I've made it no secret that I think sports leagues need to better embrace getting their product out to as many viewers as possible. Internet streaming could be a boon to growing fanbases if the leagues weren't so busy locking their own streams up and trying to shut everyone else down. And the real dingleberry on top of the crap sundae is that even if you buy one of the major sports leagues' streaming packages, you get smacked with blackout rules every time you want to watch your home team. Still, as if that weren't enough, some leagues extend blackout rules to broadcast television, setting abitrary threshholds for stadium attendance or else no TV broadcast. Can you imagine anything stupider? Particularly for the NFL, a league whose sport is flatout better experienced on television, where fans can check on their fantasy teams while they take in commercials, a wonderful revenue stream for the league and broadcast partners alike?

In the case of the NFL, the rule is that teams have to have 85% of their capacity sold by the Thursday before a game to keep the TV blackout rule from being triggered. Well, the Oakland Raiders, one team who has more trouble than most getting fans into the stands (because they're horrible), has a plan to get around the NFL blackout rules. This amazing plan is...covering up a bunch of the seats in O.co Coliseum to reduce capacity and thereby increase the percentage of filled seats for their games.

CEO Amy Trask announced yesterday that the Raiders will be eliminating nearly 10,000 seats for next season, mostly by covering up Mount Davis with a tarp. Mount Davis is the nickname given to the tier of seats installed in a 1996 renovation, ruining the backdrop view of the Oakland hills that were a staple at A's games. They're steep (nearly to the point of being unsafe) and the upper reaches are comically distant from the action. And they've gone mostly empty, being tarped off for baseball since 2006.

For those of you who haven't followed much in the way of sports business in the past, this is certifiably insane. That said, the insanity is on the part of the NFL, not the Raiders, who are only trying to get creative in routing around the restrictive blackout policy. They clearly understand that getting their games on TV is the best way to build their fanbase, which will result in more attendance at the stadium. The NFL, however, appears to think that nixing the broadcast a few days before the game will drive more attendance at the gates. This logic fails what I like to call "The Blackhawk Effect" (See, Mike? I can coin terms too!), where once the local blackouts of Chicago Blackhawks games was lifted, the previously unattended games were suddenly filled to capacity.

What the NFL should be encouraging teams to do is go the other direction and open up even more ways for fans to view the games, whether by attending, watching on TV, or streaming. Instead, they're forcing their member teams like the Raiders to tarp over part of their seating capacity just to avoid arbitrary blackout restrictions. How less fan-friendly could a league get?

Biology is a messy science. Nature doesn't lend itself to nice, orderly categories for people to understand. The tree of life is really tangled, and it's probably a bad analogy to start with. As we learn more about genetic analysis and find samples of ancient DNA, scientists are starting to reconsider some evolutionary processes. Here are just a few fascinating studies.

• A single-celled organism in Norway doesn't quite fit the label of being an animal, plant, fungus, alga or protist -- but it is a eukaryote because it has a cell membrane. This microorganism isn't easily classified, and it might be our oldest living ancestor. [url]
• Biologists are finding about 2,000 new marine species every year, but there are an estimated 700,000 to a million marine species living in the world's oceans. It's going to take a while to document all these organisms, and hopefully, we'll be able to do it before more species go extinct. [url]
• Evolutionary biologists might need to re-think their understanding of how early animals developed. Previously, animals with a mouth and anus were classified as either protostomes or deuterostomes, depending on how they grew... but a recently-studied protostome throws a wrench into the naming conventions and how biologists look at the largest branch of animals in the tree of life. [url]

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

Maybe it's just me, but this year's annual meeting of the global elite at the World Economic Forum in Davos seemed particularly irrelevant. In fact, all those movers and shakers had packed up and flown off in their private jets before I had even noticed that they had flown in, and it's hard to detect much of a ripple from anything that happened there (or maybe I just move in the wrong circles....)

Fortunately, an ancillary group called the "World Economic Forum's Global Agenda Council on IP" does seem to have produced something -- a document entitled "Digital Copyright Principles" [pdf]. As a blog post on the USPTO's site from one of the Council's participants explains:

The Digital Copyright Principles seek to promote a balanced view of public benefits and private rights, with copyright as a means to achieve important societal ends. By focusing on what we ultimately want copyright to accomplish, the principles seek to emphasize the common ground between different groups, with the aim of moving forward a principle-based discussion.

Well, that sounds good, since copyright should indeed promote a balanced view of public benefits and private rights. But against a background of the copyright ratchet moving the term of copyright steadily upwards, from the original 14 + 14 years of the Statute of Anne to today's life + 70 years, and of million-dollar fines being levied against a mother of four found guilty of sharing a small number of songs online, that balance is conspicuous by its absence.

Despite the laudable aspiration noted above, you will not be shocked to learn that the Digital Copyright Principles do not in fact call for the term of copyright to be returned to the original and more reasonable 28 years, or for the repeal of punitive and disproportionate laws that impose huge fines for trivial levels of infringement. Instead they start off thus:

Technology is dramatically shifting the ways in which content is created, stored, moved, and consumed. Information can be moved nearly instantaneously to anywhere in the world. Cloud computing has upended traditional assumptions about the tie between physical location and access to content. And, massive amounts of information can now be stored in devices that easily fit in the palm of a hand.

That basically means you can't stop people sharing stuff, whether they do it by pushing it up in the cloud, or onto a terabyte portable hard disc. So where does this perceptive analysis lead?

