Update: Wow. It took less than 24 hours for the RSC to fold to Hollywood pressure. They have now retracted the report and attempted to claim that it was not properly vetted.

Right after the Presidential election last week, Chris Sprigman and Kal Raustiala penned an opinion piece suggesting that one way the Republicans could "reset", and actually attract the youth vote, would be to become the party of copyright reform. We had actually wondered if that was going to happen back during the SOPA fight, when it was the Republicans who bailed on the bill, while most of those who kept supporting it were Democrats. Since then, however, there hadn't been much movement. Until now. Late on Friday, the Republican Study Committee, which is the caucus for the House Republicans, released an amazing document debunking various myths about copyright law and suggesting key reforms.

If you're used to Congress not understanding copyright, prepare to be surprised. It's clear, thorough and detailed about just how problematic copyright has become and why it needs to change. To give you a sense of where the document heads, note the final line:

Current copyright law does not merely distort some markets -- rather it destroys entire markets.

There is a lot in this document, and we can't go through it all, but I highly recommend reading through it. The three "myths" it attacks are:

1. That the purpose of copyright is to compensate the creator. No, it correctly notes, it's about benefiting the public:

   Thus, according to the Constitution, the overriding purpose of the copyright system is to “promote the progress of science and useful arts.” In today’s terminology we may say that the purpose is to lead to maximum productivity and innovation.
   
   This is a major distinction, because most legislative discussions on this topic, particularly during the extension of the copyright term, are not premised upon what is in the public good or what will promote the most productivity and innovation, but rather what the content creators “deserve” or are “entitled to” by virtue of their creation. This lexicon is appropriate in the realm of taxation and sometimes in the realm of trade protection, but it is inappropriate in the realm of patents and copyrights.

2. That copyright is a representation of free market capitalization. The paper properly notes that the reality is the exact opposite:

   Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly.

3. That the current copyright regime leads to the greatest level of innovation and productivity. That makes no sense at all, the paper says:

   Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.

From there, it goes on to look at some of the specific harms of today's copyright law, including harming remix culture and a lot of commercial activity around it, that it "hampers scientific inquiry," discouraging value added industries and others.

Finally, it puts forth suggestions for copyright reform that go way, way, way beyond anything we've seen legitimately discussed in Congress, ever. Below I just show some snippets from the recommendations, so go read the full thing.

1. Statutory Damages Reform:
   
   Copyright infringement has statutory damages, which most copyright holders can and do use in litigation (rather than having to prove actual damages). The government sets a range – which is $750 to $30,000 per infringement – but that goes up to $150,000 if the infringement is "willful." Evidence suggests that the content holder almost always claims that it is willful. This fine is per infringement. Those rates might have made sense in commercial settings (though even then they arguably seemed high), but in a world where everyone copies stuff at home all the time, the idea that your iPod could make you liable for a billion dollars in damages is excessive.
   
2. Expand Fair Use:
   
   Right now, it's somewhat arbitrary as to what is legally fair use based upon judicially created categories. One example: parodies are considered protected by fair use but satire is not. There's an excellent book (and a shorter paper) called Infringement Nation that details how things you do every single day are infringing and leave every single person liable for billions in damages each year (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1029151).
   
3. Punish false copyright claims:
   
   Because there is minimal or nearly non-existent punishment for bogus copyright claims today, false takedown requests are common and have a chilling effect upon legitimate speech. While those filing a takedown request have to swear on the threat of perjury, that swearing is only in regard to whether the work is theirs but not whether the work is actually infringing. The court has said that their needs to be “subjective bad faith” in order to be sanctioned for false takedown requests. This often leads to de facto censorship.
   
4. Heavily limit the terms for copyright, and create disincentives for renewal:
   
   Current public policy should create a disincentive for companies to continue their copyright indefinitely because of the negative externalities explained in this paper. Unlike many forms of government revenue, generating revenue by disincentivizing activities with negative externalities is one way for the government to pay for its operations. This is a far superior way for the government to generate revenue rather than having a tax system that disincetivizes work.

It goes on to suggest a sliding scale for copyright renewal, after a free initial term of 12 years. The fee for renewal would be a percentage of revenue from the work, and that percentage increases with each additional renewal term. Under such a system, those who are still exploiting the copyright can continue to hold one, but for most, where there is greater benefit to have the work in the public domain, the work goes into the public domain.

This document really is a watershed moment. Even if it does not lead to any actual legislation, just the fact that some in Congress are discussing how copyright has gone way too far and even looking at suggestions that focus on what benefits the public the most is a huge step forward from what we've come to expect. In many ways, this is the next logical step after the completion of the SOPA fight. Rather than just fighting bad policy, it's time for Congress to recognize that existing copyright law is bad policy and now is the time to fix it. It comes as a surprise, but kudos to the Republican Study Committee -- and specifically Derek Khanna, the policy staffer who wrote the document -- for stepping up and saying what needed to be said, but which too many in Congress had been afraid to say for fear of how the entertainment industry lobbyists would react.

