Well, this is not too surprising, but it is unfortunate. As the Obama administration has said it would veto CISPA, the House has now turned this into a partisan fight. As with IP issues, I tend to think it's dangerous and stupid when privacy fights become partisan. Once the debate is partisan, it seems to lose all sense of reason and perspective and just degrades into name calling. And there's a chance exactly that is happening with CISPA and other cybersecurity bills, as the Republicans are "daring" the Democrats to support these bills, with the political calculus being that if they don't support these bills and something terrible happens (planes falling from the sky, etc.) that they can then blame the Democrats for being soft on cybercrime. That narrative, of course, ignores the very real privacy concerns that are being raised by a variety of parties. It effectively shifts the entire debate away from finding a real solution, and into a situation where some are pressured to accept a bad solution for the sake of political optics.

Kickstarter isn't the only crowdfunding platform on the internet. There are plenty of folks jumping on the crowdfunding bandwagon, and with the decline of basic science funding, scientists are hoping to convince some backers that their pet projects are worth a multitude of small contributions. Here are just a few examples.

• Petridish.org has a couple fully-funded projects with about $10,000 worth of donations. One project aims to look for exomoons, and another will look for new species of ants in Madagascar. [url]
• Microryza is another crowdfunding site for scientists aimed at the journey of learning something new -- which is its own reward. Will backers still be fascinated by a collection of negative results? [url]
• Sciflies.org boasts a pretty rigorous peer-review process provided by The American Association for the Advancement of Science (AAAS). Putting such a high bar on the projects (before they're launched) is supposed to give backers some assurance that the projects are worthwhile, but it also seems that the projects turn out to be a little esoteric for the general public... [url]
• Opengenius.org wants to promote innovation, economic development and social wealth -- via science and open source software. Great goals... but it looks like this organization needs some funding for web hosting and some fancy graphics. [url]
• To discover more interesting science-related stuff, check out what's currently floating around the StumbleUpon universe. [url]  

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

On Monday, I wrote about a troubling situation for Canadian universities that is coming to head. Their association, the AUCC, has negotiated a very bad copyright clearance deal with the collection society Access Copyright, which has been pursuing a hefty tariff from the Copyright Board. There was already tremendous pressure on AUCC members to sign on quickly, with a bizarre two-part deadline to avoid retroactive fees, but now things have gotten even worse. The AUCC has announced that it has withdrawn its opposition to the proposed tariff before the Copyright Board—meaning anyone who doesn't sign on to the model agreement will automatically face even higher fees and worse terms under the ridiculous and unrealistic requested tariff that kicked off the negotiations. As professor Ariel Katz points out, this is the opposite of what you'd expect:

If the AUCC thought that it would be in the universities’ best interest to settle with Access Copyright, it should have insistent that Access Copyright would withdraw the Proposed Tariff as part of such settlement, and then let universities decide whether they wish to sign an agreement or operate without a license from Access Copyright. Instead, AUCC negotiated a model license that forces universities to choose between a bad agreement and a combination of an even worse Tariff and continued litigation before the Board.

The only hope is for universities to back out of the AUCC agreement and continue fighting the tariff on their own—but that might be easier said than done, and the Copyright Board could easily rubber stamp the tariff as unopposed. Katz continues:

What’s even worse is that–setting aside the issue of cost–it is not even clear how a university that wishes to continue objecting to the Proposed Tariff could do that, because procedurally, individual universities were not “objectors”, only the AUCC was, and at this point its members have no independent standing in the proceedings. And substantively, it might as well be the case that the Board would regard the AUCC’s withdrawal of its objection as binding on its members. Unfortunately, the AUCC’s submission does not mention any agreement with Access Copyright that would allow AUCC members to continue to challenge the Proposed Tariff, nor asks the Board to make any order that would guarantee that. It would be an error for the Board not to allow remaining objecting universities to continue challenging the Proposed Tariff, or to view the AUCC’s withdrawal of objection as binding on them. However, this is a position that Access Copyright might indeed argue, and that if accepted could leave those universities in a very difficult situation.

