Smartphones have some big advantages: they offer considerable computing power in a highly-portable form, and are available at prices that allow a broad spectrum of users to get online easily. But as we reported last year, there's a big downside, too, one that's all-the-more dangerous for being invisible to most people: overblocking of sites caused by opt-out "child protection filters" applied by some mobile operators to their Internet feed.

Here's yet another worrying example of that problem, this time involving the UK operator 3UK, pointed out by Nick Rothwell. Pride's Purge is a Web site described by its creator Tom Pride as "an irreverent look at UK politics". As he recently discovered, it's also blocked by 3UK's child protection filter. He contacted the company on Twitter, pointing out that Pride's Purge was not a porn site or anything similar, and this is what it replied:

We don't just block adult websites, websites with mature content may also be censored.

So it now seems that there is a category of material called "mature content" that is distinct from "adult content", and that is also blocked by child protection filters, at least on 3UK's network. Worryingly, political satire seems to be regarded as an example of "mature content", and therefore unsuitable for children under 18. In fact, the censorship is even worse, as Pride explains:

it's not blocked for just the under-18s. It's blocked for anyone who hasn't proven to [3UK] they are over 18 -- and that means you will have to give your full identity to 3UK before they allow you to enter this site.

Which means 3UK now officially regard political satire as porn -- and are censoring it in exactly the same way.

This very broad, default censorship is disturbing for at least two reasons. First, because many people will be unaware that this kind of "mature content" censorship is taking place at all, and therefore won't ask for it to be stopped. And secondly, even if they are aware, the fact that asking for the filter to be lifted could be seen as tantamount to wanting to access porn -- something that many will understandably be reluctant to have noted down on their Internet access record -- means that they will simply put up with a limited feed. And so the creeping, silent censorship of the mobile Internet not only continues, but probably gets worse in the absence of any significant pushback against it.

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Ah, whatever happened to good, old fashioned, fact checking. It was just a few weeks ago that many people were writing about how the press had been confused by data claiming a massive drop in Instagram users following its terms of service kerfuffle. Of course, it later came out that the data from Appdata, was suspect, as it only looked at Instagram usage on Facebook, despite the fact that most Instagram usage is done directly through its app on mobile phones. So here we are a few weeks later... and a bunch of news sources, including Wired, are reporting that Instagram has lost half of its daily users. This is based on data from a different organization, AppStats, but appear to suffer from the exact same flaw: it only looks at app usage on Facebook, which is a minority of Instagram usage. There may or may not be trouble with Instagram usage, but shouldn't the press by now be at least a little skeptical of claims based on dodgy data?

The topic of death and suicide has been floating around the media lately -- from the gun control proposals to try to prevent future school shootings to the prominent suicide of internet activist, Aaron Swartz. So to fight some of these negative thoughts, here are just a few articles on happiness.

• Gallup polls say that American happiness levels are at four-year highs, but at the same time, 40% of Americans have not (yet) found a satisfying life purpose. Happiness can be elusive, and perhaps striving for a meaningful life, instead of a happy one, will have better outcomes. [url]
• There are so many books on happiness, and how to achieve it... and happiness itself isn't a single thing. Good-day happiness, good-life happiness and peak happiness are just three examples of different kinds of happiness (and there are probably more). [url]
• Money can't buy happiness, but it certainly correlates pretty well. Having more money not only seems to correlate with higher levels of satisfaction, but people who are happy also seem to earn more money. [url]

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

The Beatles remain the iconic pop group, so news on VVN/Music that their very first single has now entered the public domain is something of a landmark moment in music:

The Beatles first single, Love Me Do / P.S. I Love You, has entered the public domain in Europe and small labels are already taking advantage of the situation.

The European copyright laws grant ownership of a recorded track for fifty years, which Love Me Do just passed. That means that, starting January 1 of 2013, anyone who wants to put out the track is free to do so.

Unfortunately, if you're in the US, you'll probably have to wait until 2049 or so. And things are about to get worse in Europe too. As Techdirt reported, back in 2011 the European Union agreed to increase the copyright term for sound recordings by 20 years, despite the absence of any economic justification for this theft from the public domain (yes, this is theft, because it's taking something away that people had.)

