Last year, Google announced that it would begin charging high-volume users for access to its previously free Maps API. It seemed like an odd move. Jacking up the price on something, without actually offering anything new to entice customers to stay, only works if you have a total monopoly—and free competitor OpenStreetMap was already growing rapidly at the time.

Not long after the Google announcement, we reported that property search engine Nestoria was jumping ship to OpenStreetMap. Then, in March, news began to spread that Apple was making a strong push to move away from Google Maps data on the iOS platform. FourSquare also abruptly switched. Now the exodus is continuing, with Wikipedia announcing that the latest versions of its mobile apps for iOS and Android have also ditched Google Maps for OpenStreetMap:

Previous versions of our application used Google Maps for the nearby view. This has now been replaced with OpenStreetMap - an open and free source of Map Data that has been referred to as ‘Wikipedia for Maps.’ This closely aligns with our goal of making knowledge available in a free and open manner to everyone. This also means we no longer have to use proprietary Google APIs in our code, which helps it run on the millions of cheap Android handsets that are purely open source and do not have the proprietary Google applications.

One wonders how Google didn't see this coming—or if they did, what exactly their strategy is here. OpenStreetMap is gaining a lot of momentum, and in some areas even features much better data. The real lesson here is that there's never an incumbent that isn't at risk of being unseated, no matter how widespread the adoption of their product or service—especially if they make an anti-customer decision like Google when it put a price tag on Maps. The situation also points to the long-term strength of open solutions: while a crowdsourced system like OpenStreetMap never could have put together a global mapping product as quickly as Google did, over time it has become a serious competitor in terms of both quality and convenience. Indeed, none of the companies that have switched pointed to the price as their number one reason—potentially superior quality, and the desire to support open data, are generally listed as significant factors. Location-based tools are a rapidly growing field, and by failing to stay ahead of their more open competitors (while becoming less open themselves), Google may have sacrificed their role as a crucial engine driving such services.

Nathan Myhrvold, the founder of the world's largest patent troll, Intellectual Ventures, has been known to make ridiculous statements concerning patents in the past, but he's at it again. He's now claiming that the concerns and complaints about how patents hinder innovation are really just a vindication of his efforts. He was asked a question about all the criticism, including This American Life's brilliant expose on just how ridiculous patents are today -- which focused quite a bit on how Intellectual Ventures appears to be little more than a massively funded shakedown scheme -- and he responded by insisting that these criticisms were actually a good sign:

Not only do you have to be willing to fail, you have to be willing for people to ridicule you and call you names. And most great endeavors have exactly that.... When you change the status quo, people get upset, and there are very powerful vested interests that feel threatened by the idea of people who will just go an invent a lot of new stuff, and ask you to pay for it. Here’s the interesting thing: When we started Intellectual Ventures, it was even more true that there was all of this, and big technology companies were publicly saying, patents are terrible... If you look today, some of the most active litigants are big tech companies. Apple is out there very actively trying to protect the iPhone.... Intellectual property is actually more important to big companies every day, and I think that actually is vindication.

Let's unpack that a bit. Intellectual Ventures isn't "changing the status quo." It's doing the opposite, it's taking the "status quo" -- a completely broken law that gets lawyers and investors rich but massively hinders actual innovation -- and scaling it up to massively harmful proportions. Intellectual Ventures has done nothing to help drive innovation forward. It has only taken money out of the innovation economy. No one is threatened by inventors inventing new stuff. They're threatened by companies wielding a virtual nuclear weapon allowing them to demand money for doing the obvious. Patents that are broadly worded, having little to do with actual inventions, are wielded against the companies that actually innovate.

The fact that big companies are involved in patent battles doesn't vindicate Myhrvold. They've always been involved in patent battles. The only reason patents are important in the tech industry is because everyone else has them and you need them to avoid a bogus lawsuit from a competitor. Or, as Joel Grus insightfully paraphrased in the comments to the Geekwire article linked above:

"All those big companies that said patents were terrible? Now they’re trying to destroy each other with patents. Which somehow demonstrates that patents aren’t terrible!"

Using patents in lawsuits and patents being "useful" are two totally different things. Myhrvold must understand this. Either he doesn't care because scamming the system is making him filthy rich, or he's completely out of touch with how patents impact the tech industry.

Encyclopaedia Britannica's recent announcement that it would cease its printing operations was the culmination of the inevitable. Many of its eulogizers seem to be laying the blame at Wikipedia's feet, despite the fact that Microsoft's Encarta software dealt the first blows to printed encyclopedias several years before Wikipedia's development.

While many words have been written about the revered encyclopedia's history and stature, very few words have been written detailing EB's adjustment to the digital age, which is as much about the things it did do as it is about the things it didn't do. Shane Greenstein has written a very astute assessment of EB's reactions to the evolving encyclopedia market, one that clearly shows how forward-looking Britannica was (and is), rather than bemoaning the loss of the print edition.

[E]B was a highly leveraged organization. It sold books with door to door salesmen. This was an expensive way to distribute a product, and it did not, could not, last under assault from the PC and the Encarta.

More to the point, the management of the organization was forward looking. They sponsored a set of projects for DVDs and online experiments. The latter eventually went online in January 1994 with an html version. Its descendants still generate licensing revenue for the organization.

Then Wikipedia came along and ate everyone's lunch in the reference section, that is, everyone who made DVDs and books. Encarta had to close its doors a couple years ago. It was simply not getting enough sales any longer for Microsoft to find any reason to keep it going.

Britannica realized quicker than many legacy entities that the market it worked in was no longer viable and changed its focus early in the game. Countless industries have been upended by new technologies, but many have failed to react in time to take advantage of these changes. Not only did Britannica shift its focus while it still could compete, but it greeted this upheaval with something even more rarely found in legacies: civility. Greenstein explains that what Britannica didn't do is perhaps the most astonishing aspect of this story.

