As we recently discussed, the world is seeing what amounts to a global clamp down on internet freedom, spurred in part (but not entirely) by the various revolutions that have occurred in the Arab World over the past several years. Having said that, not all restrictive censoring governments are created equal. While we in the West have our censors and internet detractors too, one need only look at what is occurring in China, Thailand, or Saudi Arabia for that matter to see how fearful some governments are of an internet in which free ideas are exchanged.

So let's go ahead and add the United Arab Emirates to that list as well, as they enact new laws designed to prevent critics of their President (don't be fooled, this is a monarchy), assembly of protest, and a host of other freedoms.

The decree outlines new protections for the state and its rulers, effectively turning online criticism into an offense punishable by years of jail time, or deportation for foreign nationals. The decree “stipulates penalties of imprisonment on any person publishing any information, news, caricatures or any other kind of pictures that would pose threats to the security of the state and to its highest interests or violate its public order,” according to WAM.

Classic authoritarian move. This is somewhat similar to what we've seen in China, as well, and I imagine it will work nearly as well (meaning in large part it won't). That said, there's been a demonstrably different reaction, or at least a difference in the scope of the reaction, in the Arab world. Perhaps that is why, while China has maintained its Great Firewall all this time without massive violent backlash, the Arab World certainly cannot claim the same. Obviously the Arab Spring was about much, much more than laws governing the internet, but those draconian laws are certainly a symptom of the greater disallusionment. While I understand the fear these monarchs have of the internet, there's no denying they are afraid.

Lately, there are signs of trouble all across the Arabian Peninsula. The implementation of strict new rules, like UAE’s new internet clampdown, shows that the monarchies are not blind to the simmering dissent around them. Nowhere is this clearer than in Bahrain, a constitutional monarchy that saw the largest unsuccessful protest on the peninsula last year. Saudi troops helped to quash those demonstrations, but the underlying problem -- a lack of fair political representation -- has not been addressed.

I would suggest that you're going to see more revolution in the Middle East as the curtailing of freedom out of fear by governments, such as the UAE's new internet law, continues. When you fear people who are angry about the government not representing them, further silencing those people will only further incense them. Thus far, some of these oil-rich monarchs have survived, occasionally propped up by the West. Fortunately, as the dependency by the West, particularly America, on Middle East oil continues to drop, there will be less reason to help these governments resist their own people.

When people talk about colorful language, they're usually referring to foul language. But more literally, words for colors in our language(s) can affect how we perceive and react to colors. The word for blue is particularly interesting due to its surprisingly infrequent use in older texts. Here are just a few links relating colors and words.

• Different languages describe colors in ways that sometimes can't be translated exactly, and these linguistic definitions can affect how people perceive colors. The Russian language has very specific words for different shades of "blue" (and no term for "blue" in general), and Russians have distinctly different reactions to blue than English speakers do. [url]
• A color-coded analysis of various English texts according to word origins can show some interesting patterns that could be unique to certain genres of writing. British literature has more words from Anglo-Saxon origins, but other kinds of writing has different mixtures... if only spam were easily identified by this kind of analysis. [url]
• Ancient greeks wouldn't have described the sky as blue.... Homer did not use "blue" at all, and maybe Greeks didn't see colors the same way we do today. But other ancient civilizations didn't use blue in their written languages, either. [url]

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

Chicago city hall officials are in a bit of trouble for recording phone conversations with Chicago Tribune reporters without their consent. A city attorney is downplaying the incidents, insisting that there's no "widespread practice of such tapings" and promising that "steps are being taken" to prevent this from happening again.

Why is this a big deal? Because recording a conversation without the consent of all parties is a felony in Illinois. But what happens when city hall officials, who should be familiar with these laws, violate them? Not much. Chicago Mayor Rahm Emanuel's response is that committing a felony is nothing to get excited about.

Asked about the recordings at an unrelated news conference Monday, Mayor Rahm Emanuel said the issue was “much ado about nothing.”

“My view is, like all, we have a press conference here, I expect my staff to have a record of it,” he said. “And if I have a phone conversation, an interview, I expect to have a record of it as well.”

But the commission of a felony is a very big deal if committed by regular citizens. Radley Balko says it's all about who's doing the recording... and who they're recording. 

So remember when Chicago police were arresting people for recording them, and charging them with crimes punishable by 10 or more years in prison? Remember the woman who was arrested and charged because she attempted to record Chicago PD internal affairs police browbeating her when she tried to report a sexual assault by a Chicago cop? Remember all that stuff we heard from Chicago PD and Cook County DA Anita Alvarez’s office about protecting privacy?

That's not an isolated event. Earlier this year, two men filed a lawsuit against the city of Chicago, alleging they were battered, strip-searched and falsely charged after filming a traffic accident caused by a police car. Late last year, a man was arrested for recording the police and charged with illegal eavesdropping and is now facing a sentence of up to 75 years in prison. Another man was arrested and told he was facing 15 years in prison for daring to record a traffic stop.

The good news is that the courts have rejected some of these cases, stating that the law these citizens were arrested for breaking may be unconstitutional. For now, the law still stands. And the recordings done by members of city hall are illegal. The claims that the recordings were simply inadvertent errors rather than part of something more nefarious don't wash when you take a look at what was being discussed when the recordings occurred.

The issue reached a public forum last week when a court filing in a wrongful death lawsuit against the city raised questions about whether a city spokeswoman had recorded Tribune reporters without their consent as they conducted a phone interview with Chicago police Superintendent Garry McCarthy in October 2011.

And in separate incidents this past September, city spokespeople twice recorded a Tribune reporter as he conducted phone interviews with a top city official involved in Emanuel's controversial speed camera program. The spokespeople acknowledged that they independently recorded the interviews without asking the reporter for consent.

Odd that the illegal recordings would have occurred during discussions about possible law enforcement malfeasance. Emanuel's press aides openly admit that recordings take place during media interviews about "controversial topics," but most of these interviews are done in person, making the recording obvious. No effort was made to inform these reporters that their conversations were being recorded.

Last month, the city turned over to the plaintiff's lawyers an audio recording and transcript of the conference call showing no evidence that McCarthy or Hamilton sought consent to record the Tribune reporters.

"Absent from the audio and the transcript was evidence of the parties' consent," according to a court filing last week by the plaintiff's attorney, Craig Sandberg.

Not only is the required consent absent, but the recordings seem to be missing as well:

Gerould Kern, senior vice president and editor of the Tribune, declined to comment Friday about the recordings. Instead, he cited the letter sent by Tribune Co. attorney Karen Flax to Patton, demanding that city officials cease recording Tribune reporters without consent. The letter also asked that the city preserve copies of all recorded conversations and turn them over to the Tribune.