The AUCC has really thrown its members under the bus here. From the very beginning of this whole mess, they have been in the position to make an argument for much lower tariffs on the basis of their fair dealing rights—and that position has only gotten stronger as Canada moves closer to its copyright reform bill. And yet, somehow, not only did they strike a terrible deal, they're now giving Access Copyright free reign to set tariffs at the board. Howard Knopf raises several important questions about the situation, and the last and most optimistic item on his list is perhaps the most important:

If this development is a sour “lemon” to some institutions (e.g. the three dozen or so “opt-outs” and others that may not be satisfied with result), what options are open to them to turn can it into lemonade – maybe even “spiked lemonade”? This may well be as possibility if the AUCC’s abrupt departure clears the deck for a fresh and very vigorous approach by institutions that don’t want to sign the model license and may therefore decide to fight to the finish.

In the U.S., large universities have their own copyright clearance offices that bypass the collection societies. With Canadian universities stuck choosing between a bad deal and a worse deal, now is the time for them to bring a vigorous argument to the Copyright Board and establish a new way of doing things—one that leverages their substantial fair dealing rights under the law to reduce the cost to schools which, ultimately, is a cost to students, taxpayers and all of Canada. It's disappointing (and astonishing) that AUCC not only won't be backing them if they do, but has apparently made things even harder for them. Nevertheless, the AUCC's withdrawal has cleared the playing field for a counterattack from the universities that could be highly effective with the right strategy. It won't be easy, but it's a fight that needs to be fought.

Julie Samuels has a fantastic piece over at Wired using the Oracle v. Google case to explain why patents simply don't make any sense in the software world:

For starters, software often does not require the type of heavy investment that should result in a 20-year monopoly. Instead of expensive laboratories or years of testing for FDA approval, for example, you often just need a coder and a computer. Even complex programs don’t require 20 years of exclusivity to recoup their investment. Software patents are often not even necessary for successful businesses: Facebook and, yes, Google — never relied on software patents to grow their early businesses.

Software patents are also notoriously vague and difficult to understand, making it impossible for small inventors to navigate the system without expensive legal help. And that brings us to the most dangerous aspect of software patents: litigation.

It turns out that software patents are nearly five times more likely to be the subject of litigation as other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999, and they have become part of the price of doing business in America. Take Spotify. After realizing much success in Europe, Spotify launched its U.S. product in July, and just weeks later it found itself facing a patent suit.

Of course, tons of software developers recognize this implicitly. I know an awful lot of software developers in Silicon Valley. I can't think of a single one who thinks patents are a good thing or even remotely useful (and this includes many developers who have patents). In development circles, it seems that nearly everyone thinks patents are a waste of time and money. And that's because software doesn't work the way that the patent system envisions.

Perhaps most troubling, the patent system fails to recognize how people create and use technology. Software is fundamentally situated as a building-block technology. You write some code, and then I improve upon it — something the open source community has figured out. Google’s use of Java in its Android OS also demonstrates how innovators create, by making its own product and and incorporating some elements of the Java language (which, incidentally, Java’s creators have a history of supporting). And when those two come together, it results in an incredibly popular product, here the Android OS.

It's the difference between an idea and actually bringing that idea to market. That difference is always ignored or underestimated by patent lawyers -- but developers know the difference. The patent system wasn't designed by software developers, though. And it shows.

Yesterday, the Guardian reported that the Obama administration officially opposed CISPA—but they also noted that there was no mention of the V-word. Now that's changed. The executive office just released a statement which says in no uncertain terms that they will be pushing for a veto of the bill:

Legislation should address core critical infrastructure vulnerabilities without sacrificing the fundamental values of privacy and civil liberties for our citizens, especially at a time our Nation is facing challenges to our economic well-being and national security. The Administration looks forward to continuing to engage with the Congress in a bipartisan, bicameral fashion to enact cybersecurity legislation to address these critical issues. However, for the reasons stated herein, if H.R. 3523 were presented to the President, his senior advisors would recommend that he veto the bill.

The administration's concerns mirror those of civil liberties groups, and could be (partially) addressed by some of the amendments we looked at earlier. But hopefully this clear statement from the White House provides the necessary final push to stop CISPA in its tracks and start working on a better security bill with the help of people who actually know what they're doing.

A few years back, we wrote about the company Rumblefish claiming copyright on public domain works on YouTube and getting them taken down. Recently, the company got a lot of attention for claiming copyright on someone's video because it had some birds chirping in the background, and a very mistaken Rumblefish process not only believed it owned the birdsongs, but then an employee doubled down and refused to back down when challenged on this. The company did eventually admit a big mistake after this received a ton of publicity -- but many of us were still worried about the process that allowed Rumblefish to make such a bogus claim in the first place.

