Bruce Schneier has an excellent post over at CNN discussing why it's so easy for everyone from the general public to earnest politicians to draw the wrong conclusions after major tragedies, like the recent shooting in Aurora. Occasionally, a horrific incident will result in a positive change in existing laws or some much-needed rethinking of current policies and procedures. More often than not, though, the conclusions and lessons drawn from the experience are just flat out wrong. It's not as if anyone truly aims to make the world worse post-tragedy, it's just that the human brain is more than happy to sabotage better rationale, thanks to its inherent limitations.

The problem is that fear can cloud our reasoning, causing us to overreact and to overly focus on the specifics. And the key is to steer our desire for change in that time of fear.

Our brains aren't very good at probability and risk analysis. We tend to exaggerate spectacular, strange and rare events, and downplay ordinary, familiar and common ones. We think rare risks are more common than they are. We fear them more than probability indicates we should.

There is a lot of psychological research that tries to explain this, but one of the key findings is this: People tend to base risk analysis more on stories than on data. Stories engage us at a much more visceral level, especially stories that are vivid, exciting or personally involving.

Schneier puts it more simply:

If a friend tells you about getting mugged in a foreign country, that story is more likely to affect how safe you feel traveling to that country than reading a page of abstract crime statistics will.

Novelty plus dread plus a good story equals overreaction.

While people might be swayed (through no fault of their own) by little more than anecdotal evidence, the real danger lies in legislators drawing the same bad conclusions from the same limited data. This knee-jerk legislative reaction is so common by now that it has its own truism: laws named after crime victims and dead people are usually a bad idea. Beyond simply being an under-thought effort to "do something," the laws conflate the victim with the law itself, leading the public to believe that voting against the law is the same thing as voting against an innocent person.

Because of these factors, bad laws are pushed through with a minimum of resistance. In the aftermath of a tragedy, public opinion is usually on the side of the politicians looking to "do something." It's inconceivable to many people for a horrifying event like this to pass without some sort of reaction from their elected officials. Will bad laws follow the Aurora shooting? Well, it remains to be seen how "bad" any legislative attempts will be, but it's pretty much guaranteed that these attempts won't result in good laws or even necessary laws.

Public opinion is already on the side of legislators interested in reacting through legislation. A recent Rasmussen poll showed that more than half of those surveyed feel that violence in movies and video games leads to more violence in society. Another 14% were undecided.

The first politician to take a swing at "doing something," Senator Frank Lautenberg, is using the Aurora shooting to revive his dormant gun control bill (which was introduced after another rare occurrence -- the Tuscon, AZ shooting that wounded Rep. Gabrielle Giffords), going so far as to have his bill grafted onto CISPA as an amendment in order to expedite its passage. His bill/amendment adds an ID requirement to the purchase of ammo in hopes of preventing a singular incident (a person purchasing 6,000 rounds of ammo via the internet and opening fire in a crowded movie theater) from happening again.

Lautenberg says his bill could help to prevent the sale of ammunition "to a terrorist or the next would-be mass murderer."

"If someone wants to purchase deadly ammunition, they should have to come face-to-face with the seller,” Lautenberg said in a statement. “It's one thing to buy a pair of shoes online, but it should take more than a click of the mouse to amass thousands of rounds of ammunition."

While it's a given that the bill won't actually keep ammunition out of the hands of "terrorists" or "mass murderers," one thing is certain: it will be heralded as a success by its supporters if another mass killing involving a gunman with thousands of rounds of internet-purchased, stockpiled ammo fails to materialize. This sort of post-hoc justification echoes the empty rationale surrounding post-9/11 legislation, as explained by Schneier:

Our greatest recent overreaction to a rare event was our response to the terrorist attacks of 9/11. I remember then-Attorney General John Ashcroft giving a speech in Minnesota -- where I live -- in 2003 in which he claimed that the fact there were no new terrorist attacks since 9/11 was proof that his policies were working. I remember thinking: "There were no terrorist attacks in the two years preceding 9/11, and you didn't have any policies. What does that prove?"

Well, it proves that questionable legislation, given the right political climate, can sail through nearly uncontested. In Lautenberg's case, it simply proves that no pet legislation ever really dies. It just stays on life support until it's passed or the pet owner leaves office. Of all the possible legislative overreactions to a tragedy like this, Lautenberg's is rather tame. With Holmes failing to provide a more easily attacked target like video games or music, all that's left is Hollywood, and it appears that most politicians are wisely reluctant to invoke charges of censorship while simultaneously angering one of their greatest benefactors.

