Every year, we talk about how January 1st is public domain day in many parts of the world, but thanks to constant copyright term extension, the US is left waiting and waiting and waiting -- kind of like the famous play by Samuel Beckett, which entered the public domain in many places around the world in 2011, but is still covered by copyright here.

The folks at the Public Domain Review have put together a nice list (and photo!) of the "Class of 2013": content creators whose works will be going into the public domain on January 1, 2013 in large parts of the world, including the EU, Brazil, Russia and many other places. To help out, I thought I'd put together the list of content creators whose works are entering the public domain in the US in 2013:

Yeah. It looks suspiciously like last year's list. And the year before that. And before that. And so on. Oh, and also... I hate to ruin the surprise, but next year's list? Pretty much the same. Year after that? Yeah, that too. For anyone who actually understands the value of the public domain in enriching and enhancing culture, the fact that the US -- at the behest of the entertainment industry, which has often mined the public domain for its own works -- isn't just shameful, it's downright despicable. We're stifling our own culture.

As we all know, not only is Germany the land of chocolate, it's also the land of effed-up IP laws. And this case under discussion here is severely effed-up, not to mention long-running. This is a 12-year (and counting) battle waged over a 2-second rhythmic sample.

Back in 1977, Kraftwerk released a track called "Metall auf Metall" that contained a rather distinctive bit of percussion that ran the length of the track. Twenty years later, a German rapper called Sabrina Setlur recorded a single called "Nur Mir," which featured a two-second loop of Kraftwerk's percussion. In 2000, Kraftwerk took producers Pelham and Haas to court (specifically, Hamburg's lower civil court) for using an uncleared sample.

For the next eight years, the case bounced between courts before landing in Germany's highest civil court (BGH), which initially ruled against Kraftwerk, stating that "sampling musical notes does not, in principle, violate copyright." This overturned a decision by Hamburg's lower court, which stated the opposite: that re-purposing even the smallest sample of a song counted as copyright infringement. It had also issued an injunction against Pelham and Haas, the producers of "Nur Mir," forbidding further distribution of the offending single.

BGH's 2008 decision, while making sampling possible again, laid down some restrictions, preventing some sort of sampling land rush for occurring.

The key to the German higher court ruling is that sampling a melody does constitute infringement, but a couple of notes taken from a previous recording used in such a way as the original melody is not identifiable – which was arguably the case in "Nur Mir" – does not.

It also required that the sample "be part of a completely new musical work bearing no resemblance to the original," heading off any sort of Vanilla Ice-esque developments.

So, despite the highest civil court in Germany ruling that "Nur Mir" didn't infringe, the case was kicked back down a level to Hamburg's highest regional court (OLG) in order to test the extent of Germany's equivalent to fair use. In August 2011, OLG returned a decision agreeing with the BGH's findings, but allowed Kraftwerk to appeal this decision as the court was unsure it had reached the right decision.

The regional court did, however, make a couple of statements, along with setting up one of the stranger demonstrative tests ever deployed in a courtroom setting. The first statement indicated that the court felt "Nur Mir" was sufficiently transformative, even if it contained a recognizable sample.

In any case, the OLG found that "Nur Mir" possessed an entirely different character from"Metall auf Metall," even though the rhythm sequence was clearly audible throughout the track. Making allowances for the hip hop genre, the judges stated that it would be asking too much if one were to demand a rhythmic figure in a hip hop track to fade to the background in such a way as to be barely recognisable. The additional elements were deemed enough to turn "Nur Mir" into an independent work according to § 24 (1) UrhG.

The second statement was a bit more troubling, raising questions on how exactly someone would determine a sample to be infringing, putting the weight of that decision on the hypothetical customer.

According to the OLG, it is not necessary that the sound be identical, but that it would be regarded as equivalent by prospective consumers that are familiar with and possess a certain amount of sensitivity for musical issues without being extraordinarily exacting.

A worrisome baseline to set, especially when declaring "Nur Mir" to be non-infringing. This puts the determination in the hands of the proverbial "moron in a hurry," only a moron with a decent sized record collection.

Then it gets seriously weird. Despite finding the disputed track to be non-infringing because it was sufficiently transformative, the court started asking itself questions about whether the sampling should be permitted at all without clearance, especially if the sample could be reproduced with the technology in use at the time (1997). Since the highest court had issued no guidance on the subject before kicking it downstairs, the OLG came up with its own idea, which was implemented and then re-demonstrated once the case returned to the BGH (which is erroneously referred to as the "Supreme Court" in the article). The court found in favor of Kraftwerk... and key evidence was provided by expert witnesses banging on pieces of metal and feeding them through a 1996 Akai sampler.

The question at the heart of the case is how far sampling the work of other artists—a mainstay of modern hip-hop and techno—is permissible when creating new music. The answer given by the Supreme Court is that it is only permissible if the same effect could not have been produced by the new artist himself. After various demonstrations by expert witnesses, crashing metal on metal and using instruments such as a 1996 Akai Sampler, it was shown that an imitation of the sound-bite would have been possible in 1997. Hence, on December 13th, it ruled in favour of Kraftwerk.