Here's a story of another Rumblefish takedown -- but the details suggest one of the reasons why these things may be happening. John Boydston, from the band Daddy A Go Go, recently contacted us after he discovered that Rumblefish was claiming copyright on a video he had put up on YouTube, for an original song called I Wanna Be An Action Figure. The song was written by Boydston and he holds the sole copyright. It was released on a CD back in 2002. The video was produced (by Boydston again) just last year and posted to YouTube last October. Even so, Boydston received a notice from YouTube saying that music in that video "may have content that is owned or licensed by rumblefish." Boydston filed a dispute over this -- but was told that it would take a month to hear back -- and in the meantime ads might appear next to his videos with the proceeds going to Rumblefish.

Thankfully, the process didn't take that long. Within a day of filing the dispute claim, YouTube sent Boydston an email telling him that "rumblefish has reviewed your dispute and released its copyright claim on your video." So, at the very least, that's an improvement over the birdsong situation.

So, what happened? Boydston searched around for a while to actually find a contact at Rumblefish and had a short email exchange where he was told that the "system is working the way it should." It turns out that Boydston signed the band up with CDBaby to be his online distributor. They offer his music off of the CD Baby site, but also distribute it to tons of other properties, like iTunes, Amazon and various streaming services. And... it turns out, mixed in with a long list of music stores and streaming sites, is Rumblefish. The company is supposed to help potentially license the song to others, with a cut of the proceeds going back to Boydston (I assume after Rumblefish and CDBaby take their cut). So part of that is that Rumblefish automatically registers all such music with YouTube's ContentID, and sets it to "monetize." That, of course, leads to the silly result that any time an indie artist who uses CD Baby puts their own work up on YouTube, Rumblefish may end up claiming the work as its own (though, in theory, some of the proceeds would eventually get back to the author). Unfortunately, this is not clearly explained at all.

CDBaby does let its musicians opt-out of each individual service, and having gone through this whole experience, Boyston has decided to uncheck Rumblefish, and no longer allow them to claim his own music on YouTube.

I recently came across yet another story of copyfraud, but due to the nature of our litigious society and the way in which certain companies over-aggressively defend their rights, I need to prevent many of the details from being explained here, and have had to anonymize nearly everything. A family friend recently published a very interesting research paper on a popular topic. To demonstrate a certain point in the paper, he found a perfect image from a book that was published over 50 years ago. Again, to avoid identifying the situation, I cannot provide any more info, other than to say that this the image represented a tiny portion of a much larger work -- and that its usage without a doubt met all of the criteria of a typical fair use defense. The use was for non-profit educational purposes, it was a tiny part of a much larger work (and, in many ways, an inconsequential piece of that larger work, even if it was perfect for the point being demonstrated). The effect on the market for the original work was at worst nil, and at best positive, in that it might cause people to seek out the original work. In my review, it appears that the original work is now long out of print, and it is available only by collectors at an extremely high price. Thus, the use of the work is not for this person's financial benefit, and has absolutely no impact on the original publisher.

Even so, because we unfortunately live in a society where it's been drilled into our heads that you must get permission (even if the entire purpose of the fair use doctrine is for situations like this where no permission is needed), my friend reached out to the very, very large and well known conglomerate that holds the copyright on the original. He explained what he wanted to do and why, very clearly and concisely. The company's response was actually quite friendly, all things considered, and the person who responded appears to reject his request regretfully, noting that she is "in the unenviable position" of having to say no. The reasoning, the letter states, is that the work is protected by intellectual property laws and that the company "must be constantly vigilant and sometimes stringent in exercising control over their use."

There are significant problems with this. The whole point of fair use, again, is that these kinds of uses do not need permission. Furthermore, while trademark law does require some level of "vigilance," the same level of vigilance is not required for copyright law, and it is entirely possible to turn a blind eye to such usage and not lose the powers that copyright grants. Finally, there would be no harm at all in allowing this or even granting the guy a simple license. That would take away nothing from the company's IP rights.