When the next tragedy occurs, the cycle will begin again, not because people are stupid or politicians are evil (although there are plenty of both), but because humans are humans. The anomalous will always be more frightening than the mundane dangers of everyday existence. The more unforeseeable the event, the more we look for ways to prevent its recurrence. A recent plane crash will cause some to alter travel plans, but a deadly pileup on the freeway, while a more likely danger, never sends drivers scurrying for the safety of mass transit. The most we can hope for is to maintain a sense of perspective and apply some hindsight in order to prevent instinctive reactions from negatively affecting our future.

As the Olympic Games rage on and an entire world full of people watch on to remind themselves that they should have paid better attention in their high school geography classes (stop lying: you couldn't pick out Angola on a map either), the old-world thinking of the various Olypmic committees and new media has delivered a giant trauma to fans: spoilers. See, as Olympic broadcast partners have spent so much time dilligently ensuring that every fan's viewing experience sucks like a whorish Hoover vacuum, they appear to have missed out on the invention of the internet. So by the time weekday prime time broadcasts are airing Asian badminton players possibly throwing their match to get a better tournement seeding, we've already read all about it on the internet, Twitter, or else overheard friends/family/coworkers discussing the results. And since NBC and the IOC don't seem to want to... you know... live in today-land, you may be looking for a way to make your daily life spoiler-free.

Fortunately Justin Peters, editor of the Columbia Journalism Review, has penned an ignorance guide for CNN to help us all out. As you might expect, his satircal list of ten tips is dominated by various flavors of avoid-technology ice cream:

"Your smartphone is your enemy during these next two weeks. If you carry it around, you will be tempted to check the Internet, and you risk receiving spoiler-laden text messages from your gymnastics-loving friends. Switch to an older phone for the duration of the Olympics, preferably one that is decades old, is shaped like a brick and has a wan green display that can handle neither text messages nor the Internet."

Seems reasonable. But there's more along the same lines:

"You can probably divide your Facebook friends into "people who are likely to follow the Olympics" and "people who are not." Hide all status updates from the Olympics-following friends. This should leave you with a Facebook feed composed entirely of elderly relatives, local merchants and new mothers posting photographs of their children. Abandon Twitter entirely, or, at the very least, unfollow everyone except Jose Canseco."

You get the idea. Unfortunately, the internet isn't the only place where you can overhear heated discussions about whether the United States or China has asserted itself as a world power by winning doubles rowing competitions. But Peters can help there, too:

"Practice walking with your fingers in your ears while shouting "I can't hear you! I can't hear you!"

And:

"You know where nobody's talking about the Olympics? In the forest. Take these next two weeks as an opportunity to go back to nature. Pitch a tent in the woods, and commune with the stars and the seedlings. Bring a battery-powered television that gets only three channels, and fire it up every night around 7. You'll be able to watch the key moments of the Games in peace and quiet. And, despite what you've heard, it is quite unlikely that you'll be eaten by a bear."

Peters offers even more tips for insulating the rest of your life to guard against Olympic spoilers. On the other hand, NBC and the Olympic Committee could also realize that this internet thing might just not be a fad and take their cue from the NCAA's Basketball Tournement and show the damned games so people can watch whenever they want. 

The Hollywood Reporter has a story on Warner Bros. filing a lawsuit against a bunch of individuals who use Amazon's marketplace offering to sell DVDs that Warner Bros. claims are counterfeit. The lawsuit is pretty weak on details so far. The THR report speculates on whether or not this is about packaging up downloaded or camcorded movies and pretending they're official.

However, if you look at the Amazon profile of the named defendant, Todd Beckham, you see that he has very good reviews. Currently, he has a 4.9 star rating with over 2,000 reviews. If he were selling inferior counterfeit products, you'd think people would complain, because his listings certainly suggest they're new official copies. So buyers seem to feel they're getting what they thought they bought. It's possible that he's just a really good counterfeiter, but THR wonders why WB doesn't just use Amazon's existing internal controls to terminate service for users who sell infringing works.

WB apparently told THR that this isn't a case of going after used product sales (where it would have a tough case, given the first sale doctrine -- and, again, would likely lead to negative reviews, since the offerings don't seem to indicate "used" conditions), but it's unclear how or why the company thinks these DVDs are counterfeit. Again, given the sparseness of detail, it's entirely possible the targets are creating (apparently high quality) counterfeit flicks and selling them. But it would be nice to see a bit more evidence that that's the case, and this isn't just a case of being worried about being undercut by the secondary market. What's a little worrying is that, according to THR, WB is claiming that the sellers are violating its "distribution rights" to the films, not reproduction rights. That raises at least some questions over whether or not the concern is just competition, or actual unauthorized copies. At the very least, this will be a case worth following...