So, at this point, here's what we have.

1. Hamburg lower court declares that uncleared sampling is not permissible ever.
   
2. Hamburg higher court declares that melody lines cannot be sampled but rhythmic samples are OK, with several caveats.
   
3. Germany's highest civil court declares sampling is OK only if the sample cannot be reproduced with existing technology, discarding transformative use altogether.
   

Is this is just the court's way ultra-weird way of telling would-be samplers to "make original music?" The BGH, for unclear reasons, stripped away OLG's definition of "independent work," and handed down a severely broken ruling that pretty much eliminates sampling as an option for producers. Ruling in favor of Kraftwerk and setting this bizarre precedent completely clouds the water on sampling and insinuates that a rapper utilizing a 2-second sample on single released 20 years after the original somehow makes these two tracks (and artists) interchangeable in the customers' minds, thus damaging the market for the original artist. "Oh, I was going to buy some Kraftwerk but this rap single will do."

Then there's the conundrum this decision presents: the only way for the customer (or plaintiff) to decide whether a track has an "equivalent sound" (and thus, infringing) is after the track is released. The lawyer for Pelham and Haas poses this question.

How can you be sure that the artist has succeeded before the work has been released to the consumer?

Indeed. This creates a considerable chilling effect, one that not only discourages sampling, but eliminates transformative use from the equation by disregarding OLG's statement that "Nur Mir" was an "independent work," despite its recognizable sample. Anything that sounds like anything else can trigger a copyright infringement suit, whether or not an actual sample was used. Restricting sampling to "unreproducible sounds" leaves artists with little but God's voice and the weird noises animals make when they're happy as the only permissible sampling material.

Pelham and Haas are looking to bring this case to Germany's constitutional court (the actual Supreme Court), stating that this decision might violate article five of the constitution, which grants the right for art to be "informed without hindrance from accessible sources." Hopefully, they'll succeed. If nothing else, the laws regarding sampling as they stand now are completely unusable and cobbled together from bits and pieces of a lawsuit that has dragged on far too long over way too little.

It's time for Obama to appoint a few ambassadors and the short list appears to be stuffed with exactly the sort of people that the U.S. Chamber of Commerce would wholeheartedly approve. The CoC's desire to rewrite other nations' IP laws through slanted "free trade agreements" or the odious TPP would likely gain a few allies willing to soften up the opposition before the main push.

The Hollywood Reporter has taken a look at Obama's donor list and named a few loyalists who might be rewarded for their election-run largesse with an ambassadorial appointment. And, no surprise, many of the names have close ties with Hollywood.

Among the Barack Obama loyalists under consideration for ambassadorial appointments are Los Angeles-based White House decorator Michael Smith, 47; Hollywood philanthropist and television producer Colleen Bell, 45; industry money manager John Emerson, 57; and Tennis Channel chief Ken Solomon, 49. And the Westside L.A. dinner-party circuit has started buzzing with conversations about who else might be in the mix this time around.

According to sources, many of the candidates were among 100 guests invited to the White House in early December for an East Room dinner at which Obama and the first lady thanked longtime fundraisers and Democratic activists for their support. Among the Hollywood-connected contingent at the event were Emerson; Solomon; Wintour; Smith and his partner, HBO executive James Costos; Bell and her husband, soap opera producer Bradley Bell; political and philanthropic consultant Noah Mamet; Harvey Weinstein; and Hollywood political consultant Andy Spahn.

In addition to the title (which appointees get to hold onto for life), there's a bit of prestige and a salary of $150,000-180,000 attached to the job. In order to repay an industry for its nearly unwavering support, the administration may choose a few from its rank, both as a thank-you gesture and to ensure the "proper" mindset when approaching other countries about their "weak" IP laws.

This, of course, is part of the "revolving door" process. If an appointee serves well in this position, it gets them a foot in the political door, which could lead to a political career... which would then lead to a post-career chairperson position or the like with the entertainment industry... which could lead to a lobbying position... and so on. The entertainment industries know this political game well, and Hollywood has been more active than most in the process, especially over the past several years.

Some will claim that these appointments have nothing to do with rewarding donors, like this unnamed person:

According to an administration insider: "There is no single thing that qualifies you to be an ambassador, but they have one thing in common: They have all earned the trust and respect of the president. He isn't going to choose someone just because they've raised $500,000. He has to know them."

Of course, it's not all about the money. It's also about the industry itself. The entertainment industry has been a strong supporter of the Obama administration and has not been very shy about expressing its appreciation for the government's willingness to cater to its every need. It also hasn't held back when it thinks it has been wronged, as MPAA CEO Chris Dodd's post-SOPA-failure threat to withhold bribes contributions if the administration failed to hold up its end of the bargain.

So, if these candidates end up with ambassadorships, the posts will lay somewhere between thank you cards and olive branches, letting the entertainment industry know that the administration still wants its money support, and that it's willing to send the industry's people out to win hearts and minds abroad.

Food labeling can be a controversial topic when it comes to getting everyone to agree what information should be included with various foods. That said, technology that just enables printing information on food can lead to some fun (not just informative) innovations. Here are a few cool ways to get a message across via food.