But the bigger issue to me is actually the chilling effects that this situation has had. After sharing all of these details with me, I asked if he would be okay with me publishing the story with the full details. And he refused. Despite recognizing the near certainty of winning any legal dispute (as well as the fact that it is unlikely he would actually get sued), the very small risk alone is too much to bear. The idea that a massive global conglomerate might suddenly choose to sue this guy for some non-profit research he did out of personal interest -- just because of a single graphic to (humorously) illustrate a single point -- just isn't worth it. And that's the classic tale of a chilling effect of copyright law. Scaring people into not speaking up or not presenting their story.

Update: The White House has now officially threatened to veto CISPA.

In Congress, this week is CISPA week. With the bill going up for debate tomorrow, and the final vote scheduled for Friday, it's clear that the voice of the internet community has had an impact. The reps have been proposing their final amendments, and all are clear attempts to address some of the biggest criticisms from civil liberties groups and the public. CISPA has strong bi-partisan support and a very good chance of passing—and unfortunately, it's still a highly problematic bill. But, while the proposed amendments cannot perfect it, some of them could certainly reduce its potential for abuse in significant ways. If you're looking for a practical way to fight back against the serious privacy violation that CISPA represents in these final days before its potential passage, encouraging your representative to support these amendments is a good place to start.

There are two in particular that, though simple, would make drastic improvements on CISPA by refocusing it on network security and minimizing the chance of shared data being used to go after individuals. An amendment from Rep. Barton (pdf and embedded below) would insert the sensible requirement that shared data will only include personal information (further defined to include the content of any communications and even IP addresses) if it is necessary to combat a specific cyber attack. Another, even better amendment from Rep. Akin (pdf and embedded below) goes a step further and would bring CISPA back in line with the fourth amendment by barring the sharing of any personally identifiable information without a warrant. Of course, it's annoying that such an amendment is necessary—but the whole point of CISPA is to route around well-established requirements like going to a judge before violating someone's privacy. Though the bill still creates all sorts of potential privacy problems, the Akin amendment fixes a big one.

Rep. Thompson has also proposed an amendment (embedded below) that is supposed to address privacy concerns, and TPM reports that it is being backed by Ron Paul, who got attention earlier this week with a strong condemnation of CISPA. However, the Thompson amendment seems to lack teeth: it has a lot of talk about "minimizing" the impact on privacy and making "reasonable efforts" to remove personal information, and graciously offers to consult with "civil liberties stakeholders" (wouldn't that be everybody?), but it sets down no firm requirements or limitations. Despite being a fraction of the length, both the Akin and Barton amendments would do far more to fix CISPA, because they clearly prohibit certain activities.

Thompson's other proposed amendment (embedded below), however, is very good: it would limit the government recipients of the data from the overly broad "Federal Government" in the current bill to just Homeland Security and other civilian agencies. This addresses the significant fear that the NSA could use CISPA to expand their already-aggressive data collection programs. While civilian agencies and the DHS especially are hardly perfect, this would still be a lot better than handing data collected under CISPA over to the intelligence community.

There are other amendments on the table too, but these are some of the ones that get directly to the core privacy issues that make CISPA so dangerous. The CDT has a post taking a look at others. Ultimately the best solution would be to toss the bill out and start again, drafting sensible cybersecurity legislation that is evidence-based (starting with an evaluation of whether or not its even needed), and since Friday's vote is still not guaranteed there's no reason to stop speaking out against CISPA as a whole. But it's also a good idea to ensure that the bill is as good as it can possibly be when it goes up for vote, by pressuring Congress to adopt these critical amendments.

Jimmy Wales, who has become a bit of a thorn in the side of Hollywood of late, has given a speech in which he predicts that Hollywood is doomed, but not because of any threat from "piracy," but from the fact that technology and innovation means that the old infrastructure that filmmakers used to require is going away. As Ryan Singel at Wired reports, Wales' talk at the Internet Society's recent gathering let him predict that disruption was coming from the bottom up:

“Hollywood will be destroyed and no one will notice,” Wales said. But it won’t be Wikipedia (or Encarta) that kills the moviemaking industry: ”Collaborative storytelling and filmmaking will do to Hollywood what Wikipedia did to Encyclopedia Britannica,” he said.

Wales hedged by saying predictions are easy — and he’s usually wrong. But he looks at a generation of kids growing up in a world of video and mastering editing software at a young age. His own 12-year-old daughter, Wales said, is already adept at iMovie and won a local award for a short film she made.

