It's hardly a surprise these days that Chinese Internet companies routinely self-censor what appears on their services: the world knows there's not much it can do about what happens within China's borders. But here's a disturbing story about how that censorship has started spreading further afield.

It concerns the WeChat app from the Chinese company Tencent, which has started to gain users in countries like Singapore, Malaysia, Thailand and Vietnam. But as Tech In Asia now reports:

the Chinese name of the outspoken magazine caught up in a tense struggle of wills with the government -- Southern Weekend in English, nan fang zhou mo in Chinese -- is censored in Chinese on WeChat. But it's not just restricted to users in China (where the app is called Weixin), and typing that name in the Chinese language is now blocked globally.

Sending a message with "Southern Weekend" in Chinese produced the warning that it contained "restricted words":

We've tested it out going from users in China to Thailand (blocked), Thailand to China (blocked), and even Thailand to Singapore (blocked); the prohibited words are not sent at all. The name of the magazine can be sent in English.

Interestingly, just a day later the warning was gone, and Tencent claimed it was simply a "technical glitch":

A small number of WeChat international users were not able to send certain messages due to a technical glitch this Thursday. Immediate actions have been taken to rectify it.

But as Tech In Asia points out:

It's as clear as day in many screenshots. "The message [Southern Weekend] you sent contains restricted words. Please check it again."

Yes: Restricted words. That's no error message. It's very far from being: Ooops, our servers are a bit busy right now, please try again a few minutes later.

As the article notes, maybe the "technical glitch" referred to was accidentally turning on the censorship for the service outside China.

In any case, this is a clear straw in the wind. China's Internet companies are now so big and successful in their home market that it is only natural for them to look to expand overseas. I'm sure that at first they will be very reluctant to censor material there to avoid drawing the ire of digital rights groups and local governments; but at some point something will crop up that is sufficiently problematic for them as Chinese companies that they will feel compelled to act in order to safeguard their relations with the government in China, which will remain their priority.

Of course, the West can hardly claim the moral high ground here, since it, too, is censoring material. It's just that different governments take exception to different things, and react with differing degrees of severity against those who flout their laws. Unfortunately, the end-result of Chinese Net companies expanding overseas is likely to be double censorship – one imposed by local authorities, and the other flowing from China.

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If you haven't seen the news yet, President Obama is going to do a Google Hangout on Thursday in which he'll answer some presubmitted questions. The White House and YouTube have set up a ridiculously clumsy submission system, allowing people to submit questions by text or by video and then anyone can vote on them, though browsing the questions or even linking to any particular question appears to take a Herculean effort. That said, a few people have asked some questions about copyright (you can do a search on the submission page). One interesting one, comes from Public Knowledge, in which they directly ask him about fixing the problems with anti-circumvention rules in the DMCA, such as those we've been talking about concerning phone unlocking. That link above should allow you to vote for the question. You can also see the video of the question below. It would be nice to see that question get a lot of votes, and to see if the President would be willing to actually answer the question.

There are the Darwin Awards and the list of inventors who were killed by their own inventions. Death is always a serious topic, but sometimes the circumstances are just too bizarre not to be a bit amusing in some way. Here are just a few examples.

• John Alleman, the unofficial greeter and spokesman for Las Vegas' Heart Attack Grill, died of a heart attack at a bus stop near the restaurant. The restaurant claims to sell the world's "most calorific burger" as well as Flatliner Fries. [url]
• After a cockroach eating contest, the winner choked to death on bug body parts. The prize for the contest was a python worth about $850. [url]
• James W. Heselden, the former owner of Segway, died in a Segway accident after falling off a 30-foot cliff. Heselden also lived in Britain where Segways are only allowed to be operated on private property. [url]

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

There must be some heavy metals in the water wherever criminals grow up, because they do some really stupid things. Recall the young mastermind who allegedly committed a drunken hit and run and then posted about it on Facebook. Or the bank-robbing vixen who somehow thought making a YouTube video bragging about her crimes was a great idea. It's a strange kind of dichotomy for law enforcement agencies that at once catch these dummies using internet services and websites while also decrying Craigslist as some kind of enabler, rather than a holding pen for future convicts. The point is that criminals, by and large, are stupid, and if you give them just enough bandwidth-cord, they'll inevitably hang themselves with it.

Such is the case with the latest entrant into the "Hey, Come Arrest Me" sweepstakes, a purported gang member who robbed a man of thousands in jewelry on camera in the UK, jumped a flight to South America to return to his native Columbia (no extradition treaty with the UK), following a brief vacation in Brazil, and then returned to the UK to upload pictures of himself Christmas shopping.

Charles Rodriguez, 31, is a Colombian man who police believe is a member of the crime gang the Latin Kings. In October 2011, along with another man, he allegedly beat a jeweler who had been returning from a sales trip.

