they are suspected of crimes? You bet they do. In fact, if you left your phone at home that day, so there’s no cookie-crumb trail to show you were somewhere else, prosecutors will argue that you not only committed the crime, but premeditated it as well—by leaving your cell phone at home so your steps couldn’t be traced. China has taken this to another level: Earlier this year, Beijing officials announced that they intend to use cell phones to monitor the movements of twenty million residents—“to ease traffic and subway congestion.”

But who needs cell phones? That’s old technology. Someday soon they’ll decide it’s easier to watch all of us, all the time. If you think it won’t happen, just look at Mexico: Last year, the city of Leon partnered with a biometrics firm to install iris scanners in public places from airports and police stations to stores and restaurants. The scanners will identify up to fifty people per minute, and will be used for both law enforcement and commercial purposes.

That, of course, focuses on the technology and government aspects. But then he gets into the human and cultural aspects, in talking about a somewhat famous case, involving a guy who sued a former lover because she wrote (sometimes graphically) about her time with him on a public website (that case got a lot more attention because the two were both Congressional staffers). Here, you can clearly sense the "the kids these days!" tone begin to seep through:

A while back, for example, the United States District Court for the District of Columbia saw the filing of a lawsuit titled Steinbuch v. Cutler. Steinbuch (a man) and Cutler (a woman) had been staffers for U.S. Senator Michael DeWine. They met after hours, had a few drinks and then went to her home and engaged in the type of activities that used to be considered private. The following day Cutler posted the following gem: “To answer The Question, no, RS and I did not fuck. (It is my ‘week off,’ if you recall.)” This, in my humble judgment, is already too much information. But the posting doesn’t stop there—oh, no, it’s just getting started. We learn, for example, that RS “[h]as a great ass,” that he had two ejaculations, and that he likes spanking.

During the course of the succeeding two weeks, Cutler continued to see quite a bit of Steinbuch, both figuratively and literally. And she assiduously reported their activities to the world, along with those involving other men with whom she was having sexual relations, including some for money.

This puerile and narcissistic account was picked up by another, better-known Washington blog and, for reasons I have difficulty understanding, soon tout-le-civilized-monde was reading about Steinbuch and Cutler’s sexual escapades. The upshot of all this was that Cutler lost her job with Sen. DeWine, but had no time to regret it because she soon got a six-figure book deal and a photo spread on Playboy.com. Meanwhile, Steinbuch brought his lawsuit, complaining of—you guessed it—invasion of privacy and infliction of emotional distress. He cut and pasted every word of Cutler’s blog into his complaint, which is where I read it.

There may only be a handful of people like Cutler and the people I saw on Jerry Springer—though it seems there is actually an endless supply of them. But we can all try to find comfort in thinking that these people are not like us—that they really are an aberration, representing a view of privacy and decorum that is quite different from that of ourselves and our friends and neighbors. But this is an illusion, because for every Jessica Cutler among us, there are the thousands or millions who are prepared to read their exhibitionistic writing and to watch the TV shows where they air their dirty laundry. By providing them an audience, we encourage others to engage in similar conduct, and we acquiesce in the erosion of privacy for all of us.

While this might come off as just as someone not liking the way "the kids these days" act, he's actually making a rather important legal point, even if I don't agree with it. As you (hopefully) know, the 4th Amendment against unusual search and seizure is our main privacy protection in the US. While other countries have more explicit privacy laws, the US relies on the 4th Amendment mostly. And the key standard that is often discussed around the 4th Amendment is whether or not the individual has a reasonable expectation of privacy in what they were doing. If there was a reasonable expectation of privacy, and the government spied on them without a warrant, that's (probably) a violation. If there was no reasonable expectation of privacy, then there's simply no Constitutional issue.

Of course, in this day and age, that barrier isn't always clear -- which is why (for example) there's been so much dispute (and mixed judicial rulings) on the legality of GPS tracking without a warrant by law enforcement.

That, of course, is an interesting subject in general. However, Kozinski takes it a step further, in that he appears to suggest that the fact that people are more public with their lives on the internet changes their own "reasonable expectation of privacy" and that may lead to the government having much greater rights to spy on people.

Of course, that is one of the great dangers of the internet and particularly of Web 2.0: No matter how private, dangerous, hurtful, sensitive, or secret a piece of information may be, any fool with a computer and an internet connection—which means just about everybody—can post it online, never again to be private or secret. They say that removing something from the internet is about as easy as removing urine from a swimming pool, and that’s pretty much the story. As soon as somebody posts an item, someone else picks it up and e-mails it to his friends, and friends of friends, and then bots and crawlers pick it up and the Wayback Machine makes sure the genie is never, ever to be stuffed back into the bottle.

