At this point, bands releasing stems and asking fans to remix their work is old hat. We've seen it done a bunch over the years, and it's pretty common. But Darren Hemmings alerts us to a cool variation on that done by the UK band Chapel Club. Earlier this year, Chapel Club "parted ways" with Universal Music. In testing out new things, it decided to do a remix offering, but one where fans are actually encouraged to then try to sell the results and make money off of it:

We're offering THE WHOLE WORLD the chance not only to REMIX THE TRACK, but to SELL their creations and KEEP THE MONEY. LOL.

So the deal is this: you can download these stems FOR FREE, remix the song and self-release it digitally via any online outlet you like. To find out how best to do this we've attached a little step-by-step guide, below.

The band does admit that they're about to sign a new record deal -- so they're doing this "in between" deals, and it's unclear how long it will last. Also, the terms and conditions (pdf) are interesting in that they actually provide detailed instructions on how to upload the remixed tracks to Tunecore and CDBaby. The band does ask that you email them before releasing the track, which seems like a reasonable request. What's a little odd, though, is that they will not allow remixers to "give away" the remixes:

So the deal is this: you can download these stems FOR FREE, remix the song and self-release it digitally (and only digitally) via any online outlet you like (as long as it’s known for selling lots of music). You can also stream your creation (but don’t give it away).

That seems like a silly and pointless restriction. The band does note that it retains the publishing rights, meaning that if someone does remix the song and sells a ton of copies somewhere, they'll still get their publishing cut (though the remixer will get all of the direct sales revenue, minus the fees taken out by the middlemen). So, it's smart in that the band knows that if someone else somehow figures out a great way to market and sell the song, they'll still make some money. But, it's still a little disappointing to see that restriction on giving it away. For such an experiment that seems pointless.

It's also a nice reminder that letting some others make money in helping to promote your work (or even letting them build on your work) can be a good thing. There's way too much of an attitude among some that every penny that's earned belongs to the original creator, even if someone else did more with it. We've warned before that non-commercial restrictions on Creative Commons often don't make sense -- but many people cling to them out of this irrational fear that if someone else makes money, it means you lose money. So it's great to see the band recognize that a bigger pie can be good for all.

That said, while I do think this experiment is cool -- and I love to see bands experiment in unique and innovative ways -- I do wonder how successful experiments like this will be. I think that many people think that fans will rush out to try to "make money" with content from an artist they like, but in watching various businesses built around that concept before, I just haven't seen it play out in reality. Fans like bands because they like those musicians and want to support them. Assuming that they have a monetary incentive to help out often feels weird and just doesn't interest people. In fact, it reminds me a lot of Daniel Pink's awesome and thought provoking book Drive in which he notes a large stack of research that says for some activities (not all!) providing monetary incentives actually harms output. It's for activities where the person already feels fulfilled in some manner or another, and I'd argue that probably applies with fans. Fans don't want to make money off artists they love. They just want to see them succeed. Adding the monetary component might not necessarily be a very good incentive, even if people assume that money is always a driving incentive.

Still, that's just an aside on money and incentives. I still think it's cool to see a band experiment with something different to engage fans that could possibly open up another new revenue stream.

Our solar system is a pretty big place, and we haven't really seen that much of it. But as we send out more and more probes and get fancier telescopes, we're learning about a ton of interesting phenomena that occur beyond our own planet. Here are just a few fascinating factoids and links on how we're exploring space without sending astronauts anywhere (yet).

• While the Earth and other rocky objects in our solar systems aren't perfectly round, our Sun is remarkably spherical... almost too spherical. The Sun isn't perfectly spherical, but it's actually one of the roundest objects humans have ever measured, and it's a bit puzzling why it should be so round. [url]
• NASA's Cassini spacecraft has discovered that Saturn's moon Titan could hold bodies of liquid water under its crust. This could mean there's yet another place in our solar system with water that could possibly sustain life. [url]
• A geochronometer is an instrument that could help determine how old various things in our solar system are. Portable geochronometers could be sent to other planets (like Mars) to improve our estimates of how long it takes for certain planetary features to develop. [url]

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

Last week, there was a fascinating full day conference on ways to fix the patent system. There was a lot to digest, and I've been working on a much longer post about it, which I may not finish until next week. Someone from the USPTO was in attendance, and at one point stated that director David Kappos fully "heard" and understood the problems that people were complaining about, and that he fully intended to fix the system. Apparently someone forgot to tell Kappos. In a talk today, he completely blasted "complainers" telling them to "give it a rest already." His argument is that the America Invents Act -- the completely toothless patent reform that passed last year after being stripped of almost everything useful -- was just implemented, so we should just sit around and twiddle our thumbs while hundreds of billions of dollars are wasted due to bogus patents and disputes.