• A robot espresso machine can print short messages onto coffee foam -- and advertise for a text messaging startup at the same time. If this catches on, YouTube will inevitably have a video of someone printing "Marry Me?" in coffee. [url]
• The killer app for 3D printing could be chocolate printers. Printing Valentine's Day messages in chocolate is just the beginning. [url]
• Fruit labels usually leave sticky residues on your fruit that need to be washed away, so why not just make the label adhesives out of soap? Soaps are usually pretty non-sticky, though, but the idea of using more friendly adhesives on produce is a good thought. [url]
• Are generic corn flakes really a huge problem for Kellogg? What if each corn flake was individually labeled with a Kellogg's signature -- written by lasers? About 128 billion bowls of Kellogg's Corn Flakes are eaten every year, so that's a lot of laser printing... [url]

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

Even if a lifetime of exposure to the continuous hypocrisy of politicians has turned many of us into jaded, cynical shells of human beings reduced to selecting "None of the Above" when voting, every so often something comes along that breaks through our hardened shells... and carves another slice off our dwindling faith in humanity. This is one of those moments.

Senators John McCain, Dianne Feinstein and Carl Levin have an issue with Zero Dark Thirty, most specifically its uber-controversial torture scene. Taking to the nearest soapbox, they have decried this horrible act of waterboarding storyboarding, calling it "grossly inaccurate and misleading." As Spencer Ackerman at Wired points out, it's a bit rich for these three to be making a bunch of noise about fake torture (and related inaccuracies) when they could be clearing the air about actual, state-ordained torture involving real detainees.

If the problem with Zero Dark Thirty is that it's not an accurate presentation of the utility of torture (and we shudder at the thought that torture ought to be evaluated according to its utility), the senators could make a major push to declassify a massive report put together by Feinstein's committee into what the CIA's torture program did and didn't do.

Feinstein, in particular, should probably keep her comments on fake torture to a minimum, considering she's sitting on a classified report that details years of interrogations performed by the CIA, often involving torture of detainees.

Last week, Feinstein announced that the Senate intelligence committee she chairs finally approved a 6,000-page study into the CIA’s treatment of terrorism detainees in its custody that took almost four years to investigate. By reviewing more than "6 million pages of CIA and other records," Feinstein said, the report details how the detainees were treated, how they were interrogated, and, crucially, "the intelligence they actually provided and the accuracy — or inaccuracy — of CIA descriptions about the program." Feinstein promised "startling details" and "critical questions" about the program, promising it would "settle the debate once and for all over whether our nation should ever employ coercive interrogation techniques such as those detailed in this report." Small problem: the report is secret, so you can't read it.

"Startling details" and "critical questions" that the average US citizen will likely never see. Feinstein won't declassify the report until the President and other executive branch members review it. At that point, the committee will "consider" declassification. In other words, this has next to no chance of being declassified, at least not during this administration, and very possibly much longer than that. Here's how Ackerman describes the current situation:

So the report that could settle the debate about torture won't settle the debate about torture until the self-interested parties who've stymied accountability for torture decide it's safe to settle the debate about torture.

Despite a promising start, Obama and his team have shown very little interest in the openness and transparency that was promised at the beginning of his first term. In fact, many of the administration's actions have headed in the opposite direction.

After an early and acrimonious decision to partially declassify key Justice Department memos authorizing the torture — for which Obama deserves praise — he's done nothing. A special prosecutor empowered by Attorney General Eric Holder ended up not indicting any CIA official who abused detainees, and didn't even consider investigating the top officials who authorized the torture in the first place. There has been even less official public reckoning with what the torture program entailed, something that would fray Obama's relationship with a CIA that implements his lethal drone program, since a former Bush administration aide described that program as amounting to "war crimes." And it's worth noting that under Obama's watch, the U.S. military placed accused Wikileaker Bradley Manning in conditions that were harsher than those for many Guantanamo Bay detainees.

That's what makes this particular bit of grandstanding especially nauseating. To publicly berate a movie (and its makers) for being "misleading" in its depiction of torture is more reprehensible than decrying the movie for depicting (or "glorifying," as other critics have stated) torture. If the torture actually happened and produced no usable results, shouldn't these three be making some noise about the CIA using horrific tactics to produce questionable results? If, indeed, the torture was "successful" and helped take down Bin Laden, shouldn't those who either explicitly or implicitly justify torture be praising this film for its accuracy?

Since no one's taking up that latter offer, we can assume that government officials that approve of torture have no desire to express that in public. And if these three have information disproving the movie's claims, they should be coming forward with it, rather than keeping it hidden from public view. Unfortunately, this report will stay locked down, as no one in this administration wants to hang out the CIA's dirty laundry. Chances are the report shows that several horrific acts produced negligible results as the link between torture and usable information has always been extremely tenuous. As Nice Guy Eddie said in 'Reservoir Dogs,' "If you fucking beat this prick long enough, he'll tell you he started the goddamn Chicago fire, now that don't necessarily make it fucking so!"