What has not changed, however, is the underlying importance and value of the intellectual property (IP) embodied in creative content. The principles below are intended to serve as a framework for policymakers, copyright owners, and content consumers to ensure that the value of that IP continues to be appropriately recognized, while also enabling current and emerging technologies to be harnessed in ways that benefit everyone in the IP ecosystem.

Gosh, now there's a surprise. Instead of accepting that this amazing and exciting new world of digital abundance necessarily calls for equally bold new ways of thinking and doing, and maybe even some radical changes in the legislative framework, what we really need according to the gurus of Davos...is more of the same.

As for the principles themselves, the "balance" turns out to be "appropriate balance" -- can't have anything inappropriate, of course, which might include things like treating the public as an active, equal partner in the discussion, rather than as the passive "content consumers" mentioned in the quotation above. However, the good news is that all that lovely content should at least be "quality" -- no cat videos here, thank you very much -- and should be available in "as many formats as possible." But given a call for creative works to receive "meaningful protection", I think we can assume that equates to "as many DRM'd formats as possible."

Copyright law should be "updated as appropriate to respond to new technologies and uses," but since that's followed by the principle that rights should be "meaningfully, practically, cost-effectively, and proportionally enforced," that probably means continuing to wage an unwinnable war on new ways of sharing stuff, with the costs of doing so borne by ISPs and the public, rather than the poor, long-suffering publishers.

The final principle is as follows:

The public should be educated about the purpose, scope and nature of copyright protections, including exceptions, and the reasons for proposed changes or government action.

It's kind of them to mention "exceptions" at last -- the only place that the other side of the copyright equation is even hinted at -- but in the interests of "appropriate balance" I think we need to add at least one more principle:

Creators and their publishers should be educated about the purpose, scope and nature of the public domain, including its enclosure, and the reasons why people who weren't at Davos think the present copyright system is unfair, inefficient and unfit for the digital world.

Suggestions for further principles are invited in the comments....

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Steve Schultze at Freedom to Tinker wants to know why the general public is still being asked to pay for access to public records. Since these records are generated using tax dollars, a person would reasonably expect they would be free to access, especially since they're the ones footing the bill. Of course, reasonable expectations are shattered by government entities daily and PACER is no exception.

As Mike noted in 2011, the fees to electronically access PACER records continue to rise, even as costs drop, leaving most Americans locked out by prohibitive fees (and a less-than-intuitive user interface). Schultze notes that not only are these fees excessive, they very likely are illegal.

[L]et’s review the law. 28 U.S.C. 1913 (note) says:

"The Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services."

Upon passing the E-Government Act of 2002, Congress noted its intent for the “only to the extent necessary” language:

The Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. For example, the Administrative Office of the United States Courts operates an electronic public access service, known as PACER, that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case Index. Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.

The current fees are unquestionably greater than the cost of providing the services. Since passage of the E-Government Act, the cost of storing and delivering bits of data over the Internet has continued to fall precipitously, and the cost of PACER access has gone up by 42 percent.

To that end, Schultze has drafted a bill entitled the Open PACER Act, which provides for "free and open access to electronic federal court records." The draft bill is dedicated to the memory of Aaron Swartz (whose "abuse" of a limited-time free access offer greatly helped give the RECAP project momentum) and is open for comment at openpacer.org. (Schultze himself assisted Swartz in this venture, putting together the Perl script for automating the PACER downloads. Shultze had plans for a "thumb drive corps" of volunteers to hit multiple libraries and utilize the free access to download millions of documents. However, Swartz struck out on his own, scraping PACER via Amazon cloud servers, leading directly to his first contact with the FBI.)

Now, we all know why we think these documents should be freely available. Now, it's time to hear from the judicial system. Schultze runs through the many reasons the government thinks we should keep on paying, summarized from a list of excuses fact sheet entitled "Electronic Public Access Program Summary: December 2012." He compiles a list of 10, all worth reading (and mocking), but here are a few of the better (pejorative form) ones.

Excuse #1: “PACER is cheap”

Whether or not PACER is subjectively inexpensive is immaterial. The law says that the fees can only reimburse for the expense of the service, and the courts are charging more than that. End of story. Nevertheless, PACER is — subjectively — expensive. Although it costs “only 10 cents per page,” the system charges not only per page for documents, but per “page” of search results, and per “page” of docket listings. It is easy to quickly run up a huge bill unless you are looking for one particular thing and you know exactly how to find it.

10 cents per page might sound like a standard library charge for printouts or copies, but we're talking about electronic access, where accessing 1,000 pages has no discernible effect on the "cost" of retrieving the documents. And charging per page or search results or docket listings? That's like having a surcharge added to your restaurant check for "accessing" the menu before ordering. The ridiculous search results charge is even more insulting considering how poorly PACER's search function performs.

Excuse #6: “You can always go to the courthouse”

This is a good one. The Administrative Office will tell you that you can go to your local courthouse to access PACER records for free. Well, maybe not “local,” but you can go to the district, bankruptcy, or circuit courthouse and access PACER. Of course, you can only access records for that particular court. You can’t access other PACER records. You also can’t download the records. You can only view them. If you want to print them, that will be 10 cents per page. That’s not legal.

lol

No. Seriously. Dry-as-straight-vermouth-in-the-Sahara "lol," the sort of laugh hastily assembled from equal parts of disbelief and disgust that inadvertently escapes you blindsided with the least helpful advice ever. Citizen: "I wish to electronically access several public records for free." Administrator: "Do you own a car?"

