There's been so much talk about Amanda Palmer's TED talk this week, that the folks at TED rushed to get the video edited and up on the site within days, rather than the customary months. It is, not surprisingly, quite inspiring: The crux of the message: people are focused on the wrong question. It's not about "how do we make people pay for music" but "how do we let people pay for music," by making it such that people want to support the artists they love. And the way to do that is by building a real connection with a core group of fans. That is, it's not unlike core concepts we've discussed around here for a long time: Connect with Fans & give them a Reason to Buy, combined with the concept of cultivating your "true" fans.

And, as Amanda notes, one thing that she's learned throughout her life, from when she was a "human statue" working for tips to her massive success today, is that the whole thing begins and ends through the uniquely human connection -- and that this connection is not in one direction, but in many directions. It's the artist giving to fans, the fans giving to artists and, beyond that, the fans giving to other fans and artists giving to other artists. Whether it's crowdfunding or crowdsurfing, it's about building up a real relationship, and at the heart of that relationship is trust.

As Amanda notes at one point,

For most of human history musicians and artists have been a part of the community. Connectors and openers. Not untouchable stars. Celebrity is about a lot of people loving you from a distance. But the internet, and the content that we are freely able to share on it, are taking us back. It's about a few people loving you up close. And about those people being enough.

I'd argue, in some ways, it's even more than that. What the internet has enabled is for artists and creators to reach out to wider and different communities than they could in the past -- meaning that that ability to connect and to be both supportive and supported can come about in unique and different ways. That historical context that Amanda discusses, used to be mostly bound by geography. Artists would connect with people nearby. But now, many more artists are able to connect and build a fan base that is "enough" by finding and bringing together that special and unique community that is right for them and them alone.

It's a message that is unquestionably true and incredibly powerful for those who recognize it, rather than fight it.

We already wrote about the UK court letting the BPI decide what sites the court would order all UK ISPs to block access to, but as more details come out about the process, the scarier it is. As Duke noted in our comments, the whole process lacked any sort of due process:

For those interested the full judgment is here: EMI Records Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 379 (Ch)

The law is a bit worrying (I haven't read it in that much detail but I think it goes slightly further than previous ones) - the main concern is that, again, there was no hearing, no defence, no cross-examination of evidence etc.. Without seeing the witness statements I can't be sure, but I think the judge just accepted everything the BPI had to say at face value.

That's not justice - not in an adversarial court system.

The Open Rights Group (ORG) in the UK has quite reasonably expressed its concern about how such blockades are likely to stifle speech, especially when there is no one allowed to argue against the blocking.

We are concerned that these orders are not protecting speech, are overblocking forums and discussion, and are prone to error as the actual block lists are private.

Furthermore, users and the public interest have not been represented in the processes

It amazes me that anyone thinks it's reasonable to shut down a site without any sort of due process in the form of an adversarial hearing, in which multiple sides can be presented. The opportunity for widespread abuse and the stifling of free expression is massive.

There are dozens of free software and open source licences -- many would argue rather too many. Different licenses impose different conditions. For example, the best-known and most widely-used is the GNU General Public License, which is designed to ensure that anyone building on GPL'd software and distributing it should make the modified program available under the same license. Others, such as the BSD license simply require the copyright and license notices to be included with any code that is used.

Open source licenses are often described as the "constitutions" for the communities that form around the software they govern. That would seem to imply that in their absence, alongside other unwanted consequences, the communities would collapse. A provocative paper by Clark Asay, Assistant Professor at Penn State University Dickinson School of Law, suggests that this isn't the case, and that software could be released into the public domain and yet still thrive as a collaborative project.

He points out that despite its undeniable success -- free software now dominates many of the most important sectors in computing -- there are transaction costs associated with it. For companies, these arise from ensuring full compliance with licenses, no mean task if corporate lawyers are unfamiliar with the subtleties of this world. For programmers who are choosing a free software license for their code, not only is there a bewildering choice, but some of them are mutually incompatible. This means that code from one project can't always be dropped into another using a different licence, which makes building on open source harder than it should be.

Asay suggests that placing software into the public domain would avoid all these issues, and allow the code to be re-used more widely, with resulting benefits for coders, companies and users alike. However, he recognizes that there are some important concerns that need addressing.