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

While Kozinski leads readers down the garden path of logic with his step by step discussion of how privacy is changing, I find that bolded section above to be a big leap of logic -- and one that doesn't truly make sense. The shared information that he discusses and worries about is shared by choice. Kozinski may not like it, and may find it distasteful and crude (hell, it probably is distasteful and crude), but that does not automatically mean that the government should then be able to assume that all information has no reasonable expectation of privacy.

While I know that Judge Kozinski is thoughtful and nuanced in what he's discussing, this description seems to stray way too far into "well, I don't like this behavior, so I'm just going to say you crazy people deserve what you get if the government spies on you." That seems like a novel interpretation of the Constitution, and one that I find troubling. Yes, people may have less privacy today than in the past. Yes, they may reveal all sorts of things about themselves online -- whether on purpose or not. However, that doesn't necessarily make us our own enemies -- nor does it mean that, because some people display their sexual details, everyone loses the privacy over that info. Most importantly, none of that means that the government can then ignore privacy rights, just because some people don't mind sharing their private info.

That is, just because Judge Kozinski doesn't like that people share "too much information," it doesn't mean that the government should then be free to collect too much information, by claiming that there is no expectation of privacy in those situations.

As Techdirt has reported, the London 2012 Olympics bring with them a range of "special" measures guaranteed to make London a place for lovers of freedom to avoid this summer. But it seems that the organizers wish to ensure that anyone attending will also have a rather miserable time:

Fans in the crowd won't be allowed to upload snippets of the day's action to YouTube -- or even, potentially, to post their snaps from inside the Olympic Village on Facebook. And a crack team of branding "police", the Games organisers Locog have acknowledged, will be checking every bathroom in every Olympic venue -- with the power to remove or tape over manufacturers' logos even on soap dispensers, wash basins and toilets.

The same thing happened four years ago in Beijing as well, when non-sponsor brands were taped over in bathrooms so they didn't get "a free ride." That's because the real focus of the Olympic games is not anything the athletes might be doing, but keeping sponsors and business partners happy.

With just a little more than three months to go until the opening of the London 2012 Games, attention is increasingly turning to what many legal experts consider to be the most stringent restrictions ever put in place to protect sponsors' brands and broadcasting rights, affecting every athlete, Olympics ticket holder and business in the UK.

That's desperately sad. What is supposedly the greatest sporting event in the world could have been turned into the ultimate demonstration of how social media let spectators become participants through the real-time sharing of experiences.

Instead, the London 2012 organizing committee's obsession with policing brands and controlling what audiences do means that the recently-unveiled motto for this summer's games -- 'Inspire a generation' -- could hardly have been more inappropriate.

The young people that are meant to be inspired by the London games will find themselves forbidden to use properly the very means that would have let them do that: the social networks where they share their most important moments. As a result, London 2012 looks likely to be the most petty-minded and joyless Olympics so far.

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

While the iiNet case has been nothing but good news for copyright in Australia, over the past few years, at nearly the same time, there's been an important copyright case concerning fair use that has been nothing but an ugly splotch on Australian copyright law: the fight over whether or not the band Men at Work infringed on the copyright of an old Australian folk song, Kookaburra. The details of the case were really stunning once you looked at them. The Men at Work song clearly had a very brief flute line that paid homage to the folk song, but was an entirely different song on its own. Furthermore, the lawsuit came many decades after the song, "Down Under," had been a huge hit. At best, the case should have been dumped for the delay in bringing it. Even more ridiculous, the holder of the copyright, Larrikan Music, didn't even notice the supposed infringement itself, until an exec heard about it on a TV trivia show.

Still, bizarrely, the Australian courts repeatedly ruled in favor of Larrikan. When Australia's High Court refused to hear the appeal, the awful appeals court ruling stood, saying that the song infringed, and 5% of its royalties belonged to Larrikan.

As a bunch of people are sending in, it appears that this story has a truly tragic ending, as Men at Work band member Greg Ham has been found dead -- with multiple stories suggesting that this particular case and the ruling completely destroyed his life:

"I'm terribly disappointed that that's the way I'm going to be remembered - for copying something..."