Instead of transparency, we get self-serving complaints about celluloid torture and more state secrets and classification. It's sad, disgusting and entirely unsurprising.

Update: And... after a bunch of negative publicity, Apple has reversed course and lifted the ban. Original article below...

A bunch of folks have been submitting this story about Apple refusing to allow a company, Edison Junior, to offer its Lightning connector as part of its POP portable power station, which had run a very successful Kickstarter campaign earlier this year. Edison Junior is returning everyone's money -- even covering credit card fees and Kickstarter's fees (though it's asking Kickstarter to give that back as well), but is reasonably angry. According to VentureBeat:

“We are pissed,” Edison Junior CEO Jamie Siminoff told me on the phone today. “I think they are being a bunch of assholes, and I think they’re hurting their customers.”

Understandable. The company plans to still build versions of the device that focus on the Android market, and which might possibly work with Apple products if people use adapters, but it's certainly not ideal.

The whole thing, of course, is silly, but representative of the unfortunate world we live in today where companies lock up their products. In the past, building alternate versions or compatible accessories, and reverse engineering parts, was generally considered part of how an ecosystem was built up around your market. But Apple's infatuation with over-controlling its market only serves to piss off Apple customers who want a solution like this. Unfortunately, due to the nature of using security chips and claiming patents on everything, rather than just being a simple reverse engineering challenge, Apple is effectively able to use patent and copyright laws to block any such innovation.

If you recall the company named Games Workshop from Techdirt stories, you likely already have a bad taste in your mouth from my mentioning them. The game publisher responsible for the Warhammer games twice went after fan sites that were simply building a better experience for fans of the game. We wondered at the time how a company could be so boneheaded as to target their own fans and level trademark suits at them instead of getting creative with a way to allow those fans to continue to be fans. Well, I have an answer for how they could do that, and it's going to surprise you.

No, Games Workshop's CEO is not Satan...but you're close!
My theory is that the people working at Games Workshop, or at the very least their legal team, are in fact from a completely different universe than we are! How did I come up with this theory, you ask? Well, it all revolves around the company having Amazon take down author M.C.A. Hogarth's fictional novel over their supposed trademark on the term "space marine".

Today I got an email from Amazon telling me they have stopped selling Spots the Space Marine because Games Workshop has accused me of infringement on their trademark of the word ‘space marine’.

If you go to the Trademarks Database and look up the word “space marine” you’ll find the Games Workshop owns a trademark on the term “space marine,” but it only covers the follow goods and services: IC 028. US 022. G & S: board games, parlor games, war games, hobby games, toy models and miniatures of buildings, scenery, figures, automobiles, vehicles, planes, trains and card games and paint, sold therewith.

Hogarth then goes on to say that she (shockingly!) didn't come up with the term for Space Marine after playing a Warhammer board game, but instead from what appears to be its original use back in the 1930's. At the time of this writing, Hogarth's blog post states that she's discussing the situation with the people involved, so hopefully that means not only is Amazon reversing course and putting the book back up on Amazon, but also be soliciting an apology from the company.

In any case, Games Workshop being unable to understand their own trademark is only mildly surprising, but their interest in trademarking what, to me at least, seems like such a common phrase these days got me wondering just how common the term "space marine" is. So I went to Wikipedia to see what they had to say, and that is where I discovered the shocking truth: "space marine" is an archetype of science fiction. Don't know what an archetype is?

"An archetype is a universally understood symbol, term, statement, or pattern of behavior, a prototype upon which others are copied, patterned, or emulated."

This suggests two things to me. First, if "space marine" is an archetype, then by definition it is designed to be a symbol (amongst other things) for all to copy and emulate. That would seem to be the antithesis of this particular trademark suit. Secondly, if it is to be universally understood and Games Workshop didn't recognize this to the point that they decided to trademark the term as distinct, well, then they obviously are not of this universe at all. It seems clear that they're inter-dimensional lawyer-merchants that may, or may not, have plans to colonize Earth and destroy the human race.

Well, that or they're just kind of jackasses.

The latest in the long and growing list of wacky moves by the Prenda Law copyright trolling team once again hints at the same thing: these guys think that they've outwitted the law and will use every loophole they can possibly think of to do one thing: get the identities of people associated with IP addresses in order to send them "settlement" letters and phone calls. From all of Prenda / John Steele's actions to date, that appears to be all they care about. Get identities and then pressure into settling in any way possible. The company has tried all sorts of tricks -- and many of them are exactly that: tricks. As you go down the list of stories associated with Steele, you see more and more cases of really questionable behavior, with courts across the country calling him or Prenda out on the behavior.

The latest "trick" is really incredibly brazen, and involves a variety of different tricks all mixed into one. As the federal courts have gotten better at recognizing "copyright trolling" and properly finding the behavior reprehensible, Steele has tried a few tricks to get cases into state courts, such as using an ancient part of Florida's state law known as a "pure bill of discovery." The latest move, however, started out in a Cook County court in Illinois, where Prenda filed cases "Guava v. Skyler" and "Arte De Oaxaca v. Stacey Mullen" in which they sought to get discovery on a bunch of IP addresses using a couple of tricks to make it easier.