Last month, we wrote about how the EFF, representing Kyle Goodwin, had asked the US district court handling the Megaupload case to unseal the warrants for the seizures of Megauploads domains and servers. The court has now ordered the documents unsealed. To be honest, there isn't too much surprising in them. There are some huge leaps to assume that hosting a cloud service somehow makes you criminally liable for what people do on that service. In fact, part of it ridiculously argues that the "proof" of criminality is the fact that the DOJ had alerted Megaupload to some infringing files, and those files had not been taken down. However, as Megaupload's lawyer points out, the "alert" was in the form of asking for cooperation, which Megaupload granted, and not to "interfere" in the investigation. Taking down the videos would be interfering. Megaupload's lawyer, Ira Rothken explained to CNET:

"MegaUpload was served with a criminal search warrant for alleged third-party user conduct and was advised not to interfere with that criminal investigation or with the files -- as such disclosure, would jeopardize the ongoing investigation. To ask MegaUpload to cooperate and then use that cooperation against them, to us seems to be both unfair and misleading."

Most of the argument in the warrants is just repeating the already questionable claims in the indictment -- which is what you'd expect. They're also not all that different from previous domain seizure requests -- with a few notable exceptions. First, you'll notice that the special agent who conducted the investigation has all personal information redacted. Apparently the Justice Department would prefer that its agent not receive the ridicule that the agent who made myriad mistakes in earlier domain seizures received.

But what was really amusing was the description of the investigation, which apparently involved an "undercover computer."

Using an undercover computer, [redacted] observed how a visitor may view content hosted on Megaupload.com. For example, on November 20, 2011, [redacted] observed the copyrighted picture "Zack and Miri Make a Porno," which was released in 2008 by The Weinstein Company, on the website Megavideo.com.

I'm still trying to figure out just what an "undercover computer" is -- and where I can buy one. Also, seems kind of random to choose Zack and Miri as the sample file to download -- especially given the director/writer of that particular movie, Kevin Smith, has talked extensively about how he believes "piracy" actually helps him gain more fans. Yes, the film's copyright is held by The Weinstein Company -- whose owners appear to have a slightly less enlightened view of infringement -- but it still seems like an odd choice.

In addition to those oddities, there are some other claims within the filings that don't make much sense. They make the argument that seizure is necessary with claims that are, simply speaking, not true:

Neither a restraining order nor an injunction is sufficient to guarantee the availability of the Subject Domain Names for forfeiture. By seizing the Subject Domain Names and redirecting them to another website, the United States will prevent supporters of the Mega Conspiracy or third parties from redirecting the Subject Domain Names to servers elsewhere in the world, and thus using them to commit additional crimes. Furthermore, seizure of the Subject Domain Names will prevent visitors from continuing to access the websites located at the Subject Domain Names.

To put it simply: that makes no sense. Either a restraining order or an injunction would, in fact, prevent those other things from happening. Yes, Megaupload could have ignored the two, but then it would face additional charges for ignoring the court. Given that Megaupload had repeatedly engaged in various lawsuits against it in the US before, there was simply no evidence that Megaupload would directly ignore the court and, as such, face additional charges.

Finally, the documents also show the DOJ's request for these documents to be sealed. You can understand why they wanted the warrants sealed prior to the takedowns and arrests happening. But those all took place within a week of the seizures being approved by the judge. There was no reason to keep them under seal. Yet the DOJ claims that it "has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation." That is, of course, empirically and definitively false because we've now seen the unsealed and redacted document and they do nothing to endanger the investigation (other than, perhaps, revealing the weaknesses of the DOJ's arguments).

Nick Bilton, over at the NY Times has highlighted how Apple has been granted a design patent on the electronic representation of turning a page. Bilton leaves out that this is a design patent, which is much more limited. It's more akin to a trademark than a traditional patent -- but... still... The patent in question, D670,713 really does seem to cover exactly what it says in the title: "Display screen or portion thereof with animated graphical user interface."

The patent comes with three illustrations to explain how the page-turn algorithm works. In Figure 1, the corner of a page can be seen folding over. In Figure 2, the page is turned a little more. I’ll let you guess what Figure 3 shows.

While design patents are a slightly different than other patents, it really is patents like this that get the public to respect the patent system less and less.

Packaging designs can make foods and drinks more attractive. There's a reason why people shy away from food that comes in generic black & white packaging that looks like Dhamra Initiative rations. Here are just a few examples of some interesting packaging designs that probably aren't going to hit the store shelves anytime soon, but it'd be cool if they did.

• If you've ever tried to reach into a Pringles can for the last chip, there's a better can design that transforms a can into a bowl for easier snacking. Once you pop, you can't stop -- because turning the bowl back into a can is like re-folding a map.... [url]
• WikiCells have nothing to do with anyone being able to edit a spreadsheet. WikiCells are a strangely-named form of food packaging that consists of an edible membrane filled with some kind of nutritious liquid or emulsion or foam or solid food substance. All the cool kids will be eating these in the future, but some people will wonder why we don't just eat fruit. [url]
• Really old soda cans had pull tabs that came off and posed a choking hazard. Current aluminum cans have push in tabs that are slightly better, but now there's an even better design (called a 'smart tab') that lets you re-close the can. Still, an even better design would prevent your soda from losing its carbonation, so watch out for the 'smarter tab' someday. [url]

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

We've written about Dan Pink's last work, Drive before. It's a fascinating book that explores some counterintuitive concepts about how money incentivizes people. His new book, To Sell is Human appears to build on these concepts, as it specifically relates to salespeople (who many people assume are only incentivized by money). An HBR article appears to summarize the thesis:

Some things in life we know are true. The sun rises in the east and sets in the west. A body in motion will remain in motion unless acted on by an outside force. And the best way to motivate salespeople is by offering them commissions.