For example, one of the strengths of licenses like the GNU GPL is that it prevents free riding: if a company takes GPL'd software and uses it in a product that it distributes, it must adopt the GNU GPL and contribute its code back to the original code's community. If the code were in the public domain, that wouldn't be the case -- it could simply be taken and used without further ado. But Asay notes that there are good reasons why companies are likely to make their code available anyway:

if a firm were to take and close a project, they almost certainly would not obtain the free labor that contributors around the world are willing to provide to open-licensed projects. Without that free labor, firms would lose the most significant advantages of an open model of innovation, and the free labor would likely remain loyal to the open version of the project. Firms thus already have incentives to open and contribute as much of their materials as possible, since doing so will attract free labor and trigger innovation in directions that better suit the firm and its strategic direction.

The key point is that the code without the community that creates it is pretty much dead. A company may gain a short-term advantage in taking public domain code and enclosing it, but by refusing to give back its changes, it loses any chance of collaborating with the coders who are writing the future versions. It will have no influence, and no way of raising issues of particular concern that help it with its products. Instead, it will have to keep up the development of its own version of the code single-handed. That's likely to be costly at best, and may even be impossible except for the very largest companies (Apple is an example of one that has succeeded, basing its Mac OS X operating system on the free BSD version of Unix.)

That also explains why coding communities will still function, even in the absence of "constitutions". Anyone who refuses to accept consensus decisions simply becomes isolated if they try to ignore them. Alternatively, if the community leadership starts to go astray, forks of the code may occur that gain sufficient supporters to become the main line of development. In other words, the natural collaborative development dynamics produce many of the same results as formal licenses that lay down what norms and behavior are expected.

Asay also tackles the important issue of attribution in a world of public domain software. Many programmers contribute to free software not for direct economic benefit, but to enhance their reputations, which may translate into financial benefits in the form of a higher salary or job offers. Asay points out that the current system of providing recognition is unsatisfactory -- often attribution is buried deep in licensing documents that no one ever looks at. That may explain in part why developer profiles on the popular GitHub code hosting service are becoming more common: it's a way of displaying programming prowess in a form that is easy for peers -- or potential employers -- to access. As the site itself explains:

Every developer gets their own profile page that is automatically updated with a stream of the important things they are doing on GitHub and a list of the Open Source projects they are hosting at GitHub. Many developers have started referring to GitHub Profiles as the new résumé.

The use of such pages makes the attribution requirements of software licenses less crucial, and would obviously work fine even if software were released into the public domain.

One problem with Asay's idea is that the state of the public domain today is unsatisfactory. For example, it is very hard to place works in the public domain -- the Creative Commons CC0 is perhaps the most thoroughly worked-out tool for doing so. As Asay notes, we need legislation to formalize and facilitate this move, and to address issues such as liability.

This difficulty emphasizes how much the public domain has been neglected as copyright maximalists have sought to portray it as an anomalous wasteland that needs to be made "productive" by reclaiming it through copyright enclosure. But the public domain is the natural condition of all knowledge -- that which can be shared freely -- while it is copyright and its monopoly that is the deviation from that state. If nothing else, Asay's proposal may help to bring some much-needed attention to this important but neglected area.

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We know it's not good for us, but why are we so addicted to processed foods? Part of it is related to convenience, but perhaps the real reason is because processed foods taste good -- that is, if you like a lot of sugar, salt, and fat. As much as we would like to not think about it, a lot of science (and money for research, development, and marketing) goes into designing the perfect-tasting junk food that will have people coming back for more. Here are a few examples of how science is being used to trick our taste buds.