Not only is this suggestion utterly worthless, it's the height of bureaucratic obtuseness. Equating "a drive to the courthouse" with "electronically accessing the total of the PACER system on my schedule" is the sort of logic only deployed by someone who wishes to appear helpful but not actually help anybody. To top it off, you can only search that specific location's documents and then MEMORIZE ALL PERTINENT INFORMATION or you're back to 10 cents a page. No downloading allowed. Beautiful.

Excuse #8: “There is a high cost to providing electronic public access”

Here is how the PACER system architecture works: every court runs its own local PACER server, with local support staff and a private leased network link to Washington, DC. Are you a system administrator? Are you an average citizen who has heard the word “cloud” in the past five years? Does this system architecture seem insane? It is. It is even more offensive in light of the fact that the GSA has had, for years, a streamlined government procurement system for cloud hosting. This system is certified at FISMA level 2 security, and is hosted in a “private cloud” for the government, which is good enough for the Department of Homeland Security. It is provided by companies like Amazon at only a fraction higher cost than their commercial offerings. The courts could host all of the PACER services in the cloud — tomorrow — for under $1 million per year. They could allow all of these local system administrators to control their own PACER installations. They could obtain greater cost savings (and security) by further consolidating PACER hosting and system administration. Of course, they feel no pressure to do so when they interpret the law to allow them to charge whatever they deem necessary.

No one's denying there are costs associated with providing electronic access. But a majority of those costs flatten dramatically once the documents are uploaded. Compare that to "driving down to the courthouse," which ties up however many employees it takes to get you up and running on their local PACER service, not to mention staffers taking phone calls from those unwilling to cough up 10 cents a page for an updated docket listing.

Not only is the complaint about costs ridiculous, but taxpayers are being double-dipped for some of these fees. Taxpayers fund the generation of the documents, and as Schultze points out, PACER's largest users are also government entities. In 2009, the DOJ alone paid over $4 million in PACER fees. That's public money transferring from one government entity to another, while the taxpayer supports both the one handling "Accounts Payable" and the one handling "Accounts Receivable."

Public access is a noble goal, but the PACER system as it stands now locks out many members of the public with escalating fees and an intimidating, counterintuitive interface. The priority has shifted from public access to making money. Hopefully, another push towards free availability will get the ball (re)rolling. After all, Joe Lieberman (of all people) asked this very same question all the way back in 2009. Four years later we're still waiting for an answer. And the longer we wait, the more we pay.

Last month, we wrote about how the White House had bumped up the number of signatures it requires to get on "We the People..." petitions from 25,000 to 100,000 before it is "required" to respond (though, its response rate on qualifying petitions has been dismal). Around the same time, we also talked about how unlocking your mobile phone, so it could be used on other carriers, was switching from being legal to being illegal, thanks to the Librarian of Congress choosing not to renew an exemption to the DMCA's anti-circumvention rules for unlocking mobile phones.

While the reasoning for not renewing the exemption was that many carriers now allow unlocking anyway, that's not true across the board, and there are plenty of limitations. Just the fact that you need to ask permission to do what you want with a device you legally purchased and own should be troubling enough. Lots of people were reasonably angered by this story, and a petition sprung up on the White House site, urging the President to reinstate the exemption:

We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.

The petition itself was actually set up by Sina Khanifar, who used to run a business around unlocking phones, and was threatened by Motorola back in 2005. It was that experience that led to the original attempt to convince the Librarian of Congress to establish the unlocking exemption from the DMCA. He has explained why the exemption is important, and how this simple change not only makes something perfectly reasonable against the law, but how it effectively kills off the business he had built around unlocking phones and helping consumers actually use what they want. And, contrary to what some claim about the need to keep phones locked, he points out that there are already contractual ways to incentivize people to keep their phones locked. Lots of carriers have long term contracts with large early termination fees. They don't need the threat of copyright penalties on top of that as well.

Motorola's cease and desist letter didn't claim that I was illegally distributing their copyrighted software. Instead, it claimed that I was "distributing software ... for the purpose of circumventing the protection measures" associated with their copyrighted software. There is a subtle but meaningful difference.

The DMCA includes anti-circumvention provisions that are intended to protect music and movie owners who want to distribute their work digitally, but are afraid of piracy. The provisions prohibit anyone from circumventing the locks that control access to copyrighted works. For example, DVDs are protected by a Digital Rights Management (DRM) system that attempts to prevent anyone from easily making copies of movies. The DMCA prohibits circumventing that type of protection system.

But unlocking a phone has nothing to do with copyright infringement, and using the DMCA to prosecute unlocking cell phones is not what the law was intended for. If Motorola's interpretation of the DMCA were valid, companies would be able to create simple software security mechanisms that legally prevent a customer from using a device in any way except that in which the manufacturer intended.

As we've noted time and time again, the DMCA anti-circumvention clause has little to do with basic copyright, and everything to do with big companies trying to control what you thought you had purchased.

The petition needs to get to 100,000 signatures by February 23rd, and is currently sitting at about 62,000. It's possible, but it may be difficult. And, of course, it's not even clear what (if anything) the administration can really do. The DMCA exemption rulemaking only comes around every three years. Having them jump in with an "off-year" change would be unprecedented -- and could potentially lead to legal challenges. Congress, however, could step in and fix things with a bit of regulation, but it's unclear if they have the appetite to do that. Still, having people speak out and show that they think this bit of copyright law is crazy and restrictive seems like a good thing.