But what if we’re wrong, at least about that last one? What if paying salespeople commissions is rooted more in tradition than logic? What if it’s a practice so cemented into orthodoxy that it’s no longer an actual decision? That’s what a handful of companies have begun discovering. To the surprise of many, these firms are showing that commissions can sometimes do more harm than good—and that getting rid of them can open a path to higher profits.

Either way, it should come as little surprise that Pink is also trying unique ideas for the selling of his own book, including recruiting a "launch team" made up of 96 people who promise to share the ideas in the book (and, no, I'm not a part of that). He's offering up "rewards" for people who are willing to do this:

• Advance galley copy of To Sell is Human – there’s only a couple hundred of these ever printed.
• Signed 1st edition hardcover of To Sell is Human.
• A public Thank You on my blog along with links to your website and Twitter.
• Exclusive access to me – and each other – via a private Facebook group.

It's that last one that I find most interesting. It's not all that different than some of the offerings we've put together for people on Techdirt as well, who wish to support the site, and can get greater access in exchange (which has been really fun in practice!). It will be interesting to see how well this works (and hopefully Pink will report back on the success or failure of the program as it goes on).

What do people have to do in order to be included? Well, first they have to apply (and applications close tonight at midnight eastern) and be chosen. But then, it's pretty straightforward:

• Spread the word about the book on your platform during the weeks before and after publication.
• Leave a short, honest review of To Sell is Human at Amazon.com or BN.com on December 31.
• Join us in the Facebook group to brainstorm and share ideas on how we might spread the word about To Sell is Human.

I would imagine that, under current FTC rules, anyone in this program would actually need to disclose their participation in the program whenever they talk about the book -- which hopefully Pink is telling those who sign up for this. I also wonder if those who don't get "in" to the program will walk away feeling negative about it. Hopefully not. Either way, it's an interesting experiment and hopefully he'll share how well it works. I've always been a big fan of "access" to content creators as a possible unique form of "reward" -- and it's the kind of experience that can't be copied, which is what makes it so valuable.

Yesterday we had the story of how an 18-month-old Yelp review for Casey Movers in Massachusetts spurred the company to send a legal threat to the author, Kristen Buckley, leading her husband, Phil Buckley to do some research and uncover questionable "positive" reviews of the company, and to call the company out for its legal threat. That story has been getting a lot of attention from a variety of sources, and some have noticed that the original review is gone. Yes, gone. If you go there, you can now see Kristen's followup comment about the legal threat, and Casey Movers' response to the original review -- but not the original review itself.

So what happened? Apparently Yelp took the review down because it violated their policy "because it lacks firsthand experience." The issue is that Kristen admits that the movers were hired by her parents, and the review was on their behalf. Peter notes that Kristen was present when the events happened, so the "lacks firsthand experience" is pretty questionable. That said, the removal seems odd no matter what. The review was up for 18 months and Yelp just took an interest in taking it down in the days after the legal threat went out?

It seems unfortunate in timing -- especially since the reasons for the disappearance of the review are not made public (they were sent via email to Kristen). Anyone reading about this story elsewhere and going to Yelp to see the review are likely to now believe that the original review was taken down due to Casey Movers' complaints about the accuracy of the review, when that doesn't appear to be the case.

You know that mistake you make, where you want to send an email to a bunch of people, typically annoying chain letters about finding love next week if they forward it to twenty people immediately (luck doesn't just wait around, you know), but you don't want to expose all of your friends' and family's emails so you blind copy everyone...except you didn't. Now you're the jackass sending emails with forty addresses listed and your grandmother hates you for spamming her?

"Why is my grandson trying to help me find love? I'm 200 years old."
Image source: CC BY 2.0

Well, funny story: it turns out that one of the few things we freedom-loving folks in the States have in common with our Taliban enemies is an amusing incapacity to check to whom we're sending our emails. Take a look at the oops Taliban spokesperson, Qari Yousef Ahmedi, made when he accidentally CC'd, rather than BCC'd, the Taliban's mailing list on a press release email this past Saturday.

In a Dilbert-esque faux pas, a Taliban spokesperson sent out a routine email last week with one notable difference. He publicly CC'd the names of everyone on his mailing list. The names were disclosed in an email by Qari Yousuf Ahmedi, an official Taliban spokesperson, on Saturday. The email was a press release he received from the account of Zabihullah Mujahid, another Taliban spokesperson. Ahmedi then forwarded Mujahid's email to the full Taliban mailing list, but rather than using the BCC function, or blind carbon copy which keeps email addresses private, Ahmedi made the addresses public.

I'm sure years from now, when the CIA has once again employed the Taliban to fight on our behalf against the Chinese-Australian-Alien Alliance, we'll all look back on this and have a nice laugh, but there's no understating that this is a massive screw up. Sure, most of the folks on the distribution list were journalists, but exposing their names that way, particularly for those that are working within Afghanistan, isn't a good thing. Besides that, not all the people who were exposed were journalists.