• The science behind the creation and marketing of junk food can be useful for food companies, but it can also be contributing to the rising rates of obesity in the U.S. Apparently, the key to designing the perfect junk food is to find the "bliss point" by optimizing levels of ingredients like sugar, salt, and fat. Also, in addition to taste, the crunch and mouth feel of junk food is just as important. For example, the perfect potato chip is one that breaks with about four pounds of pressure per square inch. [url]
• PepsiCo has reportedly developed a low-sodium potato chip that tastes just as salty as the original. The secret ingredient is "Crystal Salt" which is powdery like confectioner's sugar, allowing it to dissolve more efficiently on the tongue, so people taste more salt even though there's actually less of it on the chip. [url]
• The airline food industry should take some tips from the junk food industry and find a way to make airline food taste better. It turns out that people's taste buds don't work so well in-flight due to a combination of low cabin humidity and changes in air pressure. Astronauts in zero gravity seem to suffer from similar diminished tasting ability as well. [url]

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

A few weeks ago, a young woman named Penelope Soto became an internet legend after she was caught on camera flipping a Florida judge the bird and telling him to go f**k himself during a court proceeding. Soto’s behavior earned her a 30-day stint in jail for contempt of court, but she apparently changed her ways at a later hearing and convinced the judge to vacate the month-long sentence.

But not all mouthy defendants are so lucky. Some of them do go to jail. Take, for example, the case of Brian Noval, a Florida man who in 2009 called a judge a c*ck — twice. Why do all of these things happen in Florida? Anyway, Noval’s antics were captured on film, and he earned himself 120 days in the pokey for his indiscretions. Noval only served four days of that sentence before the judge decided that this cocky defendant had learned his lesson.

As we all know, the internet is for porn, but it’s also for wonderful videos like these. And thanks to Daniel Tosh of Comedy Central’s Tosh.0, sometimes the stars of embarrassing viral videos are given the chance to redeem themselves on cable television. Ms. Soto hasn’t been given the opportunity to participate in one of these yet, but Noval was featured on the show last night.

For reasons that escape me, we never covered Noval’s incident in 2009, but now that he’s been brought back into the pop culture limelight, we’ve got some funny videos to entertain you with….

We’ll give you some info on the judge who heard Brian Noval’s case before you watch the video. Apparently Judge John Hurley of the Broward County Court presides over its first appearance division, and is known for his “spunk, one-liners and, on Fridays, bow ties.” To put it differently, this man is not to be f**ked with.

But Noval didn’t know that, so he called Judge Hurley a c*ck, like any man with common decency and respect for the judicial system would. And plus, it’s Florida — of course someone would think it’s acceptable to call a judge a c*ck in Florida. And without further ado, here’s the entertaining segment from Tosh.0:

Well, you don’t have to be wearing a seersucker suit to acknowledge that Daniel Tosh is correct when he says that “judges are basically parents for people who have sh*tty ones.” And we now know that Andrew Dice Clay could have a promising career ahead of himself as a criminal defense attorney. Because with a closing like, “Hickory dickory dock, my client has the right to call that judge a c*ck,” how can you possibly go wrong?

Broward judge sets high bar [Sun Sentinel]
Web Redemption – Courtroom C*ck Guy [Tosh.0]

More stories from Above The Law:

• Is Yahoo Serious?
• I Need A Contract Attorney: An ‘Ivy League’ Contract Attorney
• Avast Ye Maties! Kozinski Benchslap Ho!

We recently wrote about Illinois state senator Ira Silverstein and his bizarre decision to push an obviously unconstitutional bill that would effectively ban anonymous speech online. Basically, any site that accepted comments or user content, would be required to get the real names and addresses of anyone who comments, or agree to pull any anonymous content. As we noted at the time, the bill appeared to be an almost exact replica of a NY state bill that was widely mocked online for being unconstitutional.

Silverstein has now pulled the bill, admitting that "the heat" the bill generated was too much, so he dropped it. But what's truly incredible is his apparent inability to understand why people were so upset. He doesn't seem particularly apologetic about it, though he does admit that he copied the NY bill, which he discovered while surfing the internet:

"I do a lot of reading, a lot of research, over break," he said. "And I came across this idea that had been suggested in New York (state) as a way to combat cyberbullying. Kids can be very mean on the Internet, and I thought this might be a way of controlling that."

So it's another "save the children!" excuse, without, apparently, even attempting to think through the consequences (or constitutionality) of what he was proposing. For all the "reading" and "research" he did over break, you'd think he would have come across the complete tear downs of that same NY bill and why it was unconstitutional. I'm glad the bill was pulled, but it would be nicer if there was some flicker of recognition from Silverstein as to why the bill was so problematic in the first place.