Except to Kappos, all that dead weight loss is a sign that the system is working. Why? I have no idea.

Indeed, Kappos suggested that the volume of patent litigation in the smartphone industry was a sign that the patent system was working as intended. "The explosion of litigation we are seeing is a reflection of how the patent system wires us for innovation," Kappos said. "It's natural and reasonable that innovators would seek to protect their breakthroughs using the patent system."

Note the giant and very questionable assumptions in the middle of that one: that it's "innovators" seeking to "protect" "breakthroughs." I'd argue that none of the three things in quotes is accurate. Quite frequently it's lawyers who haven't actually innovated at all looking to shakedown actual innovators for broadly worded patents that never should have been granted, and which are being interpreted to cover things they don't really have anything to do with. That's not innovation. It's extortion... backed up by the US government. It's a travesty.

Even worse, Kappos is still relying on the absolutely ridiculous "study" that the USPTO put out earlier this year, despite the fact that its methodology has been widely debunked for including grocery store baggers as "IP innovators." Sorry. And, if you look at what their actual report shows, it suggests that patent-intensive businesses aren't doing so well. Somehow he ignores that. Of course, perhaps that's why his office rejected a promised interview with me earlier this year, and could only defend the patent claims by arguing the most bizarre correlation argument in the world, that because Steve Jobs was innovative and had patents, therefore, patents worked.

Rather than address any of the real and well documented concerns with the patent system, Kappos apparently just decided to spin a fairy tale. He insists, as he's done in the past, that stronger patents automatically create more incentives, even as the evidence suggests that's not even close to true.

More recent research has estimated that litigation by patent trolls costs the economy at least $29 billion per year, and that figure may be as high as $83 billion.

Rather than engage in this empirical debate, or even acknowledge its existence, Kappos acted as though it was self-evident that stronger patents always create a larger incentive for innovation.

"To those commenting on the smartphone patent war with categorical statements that blame the so-called broken system on bad software patents, what I say is: get the facts. The facts don't support your position."

With all due respect, Mr. Kappos, we do have the facts. And they support the position of software patent critics.

It's sad that Kappos sends his lackeys to Silicon Valley to claim that he's "listening" and then spews such pure crap. The system is broken and either Kappos is lying or clueless. Neither reflects well on him.

The Stuxnet worm that attacked an Iranian nuclear enrichment facility a couple of years ago was exceptional from several viewpoints. It is believed to have been the costliest development effort in malware history, involving dozens of engineers. It also made use of an unprecedented number of zero-day exploits in Microsoft Windows in order to operate. Finally, Stuxnet seems to be the first piece of malware known with reasonable certainty to have been created by the US, probably working closely with Israel.

As Techdirt reported earlier this year, we know all this largely because the malware escaped from the target environment in Iran, and started spreading in the wild. We now learn that one of the companies infected as a result was Chevron:

The oil giant discovered the malware in July 2010 after the virus escaped from its intended target, Mark Koelmel, Chevron's general manager of the earth sciences department, told The Wall Street Journal.

"I don't think the U.S. government even realized how far it had spread," he said. "I think the downside of what they did is going to be far worse than what they actually accomplished."

This highlights a huge problem with the use of malware by national security services to carry out these kinds of covert attacks on their enemies. Where a physical attack on a foreign nation is unlikely to cause direct casualties back at home -- although it may lead to indirect ones through retaliation -- attacks using worms and other malware are far less targeted. If they escape, as is likely to happen given the near-impossibility of controlling what happens to them once they have been released, they may well find their way back to the attacker's homeland, and start infecting computer systems there.

This makes the "weaponization" of malware an inherently dangerous approach. Imagine if a nation deployed worms or viruses that changed data on infected systems in subtle ways, and that these started spreading by mistake among that same country's health organizations or banks. Lives could be lost, and financial systems thrown into disarray.

That's something worth bearing in mind amid increasing calls for the development of software that can be used offensively: as well as the likelihood of tit-for-tat responses, there is also the very real danger that the weapon will turn against the nation that created it.