"Rodriguez's arrogance was astonishing. After committing an appalling attack on a jewellery trader, he fled the country to his native Colombia where he knew he could not be extradited," Detective Sergeant Roger Smethurst said in a statement. "However, his lack of remorse was evident by the fact he brazenly posted sightseeing pictures from Brazil - at a time when he was on the run - on his Facebook page."

Manchester police were following along the entire way, ostensibly "ooh-ing" and "aah-ing" at what I'm sure were the beautiful sights of Brazil. Perhaps they even placed wagers on what Rodriguez would buy his grandchildren. I don't know. What I do know is that they continued following him on his digital sight-seeing picture-show in the hopes that eventually Rodriguez would do something monumentally stupid.

Rodriguez, it would appear, is not the kind of man who disappoints.

In 2012 he reentered the U.K. with a false passport. He even posted photos of himself Christmas shopping and sightseeing around London. Rodriguez was stopped by London police for driving suspiciously. Though he faked his name, fingerprinting revealed his identity.
"Rodriguez must have thought he was above the law and untouchable because even when he finally returned to the UK, knowing he was still wanted, he still posted pictures of himself Christmas shopping in London on his Facebook page," Smethurst said.

He has since pled guilty to robbery and has been ordered to serve more than five years in prison. So raise your glasses of Newcastle Brown to Mr. Rodriguez. If the police have any sense of humor at all, they'll allow him to Facebook check-in to prison.

A few folks have sent over a Forbes article by David Israelite, the head of the National Music Publishers Association (NMPA), provocatively entitled: We Need Strong Copyright Laws Now More Than Ever. I read it carefully, expecting an argument to discuss concerning copyright law... but it never comes. Instead, the entire article appears to be about how the Consumer Electronics Association is big, and the NMPA is small. So, copyright.

Technically, the article is a "response" to another Forbes piece, by Gary Shapiro, the head of the Consumer Electronics Association, in which he notes that a series of recent issues suggests that copyright law is not serving its proper function, and the time is right to take "a fresh look at copyright laws." The article makes the case that copyright laws do have a purpose, and it even celebrates some actions by the entertainment industry to seek to innovate and embrace some new technologies. There's actually very little that I think anyone on any side of the debate should find particularly controversial. So, without an actual argument possible to make, Israelite decided to just focus solely on the fact that CEA is bigger than NMPA.

The first eight paragraphs of the article are just attacks on CEA. Then there's finally one paragraph that actually talks about copyright. Just one:

Copyright significantly contributes to the trade balance for our nation. A song written decades ago in Nashville can be heard, legally, in Japan, and today’s American hits instantly become top international downloads. Products associated with copyright, and this goes beyond music to include television, movies, newspapers, magazines, books, and computer software, are one of the few sectors expanding internationally. The most recent data finds copyright industries outpacing aircraft, auto, food, and pharmaceuticals in sales and exports. And as our economy gets back on track, consider the power behind songwriter-driven small businesses that provide jobs in every state.

Of course, there are multiple problems and misleading aspects to this paragraph. It assumes that copyright is the same thing as the music itself. While the music may contribute to the economy, that does not mean that copyright itself contributes to the economy. Second, he assumes that "stronger" copyright laws would somehow increase the ability of those sectors to make money, when there's little evidence to actually support that. There's just a big correlation/causation error. Either way, nothing in the post actually touches on the title of the article. It basically is just a piece to bash the Consumer Electronics Association because Shapiro mentioned in his article that the NMPA supported SOPA last year, and how that was a move in the wrong direction.

Has there ever been a business more ripe for disruption than academic publishing? For anyone who's not been following along, the business model of academic publishers, built on solving 18th century distribution problems, incarnates the Shirky Principle: that "Institutions will try to preserve the problem to which they are the solution." Far from making research public, as the name "publisher" suggests, their business now works by accepting researchers' donations of manuscripts, refining them by other researchers' donations of editorial services and peer review, assuming copyright, and locking up the results -- work that they neither wrote, edited, reviewed or paid for -- behind paywalls. By artificially causing a scarcity problem, they're able to sell solutions to that problem: subscriptions.

But publishers are monopoly suppliers of the journals they publish, and, like so many monopolists, have been unable to resist gouging their customers. Between 1996 and 2010, journal subscription prices rose at four times the rate of inflation. The result is that each published paper now costs the academic world more than $5000. Prices are so extreme that even Harvard, the wealthiest university in the world, recently declared that it can't afford to keep paying all its subscriptions. Not only can the public which funded the work not access it: often, neither can the researchers who need it as a basis for new work. It's insane. Academic publishers have made themselves the enemies of science.