Some restaurants guard their recipes as if they were the blueprints for a nuclear bomb. But it's usually not that difficult to reverse-engineer some kind of copycat meal that tastes pretty good, and there are tons of foodies out there with blogs dedicated to replicating all kinds of famous dishes. Here are just some examples of folks giving away the secret recipes for a few fast food favorites.

• A McDonald's chef shows everyone how to make a Big Mac at home and points out that the secret sauce is actually published on the company's website. Here's the big secret for the sauce: Soybean oil, pickle relish [diced pickles, high fructose corn syrup, sugar, vinegar, corn syrup, salt, calcium chloride, xanthan gum, potassium sorbate (preservative), spice extractives, polysorbate 80], distilled vinegar, water, egg yolks, high fructose corn syrup, onion powder, mustard seed, salt, spices, propylene glycol alginate, sodium benzoate (preservative), mustard bran, sugar, garlic powder, vegetable protein (hydrolyzed corn, soy and wheat), caramel color, extractives of paprika, soy lecithin, turmeric (color), calcium disodium EDTA (protect flavor). [url]
• Making a a Taco Bell Chalupa doesn't look so difficult, but it takes a bit more effort than sitting in your car and shouting your order at a big menu sign. Now if someone wants to figure out a home-made Dorito big enough to be a taco shell... [url]
• Some customers don't like Chick-Fil-A's political leanings when it comes to gay marriage, but they still want some tasty sandwiches. The Chick-Fil-Gay is just one solution to that problem. [url]

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

With all the efforts to pass cybersecurity legislation, along with all the fears of government violating our privacy (4th amendment? Whazzat?), you might think it would be somewhat useful to have an agency in charge of watching the government -- one which actually has some real power. Well, it exists. Sort of. In 2006, the Privacy and Civil Liberties Oversight Board (PCLOB) was created, in part as a counterweight to concerns over the Patriot Act. The PCLOB was staffed, but after the White House tried to interfere and stifle some of its work, one member very publicly quit in 2007. Congress responded by actually passing a useful law, which gave the PCLOB more independence and more power (including subpoena power). After it passed, there was a transition period of six months. At the end of that, the existing board (which was a part of the White House) would cease to exist, and a new independent agency was supposed to take its place. Instead, the existing board ceased to exist on January 30, 2008... and that was it. Since then, there has been no board. At times, both President Bush and President Obama have sent some nominations to the Senate, but nothing more had happened. Even back in 2010 people were complaining what a travesty it was that the board remained empty for two years.

Fast forward another two years and change... and the thing still wasn't staffed. The whole thing was such a joke that in a recent discussion with a Congressional Rep (known for being a supporter of civil liberties), when the PCLOB (and its lack of members) was brought up, the Congressional Rep admitted that he'd never even heard of the thing. For all the urgency that was talked about in passing cybersecurity legislation, everyone just sat around twiddling their thumbs while this independent organization tasked with making sure the government didn't abuse our civil liberties sat completely empty.

Until now. Yes, we finally have a staffed PCLOB. The Senate has approved all five nominees: David Medine, James Dempsey, Elisebeth Cook, Rachel Brand and Patricia Wald. It's amazing that it's taken nearly five years to put this board in place (and that there wasn't more outrage over its absence). The real question now is how will the PCLOB wield its power. Hopefully it does some good and actually holds the government to account when it violates the civil liberties of the public.

Back in 2010, we suggested that the mad dash by various publications to build fee-based iPad apps was completely misguided, reminiscent of the belief in the 90s that publications could sell CD-ROM versions of their magazines. As we noted, there's nothing that special about the iPad format that takes away the natural abundance of the internet, and pretending that it was really any different than a portal to the wider internet with all its options was a fool's errand. In particular, we called out Rupert Murdoch's obsession with creating an iPad-only publication. In fact, we were confused why all the publishers investing so much in apps didn't put that same sort of effort into improving the features on their websites. A few months ago, the editor-in-chief and publisher of MIT's Tech Review more or less made the same point, saying that the future was on the web, betting on HTML 5 to make the site "look great on a laptop or desktop, tablet or smartphone" and then killing off the apps it had developed.

