crossposted from ninapaley.com

I am hereby changing Sita Sings the Blues' CC-BY-SA (Share Alike) license to CC-0.

A few years ago I started thinking about taking a vow of non-violence: a commitment to never sue anyone over Knowledge (or Culture, Cultural Works, Art, Intellectual Pooperty, whatever you call it). Copyright law is hopelessly broken; indeed, the Law in the US is broken all over the place. Why would I resort to the same broken law to try to fix abuses that occur within it?

We live in a messed-up world. My choices, however principled, will not change that. People will continue to censor, suppress, and enclose Knowledge. Share-Alike- the legal requirement to keep Knowledge Free - has ironically resulted in the suppression of same.

"Not using knowledge is an offense to it," wrote Jeff Jarvis, reflecting on the death of Aaron Swartz.

I learned of Aaron's death on Sunday; on Monday, the National Film Board of Canada told me I had to fill out paperwork to "allow" filmmaker (and personal friend) Chris Landreth to refer to Sita Sings the Blues in his upcoming short, Subconscious Password, even though Fair Use already freed the NFB from any legitimate fear of Share-Alike's viral properties. I make compromises to my principles every day, but that Monday I just couldn't. The idiocy of NFB's lawyers was part of the same idiocy that Aaron fought in liberating documents from JSTOR. I couldn't bear to enable more bad lawyers, more bad decisions, more copyright bullshit, by doing unpaid paperwork for a corrupt and stupid system. I just couldn't.

So the NFB told Chris to remove all references to SSTB from his film.

There are consequences for taking a principled stance. People criticize you, fear you, and pity you. You get plenty of public condemnation. You lose money. Sometimes the law goes after you, and although that hasn't happened to me yet, it could as I do more civil disobedience in the future.

But the real victim of my principled stance isn't me, it's my work. When I took a principled stance against Netflix's DRM, the result was fewer people saw SSTB. When countless television stations asked for the "rights" to SSTB and I told them they already had them, the result was they didn't broadcast it. When publishers wanted to make a SSTB-based book, the Share-Alike license was a dealbreaker, so there are no SSTB books.

My punishment for opposing enclosure, restrictions, censorship, all the abuses of copyright, is that my work gets it.

Not using knowledge is an offense to it.

So, to the NFB, to Netflix, to all you publishers and broadcasters, to you legions of fucking lawyers: Sita Sings the Blues is now in the Public Domain. You have no excuse for suppressing it now.

Am I still fighting? Yes. BUT NOT WITH THE LAW. I still believe in all the reasons for BY-SA, but the reality is I would never, ever sue anyone over SSTB or any cultural work. I will still publicly condemn abuses like enclosure and willful misattribution, but why point a loaded gun at everyone when I'd never fire it? CC-0 is an acknowledgement I'll never go legal on anyone, no matter how abusive and evil they are.

CC-0 is as close as I can come to a public vow of legal nonviolence. The law is an ass I just don't want to ride.

I cannot abolish evil. The Law cannot abolish evil; indeed, it perpetuates and expands it. People will continue to censor, silence, threaten, and abuse Knowledge, and our broken disaster of a copyright regime will continue encouraging that. But in fighting monsters, I do not wish myself to become a monster, nor feed the monster I'm fighting.

Neither CC-BY-SA nor CC-0 will fix our terribly flawed world with its terribly broken copyright regime. What I can say is SSTB has been under CC-BY-SA for the last 4 years, so I know what that's like and can share results of that experiment. Going forward under CC-0 I will learn new things and have more results to share. That seems like a win even if some bad scenarios come into play. I honestly have not been able to determine which Free license is "better," and switching to CC-0 may help answer that question.

We've talked about Jonathan Coulton and his embrace of the internet and new business models plenty on Techdirt -- as well as his nuanced arguments concerning copyright infringement. He's not "pro-piracy," but recognizes that the overall growth of the internet that has resulted in more infringement has also created tremendously valuable tools and services that made his music career possible. Thus, recognizing that the two things go hand in hand, he notes that it's better in the long run. So what does he do when someone infringes on his rights? Well, he goes public.

As some have noted, Coulton has called out Fox for apparently copying his arrangement of Sir Mix-a-Lot's "Baby Got Back" in the TV show Glee. You can see his version here: And then there's the Glee version, which is quite similar, and includes a few of Coulton's own additions: Yes, his is a cover song, but he introduced some variations that appear to be directly copied in Glee. Is there a potential copyright claim here? Well, that depends -- and the copyright law here is complex. You can cover a song by paying compulsory license fees, and Fox likely did that to whoever holds the copyright on the original. But they copied specific changes (and possibly the music) that Coulton added, which could potentially be covered by his own copyright (of course, whether or not he registered them could also impact what he could do about it). And let's not even get into the issue of things like sync licenses for video, and the (still open) question of whether or not Glee actually used part of Coulton's own recording.

In the end, though, almost none of that probably matters. Because Coulton seems unlikely (we hope) to go legal here. Instead, he's just going with the public shame route -- with a simple tweet about the situation, which has set off "the internet" to help him make his case and embarrass Fox and Glee.

Internet sleuths immediately went to work on the question, creating side-by-side comparisons of the audio (which are very convincing) and even unearthing an official Fox version of the as-yet-unreleased single in the Swedish iTunes store. While the track is not currently available in the American store, gaming blog Kotaku claims that it “was available earlier and was pulled by Fox.” Despite calls from Twitter and multiple media organizations, the network has yet to make a statement as of this afternoon, but, all things considered, it’s looking pretty bad for Glee.