I've stated in the past, that the whole concept of "privacy policies" is a failed concept. No one reads them, those who do read them don't understand them, and most people incorrectly think that if you have a privacy policy, it means you keep information private. That's not the case. Since the only way you get into legal trouble is by violating your privacy policy, the incentives are totally screwed up: sites have the incentive to make their privacy policies as broad as possible, allowing them to do as much as possible. Since users think any privacy policy means they're safe, then the "ideal" privacy policy is one that says "we don't care about your privacy, we give away or sell all your data, and we laugh all the way to the bank" (more or less). The user thinks their data is secure, while the site has nothing to worry about since they won't "violate" the policy.

And, yet, politicians still seem to focus on privacy policies, as if they're a legitimate replacement for actually doing something to protect privacy. In pointing out how silly privacy policies are, a year ago, we noted that you'd need to take a month off from work each year to actually read all the privacy policies you encounter on a normal basis. It appears that California Assemblymember Ed Chau has a solution to all of this (as pointed out by Eric Goldman): just pass a law that requires all privacy policies to be less than 100 words. Seriously.

This bill would require the privacy policy to be no more than 100 words, be written in clear and concise language, be written at no greater than an 8th grade reading level, and to include a statement indicating whether the personally identifiable information may be sold or shared with others, and if so, how and with whom the information may be shared.

While I'm all for having things like terms of service and privacy policies be more simplified, I still don't see how it's particularly useful to legislate this. Also, lawyers aren't exactly known for their ability to be pithy. Having worked on a couple of privacy policies with lawyers in the past, finding someone who can get such a policy under 100 words would be very, very tricky.

And, not to be snarky or anything, but the text of the law itself (removing the digest explanation and preamble) clocks in at 336 words. So... if your law saying that all privacy policies must be under 100 words can't be written in under 100 words, perhaps you've highlighted the problem with your own law.

We've written more than a few times about how multiple studies have shown time and time again that those who file share tend to spend more on buying music than those who don't. We've also talked about how the RIAA absolutely hates this fact and tries to dance around it at all costs. The latest move comes from RIAA sister organization, BPI (basically the UK RIAA), which has released a report (pdf) that they claim shows the opposite:

Appearing to debunk the common belief that filesharers spend more on music than other consumers, Kantar Worldpanel found that the average spend over a 12-month period for professed filesharers was lower than the spend of consumers who only use legal services. Kantar Worldpanel’s respondents diarise their music purchases on an ongoing basis – there are no estimates made of past purchasing, just an accurate recording of spending patterns over time. The panel data demonstrated that filesharers spent an average of £26.64, compared with £33.43 by legal-only consumers, refuting the popular argument that filesharers are the heaviest spenders on music.

Of course, when you're talking about averages, it's not difficult to fudge the numbers a bit, and as TorrentFreak explains, that's exactly what BPI did. If you break out the specific numbers, you can tell a very different story:

- Legal only digital music buyers spend an average of £33.43 a year.
- File-sharers, in total, spend an average of £26.64 a year.
- File-sharers, the 44.8% who are not buying, spend an average of £0 a year.
- File-sharers, the 55.2% who are buying, spend an average of £48.26 a year.

TorrentFreak confronted BPI on this, and they shot back that TorrentFreak's analysis was unfair:

"You cannot just wave away the 44.8% of file sharers who are not spending anything on music, despite being music 'consumers', and pretend they don’t exist or are not relevant. What happens if only 5% of file sharers are spending on music? Do we disregard everyone else who is freeloading?," a BPI spokesman said.

"It's not credible to discount the people who consume music, for free, illegally."

Fair enough... except that BPI's own numbers "wave away" all of the people who consume music legally for free, but don't spend anything on music. That is, there is a very large percentage of people who don't pay for music, but who also do not infringe. These people may listen to music on the radio or while walking around in stores, but neither purchase any music, nor file share infringing works. And if the BPI was being intellectually honest they would have to average all of those £0s into the average for "legal only" if they want to require all the £0s to be added into the infringing side as well. Basically, BPI is picking and choosing who it includes and excludes to make their argument look better. When it hand waves away all the zeroes on its side of the argument, while including all the ones on the other side of the argument, of course it'll make the numbers look better for its argument. However, if you're going to do an apples-to-apples comparison, you have only two choices. Either you include all the people who don't buy on both sides or on neither. BPI didn't do that. They only chose the ones who don't buy on the file sharing side.

It's important to note that an analysis of the UK market by economist Will Page, back when he was with PRS for Music, noted that only 40% of the UK adult population actually bought any music at all. So you've got 60% non-buyers, some of whom are file sharing and some of whom are not. The BPI report chose to only include those who file shared, and ignore those who didn't. That's a clear methodological problem with their data. If they're going to include the non-buyers on the file sharing side, they need to include the non-buyers on the "legal" side, or they're simply lying with statistics.

A recent Reddit AMA (Ask Me Anything, for the .005% of readers who aren't aware) featuring Peter Sunde, co-founder of the Pirate Bay, had a visitor drop by to pay his respects... and nearly derail the whole thing.

The perception of the Pirate Bay as a lawless infringement paradise makes it an unlikely entity for a software developer to be praising, even with a few reservations. But this is what Notch, the creator of Legos Minecraft, had to say when coming face-to-face with Peter Sunde.

How much money have I lost because of this? Do I need it? God knows I certainly work hard enough to deserve it. That said, thanks for making the world a better place.

Notch and TPB go way back, or at least Notch and piracy do. Minecraft has proven hugely successful for the developer (check out the "Do I need it?" link), much of that due to the sort of "rampant infringement" that makes Chris Dodd and Ubisoft CEO Yves Guillemot cry themselves to sleep at night (and craft terrible DRM strategies during the day). The difference between Notch and the aforementioned weeping sleepers is his refusal to equate piracy with either "theft" or "lost sales."