In its response Saturday, the city said it was unclear whether there would be any tapes to turn over.

As Balko points out, the double standard on display here is egregious. Ordinary people get cuffed, threatened, charged with felonies and in some cases, beaten and strip-searched. City officials don't even get a slap on the wrist. Instead, they get the mayor's assurance that their illegal recordings are a whole lot of nothing for anyone to be concerned about. Even the "mysterious" disappearance of the requested recordings fails to raise an eyebrow. Just one of those things that happens to evidence that incriminates politicians and members of law enforcement.

The growing gap between the governing and the governed continues. Those on the enforcement side treat many laws as optional. Those governed and policed are still forced to comply with the laws, no matter how (to paraphrase Frank Zappa) badly written and randomly enforced.

Two new developments in the two big cases concerning book scanning and fair use: first up, we've got the somewhat unsurprising news that the Authors Guild is appealing its rather massive loss against Hathitrust, the organization that was set up to scan books from a bunch of university library collections. As you may recall, Judge Harold Baer's ruling discussed how the book scanning in that case was obviously fair use. It was a near complete smackdown for the Authors Guild.

The appeal will cover a few different issues beyond just fair use, such as why the Authors Guild itself is even the plaintiff in the case, since it doesn't actually hold any of the copyrights in question. It would seem that the Authors Guild has an uphill battle.

Meanwhile, in a closely related case, involving the Authors Guild suing Google over its book scanning efforts, Google has filed its appeal brief in response to an earlier ruling, which said that the Authors Guild can represent authors and has standing to sue. Google is arguing that its offering is also a clear case of fair use, as in the Hathitrust case. This is something we thought Google should have pressed strongly from early on.

Google Books is a revolutionary search technology for books—a modern and marked improvement over the traditional card catalog. Google has scanned and indexed more than 20 million books by agreement with major research libraries. The Google Books tool allows any user to enter a search query, obtain a list of books containing the user’s search terms, and view limited “snippets” of surrounding words showing how the terms are used. Google Books does not allow users to read a book online, or even a single page of a book, without express permission from the rightsholder. But its search capabilities help users find books to buy or borrow, connecting them with the books they need, and thus bringing to light a wealth of information previously hidden, undiscoverable, in books sitting on library shelves. Google Books thus offers enormous benefits to authors and readers and to the progress and diffusion of human knowledge.

It also argues that the Authors Guild cannot represent the class of authors in the case, since many authors are helped by Google Books and don't agree with the Authors Guild that it's somehow evil. As a result of that (and how copyright law works) Google also points out that the fair use determination may need to be on a book by book basis, rather than as a whole:

Despite the individual issues at the heart of Plaintiffs’ suit—and unrebutted evidence that a significant portion of the proposed class in fact approves, and benefits from, Google Books’ uses—the district court certified a plaintiff class under Federal Rule of Civil Procedure 23(b)(3) consisting of “[a]ll persons residing in the United States who hold a United States copyright interest in one or more Books reproduced by Google as part of its Library Project.” SPA2. That decision was error, for several reasons. First, Plaintiffs cannot adequately represent, as required by Rule 23(a), the large number of class members who would be harmed if Plaintiffs prevail—that is, the many class members who benefit economically and in other ways from the Google Books project and do not want to see it curtailed.

Not surprisingly, the argument here is compelling. Even if you don't buy the fair use argument, it's difficult to see how the Authors Guild can realistically represent such a diverse group of authors while claiming to represent them all. No matter what happens, as these cases move forward, I'm sure we'll have plenty to discuss.

Earlier this year, I was at a conference where there was an entire presentation on The Streisand Effect. Considering I first came up with the term and have chronicled it over the years (and had already been asked to speak on a different topic at the conference), I offered to help out with that session -- and got back no response. I went to the session to watch, and it was a really fun session, which didn't need any help from me at all. It was done by Conrad Saam, who works for Urban Spoon (and previously Avvo) and had a ton of great examples of the Streisand Effect and the impact on online reputation management. One element of online reputation management that he'd discussed, which I hadn't paid as much attention to, was the basics on how to deal with online reviews -- with a specific focus on Yelp. There were some dos and donts... and two key things not to do were (1) threaten people who write negative reviews and (2) post fake positive reviews.

Phil Buckley has a story of a Massachusetts-based moving company, called Casey Movers, which appears to have violated both of those rules, starting with a legal threat to Buckley's wife concerning a negative review she had written about Casey Movers 18 months ago, after her parents had a very bad experience with the company. It first took the company over a year to even notice the review and then post a weak defense of its practices. It didn't respond to any of the specific complaints about unprofessional behavior or broken promises. It only focused on the amount that the company had been willing to pay for damages, and gave a somewhat "technical" response about how this was what the "insurance option" she chose provided -- and even could be read as scolding her for not choosing the more expensive insurance option.

And yet... five months later (18 months after the original complaint went up), the same guy who wrote that bizarre defense sends a threat letter saying that the company is prepared to sue for libel if the review isn't removed: Of course, rather than having the intended effect, it just made Buckley furious (and quite reasonably so). Buckley had no interest in removing the review, but rather than just telling Casey Movers to pound sand, he started investigating. He found a variety of other negative reviews... but also a large number of reviews that had significant circumstantial evidence that the company was likely posting fake positive reviews (or had hired a company to do so). It's fun to watch the investigation progress, so it's worth reading the whole thing, but here's a snippet:

Someone decided enough was enough and decided to get some good reviews at CitySearch where they now have a majority of good reviews, except there’s a problem, they’re not real reviews. You may ask how I can say that with so much confidence? Go look at them yourself, one after another… notice how most names are generic or don’t have a human photo? Yes that’s level 1 of suspicious reviews. Start looking at the reviews the “people” have left. It’s quite a coincidence that so many people who have used a Boston moving company have also loved a sprinkler repair guy in Anaheim, California and Fun Hawaii Travel out of Honolulu.

They also have a flurry of activity in August of 2012 – Aug 1, 2, 6, 7, 9, 11, 12, 14. That seems a bit sketchy as well.

His investigation also turned up that the company had been posting images of positive review letters that some customers had signed, but in doing so, revealed all their private info. Buckley contacted a few who seemed surprised and said that they had not provided permission to reveal their private info.

For a while, Casey Movers and the main representative of the company involved in all of this, Matthew Overstreet, basically ignored Buckley. But as his story kept getting more attention, Overstreet finally reached out to Buckley -- and again just kept focusing on the "insurance coverage," a relatively minor issue (made even more minor following the ridiculous threat of a libel lawsuit). Eventually, Overstreet called Buckley on Wednesday night and seemed to indicate that there wasn't any interest in actually suing, though he refused to promise not to sue Buckley's wife.