And just as Wikipedia has show that collaboration on the web is possible (despite the messiness, flame wars and turf battles found on Wikipedia Talk pages), the new generation will find ways to collaborate online to create movies to entertain themselves and their friends.

And, Wales says, they’ll do that with impressive special effects, CGI and even remote actors.

Of course, we've been seeing this trend already growing at the lower end of the scale for a while. For example, the power that individuals have to create amazing special effects has been documented for years, and the tools are only getting better and better. Does traditional Hollywood have even better tools? Absolutely, but this is a classic innovator's dilemma situation, where the tools at the low end are getting better at a faster rate, and they're reaching the "good enough" point pretty quickly -- such that the value of spending many many millions extra on special effects doesn't provide any significant benefit.

Add to that the growth of Kickstarter as an alternative funding platform, the growth of the internet as an alternative promotion and distribution method... and at some point the benefits of going with a traditional Hollywood studio become more difficult to quantify.

Of course, this isn't something that happens overnight, by any means. And there are some in Hollywood who appear to understand this and are working to get their studios ahead of the curve, though it's unclear if they'll be able to do that successfully. Either way, the point that Wales makes is a pertinent one. Instead of worrying so much about online infringement -- the studios might want to spend a little more time figuring out how they can remain relevant.

Remember when everyone freaked out about parts of Pinterest's terms of service? And how, slowly but surely, word got out that the same terms can be found on virtually every website and are mostly harmless? And then everyone learned a lesson and calmed down, and would approach future terms of service with new knowledge and understanding?

Wait, scratch that last part. TNW reports that the terms of Google's much-anticipated Drive service, which launched this week, have been treated to the same warm welcome from the Twitterverse. Someone spotted yet another variant of the "worldwide license" clause that all websites include, and before long the freakout flag was flying.

The clause in question, though admittedly scary-sounding, is routine:

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content.

I hate to break it to the panicking masses, but Google is not planning on turning your spreadsheets into a touring art exhibit. A broad license like this is necessary to allow Google to operate such a service, permitting them to move the data around freely on their many servers all over the world, and display it to you (or the people you share it with) through a variety of devices and interfaces. The nightmare-labyrinth of international copyright law means that the most Google could do without such a clause is accept your data then immediately delete it—and even then someone would probably try to claim they made five unauthorized copies en route to the trash bin.

Perhaps most amusing is the fact that this piece of legal lingo doesn't come from the Google Drive terms of service, but from Google's overall terms for all their services. Meaning it already applies to everything from Gmail to Google Mars—so this might just be getting started. At this point, I suspect every social network and user content website online is waiting for the hammer to fall, since any one of them could be singled out at any time for yet another round. Oh well, I guess nothing beats a good freakout.

Anders Breivik's trial for the murder of 77 Norwegians had barely commenced before Breivik gave the press something they could work with. During his opening statements, Breivik referred to two video games, World of Warcraft and Call of Duty: Modern Warfare 2, both of which he referred to in his sprawling manifiesto. Despite making two completely different comments about these games, the press lumped both games together, resulting in misleading headlines such as this one from the Montreal Times:

Anders Behring Breivik trained on video games World of Warcraft, Call of Duty

John Walker at Rock, Paper, Shotgun swiftly dismantled the reports, most of which were seemingly based on an early Reuters article, which swiftly spread to other news sites with a minimum of fact checking.

Today the Times (paywalled) ran an even more sensational headline.

"Breivik played video games for a year to train for deadly attacks"

Despite Breivik's ranting describing his year with World Of Warcraft, which took place between 2006 and 2007, as a "gift" to himself, something he wanted to do before he gave up his life, the reports in multiple stories are claiming he was using the game to "prepare" for the attacks. It's a not particularly imaginative reinterpretation of Breivik's words, which really only suggested he played the game because he wanted to have some non-social fun because he believed he deserved it.

"I deserved to take a year off to do what I wanted to do, especially with the upcoming so-called suicide action - I wanted to have no remorse for what I would lose out on. I wanted a martyrdom gift, so I wanted a sabbatical year."

For the usually rambling man, he's oddly clear here about the purpose of playing. It was a break from his obsessive planning. If anyone is unfortunate enough to have read through his 800,000 word manifesto, they'll know quite how much "work" Breivik put into his actions, albeit mostly nonsensical and convoluted, and rarely as he intended. The result is a terrifying tome of this peculiarly clear-minded madness, an exhausting collection of his beliefs, theories, and a diary, on his collecting of guns, bomb equipment, and his attempts to acquire the ingredients for chemical warfare. And from this, he now says, he took a year off. Or as he called it, a "sabbatical". And what did he actually say about it during the trial, that almost no paper is reporting? He said World Of Warcraft was,

"pure entertainment. It doesn't have anything to do with July 22."