Once the relevant legislation is passed around Europe, that means that most of the later Beatles singles -- and many other famous pop music hits from the 1960s -- won't be in the public domain there until the 2030s, rather than in the next few years. It's not yet clear whether the new 70-year term will be applied retroactively to works that have already entered the public domain, so Europeans may want to enjoy their right to distribute free copies of "Love Me Do / P.S. I Love You" recordings legally while they can....

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Realizing that the longer it did nothing, the worse it looked, CNET itself has finally reported on the events that transpired last week when corporate boss CBS stepped into the middle of their editorial process and sought to deny CNET the ability to choose the product they thought was the best of CES, the Dish DVR with Hopper and Sling.

After the vote, we communicated the winners, as we always do, through normal channels. CNET immediately got down to the business of preparing for a massive stage show the following morning and preparing a press release.

Later that evening, we were alerted to the legal conflict for CBS. All night and through to morning, my managers up and down CNET and I fought for two things: To honor the original vote and -- when it became clear that CBS Corporate did not accept that answer -- to issue a transparent statement regarding the original vote.

Ultimately, we were told that we must use the official statement and that we must follow corporate policy to defer all press requests to corporate communications.

Of course, this is only coming out well after tons of other sources had reported on this -- and upstart competitor the Verge had already broken the story about how CBS didn't just tell CNET not to vote on the Dish device, but made them rescind the award that had already been chosen.

The CNET post, by reviews Editor in Chief Lindsey Turrentine, suggests that most of the staff had no idea that CBS was in litigation with Dish and they were just doing what they were supposed to do. She also pushes back against the idea that she should resign:

We were in an impossible situation as journalists. The conflict of interest was real -- a legal case can impact the bottom line of our company and introduce the possibility of bias -- but the circumstances demanded more transparency and not hurried policy.

I could have quit right then. Maybe I should have. I decided that the best thing for my team was to get through the day as best we could and to fight the fight from the other side. Every single member of the CNET Reviews team is a dedicated, ethical, passionate technology critic. If I abandoned them now, I would be abandoning the ship.

The thing is, if she had quit, I would bet that many on her team would not have seen it as being abandoned, but actually as real leadership of someone supporting their editorial independence.

She then goes on to insist that she'll fight to make sure this doesn't happen again -- but that seems difficult to believe since earlier in the existing story it suggests that she and others gave up the fight when CBS told them what they had to do:

If I had to face this dilemma again, I would not quit. I stand by my team and the years of work they have put into making CNET what it is. But I wish I could have overridden the decision not to reveal that Dish had won the vote in the trailer. For that I apologize to my staff and to CNET readers.

The one thing I want to clearly communicate to my team and to everyone at CNET and beyond is this: CNET does excellent work. Its family of writers is unbiased, focused, bright, and true. CNET will continue to do excellent good work. Of that I am certain. Going forward, I will do everything within my power to prevent this situation from happening again.

Of course, the decision to quit is one that every individual has to make themselves. But completely taking it out of the realm of possibility gives CBS the easy power to do this again and again and again. She's signalling to CBS that it can continue to walk over CNET's editorial independence, and while the editor-in-chief may protest loudly, in the end, she won't leave. That's only going to add to the cloud over CNET's reviews going forward.

Back in 2011, we wrote about New Zealand's rush to put in place a three strikes law that involved punishment for people accused -- not convicted -- of copyright infringement online. Having gone into effect, it looks like the Copyright Tribunal set up to deal with such cases is now about to have its first hearing concerning someone who got a third strike. As the report notes, the big labels, represented by RIANZ (the New Zealand version of the RIAA -- representing the same labels), has sought action against 17 people who got three strikes. Six cases were dropped (reason unknown, but probably because they paid large sums of money to RIANZ -- or because RIANZ realized they were about to be completely embarrassed by someone who had done nothing wrong.), and another 10 sought to have the Tribunal make its decision based on written submissions alone. Only one person sought to have a full hearing which is getting underway soon.

Unlike the US's six strikes effort, the NZ one is a lot more draconian, with significant fines likely, even in cases of incidental and minimal sharing:

The tribunal can make awards of up to $15,000 against pirates, and Rianz had sought awards of several thousand dollars in at least two of the dropped cases.