Either way, the whole story is yet another fun one to include in the long list of companies who get on the wrong side of the Streisand Effect. Going beyond that, it really shows how a bogus legal threat can lead to not just backlash and attention, but also much deeper investigations into whoever originated the threat -- and that might turn up other questionable activity, such as posting likely fake positive reviews to try to counter the real negative reviews. Oops.

Meet Jay Bradner, Harvard research scientist, who disovered a promising molecule that may represent a step forward in the fight against cancer and decided to put science before fortune, because he's a human being. Oh, and also because he suggests that going the patent route would be less efficient and less honorable.

Two years ago, after Jay Bradner made a remarkable breakthrough—the discovery of a molecule that, in mice, appeared to trick certain cancer cells into becoming normal cells—he did something unusual. Instead of huddling with lawyers to file for a patent on the molecule, Bradner simply gave his work away. Hoping to get the discovery into the hands of any scientist who could advance it, he published the structure of the compound (called JQ1) and mailed samples to labs around the world. The move, he says, felt like “the more efficient way to do science—and maybe the more honorable way.”

More efficient. More honorable. It's a small example of the potential destruction for both prongs of the pro-patent argument. If it makes science more efficient to not patent, there goes promoting the progress. If it's more honorable, there goes the moral argument. And, unlike some pharma companies, I'm not even going to make patents the key point here: Bradner's focus is on helping people. Do we get the same sense from the crowd patenting their drugs, their medical diagnostic techniques, and anything else they can get their hands on?

Now, lest you write this off as some minor discovery that Bradner made, this molecule would likely have made him a great deal of money.

The monopoly on developing the molecule that Bradner walked away from would likely have been worth a fortune (last year, the median value for U.S.-based biotech companies was $370 million). Now four companies are building on his discovery—which delights Bradner, who this year released four new molecules. “For years, drug discovery has been a dark art performed behind closed doors with the shades pulled,” he says. “I would be greatly satisfied if the example of this research contributed to a change in the culture of drug discovery.”

This puts Bradner firmly on my hero list. Here's hoping he succeeds in helping to change the biomedical culture.

Some weeks ago, we published a lengthy blog post called Where do Music Collections Come From? which discussed findings from our Copy Culture survey of 1000 Germans and 2300 Americans.

Some of the data demonstrated that P2P file sharers (who own digital music files) buy more music than their non-P2P using peers (who also own digital music files). Here's the chart again: To me, this was a fairly innocuous finding, well in line with other studies. For my money, the more important findings were that personal sharing 'between friends' is about as prevalent and as significant in music acquisition as 'downloading for free', and that together they are outweighed by legal acquisition.

But the public spoke and the P2P finding went viral: the biggest pirates are the best customers. Headlines like this generated pushback from record industry groups RIAA and IFPI--mostly centered around the work of NPD, their survey firm in the US. The exchange, I think, is an interesting window onto the state of the empirical debate around file sharing.

At the risk of boring you, here’s the chronology:

Oct.15: We argue that P2P users are the biggest buyers of recorded music. The story jumps from TorrentFreak to Gizmodo to many many other sites.

Oct.16: Russ Crupnick, Senior VP at NPD tells NBC News' tech blog

We hear this argument all the time and it makes no sense.... Peer-to-peer users tend to be younger and more Internet-savvy, so the likelihood that would be buying digital files makes perfect sense. But you can't compare that to the entire population.

Oct. 17:We point out that we didn't compare P2P users to the general population, but to digital music file owners (50% of the US population; 42% in Germany). We acknowledge that our labeling was a little ambiguous on this point, so we fixed it. We noted that "if NPD has data that suggests otherwise, perhaps they could share it."

Oct. 17: IFPI weighs in, arguing that NPD says that most P2P users are moochers, even if a few skew the average by buying a lot:

P2P users spent US$42 per year on music on average, compared with US$76 among those who paid to download and US$126 among those that paid to subscribe to a music service. The overall impact of P2P use on music purchasing is negative, despite a small proportion of P2P users spending a lot on music.

Oct.18: We say, OK IFPI, that's not super clear. Those categories don't seem mutually exclusive. But we take your general point so let's break down the P2P users with digital music collections. Here's what our data says:

• 16% bought no music files.
• Another 9% said that 10% or less of their music file collections were purchased.
• The median music file collection, among P2P users, is around 50% purchased.
• And 15% said that their whole collection was purchased (suggesting that they used P2P for other purposes).

It’s a diverse group, but not moocher-dominated. We stand by our claim.

Oct.19:Then Russ Crupnick at NPD writes a piece that accuses us of publishing while drunk and also lacking a license to make proper sense of data (not joking about this). He repeats that you can't compare P2P users with the general public, and then notes that we're right about P2P users—but also wrong because it's dumb to be right about this.

P2P music downloaders do indeed buy more music than non-users. We’ve known that for about 10 years. It’s a dumb, illogical and irritating argument.

He then brings out his presumably non-drunk, licensed findings and, well, there are a couple things to say. First, he gets his math wrong by including the subtotal in the grand total (h/t Michael Geist). Possibly this is advanced licensed math of some sort. I wouldn't know.

Second, when corrected, the numbers are pretty similar to ours! P2P users do buy more legal music than non-P2P using music buyers. And if you add in concert and merchandise, they spend quite a bit more on music.

As near as I can tell, Mr. Crupnick has no actual disagreement with us on the P2P findings. That’s just smoke and mirrors. Rather, he want to make two other claims:

First, that even though P2P users buy more than others music buyers, they buy less than they used to.

The average P2P user spent $90 per capita on music in 2004- now they spend $42 (CDs, downloads, subscriptions). This was during the same period when the number of files illegally downloaded per capita was rising.

Our spending numbers would look higher, but we agree with the basic story. Here’s how we put it.

[P2P users] are better digital consumers. But is also clear that this investment has fallen vis à vis large CD-based collections. The survey offers ample evidence of this shift in the way music aficionados relate to music–no longer organized around large CD collections or measured in terms of individually priced songs or albums, but rather defined by a mix of legal and illegal strategies for accessing everything now.

Then he gets to what he really wants to talk about:

Celebrating P2P users for their contribution belies the fact that the paid component of the music that they acquire, aka their acquisition mix, is 50% less than the average music consumer.

And so the moral order is restored. Or is it? On any normal reading of the post, this makes no sense: P2P users can't simultaneously spend more and 50% less than other music buyers. (Admittedly, I've had a few drinks and should probably leave this to the metaphysicians at NPD.)