Piracy is not theft. If you steal a car, the original is lost. If you copy a game, there are simply more of them in the world.

There is no such thing as a 'lost sale'... Is a bad review a lost sale? What about a missed ship date?

Notch addressed the "lost sale" fallacy again, following up on a question from another Redditor.

Do you think the sales that you've made through pirate versions are worth the number of downloads? I know I bought the real Minecraft after testing it out via. pirate software, as I do with most worthwhile software.

This is an extremely interesting question. For a game like Minecraft, I definitely believe it's at least broken even because the game has quite a long lifespan and has viral aspects in that people enjoy sharing what they create in and with the game. More users means more talking about the game, which means more sales.

For other games, I think piracy can definitely negatively affect the total number of units sold. This is especially true for hollywood style big story heavy big productions that are only expected to sell well and stay in the public conscience for a few months. That still doesn't mean anyone has actually LOST any money, as a bad review also can affect the total number of sales, and hopefully nobody thinks it would be sane to sue magazines for "loss of profit" over bad reviews.

And for a few games where there's a per-user cost, piracy can definitely be directly harmful to the company.

As Notch states, no one's suing magazines for bad reviews... yet. And that day may never come, especially if a convenient scapegoat like "piracy" can be asked to shoulder the blame for lousy sales. As for the statement about per-user cost, Notch is referring to ProjectZomboid, which was taken down, not because of piracy itself, but because of a glitch in the program that downloaded the entire game from Zomboid's cloud server any time the player clicked the "Update Now" button, racking up bandwidth charges for the developers. Unlike a torrent, where the delivery cost is footed by every user, Zomboid was footing the bill for bandwidth on its own. Not your usual "taken down because of rampant piracy" situation.

And then there's his response to a Redditor's simple "I'm sorry."

For what? Pirating the game?

I strongly believe individual rights are much more important than corporate rights, and I consider piracy to be an extremely minor offense. It's less harmful than jaywalking.

Organized and business run copyright infringement where people try to make money of someone else's work is a problem, but people sharing stuff casually is just barely even worth talking about...

This is the part that is often overlooked when the usual suspects begin decrying piracy. They choose to conflate it with counterfeit goods, child pornography, drug trafficking, terrorism... whatever it takes to make individual, non-commercial file sharing look like criminal behavior.

Thousands of individuals sharing stuff they like adds up. But attempts to place this behavior in the same basket as commercial enterprises that sell pirated content just make the person doing the basket-loading look ridiculous. As Notch says, casual file sharing is "barely worth talking about." This sort of behavior has gone on since the day of cassettes (for music and software) and isn't going away anytime soon.

By taking a more pragmatic approach to infringement, creators may find that an entity like The Pirate Bay isn't the enemy -- or at least, not the only one or even the worst one. Attacking The Pirate Bay also attacks its users, and its users are people you want on your side, not fighting against you. Notch sees both the upside and downside of free (and uncompensated) distribution and his solution has been to craft something that people want to pay for, even after they've already picked it up for free. Part of that profitable equation is an awesome product. The other part is simply being awesome -- something that's much easier to do when you're not painting potential customers as freeloading pirates.

(This really was Peter Sunde's AMA, so I'm going to give him the last word with this particularly hilarious response to a somewhat loaded question.)


Leeches: you have been served.

The Copyright Office continues to show that it is completely out of touch and tone deaf to the mess that copyright laws create today. We've talked a few times about how abuses of copyright law have created messes for industries that you might think would never have to deal with copyright on a regular basis. Take, for example, mechanics. What does repairing your car have to do with copyrights? In the past, absolutely nothing. More recently, however, it's been a huge deal. That's because automakers have used copyright to lock up diagnostic codes and information concerning onboard computers. The end result is that car owners are often forced to go to dealers (who are expensive) over independent car repair shops. Independent repair shops who circumvent the digital locks on car computers may be found to be violating the DMCA's anti-circumvention clause. As we've noted, this seems like a clear abuse of the DMCA, as it was clearly not designed for such a purpose. Attempts to fix this with "right to repair" legislation have mostly gone nowhere (automakers are powerful lobbyists, and the entertainment industry also doesn't want anything that weakens the anti-circumvention clause).

It would be difficult to look on this turn of events in a positive way no matter what angle you might take. It's clearly abusing copyright law beyond its intended purpose. It's limiting competition. It's making life worse for the public and for small businesses. So how could this possibly be spun as a good thing? Leave that to Copyright Office boss Maria Pallante. At a recent conference all about Section 108 of the Copyright Act, she apparently declared (via Copycense, who was in attendance):

"I think it's really great your car mechanic knows about copyright"

She similarly argued that a big challenge of copyright law is making it more accessible and suggested it was a good thing that it's "no longer" reserved to experts to deal with copyright law. All of that should actually be seen as a pretty massive problem with the system. As a government-granted monopoly privilege that also has free speech implications, we should want copyright to be very carefully limited and calibrated in a manner that it is not something that enters people's everyday lives, and that it's not an issue that a mechanic should ever need to know about. Those are signs of a completely broken system. They're signs that copyright has expanded massively beyond its basic structure, into a monstrosity, often driven by the nature of technology. When your mechanic needs to be an expert in copyright law just to know if he or she can fix your car it may make Maria Pallante happier, because it seems to validate her job, but it should be seen as a huge problem for the system. A copyright system that is working is one that doesn't trouble totally unrelated professions like mechanics. It's only a broken system that would create serious friction in jobs like that. That the head of the Copyright Office does not realize this is pretty frightening.