Here is my point. Notice what happened as the market evolved. The once leading firm changed its organizational form. It adopted a new form too, both DVD and online licensing. It still survives today with the latter, albeit, at a much smaller scale than during its peak.

In short, this transformation came about in a rather civilized way. Do you hear any whining or fussing from EB about unfair trade practices, as so many firms have done? Do you see EB suing anybody for patent infringement, as seems so common today in high tech?** No, in the last decade EB did the classy thing, restructuring as best they could to make due in the new world.

Other firms should pay heed to that example. This is how it is supposed to happen, as one new market replaces an old. This is how markets should evolve. Let's hear it for Encyclopedia Britannica, for evolving with a sense of class, and for moving along with everyone else as we all move along into the new age.

(**Note: This isn't entirely true. Back in 2007, Encyclopaedia Britannica took GPS manufacturers to court for patent infringement. Why GPS makers? Well, the patent it acquired from Compton was broadly written, involving search features on CD-ROMs, which was taken to mean that anything computerized or multimedia-based could be pursued for infringing on the patent. An uproar followed and the patent's definition was narrowed down by the commissioner of the patent office, leaving EB free to pursue the new definition... which was GPS manufacturers. All clear?)

This "evolving with a sense of class" has escaped many legacy industries who have made serious efforts to stop the clock, if not actually turn the clock back to when they had control of their respective fields. Many have the ear of legislators, who often confuse death throes for growing pains, especially when trying to hear over the hubbub of omnipresent lobbyists.

Many companies, when going under for the third time, remain convinced that the only way to escape drowning is to drag someone else down with them. Last ditch lawsuits and cries of "unfair" are the norm these days, rather than focusing energy and time towards moving forward and adjusting to new realities.

As graceful and civil as EB has been, its self-appointed mourners (of what exactly? paper?) have also issued eulogies of their own, offering bizarrely-worded attacks on Wikipedia, as though its only reason for existence was to destroy every other encyclopedia, online or off.

Over at the Atlantic, historian Edward Tenner leads off with an inexplicable headline: "Why Wikipedia's Fans Shouldn't Gloat" before disappearing down a "EB was just better" rabbit hole, offering no solid reasons, but plenty of "vibes." He begins by quoting another mourner, A.J. Jacobs of the New York Times:

The books gave comfort. A set of Britannicas sent the message that all the world's information could fit on one shelf. Hans Koning, the New Yorker writer, once called the Britannica the culmination of the Enlightenment, the naïve belief that all human knowledge could be presented with a single point of view. The Britannica marched along, neatly and orderly, from A to Z. It was containable, unlike the sprawling chaos of Wikipedia.

Note the wording. EB = "comfort." Wiki = "chaos."

Tenner digs deeper:

But there was another positive contribution of the old Britannica. It reflected the old-school cultural judgment that value is not determined only by the marketplace. Compare, for example, the depth of the Wikipedia entries for Fyodor Dostoevsky (5,542 words, 38 references) and South Park.(12,675 words, 215 references). It's true that the Britannica online academic edition article on Dostoevsky by Professor Gary Saul Morson of Northwestern is slightly shorter than Wikipedia's, but is different in kind. It may have fewer facts but it probes the writer more coherently and deeply.

In Tenner's mind, "old school cultural judgment" outweighs reality. He uses a comparison between entries for Dostoevsky and South Park as if to point out that Wikipedia is little more than a pop culture repository, when in fact it only illustrates that he believes his worldview is the correct one; i.e., Dostoevsky is more important culturally than South Park. Of course, this view that is just as subjective as claiming the opposite. He then spends a little time decrying Wikipedia's "mania for facts" (at the expense of "depth," apparently) before coming to this odd conclusion.

The reason the Britannica remains far more browsable than Wikipedia is that even a biased, occasionally error-committing writer can be more rewarding than the report of a pseudonymous committee.

While reading the work of a talented writer is usually more rewarding than reading a bunch of facts strung together, Wikipedia's strength has always been instant access to concisely written facts and it has never portrayed itself as a replacement for in-depth dissection.

Many writers have their own take on the supposedly inferior Wikipedia, who they blame (at least indirectly) for the end of EB's print run, but none is more bizarre than Chris Castle's take, which I will quote in its entirety because it's a.) short and b.) completely nuts:

The authoritative Encyclopedia Britannica launched a new online site at www.britannica.com. The "facts are like water" crowd will no doubt prefer the work product of the wisdom of mobs, but I personally tend to agree with Britannica's slogan: Facts matter.

I will also be interested in comparing entries in Britannica to entries in the Encyclopedia of the Mob. Very interested. As this can now be accomplished with greater ease and because the EOTM keeps such good records of who did what when, I invite MTP readers to do a little comparing from time to time and if you find any striking similarities, drop us a line here at old MTP, we know what to do with that kind of information. Let the wild waleing start. A little free advice to EOTM "editors"? Don't walk near any buses with Jimbo.

Beside being super-proud of himself for "encyclopedia of the mob" (and its casual belittling of everyone who has ever contributed to/used it), it's impossible to parse Castle's point. Is it that EB's "new" (ca. 2006, actually) online service will be relentlessly plagiarised by Wiki editors? Is it that Jimmy Wales will feel so threatened by EB's authoritative presence that he'll start plagiarizing, rendering the "editors" useless/dangerous and therefore in need of death-by-bus? If you have any guesses, feel free to toss them out in the comment thread.

All in all, Britannica comes out of this sounding like it would rather focus on the future while its biggest fans sound like they'd rather it was 25 years ago all over again. It's one thing for an industry to make some atrocious noises when confronted with massive upheaval. It's quite another when supporters make incoherent sympathetic noises simply because they've been surprised by the silence.

 

For centuries, people didn't have convenient refrigeration for storing food for long periods of time. Nowadays, we take refrigerators for granted and keep things in them even when it's not necessary. Here are just a few cool examples of ways to avoid eating spoiled food.