While others aren't going that far, there's more and more evidence that betting on apps was, in fact, the exact mistake that we predicted. Mathew Ingram summarizes how both The Huffington Post and Murdoch's The Daily have failed with their fee-based iPad app strategy. He makes the same basic point that a winner of our "most insightful comment" (by Robert Weller) made recently: that people get their news from lots of sources, so paying for a bunch of apps just doesn't make sense. In fact, it takes away from the value. As Ingram notes:

Whether media companies like it or not (and they mostly don’t), much of the news and other content we consume now comes via links shared through Twitter and Facebook and other networks, or through old-fashioned aggregators — such as Yahoo News or Google News — and newer ones like Flipboard and Zite and Prismatic that are tailored to mobile devices and a socially-driven news experience. Compared to that kind of model, a dedicated app from a magazine or a newspaper looks much less interesting, since by design it contains content from only a single outlet, and it usually doesn’t contain helpful things like links.

What he's basically saying is that the publishers focusing on apps are trying to create artificial scarcity by building digital silos. But that actually takes value away from those publications. People interact with the news in all sorts of ways that go way beyond "reading." But individual apps often make that more difficult. It involves extra effort (and cost) while providing less benefit. All because publishers are looking for something (anything!) that resembles some fencing so they can build a gate and go back to pretending they're in the gatekeeper business.

Hopefully publishers will finally stop looking to recreate the past by building artificial walls, and start looking at ways to make money that embrace the internet and what it enables.

Back in 2008, we wrote about how the Indian government was demanding that RIM let it snoop on encrypted messages from Blackberry users. RIM's response was that it was simply impossible to snoop on its enterprise customers' messages, since they set their own encryption keys. A few months later, the government claimed to have cracked RIM's encryption, though the whole claim was sketchy. In 2010, the government again demanded the right to spy on Blackberry users (raising more questions about that encryption cracking claim). RIM apparently offered up a "solution" that the Indian government rejected, because it didn't let them snoop enough (basically it allowed snooping on consumers, but not corporate accounts).

Now, however, there are reports that RIM has come up with a "solution" to let the Indian government spy on enterprise users as well:

RIM recently demonstrated a solution developed by a firm called Verint that can intercept messages and emails exchanged between BlackBerry handsets, and make these encrypted communications available in a readable format to Indian security agencies, according to an exchange of communications between the Canadian company and the Indian government.

If you're a RIM Blackberry customer, and you bought into it because of the security features, now would be the point where you get pretty pissed off and start seeking alternatives. The report from the Economic Times suggests RIM did this because of the "importance" of the Indian market. RIM is clearly in trouble. Its failure to keep up on the innovation front means that the company is clearly struggling. But kowtowing to a government by allowing it to spy on users is hardly the sort of thing that's likely to get you more customers. It seems like it should do exactly the opposite.

Famed NY Times columnist David Pogue has a history of recognizing that some of the "fears" about internet "piracy" are overblown. So it's great to see him using his NYTimes blog to explain how he ended up torrenting an unauthorized ebook copy of The Bourne Identity for his son. Apparently, due to royalty fights, Robert Ludlum's estate remains a hold-out on the ebook front, so there simply are no authorized ebooks to buy -- though Pogue tried pretty much every possible ebook store to see if he could track one down. Eventually, he did what many people do in such a situation:

Dudes: It’s 2012. You’re among the last big-name holdouts on the face of the earth. You’re worried about the royalty rate? How about worrying about the thousands of dollars a month you’ve been leaving on the table by not offering the books to the public who’s willing to buy it?

Eventually, I did what I’m sure thousands of frustrated Ludlum fans wind up doing: I downloaded the book from a BitTorrent site.

He notes that he then sent the publisher a check for $9.99. I am hoping that he will do a followup on whether or not they actually cash it.

The iOS versus Android debate is an ongoing saga that occurs at many levels, from Apple and Google duking it out to discussions amongst users over which operating system is superior. And if you follow it closely, the recent scuttlebutt amongst some application developers is that it's much easier to make money in the Apple App Store than through Google Play. That may or may not be true in the long term, but regardless, one app developer is giving Android an unduly hard time.

Matt Gemmell is an accomplished developer. His "About Me" page on his site says he's "an iOS (iPad, iPhone and iPod touch) and Mac OS X (Cocoa) developer and user experience/interface designer, based in Edinburgh, Scotland." And, holy balls, does he hate the Android OS. After beginning a blog post entitled "Closed For Business" with an anecdote about some unnamed friend of his, the chief argument he makes is that the Android OS was designed specifically for piracy. He begins by comparing exactly the wrong things for the conclusion he wants to reach:

"Buying an app on the Android Market is substantially similar to how you buys [sic] apps on iOS: you search, find the app, click Buy, confirm, and it downloads. It’s not an unduly onerous process, and certainly not a barrier to the business model. This isn’t piracy due to frustration."

