The prisoner’s dilemma, it seems, is still a profitable mine in economic academia.
A couple of researchers at the New York Fed are out with a new paper on capital controls. In it, conventional wisdom (and the aforementioned dilemma) proves right and the contrarian view, dating from the Asian financial crisis 15 years ago, wrong.
When countries simultaneously and independently engage in such interventions in the international flow of capital, not only global but individual welfare is adversely affected….
Countries decide to restrict the international flow of capital exactly when this flow is crucial to ensure cross-border risk sharing. Our findings point to the possibility of costly “capital control wars” and thus to significant gains from international policy coordination.
But here’s the really shocking revelation:
The paper does allow that restricting capital flows can make sense from the perspective of an individual nation. It’s just that in following this path, trouble is created for the broader global financial system.
We've all seen the digital panic that ensues when a massive service like Gmail or Facebook goes down for even a small portion of users. Smaller versions of the same thing take place every day with services that are less widely adopted but just as important to the people who rely on them. It doesn't even take an outage to cause problems — frequent slowdowns and interruptions can quickly cause a massive productivity traffic jam. With the degree to which we live our lives and do our work online, service problems are much more than a minor inconvenience, and at the wrong moment can be a disaster.
So we want to know: how does this impact the way you use the web? Are you prepared for interruptions in the online apps and services you use most? Have you ever abandoned an app for spotty performance, or adopted one specifically for its reliability? We're looking for everything in the way of insights, anecdotes and ideas about performance issues online.
You can share your responses on the Insight Community. Remember, if you have a Techdirt account, then you're already a member and can head on over to the case page to submit your insights.
If you're going to commit a crime, there's a certain amount of logic to trying to pull off the biggest crime you can. Why risk going to jail over a relatively small amount of money? If you can get away with a multi-milion dollar heist, you only have to do it once (if you're not too greedy). And if you get caught, you might have the resources to escape the authorities. Here are just a few examples of some scams that might have demonstrated that crime can pay.
We already noted that President Obama did his Google Hangout today, and surprisingly admitted that patent trolls are a problem. It's worth noting that he did actually get some directly challenging questions, including about gun control, immigration and a lack of transparency (especially on drones). Oh, and also about whether or not we should still have a penny (President Obama: "I don't know!"). That last one was actually the most popular question that people voted on, as compiled by Derek Khanna over at Townhall.com.
President Obama more or less avoided the question about drones -- other than to insist that no drones had been used to target people in the US and that the rules were different elsewhere. He also continued to insist that his administration is the most transparent in history, thanks to things like the White House visitor logs being released publicly. That, of course, is just one small part of transparency, and it's clear that the administration is absolutely failing on a number of different transparency issues (and is notably horrible at responding to Freedom of Information Act requests).
What's disappointing, though, is that many of the other top questions in that list didn't get asked (including the question about copyright issues that we'd mentioned, despite being the 8th most popular question by votes). Obviously, there is only a limited amount of time, and I actually think that Obama did a reasonably good job in actually responding to the questions asked with a bit more depth than I expected. It still wasn't that deep, but it wasn't nearly as superficial as I expected. And, at the very least, it gave a chance for him to hear some pointed questions on these issues. Hopefully, he decides to do this more than once a year, so that some of these other questions can actually be asked.
As a side note, I saw some people complain about the final questions which were more "personal" in nature, though I didn't think it was that bad. Yes, perhaps you could argue that it took time away from some of those serious questions, but there is something to be said for at least allowing a bit of personality to come through in these discussions. I thought the most amusing part, though, was that when John Green (of Vlogbrothers and DFTBA Records) asked the President to help name his expected child, the President refused, joking that if they ruled against him it would upset the child for the rest of their life -- but then he did note that they should make sure the child "doesn't forget to be awesome" (which is what DFTBA stands for). Obviously, he was saving up something about DFTBA, but that was still a nice touch.
As we noted yesterday, President Obama is holding a "Fireside Hangout" via Google Plus today. In a bit of a surprise turn, he took a question about patents and patent reforms, with a specific question about software patents. And, his response was surprising. He admitted that there was a problem, and that there were some companies who were clearly not doing anything other than trying to "extort" money from others. Furthermore, while he pointed to the patent reform bill that passed in 2011, he also admitted that it really only went "halfway" towards reforming the patent system as far as it needed to go. If you click on the video, this takes place around 43:30 in the video.
He also used the question to address a few broader issues, including innovation, privacy, the internet and the rapid change of technology.
Question: High tech startups are an important engine of the American economy. When I go around and talk to other enterpreneurs, what I hear is that they're afraid that if they become successful, they're going to be targeted by patent trolls... What are you planning to do to limit the abuse of software patents?...
Obama: A couple years ago we began a process of patent reform. We actually passed some legislation that made progress on some of these issues. But it hasn't captured all the problems.
The folks that you're talking about are a classic example. They don't actually produce anything themselves. They're just trying to essentially leverage and hijack somebody else's idea and see if they can extort some money out of them. Sometimes these things are challenging. Because we also want to make sure that patents are long enough, and that people's intellectual property is protected. We've got to balance that with making sure that they're not so long that innovation is reduced.
But I do think that our efforts at patent reform only went about halfway to where we need to go. What we need to do is pull together additional stakeholders and see if we can build some additional consensus on smarter patent laws.
This is true, by the way, across the board, when it comes to high tech issues. The technology is changing so fast, we want to protect privacy, we want to protect people's civil liberties. We want to make sure the internet stays open. I'm an ardent believer that what's powerful about the internet is its openness and the capacity for people to get out there and introduce a new idea with low barriers to entry. We also want to make sure that people's intellectual property is protected. Whether it's how we're dealing with copyright, how we're dealing with patents, how we're dealing with piracy issues. What we've tried to do is be an honest broker between the various stakeholders and to continue to refine it -- hopefully keeping up with the technology -- which doesn't mean that there won't be some problems that we still haven't identified and that we have to keep working on.