• There's a prototype for a sustainable portable refrigerator for small volume containers that doesn't require electricity. It still needs to be heated up in some way for the thermodynamics of it to work, but it's an interesting self-contained device for remote locations... or for camping trips? [url]
• Some nicely-designed containers could help folks store food without refrigeration while still keeping food fresh. Storing eggs at room temperature seems really strange to most Americans. [url]
• Mohammed Bah Abba won a Rolex Award for re-discovering a pot-in-pot refrigeration device (aka a zeer) that can keep food cool by taking advantage of evaporative cooling. A zeer costs about $1 to make and is just a couple of nested clay pots with wet sand between them. [url]
• To discover more food-related links, check out what's floating around in StumbleUpon. [url]  

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

There are all sorts of problems with the federal government's arguments against Megaupload. Even if the site and its founders are guilty of breaking the law, it's amazingly troubling to look at the details of how the government has gone about proving this. The most immediate situation, as we've been discussing, involves the handling of the data on Megaupload's servers.

Very soon after the raids, the feds told the hosting company that Megaupload used, Carpathia, that it no longer needed the data and that it could be destroyed. As we pointed out at the time, this made no sense at all. After all, the government is alleging that this content is at the center of a criminal conspiracy ring. So why would it want the evidence destroyed? Furthermore, it seems likely that there could be plenty of evidence on those servers that support Megaupload's case (ah, perhaps that's why the government wants it destoryed!).

Of course, since then, a bunch of parties, including Megaupload, EFF, Megaupload users and (oddly) the MPAA have gotten involved in trying to preserve the data, while the hosting firm, Carpathia has asked the court for permission to delete it, get paid for it, or have someone take it off their hands. Megaupload has specifically offered to pay Carpathia to get the servers, but since the government seized all its assets, it can't do that. Plus, the government has objected to this plan. Furthermore, the MPAA -- which still wants the data preserved -- has claimed that if the content goes to any third party it's infringement -- and could lead to the revival of Megaupload.

The whole thing is a bit of a mess, and now Megaupload has pointed out that the government's argument would result in the destruction of key evidence it needs for its case. The filing is very compelling.

The United States has seized and frozen all of Megaupload's assets, which, together with those seized from the other Defendants, include more than $60 million in cash and well over $100 million all told. In taking this extraordinary step, the Government must necessarily be alleging that every dollar of these assets is the proceeds of illegal activity. The basis of this allegation are the Government's self-selected copies of a tiny fraction of Carpathia's 1,100+ servers; even as to that fraction, the Court is asked to assume that every scrap of information on those servers amounts to criminal copyright infringement or perhaps some other illegal activity. If there is logic to the Government's actions, there is nothing lawful to be found across Megaupload's business as reflected on those 1,100+ servers. Only thus might the Government forbid Carpathia from so much as transferring to Megaupload the Mega Servers housing Megaupload content. Notably, the government is further forbidding Megaupload from using any of its assets to pay Carpathia for continued preservation of the Mega Servers' content. And, it has, in the face of Carpathia's earnest submission that it will cease preserving the servers absent the requested relief, urged the Court to deny such relief, because "the government has already completed its acquisition of data from the Carpathia Servers authorized by the warrant." ... In essence, the Government has taken what it wants from the scene of the alleged crime and is content that the remaining evidence, even if it is exculpatory or otherwise relevant to the defense, be destroyed. And by refusing to permit Megaupload to use its assets to mount a defense, the Government is effectively making sure that Megaupload has no practical way to preserve the evidence itself.

Such a course of proceeding by the Government would be troubling in any circumstance. But this is, of course, a criminal case. It is, in fact, what the Government has called the largest such case it has ever brought in the history of alleged copyright infringement. If the Government's position now wins the day, the integrity of of what ensues will be lost--the Mega Servers will have been wiped and potentially exculpatory or relevant evidence will have been spoliated, en masse, before being properly surveyed by the parties, not to mention the Court. The Government's case may be advantaged by this course of action, but much else will suffer and due process will not permit it.

The filing also rips to shreds the Justice Department's claim that the content should be destroyed because some of it may contain child pornography, by noting that it appears the US government is advocating the destruction of evidence of child porn, rather than using it to capture those responsible:

Its reasoning then becomes altogether mystifying when it asserts (without any substantiation) "that the Carpathia Servers may contain child pornography, rendering the Carpathia Servers contraband." ... To take the Government at its word, therefore, it at best is greeting with equanimity and at worst is advocating, the imminent destruction of evidence of child pornography. It is passing strange for the Government to express preference for the destruction of evidence of criminal misconduct over the preservation of it for criminal investigation.

The filing is worth reading, as it goes on in great detail, about the ridiculousness of the government's position, and how it is clearly destroying important evidence in this case, hoping to set it up so that Megaupload can only use the sliver of evidence that the government chooses to make available to it. And it's doing this before the actual case begins, where Megaupload doesn't even know the full details of what evidence is being presented and how it can defend itself. Without that, it's highly questionable, and almost certainly a violation of due process to support the destruction of evidence when Megaupload doesn't even know what evidence it needs to defend itself.

As Tim Lee writes (at the link above) about this filing, this whole situation looks really bad for the government, and seems completely contrary to our basic concepts of due process and innocent until proven guilty:

The government's intransigence on the preservation of evidence is the latest example of the government's scorched-earth approach to the Megaupload prosecution. Theoretically, criminal defendants are innocent until proven guilty. Yet the seizure of Megaupload's servers, freezing of its assets, and arrest of its top executives did immense damage to the company long before they had a chance to tell their side of the story to the jury. Now, the government seems to be trying to deny Megaupload the opportunity to fully defend itself in court. Megaupload may be found guilty, but like everyone else it has the right to a fair trial.