[The list] also includes an address appearing to belong to a provincial governor, an Afghan legislator, several academics and activists, an l Afghan consultative committee, and a representative of Gulbuddein Hekmatar, an Afghan warlord whose outlawed group Hezb-i-Islami is believed to be behind several attacks against coalition troops.

Somehow I don't see this making the Taliban brass very happy. And Senator Joe Lieberman wants internet services to block Taliban messages? Why? Let them keep making these kind of mistakes.

Ever since ICANN announced plans to allow tons of new top level domains to enter the market, many have recognized that this was nothing more than a money grab -- as companies would feel compelled to buy up "their" names to keep them out of the hands of others. What's amazing is that TLD operators are barely even hiding this in their marketing material. Lauren Weinstein recently received a "pitch" from the operators of the new .sx domain. .sx isn't one of the new "generic" TLDs from ICANN, but rather is a newish TLD from Sint Maarten (an "autonomous country" from within the Netherlands) similar to various other "new" TLDs built off of lucky country codes (such as .tv, .ly and .co). However, the marketing message for .sx is really quite incredible. Basically, they're saying .sx is quite similar to "sex" and, gee, you wouldn't want your brand associated with sex, would you?

Dear *******

We would like to inform you that the Landrush Phase of the new .SX extension of Sint Maarten has now closed and will be available next Thursday, on November 15th, 2012 in the final phase called

General Availability

> From that date, you will be able to register .SX domain names on a first-come-first served basis.

We would like to emphasize the importance of the .SX extension that can be confused with or misspelled from the word

sex

registering your trademark or company names as domain in the extension may thus protect your image and prevent from confusion with the adult industry.

If this feels mighty close to the traditional "nice business you've got there... wouldn't want anything to happen to it, now would you?" approach, that's because it's pretty clearly the idea behind this line of marketing. Pay up or something un-family-like might show up near your brand.

One of the many problems with the "guilty until proven innocent" approach to tackling unauthorized filesharing is that it's not clear exactly who should get the punishment. For example, in France, we saw someone convicted not for infringement that he had committed, but something his then-wife had done and even admitted. And it's not just spousal activity that is problematic, as TorrentFreak reports in this interesting case from Germany:

A ruling handed down yesterday by Germany's highest court represents a blow to rightsholders in their quest to clamp down on illicit file-sharing. The court ruled that the parents of a teenager who had made available more than 1,100 songs on file-sharing networks can not be held responsible for their son's infringements, nor be required to monitor or hinder his online activities.

What's particularly interesting here is that Germany's top court not only threw out the original fine, but did so without imposing any unreasonable conditions on the parents, for example by requiring them to spy on their child:

The Court ruled that the parents had met their parental obligations when they informed their child of "basic do's and don'ts" including that file-sharing copyrighted content online is illegal.

Furthermore, the Court ruled that the parents were not required to monitor their child's online activities nor install special software to restrict his online behavior. This would only be required should the parents have "reasonable grounds" to presume that their child would engage in infringing activities online.

Of course, not everyone was happy with this result, which could have major implications for imposing fines in Germany, since it seems likely that much unauthorized file sharing there as elsewhere is carried out by teenagers in their family homes. The Netzpolitik.org blog pointed us to an interesting comment made by a representative of the music industry (original in German):

The case shines "a harsh light" on the fact that, for many parents, the concept of upbringing has become a foreign word, the legal representative of the music industry complained, according to the AFP news agency at the hearing before the federal court in Karlsruhe. While before "an occasional slap didn't hurt", today children are kept on a loose leash.

This hankering after the good old days when parents could hit children to cow them into submission is hardly surprising: it's the physical equivalent of the disproportionate legal punishment the music industry would like to see meted out to all those caught doing naughty things online like sharing files without permission.

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For many school administrators, the default mode is to limit the rights of students while enforcing very broadly-worded policies. The default mode may start shifting, though, as more courts are reminding administrators that, while students' rights may be more constrained than those of adults, they're not nonexistent.

Recently, a court reminded a Minnesota school district that demanding a student's Facebook password was a violation of her First and Fourth Amendment rights. The judge stated:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door.

In an on-going case in Kentucky, the state supreme court is trying to determine whether students are entitled to Fifth and Sixth Amendment protections, specifically those related to "Miranda rights." (via Reason)

The Kentucky Supreme Court is considering a case from Nelson County that could require school officials to give the Miranda warning – You have the right to remain silent. Anything you say can and will be used against you ... – when questioning a student with a school resource officer present.

Miranda warnings are required when a subject is in custody – when a suspect thinks he’s not free to leave – and at issue is whether a student grilled in the principal’s office inherently fits that description.

This is an interesting question. Students being detained in principals' offices are generally granted "release" at the discretion of the administrator. It's certainly not a formal detainment, like being placed in a holding cell, but it certainly isn't optional either. The U.S. Supreme Court has said that a person is in custody when "the circumstances would lead a reasonable person to conclude he was not free to leave." This would seem to be the normal conclusion a student would draw from a mandatory visit to the principal's office.

