As a few folks sent in, recently the Irish Examiner newspaper had an editorial arguing that copyright law needs to be expanded because, of course, newspapers are suffering. Though, as you look at the details, whoever wrote the article appears to be quite confused:

The scale of the piracy is astounding. In 2010, while every media company in the country shed jobs and cut costs to the bone, a single search engine operating in Ireland offered around 150,000 newspaper articles that cost publishers an estimated €46.5m to generate. Last year that site offered more than 350,000 articles at a cost equivalent to more than €110m. And all without paying one cent to those who created those articles.

This free-for-all has put Ireland’s 8,600 creative enterprises, the 116,000 jobs involved — some 7.5% of GDP and 6.5% of total employment — under a darkening cloud. Multinational corporations, ironically styling themselves champions of free information having stolen it themselves, pretend that they see nothing wrong with hijacking the work of others. They do this to create entities that exist primarily, in a news context, to deliver rather than generate content. To rub salt into the wound these entities are determined to secure advertising revenue on the back of that snatched news content. This is the very revenue that made the gathering of the news possible in the first place.

First of all, they seem to be claiming that search engines that index content, show a snippet and link people to the original content are "piracy." That's crazy talk. Furthermore, while they don't name the "search engine" they claim that it "offered" these articles. Of course, if it really posted all the articles itself, then there is no need to change copyright laws -- the company could already sue them for infringement. However, assuming that they're really talking about Google or just about any other search engine, what they really mean is that the search engines aggregated the content and linked people back to the original. The "cost" to produce those articles is irrelevant to the overall discussion. Yes, it costs money, but it's the job of a business model to bring in even more money. If the business geniuses who run your paper are too clueless to figure out how to monetize the traffic from Google, then perhaps you deserve to go out of business.

In the end, as we've seen elsewhere, this isn't about "piracy" at all. This is about newspapers who don't know how to adapt, and are staffed by completely technologically illiterate folks, who simply see that Google is making money while they're struggling and assume (totally incorrectly) that Google needs to pay them for sending them traffic.

Ray guns have been exclusive to science fiction for quite some time now. So far, hurling bits of metal is pretty effective, but it seems so barbaric. Even Tasers aren't wireless. Here are just a few examples of some impressive directed energy weapons that are getting close to becoming actual tools of war.

• The Russians are working on electromagnetic radiation guns that can attack a target's organs or central nervous system. Such electromagnetic weapons could burn people's skin from a distance or lobotomize crowds of people with a sweeping zap. [url]
• Boeing and the US Air Force have tested a high power microwave weapon that can fry electronics and disable the electrical systems of an entire building. This weapon wouldn't kill anyone directly, but it could be useful for knocking out infrastructure in a prelude to a conventional military attack. [url]
• A Laser-Induced Plasma Channel (LIPC) can direct an artificial bolt of lightning at a conductive target. A laser pulse shot directed at a bad guy can zap him by creating plasma from the air that is synchronized with extremely high voltage. But what if the enemy has a lightning rod? [url]

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

Last week, we discussed Microsoft's patent filing on a content distribution system that counted heads and charged license fees accordingly. Utilizing the Kinect or some other unnamed technology, Microsoft had the beginnings of the copyright industries' wildest dreams: an opportunity to treat the public's living rooms like theaters and collect "admission" from every viewer.

Rick Falkvinge has amusingly pointed out that "prior art" exists for this "Content Distribution Regulator" -- in the form of a satirical piece published at BBspot (and covered here years ago, noting that it "hit too close to home") five years before Microsoft's filing.

Six years ago, a satire site wrote a story about how the copyright industry wanted more money if you invited friends to watch a movie in your living room. This notion has now been patented in new technology: automated headcounts coming to a living room near you, to enable new forms of restrictions. Apparently, the copyright industry takes six years to catch up with the very worst satire of it.

The satirical piece Falkvinge quotes deals with the MPAA trying to push through a bill that would allow it to take control of people's living rooms and treat them like theaters.

The MPAA is lobbying congress to push through a new bill that would make unauthorized home theaters illegal. The group feels that all theaters should be sanctioned, whether they be commercial settings or at home.

This paragraph in particular is eerily prescient:

The bill would require that any hardware manufactured in the future contain technology that tells the MPAA directly of what is being shown and specific details on the audience. The data would be gathered using various motion sensors and biometric technology.

Sounds exactly like Microsoft's idea, doesn't it? In fact, it sounds close enough that you could argue that it should invalidate the patent in question. Either way, there's no way the MPAA isn't hoping this comes to fruition. Sure, money can be made by producing new movies but it's so much simpler to charge people over and over for the same item. Various format changes over the years have resulted in some double- and triple-dipping. Digital distribution, combined with Microsoft's consumer-unfriendly device, takes rentals into "real money" territory and very possibly will take digital purchases in that direction as well. Here's a quote from the satire that may as well be real:

"Just because you buy a DVD to watch at home doesn't give you the right to invite friends over to watch it too. That's a violation of copyright and denies us the revenue that would be generated from DVD sales to your friends," said Glickman. "Ideally we expect each viewer to have their own copy of the DVD, but we realize that isn't always feasible. The registration fee is a fair compromise."