Indeed. Megaupload may not be a sympathetic defendant at all, and may very well have violated the law. But if the government truly believes it has a strong case, why is it trying so hard to destroy so much evidence? If the case is as strong as the Justice Department makes it out to be, then surely it can withstand Megaupload having access to all of the evidence? That the Justice Department is fighting so hard to destroy evidence in the case seems like a clear admission that it knows its case is incredibly weak.

Apparently JDPI, the company behind Jack Daniel's whiskey, has no trademark inhibitions. Through LexisNexis we learn that Mark Anthony International, another alcohol company, has filed a lawsuit (pdf and embedded below) seeking declaratory judgement that they can obtain and use the trademark "Cayman Jack", after JDPI disputed their trademark application and sent them a legal threat.

Quick, look at these two bottles:

How hurried and moronic would you have to be to get them mixed up? Yes, they both use the name "Jack". If a customer is drunk enough to confuse the world's best selling whiskey with a "margarita-flavored malt beverage", they are probably well past the point of distinguishing individual words, let alone of thinking, "Wow, this clearly Jack Daniels-endorsed luxury liquor certainly changes my opinion of that brand". If such a person does exist, they must get pretty confused sometimes, since as Mark Anthony points out in its filing, the liquor store has no shortage of Jacks:

The [trademark] application was examined by the United States Patent and Trademark Office ("USPTO") and found to be entitled to registration and published in the Official Gazette on March 9, 2010.

The fact that the USPTO believed CAYMAN JACK to be entitled to registration is wholly unsurprising given the prevalence of other "Jack" named drinks in the marketplace. The JACK DANIEL'S mark already coexists with other "Jack" named alcoholic beverages, including PANAMA JACK and CALICO JACK for rums; CACTUS JACK for tequila; PAPA JAC for alcoholic cocktails; YUKON JACK for liqueur; SCRUMPY JACK for cider; DEADEYE JACK, THIRSTY JACK, BLACK JACK STOUT, JACK RABBIT PALE ALE and JACK'S PUMPKIN SPICE ALE for malt beverages; HONEYJACK for mead and hydromel; and BLACKJACK PASTURE, JUMPIN JACK and BLACKJACK WINES for wines.

The lawsuit gets into a lot more detail, showing how the products are marketed in different ways to entirely different audiences, and walking through the entire brand development process for Cayman Jack to demonstrate that it had nothing to do with Jack Daniels. Hopefully the court sees that there's no chance of confusion here and grants them their declaratory judgement—but as we've seen in similar cases, some judges prefer to feed the ownership culture by granting companies total control over simple symbols and words.

So Chris Dodd just said that there were ongoing backroom negotiations for a new SOPA, with some push from the White House. Of course, he did it with a wink and a nod, by saying he was "confident" that such was "the case" but that he wouldn't "go into more detail, because obviously if I do, it becomes counterproductive." When asked to clarify, he made it clear that Obama was pressuring the tech community to agree to a version of SOPA:

I'm not going to revisit the events of last winter. I'll only say to you that I'm confident he's using his good relationships in both communities to do exactly what you and I have been talking about.

For all the winking and nodding, the meaning of the statement was pretty clear. Of course, now that it's getting plenty of attention and the MPAA is getting slammed from every direction for continuing its braindead backroom strategy, the organization is simply denying Dodd said what he said:

"Sen Dodd did not say SOPA is coming back to life. He said the tech and entertainment industries need to come together to work on a new solution and those conversations are beginning. SOPA is gone. The path forward now is a serious conversation between all involved industries about new solutions, and that was Sen Dodd's point."

That's an interesting twist on what he actually said, but even if we take the MPAA at their word, this still shows how out of touch they are. Notice that they say the path forward is not an open conversation with internet users. Nope. It's a backroom negotiation between "all involved industries." It's as if the MPAA can't even get its mind around the fact that the stakeholders here are the internet users -- or that any such discussions should be done in public. Instead, the only thing it can think of is that it has to negotiate in backrooms with industry reps. I don't think I've ever come across an organization so ridiculously tone deaf.

You know what's a bad sign? When you're a state legislature, and you pass what's clearly an unconstitutional law that criminalizes using technology to "annoy or offend" others -- and then you have to scramble after-the-fact to amend the bill you already passed. Yes, thanks to a rather loud public mocking of Arizona politicians for ignoring the First Amendment in its internet censorship bill, the Arizona legislature is trying to amend the bill quickly.

Here's a thought, though: if you passed a bill so bad that people around the globe are mocking you, perhaps it suggests you don't know what you're doing. At that point, shouldn't you back away from mucking with the internet, and leave that to the professionals who actually understand technology? Somehow, diving back in and pretending that this time you'll get it right doesn't inspire confidence. And, in fact, the details suggest that any amendments considered at this point will almost certainly still be First Amendment violations.

“Even so narrowed, the statute is unconstitutional. You simply cannot prohibit emails that are said to be intended to offend. That violates the First Amendment flat out,” said University of Chicago Law School professor Geoffrey Stone, who specializes in constitutional law. “You can prohibit email if the recipient has requested you to stop sending them. That’s different -- but that’s not what this says.”

Still, I think the most ridiculous words of all come from Rep. Steve Farley from Phoenix whose statement on the bill is really quite stunning:

"I know people are focusing on unintended consequences of the bill, but I don’t think that's realistic," Farley said. "I think this is a wakeup call that we should be civil online and in society in general. I don’t think it's right we should ever be able to threaten violence against each other online."

I love how he doesn't explain why the unintended consequences aren't "realistic." He just insists that's the case. Of course, anyone who's actually been around policymaking (especially when it comes to technology) knows that there are always unintended consequences. And it's not hard to find unintended consequences of a bill like this that broadly outlaws "annoying" people with electronic devices.

But even more ridiculous is that second half. You don't legislate civility. We don't make a law saying you have to say "please" and "thank you." Look, some people are obnoxious jerks out there. That's not a legislative problem. Finally, his claim that people shouldn't be able to threaten violence against each other might have some weight if the bill was actually limited to people threatening violence. But it's not.

How do people like this get elected?