Other reports say that he was so distraught over the ruling, he went back to using heroin and abusing alcohol. While he clearly had issues to deal with beyond this, it does appear that the ruling helped push him over the edge. That's really quite tragic.

We've expressed significant concerns about the Register of Copyrights, Maria Pallante, and her statements that copyright is for the author first. This isn't the first time we've had concerns about Pallante, who also strongly supported SOPA and testified at the House Judiciary Committee hearing in favor of SOPA. Usually, the heads of government agencies don't take specific positions on bills, especially when that position appears to favor one particular set of stakeholders over others. It certainly raises significant questions over the impartiality of the office.

Thankfully, some in Congress are noticing. Rep. Zoe Lofgren recently quizzed Pallante about these statements and about her testimony, during a House Oversight Committee meeting concerning the Library of Congress (which is in charge of the Copyright Office). Lofgren also dropped a bit of a bombshell, noting that the day before Pallante testified in favor of SOPA she was hanging out in Hollywood with top lawyers from the major MPAA studios. Pallante played it off as an attempt to talk more directly to stakeholders rather than lobbyists -- as if the top lawyers at the studios don't already have plenty of access with the Copyright Office and other government officials.

Lofgren also asked about Pallante's comments, which we mentioned above, about copyright being for the artist first. Pallante noted that her oath of office requires her to uphold the Constitution, and then cites the Supreme Court's ruling in Eldred and Golan as agreeing with her interpretation. Just listening to it, I started to get annoyed, and, thankfully, so did Lofgren, who immediately pointed out that Pallante's comments were "a real misstatement of the Eldred case," which was only about Congress' authority in determining the structure of copyright law." Later, Lofgren had a chance to offer a second question. There, she discussed a meeting Pallante had with two more big SOPA supporters: the Authors Guild and the Association of American Publishers in New York in December last year. Similar to the meetings with studios, Lofgren asked for details of such a meeting. She then asked about Pallante's questionable comments to the AAP which we reported on at the same time as her comments about her interpretation of copyright law. Lofgren asked if Pallante thinks it's part of her job to preserve "a particular form of copyright works... or industry business model" in response to Pallante's claims that she can't imagine a world without books. Pallante's response was a bit condescending, saying she wasn't talking about "a particular format of books -- I was talking about books." It's good to see Congress recognizing that the Register of Copyrights seems impossibly biased in favor of specific industries, rather than actually paying attention to the purpose of copyright law: to benefit the public.

Well, here's some good news on the copyright front down under in Australia. You may recall that, back in 2008, a bunch of Hollywood studios (along with two Australian movie studios, just to make it seem "local") sued Australian ISP iiNet for failing to "do enough" to stop infringement. As far as we can tell, Hollywood basically wanted iiNet to wave a magic wand. We later learned, thanks to a US State Department cable leaked via Wikileaks that, not only was the MPAA really behind the lawsuit (though it tried to keep its involvement secret), but that it chose iiNet (the third largest Australian ISP) on purpose: they were "big enough to be important" but not big enough to have the resources to fight back (in the tangled mind of the MPAA). This, like so many MPAA actions these days, turned out to be a serious miscalculation.

iiNet fought back, and fought back hard -- and won at every single level in the court system, including today's High Court ruling that effectively ends the case. Oh yeah, the High Court also says that Hollywood has to pay iiNet's legal expenses -- approximately $9 million.

From the beginning, contrary to the MPAA's assumption, iiNet fought back hard. Beyond the obvious, which was pointing out that as a service provider it was not responsible for its users' actions, iiNet also protested that the notices the MPAA's anti-piracy front group AFACt, was sending were deficient:

They send us a list of IP addresses and say 'this IP address was involved in a breach on this date'. We look at that say 'well what do you want us to do with this? We can't release the person's details to you on the basis of an allegation and we can't go and kick the customer off on the basis of an allegation from someone else'. So we say 'you are alleging the person has broken the law; we're passing it to the police. Let them deal with it'.

The original district court ruling was fantastic, and did such a great job illustrating why it makes no sense to blame third party service providers for infringement -- because infringement is not an absolute, but requires a court to decide what really is infringement. As the original ruling stated:

Regardless of the actual quality of the evidence gathering of DtecNet, copyright infringement is not a straight 'yes' or 'no' question. The Court has had to examine a very significant quantity of technical and legal detail over dozens of pages in this judgment in order to determine whether iiNet users, and how often iiNet users, infringe copyright by use of the BitTorrent system. The respondent had no such guidance before these proceedings came to be heard. The respondent apparently did not properly understand how the evidence of infringements underlying the AFACT Notices was gathered. The respondent was understandably reluctant to allege copyright infringement and terminate based on that allegation. However, the reasonableness of terminating subscribers on the basis of non-payment of fees does not dictate that warning and termination on the basis of AFACT Notices was equally reasonable. Unlike an allegation of copyright infringement, the respondent did not need a third party to provide evidence that its subscribers had not paid their fees before taking action to terminate an account for such reason.