We've written many times over the years concerning the legality of Homeland Security searching your laptop at the border without reasonable suspicion. Many courts have held that, effectively, the 4th Amendment does not apply at the border, so they don't need a warrant to search your laptop. However, they've been continually pushing this ability further and further. For example, they got a court to say that this applies not just while you're at the border -- they can take your laptop off site to search it and hang onto it for a while. However, that time, they at least needed to have a "reasonable suspicion." DHS has taken a pretty firm stand that it must be able to keep doing this. While the ACLU and the EFF and others keep challenging these rules, to date the only possible crack was in a case where there's evidence that the search was politically motivated.

Late last week, a bizarre finding popped up. Back in 2009, when DHS announced its new rules for laptop searches at the border, it also promised that it would do its own "Civil Liberties Impact Assessment" within 120 days. Three years later, Homeland Security's Orwellian "Office of Civil Rights and Civil Liberties" has finally released a two page executive summary of the findings, which more or less says "there are no civil liberties issues" with laptop searches. What else would you expect them to say? The ACLU has filed a FOIA request for the full report, but let's just focus on the most horrifying statement in the executive summary:

We conclude that CBP's and ICE's current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits.

That statement is so bizarre I read it half a dozen times before I was sure it really said what it appears to say. It appears to be a somewhat stunning redefinition of how one reviews whether or not something violates the 4th Amendment. Rather than recognizing the rather explicit restrictions under the 4th Amendment, they merely say that it is okay to do these searches because not doing them would not have civil rights/civil liberties "benefits." That is incredible. The double negative logic there is truly amazing. In other words, we can violate the Constitution, so long as not doing so would not have civil liberties benefits. Wow.

Meanwhile, since Homeland Security has similarly argued (as part of these cases) that its Constitution Free zone for searches applies to any place 100 miles from the United States border, some are pointing out that this means that every electronic device -- computers, cell phones, you name it -- in Detroit can be searched with absolutely no reasonable suspicion under DHS's interpretation (since Detroit is less than 100 miles from Canada). But don't worry, since there is little civil liberties or civil rights benefits to not searching your stuff, DHS says it's okay.

Oh, and in case you're wondering on what basis DHS makes this assessment, it appears to be based on their own directives rather than on any "laws."

So, if you're playing along at home, DHS has decided, based on its own review of its own directives, that it can search any electronic device within 100 miles of the border without requiring a warrant, probable cause, reasonable suspicion or anything like that -- because actually respecting the Constitution "would be operationally harmful" and wouldn't really create any "civil rights/civil liberties benefits" for you.

A year ago, we asked what could possibly be the "value" in "cracking down on piracy" if that didn't then lead to increased sales. It's an issue that we've dealt with time and time again. We ask people a simple question: would you rather stop piracy or make more money? Most people note that the latter is the real goal. If the former does not lead to the latter then what good does "stopping piracy" actually do? The answer is none at all. The latest data out of France shows that, despite Hadopi (the administrators of the 3 strikes program) claiming some sort of victory because stats on file sharing are down, the bigger issue is that the sale of recorded music keeps declining. Digital Music News, who normally supports the the "anti-piracy" side of things, has some slides from French labels that show that sales keep decreasing, even as Hadopi highlights a big drop in file sharing and the use of cyberlockers. But all that really matters is this one: This is the key point that we've been making for well over a decade now. "Fighting" piracy is not the same as making more money. The focus should be on figuring out ways to make money. Even if we believe that copyright infringement is a bad thing, if efforts to stop it are both expensive and ineffective, why continue? It makes absolutely no sense. Instead, let's focus on the areas of the industry that have shown that they are expanding and where there's lots of money to be made for those who embrace them.

Oh, and for what it's worth, you have to imagine that the "declines" reported in file sharing and cyberlockers severely undercounts those things too, as using some rather basic tools can let people hide that sort of information from being collected -- and the efforts by Hadopi to "educate" the public likely educated them about how to use VPNs. It does not appear to have educated them to go back to buying at the same levels as the artificially inflated rates in the past.

A year ago, we pointed out how hypocritical it was for Ron Paul (at the time still a Congressional Representative and a candidate for President) to file a ridiculous lawsuit, clearly abusing trademark law, in an effort to unmask some anonymous internet users who had made a video that attacked another candidate, John Huntsman, and closed with a claim that the video was from Ron Paul supporters. Many of Pauls' supporters actually believed the video was a fake, from Huntsman supporters, seeking to discredit Ron Paul. Even if that was true, there was simply no excuse to then abuse trademark law to try to take away someone's anonymity. And, yes, it was an abuse of trademark law -- as he both claimed trademark on his name and claimed that the video was a "use in commerce" (it was not). Even if you believe the videomakers should have been exposed, I would hope you'd agree that abusing a totally unrelated law to do so would be a mistake, and (to us) seemed to go 100% against the things Ron Paul claimed to stand for. Thankfully, a judge quickly agreed and killed the lawsuit.

In writing about this, many of Paul's more ardent supporters trashed us both in our comments, and on various Ron Paul websites. I'm a little curious how they feel now, in a similar situation, where Ron Paul has turned his legal sights on them. As a whole bunch of folks have sent in, Ron Paul has filed a UDRP complaint against the site RonPaul.com, seeking to have WIPO turn over the domain to him. RonPaul.com has basically been the central source for the massive grassroots effort that supported Ron Paul in his last two Presidential campaigns -- leading many other candidates to envy Paul's ability to connect with the internet generation. The reality, of course, was much of that actually had to do with a few of his most dedicated fans, and their ability to spread his message via a series of grassroots websites, including RonPaul.com. To have Paul turn around and seek to have WIPO turn over the domain is incredible on so many different levels, once again suggesting that many of the things Ron Paul claims to have believed in go completely out the window at times -- even when it involves turning on the very people who built up his reputation.