Some will reasonably be less impressed by the hedging at the end, but this is the first statement we've really seen that the administration believes that patent trolling is a problem (even to the point of referring to it as extortion). It's also the first we've heard from the administration that they only consider the last patent reform bill (the AIA) a "halfway" solution. To date, the administration had acted as if passing that was fixing everything.
Microsoft, long-standing hater of piracy, appears to have decided to step up their targeting system to place their own customers directly in their crosshairs. Your immediate reaction may be to blast the previous sentence as hyperbole, but you would be wrong to do so. Nothing else can explain what they are doing with their Microsoft Office 2013 retail software, which is to make it a single install license that is forever tied to one machine.
With the launch of Office 2013 Microsoft has seen fit to upgrade the terms of the license agreement, and it's not in favor of the end user. It seems installing a copy of the latest version of Microsoft's Office suite of apps ties it to a single machine. For life.
What does that mean in real terms? It means if your machine dies or you upgrade to a new computer you cannot take a copy of Office 2013 with you to new hardware. You will need to purchase another copy, which again will be tied to the machine it is installed upon forever.
For those of you who might not know, this is a completely new way of handling retail versions of Microsoft Office. Previous iterations still limited installs to a single user, but you had the ability to put the software on multiple machines. The reason that's necessary should be obvious, in how common it is for users within homes and offices to switch to new computers over a 3 or 4 year timespan. Most companies have a rotation process that could be murdered by this, assuming all of their users don't need the same version of Office (there are 3 different flavors), not to mention what happens when the PC you've had for two years does the system board dance of death, forcing you to replace it. In either scenario, retail buyers get to buy a whole new boxed product of Office, which costs anywhere between $100 and $400, again depending on the version. All of this, by the way, has been confirmed by Adam Turner of The Age.
Now, I realize not everyone works for a reseller like I do, so let me explain why this will universally piss everyone off and drive customers away from Microsoft Office entirely. We already mentioned the problems for the user above. In addition, while most sizeable companies traditionally have gone the Open Licensing route (which doesn't have install restrictions), small businesses often don't. Those small businesses number in the too-many-to-accurately-assess-ions, which means that instead of moving towards licensing or Office 365 (the likely goal of Microsoft) many customers may begin to explore alternatives, such as Google Docs, Open Office, and Libre Office. Not only would that cut into Microsoft's market share, but it could open a lot of eyes to those alternatives universally, which may then represent a threat to Microsoft's enterprise customers. I wouldn't suggest that most or even many larger companies would switch to one of the other suites, but market share certainly matters.
So, way to go Microsoft. You've made one of your most popular products more expensive and less useful at the same time, all because you want to push customers to Office 365. Which, were it compelling on its own merits, customers would be doing anyway.
Last year, we wrote about a couple of lawyers, Edward White and Kenneth Elan, suing Westlaw and Lexis-Nexis for daring to republish their legal briefs as a part of their legal databases. As we noted at the time, we hoped that any court ruling would make it clear that posting publicly filed legal documents was fair use. The case has had a few twists and turns. First, the court dumped Elan and rejected the attempt to include lawyers who had not registered the copyright in their filings as a part of a class. Since most lawyers don't bother filing a copyright in their own legal filings, that really shrunk the possible class. White refiled the case by himself and not as a class action... but the court has quickly dumped the case on summary judgment. The full ruling should follow, but for now it appears that the judge was not at all impressed by attempts to use copyright law to block the republishing of legal documents:
After carefully considering the parties' written submissions and oral arguments, the Court hereby grants defendants' motions for summary judgment and denies plaintiff's motion.
In other words, the case is over and the lawyer loses and the legal databases win. That's a good result, though we'll see what the eventual ruling says in terms of details.
Here's a question that has been keeping me awake for the past several years: what would I call a smart phone application designed to approximate the size of my naughty parts? The answer, of course, is to call it the Chubby Checker, which is exactly what a company did some time ago. Apparently 1960's rock and roll legend Chubby Checker is so pissed off about it that he wants approximately all of the money (by which he means a hell of a lot more money than) the app ever made. And, for some reason, he wants it from HP and Palm, who no longer offer the app at all due to the platform being completely dead, and who appear to have complied with his requests in every way. There's a joke about Palm being involved in a penis size app, but most of it is too vulgar for Techdirt's audience. Let's just say the punchline is "That's what I call two in the hand and one in the bush!" and get back to the story.
Checker's lawyers are seeking half a billion dollars for the "irreparable damage and harm" caused by the Chubby Checker, an app for Hewlett-Packard's Palm OS platform. "This lawsuit is about preserving the integrity and legacy of a man who has spent years working hard [editor's note: HA!] at his musical craft and has earned the position of one of the greatest musical entertainers of all time," explained lawyer Willie Gary.
Yes, according to Willie [editor's note: his name had to be Willie, didn't it?], an application from a company now extinct, released for a mobile platform also extinct, has caused irreparable harm to a rocker from the 60's. Okay, apologies for digging into this, but that's what the post requires. A chubby is a term for a man's wang. If you're going to check it out, chubby checker describes the app. Sorry, but that's the deal. And I want to know who, out of the grand total of 84 people who downloaded this app, in any way thought about The Twist, or in any possible way thought that this app was endorsed by the 71 year old man born Earnest Evans. Because here's the thing: if you associated a penis and a song about a dance in which you twist into knots, you're a masochist and an idiot. And, frankly, the tarnishment aspect of their complaint is the most reasonable part of it all.
That's because of their ridiculous request for $500 million for an app downloaded 84 times on a platform now defunct from a company also defunct. And their filing is against HP and Palm, not the actual app developer, who actually took the app down in September of last year, the same month when that same filing shows Checker's lawyers first sent HP/Palm their cease and desist (filing embedded below). So, they took a dead app for a dead platform that almost nobody downloaded and injected all of it back into the public news realm, and Checker's/Evans'/Whoever's lawyers claim the app is the one causing harm to the brand? It seems a hell of a lot more likely that filing this ridiculous lawsuit is going to cause harm to Checker's brand than anything HP or Palm did. Per their own hilarious press release:
The lawsuit alleges that the egregious and flagrant acts of Hewlett Packard and Palm, Inc., if not stopped immediately, will permit Defendants to enjoy profits to which they are not entitled.