In other words, just because someone accuses someone else of infringement, it's ridiculous for the ISP to automatically assume infringement has taken place. That turns the basic concepts of due process on their head. AFACT/MPAA appealed and lost again, with the court once again pointing out that general knowledge that someone on your site infringes is not nearly enough to terminate or suspend users.

This latest (and final) ruling basically takes the same stance. The full ruling is a bit dry, but makes some salient points. It notes, for example, that as a mere ISP, iiNet has absolutely nothing to do with BitTorrent and can't control the fact that some of its subscribers used BitTorrent. It also notes that iiNet was not hosting any of the material, nor doing anything with the infringing material. On top of that, it notes the pointlessness of AFACT/MPAA insisting that iiNet has to kick people off the internet:

Termination of an iiNet account with a customer who has infringed will assuredly prevent the continuation of a specific act of communicating a film online using a particular .torrent file on a particular computer. Regrettably, however, on receiving a threat of such termination, it is possible for a customer to engage another ISP for access to the internet on that computer or access the internet on another computer using a different ISP. Whilst any new infringement would be just as serious as the specific primary infringements about which the appellants complain, this circumstance shows the limitations on iiNet's power to command a response from its customers, or to prevent continuing infringements by them.

And, once again, the court finds that mere notice of infringement certainly is not proof of infringement, and requiring iiNet to investigate further is too big a burden:

Updating the investigative exercise in the AFACT notices would require iiNet to understand and apply DtecNet's methodology – which, among other things, involved a permission to DtecNet from AFACT to use the BitTorrent system to download the appellants' films. Before the filing of experts' reports in the proceedings, the information in the AFACT notices did not approximate the evidence which would be expected to be filed in civil proceedings in which interlocutory relief was sought by a copyright owner in respect of an allegation of copyright infringement. Also, any wrongful termination of a customer's account could expose iiNet to risk of liability. These considerations highlight the danger to an ISP, which is neither a copyright owner nor a licensee, which terminates (or threatens to terminate) a customer's internet service in the absence of any industry protocol binding on all ISPs, or any, even interim, curial assessment of relevant matters.

iiNet's inactivity after receipt of the AFACT notices was described by the appellants as demonstrating a sufficient degree of indifference to their rights to give rise to authorisation. However, the evidence showed that the inactivity was not the indifference of a company unconcerned with infringements of the appellants' rights. Rather, the true inference to be drawn is that iiNet was unwilling to act because of its assessment of the risks of taking steps based only on the information in the AFACT notices. Moreover, iiNet's customers could not possibly infer from iiNet's inactivity (if they knew about it), and the subsequent media releases (if they saw them), that iiNet was in a position to grant those customers rights to make the appellants' films available online.

All in all, this is a good ruling concerning copyright and secondary liability -- and a bunch of money down the drain for the MPAA, who could have spent this time helping its studios to innovate, but has instead focused on this quixotic legal strategy.

Of course, it doesn't sound like this ruling will have the MPAA come to its senses either. The AFACT front group is already claiming that the ruling means Australia must change its laws to turn ISPs into copyright cops:

The Australian Federation Against Copyright Theft (AFACT) is ramping up the pressure on the government to act. It said today's judgment exposed the failure of copyright law to keep pace with the online environment and the need for the government to act.

"It would seem apparent that the current Australian Copyright Act isn't capable of protecting content once it hits the internet and peer-to-peer networks...," AFACT managing director Neil Gane said.

No, Neil, it's not Australian law that's the problem. It's reality, and the fact that the movie studios refuse to bother to understand how the internet works and how they can adapt. No law will fix this. It will only make things worse. And Gane and the MPAA should be careful, lest they think they can try to pass another SOPA down under. I get the feeling that won't go over well.

Netflix has made its share of mistakes lately in dealing with its customers, but the company's biggest problem may be that Hollywood is so jealous of its success that it's now seeking to kill off the company's service by refusing to license movies and TV shows to Netflix. This isn't a surprise. We've seen similar stories over the past year or so, but the fact is that Hollywood is so short-sighted that it's trying to hold back the tide, and in the process, causing itself more harm. Netflix isn't "the enemy." It's found a way to offer a good service that many people want and use at a price point that makes sense.