The story of ACTA is well-known by now. ACTA was yet another attempt by copyright and patent maximalists to spread maximalist principles further via a secretive treaty that allowed certain industries to participate in the process, but kept out any and all concerns from public interest groups, the public itself, and innovative industries that would be harmed by the laws. Thankfully, widespread protests in the EU resulted in ACTA being declared dead there, as the EU Parliament refused to agree to ACTA. And, without the EU, it's questionable if ACTA will ever be a real treaty in any way that matters. Yes, some countries have signed it, but there are still some ratification processes necessary, and without the EU on board, the whole thing seems kind of pointless. Other negotiating countries, including Switzerland, Australia and Mexico have indicated that they are not fans of ACTA either.

Many assumed, therefore, that ACTA was dead. But... not the US apparently. Nor Canada. In an announcement today, the USTR is apparently acting as if the months of ACTA protests and the death of ACTA in Europe didn't happen. Instead, it's all about pressuring countries like Canada by claiming that they need "to meet its Anti-Counterfeiting Trade Agreement obligations." Seriously, now?

Now, if I'm a Canadian politician, this is the point where I tell the USTR to go pound sand and to recognize that the world has clearly rejected the concept of ACTA, and having just gone through a long and arduous copyright reform process (also mainly because of US demands from the likes of the USTR), that the USTR should go pick on some other country to bully.

Instead, however, we get near complete capitulation. With near perfect timing, a bill has been introduced in the Canadian Parliament to bring Canadian IP law into line with ACTA. Why would they even bother?

The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

It's really amazing that they're willing to open this can of worms, given just how strongly people fought back against ACTA elsewhere. Michael Geist has a good initial analysis of the bill at the link above, and will likely follow up to call out some more specifics in the 52 pages of changes to copyright and trademark law, but just the fact that Canada is bothering to move forward on this is troubling. It shows a Canadian government who doesn't seem to care about what the public wants, but rather feels the need to kowtow to US entertainment and pharmaceutical lobbying interests.

The first is that this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a "gold standard" agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

For many years, Canada has strongly resisted US-style copyright laws, despite tremendous pressure to do so. Watching them cave on ACTA is certainly a disappointment. Meanwhile, watching the USTR pretending as if ACTA went forward as planned is simply par for the course, and a reminder of just how completely detached from reality that organization remains. Elsewhere in the USTR's agenda release today, it mentions working with Japan to bring ACTA into force, which is somewhat laughable, considering how many countries have been rejecting it.

This one is so odd I almost wonder if there were some key points lost in translation (not in language, but from "policy wonk speak" to "journalist speak"). We've talked plenty about the recent move by the Librarian of Congress not to renew the DMCA exemption for unlocking your mobile phone. That story kicked up a lot of anger and protests from people. And while there has been some talk of trying to convince the administration to change the ruling, the general sense seemed to be that the issue would just wait for the review period, which happens ever three years.

However, Greg Ferenstein at TechCrunch is reporting that FCC boss Julius Genachowski claimed that not only were there "concerns" about the ruling, but also that the FCC was going to investigate the matter:

The "ban raises competition concerns; it raises innovation concerns."

Of course, he also admitted that he might not have any actual authority over this particular issue (he doesn't). As great as it would be for some other agency within the same administration to come out and counter another agency concerning this issue, that still seems unlikely. The FCC's mandate almost certainly doesn't stretch so far as to permit unlocked phones, but it sounds like Genachowski is interested in seeing if he can find some way to find that authority somewhere, somehow.

Genachowski isn't sure what authority he has, but if he finds any, given the tone of the conversation, it's likely he will exert his influence to reverse the decision. "It's something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones."

In the end, I can't see how the FCC has a legitimate say in the matter, even if I agree with their stance that consumers should be able to unlock their phones.