We've heard wording like this before, where industry heads claim some irrationally high license fee is a "fair compromise." It's viewed as fair by licensing agencies because if they were able, they would have charged much, much more.

Falkvinge points out that those satirizing these industries may just be unwitting futurists:

So be careful when you write satire about the madness and delusions of the copyright industry (and that certainly isn't hard – more often than not, ordinary journalism will do fine). Either tread very carefully, or start a little stopwatch the next time you publish satire about what that parasitic, shameless industry will think of next.

This is a fact. The content industries' love of licenses (and the ability to charge multiple times for the same content) has made it into an easy punchline. Beyond the satire Falkvinge quoted are other examples demonstrating that your average citizen already recognizes the colossal overreach of these industries and the absurdity of the licenses connected to each form of artistic expression they cover.

Earlier this year, sportswriter Mike Tanier used public performance licensing (namely, the violation of these licenses) as the lynchpin for his plan to rid the NFL of replacement referees.

If the crowd at an NFL game sings "Hey Jude," television networks will be stuck broadcasting "Hey Jude" without the rights-holders permission. The sound editors are pretty good at obscuring the B.S. chant, but that only takes a little bit of white noise. Try editing away one of the most recognizable melodies in the world on live television. The broadcast will sound like it is coming from Venus. But if the NFL doesn't drown out the singing, someone big and powerful is going to show up at league headquarters in a suing mood.

When you've got sportswriters using aggressive licensing issues as a punchline, you know the it's reached critical mass. Not only is a sportswriter skewering performance rights organizations, the NFL's copyright paranoia, the Beatles' fierce grasp on its catalog and the overreaction of all these entities to "unlicensed" use, he also laying it out there confidently, expecting his audience to recognize the ridiculousness of it all without needing to resort to pages of footnotes and links to relevant legal information. It's obvious to everybody but the licensing agencies how utterly preposterous this all is.

Need another example of this common knowledge? Just recently, a piece at famous humor site McSweeney's recasted Gil Scott-Heron's famous phrase, explaining exactly why "the revolution will not be televised." Here's a few choice quotes from a much longer piece (all of it worth reading):

The revolution will not be televised due to our blackout policy. Because the revolution is taking place in your market, you will be unable to watch the revolution. Instead of the revolution, the classic Billy Bob Thornton/John Cusack film, Pushing Tin, will be televised.

The revolution will not be televised, but it will be available for streaming on Hulu.com seven days after the revolution takes place.

The revolution will not be televised because of a dispute between the revolution and DIRECTV. If you'd like to see the revolution, please call DIRECTV and demand that they put the revolution back on the air.

The revolution will not be televised, but if you have a cable subscription, you can log in to WatchRevolutions.com and use their authenticator to watch the revolution. Just provide your username and password, and you will have access to the revolution live, plus alternate angles, commentary, and the ability to share your login with up two more IP addresses.

With digital distribution, each iteration is subject to its own limitations and restrictions, just the way the content industries prefer it. As the shift continues in this direction, I would expect the major players to continue their march into brave new licensing schemes far surpassing satirists' most fevered dreams. They control the licenses they've "sold" their customers and have shown they have absolutely no qualms about abusing consumers in order to squeeze a few more dollars out of the content. Microsoft's filing turns what was originally a series of punchlines into a very plausible glimpse of the future.

Yesterday, Louis CK announced the seemingly impossible: his next comedy special will air on HBO, and also be available as a DRM-free download like his revolutionary Beacon Theatre show. Yes, even the network so infamous for its tight grip on content that fans have literally begged it to take their money can't ignore the overwhelming success of CK's open, inexpensive, highly accessible approach to content distribution.

So far there aren't many details on the arrangement, except that the DRM-free option will cost $5 and be available on CK's website "a few months" after the initial HBO airing. Now, of course, this is the very definition of a "release window" and thus far from a perfect situation, but it's still an astonishing step (in the right direction) for the notoriously controlling HBO. Traditionally, the network's content has only been available to cable subscribers or, much later, on physical media and in major digital media stores like iTunes — despite countless fans asking for an affordable, timely standalone digital option.

As we have often said, there is still lots of room for the traditional "middlemen" of the entertainment industry if they act as enablers and not as gatekeepers. While HBO is still keeping the gate by windowing the release, this move shows that they may be beginning to recognize the change in their role: they are highly experienced at producing comedy specials and can do a lot to enable even the most talented and self-sufficient comedians — but they wouldn't be able to strike a deal with someone like Louis CK if they insisted on having total control over the final product, since he's already clearly demonstrated that he doesn't need them for that. Indeed, if you compare this to Trent Reznor's new non-traditional label deal, it seems like we are seeing the beginnings of a trend: artists who have struck out on their own and succeeded are now bringing the lessons they've learned back to the big gatekeepers, and using their cultural clout and their proof-of-concept experiments to change the way business is done. That's encouraging, and exciting — for all the protestations from industry incumbents that they are trying to save artists, it may end up being smart artists who save the incumbents.