Of course, as a public storm of support rises behind Coulton, it seems likely that Fox/Glee producers will step up, apologize and probably cut Coulton a check of some sort. All of that seems a lot more efficient -- and it didn't require copyright law at all. Just a bit of public shaming for a bad actor. Of course, just imagine if the situation had been reversed, and Coulton was caught making use of a News Corp.-owned song. In that case, you'd have to imagine that the cease and desist letters and lawyers would have popped up quite quickly....

The backlash against the publication of gun owner data by the Lower Hudson Journal News late last month has turned into a backlash against "freedom of information" laws. Putnam County officials started this regressive ball rolling by refusing to comply with the Journal News' request, breaking a state law in the process. No matter, Sen. Greg Ball was there to share the limelight and offer to rewrite the state law to limit gun owner date to prosecutors and law enforcement.

As was noted then, making exceptions to freedom of information requests on the basis of public outcry is a giant step in the wrong direction. Holding back public records or granting disclosure exceptions simply because the information might be used in an unpleasant way just makes it easier to make more exceptions and withhold more information down the road. This is the direction the state of New York is now headed with the passage of its gun control bill, the NY SAFE Act of 2013, an exemption for gun owners that flies in the face of Governor Cuomo's earlier transparency promises.

Last week, New York Governor Andrew Cuomo laid out an ambitious open government agenda in his state of the state address, declaring his commitment to provide "easy, single-stop access to statewide and agency-level data, reports, statistics, compilations and information." This week he carved out his first exemption: gun owners.

The anonymity exemption, which requires gun owners to provide a reason they wish to remain out of the public record, is a response to the controversy that followed the Journal News' publication last month of the names and addresses of over 33 thousand hand gun permit holders in Rockland and Westchester counties, north of New York City.

The problems with this exemption are obvious. If one set of individuals can effectively "opt out," what's to stop others from claiming they too should be exempted?

"It sets a dangerous precedent," says Noel Hidalgo, Code for America's New York Program Manager, "where special interest groups can exempt their communities." If firearm owners can create an exemption from public disclosure, than why couldn't licensed livery car drivers, healthcare workers, sellers of pesticide or lawyers?

For that matter, what's to stop those in power from crafting even broader exemptions for favored lobbying groups, colleagues or for any other data they wish to keep hidden from the public? It's not so much that this exemption is a slippery slope -- that slope has long since been descended -- it's that placing arbitrary limitations on requested data, especially in response to an isolated incident, compounds an existent problem: the ongoing lack of transparency in many government agencies.

Even worse, there were better ways to handle the gun owner data that would not have required altering existing laws by adding an exploitable exemption:

"Some of the concern with the Journal News dataset is the fact that they put an individual's name and address with a gun," says Hidalgo. According to him, listing gun permit holders by name and zip code or census tract could better satisfy the competing demands the personal privacy and public disclosure, than simply exempting data from public record.

The law gives gun owners a chance to opt out using one of two reasons: belief that publication of their data would put their life at risk (police officers, former witnesses/jurors in criminal cases, etc.) or the wish to avoid "unwarranted harassment." Bob Freeman, the executive director of New York's Committee on Open Government, says this wording is way too vague.

"We're all involved in 'unwarranted harassment' every day of our lives," he continues, referring to his full e-mail box in the morning, and unsolicited calls from journalists as potential examples.

Meanwhile, Sen. Greg Ball's legislation is still in motion, looking to exempt pistol purchasers from FOI disclosure. Those registering for a pistol permit will be automatically opted-in under his proposal. Ball lays part of the blame on modern technology, suggesting that if the information were only a bit harder to attach to a Google map, he'd leave the law unchanged.

When initially established the Freedom of Information Law couldn't possibly be written to factor in modern technology including social media tools (Twitter, Facebook, etc) or advanced mapping technologies like Google Maps. These social media advancements emerged as commonplace tools to access personal information after many public information laws were passed. The advent of the Internet must be considered when working to ensure every citizen of New York has both their privacy and safety protected, guaranteed by law.

Like many lawmakers, Ball only wants to update laws to reflect the "advent of the internet" when it aligns with his agenda. We've seen resistance to update laws that operate favorably for those benefitting from the lack of timeliness, including outdated gems like the Computer Fraud and Abuse Act or various copyright laws that proponents want stretched past their expiration date in order to treat file sharing like selling bootleg DVDs out of the trunk of a car. Ball's desired update of the FOI law isn't about reflecting the current reality; it's political opportunism that dovetails nicely into the government's natural tendency towards opacity.

The state of New York has taken several steps in the right direction in terms of transparency. Now it's allowing the prevailing winds to push it a step back.

UPDATE(S):

Some last-minute additions, tacked on to the bottom, as this post has already been "put to bed," as they say in places where ink still hits paper.

The Lower Hudson Journal News has decided to take down its "gun map," claiming that it wished to follow the "spirit" of the newly-passed NYSAFE gun law exemptions. Here's the paper's full statement:

With the passage this week of the NYSAFE gun law, which allows permit holders to request their names and addresses be removed from the public record, we decided to remove the gun permit data from lohud.com at 5 pm today.

While the new law does not require us to remove the data, we believe that doing so complies with its spirit. For the past four weeks, there has been vigorous debate over our publication of the permit data, which has been viewed nearly 1.2 million times by readers. One of our core missions as a newspaper is to empower our readers with as much information as possible on the critical issues they face, and guns have certainly become a top issue since the massacre in nearby Newtown, Conn. Sharing as much public information as possible provides our readers with the ability to contribute to the discussion, in any way they wish, on how to make their communities safer.