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With the holiday season upon us, we figured it was time to offer some special deals over at our Insider Shop — just in case you've got someone on your list this year who would appreciate some Techdirt gear or a subscription package (or if you feel like giving yourself a gift this season). So today we're unveiling two limited-time offerings. First up, the Holiday Bundle:

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This package will only be around for a limited time, and some sizes are already selling out, so if you want one, don't wait too long to order! We're also happy to announce a special deal on multiple t-shirts, for those who want a complete set or need a few to give out as gifts:

If you're ordering t-shirts, the bundle or any other gear as a gift, please order soon to ensure shipping in time for the holidays! We've spoken to our fulfillment partner and determined that orders placed by December 14th (in the US) and December 9th (internationally) should arrive on time with all shipping options, and depending on your location there may be express shipping available, too—but ordering early is always safer!

Folks in the UK have spent much of this month following the story of Lord McAlpine (Robert Alistair McAlpine) the former politician who worked for Margaret Thatcher. Earlier this month, the BBC reported on its Newsnight program that an unnamed former "senior" politician in the UK government was implicated in a child abuse scandal. People on Twitter quickly assumed from the description that it was McAlpine, and the story spread quickly. A few days later, the Guardian broke the story that it was a case of mistaken identity. That scandal has thrown the BBC into chaos over its reporting.

But, more interesting to us, is the fact that Lord McAlpine (not a Twitter user) has announced his intention to go after 10,000 Twitter users for either claiming he was the person in question or for retweeting someone else saying that. Some have already apologized for their tweets, but even among those who have, they claim that McAlpine's lawyers are going to ridiculous lengths, with one person, Sally Bercow, who has apologized, also claiming that McAlpine's lawyers are "ambulance chasers" and "big bullies."

But the decision to force 10,000 people to pay up seems crazy:

Lawyers acting for Lord McAlpine have also drawn up a "very long list" of targets they intend to pursue for defamation, including the authors of 1,000 original tweets and a further 9,000 individuals who retweeted those messages.

Apparently if you're "small time" you won't have to pay as much:

Lord McAlpine's solicitor, Andrew Reed, said last night that those with under 500 followers will be asked to make a donation to charity as part of a settlement, with an "administration fee" for sorting it out. He added that higher profile figures, such as Ms Bercow, are "a separate matter".

Here's the insane part: McAlpine claims that he's doing this to "restore my reputation." Demanding 10,000 people on Twitter pay up isn't going to "restore" your reputation. It's going to tarnish it. Yes, it's pretty clear that McAlpine was wronged by the initial reports that suggested he was involved in the scandal. And the BBC is paying up handsomely for their mistake (apparently a six figure settlement has already been negotiated). But the news that the BBC's report was false spread like wildfire. Everyone knows the report was false. Going after people on Twitter for talking about it doesn't do anything more to restore his reputation, it just makes him look like a giant bully -- and, in the process, calls much more attention to him and his tactics here.

You may have heard that, over the weekend, President Obama released a photo taken late last week with him and Olympic medal winning gymnast McKayla Maroney, doing the "not impressed" pose: If you're not up on your memes, you can catch up on the "McKayla Maroney is not impressed meme" here and here. The photo of the President doing the meme-tastic pose generated a ton of buzz, with the apparent story being that during her visit to the White House, the President pulled her aside and said "I pretty much do that face at least once a day."

Cute. And, of course, nice to have a President not so out of touch that he's unaware of internet memes.

Except... as lawyer Venkat Balasubramani quickly noted, the restrictions on use are somewhat questionable. Beneath the photo on the Flickr account, it states:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

This is, of course, not a new thing. In fact, we reported on this exact phrase on the White House Flickr feeds three years ago. As we noted at the time, there had been some controversy when the White House first started using Flickr in the early days of the Obama administration, as any Federal US government created work is automatically public domain. Yet, Flickr did not have a "public domain" license option. In response, Flickr actually created a special license to indicate that the work was a US government work. That license explicitly states that "anyone may, without restriction under U.S. copyright laws... create derivative works."

And yet, the White House is ignoring what that license says in claiming that the photograph "may not be manipulated in any way." That's clearly untrue under the law and a form of copyfraud, in that they are overclaiming rights.