This year of gaming, supposedly to train for his killing spree, was actually a "gift" to himself, which helpfully doubled as an alibi for his withdrawal from his social life. Simply quoting Breivik's own words would have dispelled any notion of World of Warcraft serving as some sort of terrorist training grounds.

Breivik's statements about his time spent playing Call of Duty were a bit more disturbing:

"It is a war simulator. It gives you an impression of how target systems work," he explained.

First-person shooters have carried the dubious title of "murder simulators" since the days of Doom and the title of "scapegoat" ever since the Columbine Massacre. To hear a defendant casually refer to the game's ability to do exactly that is somewhat surprising. Usually this is attributed to the killer post-facto. Perhaps this caught some of the journalists by surprise, which would explain the baffling conflation of the two games and their intended use.

And it's of course far more widespread. Headlines have appeared in the last 24 hours like,

CNN: Admitted Norway killer Breivik says he trained on video games
They then mention the games for 51 words out of nearly a thousand.

London Evening Standard: Anders Breivik: Online games helped me plan killings
This article includes the extraordinary line, "He said his training on World of Warcraft, an online game, focused on situations where he would be flanked by two commando teams." Which means the reporter, Bo Wilson, not only didn't bother researching about the game, but didn't even listen to what Breivik said.

The Star Online/Reuters: Breivik used computer war games to plan attack
Repeats the refrain that Breivik can't distinguish between WoW and real life.

Al Arabiya News: Breivik: Playing ‘World of Warcraft' helped me prepare for the attacks
During which they count the months between November 2010 and February 2011 to be sixteen, to give Modern Warfare a better showing.

The Irish Times: Breivik used games to plan attack
Yet another article that deliberately suggests that playing WoW was part of his training, rather than the holiday from it that Breivik so clearly states. It's also a hasty rewrite of the Reuters piece.

Walker predicts this is only the tip of the iceberg. There's more where this came from and if past experience is anything to go by, it's only a matter of time before legislators and policy makers begin taking turns on this particular soap box in hopes of pushing their agendas through.

But remarkably, most reporting (at least, any "reporting" not simply composed of juicy misquotes from the Reuters piece) has been even-handed. One can only hope that with Jack Thompson safely disbarred and Baroness Susan Greenfield having yammered her way to irrelevance, the reactionary "violent video games beget violence" trope may be reaching the end of its life cycle. Time Magazine's Techland blog delivered this to-the-point headline: "Norway Killer Played World of Warcraft, Which Probably Means Nothing At All." Norway's own Dadbladget rounded up gaming experts to get their opinion on Breivik's claim that he used Modern Warfare 2 as a killing-spree trainer. Their statement (roughly translated)?

If so, there are millions of experts on the war in front of TVs out there.

CNN tried a different tactic, lobbing an underhand(ed) grenade into the fray with the headline "Norway mass-shooting trial reopens debate on violent video games," swiftly abandoning the debate in favor of trotting out gamers' arguments in favor of violent video games as some sort of "let's have a bit of a chuckle at these hot-headed gamers and their predictable arguments." Enlightening, it isn't but at least it's not another writer leafing through a dodgy "Violence & Video Games" study and drawing his or her own conclusions based on the lack of evidence therein.

The problem with this sort of headline is that Breivik's statements don't actually reopen the debate on violence in video games. It doesn't because the debate never goes away. It just lies dormant until a tragedy like this brings it back to the surface. The noisiest "debates" will likely be located in several countries other than the one in which the tragedy actually occurred. Countries with a historical resistance to violent video games like Australia, Germany and of course, the US, tend to make the most noise.

Gamers and gaming have been a popular scapegoat for most of the last 20 years. Most legislators, already gleefully ignorant of the internet's inner workings, are also on-the-outskirts-peering-in when it comes to the subject of video games. Between these outsiders-with-power and many members of the mainstream media, the image of gamers conjured in response to situations like these is that of a dangerous fringe element who prey on impressionable minds of pliable teens and tweens. This is despite the fact that the average gamer is now 37 years old, most likely off doing useful and proactive stuff like paying taxes and raising kids of his or her own.