In one, Rianz sought about $2700 from a Wellington student whose internet account was allegedly used without her knowledge to download five songs valued at $11.75. That case also seemed destined for a formal hearing.

Yes, RIAA/RIANZ, that's exactly how to rally the public to your cause. Demand $2,700 for someone who had an internet account on which someone else downloaded $11.75 worth of songs. And you wonder why people think all of these "piracy" efforts are insane... Here's a tip to the RIAA/MPAA and all related groups: if you want to be taken more seriously, stop attacking your fans and try to figure out how to better serve them.

The reactions to Aaron Swartz's suicide continue to pour in and the recurring theme is one of disbelief at the government's hard nosed prosecutorial stance towards Swartz's actions. The Secret Service, for unknown reasons, took over the case and the prosecutor insisted on a guilty plea across the board as well as pretty much guaranteeing jail time for the hacker.

Tim Wu's excellent editorial details how the justice system made a mockery of that first word by relentlessly applying pressure to a young man whose "crime" was truly victimless.

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

This fact cannot be overstated. JSTOR itself declined to press charges against Swartz once its "property" was recovered. But this wasn't good enough for the federal prosecutor who took an outdated law and applied the interpretation that would do the most damage.

In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

Wu says this targeting cut down a genius in his prime -- a curious and impulsive young man whose actions were actually less illegal than those of two computing pioneers, Steve Jobs and Steve Wozniak, who hacked AT&T's system for free long distance calls and sold "blue boxes" so others could do the same. They were never prosecuted for their actions and went on to found Apple -- something a prosecutor like Ortiz could have made impossible.

"We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed," Wu says. And why? Because an adversarial, zealous prosecutor put in charge of the right case can wreak an incredible amount of havoc in pursuit of "justice."

Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.

Between the system of IP laws that awards fees for imaginary damages and a government that views any information leaks as criminal activity, Swartz never had a chance -- and sadly, unless there are major changes in the system, neither will his successors.

In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life. Swartz was a passionate eccentric who could have been one of the great innovators and creators of our future. Now we will never know.

An effort to increase public knowledge, with no profit motive, as misguided and rash as it may have been, was rewarded with an intense crackdown, even after the "victim" had stated it was satisfied with the outcome. No matter your view on intellectual property, it should never have come to this. Swartz brazenly exploited loopholes to liberate documents he felt should have been public domain in the first place, much as he legally exploited free usage of the PACER system earlier.

It's very tempting to couch this discussion in language that pays its due to "rights holders." Swartz somehow needed to be punished for his deeds, even with some sort of slap on the wrist, because it was legally or morally wrong. MIT was abused. JSTOR was abused. The IP system -- the status quo -- was abused by Swartz's actions. That's the way we're programmed to feel. That no matter the overreaction, we need to give some quarter to the reacting parties. But when it comes to this situation, it feels completely wrong.

Wu's take shows just how dangerous this form of dues-paying is -- grant the system a little token respect before heading off into the "but" section of the argument and you've already justified a reaction. If the reaction seems too harsh, it's too late. You've already implicitly granted the system the right to punish perceived wrongs, something it often handles with ineptness or vindictiveness, and in worst case scenarios, large quantities of both.

The system has little use for rebels, innovators, and the internet-native element that threatens cherished IP institutions. It wasn't pleased with Swartz and the best way to discourage more Swartzes from leaping into action was to lock up the original, or bleed him dry with an extended legal battle. It ended up with nothing. Or rather, it ended up creating a martyr and rekindling a movement -- "nothing" would have been better. There will be more like him and, if the system remains unchanged, they will have their futures extinguished as soon as their actions put them in the firing line. The protected works are quantifiable. The extinguished possibilities verge on endless. 

There's been an uproar about The Atlantic's decision yesterday to run sponsored content from Scientology, which consisted of a pretty poorly done advertorial about Scientology's "successes" in the past year. The comments on the piece included a bunch of "wow this is just awesome!" type comments that suggest both moderation and pre-planned comments from supporters. After widespread outcry about The Atlantic going in such a direction, the piece was pulled. Recently, there's also been similar (though slightly different) "sponsored" posts on Buzzfeed, in which staff plaster some company's name over a "top 10" or "top 15" list that they slap together -- often by pulling images from other sources (Reddit is a popular one), without making much effort to credit whoever came up with the content. There's even been a fair bit of controversy over the Associated Press' recent decision to allow sponsored tweets from Samsung during CES.