While I don't always agree with him (who do I always agree with?), like many folks who follow legal issues, Judge Alex Kozinski, the chief judge of the court of appeals for the 9th circuit, is one of my favorite judges. Known almost as much for his ability to entertain as for his clear, well-written (and frequently funny) judicial rulings, one thing that's always been clear is that, unlike some judges, Kozinski is both down to earth and really inquisitive when it comes to understanding how things really work, rather than just accepting common wisdom. Last night, Judge Kozinski gave a lecture at Santa Clara University on "The Two Faces of Anonymity." As I expected, it was entertaining and insightful, with a few Kozinski-esque surprises thrown in.

By far the most entertaining part of the evening was Kozinski sharing (with screenshots) his experience exploring the "hidden web." He claims that when he told his children about the topic of the talk, they told him he needed to explore the hidden web. So, "with some trepidation," he downloaded Tor and dove in, starting out at Silk Road, which still remains the most well known hidden website out there. As we've noted in the past, for all the excitement and press attention Silk Road has received for being a totally anonymous online marketplace used mainly for buying and selling drugs and other illicit goods, it still is a fairly small business. Still, Judge Kozinski detailed his exploration of the market, including checking out various drugs (including many he'd never heard of before). He also looked into the ability to buy forged documents and lots of counterfeit software. From there, he moved over to Silk Road spin-off, The Armory, to see what weapons they had for sale, including 6lbs of C4 explosives. Of course, this is the point that we realize that Kozinski's claims of just having done this recently are probably a fabrication, given that The Armory shut down last summer. It's possible he didn't actually do any of this, but got screenshots from elsewhere online, but there's just something amusing in thinking about Judge Kozinski sitting at home surfing through these sites. He showed a few sites for hiring hitmen, and joked that two of them had such similar language and pricing that he was tempted to report them to the FTC for likely collusion.

He marveled at how much like regular online stores these sites were -- including things like seller ratings -- and compared it to his experiences with eBay. Of course, he also noted that it's entirely possible the whole thing is a front by the feds to track these kinds of things, but if so, he was impressed with the level of detail.

While much of this was entertaining, the point (I think!) was to highlight all of the kinds of things that anonymity enables -- but it wasn't in a necessarily negative or judgmental way (even if he's suggested his concerns in the past). Instead, it was more of a realist approach to what's happening out there and how there are interesting challenges presented concerning both anonymity and privacy -- which he notes are related but not the same thing. To show the difference, he discussed your neighbors across the way, where they may not be anonymous to you, but what they do in their bedroom is kept private from you. Yet, take a random couple in Times Square on New Years Eve doing the same thing -- and they may be "anonymous," but not private at all.

While he did express some concerns about where all this leads, including a dig at anonymous comments online, his biggest concern appeared to be about government abuse thanks to technology. He spent a fair bit of time on the NSA's infamous spy center in Utah, which is supposedly storing a ridiculous amount of information on us all. He pointed out that having that much information in the hands of government is dangerous, and suggested it's likely to be abused. As an example, he pointed to the story from all the way back in 2001 when he and other federal judges discovered that the feds were monitoring their internet usage, something the judges had never been told about.

He explained that the software had been put on the computers to protect the judiciary intranet from being attacked by hackers from China or whatever, but most of the time they weren't doing anything at all, so it wasn't long before the scope began to creep, and someone realized that, hey, if that monitoring software is on those computers, it could also be used to spy on what sites judges were surfing. The judges only found out about it when a judge was called out for his inappropriate surfing habits.

While he didn't say anything explicitly about it, it seems like this should be a pretty clear warning to folks who are supporting laws like CISPA. When you increase information sharing to the government for one purpose, you can almost guarantee that there will be scope creep over time. Someone will point out that "hey, we're already doing this for security, so why not for spying on people...."

Similarly, Kozinski is worried about how all this number crunching and data collection by governments means that people are going to be "targeted" for heightened scrutiny based on some algorithms, even if their activity is perfectly legal. He even noted that he's assuming that his own decision to download Tor and check out Silk Road and other sites probably means that he set off some alarms and may be in for heightened scrutiny. When asked about that later during the Q&A, he admitted that it might just be his own paranoia, but he wouldn't be surprised if it was true.