The solution to the ludicrous satus quo is open-access publishing. Researchers (or more realistically their funders or institutions) pay publishers an up-front fee for their services, and the resulting papers are then freely available to anyone in the world. Everyone outside of profiteering publishers agrees that this is a much better approach, but lots of researchers balk at the prices of article processing charges (APCs). For example, Elsevier, the biggest of the established academic publishers, asks authors for $3000. Newer open-access-only publishers, such as the non-profit Public Library of Science (PLOS) charge a less shocking $1350 for publication in their main journal, PLOS ONE, and offer a no-questions-asked waiver for authors without funding for this charge. But there is still a feeling that $1350 is a lot of money to charge for Internet publication, especially when peer-review is done by volunteers.

Against that backdrop, Pete Binfield, the managing editor of PLOS ONE, left what had become the world's largest journal to launch a new publishing startup with Jason Hoyt, late of social reference manager Mendeley. High on the list of their goals was to bring down the price of open-access publishing.

I think a lot of people would have been impressed had PeerJ managed to bring the APC down below the $1000 mark, or certainly had they managed to hit $500. Instead, they've gone for the jugular on pricing: as the web-site says, "If we can set a goal to sequence the human genome for $99, when why not $99 for scholarly publishing"?

PeerJ's pricing system is different from the approach other publishers have taken, focusing on membership. Your $99 buys you lifetime membership, which gives you the right to publish one paper a year with them at no further charge. (All co-authors on multi-authored papers need to be members.) Alternatively, $299 buys an all-you-can-eat membership: publish as many papers as you want, whenever you want, for life.

The audacity of this pricing model is rather a shock. I have to admit that I was skeptical that it could work -- that PeerJ could take enough money to survive on this model. What swayed me was learning that the seed capital had been put up by Tim O'Reilly, who probably knows and understands more about the commercial realities of publishing in the 21st century than anyone alive. Throw in Pete Binfield, whose experience in editing mega-journals is literally second to none, and you have a true dream-team.

But what impresses me most is that PeerJ's low APC is not what most excites its founders -- in fact, it doesn't even make the top four. In an interview published a few days ago, Binfield and Hoyt answered the question "what do you think makes PeerJ an attractive publishing target for scholars?" in an unexpected way:

First of all, we intend to make rapid first decisions, and publish articles as promptly and effectively as possible... Secondly, we will be integrating a pre-print server into our offering ... Thirdly, we believe that the act of submitting a paper should be as pain-free as possible ... Fourthly, we are encouraging reviewers to provide their names when reviewing, and we are encouraging authors to publicly reproduce their peer review history on the published paper ... Fifthly we are significantly cheaper than a 'typical' OA journal.

It's not enough for PeerJ to drop prices by an order of magnitude. They're also out to speed up the famously slow publication process, make in-review manuscripts visible, smooth authors' path through the whole process and, most crucially, open up the opaque and mysterious process of peer-review. The importance of this last goal can hardly be overstated. At most journals, the acceptance or rejection of articles is done behind closed doors by referees whose reviews are never seen except by a select few, whose identities are often hidden, and who are insulated from the consequences -- positive or negative -- of their contribution. That has to change, and it's great that PeerJ is taking it on.

PeerJ launched in June 2012 and opened for submissions in December. Today, the first batch of articles is published. I submitted a paper, co-written with Matt Wedel, on the day PeerJ opened, and I am pleased to say that it made it into the initial batch. We're delighted that our work is now available to the world; but also privileged to have had a preview of the PeerJ process.

Because if we thought that the low price meant corner-cutting, we were dead wrong. As others have noted, the submission process is a joy in comparison to hacking through the late-1990s-themed submission systems of most journals. Our paper was handled by an academic editor of the highest reputation, efficiently and fairly. It was reviewed swiftly by two referees, one of whom gave particularly detailed and helpful feedback. When we got the proof PDF we were taken aback by how good it looks compared with the printed-page facsimiles most journals produce. And when we sent the proof back with numerous changes, they got a second proof out to us within days. In fact, the whole process from submission through to publication has taken only ten weeks -- unheard of in academic publishing.

So where next for PeerJ, now that its up and running? It's perfectly obvious that it's a much better choice than traditional journals in every rational respect. But so much depends on that slipperiest of beasts, prestige. While young researchers are certain to flock to PeerJ, some more senior academics are likely to look down their nose at the new kid on the block, not quite trusting it and preferring to stick to the venues they've become used to.

If we're going to sort out the absurd mess that academic publishing has got itself into, much depends on the reputation of innovative open-access journals like PeerJ. PLOS ONE has won itself some standing, but it took several years to reach this point after a launch that was met with a lot of skepticism. Hopefully PLOS ONE's success will have opened up a trail for PeerJ to follow, and its intrinsic quality will be recognized more quickly. Certainly PeerJ has the necessary names behind it: not just Binfield and O'Reilly, but an academic advisory board with five Nobel laureates and a huge editorial board packed with respected researchers.