Apparently, Chance Trahan and Craig Brittain of "revenge porn" site Is Anybody Down are still busily working on their shovel-ready project "Digging Our Own Internet Graves." When we checked in last time, the living proof that two heads are sometimes much, much worse than one had just served up a bogus DMCA notice in a weak effort to censor criticism.

Needless to say, the criticism hasn't ceased and nothing has been taken down. In fact, the boys have moved past the DMCA process and have moved on to completely bogus legal threats to us here at Techdirt, and a number of other sites as well. As described by Popehat, who has received an identical threat, it appears that Trahan and Brittain have decided to dive right into the always-entertaining "bumptious legal threat" arena.

Craig and Chance are now resorting to legal threats. One of them — probably Craig — has left two identical threats here, as well as at Adam's blog, on Wikipedia, and on a satirical video by Captain Obvious:

"Be advised that these actions, your slander and screen shots can and will be used as key factors should a case be pursued against you. Your posting, advertising, marketing, dissipating and otherwise disseminating the slanderous materials constitute actionable violations of Mr. Trahan and Mr Brittain's rights of privacy and publicity."

Adam refers to Adam Steinbaugh, who has been recapping the ongoing Is Anybody Down saga at his blog. This same "legal notice" has also been "served" to Is Anybody Down's Wikipedia page, which ironically enough is already slated for deletion. (Oh, and the Captain Obvious video is worth a watch, along with an earlier video dealing with infamous legal threatener, Charles Carreon.) [Oh, and remind me to start a tumblr called "Slander and Screen Shots" when I get some free time.]

Now, what did I say about starting a war of words with someone who knows way more words than you do? Ken at Popehat tears apart this latest missive from the overmatched duo, so that we don't have to:

This is a notably, remarkably stupid comment, even for an Internet Lawyer. First, slander is verbal; libel is written. Second, "be advised" is a reliable tell of an empty threat. Third, nobody is "marketing" anything; that sounds like an attempt to fabricate a copyright claim. All criticisms are non-commercial, making all quotes and screenshots fair use. Fourth, you gravel-knuckled troglodyte, you mean disseminating, not dissipating, and that word's already in the sentence. Fifth, Trahan and Brittain have no privacy or publicity rights to be free of criticism or satire, however popular that approach is to would-be censors.

This ongoing battle has all the hallmarks of a popcorn-worthy event (and it appears we now have a front row seat). On one side, you have respected and intelligent legal minds. On the other, two lugs who thought they could smarm their way into some easy money, only to find themselves neck-deep in a self-made hole. It appears their constant shouts for "MOAR SHOVEL!" very possibly won't be silenced until the dirt is well over their heads. 

I'm always amazed at what people who run sports teams think will draw away people's interests. For years, sports teams have tried to make it more difficult for people to get information about sports other than by attending games lives directly. They've tried instituting blackouts (especially if games aren't sold out) for local TV, sued services that (accurately) report scores in realtime and many other things all of which seem to be based on the ridiculous belief that if people can get some info about a game from another source, they won't actually want to go see the game. This, to put it simply, seems really stupid, and shows little understanding of how sports and fans work. Sports fans love the sport and would like to see it live when they can, but when they can't, those alternatives offer a way to keep them connected and keep them interested.

This "can't give away too much" attitude has gone past just broadcasts of the game directly to the way that sports teams and leagues seek to control reporters and what and how they report. While they can't legally tell them what they can and can't do, they do have control over who they provide press passes to -- and then threaten to pull those passes if they disobey "the rules." These rules often seem focused on the same kind of "restrictions" in hopes of getting people to show up live, even if that's impossible.

Thankfully, these rules rarely seem to be enforced, but the University of Washington recently instituted a "Live Coverage Policy" for credentialed reporters that says they can only provide a maximum of 20 "in-game updates." A reporter for the Tacoma News Tribune, who was live tweeting a recent game, was reprimanded for going over his allotted 20 tweets and daring to go all the way up to 53. Not surprisingly, the reporter, Todd Dybas, then Tweeted about the reprimand:

Also, tonight I was reprimanded by the University of Washington for tweeting too much during a live event.

— Todd Dybas (@Todd_Dybas) November 12, 2012

It's not even a case where the policy is just outdated. Apparently the policy is brand new. I'm amazed that someone (or some group of people) in charge here actually think that someone providing a bunch of live tweets will somehow take away from other forms of coverage available. However, if I'm the Tacoma News Tribune (or any other publication) the first thing I do is suck it up and send a reporter to buy a season pass so that they're not at the whims of some ridiculous policy, and let them cover the games however they want via Twitter. Either that, or (better yet), ask for volunteers already attending the game to be the designated live tweeter for the game.

Last week, we wrote about the ruling in the lawsuit Fox filed against DISH over its Autohopper feature -- which automatically skips commercials on TV shows it records as part of its "Prime Time Any Time" feature (recording all prime time TV from the four major networks to the local DVR hard drive). As we noted, the judge refused to issue an injunction, but both sides claimed victory. Reading between the lines we said it appeared that Fox mostly lost, and its only wins were pretty small. The (slightly redacted) ruling has now been released and it confirms that prediction.