All of these seem like examples of doing "sponsored content" badly -- just as more and more publications are getting into sponsored content. While it's good to see publications taking some risks and trying something new, the downside is that it has the potential to completely scare off companies from doing any forms of sponsored content, even when it can be done much better. For many, many years, we've talked about how how content is advertising and advertising is content, and those who get it right are going to go far. The problem is that it's tough to get right -- often because the marketers themselves are so focused on old school "advertising" in which they have to keep pushing their message and their message alone, they miss out on the fact that this backfires in a big bad way every single time.

There's been a lot of talk lately about "native advertising" -- which is the buzzphrase around this kind of content these days. Many point out that "advertorial" is nothing new, and that's accurate, but true native content is something different. For years, when we've talked about these concepts, everyone has complained about said "advertorial", suggesting that it's annoying or misleading -- and that's been the problem with the examples above. But, when done right, it doesn't need to be either annoying or misleading. And we need to get to that point. Five years ago we put forth some basic concepts for why the world needed to move towards this model, and I still think they hold true today:

1. The captive audience is dead. There is no captive audience online. Everyone surfing the web has billions of choices on what they can be viewing, and they don't want to be viewing intrusive and annoying ads. They'll either ignore them, block them or go elsewhere.
2. Advertising is content. You can't think of ads as separate things any more. Without a captive audience, there's no such thing as "advertising" any more. It's just content. And it needs to be good/interesting/relevant content if you want to get anyone to pay attention to it.
3. Content is advertising. Might sound like a repeat of the point above, and in some ways it is -- but it's highlighting the flip side. Any content is advertising. It's advertising something. Techdirt content "advertises" our business even if you don't realize it. Every bit of content advertises something, whether on purpose or not.
4. Content needs to be useful/engaging/interesting. This simply ties all of that together. If you want anyone to pay attention to your content (which is advertising something, whether on purpose or not) it needs to be compelling and engaging.

The problem is that many marketers (and many publications) seem to really miss out on that last point. The content -- whether it's advertising, native content, advertorial or whatever -- needs to be useful/engaging/interesting. The Scientology advertorial and the AP sponsored tweets really fell down on that point. The Buzzfeed content at least got much of that aspect correct, but fell down on the kinds of things that often piss people off: poorly attributed copied content. There's no reason why Buzzfeed couldn't have done such a collection with proper attribution and most of the controversy would have been avoided.

And that's the real point here: it is possible to do "sponsored content" in a compelling way. I still like to point to the example that we did a few years back with UPS sponsoring us to do some videos about the topics we already talk about, leading to things like the following video about the economics of abundance: When we posted that we were actually surprised (but thrilled) to find out that many in our community were happy to see projects like that move forward. That was because it was about creating useful and engaging content that wasn't misleading or just pure propaganda.

The world will get there eventually, but it's an ongoing struggle to get both publications and marketers to realize that "native advertising" isn't native if the content sucks and no one wants to see it (especially if it's pure propaganda, or otherwise enrages people). Some continue to insist that any and all such sponsored content is, by definition, problematic, but I don't think it needs to be. It's just that we need to get people in marketing firms and at publications to move past such a view of native advertising. The Atlantic should have known ahead of time how people would react. Buzzfeed should have made sure its content didn't set off a firestorm. And the companies paying for such ads should also learn that if they're just creating annoying content, it's not helping anyone, least of all themselves.

Here they go again. Every year or so we end up writing about the FBI's desire for better wiretapping capabilities for new technologies, such as Skype. Basically, the FBI argues that because "bad guys" might use those tools to communicate in secret, they need backdoors to make sure that they can keep tabs on the bad guys.

But they're forgetting something: the FBI isn't necessarily the only one who will get access to those backdoors. In fact, by requiring backdoors to enable surveillance on all sorts of systems, the FBI is almost guaranteeing that the bad guys will use those backdoors for their own nefarious purposes. It's not security, it's anti-security.

This is why claims by the feds that we need cybersecurity legislation, like CISPA or the Cybersecurity Act, ring hollow. If they really wanted more protected networks, they wouldn't keep asking for specific security holes to be explicitly added to those networks.