Of course, it's that part that makes Hollywood freak out. They fear the "threat" of new business models that undercut their legacy deals, and that means they want Netflix to boost prices, put even more annoying limitations on use and greatly delay and limit selection—because they stupidly think this will drive more people to the more expensive offerings from the studios themselves. The're wrong. All this does is drive more people to piracy, while killing off one of the few services that was allowed (if briefly) to effectively compete with "piracy" by offering a better overall service.

The problem for Hollywood doesn't appear to be piracy. It looks like it's Hollywood's own fear of piracy that is leading it to make really short-sighted decisions.

Not content with inventing the Web and then giving it away, Tim Berners-Lee remains highly active in warning about the threats the Internet and its users face. Most recently he has taken on the British government's disproportionate plans to store information about every email sent and Web page visited in the UK:

Sir Tim Berners-Lee, who serves as an adviser to the government on how to make public data more accessible, says the extension of the state's surveillance powers would be a "destruction of human rights" and would make a huge amount of highly intimate information vulnerable to theft or release by corrupt officials. In an interview with the Guardian, Berners-Lee said: "The amount of control you have over somebody if you can monitor internet activity is amazing."

What's particularly useful about his latest intervention is not just the authority with which he speaks on this subject, but the specificity of his warning:

"The idea that we should routinely record information about people is obviously very dangerous. It means that there will be information around which could be stolen, which can be acquired through corrupt officials or corrupt operators, and [could be] used, for example, to blackmail people in the government or people in the military. We open ourselves out, if we store this information, to it being abused."

That is, even leaving aside concerns about crucially important issues such as privacy and total surveillance, the UK plans are an awful idea from a purely practical viewpoint: they will actually make the UK less safe for all the reasons that Berners-Lee lists. Because of this fundamental flaw, he emphasizes:

"the most important thing to do is to stop the bill as it is at the moment"

Let's hope the UK government listens to its own adviser, at least.

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EU Commissioner for the Digital Agenda, Neelie Kroes, has been saying a ton of smart things lately. A few months ago, we wrote about her pointing out that copyright is being used to punish & withhold and how copyright middlemen should get with the times and innovate, rather than looking to ratchet up enforcement.

Now she's continuing to speak more directly on the importance of openness online, including how it relates to copyright. It's not often you see a politician quote either the Free Software Foundation or leading thinker on these issues Yochai Benkler, but Kroes quotes them both in explaining the importance of openness:

Only the other day, the Free Software Foundation wrote to me about open standards. With their letter they enclosed something I don't normally get in the mail, a pair of handcuffs. Because they're worried about "digital handcuffs", and wanted to know if I am with them on openness. And the answer is yes. Let me show you, these handcuffs are not closed, not locked. I can open them if and when I want. That's what I mean by being open online, what it means to me to get rid of "digital handcuffs"...

[....]

Openness is also complex because sometimes it's unclear what it means.

For Yochai Benkler, it means, as he put it, that "it's open for anyone to create and innovate and share, if they want to… Because property is one mechanism of coordination. But it's not the only one." And he sees freedom as deriving from the extent to which actors can shift from one set of networks, from one way of doing things, to another. I agree: we need an environment where different models openly compete; and where people can openly choose.

Another thing she's clear on: openness can't mean kicking people offline, something she insists should not be allowed:

We cannot allow democratic voices to be silenced in that way. And I am committed to ensuring "No Disconnect" in countries that struggle for democracy. We must help such activists get around arbitrary disruptions to their basic freedoms.

Of course, that's talking about countries "struggling for democracy" such as those in the Arab Spring. But what about established democracies that are already putting in place laws to kick people offline -- like France with Hadopi? Hopefully she'll fight against such attacks on connectivity as well.

Either way, it's good to see that Commissioner Kroes continues to be committed to these issues. I had the pleasure of meeting Kroes a few months ago when she visited Silicon Valley, and I'll say that I was impressed not just by her knowledge, but by her willingness to dig deep into important issues concerning these kinds of policies. In an era where it seems like so many politicians only have a completely superficial understanding of how important the internet is, it's good to see someone in a high position who really does seem to grasp the significance of the internet, and how easily bad policies can do it harm. I don't always agree with her, but she certainly seems sincere in really pushing for true openness online.