First, Guava doesn't actually hold the copyrights in question, so it can't file a copyright case (also, they can't file a copyright claim in a non-federal court since copyright is mostly covered by federal law) -- which is the situation that eventually got Righthaven in so much trouble. So, they filed under the CFAA -- the Computer Fraud and Abuse Act. You may recall this law as one we've written about frequently, mainly for the ways that it's been abused to go after people doing something someone didn't like on a computer, when no other laws could be made to stick.

In these cases, the plaintiff would allege that a single defendant (Skyler or Mullen) along with "co-conspirators" had "breached plaintiff's security systems." This is trick number two. Rather than name everyone they're going after in a single lawsuit and face problems of misjoinder as in copyright trolling cases, they just claim that there are co-conspirators, who they hope to learn about during discovery. In other words, the "trick" here is not actually naming the people as defendants initially (which would make it easier for them to defend themselves), but arguing that they need to go through the process of having ISPs cough up their identifying info as part of the basic "discovery" process to even figure out if they're co-conspirators.

But how are they claiming this is a CFAA issue? That's trick number three. According to Steele:

Guava owns protected computers, but the files stored in that computers contain copyrighted stuff, and the copyrights belong to a third company. Guava goes after people because of hacking, but that third company, which also happens to be our client, may say: look, this IP address infringed our copyright, so we may decide to go after the same IP for copyright infringement.

In other words, this is a copyright case in disguise, and they're arguing that accessing copyrighted materials on a computer is a form of hacking.

I'm not ready to call the next part a "trick" but the judge in the Guava case certainly appears to suspect that there's a third trick, which is that the lawyer defending the defendants, Adam Urbanczyk, agrees to allow the process of discovery to move forward. The judge found this to be odd and, according to FightCopyrightTrolls, specifically asked John Steele and Urbanczyk if they "were in bed together" in allowing the discovery to move forward. That's because another lawyer entered the picture, Erin Russell, who had filed motions to quash on behalf of some of the supposed "co-conspirators," arguing that the whole thing was a sham and the "true purpose" of the whole thing was "to leverage settlements from identified subscribers, without ever naming them as defendants." In response, the judge wisely put the kibosh on the discovery process -- stopping existing subpoenas, forbidding new subpoenas and asking for more info.

Steele, in response, pulls out the next trick, arguing (in part) that Russell's motion should be ignored because the people she's representing aren't actually defendants. Remember how they're just named as "co-conspirators" rather than actual defendants? The idea is to use that to pretend that they can't even defend themselves until after their info has been revealed!

Then we move on to the next trick. After that hearing and before the ensuing hearing where the judge was to delve into more details, Steele / Prenda withdrew the subpoenas for all of the co-conspirators who were being represented by Russell. Because of this, her motion to quash the subpoenas was correctly ruled moot.

But, of course, that's not the end. So we move on to the next trick, which is that Guava / Prenda then sued all of the same people in ten different federal district courts. Yes, they basically filed identical lawsuits in ten different courts, all asking for discovery on the same exact list of 34 IP addresses. Fight Copyright Trolls lists out all of the cases (and the lawyers representing Prenda in each case):

• Alabama: Curtis Hussey (Guava LLC v. John Doe, ALSD 12-cv-00678).
• California: Brett Gibbs (Guava LLC v. Doe, CAED 12-cv-02514).
• District of Columbia: Paul Duffy (GUAVA, LLC v. JOHN DOE, DCD 12-cv-01661).
• Illinois: Paul Duffy (Guava, LLC v. Does 1-5, ILND 12-cv-08000).
• Michigan: Jonathan Tappan (Guava, LLC v. Doe, MIED 12-cv-14441).
• Georgia: Jacques Nzaire (GUAVA LLC v. DOE, GAMD 12-cv-00398).
• Arizona: Steven Goodhue (Guava LLC v. Unknown Party, AZD 12-cv-02158).
• Ohio: Rod Mastandrea (GUAVA LLC v. Doe, OHND 12-cv-02512).
• Massachusetts: Daniel Ruggiero (Guava, LLC v. Doe, MAD 12-cv-11880).
• Connecticut: Daniel Ruggiero (Guava, LLC v. Doe, CTD 12-cv-01435).

Basically: a total shotgun approach. The attempt to sneak through discovery without even naming the IP addresses as defendants failed in Cook County, so just file repeat federal lawsuits everywhere they can think of, perhaps hoping / figuring that at least one of the judges would agree to discovery, leading to the identities associated with those 34 IP addresses being passed over. (Also, as an aside, FCT notes that in what appears to be a moment of sloppiness, in at least one of the complaints, Prenda slips up and notes that it's really a copyright case, despite elsewhere pretending that these kinds of cases aren't about copyright at all). Talk about jurisdiction shopping!

Steele, apparently, then bragged about this particular trick on both Twitter and in blog comments, in which he mocks Russell, suggesting that her clients must be angry because rather than be a mere "co-conspirator" in the original case, they're now defendants in federal cases around the country. He also bragged that some of those account holders were now "begging to settle" and angry at Russell for not letting them know that they could be sued.