Two decades ago, the FBI complained it was having trouble tapping the then-latest cellphones and digital telephone switches. After extensive FBI lobbying, Congress passed the Communications Assistance for Law Enforcement Act (CALEA) in 1994, mandating that all telephone switches include FBI-approved wiretapping capabilities.

CALEA was justifiably controversial, not least because its requirement for “backdoors” across our communications infrastructure seemed like a security nightmare: How could we keep criminals and foreign spies from exploiting weaknesses in the new wiretapping features? Would we even be able to detect them when they did?

Those fears were soon borne out. In 2004, a mysterious someone — the case was never solved — hacked the wiretap backdoors of a Greek cellular switch to listen in on senior government officials … including the prime minister.

Think this could only happen abroad? Some years ago, the U.S. National Security Agency discovered that every telephone switch for sale to the Department of Defense had security vulnerabilities in their mandated wiretap implementations. Every. Single. One.

Somehow, the FBI always thinks that if there are backdoors, only it will use them. That is extreme wishful thinking.

Among the many injustices in the Justice Department's pursuit of Aaron Swartz was the disproportionate punishment he was facing. Remember that he used an open network connection at MIT, which explicitly allowed free guest access, to download academic research papers that were available for free for any user on that particular network. And yet, due to the US Attorney's Office led by Carmen Ortiz and Steve Heymann piling on additional charges, Swartz was potentially facing 50 years in prison.

Yes, reports claimed that Heymann offered to plea bargain things down to a mere 7 years in prison, but that's still an insane length, and by rejecting such a plea offer, Swartz guaranteed that Heymann was likely to throw the book at him and seek the maximum. That's how they work.

Over at ThinkProgress, Ian Millhiser, looks at the maximum jail terms for other crimes, and wonders how it's possible that Swartz had the potential to spend even more years in jail. It's quite a list, and you should go check out the full thing, but here are a few of the more interesting ones:

• Manslaughter: Federal law provides that someone who kills another human being “[u]pon a sudden quarrel or heat of passion” faces a maximum of 10 years in prison if subject to federal jurisdiction. The lesser crime of involuntary manslaughter carries a maximum sentence of only six years.
• Bank Robbery: A person who “by force and violence, or by intimidation” robs a bank faces a maximum prison sentence of 20 years. If the criminal “assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device,” this sentence is upped to a maximum of 25 years.
• Selling Child Pornography: The maximum prison sentence for a first-time offender who “knowingly sells or possesses with intent to sell” child pornography in interstate commerce is 20 years. Significantly, the only way to produce child porn is to sexually molest a child, which means that such a criminal is literally profiting off of child rape or sexual abuse.
• Knowingly Spreading AIDS: A person who “after testing positive for the Human Immunodeficiency Virus (HIV) and receiving actual notice of that fact, knowingly donates or sells, or knowingly attempts to donate or sell, blood, semen, tissues, organs, or other bodily fluids for use by another, except as determined necessary for medical research or testing” faces a maximum of 10 years in prison.
• Selling Slaves: Under federal law, a person who willfully sells another person “into any condition of involuntary servitude” faces a maximum prison sentence of 20 years, although the penalty can be much higher if the slaver’s actions involve kidnapping, sexual abuse or an attempt to kill.
• Helping al-Qaeda Develop A Nuclear Weapon: A person who “willfully participates in or knowingly provides material support or resources . . . to a nuclear weapons program or other weapons of mass destruction program of a foreign terrorist power, or attempts or conspires to do so, shall be imprisoned for not more than 20 years.”
• Violence At International Airports: Someone who uses a weapon to “perform[] an act of violence against a person at an airport serving international civil aviation that causes or is likely to cause serious bodily injury” faces a maximum prison sentence of 20 years if their actions do not result in a death.

And Aaron faced more than any of those for accessing freely available knowledge. Something seems very, very, very wrong about that.

Ah, Hollywood copyright math. In the past, we've discussed a few instances of how massively profitable films use funny accounting tricks in order to avoid ever having to show an official profit, even as the studios themselves make out nicely. The key trick: the studios set up special subsidiaries just for each film, and then charge those subsidiaries huge sums of money for effectively doing very little. Thus, the studio gets all the money, but the actual "film" is shown as remaining in the red.