Harvard's memo about being unable to pay subscriptions included a list of nine things its staff, students and librarians could do to change the current publishing system. The second is key: "submit articles to open-access journals ... move prestige to open access". PeerJ, along with PLOS ONE and other new open-access initiatives such as eLIFE and The Open Library of Humanities offer top-quality options for publishing research. Now it's up to researchers to use them.

Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one's civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).

The 100 mile "buffer zone" part of that story gets most of the attention, but it isn't a new thing. They've been claiming that for a while. It's just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map -- which happens to cover about 2/3 of all American citizens. Click through for the ACLU's interactive version. This isn't a new map, and, no one is claiming that these regions don't have any Constitutional protections, but it does effectively make the point of just how incredibly ridiculous it is for them to make these claims when it comes to laptop searches, which were already questionable enough at the border, let alone 100 miles into the country.

Everyone knows that politicians are lobbied, sometimes massively. But it's rare to be able to track directly the detailed effects of that lobbying. That's why a new site called LobbyPlag is so interesting: it allows people to do precisely that in the case of the controversial data protection rules in the EU, which aim to regulate how personal information harvested from users of online services can be used. Naturally, many large Net companies -- mostly in the US -- are unhappy about these moves; some US diplomats are even talking of a possible "trade war" if the proposals go through in their current form. That's unlikely, not least because the lobbying is starting to pay off, as LobbyPlag's analysis makes clear.

The site takes two sets of publicly-available documents -- those prepared by companies or their lobbyists, and the amendments proposed for the Data Protection Regulation -- and compares them, showing the results in a highly visual way. It turns out that entire paragraphs have been copied word-for-word from the lobbyists' documents and put forward as suggested amendments. Similarly, some of the deletions that European politicians have proposed are precisely those asked for by various companies.

One amendment concerns what LobbyPlag terms "forum shopping":

This amendment allows companies to "designate" its main establishment. The previous version of the law would make the member state of the factual "main establishment" responsible. This amendment allows massive "forum shopping" -- companies can choose the member state with the weakest data protection authority or the littlest enforcement (e.g. UK or Ireland) while actually being situated in a totally different member state. Even Peter Fleischer (Google’s Privacy Officer) has recently criticized Microsoft for "forum shopping" in Luxemburg

Here's the original text from the European Commission (pdf), Article 4(13):

'main establishment' means as regards the controller , the place of its establishment in the Union where the main decisions as to the purposes, conditions and means of the processing of personal data are taken; if no decisions as to the purposes, conditions and means of the processing of personal data are taken in the Union, the main establishment is the place where the main processing activities in the context of the activities of an establishment of a controller in the Union take place. As regards the processor, 'main establishment' means the place of its central administration in the Union;

Here's what Amazon (pdf) and eBay (Microsoft Word) wanted:

'main establishment' means the location as designated by the undertaking or group of undertakings, whether controller or processor, on the basis of, but not limited to, the following optional objective criteria: (1) the location of the European headquarters of a group of undertakings; (2) the location of the entity within a group of undertakings with delegated data protection responsibilities; (3) the location of the entity within the group which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; or (4) the location where effective and real management activities are exercised determining the data processing through stable arrangements. The competent authority shall be informed by the undertaking or group of undertakings of the designation of the main establishment;

Here's what several MEPs proposed as an amended version:

'main establishment' means the location as designated by the undertaking or group of undertakings, whether controller or processor, on the basis of, but not limited to, the following optional objective criteria: (1) the location of the European headquarters of a group of undertakings; (2) the location of the entity within a group of undertakings with delegated data protection responsibilities; (3) the location of the entity within the group which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; or (4) the location where effective and real management activities are exercised determining the data processing through stable arrangements. The competent authority shall be informed by the undertaking or group of undertakings of the designation of the main establishment;

As you can see, the last of these is identical with the companies' text. Of course, there's nothing wrong in using lobbyists' suggestions if they are valuable; and there's no reason why companies shouldn't come up with good ideas that could be used. But what's striking about the changes adopted by European politicians, as revealed by LobbyPlag, is that they seem to favor the companies, and to be detrimental to the European public -- not what you would hope for from the latter's representatives in the European Parliament, who should be protecting their interests, not attacking them.

Some have countered these accusations by pointing out that suggestions from civil groups moving things the other way have also been included; that may well be true, although I've not seen any proof that exactly the same wording has been adopted. But even if that were true, that doesn't represent balance of any kind: the money that companies like Amazon or eBay are able to put behind lobbying efforts in the European Union (and around the world) dwarf the very limited resources of cash-strapped citizen rights groups.