Trading on fear and ignorance to present gamers as automatons one flip of the switch away from a killing spree is still altogether too common. Not only is this representation insulting, it's also blatantly false. Gaming is the fastest growing sector of the entertainment industry. As the number of gamers continues to swell, the likelihood of the next sensationally violent criminal also being a gamer increases as well.

For the sake of argument, here are a couple of diagrams:



The overlap of "gamers" with "violent criminals" is due to the fact that even violent criminals have downtime. Gaming culture is very much not a fringe sector, even if someone like Breivik clearly is. It's not impossible to imagine a future where gaming's ubiquitousness has managed to engulf the entirety of the subset "violent criminals."



At this point, the statement: "All violent criminals are gamers," is true, but what is often ignored is the fact that "violent criminals" remains the subset, rather than the other way around. Even if you play devil's advocate and accept the assertion that violent games can be used as "war simulators" and help desensitize gamers towards violence, you still have to accept the fact that violent games are only a small part of a much larger toolset (so to speak).

Breivik, for example, also had several hours of live weapons training, a fanatical hatred for Islam, an obsessional focus on preventing "dilution" of his "culture," and most importantly, the willingness to kill fellow human beings. These additional "tools" are simply not "available" to 99.9999% of gamers. Hanging Call of Duty (and games like it) out to dry because of Breivik's actions is as repugnantly stupid as asking Microsoft to "dumb down" Flight Simulator because the 9/11 terrorists used it to train for their mission.

The problem with various entities (including the press, special interest groups, politicians and prosecutors) playing along with the "violent gamer" myth is that now even the criminals themselves are getting in on the act, citing violent games as an "I'm-not-really-a-bad-person-but-for-the-games" deflection/defense or injecting them into the conversation simply to up the level of controversy. Either way, it clouds the issue at hand and sends feckless "do-gooders" down well-worn paths, all leading away from the uncomfortable fact that evil acts belong solely to the person performing them and not the entertainment surrounding them.

Consider the case of the teen who brutally beat a homeless man to death, saying it was like a "violent videogame." Penny Arcade covered the story and found themselves on the receiving end of an eye-opening letter from the stepmother of the murder suspect. Included in the long, harrowing letter (which details the teen's other activities, including stealing cars, setting fires, beating up handicapped kids, having his parents detained on false abuse charges, etc.) was this statement:

The thing that really gets me with this whole thing is that the kid knows full well that by equating what he's done to a video game, that he will generate controversy and media coverage. It makes me sick that the media is jumping all over this, because that is exactly the result that he wants.

Maybe the brief flareup of stories hyping Breivik's gaming past will be nothing more than that: a flareup. Perhaps the media and other interested entities are finding fewer and fewer members of the public willing to humor these bits of conflation and moral panic, especially in the face of an anomalous (and horrific) tragedy of this magnitude. In the end though, what really matters is how society moves on from this and what lessons are learned. The Norwegians themselves have certainly set the example with their reaction to Breivik's massacre, choosing "openness and love," rather than allowing "cowardice and fear" to take hold. Hopefully, the rest of the world will choose to do the same, rather than returning to business-as-usual witch hunts and scapegoating.

The dramatic announcement that the EU's rapporteur on ACTA, David Martin, would be recommending that the European Parliament should reject the treaty was made at the end of a morning conference on the subject organized by Socialists and Democrats in the European Parliament. One of those speaking in favor of ACTA at that meeting was Helienne Lindvall, a professional songwriter and musician, who has now blogged about it:

I was told to prepare a five-minute speech, so apart from speaking of the reality musicians are facing, I spent days reading the actual agreement, different points of views on it, as well as looking into the different issues it deals with, to make sure I knew what was being discussed. I'd heard from the Pirate party as well as some other action groups that it would impede freedom of speech so naturally I was concerned -- after all, musicians rely on freedom of expression, as do journalists. I was surprised to find that Acta would do nothing of the sort.

That's curious, since Amnesty International does indeed see ACTA as a threat to freedom of speech -- and much else:

Amnesty International believes the pact's content, process, and institutional structure impact in a number of ways on human rights -- especially the rights to due process, privacy, freedom of information, freedom of expression, and access to essential medicines.