When asked about how to push back on all this government surveillance, he said that everyone keeps pointing to the courts, and saying that it's their responsibility to limit the government's powers, but suggested that the courts are limited, because it's not clear that anonymity and privacy are really Constitutional issues. Or, he said, if there is a basis for them in the Constitution, it's fairly weak, and could easily be overcome by "other concerns." Personally, I think that he downplayed both the First Amendment's protection of anonymity as confirmed by the Supreme Court, as well as the 4th Amendment's (too often ignored) protection of privacy. Still, he seemed to think that this was really an issue where it was up to Congress to prevent abuses. That's kind of depressing if you remember Congress' recent "debate" and subsequent rubberstamping of the FISA Amendments Act, giving the NSA much more power to spy on Americans with little oversight.

One other bit of useful info: he seemed fairly convinced by Justice Sotomayor's statements on the 3rd party doctrine in the US v. Jones case about GPS tracking. If you don't recall, the 3rd party doctrine basically says that you don't have privacy rights in information that you've left in the control of a third party. That's obviously quite problematic in an age of cloud computing, where all your data is probably in the hands of third parties. The government has been relying on this fact to access all sorts of data with little oversight for quite some time. It's good to see Kozinski hint at the idea that the 3rd party doctrine just isn't reasonable any more in the information era.

There were plenty of other tidbits, but basically it was an interesting discussion of privacy and anonymity, with a strong focus in how the government is collecting way too much information on us all these days. There was also some brief talk of how much information companies are collecting too -- including his apparent uncomfortableness with things like Google Maps' Street View and Satellite View (he joked about how you can see him sunbathing nude if you can find his house). But, for the most part, he seemed to think that this was an area where the government was doing a better job keeping companies somewhat in check.

Oh yeah, and one other amusing tidbit: in talking about how easy it is to track us all due to our mobile phones, he asked how many people had smartphones (or, more specifically, "phones with email on them") and noted that when he talks to lawyers, they all do. He noted that lawyers always had their email near them to respond to clients quickly, because otherwise you get fired, but this cool tool "given to you by work" just shackles you while also denting your privacy. And then he claimed that when work gives him a smartphone, he gets it without a sim and then sells the device on eBay. Maybe he should try selling it on Silk Road next time...

For a year now, Techdirt has been following the sorry saga of Germany's attempt to make search engines and others pay for licenses to show even small excerpts from online newspapers. The main motivation seems to be to take money from Google for being successful, and to give it to the German publishers that are struggling.

Even though the idea that newspapers were suffering because of the short excerpts shown as part of search results is absurd, and existing copyright law already forbids unauthorized use of longer extracts, publishers had enough friends in the German parliament to get the "snippets" law pushed through today. However, along the way, a small amendment was made to the text that makes it slightly less damaging. According to the new wording (pdf - German original), quotations will have to be licensed unless they are:

single words or the smallest excerpts

Unhelpfully, no definition for "smallest excerpts" is given, which means there is still considerable uncertainty over just how many words can be quoted without paying a licensing fee. That's bound to have a chilling effect on the use of snippets, as publications err on the side of caution before court cases begin to establish what is and isn't acceptable. Another issue is whether quotations in blogs or on social networks will be exempt: according to the German magazine Der Spiegel they will ("probably", in the case of Facebook). But again, we won't know for sure until cases come to court.

Happily, there is still some doubt over whether the law will ever come into force. According to Der Spiegel again, the SPD (Socialist Party) may be able to overturn the law in Germany's other legislative body, the Bundesrat. Let's hope it succeeds, and saves Germany from the embarrassment of trying to implement such a backward-looking and unworkable law.

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To date, Kim Dotcom has been having a long string of victories in court in his ongoing battle with the US concerning their attempt to extradite him and try him in the US for creating and running Megaupload. One of the big victories was the district court ruling that the FBI needed to reveal its evidence against Dotcom as a part of the extradition procedure. The US DOJ had been arguing that the evidence only matters for the US trial, and that New Zealand should effectively rubberstamp the extradition. Eventually, you knew there had to be some setbacks in Dotcom's case, and now an appeals court has overturned that earlier ruling, and said that the FBI does not need to reveal its evidence.

In its judgment, the Court of Appeal says extradition hearings are not criminal trials and that the judge deciding whether to order extradition has only to be satisfied there is a case to answer.