We remain committed to our mission of providing the critical public service of championing free speech and open records.

And, from the if-you-don't-have-time-to-do-it-right,-how-will-you-find-time-to-do-it-twice department, the rushed NYSAFE bill failed to include exemptions for law enforcement.

A New York lawmaker says that the state’s recently passed gun control law stunningly fails to include any exemptions for law enforcement officers, and technically prohibits police from ever bringing guns on school grounds or possessing extended ammo magazines.

Of course, no one really has to do it twice. A Cuomo spokesman has already verbally exempted police officers from the new law, allowing it to join the many other laws police officers are free to ignore. (Jab!) Presumably, amended language will join the rest of the passed bill early next week. 

With more manned space missions planned (both governmental and commercial), the menus for astronauts could be expanding -- especially for passengers of Virgin Galactic flights who might expect more than a bag of peanuts for their tickets. Here are just a few items that have already made it onto space menus.

• Somewhat unexpected foods have been eaten in space -- such as sushi, smuggled communion wafers, and a secretly-stashed corned beef sandwich. Emeril Lagasse and Rachel Ray have also prepared a few recipes for space meals. [url]
• About 9 months prior to a mission, NASA astronauts start picking out what they'll eat while they're up in space. Tang wasn't designed for any space program, but its powdered formula is a convenient way to store flavored beverages for spaceflights. NASA-approved beverages include coffee, tea, apple cider, orange juice and lemonade. [url]
• NASA has published several fact sheets on what astronauts eat in space. Random factoid: SkyLab was apparently the only spacecraft that offered both a freezer and fridge for food storage. [url]

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

If you sit down quietly, wherever you are, close your eyes, quiet your heart, and listen closely enough, you'll be able to hear someone somewhere talking about how journalism is dead and the internet killed it. Even some of traditional news media's players draw an odd distinction between paper and web content. More specifically, there are many who question where investigative journalism will go once traditional news finishes its death convulsions and the web is what's left.

Well...it will go to the web, of course. And for those who believe investigative journalism and the internet go together about as well as peanutbutter and meatballs, one of the biggest stories circulating the sporting world right now should disabuse you of that notion, because it was Deadspin that independently broke the story of Notre Dame's Manti Te'o's fake dead girlfriend (I never get tired of saying that), while the traditional news sources completely screwed the pooch and possibly even sat on the story. If you're not familiar with this tale of intrigue, well, it's just freaking strange.

Te'o was whipsawed between personal tragedies along the way. In the span of six hours in September, as Sports Illustrated told it, Te'o learned first of the death of his grandmother, Annette Santiago, and then of the death of his girlfriend, Lennay Kekua. Kekua, 22 years old, had been in a serious car accident in California, and then had been diagnosed with leukemia. SI's Pete Thamel described how Te'o would phone her in her hospital room and stay on the line with her as he slept through the night. "Her relatives told him that at her lowest points, as she fought to emerge from a coma, her breathing rate would increase at the sound of his voice," Thamel wrote.

It'd be a heartfelt sob story if...you know...Lennay Kekua existed. Unfortunately, she does not and did not. Instead, it appears she was the creation of a failed athelete who was associated with Manti T'eo. Given the way the narrative was infused with T'eo's bid for the Heisman Trophy, reasonable speculation currently centers on whether T'eo was in on the hoax and used it to further his own aims. Lest you think that breaking this story took some trivial amount of internet sluething, that's not the case.

But there is no SSA record there of the death of Lennay Marie Kekua, that day or any other. Her passing, recounted so many times in the national media, produces no obituary or funeral announcement in Nexis, and no mention in the Stanford student newspaper. Nor is there any report of a severe auto accident involving a Lennay Kekua. Background checks turn up nothing. The Stanford registrar's office has no record that a Lennay Kekua ever enrolled. There is no record of her birth in the news. Outside of a few Twitter and Instagram accounts, there's no online evidence that Lennay Kekua ever existed.

All of those photographs—with one important exception—came from the private Facebook and Instagram accounts of Reba [false name], whom we found after an exhaustive related-images search of each of Lennay's images (most of which had been modified in some way to prevent reverse image searching)...Then, in a series of lengthy phone calls, Reba told us everything she knew about the classmate, a star high school quarterback turned religious musician named Ronaiah Tuiasosopo.

Deadspin then went on to do in depth reporting on Tuiasosopo, including speaking with many people who know him and have knowledge of his antics and ties to T'eo. For those who are not impressed with this, seriously, follow the link to the piece at Deadspin, because the amount of content they were able to build around their investigation is insane. At worst, it's a hell of a story about a horrible college sports scandal.

But Deadspin, often maligned by the same traditional media that pretends they're the gatekeepers of investigative journalism, wasn't deaf to the failings of those same people. They put out a separate post, detailing every last failing the news media engaged in prior to their piece about the T'eo/Kekua story. Traditional media were played for suckers and it took a new media blog to make things right. As they note in their piece, the media wasn't just duped by this hoax, they amplified it.

While we've seen some politicians in Congress speak out about the prosecution against Aaron Swartz, for the most part, it had been the "usual crew" of folks who had formed the core of the anti-SOPA alliance -- Reps. Lofgren, Issa and Polis. That's great, but it also made it unfortunately easy for some to dismiss their complaints. However, it appears that this may be getting bigger. Senator John Cornyn has jumped in and sent a letter to Attorney General Eric Holder asking for an explanation of the prosecution against Aaron Swartz. He specifically asks a number of interesting questions:

First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the U.S. Attorney’s office file the superseding indictment?

Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?

Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.

Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

Interesting questions all around. As Emptywheel notes, that second question is a bit of a new one. People have talked about the earlier investigations of Aaron, as well as his activism, but little attention has been paid to his widespread use of FOIA. However, Aaron did file a lot of FOIA requests, using the same platform, MuckRock, that we've used here at Techdirt. In fact, MuckRock put up a post about Aaron's use of that service including the fact that Aaron and MuckRock were currently in the middle of appealing the results of a FOIA request concerning domain seizures -- a story that potentially could implicate the DOJ.

I am sure that we'll get the usual bland denials and non-answers from Holder, but it is significant to see Senators like Cornyn suddenly take an interest in this particular issue.

Dan Bull, whose music we've featured on Techdirt many times, has put together a song as a tribute to Aaron Swartz, entitled We Are All Aaron Swartz. It's short and sweet but makes the two key points: the loss of Aaron is terrible for the world, but also that the burden is now on the rest of us to continue Aaron's work.

There's been lots of anticipation about Kim Dotcom's new "Mega" service. We've mostly held off commenting despite all the speculation and rumors, because, well, they were all speculation and rumors, and Dotcom has a history of hyping things way up. However, Gizmodo apparently got a sneak peak at the service, which is set to launch tomorrow, and has revealed the basic details, claiming that "this service could dismantle copyright forever." That statement is ridiculous and pure bluster, not at all supported by the service.

From the description, the service does look nice and potentially useful. It's really just a cloud storage system, not an online Dropbox or Box.net or Google Drive. It has a nicely designed file manager feature. The real "difference" is just that Mega has client-side encryption built in. So, basically, you encrypt anything you put into the Mega storage system before you upload it, and thus even Mega doesn't know what's there (mostly) and can't decrypt it. You could hack together something like this with other services, if you just encrypted stuff yourself before uploading it to other cloud drives. By building it in, however, Mega is clearly adding a significant level of convenience.

All in all, it does look like a pretty nice service, and one that may be worth checking out if you use cloud storage regularly. That said, the claims of destroying copyright seem overblown. If the claim that a file can be shared "with a single right-click" is accurate, then once that link is used, it would be simple for anyone with access to Mega's log files -- including Mega and, potentially, government agents -- to decrypt the file and see what's in it. If that claim is an exaggeration, and a key needs to also be shared separately, then it's no different than how encrypted data is shared already. And copyright still exists.

There may be some more details to come out once the product is officially launched tomorrow, but if the service is to be used for sharing, as implied, then there has to be a decryption process somewhere. The Gizmodo piece is as bit unclear, but it sounds like this likely involves two Mega users having their local clients talk to each other somehow to share the decrypt code. But, obviously, a government or Mega itself could potentially also be that local client on the other end. Basically, once you're sharing, the "encryption" issue is still handy, but not a huge deal. And the user may be very liable for infringement.

In the end, it sounds like there are some nice features, and some additional protections from liability for Mega specifically, but I don't see how this "dismantles copyright" even temporarily, let alone forever. Also, given the way the government likes to interpret things, you can bet that if it wanted to, it will make the case that this use of encryption is a form of "inducement" for infringement as well.

All in all, it looks like an interesting product, though hardly revolutionary.

Lots of folks have noted the ridiculousness of the "Rapiscan" name used by OSI Systems for its x-ray airport security naked scanner -- one of the two popular "new" style scanners used at airports. Over the last few months, I've noticed that I've been seeing fewer and fewer of the Rapiscan machines, and airports that used to have them have been replacing them with the L3 "millimeter-wave" scanners, which have all been outfitted with upgrades so that there's no more "naked" in the naked scanning (and so that operators no longer have to wait for the TSA agent hidden in a dark room with your naked images to give them the "all clear.") Now it turns out that the TSA has ended its contract with OSI and all of the remaining Rapiscan machines will be removed from airports. The main reason is that -- despite having been requested to quite some time ago, OSI failed to make a version of their naked scanner without the nakedness. While L3 was able to do that pretty quickly, apparently it was way too difficult to take the "naked" out of the Rapiscan.

The TSA insists that the decision to dump the Rapiscan has nothing to do with the recent reports and ongoing investigation into the claims that OSI manipulated tests of the Rapiscan machine to pretend that it didn't violate travelers' privacy as much as it did. However, I'm sure that didn't help OSI.

We've been talking a lot today about Internet Freedom Day, and the anniversary of the SOPA/PIPA blackout. The folks at Fight for the Future noticed the proximity of Internet Freedom Day to Martin Luther King Jr. Day, and decided an interesting form of celebrating internet freedom would be to share a video of MLK's famous "I have a dream..." speech. As you may or may not know, Martin Luther King Jr.'s heirs have been ridiculously aggressive in claiming copyright over every aspect of anything related to MLK -- and they seek large sums of money from people for doing things like quoting him. When the MLK Memorial was recently built in Washington DC, the family was able to get nearly $800,000 just to use his words and likeness.

The FftF video was not just the MLK video, but contained some additional explanation of how expanding copyright laws could impact people for doing something as simple as sharing the MLK video -- and then it included some of the speech. So I guess it should come as little surprise that the "I have a dream..." video that FftF was urging people to share has already been taken down (it's unclear if the takedown was due to a notice or Vimeo being proactive). It seems fairly ridiculous that on Internet Freedom Day, and just before MLK Day, we're still dealing with takedowns on such powerful words.