But, in this case, it's especially ridiculous, since the entire reason the "McKayla is not impressed" meme became so popular was the memegeneration of putting her displeased face into various other images.

A few months ago, MuckRock and the EFF teamed up to start a drone watch effort, in which they send Freedom of Information Act (FOIA) -- or the local equivalent -- requests to local governments and police departments, seeking to find out information on local law enforcement using drones. At last count, over 200 such requests have been made. You can track them here. As you might imagine, they're getting very varied responses, with some saying that there are no responsive documents. In many cases, it's likely that this is true.

However, the folks at MuckRock discovered something interesting in looking over some of the responses. While the San Diego County Sheriff's office initially stated that they had no responsive documents, reviewing the Seattle Police Department's response suggested that San Diego was lying. Why? Because the Seattle release shows an email from a manufacturer of drones, Datron World Communications, to Seattle police in which they share a sales quote that was sent to San Diego for a drone, the Scout UAV (unmanned aerial vehicle).

Attached is the quotation recently provided to the SD Sheriff's CID team. They visited Datron's facility and experienced the system with all three cameras and left with a flashdrive full of personal footage and a new found purpose for submitting their wish-list early. Use this quote as a reference point for configuring your system. With this we should be able to tailor an ideal system for your needs and gain marketing support for 'special pricing' specifically for Seattle PD.

Given this contradiction, MuckRock sent a followup request to San Diego, asking the Sheriff's office to explain this newly revealed information. In response, the sheriff's "legal advisor" sent a note saying that "we decline to comment on the sales quotation referenced in your September 4, 2012 letter." Well, isn't that nice? Of course, under freedom of information laws you can't just ignore such requests. As MuckRock notes:

As is true in most states, California's public records law provides that documents related to equipment purchases are matters of public record unless exempted by statute. Accordingly, the San Diego County Sheriff and other public agencies have the latitude to justify denial of public records requests, but not to "deny comment" when faced with such a request.

After continuing to press the San Diego Sheriff's office, MuckRock was first told that San Diego had not purchased such drones and then that it will not release the records because "there is very little public benefit in the release of such records," in part because the quote from the company had not resulted in a purchase. The office then notes that the request is denied "on the grounds that any information and/or records obtained by the Sheriff's Department are protected by the Deliberative Process privilege, as well as the Official Information privilege (Evidence Code 1040)."

Again, MuckRock notes that San Diego is misreading the law in question:

But public records law puts the burden of evidence not on those who seek disclosure, but on those who would keep them from public view. Evidence Code section 1040 of California's disclosure law, which the San Diego County Sheriff's office has invoked as a basis for its denial, provides that public agencies may refuse to disclose official information in the case that such disclosure "is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice."

The onus is on the Sheriff to demonstrate how releasing the documents sought by MuckRock would injure the public interest.

As they note, the public has a "right to know" when their government is using drones to surveil the public, and it's unfortunate that some governments seem to be stonewalling requests for information.

See update at the bottom...

Back in September, we wrote about how Senator Patrick Leahy had introduced a really good bill for ECPA reform. ECPA (the Electronic Communications Privacy Act) is an incredibly outdated bill concerning (as it says) the privacy of electronic messages. It was written in a time (the mid-1980s) before everyone had email, let alone everyone used web-based, cloud-stored email. And thus, it has weird provisions, such as considering that messages stored on a server for more than 180 days are "abandonded" and thus subject to very little privacy protections. And that's just one of many, many problems with ECPA, which treats all kinds of messages differently.

Leahy's reform was pretty straightforward: it basically said that if the government wants to see your electronic info, it needs a warrant. This seems completely reasonable and something that probably should be considered the law already if the 4th Amendment were respected. Of course, almost immediately after he introduced his reform package, we noted that the law enforcement community had freaked out over the bill, saying that if law enforcement had to actually, you know, justify its activities to a judge, it might have "adverse impact" on investigations (you know, like reading the love letters of generals).

We noted that those concerns led Leahy to delay the markup on the bill. However, it had been widely reported that the bill was back on track for late next week. And... today comes the bombshell. According to Declan McCullagh, Leahy is planning a manager's amendment to the bill that will effectively give large parts of the federal government an exception to the warrant requirement and let them snoop on your email with just a subpoena (i.e., no judicial oversight).