Given that lobbying will never disappear, perhaps the best we can hope for is what LobbyPlag provides us for the first time: real transparency. Using the powerful digital tools now available, we can easily compare huge numbers of documents to find similarities. That allows us as citizens to follow the threads that link lobbyists -- of all persuasions -- to the politicians that shape our laws. The hope has to be that by shining a light on those links, and letting politicians know that we are watching what they do and where they get their amendments from, the more blatant dependencies on external groups might be diminished, or at least made more subtle.

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Last week, we told you that CISPA was coming back, and it's now been confirmed that it is coming back tomorrow and it will be identical to the extremely flawed bill that passed the House last year.

You can, of course, understand why the sponsors would bring back the identical bill. After all, it passed (fairly easily), even with tremendous protests. Many tech companies like the bill, because it puts no specific requirements on them, and also (more importantly) frees them from liability for sharing info on their users. But that's the really problematic part. It's disappointing that tech companies have not realized that standing up for their users' privacy rights is a smart business decision on its own. Tragically, they're taking the short term view on this one.

The privacy concerns about CISPA are incredibly serious. While the Senate took a very different approach with its Cybersecurity Act (which did not pass), at the very least, amendments to the Senate bill improved the privacy problems. One would hope that the backers of CISPA would recognize that this would be an opportunity to build a bigger tent, and follow through by matching the same privacy protections. Unfortunately they did not. While the Obama administration threatened to veto CISPA last year, in part due to the privacy concerns, I'm not sure anyone is confident that the administration is serious about that.

In fact, if the rumors are correct, President Obama will mention cybersecurity sometime in the State of the Union address tonight, and then will sign the executive order the administration has put together on Wednesday morning, to coincide with the reintroduction of CISPA in the afternoon. Basically, the use of the executive order is to put pressure on Congress to do something. There is still a hurdle from the Senate, since it supports a very different approach, but there's about to be a very, very big push on cybersecurity.

Either way, it's incredibly disappointing that CISPA's supporters didn't take the time to make some rather basic changes to protect privacy. Instead, they effectively use some broad language to more or less wipe out privacy protections on very broad terms, while doing nothing to keep any data shared from being further shared with other parts of the government. In other words, it's a ticket for widespread surveillance of Americans (as if we don't already have enough of that).

Fight For the Future has set up CISPAisBack.com to try to let folks in Congress know that bringing back the same extremely flawed bill is a mistake. That's one way to contact your Representatives, though just calling their office directly would also be a good idea.

We've written a few times now about an important case involving fair use within university libraries and their "e-reserves." It involves some academic publishers (Cambridge University Press, Oxford University Press and Sage Publications) suing the Georgia State University for daring to allow professors to designate content such that it can be checked out electronically, just like they would with physical content. The publishers demand to be paid extra for such things, because the key to things going digital, to them, is the ability to get paid multiple times for what used to be free. The court eventually came out with a detailed and complex ruling that found most of the e-reserves to be fair use. We had some concerns about some seemingly arbitrary "tests" that the judge came up with, but on the whole were encouraged by the strong fair use support.

We were dismayed, recently, to learn that the Justice Department, at the urging of the Copyright Office, was considering weighing in on the appeal, potentially siding with the publishers and against the University and its students. This is really quite incredible when you think about it. It would involve the President's administration -- which has claimed education is a priority -- siding with mostly foreign publishers against a public university seeking to make access to information and learning more affordable (which, copyright law tells us, is a key thing copyright and fair use are supposed to enable).

But, copyright maximalism runs deep within the Copyright Office, which isn't all that surprising given the revolving door between it and various maximalist lobbying operations.

So, it really shouldn't come as a huge surprise that two former Copyright Office bosses have teamed up to file their own amicus brief that argues in favor of the publishers and against fair use. Between Ralph Oman and Marybeth Peters, they ran the Copyright Office from 1985 all the way up until 2010. Both are extreme copyright maximalists. We last wrote about Oman a few months ago when he made the stunning filing in the Aereo case claiming that all new technology that can be used for content should be presumed illegal until Congress has given an explicit okay. There are tons of crazy Marybeth Peters stories to choose from, but we'll just point you to the time that, in supporting a ridiculous attempted expansion of copyright law (the INDUCE Act, which never passed) she suggested that anyone who thought copyright laws needed to be reformed in the other direction was actually assisting organized crime operations. So, these are not what one might consider folks used to presenting "balanced" arguments, or even arguments that care about the public. These two are copyright maximalists to the extreme.