On this Internet Freedom Day, Declan McCullagh has a great post in which he reached out to the key politicians and lobbyists who supported SOPA and PIPA last year to see what they had to say one year later. The quotes are really incredible in their tone deafness to what happened. All of them -- smartly -- are about looking forward, rather than looking back, but none of them mention the public or doing what's best for the public. A bunch of them set up the false dichotomy of "Hollywood" vs. "Silicon Valley" as if this was all a giant commercial dispute. The others all speak of it in commercial terms. Incredibly, despite millions of individuals speaking up for our rights, not a single person interviewed by McCullagh seems to even think it's worth mentioning.

Let's take a look at some of the statements.

The problem of Internet piracy and the sale of counterfeit products online has not gone away. Senator Leahy continues to monitor law enforcement actions, significant developments in the courts and voluntary industry practices, and all those pieces will help determine what next steps are appropriate.
— spokeswoman for Sen. Patrick Leahy (D-Vermont), chairman of the Senate Judiciary committee and author of the Protect IP Act

Well, first problem: the continued conflation of internet copyright infringement with the sale of counterfeit products. These are two very, very different issues with very different causes that require very different approaches to dealing with them. Yet, Leahy and others have used this conflation to dangerous ends with bills like PIPA. What they do is take the widespread nature of copyright infringement and mix it with the very very very small, but still real, possibility of serious harm from some very specific cases of product counterfeiting (i.e., drugs and military equipment) -- and then try to create broad "solutions" that have massive unintended consequences impacting individual freedoms like freedom of speech. If both of those things are "problems" then lets have real discussions about them individually. The second you mix them together, you know that something bad will come out of it.

We can all agree about the importance of protecting American innovation from foreign thieves, but I think it is critical that all parties have a seat at the table and work together to solve important policy issues. As chairman of the Judiciary committee, I look forward to working with both the technology and content communities to find ways to protect America's competitive advantage while promoting internet freedom and growth.
— Rep. Bob Goodlatte (R-Virginia), chairman of the House Judiciary committee and original sponsor of SOPA

First of all, you don't "steal" innovation. Innovation is a process. But, even beyond that, when he talks about "all parties" having "a seat at the table" and working together, notice that he doesn't mention the public at all. It's just "technology and content communities." That was a big part of the problem in the first place and it's disappointing that Goodlatte is still pushing this silly line. This was never "tech vs. content." This was about the public and forward-looking organizations who want to keep the internet free and open -- and legacy players (in both the content and tech industries, by the way) who were looking to lock down and control new systems in a weak attempt to protect increasingly obsolete business models. Bringing "tech" and "content" to the table and thinking those are the two sides in this fight isn't just mistaken, it gets the whole basis of this dispute wrong and will inevitably lead to more problems. Out of that comes bogus "solutions" like the six strikes agreements, which again completely left the public out in the cold.

Goodlatte is now the head of the House Judiciary Committee. He's always presented himself as a friend to Silicon Valley (and reminds us over and over and over again that his son works at Facebook). If he wants to do a better job than his predecessor, he needs to get past the artificial divides like "tech" vs. "content" and start looking at the real issues: the public and innovators vs. legacy players. Those cut across both lines. There are legacy tech players looking to hold back innovation, just as there are innovative, public-embracing content players.

Hollywood and Silicon Valley have more in common than most people realize. We share a commitment to innovation, to our consumers, and are working together to develop new platforms to make that content easily and legally accessible. Like the tech industry, the well-being of the film community is dependent on a vibrant First Amendment and we would never support any legislation that limits this fundamental right. We can all agree no one wins if everyone loses. Preserving freedom of speech and protecting intellectual property rights are not mutually exclusive efforts. Intellectual property protection is essential to creators and makers in both industries and we need to discuss it rationally. Let's use this anniversary to forge a path toward the future where the creative content and technology industries work together to develop meaningful solutions that ensure an Internet that works for everyone.
— Michael O'Leary, senior executive vice president for global policy and external affairs at the Motion Picture Association of America

We agree on the first half, but as is so often the case, O'Leary states the first half to basically try to avoid the obvious criticism of the second half. He states that the MPAA would never support legislation that limits the First Amendment, but he's done exactly that. Preserving freedom of speech and protecting "intellectual property" may not be mutually exclusive, but they absolutely can conflict, and frequently do conflict. The MPAA has refused to even acknowledge this possibility.

From there, the statement gets more and more problematic. We've seen over and over again that, while many creators and tech companies do use copyright, patents and trademarks, they are hardly "essential". Again, by simplifying this to "tech" vs. "content" it's easy for O'Leary to point to legacy tech companies who lean hard on copyright or patents, and then suggest that both "sides" want greater protectionism. But that's misleading. As discussed above, much of this is really about legacy players trying to block innovators who are looking to benefit the public. You can easily line up a bunch of legacy players on both the tech and content sides who will agree until the end of time about the values of protectionism -- just as you could line up true innovators in both areas who say that patents, copyright and trademark are of little value and are mostly a distraction.

It's a new day for a new music business and for the RIAA. For the better part of the last year, we have focused on being an evangelist for the dynamic, exciting legal online marketplace that now exists for fans. That will continue to be our priority in 2013. We earn more than half of our revenues from digital services and platforms. Not many creative industries can say that. Music helps drive social media trends and device sales. In fact, in 2012, the two top Google searches were music-related. Currently, 19 of the top 20 YouTube videos are music videos. And according to Twitter, seven of the top 10 Twitter accounts are held by artists.