It's no secret that there's a fair bit of spam on Twitter -- which is annoying -- and it's nice to know that Twitter knows this is an issue that it needs to fight. But I'm a bit concerned by the news that it's now suing spamming tool providers as well as some spammers. Going after the spammers directly for terms of service violations makes sense and they're fair game. But going after tools providers? That seems risky. I'm reminded of a very similar situation from a few years ago, in which Craigslist went after spam tool providers as well. Some of the details there raised significant questions -- most specifically in Craigslist arguing that service providers could and should be liable for actions of their users. That approach rejects the core concept behind protection from secondary liability -- something that's been quite important to tons of internet sites over the years, including Craigslist and Twitter.

I recognize how tempting it is to go after the tools providers over spam. But just as we don't blame Twitter or Craigslist for how users use (or abuse) their system, those companies shouldn't blame tools providers for the actions of their users either. At the very least, I could see it coming back (in a big, bad way) to haunt Twitter, by giving opponents in lawsuits the ability to point to Twitter's own claims against these tool providers to suggest that it, too, should be liable for the actions of its users. From the details (embedded below), it appears that Twitter is arguing that all users breached the terms of service -- and it carefully notes that each of the software providers have registered accounts -- meaning they agreed to the terms at some point. I understand why it's being argued this way, but I'm not sure it makes sense. The terms apply to that account, not everything that someone with an account does outside of the account. Twitter also claims that the spamware providers are involved in tortious interference with a contract as well as fraud and "unlaweful, unfair and fraudulent business practices" under California law.

To its credit, Twitter does not go as far as Craigslist did in its anti-spam lawsuits -- which actually tried to use copyright and trademark law, as well as claiming that violations of terms of service are a violation of the Computer Fraud and Abuse Act. Thankfully, Twitter avoids going down those paths where those very specific laws might come back to haunt it -- and sticking with slightly more defensible claims.

While I'm incredibly sympathetic towards Twitter's position here, and the goal of stomping out spammers, I still find it troubling in a few ways. Twitter can and should (absolutely) look at ways to kill spammer accounts and to block spamming tools through technological means. It's when things go legal that it could get tricky. While my heart wants them to win -- I still fear that the arguments that the service provider itself is guilty because their tools are used for spamming floats a little too close to arguments about whether or not Twitter is responsible for how its users use Twitter.

Richard Clarke, the former cybersecurity czar in the White House -- and a huge, huge, huge proponent of pushing for greater legislation for spying on Americans under the guise of "cybersecurity" (it used to be "cyberwar" but that term was so laughable, it's been downgraded to "cybersecurity) -- has written one of the most ridiculous defenses of new internet spying proposals, claiming that Chinese hackers are stealing all our intellectual property by hacking into computers online. He has no evidence of this. He tells apocryphal stories of Chinese hackers somehow getting all the data from a "$1 billion research program copied by hackers in one night." The whole thing is fear-mongering in the extreme, using the specter of evil "Chinese pirates" hacking computers and stealing important US intellectual property. That's wrong for a variety of reasons that we've discussed multiple times. But where it gets downright silly is in his assertion that (1) the US could magically "stop" these mythical hackers from "stealing" data, and (2) that Homeland Security already has the authority to spy on all internet traffic as it comes over the border:

If given the proper authorization, the United States government could stop files in the process of being stolen from getting to the Chinese hackers. If government agencies were authorized to create a major program to grab stolen data leaving the country, they could drastically reduce today’s wholesale theft of American corporate secrets.

[....]

Under Customs authority, the Department of Homeland Security could inspect what enters and exits the United States in cyberspace. Customs already looks online for child pornography crossing our virtual borders. And under the Intelligence Act, the president could issue a finding that would authorize agencies to scan Internet traffic outside the United States and seize sensitive files stolen from within our borders.

And this does not have to endanger citizens’ privacy rights. Indeed, Mr. Obama could build in protections like appointing an empowered privacy advocate who could stop abuses or any activity that went beyond halting the theft of important files.

Almost everything stated above is ridiculous. As law professor James Grimmelman points out, with this article "Richard Clarke disqualifies himself from participating in any serious discussion of cybersecurity."

Indeed. It's scary to think that Clarke was ever seen as an expert in cybersecurity. He seems to be under the assumption that the internet really is a series of tubes, in which customs agents can simply stop all that data at the border and inspect it. And the idea that appointing a single "privacy advocate" would magically stop abuses? You'd think he just stepped off the turnip truck, rather than having spent many years in government where privacy was regularly abused, despite much more significant safeguards in place. Who does he think he's kidding?

Will we ever have people driving policy discussions on regulating the internet who actually understand the internet?

We already covered the 2nd Circuit's ruling in the appeal of the Viacom/YouTube case, but I wanted to follow up after seeing much of the coverage. There have been a number of reports that outright declare this a "victory" for Viacom, which is a very generous reading of the ruling. To be sure, the appeals court reinstates the case that had been effectively shut down by the district court -- but it did so in a manner that rejected every single one of Viacom's interpretations of the law. The biggest concern in this lawsuit was that Viacom would be able to use it to effectively reinterpret the DMCA the way it wanted the law to act, rather than the way the law was actually written (and which the case law has supported for years). The court clearly rejected that attempt by Viacom.

But, of course, it wasn't a complete vindication for YouTube. Reviving the lawsuit is clearly a partial step backwards for YouTube, but it's entirely possible that they could still prevail in the district court on the specific points that were sent back for trial. And, in the details of why the appeals court revived the case are some significant problems, many of which are outlined in a thorough post by Eric Goldman. I don't agree that the ruling is quite as significant as Goldman does, but he does make some good points about problems with the setup of the DMCA's safe harbor and (equally troubling) the way the court ruled on a few key points that make little sense.