In a brief for N.C., assistant public advocate Robert Strong says that when a student is sent to the principal’s office, “He is not allowed to leave until the principal says so.” In other words, a reasonable student would conclude he was in custody, “given the coercive nature of the principal’s office,” Strong says.

This case sprung out of an incident at a Nelson County school in which a student gave another student some prescription painkillers. The "school resource officer" (actually an armed deputy sheriff) charged the student with illegally dispensing a controlled substance. The student was sentenced in a juvenile court to 45 days in an adult prison (?). His appeal (which was denied) argued that his statement should have been suppressed because he wasn't read his Miranda rights before being questioned.

There's actually some related precedent for this case. The U.S. Supreme Court handed down a ruling on students and Miranda warnings last year in a case from North Carolina, stating that the student's age must be considered when determining whether they have a right to a Miranda warning.

The facts of that case, in which a 13-year-old was interviewed by police at school about a series of neighborhood thefts, were “eerily” similar to N.C.’s case, Strong said. The boy was escorted by an armed school resource officer to an office, where he was interviewed by the officer with an assistant principal present. Neither gave him a Miranda warning.

The U.S. Supreme Court noted the purpose behind Miranda is to keep subjects from being coerced into giving false confessions, to which children are particularly prone. “A reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go,” Justice Sonia Sotomayor wrote for the court.

Most students are probably unaware of their rights and administrators seem mostly unwilling to pass on that information. It's easier for adminstration if the students operate under the assumption that their rights are limited to whatever the school policies grant them. When students are being interrogated like suspected criminals, with an armed officer present, it would seem they should be granted the same rights as other criminals (especially if the end result is a stay at an adult prison) and be given a Miranda warning before any questioning occurs. This seems like the least the school could do. But, as statements by the administration director show, the district has no interest in granting students these rights.

Simple investigations would be hamstrung and schools would be less safe if principals, every time they question a student, “must look into a crystal ball and predict, ‘This could lead to criminal charges, I have to Mirandize this child,’ ” said Wayne Young, executive director of the Kentucky Association of School Administrators.

If you're bringing an armed member of law enforcement into the room, it would seem that you've already made that determination, or have gathered enough evidence to warrant their presence. But schools with law enforcement on staff have been known to bring them along for nearly any reason, possible criminal offense or no. The case mentioned above dealt with some supposedly "bullying" statements made on Facebook about a member of the school's staff and that interrogation involved three members of administration and a law enforcement officer armed with a taser. To handle one teenage girl.

And as for the feeling that "simple investigations" would be "hamstrung" by the Miranda warning? Too bad. The police have to do it and their investigations usually concern something more threatening to safety than Facebook status updates and painkiller distribution.

Young isn't done, though. He takes the same hardline many in law enforcement and various intelligence agencies do. Alleged criminals don't deserve rights.

“If a crime is being committed in school, if somebody is handing out pain medication, I don’t think we should be troubled with constitutional niceties.”

He said courts have given schools leeway on student free-speech issues and searches, which don’t require warrants in schools, because of the importance of maintaining safety and order on campus. “The goal is to protect all children, and it doesn’t bother me if a child’s constitutional protections are limited, if it is to protect all children,” he said.

That's the same excuse used by everyone from the local school to the NSA: "safety" trumps "constitutional protections." The fact that Young refers to Constitutional rights as "niceties" reveals the condescending and dismissive attitude he has for those under his control. It's little wonder he believes that students shouldn't be read the Miranda warning, as "niceties" like the Fifth and Sixth Amendment simply get in the way of "safety" and "order." (Without Godwin-ing anything, it's a bit chilling to hear someone openly value "order" over "personal freedoms.")

Young's fears that apprising students of their Miranda rights will upset order or compromise safety are irrational. Paul Holland, dean at Seattle University Law and a Youth Advocacy Clinic instructor, believes that if school administration is going to collaborate with law enforcement when questioning students, they should "err on the side of advising students of their rights."

Holland said the fear that safety would be compromised is ill-founded because the Miranda doctrine already contains an exception when there is an imminent threat – such as for questions about the existence or location of weapons on school grounds.

Even if a student’s answers are suppressed because of a Miranda violation and couldn’t be used in a criminal case, they still could be used to suspend or expel a student, he points out in “Schooling Miranda: Policing Interrogation in the 21st Century Schoolhouse.”

It is also likely that most students will waive their right to remain silent or to an attorney, he said. “Thus, the amount of information lost to Miranda would be slight.”

Advising students of their Miranda rights is granting them a modicum of control, something Nelson County's administrators seem loathe to do. This sort of atmosphere pervades many school districts, thanks to overreaching anti-bullying policies and a general push for greater control of every aspect of their students' actions, on or off campus. If actual dangerous suspects are granted this right, however begrudgingly, why is it such a problem to extend it to students?

We'd heard a number of reports about how the TSA was already either retrofitting the various naked scanners or moving on to less privacy invasive versions, but there were two interesting points to come out some Congressional hearings on the devices yesterday. First, apparently there is some concern that the makers of the Rapiscan machine (and, yes, it still amazes me that anyone thought that was a good name), OSI Systems, may have "manipulated" tests in order to claim that the machines did not invade travelers' privacy:

The company “may have attempted to defraud the government by knowingly manipulating an operational test,” Representative Mike Rogers, chairman of the House Transportation Security Subcommittee, said in a letter to Transportation Security Administration chief John Pistole Nov. 13. Rogers said his committee received a tip about the faked tests.