Following this, three of the defendants in Massachusetts hit back hard, alerting the judge to the shenanigans that Prenda was pulling in filing identical cases all over the place, and asking the court to not only put a stop to the proceedings, but also asking for Guava to have to pay their costs and to withdraw the subpoenas it issued in all of the duplicate and related cases.

The Complaint Guava filed in this Court is based on and includes substantially identical factual and legal claims to those Guava raised in Illinois. To defend the Illinois action, Defendants retained counsel and filed motions to dismiss and to quash subpoenas issued by Guava. One day after the Illinois court stayed the subpoenas and scheduled a hearing on the motions, Guava withdrew its claims against Defendants and opened this action. Guava then duplicated this action in nine other federal courts, without notifying this Court of the prior or concurrent related cases, and set out to issue new versions of the subpoenas, seeking the same information about Defendants.

In other words: Prenda is basically filing the same thing against the same people in a ton of different places, hoping one court, somewhere actually lets it go through. The filing from the defendants notes that it's proper to awards costs (including attorney's fees) when refiling a previously dismissed claim.

The filing also notes that Guava / Prenda appear to be engaged in "vexatious litigation tactics":

Guava’s bad faith litigation tactics are precisely the kind of vexatious conduct that Rule 41(d) was designed to prevent.... Guava admits that it initiated its new claims against only those Does who filed motions to dismiss and quash in Guava I, precisely because they did so. “[B]ecause the Movants attempted to act and raise arguments as though they were defendants in this case, Plaintiff granted their wishes and initiated separate litigation against them in which they will now be actual defendants.” ... “The scattershot litigation strategy of plaintiff’s counsel -- filing identical lawsuits nationwide and forcing defendants to defend the same action in various jurisdictions -- is certainly questionable.” Kerner v. Cult Awareness Network.... Sanctions under 18 U.S.C. § 1927 may be warranted by evidence of “bad faith in choosing a multiple-district litigation strategy.” Id. Guava provided sufficient evidence of bad faith by filing multiple duplicative federal actions in apparent retaliation against Defendants for having defended themselves in the prior action.

Many other aspects of Guava’s litigation strategy can only be described as vexatious. In this action, Guava claims to be pursuing a single John Doe defendant with three different IP addresses. Before filing the Complaint in this action, Guava admitted it had “used publicly available reverse-lookup databases on the Internet to determine what ISP issued the IP addresses and the putative location of those IP addresses.” ... However, freely available online geolocation tools list two of Defendants’ IP addresses in different regions of metro Boston (Somerville and Brighton), while the third is in western Massachusetts (Chicopee). Those same geolocation tools identify the three Defendants’ IP addresses as having been assigned by two different Internet service providers, both of which Guava subpoenaed in pursuit of an allegedly single defendant. Because they are different people, Defendants filed their motions in Guava I on different dates. Thus, Guava had no reason to believe that the three individuals it calls “Defendant” are the same person, and Guava’s deceptive pleading has needlessly added to the complexity of Defendants’ responses.

Guava’s bad faith tactics have further complicated Defendants’ defense. Guava chose to file complaints that sound in copyright without pleading copyright infringement as a cause of action.8 Though the Complaint alleges CFAA violations and various common law claims, it repeatedly references an implicit copyright claim...

It goes on to highlight where in the various cases they repeatedly refer to copyright-related claims, such as "the exclusive right," and thus (similar to Righthaven), they argue that Guava is using "tactical chicanery in misstating its claims." And, of course, such claims should be pre-empted by federal copyright law, since that's what they're really suing about while trying to avoid it officially being a copyright case -- probably for the sake of not easily "connecting" it to copyright trolling cases that have received so much bad publicity (and dismissals from judges).

That appears to be the state of things so far. It will be worth watching how the judge responds (and how some of the other courts who have the related cases deal with the same issues). However, all of this smacks of the same old story with John Steele and Prenda: lawyers who think they're so smart that they've outwitted the system through a whole series of loopholes, all intended to avoid the fate of some of the straight copyright trolling cases. Given the details, however, hopefully a court will rightfully smack them down for abusing the courts in this manner.

Earlier this month, we wrote about how an Italian court was considering the appeal by three Google execs of their earlier criminal conviction over some kids uploading a video to Google Video. The whole case was really bizarre, putting the liability for the kids uploading the video on some US-based execs who had nothing to do with it. As we noted when the conviction came down, legal experts believed that the judge had made a serious mistake in reading the law. Of course, it took three years to get to the appeal, and Italian prosecutors were still demanding that these execs be put in jail.

Thankfully, however, the appeals court has overturned that ruling and said that the execs are not personally liable. Giovanni Maria Riccio, an Italian legal expert, agreed that "this is a landmark decision," especially concerning secondary liability. As he noted "it makes clear that monitoring obligations cannot be imposed on ISPs and that, in any case, these obligations are not connected with the financial benefit gained by intermediaries." As we had been arguing from the beginning, if Italian prosecutors won out in the long term, the potential incentives for foreign companies to make their services available in Italy would have been greatly diminished. Now, if Italian courts would only stop sending scientists to jail for failing to predict an earthquake...