But I'm willing to go the extra mile and assume that Mr. Crupnick is just being unclear, rather than contradictory. Maybe the "paid component" refers to the percentage of overall collections, not to the annual "spend" on music. This would have the virtue of making the statement true, in the self-evident sense that P2P users acquire more music than they buy. In our formulation above: the median music file collection, among P2P users, is around 50% purchased.

But it wouldn't make the statement relevant. At this stage of the game, knowing who supports the music ecosystem and what their expectations are matters a great deal. The fact that P2P users pirate, on the other hand, only matters if your main strategy for increasing sales is enforcement. Boiled down, Mr. Crupnick's point is that it's more important to stigmatize the pirate than understand the customer.

Nov. 12: The RIAA's Joshua Friedlander steps in to endorse that view:

In reality, the comparison is unfair – what it’s comparing is people who are interested in music with people who might not be interested at all. Of course people interested in music buy more. But as research firm the NPD Group (which has been studying these issues for a decade) points out here, this data is neither new, nor illustrative. In their words, “Celebrating P2P users for their contribution belies the fact that the paid component of the music that they acquire, aka their acquisition mix, is 50% less than the average music consumer. Yes, that’s half the average.”

For what it’s worth, I think piracy does play a role in declining purchases of recorded music, but I also think there are so many forms of disruption in the market that it’s impossible to isolate that impact. Here’s how we put it in a post called Die Substitution Studies, Die II: Well, Maybe Some Should Live.

We’ve argued that the media ecology has become so complicated that nobody has a handle on what substitutes for what. Does a pirated MP3 file substitute for a $1 purchased file, a $12 CD, some number of listens on YouTube or Spotify or radio? Does Spotify substitute for MP3 purchases? Or YouTube listens? Should we take stagnant discretionary income into account, and rising costs for other media services, like cable TV, Internet access, and data plans. Do national differences matter–including major differences in digital markets and services (In Germany, CD sales represent over 80% of the market; in the UK and US, under 50%).... Which of these factors get priority? How do we model their interaction?

Increasingly, we don't think it matters. For younger music fans, the primary connection to music no longer passes through carefully curated CD (or MP3 ) collections but through the universal jukebox approximated by overlapping services--iTunes, YouTube, Spotify, The Pirate Bay, and your friends' collections. The total spend is shaped not just by the availability of pirated music, but also by the close complementarity of other free and cheap music services and by the greater competition for discretionary income and attention from other media--games, DVDs, apps, data plans, concerts, and so on.

So what’s at stake in all the misdirection and cheap shots? In a generous mood, I'd say carelessness. In a less generous mood, I'd say it sounds like resentment that he has to debate this stuff at all. Ten years ago, he didn't have to. Send out the press release, watch it get picked it up, and call it a day. NPD and RIAA simply owned the discussion. Now they have to nitpick with academics.

Companies like NPD make money not just by surveying people about their habits, but also by ensuring that the data that they make public leads toward conclusions their clients like. This is the noxious side of an advocacy-driven research culture. And for many research firms, it produces occasional schizophrenic moments: the social scientist warring with the company man. Maybe that's what we're seeing here. The P2P results may have been obvious and "known" for years but I can find no trace that NPD thought them worth mention before this exchange flushed them into the open. NPD has tons of data and could make a huge contribution to public understanding of these issues, but that's not their job. Dissonant findings stay confidential.

Which is too bad, because in the end, Mr. Crupnick arrives at many of the same conclusions we do. From earlier this year:

"There are always going to be those who look for bootlegs and songs you can't find on sites like Spotify and Rdio, and there will always be people who see illegal downloading as a sort of game, but I think that number will just get smaller and smaller as other options become more convenient with all your devices," says Russ Crupnick, senior entertainment industry analyst for NPD.

The reason for this, as Crupnick and others note, isn't because of potential legislation that mirrors SOPA so much as the growing number of cheap, legal alternatives to illegal downloading combined with the decline of many well-known file-sharing sites.

So what's he defending? Not different data or even significantly different findings, but just his client's failed monopoly on interpretation. But that drunk horse has left the barn.

Under US copyright law, there is a series of "rights" granted to the copyright holder, described in Section 106. The key ones are reproduction, preparation of derivative works, distribution and public performance. These rights tend to be taken for granted as being a part of copyright law... but the more you think about it, the "distribution" right seems... weird. Why is it there and does it really belong? Sherwin Siy questions why it even exists as a response to the Kirtsaeng case about someone reselling (in the US) books he bought (legally) abroad. As Siy notes, the problems and questions around the first sale right really come up because of the whole "distribution" aspect of copyright law. Get rid of that and you don't have a problem:

If someone rents a DVD from Netflix, he isn't its owner—merely its possessor, or renter, or lessee. If he distributes the DVD to someone, for instance, giving it to his daughter, he would not only be stealing the copy from Netflix, but also, apparently, infringing the movie studio's copyrights. More strangely, the daughter, even if she was ignorant of the DVD's provenance, would herself be infringing copyright if she were to give the hot DVD to a friend. The tainted disk would afflict each of its subsequent owners, making them copyright infringers when they pass it on, even if they were uninvolved in the original sin of the theft from Netflix.

The fact that you can create such a legally poisoned copy is one of the larger flaws in the implementation of first sale

Basically, the real infringement is in the making of the copy, not in distributing the copy. The whole problem is solved if you get rid of the "distribution" right. That doesn't mean you get free copies, because the reproduction right is still an issue. If you make an infringing copy, that's still infringement. But with the "distribution" right, we're talking about cases where no copies are made, and that seems like an odd use of "copyright." Siy even points out that you could build certain cases back into the law by merely noting that distribution of an infringing copy is itself infringement. But, right now the law allows for the control of distribution, with a few exceptions. And that's backwards.

While he doesn't get into it, this would actually help fix some other problems with copyright law. There is an ongoing debate, for example, over whether or not "making available" a work is, by itself, "distribution" and thus illegal. One camp argues that since no copies are made, there is no "distribution." The other argues that merely making a work available is the equivalent of putting it on a store shelf and thus is "distribution." But if we got rid of the distribution right for copyright, you'd solve that debate, and make it clear that there's only infringement when a copy is made.

There's an even bigger problem with the distribution right under copyright law, which copyright lawyer Andrew Bridges has brought up numerous times, but which most copyright lawyers like to ignore. Technically, the distribution right under copyright law does not apply to digital files. Yes, the courts tend to ignore this all the time, so you could argue that they've decided that it doesn't matter. But the exact wording of the distribution right under Section 106 is:

to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

The important bit here is "copies or phonorecords." From there, let's jump over to the definitions part of copyright law, found in Section 101, where it defines "copies" as:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Note, quite clearly (and twice), that the Copyright Act says that copies only refers to material objects. A digital file is not a material object. How about "phonorecords"?