OSI, of course, is denying it, but this is the same company that also apparently ran into problems last year when maintenance reports suggested radiation levels 10 times as high as promised.

The other bit of news? The TSA has admitted that it has simply put a bunch of these machines in storage -- 91 machines, worth $14 million -- because of related privacy concerns.

While it's a good thing that privacy violating machines aren't being used, it raises serious questions about why they were purchased and put into use in the first place -- and done so without ever taking comment from the public, as is required under law. Perhaps if they had actually done that, they would have avoided wasting so much taxpayer money on machines that violate everyone's privacy.

I'm spending today at a conference at Santa Clara University's Law school on Solutions to the Software Patent Problem. It seems only fitting that as this is happening, I've been alerted to a completely ridiculous new patent: Appsbar has put out a press release gleefully announcing that it's been granted a patent on offering a "create your own mobile app" development platform. Stunningly, the patent in question, 8,261,231, was just applied for in February of this year. I'm at a loss as to how a competent patent examiner could possibly think that a mobile app development platform is somehow new or non-obvious in this day and age.

Hell there are entire lists of similar platforms, and those lists appear to have been created before this patent was applied for. What is the USPTO doing over there?

Patent system defenders will immediately jump in to say that a patent is really all about its claims, but go take a look at those ridiculously broad claims. Claim number 1 is the main claim here, and what it describes is nothing special at all. It's just a simple web-based platform for developing mobile apps that can run on a variety of mobile platforms.

That's not new. Companies, like the now apparently defunct Whoop were doing exactly that years ago. Just the very concept of a simple platform for app development (even cross-platform app development) isn't even close to new. Such things have been around for ages. How can someone honestly think that this is "new" and not "obvious."

And yet Appsbar (which at least does offer a product) now not only holds this patent, but the press release was put out as way of announcing its plans to enforce the patent vigorously:

“We are proud that the U.S. Patent and Trademark Office recognizes the innovative and proprietary set of features offered by Appsbar and we plan on strictly enforcing our patent with other companies that currently provide similar types of services,” said Scott Hirsch, founder and CEO, Appsbar. “Until Appsbar, novice tech users, small businesses, general consumers and more had to rely on an entire internal design and software team or hire a costly agency for the design, creation and publication of apps.”

First off, the second half of that quote? Not true. I remember a few years ago we developed a Techdirt app using one of these platforms. It took all of about 10 minutes of playing around on some website. As for the first half, the fact that even they admit that there are a bunch of other companies already in this space basically shows that this patent is covering an old idea that is quite obvious at this point.

So if we're looking at how to fix the patent problem, can we at least start with this simple concept: stop approving completely ridiculous patents like this one.

As the legacy of Louis CK grows, as does his fanbase and his ability to get the closed to be more open, it's worth noting that comedians have long existed on the edge of the IP world. While some comedians will occasionally pull out the copyright card, accusations of joke-stealing and copyright infringement of their acts haven't found the same hold as in music and movies. There is a great deal of borrowing and tweaking going on in the joke world and yet the comedy business is still around.

Now we can add another comedian to the list of folks who just don't see infringement as a problem, and think of the internet as a boon rather than a threat: Doug Stanhope. In an interview with Wired -- which is hilarious enough to be worth reading the entire thing -- the former Man Show frontman took on the notion that piracy is harmful.

The internet has done nothing but good for comedy all around. Comedians no longer have to rely on TV execs and club owners deciding if they are funny or not. There’s the problem of piracy if you think it’s a problem. I credit piracy with getting my name known enough to have a decent career. People bootlegging shows on cellphones and putting material out before it’s finished is a problem for every comic, but compared to all the upsides of what the internet has done, it’s a fact of life that we’ll learn to adapt to even if it means finding these people and killing their families in front of them.

Now, I'm at least 75% certain that the last bit about killing families for infringement is a joke, but his larger point is a gem. When we, all of us, think about what we want the internet to be, it is important for us to weigh the sum total of its impact. If I may extrapolate on Stanhope's statement, I would argue that this completely undermines the view the piracy and/or sharing must be stamped out on simple moral grounds. We've all heard the "but piracy is just wrong!" arguments (or, heard that in substitute of an actual argument) but that's nonsense. Piracy, infringment, and sharing would be wrong if there were a net-negative impact on the works being infringed upon or shared. If there is a net-benefit to those people, as Stanhope suggests there indeed is, how in the hell could that be morally wrong?

Further on that point, while some may argue that it is still wrong because the infringers are not respecting the wishes of the artist, look at how Stanhope frames it: Piracy is a problem if the artist thinks it's a problem. Bootlegged shows and uploads may present challenges and problems, but they are going to adapt. It seems to me that it is every bit incumbent upon artists, be they comedians or musicians, to change their frame of reference as it is on the internets denizens to respect the artist's wishes.