Fox is definitely the loser here. In fact, it looks like our original statements about the case, when it was first filed, turned out to be accurate. Fox's claims that recording the entire prime time lineup is a "bootleg" copy was a direct challenge to the ruling in the Betamax case, and the judge here relied heavily on that ruling in rejecting Fox's arguments. Furthermore, in our original analysis, we pointed out that the ruling about Cablevision's remote DVR should apply here as well, since the key issue there was who pressed the button -- and with "Prime Time Any Time" (PTAT) and the Autohopper technology, it's still the consumer doing it. The court is having none of that:

Here, the parties agree that the Hopper is only available to private consumers and the evidence does not suggest that consumers use the PTAT copies for anything other than time-shifting in their homes or on mobile devices. In fact, Fox has identified no specific theory under which individual PTAT users could themselves be liable for copyright infringement without circumventing Sony. In the absence of any evidence of such direct infringement on the part of PTAT users, Dish cannot be responsible for "intentionally inducing or encouraging direct infringement," or for "profiting from direct infringement while declining to exercise a right to stop or limit it." Grokster, 545 U.S. at 930. In Grokster, unlike this case, owners of a peer-to-peer file-sharing program were liable for derivative copyright infringement because they knowingly and intentionally induced users to copy and distribute copyrighted works over the network, which indisputably constituted infringement on the part of the users. Id. at 939-41. Here, the record is devoid of any facts suggesting direct infringement by PTAT users. Fox has therefore failed to establish a likelihood of success or to raise serious questions on the merits of its derivative infringement claims.

Shorter version: no, Fox can't do an end-run around the ruling that made it clear that the VCR was legal. Users here aren't really doing anything different (time shifting programming) as was found legal in the Sony Betamax case. Basically, it's a reminder that basic time shifting isn't infringement. Since nothing the end-user does is infringing here, it completely demolishes Fox's ridiculous theory that DISH is "inducing" infringement by removing commercials. All in all a good finding.

So how is it that Fox claimed victory? It's something of a minor side issue, and I'm not even convinced the court got this one right either. Basically, as part of the process of making sure that its Autohopper (commercial skipping) feature is working properly, DISH also records the prime time lineup itself and has people monitoring to see if the automated Autohopper is correctly finding the beginnings and endings of commercial breaks. If the machine is messing up, the human monitor can try to "correct" the timing. It's a "quality assurance" effort. And it's that copy that the court says might be infringing (and potentially a violation of the contract between the two parties). Leaving aside the contract issue, even the copyright claim here seems questionable. The key case here is the Sega v. Accolade case in which the court said that a copy made in process -- an "intermediate" copy -- which was not actually used in the final product, could be protected by fair use.

The court then does a four factor fair use analysis though, as with most fair use analyses, how you apply the factors can lead you to a very different conclusion. The key one here is the final factor -- the "effect of the use on the market." The court finds this one to favor Fox:

Here, the QA copies are used to perfect the functioning of AutoHop, a service that, standing alone, does not infringe. The record shows, however, that a market exists for the right to copy and use the Fox Programs: Fox licenses copies of its programs to companies including Hulu, Netflix, iTunes, and Amazon to offer viewers the Fox Programs in various formats. .... In fact, the record suggests that Dish chose to offer AutoHop to its subscribers in order to compete with other providers who pay for the rights to use copies of the Fox Programs through licensing agreements. Unlike these providers, however, Dish does not pay for the right to copy the Fox Programs for any purpose. By making an unauthorized copy for which it has not paid and using it for AutoHop, Dish harms Fox's opportunity to negotiate a value for those copies and also inhibits Fox's ability to enter into similar licensing agreements with others in the future by making the copies less valuable. Therefore, the Court finds that the fourth factor also militates against finding that the QA copies constitute a "fair use" under the Copyright Act.

I don't quite get this analysis though. Because, remember, we're just talking about the QA copies here, not the final product that consumers use. So I don't actually see how the above applies. Those QA copies aren't being used to compete against Hulu, Netflix, iTunes or Amazon. And I don't see how anyone could conclude that Fox would license special QA copies only for DISH to see how its ad skipper is working. So the analysis here just seems off. If the court has already decided that the final product isn't infringing, how is it that this temporary copy -- used only to check on quality control of the ad skipping -- which itself is not infringing -- suddenly becomes infringing. It seems like DISH could make a strong argument on appeal that this part of the ruling doesn't make much sense.

With Google still holding the search engine crown, they're obviously going to be the target of a myriad of lawsuits. Defamation has played a role in the legal life of the search giant for some time now, even though the entire basis for technology behind the search results is in what the internet community at large does, rather than any active role by Google. That's what makes this kind of thing so silly. We previously wrote about autocomplete defamation cases, for instance, in which autocompletes are generated based on common searches, but people still want to hold the search engine accountable. We also had the story about the minority owner of the Miami Heat who didn't like the fact that a picture of him doing his best dog-with-peanut-butter-in-its-mouth impression showed up in search results. But, hey, at least he was suing over a picture that actually was him.

Not so for Milorad Trkulga, an elderly man from Melbourne, Australia, who has been awarded $200,000 from Google because the search engine's image results also conjured up pictures of Tony Mokbel, an apparent "Australian gangland figure."