Also, it's worth noting that while a bunch of publishers who are not a party to the suit (Reed Elsevier, McGraw-Hill, Pearson Education, John Wiley & Sons, and Cengage) are disclosed as funding Peters and Oman (and two others) to prepare this brief, they seem to have left out a mighty big conflict of interest. The Copyright Clearance Center, which has funded 50% of the costs for the three academic publisher plaintiffs, has Marybeth Peters on its board of directors. You would think that this is a very direct conflict of interest that needs to be disclosed. Being on the board of the group that not only is funding the lawsuit, but which would stand to benefit massively in financial terms should the lower court ruling be overturned (the CCC would be the one to collect the fees, most likely) seems like an obvious conflict of interest... and is not named at all. Oman, for his part, used to be on the board there as well.

The brief is, well, pretty much what you'd expect. They're not fans of fair use and they're "concerned" about how actually allowing fair use would impact those who paid them for this brief and who are funding the lawsuit:

Amici are concerned that the flawed reasoning and incorrect holding of the district court will have implications far beyond the specific uses at issue here, and ask this Court to reverse the decision below.

The crux of their argument is that the district court made a horrifying mistake in actually thinking that Georgia State's status as a nonprofit institution of public learning would weigh in favor of fair use. Apparently, according to these former Copyright Office bosses, the court really shouldn't have paid so much attention to pesky facts like that, but rather should have focused on other issues... like the ones the publishers prefer.

In considering the application of the first fair use factor, and indeed throughout the Opinion, the district court gave disproportionate weight to the fact that the challenged uses were being made by a nonprofit educational institution. To say that the court’s “analysis” of the first fair use factor was cursory is an understatement. The court looked no further than the nonprofit status of GSU and the fact that teaching was involved to find that “the first fair use factor favors Defendants.”

Their argument hinges on other (troubling) rulings concerning coursepacks. As we noted in our initial analysis of the case, those rulings are both different (they involved for-profit companies) and not analogous (a coursepack has always been different than a library reserve item, which is what this is more like). Furthermore, since the coursepacks were ruled infringing, a strong argument can be made for just how damaging those rulings have been for education, massively increasing the cost of education. Coursepacks jumped in price, sometimes by a factor of 10.

Peters and Oman try to argue that since the use in e-reserves is not "transformative" the "nature of the use" should actually weigh in favor of the publishers. Of course, whether or not it is transformative is only one part of the analysis. The actual law explicitly says that use in "teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright" and, as for the "nature of the use" part of the test, again, the statute itself says that one of the key determining factors is "whether such use is of a commercial nature or is for nonprofit educational purposes." Contrary to the claims of Peters and Oman, that would seem to overwhelmingly support a determination of fair use, no matter how hard they try to hide from that language.

The brief goes through a whole, wasted, analysis of what is considered transformative use, ignoring all of the language cited above. Whether or not it is transformative is only part of "the nature" of the use. Since that same prong explicitly calls out nonprofit educational purposes, whether or not it is transformative isn't nearly as important.

And then... it gets even more ridiculous. You simply know that copyright maximalists are reaching deep for an argument when they pull out the old "but this would violate our international treaties!" argument. But, yes, that one makes an appearance here too:

Exceptions and limitations in U.S. copyright law, including Section 107, must also be viewed in the context of the relevant U.S. treaty obligations. In 1989, the United States became a member of the Berne Convention for the Protection of Literary and Artistic Works..., the principal international copyright treaty. Article 9(2) of the Berne Convention addresses the nature and scope of copyright exceptions that its member states may incorporate in their laws, establishing a “three-step test” that such exceptions must satisfy: (1) they must relate to “certain special cases,” (2) they may not conflict with a normal exploitation of the work, and (3) they may not unreasonably prejudice the author’s legitimate interests. The three-step test provides a useful yardstick by which to measure the application of copyright exceptions such as fair use. The district court’s refusal to see beyond the nonprofit educational nature of the challenged uses influenced its refusal to acknowledge the extent of the takings and the resulting interference with the Appellants’ normal exploitation of their works and their legitimate interests.

Of course, just a few months ago, we were talking about how maximalists keep falling back on this claim that we must follow the three step test as a way to stop real fair use. That test is actually significantly more restrictive than other international agreements, like TRIPS, that grant countries the ability to be much more flexible in determining things like fair use and user rights. The very nature of the three steps test goes against the principles of copyright, in that they focus on minimizing the burden on the copyright holder, rather than maximizing the benefit for the public, which (again) is what copyright is supposed to be about.

And, even if we went with the three step test, there's a strong argument that the original ruling is perfectly within the confines of that test. It does involve a special case, it does not conflict with normal exploitation of the work (the books can still be sold) and it certainly doesn't "prejudice" the legitimate interests of the rights holder.

There are a number of other, similar arguments made, in which Peters and Oman more or less try to argue that the fact that this is a non-profit, educational institution, and the use was for learning as a part of a class is of almost no concern whatsoever. In their minds the key element in determining whether or not something is fair use is... how much it impacts the copyright holder:

Rather than focus on the issue before it, the court instead viewed the issue entirely from the perspective of the user.