There's been a lot of discussion lately about how far the US has fallen behind other countries when it comes to high speed broadband. And many are taking it for granted that high speed broadband is important to economic growth and viability. Yet Tim Worstall, over at Forbes, argues that "High Speed Broadband Doesn't Matter A Darn" because a UK study showed that people don't use super high speeds. He quotes a report (pdf) from Booz & Co.

But speed in itself is not enough to encourage usage. Ofcom (an independent regulatory authority for U.K. communications industries) has noted that in 2011 superfast coverage of the U.K. was at 60 percent, but only 6.6 percent of all connections were taking advantage of the top speeds. This suggests that focusing on availability is no guarantee of deriving full benefit from the investment.

Worstall then uses this to argue that speed isn't an issue and we shouldn't invest in faster broadband:

As should be obvious, it’s not the speed of the internet that produces the economic growth. It’s the people using the internet that does. And if only 6.6% of the traffic is using the speeds we already have then there really isn’t much of a case for throwing billions at making it all faster. So that, presumably, only 6.6% of the traffic will use that higher speed.

In fact, given the low numbers even bothering to use current speeds I’d say this is a very good argument for not spending a lot of money to roll out high speed broadband everywhere. The most important reason quite possibly being that I rather doubt that broadband is going to be the technology of choice for much longer.

This reasoning is faulty on many, many levels. First off, if you look at the full Booz report, almost every conclusion is exactly the opposite of what Worstall suggests. He seems to take that one paragraph out of context, and assume that because only a small percentage of people were taking advantage of "top speeds" it means that there's no real demand for it and no economic benefit.

That's making a big assumption. He's right that "it's not the speed of the internet that produces the economic growth," and that it's the people, but he ignores that part of what brings in those people are the services online -- and new, better and more useful services are quite frequently enabled by higher speeds. It's almost hard to imagine how much more can be done online as speeds pick up. A decade ago, the idea of so much video online was crazy. And yet, here we are.

Second, the fact that only a small percentage of people are using full broadband capabilities is meaningless. That's a snapshot, not a look at the trend. What happens is that as more services offer up useful features that increase the number of things you can do with broadband, more people will use it. The last thing you want to do is get caught waiting -- and then suddenly have all your users pissed off that the broadband can't handle the latest and greatest applications and use cases.

Faster broadband doesn't immediately get soaked up, but it does lead to greater investment in bandwidth-intensive services, and that will increase usage and expand the economy. Taking one quote out of context and then looking at a snapshot rather than a trend is not a particularly compelling reason to pull out on key infrastructure investment at a time when it's needed most.

The rapid uptake of ebooks by the public shows that there is a widespread recognition of their advantages. This would be good news for the publishing industry as it faces the transition from analog to digital formats, were it not for the fact that some publishers keep finding new ways of making ebooks less attractive than physical versions.

Here's the latest idea: electronic versions of textbooks that spy on students as they read them:

Say a student uses an introductory psychology e-textbook. The book will be integrated into the college’s course-management system. It will track students' behavior: how much time they spend reading, how many pages they view, and how many notes and highlights they make. That data will get crunched into an engagement score for each student.

The idea is that faculty members can reach out to students showing low engagement, says Sean Devine, chief executive of CourseSmart. And colleges can evaluate the return they are getting on investments in digital materials.

Well, the idea might be that it will help students will low engagement, but you can bet that it won't stop there. It will also be used to spy on whether students are cheating, as indicated by an implausibly small number of hours spent reading texts; or it might be used to check on whether books are being lent out to friends who aren't "authorized" to read that copy, as evidenced by unusual reading patterns.

Similarly, it's easy to imagine colleges starting to put pressure on students to read in certain rigidly-defined ways in order to "maximize" the return on that investment in digital materials -- hardly what education and learning to think for yourself are all about. Maximizing return will doubtless also lead to this reporting feature becoming mandatory -- at the moment students can opt out if they wish -- purely in the name of efficiency, you understand.

What's really tragic is that digital textbooks have the potential to be used in all kinds of truly innovative ways -- for example, allowing a class to share annotations in real time, making the whole reading experience more social; or perhaps editing and combining texts to produce exciting re-workings and re-imaginings. Instead, publishers are obsessed with tracking users and controlling how they use ebooks, largely out of an absurd, underlying fear that somewhere along the line somebody might be doing something without paying for it.

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An internal investigative report of the SEC's Trading and Markets division has been recently been reviewed by Reuters. After reading its rundown of the misdeeds and abuses uncovered, I'm left with the urge to laugh maniacally in the manner of someone having just cleared the tipping point and now sliding irretrievably into insanity. The sheer irresponsibility on display here springs from the sort of irredeemable carelessness that comes with spending other people's money (taxes) and operating without any credible oversight or accountability (a large percentage of government entities).

Bess Levin at Dealbreaker points out that while the SEC's internal investigation may have turned up several misdeeds, ranging from the merely stupid to the positively horrendous, it is quite a step up from the insatiable pornhounds that used to populate the Commission:

If you had asked us two years or two months or two days ago if we thought that there would be a time in the near future when Securities and Exchange employees would not be regularly reprimanded for watching porn on their work-issued computers for 98 percent of the workday, we would have said absolutely not. No judgment, but in our professional opinion, people do not go from, among other things:

* Receiving “over 16,000 access denials for Internet websites classified by the Commission’s Internet filter as either “Sex” or “Pornography” in a one-month period”

* Accessing “Internet pornography and downloading pornographic images to his SEC computer during work hours so frequently that, on some days, he spent eight hours accessing Internet pornography…downloading so much pornography to his government computer that he exhausted the available space on the computer hard drive and downloaded pornography to CDs or DVDs that he accumulated in boxes in his office.”