The latest example of this in action involves a group of investors who gave $375 million to Paramount Pictures expecting to see some return on blockbusters like Mission: Impossible III, Blades of Glory and the Transformers series. All in all, those $375 million dollars found their way into 29 movies, many of which were massively successful. In total, the collection of films brought in $7 billion dollars worldwide. And... Paramount didn't pay a single dime out to those investors, until they were finally taken to court.

The financiers charged Paramount with understating gross receipts, delaying payments, overstating production and distribution costs and hindering audit rights to verify revenue and costs with the films that Melrose II had funded. The plaintiff also had a bone to pick with how revenue from Melrose II-funded films was being received through Paramount parent Viacom, not Paramount, and how money was flowing. For instance, Paramount allegedly paid sister company MTV as a third-party participant for Nacho Libre and Charlotte's Web.

In reaction to the claims, Paramount initially described the lawsuit as "filled with hyperbole" and claimed that it "ignores the true facts."

Later, Paramount characterized the investors as being impatient. "Based on the performance of the films in which it invested, Melrose II is expected to make a double-digit return on its investment," the studio alleged.

Perhaps hoping to keep the mysteries of Hollywood accounting secret, Paramount has now worked out a "settlement" with the investors, just as hearings were about to begin. It seems likely that Paramount coughed up some money to keep the investors happy... and to keep from having to provide to the court information on how the money flowed, where all of us would have seen some more details of the infamous Hollywood accounting practices.

Last week, after the news came out that CBS had censored its subsidiary CNET, barring reporters there from reviewing Dish products (or any product of any company in litigation with CBS) or from awarding them the "best of CES" award that CNET reporters had already voted on, we wrote a post pointing out how this was dumb for a variety of reasons, mainly focused on the harm it did to CNET's credibility. Indeed, as noted, one of CNET's star reporters, Greg Sandoval, has already resigned. However, it turns out that it may have been even more stupid than originally suspected. In fact, it may undermine another important lawsuit filed by CBS.

We've written in the past a few times about Alki David's crusade against CBS, in which he sued the company, pushing a conspiracy theory about how CBS only went after his company FilmOn (the name of which was later changed, for pure publicity reasons, to AereoKiller) because it wanted to be the only one to profit from infringement. The argument was that because CNET was owned by CBS, and because CNET site Download.com had offered up software like Limewire, combined with CNET reviewers reviewing Limewire, it meant that CBS itself was guilty of infringement.

This was a silly legal theory, built more out of spite to annoy CBS. Unfortunately, since it was first brought up, we've seen many people passing it along (especially one particular YouTube video that calls out this "conspiracy theory" as fact, without any basis). However, knowing how independent CNET was from CBS, it always seemed like a particularly silly accusation, and the first version of the lawsuit didn't go very far, though a refiled version has done slightly better.

However, now that CBS has decided to rush headlong through that wall of editorial independence it may have totally undermined its own case. That's because, in responding to the case, CBS, in part, made the argument that a finding against it might chill free speech by encroaching on the editorial independence of CNET.

Except... in making this latest move, CBS is now making the argument that it has no problem butting in on CNET's editorial independence (or any CBS Interactive property), which may take away a key argument it has against secondary liability for any articles about infringement. Knowing the way Alki David has acted in the past, I'd be surprised if he didn't rush to use this in the ongoing case.

We've discussed a few times now how Megaupload is arguing that key elements in the warrant used to criminally charge the company and its principles were misleading to the court. In particular, Megaupload has pointed out that part of the "evidence" for criminal conspiracy was that Megaupload knew about infringing activity on the site, but chose not to do anything about it. However, as Megaupload made clear in its filing, the reason it knew about it was because it was informed that the content was subject to a federal investigation, and that the "evidence" needed to be preserved. As we detailed in our last post on the subject, the DOJ went straight to Megaupload's hosting partner, Carpathia, to let them know about this. Carpathia pleaded with the DOJ to talk directly to Megaupload (after receiving assurances that Megaupload was not the target), but the DOJ rejected that request.

However, since this was evidence of potentially criminal activity, Carpathia told Megaupload about it, implying that the DOJ was making it clear that Megaupload should not delete the files.