What does this all tell us? Music is at the center of cultural and commercial phenomena. We are not stuck in the past but looking ahead at a promising, bright future teeming with new music options. Which is why we created, along with our online retailer partner NARM, WhyMusicMatters.com, a one-stop educational guide for digital music so fans can know where to get their favorite music in a variety of different ways. And we expect that this bright future will offer access to music in ways currently unimaginable but will perhaps seem commonplace a year from now.

Yes, piracy still continues to plague us and is a continuing threat to our business. But instead of looking to Congress for help, we are tuned in to the marketplace and actively seeking out voluntary partnerships with intermediaries like ISPs and advertisers to help curtail illegal downloading. Moving forward, we want to simplify music licensing to make it easier to develop music business models. We know that music models continue to evolve - access and listening models are becoming more prevalent and it's imperative we derive a fair market return for the music that is the foundation of those businesses. And as always, we'll continue to find new ways to promote the dynamic music marketplace.
— Mitch Glazier, senior executive vice president at the Recording Industry Association of America.

In typical Glazier fashion, those first two paragraphs are simply misdirection. Yes, of course music is important and a part of the cultural fabric. Duh. But notice that he's not actually concerned about ways to increase that through the better spreading of music, the ability to share and experience culture. No, he's solely focused on one thing: getting paid directly for each use of the song. And that's because the companies he represents -- the music labels -- were mostly built on that as a sole revenue stream. He's not talking about neat things like Kickstarter or Bandcamp that have allowed artists to "go direct" to fans, because that kind of stuff gets in the way.

It's good to see him committed to fixing licensing, because it's a massive problem, but I'll note that the RIAA was heavily involved in trying to block a bill last year that would have made music licensing more reasonable and affordable so that there would be new ways to distribute music legally.

Finally, the whole "voluntary" agreements thing is a bit of a red herring as well, as it seems as though the MPAA and RIAA are really focused on using these "voluntary" agreements to more or less get what they wanted in SOPA in the first place -- and that often means less due process and fewer fundamental rights and abilities for the public.

Protection of intellectual property and Internet freedom are critically important. The Chamber will work with members on both sides of the aisle to find an effective and commercially reasonable solution to address this ongoing problem.
— U.S. Chamber of Commerce spokeswoman

Not much to say on that, other than the US Chamber of Commerce was the leading lobbyist pushing for SOPA/PIPA last year. Their interpretation of "commercially reasonable solution" is highly suspect. Oh yeah, as is their interpretation of the "ongoing problem." The last time we looked, the US Chamber of Commerce was using flat-out bogus numbers and claims to support their description of "the problem." If you define "the problem" incorrectly, the "solution" is probably going to be an even bigger problem.

If you had asked me how I felt on January 18, 2012, about the prospects for protecting the creative work of artists and innovative businesses in the wake of the internet revolt against the Stop Online Piracy Act and the Protect IP Act, my response might have involved some muttering under my breath and a request for a stiff drink. In the coming week, many who seek to exploit the work of creators without their consent will be looking backwards and celebrating last year's defeat of those bills. So one might expect advocates for artists and creators to be in a dour mood again, but there is ample cause for optimism among members of the creative community...

At least some of the goals of the legislation have been achieved through increased private and government action since the introduction of the first version of the bills in 2010:

• More credit card companies are engaging in best practices. In June 2011, major credit card companies and online payment processors (American Express, Discover, MasterCard, PayPal and Visa) reached an agreement on voluntary best practices to reduce sales of counterfeit and pirated goods by cutting off sites that distribute infringing goods from conducting financial transactions through these processors.
• More advertisers are engaging in best practices. On May 3, 2012, the Association of National Advertisers and the American Association of Advertising Agencies issued a statement of best practices to address online piracy and counterfeiting.
• Internet service providers, movie studios and record labels are collaborating on a Copyright Alert System. Under this system ISPs have agreed to notify users when their accounts appear to be used for illegal downloading activity and to impose real consequences on users who refuse to stop after receiving multiple notices.
• Google finally started considering whether sites are rogue websites when doing search rankings. In August 2012, Google announced a change in its search algorithm that takes into account the number of "valid copyright removal notices" when determining the ranking of search results. In its announcement, Google indicated the goal was to help its users find legitimate sources of content more easily...

As more artists and creators stand with their peers and highlight what is really happening on the Internet, more people will listen and think twice. If there is a silver lining to the blackout, it has been the people who we have met this year: artists, reformed 'pirates' academics and lawmakers who want to begin meaningful conversations about promoting creativity and ensuring it finds a place in all of our lives.
— Sandra Aistars, executive director of the Copyright Alliance

This picks up on Mitch Glazier and Senator Leahy's comments on "voluntary" solutions and shows something important. Note that all of those bullet points in the "voluntary" category are the kinds of things that SOPA/PIPA sought to make mandatory. As incredibly vital as the fight against SOPA/PIPA was last year, it's also important to see that the industry (sometimes with government help) has continued to browbeat companies into more or less implementing the rules anyway. When those "voluntary" rules conflict with individual freedoms -- as is the case with certain gatekeepers (e.g., limited number of payment processors) -- we should be worried.

All in all, these comments show a consistent pattern. SOPA and PIPA might not come back as new legislation... but the issues are still very much with us. Those in power still don't understand the core issues, believing it's a commercial dispute between two mis-defined industries, while the focus on "voluntary" solutions seems to be attacking individual rights without people noticing.