“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

Yeah. Back again with the "material objects." The distribution right -- which is what many people are sued for online (uploading is seen as "distribution") -- only is supposed to apply to the distribution of "material objects" according to the very definitions found in copyright law. This isn't to say that file sharing is legal under copyright law: in many cases, it likely would violate the reproduction right. But the distribution right is problematic in all sorts of ways.

Perhaps it's time to just get rid of it entirely?

While some have noted the irony of General Petreaus being taken down due to online surveillance methods that he should have been aware of, the case is bringing growing attention to an issue many of us have been discussing for a while: how easy it is for law enforcement to snoop through your email. We raised the question already, but as more info comes out, the whole thing is looking that much more questionable.

Julian Sanchez keeps trying to find out exactly what legal process the FBI used to go through a variety of email accounts based on an apparently non-criminal cyberstalking claim (which was apparently brought to the FBI by a non-cyber-focused agent who had seemed to have a crush on the "victim"of the cyberstalking), and notes that there are big questions about what process was used to go through these emails and how much oversight was involved:

To Julian Sanchez, a research fellow at the Cato Institute, the real scandal over the Petraeus affair is not the extramarital sex, but the invasion of privacy.

"Law enforcement and certainly intelligence agencies have an incredible amount of ability to gather huge volumes of detailed information about people's most intimate online communications, a lot of it without requiring a full-blown warrant, a lot of it without requiring even any kind of judicial approval," Sanchez said.

Meanwhile, Chris Soghoian, working for the ACLU, highlights some of what's been revealed about the snooping. For example, FBI agents tracked down Patricia Broadwell as the email sender, even though she was using throwaway accounts, because webmail providers record the IP address from whence someone logs in -- and Broadwell didn't conceal that info. Apparently, the IP addresses were a series of hotels, and cross-checking with guest lists, it didn't take long to narrow down the only real suspect. Oh, and none of that info required judicial oversight for the FBI to get:

The guest lists from hotels, IP login records, as well as the creative request to email providers for “information about other accounts that have logged in from this IP address” are all forms of data that the government can obtain with a subpoena. There is no independent review, no check against abuse, and further, the target of the subpoena will often never learn that the government obtained data (unless charges are filed, or, as in this particular case, government officials eagerly leak details of the investigation to the press). Unfortunately, our existing surveillance laws really only protect the “what” being communicated; the government’s powers to determine “who” communicated remain largely unchecked.

He also delves into the method by which Petreaus and Broadwell communicated -- by sharing an account and communicating via "drafts" that were saved. For the head of the CIA you'd think he'd use a method that wasn't long known to be just as (if not more) insecure than regular email. Soghoian tears apart this supposedly "secret" method of communicating:

For more than a decade, a persistent myth in Washington DC, fueled by several counterterrorism experts, has been that it is possible to hide a communications trail by sharing an email inbox, and instead saving emails in a “draft” folder. This technique has been used by Khaled Sheikh Mohammed, Richard Reid (the shoe bomber), the 2004 Madrid train bombers, terrorists in Germany, as well as some domestic “eco-terrorists.” This technique has appeared in federal court documents as early as 2003, and was described in a law journal article written by a DOJ official in 2004. It is hardly a state secret.

Apparently, this method was also used by General Petraeus. According to the Associated Press, “[r]ather than transmitting emails to the other's inbox, they composed at least some messages and instead of transmitting them, left them in a draft folder or in an electronic ‘dropbox,’ the official said. Then the other person could log onto the same account and read the draft emails there. This avoids creating an email trail that is easier to trace.”

The problem is, like so many other digital security methods employed by terrorists, it doesn’t work. Emails saved in a draft folder are stored just like emails in any other folder in a cloud service, and further, the providers can be compelled, prospectively, to save copies of everything (so that deleting the messages after reading them won’t actually stop investigators from getting a copy).

Ironically enough, by storing emails in a draft folder, rather than an inbox, individuals may be making it even easier for the government to intercept their communications. This is because the Department of Justice has argued that emails in the “draft” or “sent mail” folder are not in “electronic storage” (as defined by the Stored Communications Act), and thus not deserving of warrant protection. Instead, the government has argued it should be able to get such messages with a mere subpoena.

Got all that? It's even more info that the FBI may have been able to obtain without ever having to get approval from a judge. That's not to say they didn't necessarily go before a judge to get a warrant or similar tool for surveillance, but it does highlight just how much info the FBI can obtain without any real oversight, and how it's entirely possible for it to be abused -- taking a very limited situation (non-criminal online harassment) and turning it into something massive.

In fact, as the EFF's Trevor Timm notes, we should be investigating the FBI over why it was snooping through people's emails and how frequently it does this. He notes, as others have, that nothing about the origination of this case should have resulted in FBI involvement, let alone reading people's emails. Remember, early on, no one knew this had anything to do with General Petreaus or any other high ranking official:

The spark that set events in motion was a handful of allegedly harassing emails sent anonymously to Kelley, a friend of Petraeus's, which she brought to a friend at the FBI. Yet it's unclear why an investigation was ever opened, given that everything publicly known about the emails suggests they weren't illegal.

As the Daily Beast reported, they said things like "Who do you think you are? ... You parade around the base ... You need to take it down a notch." The story noted, "when the FBI friend showed the emails to the cyber squad in the Tampa field office, her fellow agents noted that the absence of any overt threats."

It seems the deciding factor in opening the investigation was not the emails' content, but the fact that the FBI agent was friendly with Kelley. (Even more disturbing, the same FBI agent has now been accused of becoming "obsessed" with the Tampa socialite, sent shirtless pictures to her, and has been removed from the case.)

Basically, it sounds like the FBI had very questionable reasons for digging all that deep into this case at all. Michael Davis, at the Daily Beast, notes that the emails were typical "cat-fight stuff," with no indication of illegal activity:

When the FBI friend showed the emails to the cyber squad in the Tampa field office, her fellow agents noted that the absence of any overt threats.

“No, ‘I’ll kill you’ or ‘I'll burn your house down,’” the source says. “It doesn’t seem really that bad.”

The squad was not even sure the case was worth pursuing, the source says.

“What does this mean? There’s no threat there. This is against the law?” the agents asked themselves by the source’s account.

At most the messages were harassing. The cyber squad had to consult the statute books in its effort to determine whether there was adequate legal cause to open a case.

“It was a close call,” the source says.

So while there's all sorts of talk of investigations into who should have known the details of what was going on at what time, no one seems to be questioning why a simple "cat fight" resulted in the FBI digging in and reading people's emails. Yet, that seems like something we should all be quite worried about.

Indeed, if there's any "benefit" to come out of this, perhaps it's that more and more people are hopefully realizing just how easy it is for the FBI to spy on people electronically.