As predicted, one element of the NRA's "big announcement" today was to lash out and blame media, music and movies for violence. Most news stories are focusing on the wacky idea of putting armed guards in every school (and to do so in the next few weeks as well) and creating a database of the mentally ill, but the lashing out at video games and movies, despite no evidence that they actually lead to violence, seems equally ridiculous.

In some manner, it appears that the NRA's response is that the 2nd Amendment is more important than other amendments in the Constitution. Blaming music and movies is an attack on the 1st Amendment, which allows for freedom of expression, while turning our schools into police states, patrolled by armed guards, at least toes the line on the 4th Amendment. The database of mentally ill patients also raises significant privacy issues. No matter what you think of various gun control proposals, it seems rather ridiculous to take a strong Constitutional stand as the basis for your argument... only to make a complete mockery of other amendments.

This story is almost too bizarre to believe. Journalist David Axe wrote a graphic novel about "the Lord's Resistance Army" rebel group in the Democratic Republic of Congo (which many people may be aware of due to the controversial viral "Kony 2012" story from earlier this year). No matter what you think of the situation with Kony, it seems bizarre that the book itself (which is just about Kony) should be declared a product of a terrorist organization and the money associated with it frozen. But... that's apparently what happened.

In 2010 I went to the Democratic Republic of Congo to report on the Lord’s Resistance Army rebel group. In 2011 I wrote a graphic novel script based on my reporting and artist Tim Hamilton agreed to draw it. Cartoonist Matt Bors edited the story and early this year the Dutch Website Cartoon Movement serialized the art online, following which book publisher Public Affairs acquired the paperback rights. And last month, the federal Office of Foreign Assets Control confiscated the majority of the advance payment, claiming that we were laundering the money for onward transfer to a terrorist organization.

Yes, you read that right: the feds believe Tim and I are terror financiers.

This seems like a massive overreaction by the US government (and, perhaps, a First Amendment violation). The graphic novel appears to be a journalistic account of Joseph Kony's actions in central Africa: In the press release that Axe and Hamilton sent out about this, they were told that book's title, Army of God, "threw up a red flag." You would think that once that red flag went up, some bureaucrat somewhere would then have looked at the damn book and realized that it's not some terrorist conspiracy. I guess that's too much to ask.

It's really amazing how fearful people who don't understand technology are of anyone who has any connection to file sharing, no matter how remote. Over in Sweden, an appeals court has overturned a lower court ruling absolving a web designer of any liability for designing the StudentBay -- a torrenting site for educational material -- and decided that because he designed the site, he must be liable for what users did on the site. This goes beyond secondary liability into some sort of weird tertiary liability. It already seems odd to blame the operators of the site for actions taken by its users, but now we're holding the graphic designers responsible too? It's a sort of scorched earth policy from people who don't seem to understand how the internet works, and who just seem to want to "destroy everything." Of course, the end result is that anyone with half a clue just thinks the judicial system is a complete joke. That doesn't seem useful for anyone.

It's been frequently posited that the US is slowly becoming a police state, what with the near-constant surveillance of citizens, the "Constitution-free" zone surrounding our borders, the endless hassles of attempting to board a plane, NYC's controversial "stop-and-frisk" program, and the many security agencies that either were created or greatly expanded post-9/11.

Apparently, "slowly becoming" a police state isn't fast enough for the police department of Paragould, Arkansas. In response to an increase in crime, the Paragould PD will be deploying armed officers into high crime areas, clad in SWAT gear, to check IDs on any residents they happen to encounter.

[Police Chief] Stovall told the group of almost 40 residents that beginning in 2013, the department would deploy a new street crimes unit to high crime areas on foot to take back the streets.

"[Police are] going to be in SWAT gear and have AR-15s around their neck," Stovall said. "If you're out walking, we're going to stop you, ask why you're out walking, check for your ID."

Stovall said while some people may be offended by the actions of his department, they should not be.

"We're going to do it to everybody," he said. "Criminals don't like being talked to."

You know who else doesn't like to be talked to by police armed with AR-15 assault rifles and dressed in tactical gear? Damn near everybody. Since it is written exactly nowhere that US citizens are required to carry identification at all times, this sort of "papers, please" activity is going to please no one and do very little to make anyone feel any "safer." (And Stovall, your jurisdiction doesn't really cover things like determining what should or shouldn't offend constituents.)

Despite the obvious issues with this plan, the mayor is fully onboard and ready to start violating some rights!

Gaskill backed Stovall's proposed actions during Thursday's town hall.

"They may not be doing anything but walking their dog," he said. "But they're going to have to prove it."

Fantastic. Now pets will need some ID as well, not to mention be willing to sign a statement in your defense, should the need arise. Despite the dubious aspects of this plan (of which there are several), Chief Stovall has convinced himself that not only is this necessary, but fully justified.

Normally, police would not stop individuals for simply walking on the street, but Stovall said the level of crime in certain areas and concerns from residents gave his officers the right to institute the actions announced at the town hall event.