The court said the US government had a duty of "candour and good faith" in making an extradition bid, but a summary of the evidence held would suffice.

Dotcom has made it clear that he's going to appeal this to the Supreme Court, so there's still the possibility of at least one more level of review before this is over. I'm sure there are specific reasons for today's ruling, but I have to admit it does seem odd that you can pull someone out of their home country and take them across an ocean without having to actually prove you have an actual case first. The idea that the US government is doing any of this in "good faith" seems like an assumption that isn't particularly supportable in reality.

Reader David Sutherland emailed us this week about a DMCA notice that he received via his MediaFire account. The notice, which we've included below (including all of the crappy formatting) claimed that he was using MediaFire to host "one of the following files: Downton Abbey, CONTRABAND (2012), GRIMM (2011), House M.D., MAN WITH THE IRON FISTS, THE, The Office." The "file" they claimed was one of those TV shows/movies was "Cantha Cartography Made Easy 2009.tpf" which is actually a game mod for Guild Wars. You might possibly be able to argue that ArenaNet, makers of Guild Wars could have a copyright claim (maybe, sorta), but that's not who sent the notice and it's not what they claimed it was. Sutherland notes that he set up this MediaFire account solely to host game mods and has never hosted any other content there.

So, who sent the DMCA takedown? Dtecnet. And, as you can see from the messy, messy DMCA notice below, they tried to takedown a huge list of files. If Sutherland's experience is anything to go by, you have to wonder how many of them are actually infringing.

Of course, we've seen plenty of bogus DMCA takedowns. It happens all the time. But this one is doubly important, because it's from DtecNet, a division of MarkMonitor. MarkMonitor/Dtecnet also just happen to be the company providing the key monitoring for the new "six strikes" Copyright Alert System (CAS). The Center for Copyright Information has a web page on its site about an "independent expert assessment" of MarkMonitor's antipiracy methodologies. Except... that page is completely blank. Perhaps, if they're looking to do an analysis, figuring out why they're taking down content that has nothing to do with what they claim would be a good place to start.

Good thing the CAS works entirely based on accusations, without needing to show any proof at all, huh?

The national discussion about links between video games and violence continues. Unfortunately, most of the loudest "discussion" seems to be taking the form of proposed legislation that takes the view that the connection is a foregone conclusion. There's a wealth of misinformation to draw from, especially if one wants to believe that video game violence leads to real life violence, and many of these pundits and politicians have already found all the "evidence" they need to justify their push towards video game regulation or flat out bans.

One of the voices sure to be ignored in this debate is one with actual experience with violent individuals. Former FBI profiler Mary Ellen O'Toole had this to say about the subject during a panel discussion hosted by CBS News.

"It's my experience that video games do not cause violence," O'Toole told CBS News. "However, it is one of the risk variables when we do a threat assessment for the risk to act out violently."

"It's important that I point out that as a threat assessment and as a former FBI profiler, we don't see these as the cause violence," she added. "We see them as sources of fueling ideation that's already there."

O'Toole's statement echoes what many others have noticed while researching video games and violence. Violent video games don't craft new killers. However, they may encourage pre-existing tendencies. The push to censor or punish violent video games in order to prevent violence ignores the source of the problem, opting instead for an easily-accessible scapegoat.

As another panelist pointed out, violence statistics simply do not track with the rise of the video game industry.

Texas A&M International University psychology professor Christopher Ferguson pointed out that youth violence had recently declined to the lowest level in 40 years at a time when video games had become more violent.

As Ferguson sees it, this backlash against video games is nothing more than another moral panic; a periodic societal reflux that has attempted to lay the blame for societal woes on various handy villains in the past, like rock music, pinball and Dungeons & Dragons (among others). Ferguson point out the "attention" paid to comic books in the 1950s, which Congress and psychiatrists blamed for everything from juvenile delinquency to homosexuality.

Tragedies often lead to instant reactions and moral panic as legislators and special interests alike seize on parts of culture they distrust or misunderstand. This leads to a lot of "working backwards," as we've seen in a number of bills that have been introduced post-Newtown.