Newsflash, guys, there is no current way for HP and Palm to profit from this app. This entire suit against them is ridiculous. If 3rd party sites are still offering it, go file spurious trademark lawsuits against them and then lose in court. HP did everything you asked and you're still suing them for an astounding $500 million, even though they didn't create the app or have anything to do with it. Meanwhile, you're making your client look like a chubby (get it?).
As expected, Representatives Mike Rogers and Dutch Ruppersberger have reintroduced CISPA, exactly as it was when it passed the House last year. Incredibly, we've been hearing that they've brushed off the massive privacy concerns by claiming that those were all "fixed" in the final version of the bill that got approved. This is highly disingenuous. While it is true that they made some modifications to the bill at the very end before it got approved, most privacy watchers were (and are) still very concerned. They did convince one organization to flip-flop, and they seem to think that's all they need.
But, here's the thing that no one has done yet: explain why this bill is needed. With President Obama's executive order in place, the government can more easily share threat info with companies, so really the only thing that CISPA piles on is more incentives for companies to cough up private information to the government with little in the way of oversight or restrictions on how that information can be used. And given how frequently the government likes to cry "cyberattack" when it's simply not true, it's only a matter of time before they start using claims of "cyberthreat!" to troll through private information.
And they still refuse to explain why this is needed. We hear lots of scare stories, but no explanation for how this bill helps. For example, Ruppersberger has written up an oped for the Baltimore Sun in which he lays out the reasons we need CISPA, but it's all scare stories, without a single explanation for how CISPA would help. And that's because it wouldn't.
March: Hackers allegedly steal the credit card numbers from 1.5 million Visa and MasterCard customers by breaking into the computer systems of the company's payment processor in New York. The thieves stockpiled the stolen credit card numbers for months before beginning to use them.
Payment processors already have some of the best security people in the world and have a large and widespread community of folks who do nothing but think about security issues for this industry. At what point would that lead the payment processor or Visa or Mastercard to need to hand information over to the government?
August: Cyber attackers disrupt production from Saudi Aramco, the world's largest exporter of crude oil, taking out 30,000 computers in the process, according to press reports.
Saudi Aramco is a Saudi Arabian company. Not sure why they would be sharing info with the US government or how CISPA would relate to them at all.
January: PNC Bank announces to its 5 million customers that its website is getting hit with high traffic consistent of a cyber attack meant to delay business with its online banking customers.
Again, why would PNC need to give information to the government? And, if they could alert their customers to the threat, they can also alert the government. None of that requires the ability to share customer info.
These are just three reported examples of cyber attacks in the past 12 months. Each could have had a devastating impact on the U.S. and global economies. That's more than a bad dream — that's a full-blown nightmare.
These are just three scare stories of cyber attacks in the past 12 months, none of which would have been impacted by CISPA. So why do we need it again?
Highly trained Chinese, Russian and Iranian hackers are probing, pilfering and plotting every second of every day. They're often after personal data: In November, reports suggested a hacker was able to access nearly 4 million tax returns in South Carolina with a single malicious email. And they're often after the trade secrets of our companies: The media has reported that Coca-Cola may have fallen victim to hackers from a Chinese beverage company.
Again, what does any of that have to do with CISPA?
Many believe that what is happening to American business may be the largest transfer of wealth in the history of the world. It's costing our companies billions of dollars, and it's costing our country thousands of jobs.
Many believe that's pure hogwash. It's not the largest transfer of wealth in the history of the world. It's not costing companies billions of dollars and it's certainly not costing our country thousands of jobs.
Preventing the U.S. government from sharing information about malicious computer code it detects is akin to preventing forecasters from warning citizens about a hurricane.
Except the government already could share a lot of information, and with the executive order can now share more. So why do we need CISPA?
Our legislation doesn't just protect companies. It will also protect every American citizen who, for example, uses electricity or banks online, or whose doctor compiles medical records electronically.
How? It's a serious question. You can talk about all of these hacks, and you can say "yay, cybersecurity bill!" but if you don't explain specifically how that bill does anything to actually stop those attacks or to protect Americans, you're full of it.
It's important to note that under my legislation, your private information will also be kept private from the government. Information-sharing between companies and the government will be entirely voluntary. Businesses do not have to share information with the government in order to receive information from the government. The bill does not authorize the government to monitor your computer or read your email, Tweets or Facebook posts. Nor does it authorize the government to shut down websites or require companies to turn over personal information.
The first sentence is simply not true. Your private information can be shared with the government, so to say that it absolutely will be kept private is simply wrong. The second and third sentences are misleading. Yes, the information sharing is "voluntary" but since there are broad immunity exemptions, if the government is coming to most companies and saying "share this info for cybersecurity reasons, and you can't get sued for doing so," how many companies are going to stand up to the government and say no? There may be a very small number, but for the most part, companies will hand over the info. The fourth and fifth sentences are simply meaningless, because they are unrelated to the legitimate privacy concerns raised.
Once again, we're left in the same boat as before. Lots of scare stories but no explanation of why CISPA is needed or how it actually helps. The whole thing is just way too broad, with vague justifications that simply don't make much sense when you look at the actual threats compared to what the bill would allow.
My apologies ahead of time for the length of this piece, but anything shorter wouldn't do the subject justice. I will, however, provide plenty of pictures and blockquotes. This post deals with a strange copyright troll, which bullies people into properly attributing a quoted poem. The troll runs across multiple social media platforms but does a bulk of its "work" at Twitter, where it can receive instantaneous feedback. Along the way, we'll deal with the poet himself, a company called On Press Inc. and some other connections which seem to indicate the poet himself is behind the trolling, along with a threatened lawsuit against me for copyright infringement, defamation and false claims.