On the setup of the DMCA, Goldman notes that the real issue here is that the DMCA safe harbors have a bunch of different confusingly worded parts -- and to keep the safe harbors, you need to hit on every point, which is kind of ridiculous when you think about it:

Most importantly, this opinion exposes a structural deficiency of the 512(c) safe harbor. The statute's simply too long and detailed, and if a defendant fails to satisfy each and every element, the safe harbor is lost completely. This is reminiscent of military strategy and information security: the defense has to work equally well across its entire border, while the adversary can concentrate its attack and only has to succeed on one point of attack to win. The same is true with a 512(c) defense. So, it doesn't matter that YouTube won most of the points of contention; if any single point of contention fails, YouTube's 512(c) defense fails. As I've insisted before, this provides a good lesson for drafters of safe harbors and immunities--to work effectively, the safe harbors/immunities must be pithy and categorical, or else they create too many potential points of failure.

This is a really good point, and suggests that if the DMCA is to be fixed, the safe harbor provisions should be clearer that missing a single checkbox doesn't mean you automatically lose all safe harbors.

The second concern is how the court interpreted parts of the DMCA where it's been sent back to the lower court. As Goldman notes, the 2nd Circuit's decision to totally punt on "right and ability to control" is going to create a huge mess for a while, in which we can expect copyright holders to flood the 2nd Circuit with cases focusing on that point -- since the appeals court simply rejects the standards put forth by YouTube (which used an interpretation already accepted in the 9th Circuit) and Viacom (which used an interpretation that only made sense in the minds of Viacom execs) but fails to come up with its own standard. Meaning no one knows what the standard is... and that means that copyright holders have a chance to get the court to redefine it in their favor:

So the court agrees with no one. Given that it rejected everyone else's definitions, we might expect the court to carefully lay out what it thinks the phrase means. Sadly, no. The opinion doesn't provide an express definition of what qualifies as the "right and ability to control," instead sending that issue back to the district court to figure out both the standard and whether YouTube met it. The clearest clue the court provides about the standard is it "involve[s] a service provider exerting substantial influence on the activities of users, without necessarily—or even frequently—acquiring knowledge of specific infringing activity." I have no idea what that means, other than that it's open season for plaintiff fiestas.

The fact that this will likely open up an opportunity for new lawsuits could be a pain for innovative companies who will face a new series of bogus legal attacks. Elsewhere, Goldman warns that the end result of this ruling will mean that startups that work with user generated comments are going to have to lawyer up at an earlier stage, and may have to take extra precautions which don't appear to be supported in law, just to avoid lawsuits.

In the end, the ruling is certainly not a "victory" for Viacom, but it does have significant problems. The district court could fix some of the problems by establishing that YouTube still gets safe harbors, even after the court's vague and directionless remand, but if that fails, perhaps this case and its differences from existing 9th Circuit case law would end up in the Supreme Court. That, of course, is risky, since the Supreme Court has been so consistently clueless when it comes to copyright cases.

I used to travel with both a laptop and a netbook. More recently, I've usually traveled with a laptop and a tablet. I always took both the laptop and netbook out when I went through airport security, assuming that was required. Also, remembering reports that were written when the iPad first came out, I also take my tablet out and dutifully place it in a separate bin. The last time I went through the airport, a TSA agent told me (for the first time) that I don't actually need to take out the tablet, but she still thanked me for doing so. I may continue to do so, just to avoid any further hassle, but it turns out that the rules for what devices you need to take out, and what you don't, are ridiculously opaque. And, in fact, I probably never had to take out that netbook in the first place, though I wouldn't have put it past the TSA agents to force me to do so anyway if I hadn't.

Matt Richtel, at the NY Times, tries to get to the bottom of the weird rules for what devices come out and which don't and mostly comes up empty. He got curious after a similar experience, in which he was told his iPad could stay in his bag. The TSA insisted it had its reasons, but wouldn't tell him. Other security experts had some guesses, but no solid reasons. Then, there's the TSA's famous Blogger Bob. Oddly, Richtel and the NY Times apparently don't know how to do this amazingly cool HTML trick of "linking" (guys, it's 2012, get with the program), but Richtel quotes two TSA Blogger Bob posts, which I will link to here, finding them myself using another modern digital tool: the search engine. The first one says that smaller devices can stay in your bag:

Electronic items smaller than the standard sized laptop should not need to be removed from your bag or their cases. It’s that simple.

It’s important to remember, however, that our officers are trained to look for anomalies to help keep air travel safe, and if something needs a closer look, it will receive secondary screening. The key to avoiding bag searches is keeping the clutter down. The less clutter you have in your bag, the less likely it will be searched.

Only electronics the size of a standard laptop or larger (for example Playstation®, Xbox®, or Nintendo®), full-size DVD players, and video cameras that use video cassettes must be removed from their carrying cases and submitted separately for x-ray screening. Removing larger electronics helps us get a better look at them and also allows us to get a better look at the contents of your bag

That explains the what, but not the why. It also, once again, makes me think that it's often a safer bet to just remove, rather than give the TSA any reason to delay you. The second post is slightly more bizarre, in that it seems to suggest that there's a screen-size cutoff:

So with those rules in mind, the 11” model of the MacBook Air is fine to leave in your bag, and the 13” model must be removed prior to X-ray screening. Unless of course you own one of the "Checkpoint friendly" laptop bags... Keep in mind that even though you’ve done everything right, our officers are trained to look for anomalies and the need may arise to take a closer look at your gadget.

I hope this clears things up.

Got it? 11" screens? Leave 'em in your bag. 13"? Take 'em out. 12"? Well, are you feeling lucky?

I am curious, however, how many people actually have tried to go through TSA security with an 11" or smaller screen on a computer... and made it through without having to pull the device out of your bag. I can't imagine that most average TSA agents know this amazing 12" rule.

Either way, Richtel tries to parse the language to figure out why there's a screen size cutoff, and still comes up empty. Finally, he talks to an anonymous "security expert," who actually worked on "related issues with the Department of Homeland Security." That guy admitted what we all pretty much suspected all along:

He said that the laptop rule is about appearances, giving people a sense that something is being done to protect them. “Security theater,” he called it.