Part of the problem is that ACTA was intentionally drawn up to be as vague as possible. That can be seen in the fact that its negotiators chose to use terms that have no meaning in the context of international treaties:

Amnesty International is also gravely concerned about the ACTA’s vague and meaningless safeguards. Instead of using well-defined and accepted terminology, the text refers to concepts such as "fundamental principles" and even invents a concept of "fair process", which currently has no definition in international law.

"Worryingly, ACTA’s text does not even contain references to safeguards like 'fundamental rights', 'fair use' or 'due process', which are universally understood and clearly defined in international law," said Widney Brown.

The EU's own European Data Protection Supervisor (EDPS), which is "an independent supervisory authority devoted to protecting personal data and privacy and promoting good practice in the EU institutions and bodies", has just released a second opinion on ACTA (pdf) (the first dates back to 2010, and was equally critical). It concurs with Amnesty International's view of the treaty's worrying vagueness in the area of human rights:

At international level, freedom of expression and privacy are recognised as fundamental rights in the Universal Declaration of Human Rights, and not as mere 'principles'. Furthermore, the notion of 'fair process' does not correspond to any generally recognised human right.

The latest EDPS report is mainly concerned with ACTA's problems from the point of view of privacy, where it concludes:

Many of the measures envisaged in the Agreement in the context of enforcement of IP rights in the digital environment would involve the monitoring of users' behaviour and of their electronic communications on the Internet. These measures are highly intrusive to the private sphere of individuals and, if not implemented properly, may therefore interfere with their rights and freedoms to, inter alia, privacy, data protection and the confidentiality of their communications.

But the report does touch on the issue of freedom of speech when it analyzes the effects of ACTA's "Enforcement cooperation mechanisms and the monitoring of Internet by ISPs":

These forms of enforcement cooperation mechanisms which entail the processing by ISPs of personal data for the purpose of IP rights enforcement and/or the monitoring of individuals' behaviour, including electronic communications, on a large scale raise serious concerns from a privacy and data protection perspective. They furthermore may lead to the disconnection of Internet access or the blocking of websites, which may interfere with fundamental freedoms such as the freedom of expression, the freedom to receive or impart information and access to culture.

ACTA threatens free speech largely because of the following, apparently innocuous, sentence:

Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

As the EDPS points out, "a mere reference to these principles [freedom of expression, fair process, and privacy] is not enough." What counts is what would happen in practice. And the practice -- and the problem -- is that ACTA would encourage signatories to move to "co-operative" approaches already being deployed by some countries, with a presumption of guilt rather than innocence:

These include various forms of voluntary enforcement cooperation mechanisms, such as three strikes mechanisms, blocking and filtering of peer to peer traffic, or the blocking of websites allegedly infringing copyrights.

Clearly, all of those mechanisms mentioned by the EDPS "would impede freedom of speech" hugely, just as the Pirate party and others have suggested. The threat of ACTA is not just the laws that it will bring in, but the extra-judicial actions that it will encourage beyond the law.

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A few weeks ago, I wrote about an upcoming web documentary by Metal Injection looking at the impact of the internet on heavy metal, among other things. The internet-focused episode was released last week, and it contains lots of interesting tidbits about the metal scene's reaction to changing technologies.

I say "tidbtis" because the format of the documentary is a little frustrating. It jumps rapidly back and forth among interviews with a huge variety of people including musicians, promoters, journalists and label representatives. It's kind of hard to keep track of who everyone is, and nobody really gets the time to make longer, more complex points, which also means there are a few quotes that are hard to interpret without the surrounding context. Nevertheless, there are some great views expressed, most of which will be familiar to Techdirt regulars.

At its core, the metal scene (like most music scenes) seems to be embracing the internet. One thing I found interesting was the number of people who clearly accept what's happening even if they don't entirely approve of it: whether they think that there is too much crappy music out there now, or that file sharing is bad for artists, they acknowledge that these things are here to stay and the only thing to do is embrace them and move forward.

There is also a running thread of the idea that the metal genre is especially well-positioned to build online business models, because metal fans tend to be big consumers of merchandise, and have a huge appreciation for large-form artwork and appealing physical products. Several people point out that it's no surprise the metal world embraced filesharing, since the golden age of heavy metal was fueled by tape trading—a topic that's discussed in more detail over at the Metalluminati blog.

You can watch the full documentary below.