It starts out simply enough. As a contributor to this site, I was doing the sort of thing we do in our downtime -- running a Twitter search for the term "infringement." The search results were dominated by tweets from an account that looked exactly like this one.
Only it wasn't this one. The account I saw had this name: @xsaonpress.
When I returned the next day, I was greeted with the message that the above account had been suspended. Odd. So, I searched again, only this time using the keywords "tongues" and "glass," -- two words in the title of the poem in question -- and found that On Press was still in business.
On Press Inc., supposedly a division of Knopf Publishing (according to its Twitter profiles), was running a search of its own and issuing tweet after threatening tweet to anyone who dared publish a short (really short -- under 140 characters) poem by reclusive poet, Shaun Shane, without attribution. The entire poem reads as follows:
"If only our tongues were made of glass, how much more careful we would be when we speak."
The Organization Invisible Children has plagiarized and thus committed copyright infringement ( which is illegal) on their website and on their Twitter account, a work by Shaun Shane. Exemplifying the criticism against them that they do not research their facts and have sloppy journalist methods. (Here is a link: http://www.invisiblechildren.com/) and to the Twitter post (https://twitter.com/#!/Invisible/status/196433854851055618/photo/1)
After sending out an ignored invitation (via direct message) to discuss these "tactics," I decided to throw out some bait.
Soon, I was receiving the same set of tweets I'd seen filling up my search results the night before. On Press, utilizing one of its many, many Twitter accounts, gave me its usual combination of Shaun Shane info and legal threats. On Press has a very shaky grasp on IP law, but it doesn't let its ignorance stop it from trotting out nearly every term (plagiarism, theft) imaginable in hopes of quick compliance.
The first false claim it makes is that Twitter will shut down an account for a single infringement violation. Not true. Twitter may shut down an account for multiple cases of infringement, but a single report won't result in the removal of an account, as is clearly stated in the Twitter terms of service. (On Press has also made claim that this process will shut down an account in 4 hours. You may laugh at this one.)
Twitter will also terminate a user's account if the user is determined to be a repeat infringer.
If the proper steps are followed (via the DMCA form), the offending Tweet will simply be "withheld," with a notice replacing the original Tweet. Finally, On Press delivers this bizarre phrase:
For an entity so concerned with copyright infringement, it certainly doesn't seem to understand the terminology it's throwing around. "Libel" and "liable" are nowhere close to each other in definition, and you'd think an entity this concerned with infringement would know the difference (or at least be able to spell the one it actually means).
Then there's On Press Inc itself, which has its own issues. As you can see from its profile photo, On Press claims to be a division of Knopf Publishing. However, we contacted Knopf Publishing for comment and they said that there is no division of Knopf called On Press Inc. On Press has apparently decided an appearance of Shane's poem in a Poem-A-Day-Celebration hosted by Tumblr and Knopf allows it to add Knopf's name to its profile... and the large publisher's weight to its fight against unattributed use, despite no official connection to the company.
On Press also utilizes multiple simultaneous Twitter accounts, in violation of the Twitter Rules.
Serial Accounts: You may not create serial accounts for disruptive or abusive purposes, or with overlapping use cases. Mass account creation may result in suspension of all related accounts. Please note that any violation of the Twitter Rules is cause for permanent suspension of all accounts.
In one night, my interactions with On Press Inc. included input from the following accounts: @copyrightdept, @vesoaonpress, @vseawonpress, @wasweonpress, @xaswonpress and @xseionpress. All accounts sported the same On Press logo and spouted the same tweets. One could try to make a claim that these accounts are not "disruptive" or "abusive" (and I'd love to watch them make that claim), but there's little doubt On Press Inc's multiple accounts are "overlapping." (@vseawonpress is the only account not suspended at the time of this writing.)
Now, although I was receiving the same stream of misspellings and misinformation from On Press as the other users posting Shaun Shane's (unattributed) poem, I wasn't seeing any signs of life. I was pretty much convinced it was a bot running multiple accounts. To test that theory, I called out On Press on the false claims directed my way, specifically the assertion that Twitter would delete my account for a single violation. To my surprise, it provoked a very human reaction.
So, there was a human behind the account, one who handily provided a link to the terms of service that directly contradicted what he had just said. (I've shifted pronouns, but an explanation is on the way.)
Once I had his/its attention, I pointed out On Press' suspicious behavior -- namely, the multiple suspended accounts linked to its name.
On Press responded with this blast of angry tweets, stating that Twitter itself generated these accounts for it.
It shouldn't need to be said, but this claim is completely false. Mike contacted Twitter to ask about whether or not, as On Press claims, it creates thousands of automatically generated accounts for companies with which to harass infringers, and (no surprise) Twitter said there is no truth to this claim.
I attempted to gather more information, but my overtures were rejected. At one point, an On Press account mentioned it performed this "service" for "other authors" but refused to name any. It also failed to cough up a usable URL that might indicate On Press Inc exists outside of multiple Twitter accounts.
Shortly thereafter, the accounts went ballistic, showering me with a long list of legal threats.
This was prompted by its discovery of a tongue-in-cheek review of the only book On Press has for sale, one I had posted earlier that night. (You may notice a second review has suddenly appeared -- from the same person who showed up to criticize my review.)
Again, On Press made several dubious claims, including the ridiculous suggestion that Twitter would surrender my IP address to the police on the strength of a fake review posted on an entirely different site. It also seemed to feel that the Feds would be interested simply because I was using a computer.
However, he/it wasn't kidding about one thing: "legal prosecution." The morning following this bizarre conversation with On Press (Feb. 8th), Techdirt received a phone call seeking to confirm that I "worked for Techdirt," with the "lawyer" on the phone saying that he wished to serve me with a lawsuit (at Techdirt's headquarters) for "copyright infringement, defamation of character and making false claims."