See, he's comparing the process for getting the app through the Android marketplace to getting it through the iOS marketplace and then concluding that frustration isn't the reason for piracy. To do this, you have to ignore that "piracy" may be more convenient than either app store and that Android users and iOS users may not be equal—and also pretend that the only way to make money from an app is via direct charge for the download, and that all of these things mean that the platform is to blame because Android is "open". Whatever, let's move on to where he states that developers selling their apps for 99 cents are trivializing the marketplace.

"Shame on you for pricing at $0.99 to chase the kind of customers who, well, think a dollar is anything but a trivial, throwaway amount of money that won’t even remotely get you a reasonable cup of coffee. Get some self-respect. Quit encouraging bad behaviour, and ruining the party for everyone else."

If I'm reading that right, and I can't see how else to read it, now Gemmell is saying that not only is piracy bad, but buying 99-cent apps is bad too! As a consumer, I'm confused as to what good behavior might be at this point, other than resolutely smashing my smartphone to bits and getting one of those big rotary style deals installed on my kitchen wall.

So, just to keep score, the argument here so far is that the reason for endemic piracy on Android phones is not frustration due to inconvenience of the marketplace and price. Then he says this:

"Instead, this was the endemic casual piracy of convenience."

Which is where normally my head would explode like that dude from Scanners, except I've been doing neck exercises just to prepare for this inevitable moment. Apparently convenience plays no part in piracy except when it does. Awesome. We then get the first iteration of the hard line approach to Google's OS:

"The system is designed for piracy from the ground up. The existence of piracy isn’t a surprise, but rather an inevitability."

Yes, you read that correctly. Unbeknownst to us, Google designed their mobile operating system—from the ground up, mind you—specifically for piracy. That's the kind of sentence that you shouldn't think about for more than five seconds or blood will shoot out your nose and you'll wake up in an emergency room being prepped for "get the stupid out of your head" surgery.

Gemmell then goes on to explain that the reason piracy is easy is due to a "broken business model." This may make you think that this story is going to have a good ending. But he's not talking about the developers' business models, rather that of the Android OS, which is apparently so broken that it's the best-selling mobile OS on the market:

"You can say what you like about handset share, or first-party/carrier development: that’s only one piece of the puzzle. Another piece is community contributions to the OS codebase. On the first point, iOS devices are doing just fine. On the second, a closed OS has only strengthened the brand, cohesion of direction, integration, usability and design standard of the product. The third factor is the software ecosystem...To have apps, you need developers. To have developers, you need enthusiasm and an investment of time and talent. Enthusiasm and effort can be driven by many motivations, but the most reliable and consistent of those is money. Yes, there it is: the m-word. It’s not a dirty word. You wouldn’t have your shiny handset without it, not because you wouldn’t have been able to afford it, but because it wouldn’t exist."

This is nothing but a strawman. iOS is in second place in adoption, which may be "doing just fine," but isn't an argument against Android. And while some folks like the cohesion of Apple's closed system, arguing for Apple in terms of community contributions to the OS codebase is an odd stance against an open OS like Android. Finally, who is suggesting that "money" is a dirty word, or that developers shouldn't like bills and coins? If you answered "nobody," pat yourself on the back, because that's correct.

Then, after Gammell informs us that viewing advertisements is a form of "paying" for apps (because apparently that was a well-kept secret) he touts the benefits of having a "freedom from choice," which can alternatively be stated as a "freedom from freedom," which can then be stated as "bad Inception logic that makes no sense."

"No-one stops to consider that “choice” is maybe a bad word. Consider that for a moment. What would you like Windows to do with this USB key? Just show me the damned files. Do you want to be warned when you view a web page with mixed secure and insecure content? No, go away. Do you want to pick the font for this text-editing field? No, just use a sensible default. Do you want a lot of after-market crap popping up on the desktop of your new PC? No, I want an experience I’m familiar with."

Um, so just to run through his examples: 1. When my OS recognizes my USB stick, it asks me how I want to view those files (a window, a slideshow, media player, etc.) and apparently that choice is bad for me; 2. Hell yes I want to know if there's content on a web page that's unsecure, but apparently letting me choose to proceed or not is akin to puppy-murder; 3. Sure my word processor has a default font, but I also can choose to change that font at any time, which apparently sucks; and 4. I always have the choice of uninstalling the after-market stuff on my new PC and that's somehow a bad thing. Honestly...I just don't get his point.

We then get to his solution, which is to lock up the Android OS -- which Google built specifically to promote both piracy and quite possibly National Socialism -- just like iOS because the app business is hard and stuff.