There's been plenty of debate recently over "open access" to research and the morality of locking it up behind a paywall. Some have been arguing that Aaron Swartz's apparent plan to release JSTOR research papers (a plan that was never confirmed anywhere that I've seen other than random speculation) was somehow immoral. And, of course, there have been various battles over the years with various journals that lock up research. Researcher Mike Taylor, over at the Guardian is now making the case that if anything is immoral it's locking up any academic research behind a paywall:

If you are a scientist, your job is to bring new knowledge into the world. And if you bring new knowledge into the world, it's immoral to hide it. I heartily wish I'd never done it, and I won't do it again.

He goes on to respond to a number of possible responses as to why it's okay to put your research behind a paywall, dismantling each one. One key one is the claim by many that paywalls on journals are necessary to fund scholarship:

No. This is the tail wagging the dog. The purpose of a scholarly society is to promote scholarship, which is best done by making that scholarship available. A society that cares more about preserving its own budget than about the field it supposedly supports has lost its way. Societies need to find other ways to fund their activities. And yes, I am talking to you, Society of Vertebrate Paleontology (my own field's society). You cannot support the science of vertebrate palaeontology by taking science and hiding it where most people can't see it.

Somewhere along the way, things got flipped and people seemed to forget the true purpose of scholarship (and the fact that scholarship -- perhaps even more than other areas -- relies on the ability to build off of the work of those who came before). In the end, and this is a key point, if you're locking up your scientific research, you're doing science wrong:

No, no, no. Dammit, we're scientists. Our job is to make knowledge. If we make it, then brick it up behind a wall, we're wasting our time and our funders' money – which ultimately means we're squandering the world's wealth.

For many who knew Aaron Swartz, this Internet Freedom Day -- the anniversary of last year's January 18th blackouts that led to the end of SOPA/PIPA -- is a bit bittersweet. Aaron played a very large role in helping stop SOPA last year -- to the point that I'm not sure the bills would have been stopped without his help. Thus, many are using today as both a celebration of what happened last year, as well as a memorial for Swartz. And what better way to combine the two than to watch Swartz's excellent keynote speech at F2C: Freedom to Connect last year about "How we stopped SOPA." It gives a good history of the bill, combined with Aaron's own accomplishments during the fight. Oh, and for those who still insist that SOPA was stopped by Google, remember that Aaron was no fan of Google.

Recent events have returned video games (especially "violent" ones) back to their normal position as convenient grandstand/whipping boy (or girl, you sexist)/political football. Vice President Joe Biden recently met with representatives of the video game industry to inform them that they were just as responsible as the NRA for recent tragic events, and even if not, they'd be mentioned frequently in the same headlines. (The NRA also placed the blame on video games -- quite possibly the only issue on which it saw eye-to-eye with Biden.) New Jersey governor Chris Christie recently declared the M-rated "Call of Duty" games were not welcome in his home, quite possibly because he has four children and it's an M-rated game. And President Obama has called for a thorough study of any possible connection between gun violence and video games to be performed by the CDC.

So, it is with feigned shock that I pass on the news that a politician has introduced a bill aimed at violent video games -- one that looks to "implement" stuff we already have, only with Uncle Sam in charge.

In the wake of President Barack Obama's announcement that the CDC would study the effects of violent video games and other media, Rep. Jim Matheson (D-Utah) has introduced bill H.R. 287, which would "require ratings label on video games" and "prohibit the sales and rentals of adult-rated video games to minors."

Ratings labels, eh? You mean like these handy things that have been slapped all over video games for the past 19 years?

Oh, and "prohibit the sales and rentals of adult-rated [?] video games to minors?" You mean the sort of thing that nearly every respectable retailer has been voluntarily doing for nearly as long?

I understand that politicians are generally allergic to terms like "voluntary" and "self-regulating" and are more partial to terms like "government oversight" and "mandatory" and "nanny state," especially when the prevailing winds favor doing a bit of "something" in response to tragedy. But to force a redundant system into use in order to enforce a standards system that has worked well for years is not only a self-serving, needless expansion of government power, it's just plain stupid.

Matheson's bill would make it mandatory for all games available for sale or rent to sport a rating label, something that nearly every commercially distributed game already features. (Many indie games distributed exclusively via download do not carry these labels, as they are rarely submitted to the ESRB.) Strangely, Matheson's bill relies on the ESRB to provide the rating, rather than turn it over to another agency.

(a) Conduct Prohibited- It shall be unlawful for any person to ship or otherwise distribute in interstate commerce, or to sell or rent, a video game that does not contain a rating label, in a clear and conspicuous location on the outside packaging of the video game, containing an age-based content rating determined by the Entertainment Software Ratings Board.

It also requires retailers to post rating information, as supplied by the ESRB. Again, most retailers already do this voluntarily. This goes beyond redundant and into some bizarre coattail-riding territory in which the government piggybacks its agenda onto an existing system and, presumably, rewards itself with raises and high-fives shortly thereafter.

The only difference between what exists now and Matheson's "bold" "vision" for the future is the weight of government enforcement.

It shall be unlawful for any person to sell or rent, or attempt to sell or rent--

(1) any video game containing a content rating of ‘Adults Only’ (as determined by the Entertainment Software Ratings Board) to any person under the age of 18; or

(2) any video game containing a content rating of ‘Mature’ (as determined by such Board) to any person under the age of 17.

Matheson turns this enforcement over to the Federal Trade Commission, adding an "up to $5,000" fine to any violations. Once again, the question is why? All this does is add a layer of unneeded regulation and fines to a system that a majority of game buyers and sellers feel is working just fine. This is just Matheson turning a system from voluntary to mandatory just so he can appear "tough on video games," which is a terrible plank for any platform.