Even more bizarre is that not only is he turning on his most ardent supporters and effectively taking them to court, but he's using WIPO, a part of the United Nations, to do so. Ron Paul hates the UN and would like the US to leave the UN. As he once said:

The choice is very clear: we either follow the Constitution or submit to UN global governance. American national sovereignty cannot survive if we allow our domestic laws to be crafted by an international body. This needs to be stated publicly more often. If we continue down the UN path, America as we know it will cease to exist.

And yet, here he is, running to the UN, and trying to forcefully take away a super successful site from his biggest fans supporting him, using the force of that same United Nations? Incredible.

Reading through the background and history, and then digging into the claims Paul's lawyer makes, suggests that Paul has made a huge mistake here. The backstory is that in a recent interview Paul expressed some minor regret that he did not hold the domain:

Alex Jones: Well, God bless you, sir, I hope we can get you back again in a month. What are any other websites that are important, just www.CampaignForLiberty.org?

Ron Paul: There’s that, and we’ll be listing some new things there because we’re making some other WebPages. I’m going to have a home page. Unfortunately, I didn’t have RonPaul.com, so I’m going to have to have RonPaulsHomepage.com. That will be coming up, but it’s not ready yet.

In response, some of his fans told the site's operators they should look to hand over the site. The operators noted that over the past 4.5 years, and through two high profile Presidential campaigns, they were at the center of building up massive grassroots support for Paul, and they had not had any request for the domain, but they were happy to talk it over:

On May 1st, 2008 we launched a grassroots website at RonPaul.com that became one of the most popular resources dedicated exclusively to Ron Paul and his ideas. We put our lives on hold and invested 4.5 years of hard work into Ron Paul, RonPaul.com and Ron Paul 2012. Looking back, we are very happy with what we were able to achieve with unlimited enthusiasm and limited financial resources.

As we haven’t heard from Ron Paul or his staff for several years we do not know if there is any tangible interest in utilizing RonPaul.com for Ron Paul’s new projects. We have prepared a cordial message for Ron Paul that we will gladly forward to him or to any person who credibly identifies himself as part of his current staff.

Eventually, they did get in touch with the campaign, and realizing that taking down everything that had already been on RonPaul.com would represent the dismantling of a very vital community, they hoped that he would accept RonPaul.org as an alternative for free. However, if he really wanted RonPaul.com, they were willing to give that up as well, including their massive mailing list of Paul fans, for $250,000 -- not an unreasonable sum for all the content and community they had built up over the years. You can see their full letter here or embedded below. It's very cordial, makes a strong argument for why disrupting the existing RonPaul.com would be a mistake that harms Paul's supporters and message, and makes those two offers. Perfectly reasonable.

In response, Paul and his lawyers didn't just reject the request, they actually use it against them, misrepresenting the offer, the site and the entire history, in a ridiculously misleading attempt to show malicious intent on behalf of the folks who run the site -- who most people would consider some of Ron Paul's most important supporters. The WIPO filing is really a guffaw-inducing piece of work. It doesn't just present one side of the story, it goes out of its way to imply things that are clearly untrue about those who run RonPaul.com -- suggesting that the whole effort was some sort of scam to extort money from Paul. A few quotes:

Respondents can demonstrate no legitimate purpose for registering domain names identical to Complainant's RON PAUL mark.

Other than, you know, building up a massive and widely envied internet grassroots support campaign for two high profile Presidential campaigns, as well as many of the key issues that Ron Paul (supposedly) believes in. Somehow, Paul's lawyers forget to mention that part.

There is no evidence that Respondents have used or in connection with a bona fide offering of goods or services.

Apparently trying to get Ron Paul elected is not something that Ron Paul considers a "bona fide" service.

They even imply that these guys only registered the domains to try to get Ron Paul to give them money for the domains. Apparently those 4.5 years of building up a massive and vocal grassroots online community supporting Ron Paul campaigns was just a ruse or something:

Under the UDRP, bad faith can be shown where the respondent registered the domain name primarily for the purpose of selling it to the trademark owner or to a competitor of that complainant, for consideration in excess of respondent's out-of-pocket costs.

This claim is clearly hogwash. Considering everything that's been done on the site, to argue that the "primary" reason to was to get Paul to pay up is laughable. It's made even more laughable by reading the actual offer to Ron Paul from the domain holders, in which they make it clear they'd rather not sell the domain at all, and offer him a free alternative. It is abundantly obvious that selling the domain was not the "primary" reason for registering the domain, and it was so far down the list that they asked him not to buy the damn thing at all.

Further evidence of bad faith comes from Respondents' registration and use of the domain names to intentionally attract Internet users for commercial gain by creating a likelihood of confusion with Complainant's RON PAUL mark... In this case, Respondents must have known of Complainant's famous mark prior to registering the domain names. Respondents registered the domain name, utilizing the Complainant's mark, in order to suggest to internet users a connection between the domain names and Complainant. This is misleading and supports a finding of bad faith registration.

[....]

There is a high likelihood that users will be confused and believe that Complainant is the website's source, sponsor, or is some way affiliated with or endorses the website. If not for this likelihood of confusion, the rental value of the domain names would be significantly decreased.