"You can’t reliably have that revenue stream if the platform itself and the damaged philosophy behind it actively sabotages commerce. If you want a platform to be commercially viable for third-party software developers, you have to lock it down."

Except that Android isn't actively seeking to sabotage commerce. The very notion is absurd. There are plenty of ways Android app developers can and do make money. If Android was everything Gammell says it is, there wouldn't be more apps in its marketplace than there is for iOS. And the idea that Google has to lock their OS down so that app developers don't have to think is...you know what? I can't come up with a phrase or analogy to properly convey how mind-bendingly screwed up such thinking is.

Never do the other ways to make money as a developer (connect with your fans so they'll want to buy from you, offer in-app purchases, advertising models that work, etc.) seem to enter the equation. No, we're just told that Android is built for piracy, that only iOS can offer you a comparatively sound way to make money via app development (despite at least some anecdotal evidence to the contrary), and none of this has to do with developers recognizing the difference between the two platforms, their users, and how their business models should differ between platforms. And apparently Google should do this to Android despite it being the leading mobile OS on the market.

California, a state that has had budget problems for years, apparently bet approximately 2% of its budget on the idea that Facebook's stock would remain at or above $35 and that a bunch of insiders would sell, racking up tax revenue for the state. However, with the stock continuing to drop, the state's fiscal analyst is now warning that perhaps over a billion dollars in expected tax revenue may be at risk. The state's budget is $91.3 billion, and that was built on the assumption that a successful Facebook IPO and insider sales (at an average price of $35) would bring in $1.9 billion. Of course, the stock has been in decline since its IPO, dropping below $20, hence the concern.

What I love about the linked article, however, is that the Bloomberg reporter sought to get a comment from Facebook over this (the company declined). What did he think Facebook would have to say? That it would try harder? That it felt bad that the state overestimated its stock price just about as much as the company itself did? I would imagine that budget overruns by the state due to Facebook's falling stock are pretty far down the list of priorities for Mark Zuckerberg these days...

Recently we've seen a number of cases, both civil and criminal, brought against websites that involve either links or embeds of videos hosted elsewhere. UK student Richard O'Dwyer is facing extradition and criminal charges for hosting a site that did exactly that. But, as many of us have wondered in the past, how is such a site infringing at all? After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be.

A few months ago, we wrote about how the MPAA had jumped into a copyright infringement appeal involving porn producer Flava Works against a video "bookmarking" site called MyVidster. The MPAA argued that links and embeds are infringing, in support of a questionable district court ruling against MyVidster.

The appeals court ruling has now come out, written by Judge Posner, and it's absolutely worth reading (embedded below). Posner goes into great detail about how MyVidster's linking and embedding features don't even come close to infringing. They're not infringement and they're not contributory infringement. He goes through a pretty accurate description of how embedding works, and why MyVidster is separate from the uploading/hosting/streaming. But then he notes that those watching the videos aren't even infringing, so there isn't even any infringement for MyVidster to contribute to:

Is myVidster therefore a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video? myVidster is not just adding a frame around the video screen that the visitor is watching. Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster’s visitor. But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies . . . of the copyrighted work to the public.” 17 U.S.C. §§ 106(1), (3). His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.

Got that? It's actually important. He's saying that those who are watching a video that someone else uploaded are not infringing on the reproduction right under copyright. Only the uploader has potentially violated that right. So there can't be a contributory infringement claim over that right.

Of course, copyright includes a few other rights beyond reproduction. There's also the "public performance" right. After running through a few different theories there, Posner again finds no clear case of infringement.

Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement.... An employee of Flava who embezzled corporate funds would be doing the same thing—reducing Flava’s income—but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.

In other words, the person watching the video isn't doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it's not violating the public performance right either.

As we noted in our post about the original case, part of the ruling hinged on myVidster losing its DMCA safe harbor protections by not having a repeat infringer policy. But Posner notes that the DMCA safe harbor isn't even in question here because those viewing the videos have not infringed and thus there is no copyright infringement related to myVidster for showing the embeds:

myVidster received “takedown” notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor.

This ruling makes it clear that watching embedded videos is not infringing and then neither is hosting the embed code. While limited to the 7th Circuit, this ruling could still be quite handy in a number of other cases, including O'Dwyer's and the Rojadirecta case, which also involves embedded videos. Eric Goldman is a bit more skeptical of the impact of the ruling, arguing that Posner reasoning isn't particularly clear (well, he calls it a "train wreck.") While I rarely disagree with Goldman, I'm not convinced that this is such a train wreck. While Posner's explanation is, at times, convoluted, he does clearly make the main point: if there's infringement, it's completely disconnected from the user watching the video and the site doing the embedding.