How dare the court focus on the "users" that copyright law is supposed to benefit!

Amusingly, in the conclusion, they then try to argue that if the lower court ruling stands it will be an insult to the important "balance" that "is at the heart of copyright law." Really!

The inclusion in the decision of arbitrary and specific rules creates, in view of the broader implications of the decision, a risk that this decision will function as de facto legislation establishing new fair use standards for the type of uses at issue in this case that fail to incorporate balance between the interests of all stakeholders – a balance that has always been at the heart of copyright.

Yes, they spent nearly all of the preceding 33 pages arguing that the interests of the public, the students and nonprofit educational institutions are not important -- and that the only stakeholders who matter are copyright holders -- only to conclude by saying that "all stakeholders" aren't properly balanced with the lower court decision. And, of course, if you know anything about the history of copyright law (and Oman and Peters know that history quite well, as they've been a major part of it) they know that it's been one expansion after another, solely based on the interests of copyright holders and against the interests of the public.

Since the 1976 Copyright Act became law, there have been an astounding 52 amendments to the Copyright Act. They're all at that link. Let's see if you can point to how many of those actually were about benefiting the public vs. how many of them were about ratcheting up the law in favor of copyright holders. Let's "balance" those numbers, shall we? Why do I get the feeling that Oman and Peters would rather not look at what that data actually shows?

The simple fact is that even if you do believe that copyright law is about "balancing" such interests (and we believe that's a fundamental misunderstanding of copyright law, the purpose of which has always been to serve the best interests of the public), the scales have been so far tipped in favor of copyright holders for years. And, over the past 30 years, Oman and Peters themselves have been guilty of putting their fingers on one side of the scale almost exclusively. To now argue that this minor statement in support of fair use (which doesn't change anything -- since many universities had already acted this way, and it's always how non-digital reserves had worked) somehow upsets a delicate "balance" isn't just laughable, it's an insult to those familiar with the history of copyright law.

If you need some handy numbers to argue that violent video games are more dangerous than guns, Public Policy Polling has just delivered a gift-wrapped poll result especially for you. In the middle of a long poll attempting to suss out potential front runners for the 2016 elections, PPP decided to toss in a question comparing violent video games and guns.

There you have it. Violent video games are a "bigger safety threat" than guns, according to two out of three respondents. Seems pretty open and shut. Everyone cross out the word "gun" on your pet piece of legislation and replace it with "video game!" The nation is saved!

Many of you may be reaching for your guns/lower jaw/commenting implement. Before we start firing off mouths/angry wall o' text screeds/bullets, let's have a look at the methodology.

PPP surveyed 800 voters nationally from January 31st to February 3rd. The margin of error for the survey is +/-3.5%. We oversampled 416 Democratic and 508 Republican primary voters with margins of error of +/-4.8% and +/-4.4% respectively. In Iowa between February 1st and 3rd we interviewed 313 Democratic and 326 Republican primary voters with margins of error of +/-5.5% and +/-5.4% respectively. This poll was not paid for or authorized by any campaign or political organization. PPP surveys are conducted through automated telephone interviews.

This certainly seems above board. So, why do the results seem so surprising? Well, maybe it's the prevailing demographics of those surveyed. As pointed out in the comments at Kotaku, there are two factors that skew the results.

1. 72% of the respondents are older than 45.

2. The "violent video games" question was only posed to Republican primary voters.

Now, this data pretty much agrees with the stereotypical view that older people and Republicans trust guns more than they trust violent video games. Sure, there are plenty of outliers along the way, but the Republican Party has generally fought gun control laws, and older people are generally more distrustful of recent technology. In fact, given a narrow enough demographic, you could probably get poll results that indicates that "most Americans" believe cellphones are a bigger safety threat than depleted uranium.

So, what PPP has actually done is gift-wrapped a set of numbers useful for preaching to the converted. All it does is add to noise that surrounds this heated topic. Considering there's nothing else resembling that question in the other several dozen pages, one wonders why the question appears at all. Truly bizarre.

We were just talking about how three strikes hasn't done anything to actually increase sales. Instead, as many, many people predicted, sales have continued to decline. Of course, perhaps treating your biggest fans as criminals is not a particularly wise strategy. But, then again, the big entertainment legacy players aren't exactly known for wise or thoughtful strategies.

With France, the biggest supporters of a "three strikes (accusations) and we kick you off the internet" plan facing pushback from the government, it appears that the industry folks have hit on their latest ridiculous strategy. Rather than kick people off the internet, why not take a page from copyright trolls, and force them to cough up money. Yes, indeed, it appears that the entertainment industry is looking to turn "piracy" into a "business model" by forcing people they accuse (not convict) of infringement to pay up in large masses. Except, rather than using shady dealings via questionable court procedures, they're just hoping to roll it into existing three strikes plans:

UPFI, (Union of Independent Phonographic Producers), said that it agreed with the opinion of French music rights group SACEM that a disconnection regime should be replaced with warnings along with fines of 140 euros.