This claim of trying to create a likelihood of confusion might sound reasonable at a first glance... except that the handy dandy Internet Archive shows that, from way back when these supporters first launched the grassroots site, the site had a prominent disclaimer that noted they were not directly associated with Ron Paul. That link above shows you what the site looked like less than 3 weeks after the domain was registered. It has the following prominently marked:

Disclaimer
The RonPaul.com website is maintained by independent grassroots supporters of Ron Paul. Neither this website nor the articles, posts, videos or photos appearing on it are paid for, approved, endorsed or reviewed by Ron Paul or his Campaign. For Ron Paul's official website, go to RonPaul2008.com

That's in the sidebar. At the bottom there's the following disclaimer:

The RonPaul.com website is maintained by grassroots supporters. It is not paid for, approved, endorsed or reviewed by Ron Paul & Campaign.

In other words, from the very beginning, they were explicit that they were grassroots supporters, and not the campaign or the candidate. For Paul and his lawyers to argue otherwise is simply ridiculous.

Respondents later offered to sell <ronpaul .com> to Complainant for $250,000 and to provide <ronpaul .org> as a "free gift" with the purchase of <ronpaul .com>.

This reaches a level that one might call "lying." The original letter is quite explicit. They would prefer not to sell RonPaul.com at all, and the offer of RonPaul.org for free was not "with the purchase of <ronpaul .com>" but a no-strings-attached offer to Ron Paul if he wanted to use RonPaul.org as his future domain (since it would be less disruptive to his grassroots supporters).

When you read through all of this, it's really quite incredible. Not once does the filing even hint at what the domain has been used for over the past 4.5 years. If you read the filing without context, you'd think that it was solely devoted to a commercial site pretending to be Ron Paul's real site, and the entire effort was built up just to try to sell it to Paul. For a politician who built up his grassroots supporters in large part because of his authenticity and his willingness to speak honestly and truthfully about issues, to turn on his biggest supporters with a pile of hogwash, while clearly abusing a process he doesn't even believe in, to try to forceably take away the site from his fans... is incredible.

As the operators of the site themselves note:

Back in 2007 we put our lives on hold for you, Ron, and we invested close to 10,000 hours of tears, sweat and hard work into this site at great personal sacrifice. We helped raise millions of dollars for you, we spread your message of liberty as far and wide as we possibly could, and we went out of our way to defend you against the unjustified attacks by your opponents. Now that your campaigns are over and you no longer need us, you want to take it all away – and send us off to a UN tribunal?

Who knows who is advising Paul on this move, but this seems like a massive miscalculation. Maybe he doesn't care any more, now that he's out of Congress. Maybe he's decided that all those years of standing up as a principled politician can be thrown out the window because he really wants RonPaul.com. Either way, this seems destined to be a stain on his legacy.

Two of the most respected and forward looking schools for journalism are the Knight Center for Journalism at the University of Texas at Austin and the Poynter Institute. I've long been a fan of both, but I'm now quite disappointed in both of them too. Last week, we had a few stories concerning a woman named Teri Buhl, who (to put it mildly) had some "unique" (and, by that we mean "totally wrong") legal theories concerning whether or not someone could quote her public statements on Twitter, as well as basic copyright and fair use rules. By the end of the week, she was threatening to sue us and others as well.

We are familiar with our fair use rights, and we think such rights are an important part of the law. In fact, fair use is frequently cited by courts as one of the key "safety valves" that ensures copyright does not violate the First Amendment. Fair use is of utmost importance in the act of journalism, and historically, news organizations have been some of the most zealous defenders of fair use. Section 107 of the Copyright Act explicitly calls out "news reporting" as one of the key areas where fair use applies. Given that, one would hope that these two giants of journalism education would stand up for fair use.

But last week, both failed to do so.

Both the Knight Center and Poynter wrote stories about the whole Teri Buhl saga. Both of them included the key screenshot of her Twitter profile, where she declares that "no tweets are publishable." However, both Knight and Poynter have since modified the image in their own postings, with both admitting that they did so after Buhl told them that the image in her profile was covered by copyright and that they did not have permission to publish it. This is hogwash. The whole point of fair use is that you do not need permission. That's what fair use means. If you needed permission, you are not making use of your fair use rights. And yet, both the Knight Center and Poynter caved immediately.

This is problematic in a number of different ways. First, many journalists look to both the Knight Center and Poynter for leadership on ways in which journalists should act. Providing this kind of example runs entirely counter to the kinds of things they should do and the kinds of things they should stand for. They are teaching the wrong lesson. They're teaching a lesson that says "journalists should give up their fair use rights." Second, they are giving Buhl more ammunition. In various comments around the web, she has been pointing to these moves as some sort of evidence that she is correct and those using the image are violating her copyright. She is wrong. For respected journalism institutions like Knight and Poynter to cave and give her this kind of ammo is simply shameful.

Yes, there may be bigger or more important fights, and lots of organizations decide to cave in the face of bogus legal threats, rather than have to deal with them at all. But, people look to Knight and Poynter for leadership, and this is case where both failed to provide leadership on a key issue that impacts the First Amendment in a very real way. As someone who has had tremendous respect for both organizations, they both have lost a lot of credibility with me. If they're unwilling to stand up for our basic rights on something like this, what else will they cave on? Perhaps it's time for other journalism institutes, which actually have some principles, to step up and take the mantle as true leaders on these issues for journalists, because Knight and Poynter have failed to live up to their own principles.