The images were posted after Mr Trkulja was shot in the back by an unknown gunman while eating with his elderly mother at a St Albans restaurant in June 2004. When Mr Trkulja's name was typed into Google's image search, photos had appeared of him alongside gangland figure Tony Mokbel.

From what I can gather at the following related link, Trkulja was indeed shot while at a restaurant as part of some kind of infamous gangland wars that occured in 2004, hence the bridging link to a gangster. When news publications wrote up the story, they included images of both Trkulja and Mokbel, which likely caused their pictures to show up together in a search of the former's name. Trukulja, for reasons that escape me, thought that this was defamation and took Google to court. Google argued that they weren't publishing any of the material, only indexing search results. This, apparently, did not impress the jury.

However, the jury found Google's defence of the images broke down because it did not take any steps to remove the images from its searches once Mr Trkulja's lawyers contacted the company. The jury found the search engine was not liable for the search results themselves, as Mr Trkulja had incorrectly filled out a form for reporting offensive material by not including the URL of the content to which he objected.

And this is where I go from bemused to confused, so perhaps there's an expert in Australian law out there somewhere who can help out on this one. The jury decided that Google merely indexing results doesn't matter if Trkulja asked them to take the images off of search results, even though the jury acknowledges they aren't liable for those results and find that Trkulja didn't provide the actual URLs of the pictures he wanted removed. That would be like me walking up to a random person on the street, tapping them on the shoulder, telling them I didn't like something they said once but couldn't remember exactly what it was that offended me, demanded an apology, and then got a free down payment on a mansion when said random person didn't comply.

Beyond that...what the hell? So images of gangsters showed up in image results because you got shot in Australian gangland wars (seriously, I thought you guys all fought with machetes). How is any of this a problem? I imagine that if you have an atypical name, search results of all kinds of people are going to show up in Google. Hell, let's just test it out with my own name and see what happens. I'm sure the first image result of my name, Timothy Geigner, won't be all that bad.


Oh, hell no. This injustice will not stand. Mike, get our lawyers on the phone. It's mansion time.

As you're probably aware since it's "the big story" right now, General David Petreaus stepped down last week after an FBI investigation turned up an affair he'd been having. It seems that every few hours more news "breaks" on the story, and it keeps getting more involved, with a growing number of players (and with each new revelation the story gets more and more bizarre). However, some have started wondering how and why the FBI was snooping on various emails. The original story was that it came about after Petreaus' mistress allegedly sent threatening (anonymous) emails to another woman, who reported them to the FBI. From that came a wider investigation, which supposedly may involve another General and a variety of other players. But some are realizing that this seems to show how the FBI has pretty free rein in terms of snooping on email accounts hosted online:

Under the 1986 Electronic Communications Privacy Act, federal authorities need only a subpoena approved by a federal prosecutor — not a judge — to obtain electronic messages that are six months old or older. To get more recent communications, a warrant from a judge is required. This is a higher standard that requires proof of probable cause that a crime is being committed.

But even that isn't entirely clear. Folks like Julian Sanchez have been puzzling through the timeline of events and wondering how a simple investigation into a small number of "rude" (but not illegal) emails then uncovered thousands of questionable emails involving a different general as alleged in the news that broke last night. It feels like the FBI may have taken a simple report of misconduct (which may have been driven by another love triangle issue involving an FBI agent who seemed to take the whole thing a lot more personally than makes sense) and turned it into a massive fishing expedition.

Given how fast new parts of this story keep breaking, I'm sure there are still a number of other dominoes to fall, but hopefully this actually gets people to pay attention to just how easy it is for law enforcement to snoop on people's emails these days based on next to nothing.

Last year, we wrote about a silly and uninformed lawsuit filed by eccentric rich guy Alki David against CBS. David has an online TV company, FilmOn, which has some similarities to Aereo and other online rebroadcasters. The networks sued the company, of course, and David has since gone on an odd and vindictive campaign against them. As someone who tends to think services like his should be both legal and embraced, I'd like to support him, but his legal campaign is just ridiculous and now has the possibility of causing real and serious harm. His reason for suing CBS was that a few years ago CBS bought CNET, and CNET has (for many, many years) run a site called Download.com. Download.com is a service that many software providers use to distribute their software. David claimed that because Download.com (a site owned by CNET which was -- only relatively recently -- purchased by CBS) distributed Limewire -- which was eventually found to be infringing -- that CBS was also guilty of copyright infringement. That original lawsuit was dumped pretty quickly, after the judge noted that David had failed to show what copyrights were being infringed (a key piece in any copyright claim).

David regrouped and found a group of musicians to file a similar lawsuit -- led by Sugar Hill Music -- and so far that lawsuit has had slightly more success, though it has serious problems. The latest filing in the case, embedded below, involves the plaintiffs arguing that the court should issue an injunction blocking CNET/CBS from allowing any BitTorrent client from being downloaded. Yeah. The proposed injunction is full of complete crazy talk.