Following the story of how the University of Washington reprimanded a reporter for live tweeting a game, the University has been trying to "defend" its ridiculous social media policy. The basic justification is, to put it mildly, bullshit:

UW athletic director Scott Woodward was on Dave “Softy” Mahler’s radio show this morning and Softy began the interview by asking Woodward about the UW’s live coverage policy. The athletic director said he didn’t think it was a big story, pointing out that the school simply wants to protect its live media rights.

“We’re always going to protect live descriptions of events,” Woodward said. “That’s something that has always been our right for decades and continues to be so. As technology gets better and better, we’re going to have to be more vigilant about how we do it, but also understand that reporting has changed, too. There’s a fine line there and we’re always going to be cognizant and reasonable.”

Except... that's not true. The "live description of events" is not protectable by the University. It's possible that someone could claim copyright over their own description of the events, but the University has no IP rights on the "live description of events." Such a thing simply doesn't exist and it would be a massive First Amendment issue if it did. That someone there thinks such a "right" exists is ridiculous.

Of course, we know what this is really about. It's about money. Specifically, the University's broadcast deals:

Woodward continued, telling Softy that his own radio station pays a premium to broadcast UW games live and “we don’t want that diminished, nor do we anything else diminished whether it’s T.V. or live events.”

But there's no intellectual property right to protect the bad deal someone made just because technology makes live reporting less scarce. This is the University making stuff up because it thinks it's protecting a broadcast deal.

Elsewhere, the University pushed out an even more ridiculous claim: that this was really about "benefiting the fans." Stunningly, an incredibly gullible reporter seemed to buy this argument:

My conversation with a University of Washington departmental source on the issue of Twitter restrictions (specifically live-tweeting during games) was not only informative, but surprising. I came to find out that UW not only reserves a sort of “creative protection” right over their sporting events, but that the policy is actually of benefit to their fans. Further, in a surprising twist, it seems that UW’s Twitter restrictions policy constitutes a step forward in social engagement … not backwards, the way it seems on its face.

Kudos to the UofW spinmeister who spun that one. First off, you can't just make up a "creative protection" right that does not exist under the law. Sorry. You can't do it. There are certain protections granted under copyright law -- but protection from someone describing events on their own is not one of them, no matter how much the University wishes it to be true. And what ever happened to reporters fact checking when people tell them something that's completely made up. Oh and, really? This complete bullshit claim is a step forward? Do tell...

Sporting events put on by the University of Washington can be considered the school’s “creative property” in a way.

No, actually, they can't. They're events and the University can put limitations on who can attend and such, but they have no "property" right in someone describing a game. None. Stop repeating it. It's not true.

They’re paying for the promotion, the venue, all of it. From a business perspective, they’re taking the greatest investment risk regarding their events, and they’re gambling on your fan-ship of their sport teams. It’s not unreasonable to want (and deserve) some control over the accuracy of the flow of information.

Actually, yes it is unreasonable, and there's no law that gives them that right. Sorry, "reporter" Dusten Carlson, you've been spun, hard. Imagine this thinking anywhere else in the world. Let's see... "From a business perspective, Enron took the greatest investment risk regarding their business, and they're gambling on the money customers are spending. It's not unreasonable to want (and deserve) some control over how reporters provide the flow of information." See? In any other context anyone would realize this is completely ridiculous.

Even a tiny bit of research would have turned up the case NBA vs. Motorola, which actually tested some of these concepts, and they were laughed out of court. Just a few relevant quotes:

In our view, the underlying basketball games do not fall within the subject matter of federal copyright protection because they do not constitute "original works of authorship" under 17 U.S.C. Section 102(a). Section 102(a) lists eight categories of "works of authorship" covered by the act, including such categories as "literary works," "musical works," and "dramatic works."[n3] The list does not include athletic events, and, although the list is concededly non-exclusive, such events are neither similar nor analogous to any of the listed categories.

Sports events are not "authored" in any common sense of the word. There is, of course, at least at the professional level, considerable preparation for a game. However, the preparation is as much an expression of hope or faith as a determination of what will actually happen. Unlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script. Preparation may even cause mistakes to succeed, like the broken play in football that gains yardage because the opposition could not expect it. Athletic events may also result in wholly unanticipated occurrences, the most notable recent event being in a championship baseball game in which interference with a fly ball caused an umpire to signal erroneously a home run.

[....] We believe that the lack of caselaw is attributable to a general understanding that athletic events were, and are, uncopyrightable. Indeed, prior to 1976, there was even doubt that broadcasts describing or depicting such events, which have a far stronger case for copyrightability than the events themselves, were entitled to copyright protection. Indeed, as described in the next subsection of this opinion, Congress found it necessary to extend such protection to recorded broadcasts of live events. The fact that Congress did not extend such protection to the events themselves confirms our view that the district court correctly held that appellants were not infringing a copyright in the NBA games.

That case also looked at the possibility of a "hot news" misappropriation claim. As we've discussed a bunch lately, in the last few years, there's been a sudden new interest in "hot news" -- a legal theory that had been almost entirely discarded. Thankfully, courts hearing hot news cases are not impressed lately, and it's extremely doubtful UofW has a real hot news case here as well. Again, going back to the NBA v. Motorola case, the court made it clear that information about a game simply doesn't meet the tests required to get a hot news right. While the technology (distributing data to pagers) was slightly different, replace a few obsolete technologies with the modern equivalent, and the court could easily be talking about Twitter:

An indispensable element of an INS "hot-news" claim is free-riding by a defendant on a plaintiff's product, enabling the defendant to produce a directly competitive product for less money because it has lower costs. SportsTrax is not such a product. The use of pagers to transmit real-time information about NBA games requires: (i) the collecting of facts about the games; (ii) the transmission of these facts on a network; (iii) the assembling of them by the particular service; and (iv) the transmission of them to pagers or an on-line computer site. Appellants are in no way free-riding on Gamestats. Motorola and STATS expend their own resources to collect purely factual information generated in NBA games to transmit to SportsTrax pagers. They have their own network and assemble and transmit data themselves.

To be sure, if appellants in the future were to collect facts from an enhanced Gamestats pager to retransmit them to SportsTrax pagers, that would constitute free-riding and might well cause Gamestats to be unprofitable because it had to bear costs to collect facts that SportsTrax did not. If the appropriation of facts from one pager to another pager service were allowed, transmission of current information on NBA games to pagers or similar devices would be substantially deterred because any potential transmitter would know that the first entrant would quickly encounter a lower cost competitor free-riding on the originator's transmissions.[n9]

However, that is not the case in the instant matter. SportsTrax and Gamestats are each bearing their own costs of collecting factual information on NBA games, and, if one produces a product that is cheaper or otherwise superior to the other, that producer will prevail in the marketplace. This is obviously not the situation against which INS was intended to prevent: the potential lack of any such product or service because of the anticipation of free-riding.