Richtel makes it sound like "security theater" is a new term, which it's not. But, either way, it's nice to get confirmation, yet again, that the whole thing is a joke. But, in the end, it doesn't matter, because rather than deal with security delaying you from catching your flight, it's still probably going to be easier to take everything out and put them all in individual bins.

One of the key points in understanding how disruption works is to recognize that as old industries fail, new industries grow up to take their place. For a true free market to work, failure has to be not just accepted, but embraced. Tragically, in the crony capitalist system we have today, large incumbents go running to the government as soon as they're disrupted, whining about how the disruption is not the normal workings of disruptive innovation, but rather "the end of the world" and a sign of clear evil. It's why you hear talk of "too big to fail" and all sorts of efforts to paint new innovations as illegal, rather than just disruptive competition. Yet, as we've seen over time, disruptive innovation may move jobs around and cause certain sectors to diminish, but it tends to open just as many, if not more, opportunities elsewhere over time. I don't think I've ever seen that displayed quite as clearly in graphic form as in a chart that LinkedIn recently released, looking at what parts of the industry have been growing and which parts have been shrinking over the past few years: This chart caught the attention of Paul Smalera, who specifically noted that newspapers are at the very bottom, but online publishing is right near the top on the growth side -- a near perfect showing of how jobs shift over time. He notes the classic Innovator's Dilemma issue with news companies, where they thought they were in the business of selling newspapers, and that held back their ability to innovate:

They have been trapped in a terrible mindset that they are in the business of selling newspapers. The leap from paper to digital may be vast, but to newspaper publishers, it seemed like vaulting to a different business entirely, one they were loathe to get into. No matter what kind of lip service newspapers paid to the digital transformation, the most prominent paywall model out there, that of the New York Times, still protects print subscriptions with a tiered digital pricing strategy – one so annoying that it motivated its former digital design director to complain publicly about the entire signup process.

The lesson online media companies have taken from newspapers’ slow, public death is to move beyond the idea of selling the product. Online sites are selling their audience. It’s a simple twist of the equation, but one that changes everything about how a media company is run. A CEO who has realized that her audience – her customers – is the most important thing the company has will stop at nothing to give those customers what they want. Anything to make them feel as if they’re getting value from the company. And although she’ll monetize their aggregate value with advertisers and marketers, she’ll also protect them from underhanded sales pitches or confusing pricing strategies that infuriate the web-savvy.

This is a really good point on multiple levels. Beyond the innovator's dilemma (and the key point of figuring out what the real product is), Smalera is also debunking one of the popular myths of the internet era: when you're selling a user's attention, companies will naturally abuse their users. What he notes is that companies that do this don't end up lasting through the long haul, because users get annoyed and go elsewhere. Even though it's become a common pejorative statement among neo-luddites to mock the idea that the "users is the product," one thing that is true when that happens is that the companies need to treat their users right, or they have a crappy product that they can't sell.

Similarly, Mathew Ingram uses this to discuss why it's so difficult for legacy businesses to adapt, noting that it's difficult to change business models on the fly. Not only do you have to make big bets on new things, but you also have to keep the legacy business running while at the same time trying to undercut it with the new thing. It's why so many companies fail the innovator's dilemma test. Unless you have incredibly visionary leadership who can push a company through with a strong and clear vision of why the company must move in that direction, the magnetic appeal of trying to prop up increasingly obsolete businesses is just too strong.

But, the failure comes not because of some new "threat" or because of some kind of disgraceful activity (no matter how much legacy players try to describe it that way), but because corporate leadership chose to let others innovate, rather than supporting a plan of out-innovating themselves. Very, very few companies are willing to cannibalize their own business models -- but the failure to do that just means that someone else cannibalizes it for you.

And it goes way beyond news. The chart above shows some other key areas of disruption as well. That clump of retail, automotive, construction, banking, telecommunications, pharmaceuticals and real estate represents prime feeding ground for the next decade of disruption -- much of which has already started. You don't necessarily see the corresponding growth points on the opposite side of the chart, but as with newspapers and online publishing, give it a few years, and those new jobs and industries will make their way up the chart, as the legacy players continue to shrivel up (and whine all the way down).

Jeff Cliff points us to an interesting story in which writer Rebecca Blain points out just what a complete freaking downer it is to get an ebook (legitimately) and then have it dump a massive threatening copyright notice on you that assumes you're a crook. Think of it as the equivalent of the stupid, annoying and pointless FBI warning found at the beginning of movies:

So, off I went. It was a nice evening, and I had a few minutes before bed. I fire the kindle up, select Last of the Lesser Kings, and start to read. Well, I tried to. Encountered quite a few pages of legal threats telling me how much I would be sued for if I had the sheer audacity of putting this book on more than one device that I owned. Heaven forbid if I lend it out to anyone. The amount of the violation didn’t have two, three, or four zeros. Try five or six. I don’t remember the exact amount, but I remember the complete shock and impossibility of the average person being able to pay that sum. I’m not going to open my kindle to find out again. It made me mad enough even having to type this out.

After having read the book, I can state with some confidence that this author’s book is not worth four or five digits to me, let alone six. If I had bought this book, rather than being presented to it as a reviewer’s ARC, (this was a post-publication, so it was exactly the same content a paying reader receives) I’m pretty confident I would have asked for a refund without reading the book, seeing as I wasn’t paying to be threatened.

She then followed that up with another post that actually included that copyright notice along with another random selection of notices. First, here's a snippet of the copyright notice that led to the original blog post, from the book Last of the Lesser Kings by T.L.K. Arkenberg:

Your non-refundable purchase of this e-book allows you to only ONE LEGAL copy for your personal reading on your own personal computer or device. You do not have resell or distrubition rights without the prior written permission of both the publisher and the copyright owner of this book. This book cannot be copied in any format, sold, or otherwise transferred from your computer to another through upload to a file sharing peer to peer program, for free or for a fee, or as a prize in any contest. Such action is illegal and in violation of the South African Copyright Law. Distribution of this e-book, in whole or in part, online, offline, in print or in any way or other method currently known or not yet invented, is forbidden. If you do not want this book anymore, you must delete it from your computer.