To date, nothing has been filed, despite the voicemail implying the lawsuit was already filed. But here's the great thing about legal threats: nothing being served to this point doesn't mean nothing ever will. The possibility still exists and the potential plaintiff is free to file anytime before the statute of limitations expires. This is likely a bluff, but it carries enough weight to make any future direct interaction with On Press ill advised, to say the least. This leaves him/it free to aggressively pursue those posting the poem without attribution, without worrying that I might ruin the fun by pointing out its false claims.
With the threat of a lawsuit still hanging overhead, I'm simply going to present my findings, all backed up with screenshots and/or links, with a minimum of speculative commentary.
The On Press Inc. "Network"
First off, let's address the "him/it" issue. On Press Inc. seems to exist solely as multiple accounts spanning several social media platforms. Running a search will serve up a few hits on existing businesses with the same name, but I have confirmed that these are unrelated to this bizarre attribution trolling.
A Poem Is Nothing
Shane's book is print-on-demand. Amazon doesn't list it this way, but other booksellers do. So, there's no pile of unsold paperbacks sitting in an On Press warehouse. This may explain why there's so little effort made to provide infringers with a "buy" link during the barrage of tweets and comments.
The On Press Twitter horde usually presents two links. One of them leads to this video displaying "proof" that someone (d/b/a On Press, Inc., with no address displayed) holds the copyright to "Tongues Made of Glass." (The other links to the Invisible Children photo.)
Now, a video like this could be made by literally anyone (with hands) and hardly presents a solid case for On Press' claim to Shaun Shane's poem. None of his work has been registered at the US Copyright office, either by himself or by On Press (or by anyone, actually). This limits any legal liability for infringement to actual proven damages, making the threat of a lawsuit slightly more tolerable. Also, the claims made at the end of the video, which appear to be a bastardization of the typical "copyright policies" found on sporting events, saying no copies can be made "without written consent of the publisher," overstates the powers given under copyright law in ignoring the possibility of fair use or other exceptions to copyright law.
Interestingly, the voice on the "copyright" video sounds nearly identical to Shaun Shane himself. Shane has a very distinctive cadence and tone to his voice, as evidenced by this live performance.
[Shane's voice also bears heavy, heavy resemblance to that of James Roth ("representing On Press Incorporated"), the caller who contacted Techdirt about serving me with the lawsuit.]
So, is On Press simply Shaun Shane, reclusive poet and attribution seeker? He'd certainly be the person most interested in enforcing this. His impossibly glowing bio at PoemHunter puts Shane in Schrodinger's Box, theorizing that he's dead ("...had become terminally ill and his re-emergence was to reinforce the ethic of Pure Poetry or Truly Modernist Poetry before his death..."), before theorizing in the opposite direction a few sentences later ("though it is believed, if he is still alive, he lives on the West Coast...") One of the On Press Twitter accounts I dealt with claimed Shane was dead and had willed that his work be used to raise money for various children's charities. (Too bad no one's trying to sell that book...) This claim is echoed at Pinterest, where the same sort of attribution-badgering occurs.
Whether Mr. Miche is real or simply Shaun using another name remains to be proven. (It does share a Shaun Shane-like bit of alliteration.) Miche patrols Pinterest, sending users who re-pin this photo the same sort of messages as the Twitter accounts do, only without the character limit.
Miche also sports the same shaky legal grasp and penchant for baseless threats.
Here Miche chases down a user (who deleted her tweet) and continues harassing her at her Pinterest account, claiming that people like her using an unattributed quote can "cause untold billions of dollars of lost [sic] for companies who support and publisher [sic] Authors [sic... again] works." Miche also seems to make the claim that she's legally responsible for any retweets (a claim echoed in return by the On Press Twitter accounts).
Hopewell has sent out similar messages to Facebook users, again seeking attribution and using identical wording.
There are a few differences that might indicate she was just "pitching in" with the attribution push ("This Poem is our copyrighted property your use of it uncredited to him constitutes thief."), but by and large, it resembles missives issued at other platforms.
A user named "Sean Seans" refers to himself as "Shaun" and tells her he loves and misses her. And that Sean Seans/Shaun is also busy chasing down wrongdoers posting unattributed poems.
Anne Murphy has also made posts on Facebook concerning Shane's poem and seems to be located in Texas (at least judging from the locations of most of her Friends). The wording is almost identical to the Facebook posts by Alexandria Hopewell, suggesting the same author wrote them. She has also uploaded a few videos of Shaun Shane performances to YouTube. (Interestingly, the phone number on the caller ID from the call by "James Roth" to contact Techdirt is registered to Anne Murphy and also to a vegetable farm, the O.P. Murphy Produce Company -- both in Texas. Also worth noting: there does not appear to be a "James Roth" listed on the Texas state bar. If whoever called is not, in fact, a lawyer, they might want to familiarize themselves with Texas law 38.122 which makes it a felony to impersonate a lawyer.)
But that's not all. Shane/On Press also stalks Tumblr with multiple accounts (some of which are filled with work-from-home scam posts), issuing the now-familiar statements demanding attribution. A search for the terms "Shaun Shane" and "On Press" also brings up hits on several other platforms. On Press/Shane is very busy, though (as far as I can see) never seems to direct anyone towards buying the actual book.
He has also ramped up the aggression, perhaps as a result of his "successful" legal threat. The On Press Twitter interactions were never pleasant, but the latest ones have a decidedly malevolent tone that's undercut slightly by the sheer number of false claims they contain. It doesn't help that the poem is most frequently tweeted by teens -- a demographic On Press/Shane seems to enjoy hurling threats towards.
"know that you can be track by your ip address and that your parents will be the one's who are sued since you are a minor..."
"know that the average cost is $4000.00 per instance but that is times the number of follwers you have, or the number people who are exposed to your illegal post..."
"...but if you were bright you wouldn't have been stupid enought to tweet the poem in the first place..."
"WE don't care if you care. Your account will be terminated that is all that matters to us. We are indifferent to your feelings about it. your just some dumb kid."