"We're in a mode of worry about — or panicking about this type of media. We may do some putting the cart before the horse, and we may see some people sort of starting with a conclusion and trying to assemble data in a very selective way to try to support that conclusion."

Fortunately for gamers, the Supreme Court has already taken a firm stance against the government regulation of video games, viewing this as a violation of First Amendment rights. This, combined with studies that have failed to show any direct link between violence and video games, helps keep legislators from doing much more than making a lot of noise about the subject. But they'll still keep trying, at least until the next bit of blamable culture comes along.

We've been troubled by a series of court rulings that have given police broad powers to search mobile phones without a warrant. California lawmakers tried to pass some legislation preventing such searches, but Governor Jerry Brown vetoed the bill to keep law enforcement happy.

Of course, most people have no idea what the police can pull off of your phone when it's searched, but the ACLU has, thankfully, revealed some documents that ICE filed in a court case. It turns out they can get quite a lot. Using a single "data extraction session" they were able to pull:

• call activity
• phone book directory information
• stored voicemails and text messages
• photos and videos
• apps
• eight different passwords
• 659 geolocation points, including 227 cell towers and 403 WiFi networks with which the cell phone had previously connected.

As the ACLU notes, this is a hell of a lot more information than law enforcement could ever reasonably achieve in the past -- especially without a warrant.

Before the age of smartphones, it was impossible for police to gather this much private information about a person's communications, historical movements, and private life during an arrest. Our pockets and bags simply aren't big enough to carry paper records revealing that much data. We would have never carried around several years' worth of correspondence, for example—but today, five-year-old emails are just a few clicks away using the smartphone in your pocket. The fact that we now carry this much private, sensitive information around with us means that the government is able to get this information, too.

The type of data stored on a smartphone can paint a near-complete picture of even the most private details of someone's personal life. Call history, voicemails, text messages and photographs can provide a catalogue of how—and with whom—a person spends his or her time, exposing everything from intimate photographs to 2 AM text messages. Web browsing history may include Google searches for Alcoholics Anonymous or local gay bars. Apps can expose what you’re reading and listening to. Location information might uncover a visit to an abortion clinic, a political protest, or a psychiatrist.

The whole idea that law enforcement can search your mobile phone is based on the idea that they can search items in your possession. But that never took into account the digital record that is stored in your mobile phone that goes way, way beyond what someone in the past could effectively carry in a box or a bag or something.

We wrote a couple of weeks ago how some were arguing that Spain ought to go back on the "naughty" Special 301 list for failing to show any "positive developments" on the copyright front recently. By an interesting coincidence, the Spanish Internet Association has just published a leaked draft of proposals to make digital copyright law in Spain even harsher. Here's how the Web site ADSL Zone describes them (original in Spanish):

The new proposals have a clear intention: to amend the Criminal Code to allow criminal prosecutions of Websites that provide links. According to the leaked document it will be an offense to provide ordered listings and categorized links to protected content, developed for this purpose and involving an active and non-neutral maintenance and updating of those lists.

Interestingly, Google wouldn't be affected by the new law according to ADSL Zone, nor would "occasional links" be prosecuted. Of course, everything would then hinge on what "occasional" meant in this context.

There's also the following proposal:

Second, the paper seeks to limit the concept of private copying. This will require us to be in possession of the "original media". This is really incompatible with the current reality, since there are legal platforms like Spotify or iTunes where you do not have that "native support".

The concept of "original media" is meaningless in the digital realm, where files are copied many times as they traverse the Internet, or as people move them around on their storage media. How on earth would you prove that your digital copy was "original"?

Finally, there is a suggestion for making the copyright levy system not only worse, but in conflict with current EU plans to rationalize it:

no matter whether we copy or not, whether or not we have the "original media", the fee will be charged in any case.

In an age where storage media are becoming ubiquitous -- if Samsung's refrigerator is running Android, it must have storage -- such levies are anachronistic and harm innovation, so Spain's plans to push on with them is one more indicator that it's heading in the wrong direction. The big question, of course, is why it is doing this: is it simply the usual story of lobbyists' privileged access to government ministers who aren't interested in whether the new measures are fair or even effective? Or is this once more the heavy hand of America reaching across the water to put a little pressure on its Hispanic friends...?

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