True to form, Defendants have enthusiastically embraced this new engine of piracy, distributing over 65 million copies of bittorrent applications and, again, shamelessly promoting their use for purposes of infringement. Defendants' inducement has sometimes become somewhat more sophisticated and subtle, in that, for example, Defendants now include a mild, disingenuous disclaimer about piracy on some of their web-pages and evidently no longer host certain P2P applications on their servers. Defendants, however, still expressly and explicitly show users how to use bittorrent programs to find copyrighted files to download. At all times, Defendants were aware that the bittorent programs they distributed were used overwhelmingly for infringing copyrighted works – primarily music, software, movies and video games. Although some court cases have found the proprietors of torrent websites liable for secondary copyright infringement,3 no court case has yet directly involved bittorrent applications and technology itself. Like a leopard that cannot change its spots and despite this Court’s clear admonishment that Defendants cannot simultaneously distribute software applications that they have encouraged to be used for purposes of infringement,4 Defendants continue to distribute bittorrent applications under the intentionally lazy and under-reactive guise that they cannot be held liable for this activity until a court order specifically prohibits the use of bittorrent technology to infringe Plaintiffs’ works. Although Plaintiffs believe it probable that courts will soon explicitly find the popular bittorrent applications to be secondarily liable for copyright infringement just as Napster and LimeWire were, it is beyond doubt that Defendants’ distribution of these programs and concurrent intent to induce infringement subjects Defendants to inducement liability, independent of any further inquiry. Bittorrent is a clear and present danger to copyrighted works. From evidence readily available in CNET’s own “news” articles, it is clear that bittorrent applications like uTorrent are growing explosively to fill the infringement vacuum left by Gnutella applications.

Yes, despite the fact that BitTorrent itself has been around for many, many years, and the software/protocol has never been found to be infringing in any way, these musicians are now insisting that it's "only a matter of time" and that CNET should be forced to block downloads of any and all BitTorrent products. There are so many crazy points here. First, Download.com is just a platform provider, which software providers use to distribute software, not the creator of the software. Second, BitTorrent is just a protocol and is quite different than the apps that the lawsuit relies on as previous generations, which were often complete ecosystems. BitTorrent software has always been just about a tool to download or distribute content -- legal or infringing. And, yes, there are a ton of legal uses of BitTorrent, even if the plaintiffs here pretend otherwise.

There are some other howlers as well, including the rise of copyright trolls, filing over 250,000 lawsuits against people for copyright infringement -- which the filing here uses as some sort of weird evidence that BitTorrent must be illegal, apparently completely unable to distinguish between a tool and the actions that some use that tool to accomplish.

Even more bizarre, the filing uses the fact that CNET had an article highlighting a legal use of BitTorrent (by the band Counting Crows who purposely released some tracks via BitTorrent) as evidence that CNET encourages people to infringe:

Defendants also use the purported “news” arms of their websites to dress up the marketing of bittorrent applications as legitimate news reporting. For example, CNET editor Seth Rosenblatt (the same individual who authored the fivestar review of uTorrent), wrote a May 14, 2012 article published and available on Defendants website titled “Download This Mr. Jones,” ostensibly about how the recording artist the Counting Crows had partnered with the software publisher of uTorrent to release their music for free download via torrent.... In a portion of the article quoting the lead singer of the Counting Crows regarding the 150 million users of uTorrent, Rosenblatt included hyperlinks accompanied by the word “download” to the CNET download pages for uTorrent and BitTorrent.

The idea that CNET's news operation deserves sarcastic "quotes" around it is ridiculous. News.com has been one of, if not the, leading tech news publication for at least a decade and a half. And the idea that this story wasn't actually newsworthy, as implied here, is simply ridiculous. Lots of publications covered it, not to push people to download BitTorrent, but because it was newsworthy. But much of the argument relies on news reporters talking about various issues related to BitTorrent, and then arguing that this is all some sort of front to push more people to download BitTorrent. To put it simply: this is insane. News.com and Download.com. I've known people associated with both properties, and the idea that they write articles about BitTorrent to try to drive more downloads is ridiculous.

But, even ignoring that, then arguing that all BitTorrent-related products should be barred from download isn't just overkill, it's pushing a rather scary and unique legal theory that sites should be barred from distributing software -- made by parties not even represented in the lawsuit -- just because one party doesn't like how some of the users of that software use it. If there's infringement it's on the part of some potential end users, but rather than going after them, this lawsuit doesn't just go one step back (to the software providers), but an even further level back to the platform that enables software downloads, and claiming that somehow they're all responsible for this.

It seems pretty clear that this lawsuit is really designed to be a nuisance for CBS, but the legal theories are highly questionable and the requested injunction is a massive overreach. Hopefully the court recognizes just how much an overreach this request really is.

A few folks have sent in this story on the blog of the wonderful (and super popular) site Cake Wrecks, which (as the name suggests) highlights hilariously bad cake designs, supposedly done by "professionals." Not surprisingly, the site is well known among those who wield cake decorating bags. However, some do not appreciate the wonders of such a site... especially when it features their own cakes. Cake Wrecks recently put up a blog post in which it reveals that at least one Safeway (a part of the giant supermarket chain) has apparently told its bakery that there is a "no photography" rule, officially set up to avoid having its cakes show up on the site -- though, they're using copyright as their excuse:

"My local [CENSORED*] bakery has this new policy - not strictly enforced, but kinda enforced - NO PHOTOS in the bakery department. None, nada. Per an ex-employee there, upper management is afraid that one of that store's specific cakes will be posted on 'that bad cake site.' Per what they tell you in the store, their cakes are 'all copyright protected.'"