PCInpact contacted Jerome Roger, Director General of UPFI, who confirmed the group is indeed in favor of such fines.

This leaning towards cash penalties is also endorsed by Warner Music President Thierry Chassagne. In recent comments Chassange suggested that not enough punishments have been handed out under Hadopi and that a deterrent is necessary.

In other words, if kicking people off the internet isn't getting them to give us more money... how about we skip that middle step and just force them to give us money. It is, clearly, taking a page straight out of the copyright trolling handbook.

According to French publication Numerama, this new direction is basically a done deal in France. And, of course, once it shows up there, expect the same sort of things to start popping up around the globe quickly. The industry doesn't spring stuff like this in just one place alone. There's a global strategy behind it.

Well, this is rather unfortunate, but perhaps not a surprise. Last week, Politico reported that despite progress on Zoe Lofgren's "Aaron's Law," designed to improve the CFAA, it's unlikely to get any traction in Congress. The CFAA, of course, is the widely abused law that was written decades ago in an attempt to outlaw malicious hacking. The bill was never particularly well-written, and over time as the technology has changed, the CFAA has become wide open to broad interpretations, such that people have faced criminal charges for daring to... disobey a site's terms of service (which they never even read). Aaaron Swartz was charged under the CFAA, hence the reform bill is being called "Aaron's Law." But, even with all the attention that Aaron got, Congress isn't interested yet.

The article doesn't suggest the idea is dead, just that it doesn't have nearly enough support. Part of the reason is that the White House and the DOJ haven't said a word about it -- but, really, is that all that surprising given the complaints they've been receiving about US Attorney Carmen Ortiz's use of the CFAA in the Swartz case? But, even within Congress, the key people who are needed to support the bill have basically said they have more important things to deal with right now. And while there are other important bills on the table, it's a big mistake to not update the CFAA before it is abused again.

The Spratly Islands are some 750 reefs, atolls and islands in the South China Sea that are claimed variously by Brunei, the People's Republic of China, the Republic of China (Taiwan), Malaysia, the Philippines and Vietnam. That's largely because of the rich fishing grounds that surround them, and the possibility of significant oil and gas reserves nearby.

In order to reinforce those claims, most of the countries listed above have stationed a few military personnel on a few of the larger islands. Recently, China has come up with a novel way of bolstering its position:

In the ongoing dispute over the Spratly Islands claimed by China and Vietnam, the latest development is that China is opening up 3G services on the islands, not only to Chinese soldiers but also for the country's fishermen.

As the Tech In Asia article quoted above explains:

Chinese soldiers and fishermen will now be able to text message, call, and chat online with family back home over the new 3G network. This upgrade to 3G from regular cellular coverage (started in 2011) and the recent 3G network in the disputed Paracel Islands in July 2012 signals a more permanent Chinese presence on the rocky outposts.

What's interesting here is how this tighter integration with the domestic network is used symbolically to underline that the various islands are -- in China's view -- part of its territory. It can be thought of as the 21st-century equivalent of building roads in the Roman Empire, or laying down railway tracks in the American West.

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Back in 2007, we wrote about a ridiculous lawsuit down in Australia, in which the Australian Consumer and Competition Commission (ACCC) was suing Google because other companies had purchased ads deemed to be "misleading" on Google. As we noted at the time, the ACCC seemed really confused about how Google worked, and the difference between being a self-service platform/tool and being a full-service advertising media company. While the ACCC ran into some trouble early on (its arguments were deemed "incomprehensible" by the first court) they actually won on appeal. The good news, however, is that the case moved up another level, and the High Court has overturned that decision with a pretty clear statement (pdf) on the basic issue:

Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.

This may not seem like a big deal, but as Ali Sternburg rightly explains, having strong protections for secondary liability is a huge part of why the internet is so useful and innovative. In simple terms, we don't blame third party service providers for misuses by their users, because that takes away massive incentives for the service providers to innovate in the first place. It chills innovation in a major way.

Safe harbors from secondary liability are essential for Internet platforms and businesses, and it is encouraging when other countries affirm these principles.

Unfortunately, some of these safe harbors have come under increasing attack over the past few years, as people who feel wronged go the Steve Dallas route, and assume that if they've been wronged, it makes sense to sue the company with the deepest pockets, rather than those actually responsible. But, when you do that, you create incredible incentives to effectively shut down any open platforms, because the threat of liability is just too risky. The stifling effects are enormous, whereas the benefit from protecting platform providers from liability for users' actions is tremendous. And, no, this doesn't mean that illegal activity is allowed. It just means that liability is properly focused on those who actually break the law.