In other words, no dice. At all.

Back to UofW's ridiculous defense:

Lastly, UW doesn’t want its own social engagement trumped. Their social media directory is incredibly dense: Instead of shutting out the media, UW has already beaten them to the punch with regard to social, live coverage, in-game tweeting, etc. etc. ad nauseam. Further, their fans already know where to go to get these live updates and usually turn there first, making any credentialed media coverage kind of redundant in the end.

My source says that the university takes social very seriously, and implementing journalistic policy for Twitter like the kind that exists already for radio and TV is a sign that UW takes the power of social media as a journalistic tool incredibly seriously. From this perspective, the University of Washington is ahead of the curve, not behind.

Again, this is complete bullshit. The fact that the University doesn't want its own "social engagement trumped" is meaningless. Who would possibly think that's a legitimate explanation? "I'm sorry, you can't write about my company, because we have our own social engagement effort going on, and you might trump it." A real reporter would laugh at such a ridiculous explanation. There is nothing in the law that says UofW has a right to be free from competition, no matter how awesome its social media engagement might be. If it's true that it's really so great and that "fans already know" to go there and "usually turn there first" then why would the University care about the live tweeter? According to that argument, fans would already be getting the official feed, and so the journalist tweeting wouldn't make any difference.

Even if we take the University of Washington's ridiculous and clearly bogus argument as factual, the argument is still completely wrong and stupid. The idea that a reporter tweeting out info about a game somehow takes away from demand of fans to watch or listen to official broadcasts is ludicrous, and suggests a policy written by people who aren't actual sport fans. In what world does a 140 character update replace a broadcast of the game? As a sports fan who uses both, I can assure you that at no point have I ever considered the many people who tweet about things happening in a game I'm interested in an adequate replacement for an audio or video broadcast. Never. Yes, I'll use it in a pinch to see what's going on while I'm busy doing something else, but that's different.

More importantly, what a team should want is for fans to be able to remain connected and interested however possible. Because if they don't care about the team at all, it won't matter where they're funneling people. It'll keep them as fans, who will want to attend live events or watch/listen to official broadcasts when they're available.

Sorry, University of Washington (and gullible reporters), just because you make up some sort of bogus imaginary property right that doesn't exist, it doesn't mean anyone has to pay attention to it. And, yes, as we noted originally, it is true that the University can choose who to credential and who not to. But that's merely a policy decision, not anything to do with a property right -- and as explained above, either way, it's not reasonable. It's shortsighted and can only serve to annoy fans, rather than help them.

Recently, people noticed that -- in classic Microsoft fashion -- its new 32GB Microsoft Surface tablet only had 16GB of free storage when you took it out of the box. Why? Because this is Microsoft and it loaded the damn thing down with pre-installed software that took up a ton of storage (including, of course, its own bloated tablet operating system, Windows RT). Competing tablets, including the iPad and various Android tablets, come with significantly more free space, even on models advertised as having the same storage. Microsoft has tried to play up the value of the pre-installed software, the fact that you can expand storage via a microSDXC card slot and that it offers 7GB of free "cloud" storage with the device. And, oh yes, you can also manually delete stuff and get back some space.

None of this was enough for one guy, however, as Andrew Sokolowski is now suing Microsoft claiming that Microsoft is misrepresenting the device. While he's seeking class action status, unlike many class action lawsuits that are all about money, it's actually nice to see that he's not seeking any money -- just asking Microsoft to stop misrepresenting the product.

I can't find the actual lawsuit on PACER yet, though I imagine it'll be up soon. On the whole, while I find it incredible (and so typically Microsoft) that Microsoft is selling the tablet loaded down with so much software, does that really require a legal response? The story is getting out in the press, and people must know that at least some of the tablets they buy have pre-installed apps on them. It seems like a situation where an informed consumer is likely to know that this is one of the downsides of buying the Surface, and it's not clear that Microsoft needs to be legally compelled to explain how much free space is on the device out of the box.

While copyright trolling cases keep popping up, it's become quite impressive how many courts are dumping such cases often while slamming the trolls' strategy. It's now happened again. A judge in Massachusetts has called out a troll for its "lack of interest in actually litigating." The case involves porn company Patrick Collins, Inc., which has been involved in a ton of these trolling cases -- including some of those linked above -- along with another company, Discount Video Center, represented by the same lawyer.

The full ruling (pdf) is worth reading. Basically, the judge (like many others) is completely onto Patrick Collins and the fact that it wants to use the court system as a part of its business model rather than for a legitimate judicial purpose. After noting that in an ordinary case against an unknown defendant, the purpose of seeking early discovery is to find out how to amend a lawsuit to include an actual named defendant. But here, the company seems to have no interest of doing such an amended filing since, instead, it just wants contact info to send out "pay up settlement" letters.

Ordinarily, a Plaintiff suing a John Doe Defendant would seek narrow discovery ex parte in order to identify the Doe Defendant for purposes of filing a motion to amend the Complaint to name the Doe, followed by service of the Complaint. The Plaintiffs in these cases evidence no interest in such a pursuit. They have not proposed a discovery plan aimed at identifying the infringers they have sued. Rather, the Plaintiffs request that the Court order disclosure of the third-party subscribers' names so that the Plaintiffs might settle or dismiss their cases on an informal basis. The discovery they seek cannot provide the Plaintiffs with sufficient information to identify the Doe Defendants. Nor have the Plaintiffs requested leave in their submissions to take depositions, either orally or upon written questions – the only discovery mechanism available to Plaintiff under the Federal Rules of Civil Procedure when seeking information from third parties, as is the case here....

... the omission of any written request for depositions in the Plaintiffs' renewed motions for discovery speaks volumes about the Plaintiffs' lack of interest in actually litigating these cases. That the Plaintiffs' counsel now assert a willingness to take depositions if that is the only option ... only confirms that the Plaintiffs' interest in litigating the cases, or in following the governing law, arises only in response to the Court's express command.

Not only have Plaintiffs failed to articulate a discovery plan that would lead to identifying the infringers they have sued, but the Plaintiffs cannot even articulate the specific information they need or require in order to identify the infringers (or, to determine that such identification is not reasonably possible).

Yeah, the judge isn't pleased. He explains that their plan to get the names and then "figure out the rest" through settlement letters "is unacceptable." Also not good for Patrick Collins -- back in July, its lawyer had told the court that it would be filing actual lawsuits against individuals the following week... but "no such lawsuits against individual defendants were subsequently filed." In other words, the company was misrepresenting its intentions to the court -- a big no-no.