Furthermore, the person who sent the email was told to stop photographing the following cake, because of "copyright protection!" You may notice that Safeway is clearly on the label -- but has been "censored" out of the note. Cake Wrecks amusingly refuses to name the chain in question, but does title its blog post "Ways to Play it Safe." It also features a whole bunch of photographs of ridiculously designed cakes from Safeway -- many with stickers prominently displaying where they came from. It's worth checking out the whole bunch, though I'll warn you that one of them might be considered not safe for work, depending on your work environment (though, it's also the type of cake that I imagine our own Dark Helmet would find hilarious).

Of course, there is a question of whether or not such cakes are actually covered by copyright. That actually probably depends on each individual cake -- since there has to be some sort of overall creative element added to the cake, and many "standard" cake designs probably don't qualify. Of course, even if the cake is covered by copyright, it seems silly to argue that copyright is a reasonable excuse to ban any and all photographs. There would be a ridiculously strong fair use claim in response. The photograph is transformative (it's not a cake, it's a photgraph). The nature of the work is to disseminate information to the public, which tends to weigh in favor of fair use. And the effect on the "market" for the copyrighted work is nil. Now, some may argue that it would impact the market for the cake, but that's because it's showing how ridiculous the cake is, not because it's a substitute. And, in the famous Campbell v. Acuff-Rose case, the Supreme Court made clear:

We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.

I'd say Cake Wrecks fits into that description nicely. Either way, even if there was a legitimate copyright claim here, all it does is call that much more attention to the fact that apparently Safeway has pretty horrid quality control for many of its cake designers. Instead of coming up with ridiculous legal arguments to stop people from photographing their cakes, perhaps they should just find better cake designers.

Rovi is the company that used to be called Macrovision. It got its start as the annoying DRM for VCRs and expanded into all kinds of DRM over the years. In 2008, it bought GemStar-TV Guide and was then in the TV Guide producing business as well. While it eventually sold off the DRM/software parts of its business, apparently it just can't help doing what DRM companies know how to do best: breaking other technology. As reported on Slashdot, Rovi has announced that it's shutting off its TV Guide OnScreen service between now and April 13 of the next year. Apparently a number of devices, including two key Sony DVRs, will no longer work once the service is shut off. Not surprisingly, this is upsetting many owners of those devices:

When other companies decide to stop supporting something, they don't make older systems useless. Worse, Sony never came out with another DVR in the U.S. market. Why do we have to rent them? How do we get Sony or Rovi to provide at least a software patch to set the clock so the DVR can at least retain 1980s VCR functionality? Sony admits there is no fix. A thread on AVS forums has a bunch of information on TV Guide OnScreen. The TV stations who broadcast the data have been ordered by Rovi to disconnect the data inserters and ship them back.

Quite a legacy MacROVIsion has, huh?

Last week, we noted that one of Hollywood's favorite Congressional Reps., Howard Berman had lost his re-election bid (in part due to re-districting, putting him up against another incumbent). For years, Berman has been a go to guy for the entertainment industry looking to pass dubious copyright expansion bills. Berman used to run the "IP Subcommittee" of the Judiciary Committee -- which you would think is a major conflict of interest, since he (literally) represented part of Hollywood. Amusingly, when he moved on to head the Foreign Affairs Committee, the next line for the IP Subcommittee was Rep. Rick Boucher -- a noted copyright reform advocate. Magically, the Judiciary Committee made the IP Subcommittee disappear. When Boucher lost in the next election, and a maximalist was available again, magically the subcommittee reappeared.

Either way, as a bunch of sources have been reporting, now that Berman lost, he's on the short list of possible candidates to become the new Secretary of State after Hillary Clinton steps down early next year. While many had thought that John Kerry would take the position (which he wants), there is now concern that the administration won't want to take him out of the Senate, because his seat would likely flip to the Republicans (Scott Brown, who narrowly lost to Elizabeth Warren this time around). The other leading candidate, Susan Rice, (the US's ambassador to the UN) is in a world of controversy right now over the Benghazi situation. That leaves Berman as a top choice (though there are a few others).

However, considering that the State Department is a leading supporter of internet freedom principles. Hillary Clinton made internet freedom a key plank of her focus at the State Department. In fact, we heard from multiple sources that the internal view at the State Department was against SOPA because it would hurt internet freedom efforts abroad. Similarly, we heard that State Department pressure on the White House helped lead to the surprising decision by the administration to come out against SOPA.

While Berman is known for having a strong grasp of foreign affairs issues, his positions on internet freedom and copyright should make it clear that he's the wrong choice for Secretary of State. While people at State realized how problematic SOPA was, Berman was a co-sponsor of SOPA and continued to defend the bill to the end -- arguing that it would have no impact on free speech and insisting that copyright infringement is no different than theft. Berman was also the one who tried to get Hillary Clinton to speak out in favor of SOPA, and then misrepresented that the letter she sent concerning the relationship between copyright and free speech, meant that the State Department supported SOPA (when it did not).