…to living a porn-free existence at l’office.

Truly a mind-boggling set of employees. One regional staff accountant ran into the "no-porn" wall 1,800 times in a two week period, yet remained undeterred. Those caught accessing porn with ridiculous frequency cited the "stress" of their jobs as the underlying reason for the nearly uninterrupted pornathons.

But this porn-heavy chapter in the SEC's history is now behind them, according to an internal investigative report viewed by Reuters. Moving boldly forward, the SEC has apparently ushered in a new wave of semi-competence, the sort befitting an agency that is entrusted with keeping our financial systems free of corruption. So, how is the New, Improved SEC doing?

Several Securities and Exchange Commission staffers responsible for monitoring the markets and exchanges broadly misused computer equipment to download music and failed to properly safeguard sensitive information, a report has found.

Well, that's one strike for infringement and one strike for not securing sensitive information. "Securing information" seems to be something the SEC's Trading and Markets division is particularly bad at. To say this is ironic would be a colossal understatement, considering the government's current obsession with all things "cyber."

The report also found that the staffers failed to protect their computers and devices from hackers, even as they were urging exchanges and clearing agencies to do just that.

Although no breaches occurred, the staffers left sensitive stock exchange data exposed to potential cyber attacks because they failed to encrypt the devices or even install basic virus protection programs.

The report says the staff may have brought the unprotected laptops to a Black Hat convention where hacking experts discuss the latest trends. They also used them to tap into public wireless networks and brought the devices along with them during exchange inspections.

Considering the amount of sensitive information the SEC has access to, it's stunning that the barest minimum of precautionary measures were never taken. This protection-free era of SEC computing occurred during the same period the SEC was issuing guidelines for public companies to follow when reporting security breaches to investors.

In addition to this complete disregard for basic security, the SEC Tradings & Market Division was handed a blank check to purchase equipment, leading to some unsurprising abuse.

[T]he full report... details an even broader array of problems, from misleading the SEC about the office's need to buy Apple Inc products, to cases in which staffers took iPads and laptops home and used them primarily for pursuits such as personal banking, surfing the Web and downloading music and movies.

Rymer found that the office did not have any planning or oversight into its purchases of computer equipment. From 2006 through 2010, the office got permission to spend $1.8 million on technology devices.

As Levin points out, it's an upgrade from the staff's former pornaholic ways but this report gives off the impression that staffers have simply found new ways to screw up. Would that this report contained anything truly surprising, but it's more of the same. It's not that all government entities are shot through with bumbling fools and opportunists looking for some power to abuse. Individually, there are plenty of good, hardworking public servants. But as an aggregate, nearly every derogatory cliche of government work (and government employees) can be proven true.

At the very least, I suppose we (the people and the taxpayers) can be grateful that someone is looking into this and, better yet, ushering it out of the darkened hallways of regrettable governance and into the harsh sunlight of public appraisal. But with progress so incremental it barely fits the definition, there's still a long, hard road ahead that will demand the full attention of those tasked with shepherding the (mostly) unwilling herd.

Although things have gotten rather quiet on the TPP front, that doesn't mean that the juggernaut has been halted. On the contrary: after Canada and Mexico signed up to join the negotiations under highly unfavorable terms, it now looks like Thailand is about to do the same, as the Bangkok Post reports:

Thailand's entry into the Trans-Pacific Partnership (TPP) will be a highlight of the visit [to Thailand] by the US president amid concern by activists over the consequences of the far-reaching free trade pact.

Those concerns are chiefly about access to medicines at affordable prices. This became an area of contention after previous bilateral negotiations with the US collapsed in the wake of the military coup in Thailand, as infojustice.org explains:

In late 2006, after the FTA [Free Trade Agreement] negotiations had fallen apart, the Ministry of Health began granting compulsory licenses for needed medicine. Between November 2006 and January 2007, it granted licenses for patents on two antiretroviral drugs (efavirenz and lopinavir+ritonavir) and clopidogrel, a heart medication sold by Bristol Myers Squibb. The licenses were issued for government use, after years of prior negotiation with the patent holders, and include a 0.5% royalty rate. USTR responded by putting Thailand on the 301 Priority Watch List, citing "further indications of a weakening of respect for patents, as the Thai Government announced decisions to issue compulsory licenses for several patented pharmaceutical products." Thailand has remained in the Special 301 Report ever since, and it was subject to an "out of cycle review."

If Thailand joins the TPP negotiations, it will undoubtedly be forced to rescind those compulsory licenses -- one of the key features of TPP is its strengthening of protection for pharma patents. The inevitable consequence of that will be increased prices in Thailand for key medicines, and more people suffering and dying as a result. It would be interesting to know what pressure has been brought to bear on the Thai government to take what seems such a damaging step for its people, when other nations are moving in precisely the opposite direction.

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