Leahy's rewritten bill would allow more than 22 agencies -- including the Securities and Exchange Commission and the Federal Communications Commission -- to access Americans' e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

In other words, this went from being a much needed bill to a dangerous bill very quickly. That's extremely unfortunate. ECPA reform is needed, but not this kind of reform. From what we've heard, while there is this new manager's amendment, it is not certain that Leahy will introduce this version, and may still go with his old version (or a modified version that still requires warrants). It seems important to let folks in Congress know that this possible amendment, allowing warrantless spying, is not acceptable.

Update: There's some debate over how serious this proposal was. A new report claims that this amendment wasn't likely to be seriously considered, even though it does exist. Declan McCullagh is standing by his story, and saying that the claim that this amendment won't be seriously considered is in response to the public outcry about it.

I've argued in the past that copyright is a non-partisan issue, in that the concepts behind fixing a broken copyright system shouldn't be specific to either major political party. Unfortunately, historically, that's meant that there's been bi-partisan interest in helping Hollywood expand the system over and over and over and over again (15 expansions in the last 30 years). However, as we saw over the weekend with the wonderful RSC brief that was released and retracted in a day, there is significant interest in some circles to explore the idea of substantial copyright reform, which includes recognizing that the existing system is not functioning up to the standards set forth in the Constitution.

Along those lines, it's interesting timing to see that the Mercatus Center at George Mason University is about to publish a book on why conservatives and libertarians should support copyright reform called Copyright Unbalanced: From Incentive to Excess. The book was put together by Jerry Brito, and he describes some of what's in the book as follows:

• Yours truly [Jerry Brito] making the Hayekian and public choice case for reform
• Reihan Salam and Patrick Ruffini arguing that the GOP should take up the cause of reforming what is now a crony capitalist system
• David Post explaining why SOPA was so dangerous
• Tim Lee on the criminalization of copyright and the a use of asset forfeiture in enforcing copyright
• Christina Mulligan explaining that the DMCA harms competition and free expression
• Eli Dourado calculating that the system we have today likely far exceeds what we need in order to offer authors an incentive to create
• Tom Bell suggesting five reforms for copyright, including returning to the Founders’ vision of what copyright should be

It's good to see more analysis of why the copyright system is in dire need of reform. While I still think this should be a non-partisan issue, rather than a strictly partisan one, it's interesting to see one side of the political spectrum popping up at this time to make the argument. Over the past few years, it's seemed like many of the arguments in favor of copyright reform came from the more liberal/progressive side of the spectrum anyway, so hopefully this "balances" out the calls for reform a bit and makes it clear: the time to fix the copyright system is now, no matter what your political persuasion might be.

It's a well known fact that many people mistake Google's image search for a license-free stock photo repository. Of course, many people are unaware (or simply uninterested) in the nuances of copyright law, making liberal borrowing of images the norm, rather than the exception.

On the other hand, members of industries that rely on the protection of copyright laws shouldn't have to be reminded that "running an image search" is not even in the same neighborhood as "properly sourcing a photo." This distinction is even more important if you're in a business that relies on integrity, along with various IP laws. Having a staffer just grab an image from "The Internet" for use during a news broadcast could, at the very least, put you in the situation of having to pay up and apologize publicly for using someone else's photo without permission. At worst, you could find yourself on the receiving end of a lawsuit.

Somewhere in between these two situations lies another scenario: the photo picked hurriedly from the lineup presented by Google Image search is quite possibly THE WORST PHOTO THAT COULD HAVE BEEN CHOSEN. Charles Apple of the American Copy Editors Society has the details on how grabbing a random image resulted in some serious embarrassment for a Denver news team.

The folks at Denver's ABC-affiliated 7News last night ran a story about the David Petraeus sex scandal, his "mistress," Paula Broadwell, and her biography of Patraeus, All In.

Except instead of pulling an actual copy of the book cover, somebody just ran a Google search and pulled in the first thing they found. Which, unfortunately for 7News, was an altered copy of the book cover.

On the left, here, is the actual book cover. On the right is that image 7News pulled, most likely from a Google search.

Now, this sort of thing could have happened to anybody, but it really shouldn't be happening to professionals. But, as Apple points out, this sort of sloppy work is far from rare and he's got a long, long, incredibly long list of links to prove it (scroll towards the bottom of the page). A combination of careless image sourcing and less-than-thorough copy editing resulted in a situation that was likely much, much funnier to everyone not employed in certain positions at KMGH-TV. The news director has since offered an apology for the "regrettable and embarrassing error" and has promised to take steps to make sure this sort of mistake doesn't happen again.