There are some interesting legal theories mixed up in there that we have not seen before. I particularly like the idea that infringement is multiplied by the number of followers you have. This would appear to be an entirely novel interpretation (by which I mean "wrong") of 17 USC 504, which has always been clear that the amount of statutory damages paid is per work infringed, not by the number of people who saw the work.
So, what's the point? Why should we care? On Press/Shane is just seeking attribution. It's not like he's sending out settlement letters. Well, for starters, this is not how the system is supposed to work. Those concerned about infringement are directed to Twitter's DMCA form, which to date, On Press has used only once. Apparently, this method is much less satisfying than the instant feedback one gets while hounding Twitter users (even going so far as to follow them to other platforms, as Mike Miche [above] did).
I'm not pissed off that On Press circumvents a system many rights holders find inefficient. I'm pissed off that On Press deceives people about its relationship with a major publisher, using that as leverage to harass users with a variety of baseless threats. It doesn't help that the users receiving the most abuse are teenagers who did nothing more than post a quote they liked, who are then threatened with arrest and lawsuits against their parents in return.
I'm pissed off that On Press is fighting a battle it can't win utilizing bullying tactics. It seems to want respect, but keeps forgetting respect is something you earn -- not something you beat into people. People may start to respect the stick, but they'll never respect the entity wielding it.
Furthermore, if I was a rights holder hoping to protect my creations, I'd be pissed off that someone out there is doing serious damage to copyright itself with a scorched earth policy of baseless threats and vindictive bullying. It makes it that much harder to fight infringement when any existing level of respect has been torn down by another's overly aggressive tactics.
Finally, if I'm Shaun Shane, and I'm not behind this? I'm fucking furious. Any potential legacy or possibility of expanding my audience has been absolutely destroyed by someone who has used my name to harangue internet users across multiple platforms, utilizing angry missives filled with misspellings, deception, baseless legal threats and a very dangerous misunderstanding of IP law in general.
And Shaun, if this is actually you? You're only hurting yourself and your reputation by hammering unwitting Twitter users (among others) for this act of omission. There's nothing wrong with seeking proper attribution. But there are so many methods that work better than this. You can't stop unattributed quotes from flying around the internet. You can't even slow it down.
Do you seriously think anyone's going to Google a tweet to make sure it doesn't belong to someone else before retweeting it? Do you really think people are going to Google "Shaun Shane" unless you bring it up first? Pinterest users, right or wrong, aren't going to do a reverse image search before repinning. Sure, it sucks that stuff strays so far from the original creators, but that's the price you pay for unprecedented access to millions of creative works.
But the benefits outweigh the negatives. Unprecedented access works both ways. You can connect with potential fans and customers in ways that simply weren't possible 10 years ago. If you're only going to see the worst aspects, you'll never be anything more than a set of empty words and threats, spat endlessly into a void, covered in vitriol and self-righteousness. You've crafted a poem with viral possibilities but you're only interested in slamming every door shut as soon as it opens. This final perspective doesn't make me angry. It just makes me sad. There's so much potential but you're too angry to see it. You, and only you, can turn this around.
Additional/supportive links and info.
My Storify account, where I will continue to collect interactions between On Press Inc. and Twitter users.
After figuring out just who she's seeking, Webb rejoins JDate, the Jewish dating site, as a man — creating 10 profiles for men she would want to date, with stock images and character sketches so elaborate you'd think she were outlining a novel. For example, we learn from the spreadsheet she makes for LawMan2346 that he and his younger brother, Mark, "didn't get along great as kids, but they're best friends now. Mark is the total opposite of him — plays sports, drinks beer. Typical man's man kind of guy."
But she's not Catfishing, she's doing opposition research. For a month, she corresponds with 96 female JDaters through these fake profiles, never meeting these women but interacting just enough to collect data (more spreadsheets!) on how they present themselves. Then, she can mimic her competitors and hopefully snag a better catch.
Interesting approach, I guess. Having met my wife through more traditional means at a time when online dating was in its infancy, I can only imagine the difficulty in successfully using those tools today. So, the appeal of "opposition research" and fake accounts for testing certainly must seem appealing. At the very least, it probably makes good fodder for a book... as it obviously did in this case.
But here's the problem. As we've been discussing, under the Computer Fraud and Abuse Act (CFAA), it's possible that she committed multiple felonies, and could face jail time. Now, let's be clear: no one has charged her with this and it's doubtful that anyone will. But in an age where we're finally starting to realize that perhaps we need to change and fix the CFAA, it's helpful to point out examples of how the law could easily be twisted.
You agree to provide accurate, current and complete information about Yourself as prompted by Our registration form ("Registration Data"), and to maintain and update Your information to keep it accurate, current and complete."
In the "Proprietary Rights" section, it notes:
You represent and warrant to Us that the information posted in Your profile, including Your photograph, is posted by You and that You are the exclusive author of Your profile and the exclusive owner of Your photographs. You assign to Us, with full title guarantee, all copyright in Your profile, Your photographs posted, and any additional information sent to Us at any time in connection with Your use of the Service.
In the section "Your use of the service" it notes:
You will not post on the Service, or transmit to other members or to Us or Our employees, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights
And also the following:
You will not harass or impersonate any person or entity. You will not use any manual or automatic device or process to retrieve, index, data mine, or, in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.
Now, you could make a case that in setting up ten completely fake profiles, including stock images, and then data mining the results of the women who communicated with those profiles, that she violated at least some, and possibly all of the clauses called out above.