On the upside (for us -- not so much for Rep. Jim Matheson), legislation tracking site, govtrack.us, currently gives the bill (as it stands) a 3% chance of getting past committee and only a 1% chance of being enacted. Part of this is due to the fact that many other states have tried (and failed) to enact government regulation of video games, something the Supreme Court declared violated the First Amendment. Another factor is the general inactivity level of our representatives (often considered "ideal" by small government types) which has resulted in only 11% of bills making it past committee and only 2% into actual law.

For now, it's more of the same old video game scapegoating, with this effort being surprisingly lazy in its approach. It's cyclical and repetitive, like EA's release schedule -- comforting in its familiarity and unsurprising in its lack of imagination.

Lawyer Marvin Ammori has had an uncanny knack for being deeply involved in a few key battles for internet freedom over the years, including the SOPA fight last year. As today is the one year anniversary of the big January 18th blackout that effectively killed SOPA/PIPA -- a day many are calling "Internet Freedom Day" -- Ammori has put together a fantastic Kindle Single (i.e., short ebook) entitled On Internet Freedom. Just for Internet Freedom Day, the book is available free. If you don't have a Kindle device, but do have a smartphone/tablet, you can still download it today for free and then read it whenever you get around to it. Ammori shared a draft copy with me, and it's a very worthwhile read. Not only does it discuss a variety of battles concerning internet freedom, it pulls them all together to look at why these battles are happening... and why they're going to continue. As such, it's an important book for people to read to understand some of the larger issues at play, and why we need to continue to be vigilant in making sure the internet remains free and open. If you don't pick up your free copy today -- or if you just want to support some good causes -- after today the ebook will still be available for $4.99, with all of the profits being donated to Demand Progress and Fight for the Future, two of the leading activist groups fighting on these issues.

It's January 18th, 2013, and that's a day worthy of note: the one year anniversary of the widespread protests against SOPA and PIPA. Not only did the massive reaction from the internet community succeed in stopping these dangerous bills that would have curtailed free speech and innovation online, the protests sent shockwaves through the world of politics. In a true manifestation of democracy, the combined voice of the people overruled the lobbyists and backroom dealers who, only weeks before, were smugly assured of the new law's passage.

To celebrate that victory, a bunch of groups involved in the ongoing fight for internet freedom have come together to declare Internet Freedom Day on January 18th. Here at Techdirt, we're marking the occasion with an infographic looking back at the day the internet community became a political force to be reckoned with:

Embed This:
<a href="http://www.techdirt.com/articles/20130117/15210821719/infographic-celebrating-internet-freedom-day-anniversary-sopapipa-protests.shtml"><img src="http://i.imgur.com/lLtGE.jpg" title="Techdirt Celebrates Internet Freedom Day" /></a>

The latest in the global merry-go-round of the legacy entertainment industry seeking to put in place draconian legislation is apparently Norway. A couple years ago, I went to Norway for Nordic Music Week, and had a great time talking to musicians, managers and labels, about all of the opportunity for new music business models. It was a fun and optimistic event, seeing everyone looking at all of the opportunities out there. But, of course, these were mostly independent artists. The major labels stayed away. And that's because the only "opportunity" they seem to see is in drafting the latest version of draconian laws that will do little to stop infringement, but which will have tremendous unintended consequences, including the potential to stifle widespread legitimate forms of expression.

TorrentFreak reports on the latest anti-piracy bill being put forth in Norway, which includes site-blocking provisions:

In May 2011 the Ministry of Culture announced that it had put forward proposals for amendments to the Copyright Act which would “..give licensees the tools they need to follow-up on copyright infringement on the Internet, while protecting privacy.”

The key proposals included making it easier for rightsholders to identify infringers from their IP addresses and amendments to the law to allow ISP-level blocking of sites deemed to be infringing copyright.

The article quotes people who are quite worried about what this will mean in practice. When every copyright holder can seek to completely shut down a site, the likelihood of trouble is immense. Already, here in the US, we see regular abuse of the DMCA to take down specific content that people deem infringing, but which is often just content they don't like. Imagine the ability to do that on a larger scale, such that it doesn't just take down the content, but entire sites.

A key part of the legal fight concerning Bradley Manning over the past few weeks was whether or not he'd be able to present his own motives as part of his defense -- showing that he believed that he was engaged in act of whistleblowing that would be good for the US. His legal team argued that this intent would push back on the Espionage Act claims, since the intent was never to help Al Qaeda or any other enemy, but rather to help the US. However, the court has mostly -- but not entirely -- barred Manning from using this defense, meaning that he will have a much more difficult time arguing that his acts were a form of whistleblowing.

Basically, Manning's legal team won't be able to raise his motives for most of the charges, though they will be able to raise motives during any sentencing. They will be able to raise motives, narrowly focused, on the question of whether or not he was "aiding the enemy" and to show that he was not "dealing with the enemy." That's at least a small step in the right direction. However, there are multiple other charges where he cannot raise his motive -- including charges around whether or not he had "good faith" in releasing the documents and that he "wrongfully and wantonly caused to be published on the internet intelligence belonging to the United States government." Basically, the judge is saying that those charges require an objective standard, rather than Manning's specific viewpoint.

The other issue that Manning's team appears to have lost on was their desire to show the lack of harm from all of the leaks. The court ruled that this really doesn't matter in the trial, because it's all after the fact, and Manning did not know beforehand the results and whether or not it resulted in harm. Of course, part of Manning's defense is that he chose documents that would not cause harm on purpose -- but the judge apparently disagreed.

All in all, this definitely increases the likelihood that Manning will lose in court.