Well, we'll see. Apple's list contains a lot of repeat offenders. In the meantime, KMGH-TV can be happy it accidentally added a bit of levity to its viewers' lives and added to the pantheon of screw-ups forever enshrined on the web.

We've pointed out that while we're told that intellectual property is supposed to be about the incentive to create, the reality is that it tends to be a protectionist tool to attack the competition. If you want to see an amazing example of this and how some companies will use any and all possible IP claims, look no further than the ongoing legal battle between the Chicago Board Options Exchange and the International Securities Exchange. Now, you might think that financial markets wouldn't need "intellectual property protection" in order to incentivize their creation and continued innovation. And you'd be right. But, if you wanted to use those tools to annoy the hell out of competitors, well, you've stepped up to the right window.

The legal disputes, starting back in 2006 and continuing to escalate, touch on a little bit of everything, starting with patents, moving on to copyrights and hot news and then right back to patents again, as described in the article linked above. A few key snippets on the history:

ISE first sued the Chicago board back in 2006, claiming infringement on its own patent—filed in 1999, just two months before CBOE's first patent filing. CBOE beat that lawsuit at the district court level, but this May, it was revived (PDF) by the nation's top patent appeals court. Now it looks like the lawsuit against Chicago is going to go forward, whether the exchange likes it or not—and filing their own "defensive" patent suit is the best way to get leverage.

[....] The patent suits seem to have grown out of an earlier dispute over licensing, which also reached a head this year. ISE had long wanted to offer "index options" tied to the Dow Jones Industrial Average and the S&P 500. Dow Jones & Co. had maintained that was a use of its intellectual property rights and required a license; McGraw-Hill Companies, which owns the S&P 500 Index, held the same position.

[....] ISE tried to take that case to federal court, saying it was a copyright issue. The court sided with CBOE and the index owners, however, saying the claims for misappropriation and unfair competition weren't about "authorship."

That left the case in Illinois state courts, which sided with the Chicago exchange and its allies. The courts said that ISE shouldn't be allowed to "profit for free from the efforts, skill, and reputation of the Index Providers." ISE appealed that to a higher state court, but in May it lost there as well. In that case, Illinois judges allowed the index owners to lean on the controversial "hot news" doctrine, first enunciated in a 1918 case brought by The Associated Press against a competitor.

Basically, these two exchanges don't like each other and don't like competing, so they're pulling out all sorts of random IP arguments and throwing them at each other, culminating in the latest effort which is suing each other over patents. CBOE is suing over a few patents (7,356,498, 7,980,457 and 8,266,044) which all seem like relatively broad business method patents.

I don't think anyone actually thinks the patents and what they cover really matter here. This is all about a fight between two competitors and them trying to use IP laws as leverage to hurt one another. This isn't "business", this is about wasting a ton of money on lawyers in the hopes that the other side wastes even more money -- and with the hope that, at the end, a judge miraculously tells one competitor to hand over barges full of cash to the other for no good reason.

Is it really so wrong to wonder whatever happened to just competing in the marketplace?

Neelie Kroes has emerged as perhaps the most Net-savvy politician in the European Commission, with her repeated calls for a new approach to copyright in Europe that takes cognizance of the shift to a digital world. That's one measure of how mainstream the idea has become. Another is the fact that even copyright hardliners like Michel Barnier, the Commissioner responsible for the Internal Market in Europe, are starting to frame the discussion in a similar way. A recent speech, for example, is entitled "Making European copyright fit for purpose in the age of internet", where he asks whether Europe has found the optimum balance between a number of factors:

The widest possible access to quality content for Europeans;

Fair remuneration for creators;

Sufficient incentives for those that invest in creation,

And legal certainty for content distributors

He rightly answers:

I do not think so.

As well as the generally-accepted issue of Europe's poor cross-border licensing, he raises a more contentious area that is causing problems:

I want a copyright framework that provides the right incentives for those that create and invest in content and that ensures the right balance with other policy objectives such as education, research or innovation.

We need an equilibrium. Copyright enables rights holders to function in commercial markets. Removing rights goes quite far: it removes rights holders ability to authorise the use of their content, or to gain reward for their investments. So when can a limitation on these rights be justified? And when should users better acquire a licence to use others' rights for their own commercial gain?