Courts are not entirely in agreement on this, but certainly some courts have said that violating the terms of service of a website can potentially violate the CFAA (there are other factors that matter too). Even if we just look at the clauses of the CFAA that were used against Aaron Swartz, you could see how some (though not all) might apply to Webb as well. There's (a)(2)(c): intentionally accessing a computer without authorization or exceeding authorized access and thereby obtains information from any protected computer. There's (a)(4): knowingly and with intent to defraud, accessed a protected computer without authorization or by exceeding authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value (as long as the thing of value is more than $5,000). Obviously, much of this is open to interpretation, but would you put it past a federal prosecutor arguing that Webb "knowingly and with intent to defraud" by "exceeding authorized access" obtained information and then obtained something of value more than $5,000? As the book reveals, Webb used these methods to meet her eventual husband. Is a husband something of value worth more than $5,000? Yes, perhaps it's a stretch, but... is it so much of a stretch that you couldn't see someone making the argument?
If you wanted to take it to even more ridiculous and extreme levels, you could argue that her "opposition research" may have enabled her to find a husband faster, thereby "cheating" JDate out of possible profits from keeping her as a paying customer for longer. Again, a long shot, but not a completely implausible reading.
And, again, if we can make the case that the value of the information she obtained by data mining these fake profiles exceeded $5,000 in value, then she has possibly set herself up for felony charges -- with maximum imprisonment of five years.
Would a court ever go that far? Almost certainly not. But given the lack of prosecutorial discretion we've seen in other cases, including many CFAA cases, is that something that really should be left to the prosecutors' and judges' discretion? Hopefully not.
Of course, no reasonable person thinks that Webb should be charged with anything for her activities, and it's not going to happen. But shouldn't we take a seriously look at fixing the law that makes it so that it's even possible she could have faced such charges?
For many years, we've discussed how Europe allows for a "database right" on collections of works, while the US forbids it. The US considers a database right improper, since copyright is not supposed to apply to facts and isn't supposed to be given out solely based on the "sweat of the brow," but rather to incentivize creativity. The Europeans, on the other hand, argued that the labor of putting together a database needed to be protected to create the necessary incentives for a thriving information/database industry. In many ways, this has created a useful natural experiment concerning copyright law and whether or not it actually creates incentives. The data has been overwhelming. Without a database right, the database industry in the US has thrived, while the same market in the EU has stagnated.
And yet, many in Europe (and some in the US) still see good things in such a government granted monopoly. We were just talking about how clinging to this outdated and clearly failed concept was now threatening important moves towards open data.
Thankfully, it appears that at least one European country has realized how damaging such rights are, and is moving in the other direction. The Dutch government, which has a number of politicians who really seem to get this stuff, is apparently trying to "modernize" its copyright law by removing protection for any "non-original" works such as databases. The link from the Future of Copyright site notes that the database right -- called "geschriftenbescherming" -- is being removed, as officials are noting that copyright should be focused on creativity, not merely protecting the upfront investments of publishers and printers:
The modernization of copyright law in the Netherlands will be done in two ways. Firstly, modern copyright will only serve to protect creative performances. Since ‘geschriftenbescherming’ does not cover any creative performance, this will now be removed. Secondly, the Dutch government believes copyright should not inadvertently preclude the creative reuse of existing material or the innovative use of information and easy exchange thereof. The protection of non-original works is often invoked to regulate parallel import instead of merely protecting the publisher’s or printer’s investment. By removing the additional protection under copyright law, the exchange and re-use of these works may be simplified. Also this could remove a legal barrier to the use of open data.
As noted in that last sentence, this story is almost the polar opposite to the one we just had about this same concept being used to hold back open data. This would be a nice step forward for the Dutch, and hopefully other European countries will quickly get with the program as well.
Update: In the comments someone points out that this is related to the EU Court of Justice ruling we wrote about last year, which noted that copyright rights need to include an element of creativity and that you can't just copyright facts.
Update 2: More information from the comments, which argues that, despite great similarities between the database right and geschriftenbescherming, this only impacts the latter not the former. The specific issue appears to be that geschriftenbescherming falls under copyright law and copyright law requires creativity (as noted in the story from last year). Yet database rights, fall under the database directive, and don't require any creativity (which is silly, for reasons we explained earlier). We apologize for any confusion and would like to thank the commenter for adding further details.
A year ago, we had a series of posts concerning attempts in Canada to pass a "lawful access" bill, which is a nice way of saying "a bill to let Canadian law enforcement spy on your digital information." Politicians who supported this, like Public Safety Minister Vic Toews, kicked things off in the most ridiculous of ways, saying that anyone who was against such a bill supported child pornographers. In response, tons of Canadians spoke up, even creating a whole meme in which they revealed random info to Toews. And, of course, when people shared some of Toews' own info, he went ballistic.
Earlier this week, it was announced that the Canadian government has agreed not to move forward with the bill, claiming that they "listened" to the concerns of the public:
We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems. We've listened to the concerns of Canadians who have been very clear on this and responding to that.
This is, undoubtedly, another big win for consumers speaking out when their government tries to put in place something ridiculous. As always, Michael Geist has an excellent analysis of what this all means, including that we should add this to the still small, but rapidly growing list of internet advocacy success stories. But, of course, as with any of these success stories, the story is not actually over. He notes that there are still problems and challenges concerning privacy of info:
Third, even with Bill C-30 dead, there is a problem with the current
system of voluntary disclosure of customer information by ISPs. The
lawful access debate placed the spotlight on the fact that ISPs disclose
customer information tens of thousands of times every year
without court oversight. The law permits these disclosures, but
there are no reporting requirements or accountability mechanisms
built into the process. Those are needed and the government should
move swiftly to add this to the law, either within Bill C-12 (the
PIPEDA reform bill) or Bill C-55, which was introduced yesterday.
Fourth, Bill C-30 may be dead, but lawful access surely is
not. On the same day the government put the bill out its
misery, it introduced Bill C-55 on warrantless wiretapping. Although
the bill is ostensibly a response to last year's R v. Tse
decision from the Supreme Court of Canada, much of the bill is
lifted directly from Bill C-30. Moreover, there will be other
ways to revive the more troublesome Internet surveillance
provisions. Christopher Parsons points
to lawful intercept requirements in the forthcoming spectrum
auction, while many others have discussed
Bill C-12, which includes provisions that encourage personal
information disclosure without court oversight. Of course,
cynics might also point to the 2007
pledge from then-Public Safety Minister Stockwell Day
to not introduce mandatory disclosure of personal information
without a warrant. That position was dropped soon after Peter Van
Loan took over the portfolio.