Given all that, Demand Progress is asking people to sign a letter to the White House not to nominate Berman as a replacement for Clinton. It really seems like he is way too beholden to a particular industry to be the appropriate person for the State Department. Let him do what everyone expects, and pick up an entertainment industry lobbying job.

We've discussed in the past how the class action lawsuit system these days seems often to be more about a legal shakedown for lawyers, rather than anything really designed to help protect the public. The latest crazy lawsuit involves a class action lawsuit (pdf and embedded below) filed against Activision Blizzard... because the company is offering two-factor authentication. You see, Blizzard's Battle.net was hacked a few months back, leading to some email addresses being revealed. Also, like many other security minded places, Blizzard has been pushing two factor authentication to better secure your accounts. Blizzard's two-factor authentication can be downloaded for free on any iOS, Android or Windows Phone smartphone. If you don't happen to have any of those, but still want to use two-factor authentication, they will sell you a $6.50 fob. None of this seems out of the ordinary. Until you read the lawsuit, where these class action lawyers try to make it sound like some horrible scam.

Defendants' acts have not only harmed Plaintiffs and Class members by subjecting their Private Information to hackers, they have harmed Plaintiffs and Class members by devaluing their video games -- purchased from Defendants under certain assurances of security -- by adding elements of risk to each and every act of playing said games.

Moreover, rather than shouldering the burden of adopting sufficient security measures to prevent these repeated hacks and to protect the Private Information of their customers, Defendants instead have informed their customers, after the point of sale, that they must purchase additional security products in order to ensure the sanctity of their Private Information. These additional, post-purchase costs for security products -- which Defendants assert are the only measures that may be taken to ensure something even approximating account security when playing their video games -- were not disclosed to Plaintiffs and Class members prior to the purchase of Defendants' products.

Yeah, notice how they gloss over the fact that the system is free for anyone with a smartphone? And let's not even get into the fact that no system can be perfectly secure and, eventually, every system is going to get hacked. Just being hacked doesn't make you negligent. And, as we've seen, courts have time and time again refused to find any legal claims against sites that are hacked unless actual harm is shown to the users. The idea that providing two-factor authentication -- and charging the basic cost of the fob for the few folks who don't have a smartphone -- is some sort of sneaky business practice is just ridiculous.

Blizzard has hit back and slammed the lawsuit as being based on "patently false information."

The suit’s claim that we didn’t properly notify players regarding the August 2012 security breach is not true. Not only did Blizzard act quickly to provide information to the public about the situation, we explained the actions we were taking and let players know how the incident affected them, including the fact that no names, credit card numbers, or other sensitive financial information was disclosed. You can read our letter to players and a comprehensive FAQ related to the situation on our website.

The suit also claims that the Battle.net Authenticator is required in order to maintain a minimal level of security on the player’s Battle.net account information that’s stored on Blizzard’s network systems. This claim is also completely untrue and apparently based on a misunderstanding of the Authenticator’s purpose. The Battle.net Authenticator is an optional tool that players can use to further protect their Battle.net accounts in the event that their login credentials are compromised outside of Blizzard’s network infrastructure. Available as a physical device or as a free app for iOS or Android devices, it offers players an added level of security against account-theft attempts that stem from sources such as phishing attacks, viruses packaged with seemingly harmless file downloads, and websites embedded with malicious code.

When a player attaches an Authenticator to his or her account, it means that logging in to Battle.net will require the use of a random code generated by the Authenticator in addition to the player’s login credentials. This helps our systems identify when it’s actually the player who is logging in and not someone who might have stolen the player’s credentials by means of one of the external theft measures mentioned above, or as a result of the player using the same account name and password on another website or service that was compromised. Considering that players are ultimately responsible for securing their own computers, and that the extra step required by the Authenticator is an added inconvenience during the log in process, we ultimately leave it up to the players to decide whether they want to add an Authenticator to their account. However, we always strongly encourage it, and we try to make it as easy as possible to do.

Many players have voiced strong approval for our security-related efforts. Blizzard deeply appreciates the outpouring of support it has received from its players related to the frivolous claims in this particular suit."

Hopefully the court understands just how ridiculous this case is and dumps it quickly.

Lately, we've noted a string of questionable prosecutions in the UK over statements made by people on social networks. These posts may have been in poor taste, but hardly seemed like the sort of thing that ought to be criminal. While UK prosecutors are finally admitting that perhaps they need to rethink speech online, it apparently hasn't stopped these kinds of arrests and prosecutions. Police, over the weekend, arrested someone for posting an image of a burning poppy. The poppy is seen as a memorial sign for those who died in battle, and the image was posted on "Remembrance Sunday." While some might say this in poor taste, it certainly seems like a legitimate form of political protest... but apparently not to law enforcement in the UK:

"A man from Aylesham has tonight been arrested on suspicion of malicious telecommunications," Kent police said in a statement after the arrest. "This follows a posting on a social network site of a burning poppy. He is currently in police custody awaiting interview."

The article notes that free speech advocates in the UK are speaking out in response to this, pointing out how ridiculous it is -- and noting that part of the reason why soldiers fought wars for the UK was to provide freedoms like the ability to express their views on things like war.