Notably, the Government avoided communicating with Megaupload directly, instead deputizing Carpathia to do so on its behalf. (See June 25, 2010 email from Phil Hedlund to Mathias Ortmann and Kim Dotcom, Ex. 1 ("Please know that we attempted to convince the Government to work directly with Mega on this matter, but given the complex jurisdictional issues, they have been unwilling").) Far from warning Megaupload that the Government considered it to be part of a worldwide criminal organization, which the Government even at the time was terming the "Mega Conspiracy," the Government, through its anointed agent Carpathia, represented to Megaupload that "[w]e have no reason to believe the [sic] MegaUpload is the target of the investigation."

Megaupload cooperated with the Government and voluntarily arranged with Carpathia to supply the Government with the files identified in the sealed warrant. In accordance with the Government's express admonitions--as conveyed to Megaupload through the sealing order and Carpathia's instructions--Megaupload avoided signaling that anything was afoot or otherwise compromising the investigation, preserving the files in their original condition without alerting users or the public that anything had changed. At no time did the Government or Carpathia indicate that Megaupload could or should remove the files identified in the warrant from its cloud storage platform without compromising the stated secrecy of the investigation, much less did they suggest that Megaupload was legally obliged to do so lest it be complicit in an ongoing criminal conspiracy.

The DOJ has now responded to these claims, and it's done so in its typically misleading fashion. For example, it insists that Megaupload is misleading in its own filing, because the DOJ never directly spoke to Megaupload. They leave out the whole part about the DOJ talking to Carpathia, who had to talk to Megaupload if it wanted to preserve the evidence in question without risk of it being deleted. But, no, in the DOJ's version, this is all just Megaupload fantasy talk.

Megaupload's pleading and the search warrant materials at issue disproves the allegation that the government misled the court as part of a conspiracy to entrap Megaupload. For instance, Megaupload alleges that the government "affirmatively [led]" Megaupload to retain certain files on its servers.... Yet Megaupload does not cite a single communication between the government and Megaupload or a single instruction from any member of the government to Megaupload; there are none.

Notice the lack of any mention of the Carpathia communications between the DOJ and Carpathia, or between Carpathia and Megaupload. That seems like relevant info that the DOJ conveniently just skips right over.

Is this really the best argument that the DOJ can put forth? The filing also does highlight that the DOJ made other arguments against Megaupload in its filings -- which is true -- but it doesn't mean that the questionable aspects concerning some of the key claims should simply be ignored, as the DOJ would prefer.

Back in the fall, we worried about proposed legislation in California designed to deal with "sex offenders" online. As we noted, the bill would almost inevitably pass -- as it did -- because most people think that increased punishment for sex offenders makes sense. But there are serious issues with the bill if you don't know the details. First, many "sex offenders" aren't what you might think of as "sex offenders" -- people who are arrested for things like urinating in public, or for consensual sex between minors. Beyond that, this particular bill went really, really far, requiring all such "offenders" to hand over all details of every online service they used -- no matter what the purpose. As the EFF noted at the time, this could have tremendous chilling effects on speech:

Proposition 35 would force individuals to provide law enforcement with information about online accounts that are wholly unrelated to criminal activity – such as political discussion groups, book review sites, or blogs. In today's online world, users may set up accounts on websites to communicate with family members, discuss medical conditions, participate in political advocacy, or even listen to Internet radio. An individual on the registered sex offender list would be forced to report each of these accounts to law enforcement within 24 hours of setting it up – or find themselves in jail. This will have a powerful chilling effect on free speech rights of tens of thousands of Californians.

Basically, no more anonymity, if you happen to be on the list.

This seemed way over-broad, but it still passed with 81% of the public vote. The EFF and the ACLU quickly got a temporary injunction. Thankfully, now, the judge has gone slightly further with a preliminary injunction, noting that it clearly goes way too far, and suggesting that the bill is unlikely to be found Constitutional:

The challenged provisions have some nexus with the government's legitimate purpose of combating online sex offenses and human trafficking, but the government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.

Stopping sex offenders is a noble and worthy goal. But willy nilly removal of anonymity across the board, with no exploration into the reasonableness of the situation, or the actual offense, goes way too far in taking away someone's rights, while doing little to nothing to actually keep anyone protected.