This is a key point that many people keep trying to drive home. There have been a few very important internet advocacy success stories recently, but these fights don't end when a single bill is killed. Supporters of bad policies are playing the long game -- pushing for these changes in a variety of different places in a variety of different ways over a long period of time. Killing one part is absolutely a victory, but it still requires significant and continued vigilance.
Last summer, Russia passed an internet blacklist bill which required ISPs to censor certain sites. At the time, of course, Russian officials insisted it would be used to "protect the children" from "harmful information," including child porn, suicide instructions, and pro-drug propaganda. They insisted it would not go beyond that. Of course, within weeks, a popular blogging site, LiveJournal, was censored, followed by the Russian equivalent of Wikipedia.
And now they're targeting journalists as well. Access is reporting that added to the blacklist has been a site used by prominent free speech / civil liberties reporters in Russia who have been critical of the government. The government claims (of course) that they put the site on the blacklist due to "child pornography elements," but Access points out that rather than just removing such content, they've blocked access to the entire site, which is notable given the usage by critical reporters.
At least two prominent journalists host their blogs on LJRossia.org: Andrei Malgin, a journalist who has been very critical of the government and hosts a mirror site at LJR, and Vladimir Pribylovsky, who has been targeted for publishing a large database of government misdeeds and for disclosing official documents that expose corruption.
Once you've set up tools that enable censorship, you know they'll eventually be used for censorship.
A lot of people have finally realized that traditional economic measures have all sorts of problems. Things like GDP mismeasure a ton of things, and by presenting an aggregate set of data, often obscure lots of issues. Also, things like GDP don't handle disruption very well. I've discussed in the past how you could argue that, purely on a GDP basis, something like Craigslist has been horrible. It effectively undercut newspaper classifieds, which was a multi-billion dollar business, and turned it into a much smaller business. If you measured such things purely by GDP, you'd say that it was bad. But, of course, Craigslist also created tons of value, enabling people to make transactions that couldn't have been made before, while also allowing other transactions to be made more efficiently and with less friction. Much of that will never show up in GDP, even if, intrinsically, most people recognize that something like Craigslist provided a lot more value to the world than it took away.
In trying to deal with that, we've started to see new forms of economic measurements pop up. One popular one is "happiness." There's even been some talk about using "Gross National Happiness" as a key economic measure. There's a great book from a couple of years ago by Nobel-prize winning economist Joseph Stiglitz, with Amartya Sen and Jean-Paul Fitoussi, called Mismeasuring Our Lives: Why GDP Doesn't Add Up. It was actually the result of a request from then French President Nicolas Sarkozy to explore how useful (or not) GDP was, including looking into alternate measurements, such as this idea of Gross National Happiness. If you haven't read the book, I highly recommend it.
But once you get into the details, there's a lot of debate over the happiness data. One big divide: Should you ask people how they're feeling right now, or how they feel about their life in general?
You get different answers depending on what you ask. Which one is more important is a squishy, philosophical question.
The difference between asking about "right now" or "their life in general" can be massive. It shows up clearly in the data about how happy parents are vs. non-parents. There are tons of studies that suggest parents are miserable compared to non-parents. But nearly all of those studies are based on questions about "how happy are you now" type questions. Not surprisingly, the parent changing a diaper is probably going to report slightly less current happiness compared to the non-parent who's out at the bar with some friends, for example. But... it's not that simple. When other studies are done that ask parents and non-parents about how happy their overall lives are or how fulfilled their lives are, parents frequently report much higher feelings of fulfillment/happiness on a grand scale, while non-parents often report more regret. In other words: time frame makes a huge difference.
Of course, as the Planet Money report points out, just because something is difficult to measure, or involves highly subjective concepts, doesn't mean it can't be done. For example, unemployment data. You might think that this involves a nice, simple objective question, but when you look at the details, it's actually pretty subjective as well.
In the U.S, in order to be counted as unemployed, you have to be out of a job and looking for work. But what counts as looking for work? Checking Craigslist? Sending out three resumes a week? Five?
"It's actually kind of a hard question," says Justin Wolfers, an economist at the University of Michigan. "It's very subjective."
Yet every month, a single unemployment number is released.
So, you could see why a "Happiness Index" might be a compelling bit of economic data -- especially if you believe (as I do) that GDP is misleading. After all, if people are happier, isn't that a pretty important thing? Well, yes and no. Even as I find the topic interesting, I also worry a lot about the embrace of "Happiness" as an economic measure beyond the reasons laid out in the Planet Money report. Yes, it's difficult to calculate, but perhaps you can get past that so long as the calculation is done the same way over time. The real problem, for me, is that when you choose to make something a key economic number like that, you are guaranteed to start optimizing for it. That's what happens when you create metrics. Whether they're important or not, whether they're accurate or not, once you have a number, you naturally try to optimize for it.
It shouldn't be difficult, then, to quickly come up with scenarios for why a National Happiness Index could create significant problems as people optimize for it. First off, you encourage the kinds of short-term rewards that lead people to say they're happier, even if that creates massive costs down the road. Want to see governments leverage the present and put the costs on the future? Start using a happiness index. Second, if the focus is on maximizing present-day happiness, then you just focus on drugging the population. Yes, that's an extreme example, but hopefully it gets the point across. In economics, you need to measure the costs and benefits to things. You can "maximize happiness" in all sorts of ways if you ignore the costs to it. Put happy drugs in the water, and let everyone be thrilled. The Happiness index fails to take into account all of the consequences of doing something like that.
So while it's encouraging to see more of an exploration into alternative metrics, and getting beyond some of the older metrics that clearly "mismeasure" important aspects of our lives, we need to be careful to not just leap to the "next great thing" without realizing that it, too, likely has downsides.