Either way, Posner vacates the lower courts ruling, and notes that there are a few other issues with the case (mainly having to do with some other aspects of myVidster's business), but the main fight shows no infringement. Oh yeah, and Posner doesn't even reference the MPAA's filing in the case, suggesting how compelling that argument was...

As the old joke goes, standards are wonderful things, that's why we have so many of them. But who would have thought that ETSI, the European Telecommunications Standards Institute, has already produced a draft standard on how European governments can snoop on cloud-based services like Facebook and Gmail -- even when encrypted connections are used?

ETSI DTR 101 567, to give it the full title, was pointed out to us by Erich Moechel, who has written an excellent exploration of its elements (original in German). Here's the summary from the draft standard (Microsoft Word format):

The present document provides an overview on requests for handover and delivery of real-time information associated with cloud/virtual services. The report identifies Lawful Interception needs and requirements in the converged cloud/virtual service environment, the challenges and obstacles of complying with those requirements, what implementations can be achieved under existing ETSI LI [Lawful Interception] standards, and what new work may be required to achieve needed Lawful Interception capabilities. Cloud Services in whichever forms they take (Infrastructure, Software, Platform or combinations of these) are often trans border in nature and the information required to maintain Lawful Interception (LI) capability or sufficient coverage for LI support may vary in different countries, or within platforms of different security assurance levels. This work aims to ensure capabilities can be maintained while allowing business to utilise the advantages and innovations of Cloud Services and was undertaken cooperatively with relevant cloud security technical bodies.

As that makes clear, this is being presented as "maintaining" interception capabilities in a world where cloud computing makes previous approaches inapplicable. The new standard specifically mentions social networking, file sharing and video conferencing as new areas that need to be addressed.

One key section spells out how this is to be achieved:

If the traffic is encrypted, the entity responsible for key management must ensure it can be decrypted by the CSP [Communication Service Provider] or LEA [Law Enforcement Agency].

In order to maintain LI coverage the cloud service provider must implement a Cloud Lawful Interception Function (CLIF). This can be by way of Applications Programming Interface (API) or more likely ensuring presentation of information in a format recognisable to interception mechanisms. Deep packet inspection is likely to be a constituent part of this system.

As this makes clear, along with the intercepted information, the standard envisages encryption keys being handed over routinely. Just to make things complete, DPI -- deep packet inspection -- is also regarded as a likely element of the system.

Since this is currently a draft, the threat it represents might be seen as purely theoretical; but a recent article in the Guardian confirms that the UK government "quietly agreed to measures that could increase the ability of the security services to intercept online communication" -- a reference to the ETSI draft. The Guardian also provides us with some explanation of why this draft just happens to be available at precisely the moment when the UK government is announcing a plan that seems likely to use it:

Etsi has faced criticism in the past for the pre-emptive inclusion of wiretapping capabilities, a decision that critics say encouraged European governments to pass their wiretapping laws accordingly. According to Ross Anderson, professor in security engineering at the University of Cambridge Computer Laboratory, the institute has strong links with the intelligence agencies and has a significant British contingent, along with a number of US government advisers.

It's a classic case of policy laundering; here's how it will probably work.

The British government insists now that it will "only" gather communications data, and not content. At the same time, it will require that ISPs adopt the new ETSI cloud interception standard (once it's been finalized) in the "black boxes" that they must install under the proposed snooping legislation. That will put in place all the capabilities needed for accessing encrypted streams -- since those providing cloud services will be required to hand over the encryption keys -- and hence the content. The UK government may not intend accessing content today, but thanks to the wonders of function creep, when it decides to do it tomorrow the facility will be there waiting for it.

Meanwhile, European governments will be able to point to the UK's adoption of the ETSI standard as just "good practice"; they will ask their own ISPs to implement it, while insisting that they too have no intention of accessing the contents of people's Internet streams either. Until, that is, the day comes -- probably in the wake of some terrorist attack or pedophile scandal -- when the governments will note that since the capability is available, it would be "irresponsible" not to use it to tackle these terrible crimes. The US government will then bemoan the fact that Europe is taking better care of its citizens than it can, and will therefore pass laws requiring US ISPs to install similar real-time access to their systems, and for cloud-based services to hand over the encryption keys. Luckily, there will be a well-tried European standard that can serve as a model....

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Another day, another story of Olympics insanity. Apparently the website for the London Olympics has a really awful interface that highlights tickets that are available. So, some enterprising coders quickly hacked together a better system, called 2012TicketAlert that would help alert people when new tickets were available. It was just a typical internet case study: some people saw a system that wasn't very good, and they built a better interface. Welcome to the internet.