This betrays Barnier's perspective that this is all about money -- that if you are building on someone else's work there will naturally be profit involved somewhere along the line, and that profit should be shared. What this overlooks, of course, is the massive scale of online creativity that has nothing to do with money -- the sharing and mashups that are routine on social networks like Facebook and Twitter, with their often casual reworkings of existing material.

But Barnier will have none of this:

I do not share the view of those that think copyright protection should be weakened so others can develop new commercial services free of cost. This would simply amount to legislating for free-riding: shifting wealth from the content industries -- many of which are based in Europe creating jobs and paying taxes here -- to other industries. This cannot be right.

This is a clear dig at Google, demonized once more for allegedly building its business by exploiting the work of others, made worse by the fact that it pays little in the way of European taxes. But the fundamental problem here is that Barnier equates a "weakening" of copyright protection -- what should rather be called a rebalancing -- with generalized free riding. And even though he says he is open to evaluating "the need to update our system of limitations to copyright", the idea that the public might deserve a fundamentally better deal when it comes to copyright never seems to cross his mind.

He also makes clear that his "vision" includes the following:

A copyright framework that continues to provide incentives must include meaningful enforcement.

With the crisis it is more than ever necessary to eliminate illegal business models that are based on IP infringing activity. This is how we can pave the way for legal offers, especially by innovative start-ups and SMEs. This is also how we transform "informal" economy jobs into real, sustainable job opportunities.

Worryingly, this seems to subscribe to the copyright industry view that before there can be more legal services, illegal ones must be eliminated -- as if that were even possible. It flies in the face of the evidence that it is precisely through the provision of better digital offerings that serve the public's needs that people will be encouraged to turn away from unauthorized sources.

Sadly, in the end, Barnier's "copyright fit for the Internet age" looks depressingly like the current, dysfunctional version: one based on a non-existent scarcity, on treating the public as passive consumers, and on pursuing unachievable enforcement goals with ever-harsher punishments.

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In this bold era of copyright trolling, calmly (ir)rational takedown bots, baseless legal threats and ridiculous statutory damages, it's a true rarity to see a copyright holder deal with infringement, especially non-commercial infringement, with a reaction that's actually in line with the "crime" committed.

As photo sharing increases, thanks to platforms like Pinterest and Tumblr, the chances of infringement increase. Paidcontent has the details on a micro-stock agency that's treating infringers as potential customers, rather than criminals.

Unlike other image owners, Dreamstime does not sic lawyers on people who like its photos. Instead the company, which claims to have more than 5 million users, responds by sending them a notice to take the image down or else to buy a license at the going rate which can be as low as $8.

According to CEO Serban Enache, this approach actually leads to better business.

“We want to respond to copyrighted images but we want to do it in a different, non-heavy-handed way,” said Enache in a recent phone interview. “This is very successful way of turning unauthorized users into customers. Once they learn of the license, they often obtain larger licenses.”

When you give infringers a logical option (take down the photo or pay a fee), most will take down the photo. If you give them the chance to license the photo for a reasonable rate, you should be able to find a few takers. The most important part of this scenario is that Dreamstime gives infringers an option, something most copyright holders are unwilling to do. Compare Dreamstime's method to those of other copyright holders.

As photos spread across the internet, bands of lawyers are springing up who offer themselves as hired-gun enforcers to image owners. When they find a target, they squeeze them for thousands of dollars and take a cut of the loot.

Major image owners like Getty possess image recognition software that lets them quickly detect unauthorized use of their images. The legal settlements they collect have become a major source of revenue.

These copyright holders are willing to imagine that a hobby blog's use of an image is somehow depriving them of thousands of dollars. Because of this irrational (but self-interested) logic, the "problem" is treated with utmost severity, resulting in demands for prohibitively expensive licensing fees.

Not only does Dreamstime request reasonable license fees, but it doesn't waste time with the DMCA process. A DMCA takedown notice almost always results in the infringing content being removed, but does nothing to help the photographers earn any income. It's hard to earn money by shooting first and asking questions later. Instead, the infringer is approached directly and honestly, rather than threatened with the possibility of legal action and thousands of dollars in statutory damages. Perhaps if more copyright holders approached casual infringement this way, they might see an uptick in income, rather than alienating another set of potential customers.