It doesn't end there. The judge calls out Discount Video Center for seeking to "harass" a defendant and also engaging in judge shopping:

With respect to John Doe No. 22..., the Plaintiff Discount Video has stated an intent to dismiss Doe No. 22 from the pending action and file a new, separate individual complaint against this Doe, even though it does not know the identity of the infringer. Such an action smacks of an bad faith effort to harass the third-party subscriber by causing him or her to expend further legal fees in a brand new action, which would merely repeat all that has occurred to date. The Federal Rules specifically address this situation and authorize an award of fees and costs.... The course of action the Plaintiff has stated it intends to pursue also suggests an improper effort to engage in judge shopping and evidences a disregard for the Court's limited public resources.

Finally, the judge calls the plaintiffs out on the settlement letters they sent, noting that they falsely claim that the account holder has been sued, rather than the actual infringers, who may not be the same.

Finally, the Plaintiffs have repeatedly said one thing and done another. The Plaintiffs plainly sued only the infringers in these actions. Yet the Plaintiffs proposed and served notices upon the subscribers informing them they had been sued. The Plaintiffs' counsel stated to the Court that in his opinion, subscribers are "always going to . . . be secondarily liable "..., but he also stated that he would not assert secondary liability claims against subscribers as such claims would not pass muster under Rule 11.3

Now, the Plaintiffs have filed lawsuits against subscribers asserting secondary liability on the theory that, upon information and belief, discovery will reveal the subscribers to have known of the infringement via their account, or, that discovery will show the subscribers to be the parent of an unemancipated minor between the ages of 7 and 18.... While those cases are not before the undersigned (though some are before the district judges assigned to the captioned cases), the Court may permissibly consider them in assessing the reliability and veracity of counsel's statements. The Plaintiffs' counsel has also repeatedly said to the undersigned, and to other judicial officers of this Court, that he intends to litigate the claims he has brought. Yet to date, counsel has sued well in excess of one thousand Doe Defendants in this District, and as far as the Court is aware, he has never served a Complaint upon a single individual defendant.

What's amazing is that these rulings keep happening... and such cases keep getting filed as these trolls keep hoping to get a sympathetic (or clueless) judge to let them go through.

Once again, Senator Ron Wyden seems like one of a very small number of people in Congress actually willing to stand up against bad bills that are pushed forward with fear mongering. Earlier this year, we noted just how absolutely ridiculous it was that Senator Dianne Feinstein seemed a hell of a lot more concerned about punishing whoever blew the whistle on questionable US activities like Stuxnet, then about the questionable activities themselves. In response, she put forth some legislation that was designed to punish government whistleblowers, rather than understand why they were blowing the whistle. This bill got dumped into a key appropriations bill, the Intelligence Authorization Act for Fiscal Year 2013. In other words, Feinstein basically said that if we are to fund intelligence activities we have to crack down on whistleblowers. Shameful stuff.

Thankfully, Senator Wyden has now put a hold on the bill, noting his concern about how it would impact free speech issues, especially as it pertained to the media reporting on national security:

"I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know," Wyden said in a floor statement publicly announcing his hold. "Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas."

Of course, part of the issue here is that Feinstein sees any form of whistleblowing or commentary as "leaks," while Wyden properly recognizes that a functioning democracy means allowing the press to report on questionable behavior by the government.

One of the false impressions our frequent detractors seem to pick up from the stories covered here is that Techdirt hates middlemen. This couldn't be further from the truth. Mike Masnick has often stated that middlemen can be extremely useful. The problem is, most middlemen aren't. Most middlemen in disrupted industries continue to stake a claim to territory that is no longer theirs, insisting that their presence is still needed, or at the very least, that they be paid their tribute regardless of their actual worth. In essence, they attempt become gatekeepers, something no industry truly needs.

Nate Hoffelder sends over a story highlighting the difference between useful middlemen worth their pay and position and middlemen whose claim to a slice of the pie is solely based on an overestimation of their own indispensability. Jim McCarthy, a literary agent for Dystel & Goderich Literary Management, gives his account of a recent writer's conference, one in which several agents fiercely guarded their disappearing territory.

A week and a half ago, I had the opportunity to go to the Novelists, Inc. 23rd Annual Conference. And on one of the panels I sat on, all the growing tension and dissatisfaction came to a head...

[O]ne of my co-panelists went after someone on the panel for "denigrating" agents and said he wouldn't stand for it. So I grabbed the mic and offered, as an agent, to denigrate agents for them. I believe very strongly that good agents are incredible partners and can bring authors more success (I'll get back to this). But more importantly at that exact moment, I was just suuuuuuper pissed. It was disgusting to watch another industry professional demean an author simply because they seemed to be chiseling away at his pedestal.

That's a strange way for a group of people to treat potential clients, especially when the creation of legitimate self-publishing platforms have made the run-of-the-mill agent largely superfluous. If the agent cares for nothing more than finding a way to insert himself between the author and his earnings, then naturally he'll feel threatened by the many recent routes to success that completely bypass him.

But there are agents who actually understand that their role, and the role of the publishing industry in general, is no longer what it once was. McCarthy explains:

Here's my take. The role of agents in the marketplace is changing dramatically. At DGLM, we've always prided ourselves on being a full-service agency. In the past few years, we've been aware that what "full-service" means is changing. As authors have more access to self-publishing and more success in doing that, agents need to be able not only to guide their clients through that process, but to be aware of the pitfalls, potential gold mines, and ways to strategize that are best for an individual project but also an author's entire career.

McCarthy notes that simply because a good agent can be beneficial to authors, it doesn't mean that everyone needs an agent, especially not a bad (or simply an average) agent. However, many in his field believe the latter to be the case, even as their confidence level has shifted from "This is how to get us" to the more desperate and demanding, "You need us." Even as he spoke to several others in his same field, his message was greeted with anger and defensiveness. McCarthy's point wasn't that agents are unneeded, but that agents unwilling to accept their new responsibilities and let go of their old habits have nothing to offer today's writers.

Rather than feel threatened and become openly hostile and dismissive towards any writer that utters the phrase "self-publish," McCarthy is actively working to become an essential element of a writer's career.

What we're seeing is a balancing of power. Authors have more control of their careers and can be more demanding. Does that make my job easier? No. Does it make it more exciting? Yes. Because it's one thing to bandy the word "partner" around and make yourself sound friendly, which seems to be happening a lot. It's another thing to actually act like a partner.

Middlemen can be extremely useful, but they can't simply remain in the "middle" for no other reason than that's where they've been historically. No middleman can honestly state categorically "You need us." It simply isn't true anymore. But, if they're willing to recognize their new role in various content industries, they can be the best thing that's happened to their clients.