WARNING: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to 5 years in federal prison and a fine of $250,000.

ALL RIGHTS RESERVED: This literary work may not be reproduced or transmitted in any form or by any means, including electronic or photographic reproduction, in whole or in part, without express written permission. All characters and events in this book are fictitious. Any resemblance to actual persons living or dead is strictly coincidental. The Licensed Art Material is being used for illustrative purposes only; any person depicted in the Licensed Art Material, is a model.

The other copyright notices she looked at were not nearly as threatening, though at least some of them appear to engage in copyfraud by overclaiming their rights and ignoring the possibility of fair use exceptions. Perhaps most interesting is that a few of the books she looked at, including at least one by a "big name player", did not include any copyright notice at all.

In the end, though, the real point is that this is not how you connect with your fans, by defaulting to assuming that they're all trying to distribute unauthorized copies of your work. Assuming the worst of your fans likely means you're going to have fewer fans. Trusting your fans and not scolding them tends to lead to much better results. It's too bad so many publishers haven't figured that out yet.

Full-time portrait artist Gwenn Seemel recently posted a brief video about how she feels when someone copies her work. To her, being copied means you have created something important and meaningful, and she notes that the most copied works of all time are also the most seminal cultural icons we have:

I do feel there are a couple of points that she could have made better. Firstly, she doesn't fully acknowledge the value of transformative works, although from her slideshow of examples it is apparent that she understands that value. Secondly, when she talks about her true scarce value—being the only genuine source of her artwork, which is an important thing for artists to recognize—I wish she had also noted that, just like every other artist in history, her work also draws on what came before it. Despite these small quibbles, it is a succinct and sincere statement from a real artist about why being copied is good, and why freaking out about it means taking an incredibly pessimistic view of things.

ACTA and TPP have much in common. That's no coincidence, since they are both born of a common desire to move away from multilateral forums like WIPO that are relatively open to scrutiny, to invitation-only groups negotiating behind closed doors. That lack of transparency has allowed all kinds of extreme measures to be proposed without any countervailing arguments being heard about why they are neither fair nor sensible.

But in many ways, what's really interesting is how the two treaties differ, because it's clear that in many places TPP goes well beyond ACTA -- it's not simply a transposition of ACTA to the Pacific Rim. As such, those differences represent the next turn of the copyright enforcement screw, and give us a fascinating insight into where the copyright maximalists are likely to be pushing for more when it comes to drawing up successors to ACTA and SOPA, say.

That fact makes some recent work by Carrie Ellen Sager particularly useful. She has prepared a detailed comparison of the US proposal for a TPP Chapter on IP (the only information we have on TPP so far) with the relevant sections of ACTA. There are two versions: a full comparison table (pdf) and one with the highlights (pdf). In what follows, I'll be quoting from the latter.

Here's a typical way in which TPP is even more stringent than ACTA:

Under ACTA, a country may give its authorities the power to force an ISP to identify an infringer to rightholders, subject to certain conditions. Under TPP, a country shall establish administrative or judicial procedures for forcing an ISP to identify an infringer to rightholders, without ACTA’s conditions.

That's important, because much of ACTA is optional in this way: TPP indicates how the copyright industries will be pushing to turn its frequent use of "may" into "shall" when it comes to implementation. They will be able to do that because ACTA sets a floor for enforcement, but allows signatories to go beyond its terms if they wish.

On "Technological Protection Measures" TPP has two nasty turns of the infringement screw:

TPP goes beyond ACTA by applying provisions on technological protection where circumvention is carried out unknowingly or without reasonable grounds to know.

and

TPP goes beyond ACTA by explicitly limiting the possible limitations and exclusions to the TPM circumvention rules, while ACTA gives a country free reign to create exceptions and limitations it finds reasonable.

The second of those is particularly troublesome, since it reduces the scope for signatories to introduce more balanced copyright laws even if they wanted to.

In the criminal penalties section, there are the following differences:

TPP goes beyond ACTA by omitting safeguard that such penalties shall be consistent with “the level of penalties applied for crimes of a corresponding gravity.”

TPP goes beyond ACTA by requiring party members to establish policies or guidelines to “encourage judicial authorities to [actually] impose those penalties.”

TPP goes beyond ACTA by requiring criminal penalties for copyright or related rights infringements “that have no direct or indirect motivation of financial gain.”

The net effect of those changes is to make the criminal penalties much harsher, and to push for them to be applied in every case. The last of the above differences means that even casual copyright infringement caused by swapping files with friends might be subject to criminal penalties.

There's also bad stuff on the civil penalties side:

TPP goes beyond ACTA by requiring pre-established damages to be "sufficiently high to constitute a deterrent to future infringement." Additionally, unlike ACTA, TPP provides that in patent infringement cases, the damages may be increased up to three times the injury.

TPP goes beyond ACTA by adding patent infringement to the list of case types for which a losing party may be required to pay court costs and attorney’s fees (in addition to copyright and trademark infringement cases).

Applying ACTA to patents was made optional towards the end of the negotiations, and it's interesting to see TPP putting them back as compulsory. The other elements make losing even more expensive, which patent trolls will love when they come to make their threats against real innovators who will be forced to pay up rather than take a chance of being hit with crippling damages.

As these excerpts make clear, TPP effectively tidies up all the lose ends that ACTA left dangling -- generally imposing far harsher penalties, adding back patents, and making everything compulsory rather than optional. It also provides us with a clear sense of what ACTA 2.0 will be like unless it is negotiated with real transparency that allows all parties, including civil groups and the general public, to have their voices heard.

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