Ah, but this is the Olympics, and the Olympics just doesn't do things like that. So, they shut the site down:

It seems someone at LOCOG has taken exception to our idea (or the publicity it is getting) and instead of reaching out to us or addressing the lack of a notification system, they have simply blocked our access to their server. This means we are unable to check or post any new ticket alerts.

Welcome to the Olympics, where if you don't pay the Olympics, you better not do anything to help make the Olympics a better experience.

And it's important to note that they weren't making money off of this. They were just helping to alert people to ticket availability and then driving them to the official Olympics site. They just hacked together a notification system.

Sometimes I wonder if the Olympics just wants to piss off everyone.

Before getting into the details of this new story, let me bring up a pair of recent Techdirt stories as background. First, there's the story of Netflix being told that not having closed captioning on its streaming movies means it violates the Americans with Disabilities Act. As we noted at the time, this raised interesting copyright questions, considering that Netflix may not be legally allowed to put captions on videos. A few days before that, we had written about a student who ran a site that provided crowdsourced downloadable subtitle files for TV and movies, and had been found guilty of copyright infringement.

Knowing both those things, isn't it interesting that Netflix is now experimenting with crowdsourcing captioning/subtitles for films and TV shows? Perhaps it figures that having lost that first legal fight, it should lean in the other direction and see if it gets sued there as well. Either way, it seems like it opens up some pretty serious copyright questions. While some of us think that providing captions/subtitles should be pretty clear fair use, others (obviously) disagree. And, when it's an operation like Netflix -- which is obviously a commercial entity -- you have to wonder if it's going to get sued...

We've heard all sorts of random stories about over-aggressive IT staffs or filters that block random websites for no good reason, but sometimes the situations are truly bizarre. For example, a friend sent over an announcement concerning a webinar from the DC District Court about the Electronic Case Filing (ECF) system. Obviously this is a useful thing for lawyers and law enforcement to understand. So it struck us as interesting to see the following tidbit in the emailed announcement:

SPECIAL NOTE TO DEPARTMENT OF JUSTICE ATTORNEYS/STAFF:
The WebEx web conferencing website is not accessible to DOJ attorneys/staff due to internet blocks set in place by your IT department, therefore you are unable to register for a webinar training class or participate in the WebEx training room session itself. However, the option to participate in only the teleconference portion of the training class is available and will still prove useful.

Really, now? We've already had reasons to question the technical competence of the DOJ, but to do a complete block of all Webex webinars? Overkill much?

We've written a few times about how Craigslist, for all the good things it's done over the years, has lately turned into a legal bully against any site that makes its offering more useful. That's significant for a variety of reasons. First off, Craigslist's own site continues to be woefully out of date, and increasingly less useful in its current form. But, more importantly, Craigslist has often led the charge for a more open internet, yet seems to react legally when such an open internet creates new and useful services built off its own work.

Even the NY Times is now taking note of Craigslist's legal-bullying ways, even catching Craig Newmark himself (who I know and like) being less than forthright in how the company attacks all sorts of other sites with legal threats and lawsuits. First, it lists out a number of other threats that Craigslist has sent out over the years:

One, a site called Craigs Little Buddy, could search multiple Craigslist cities at once — a simple feature that Craigslist doesn’t offer. Another site, Craigsly, helped people set up e-mail alerts when a certain type of listing, like a specific car or apartment for sale, was posted in their area. Another, Ziink Craigslist Helper, which offered a free browser plug-in that made navigating listings easier, was also shut down by Craigslist lawyers.

Later, it notes that Craig has claimed that they only go after sites that "consume a lot of bandwidth." That statement sounds slightly more defensible, even as bandwidth has gotten cheaper and cheaper over the years, and most crawlers really aren't that intrusive. Also, if that were the case, why not first try expanding its robots.txt file to see if the crawlers respect that?

But, in this case, Craig is not being truthful. The lawsuit we wrote about last week, against Padmapper and 3taps, does not appear to involve companies that consume a lot of Craigslists' bandwidth. 3taps claims that it actually pulls the data from Google's cache, and PadMapper was using 3taps for its Craigslist data.

I have tremendous respect for Craig and CEO Jim Buckmaster for many of the things they've done over the years. And I've regularly defended them on Techdirt when others went after them for things. But I find these legal actions perplexing, at best. It's one thing to not like others improving on your work. But to send the lawyers after them is just flat out bullying, from an organization who should know better.