"This fear is what's given us the reason to do this. Once I have stats and people saying they're scared, we can do this," he said. "It allows us to do what we're fixing to do."

Stovall further elaborated on the stop-and-ID policy Friday morning, claiming the city's crime statistics alone met the threshold of reasonable suspicion required to lawfully accost a citizen.

"To ask you for your ID, I have to have a reason," he said. "Well, I've got statistical reasons that say I've got a lot of crime right now, which gives me probable cause to ask what you're doing out. Then when I add that people are scared...then that gives us even more [reason] to ask why are you here and what are you doing in this area."

I'm sorry, but crime statistics in aggregate do not automatically convert citizens into "suspects." I'm completely baffled that someone would actually say, out loud, that crime statistics equal "reasonable suspicion." That's some messed up police work right there. And it gets worse. Here's some more statements from Stovall, which range from "flabbergasting" to "you DO realize you're still on the record?"

Individuals who do not produce identification when asked could be charged with obstructing a governmental operation, according to Stovall... "I'm hoping we don't run across [any] of that," Stovall said. "Will there be people who buck us? There may be. But we have a right to be doing what we're doing. We have a zero-tolerance. We are prepared to throw your hind-end in jail, OK? We're not going to take a lot of flack..."

Stovall said he did not consult an attorney before announcing his plans to combat crime. He even remained undaunted when comparing his proposed tactics with martial law, explaining that "I don't know that there's ever been a difference" between his proposals and martial law.

Note that Stovall did not consult an attorney. If he had, he might not be as breezily confident about his "Police State of Paragould, Arkansas" plan. Here's what City Attorney Allen Warmath had to say, which attempts to walk back a some of Stovall's claims.

Warmath said while he had not directly spoken to Stovall, he understood that the street crimes unit would actually be less confrontational than Stovall let on...

As for having IDs, he said citizens wouldn't have to worry about that, either. He said the police would not arrest residents solely for failing to produce identification when asked.

Stovall himself has taken to the Paragould PD website to walk back a few of his claims as well, perhaps prompted by the heat he's received for his earlier statements.

Most often, this identification process will be nothing more than making contact with a subject, handing them a business card, and asking if they live in the area and if there's anything we can do for them. During hours in which crime seems to be more prevalent (i.e. between the hours of 11pm and 5 am), our process will become more stringent. We will be asking for picture identification. We will be ascertaining where the subject lives and what they are doing in the area.

Well, that is very different from the "zero tolerance" toss-your-non-ID-having ass in jail portrait he painted before the criticism began rolling in. Suddenly, it looks like an actual police operation that might fall within the limitations imposed on it by the Constitution. Stovall also clarifies the SWAT team look he was playing up earlier.

To give a little background information, several of our patrol officers already carry AR-15 rifles in their patrol vehicles. The AR-15 and police work is nothing new. Our Street Crimes Unit will not be wearing them constantly. That would be impractical. As we have stated in our meetings, our main purpose of mentioning this was to prepare our residents in the event that they saw an officer armed with one. When our officers deploy into areas where there is the potential for contacting several subjects in a high-crime area, that is when the potential deployment of AR-15's will occur.

Stovall states the new patrols are not out to "violate anyone's rights" but it's hard to square this intention with the thought process that turns aggregate crime statistics into a "reasonable suspicion" blank check. Finally, he bemoans the lack of attendance at town hall meetings held by the police department regarding its new anti-crime street patrol (fewer than 100 people attended the first two meetings)... and then cancels the remaining town hall meetings because they might be "unproductive" (and full of angry citizens).

In the interest of public safety, we have elected to cancel the remaining Town Hall Meetings.

We have corresponded with numerous residents and non-residents today alone who were both supportive and against our Street Crimes Unit and Town Hall Meetings. Some of the correspondance has caused us great pause in whether or not the meetings should remain as scheduled.

As the police department, it is our duty to protect ALL residents and non-residents from harm. We feel that with the strong feelings on both sides of the Street Crimes Unit issue, a safe and productive meeting would not be the probable outcome.

Wow. I can't imagine why people might be angry... or why Chief Stovall might want to dodge the backlash. This is the fundamental disconnect infects so many of those who create and enforce laws. Chief Stovall feels these tactics are completely justified and doesn't even flinch when they're compared to martial law. This is the person calling the shots, someone who institutes something that skirts the very edge of Constitutionality without even consulting an attorney. The message being sent is that the police will play by their own rules, with the citizens expected to be helpful, grateful, cooperative and, at all times, in possession of an ID, a clean criminal record and full justification for any suspicious "walking around" they might be doing.

And when the backlash hits, Stovall first tries walking his statements back before turning around completely and running away from the issue. So much for listening to "suggestions" and "feedback." Say hello to armed patrols and "papers, please."

The last time we heard from David Cameron, he was wringing his hands over social media in the wake of protests in the UK. One may have thought this was just a blip on the wrong-radar, but he's back and he's apparently decided that the UK government needs to handle that whole parenting kids thing that parents used to do. This go 'round, Cameron plans to install filtering software on every new computer sold through major manufacturers that will issue a quick quiz upon its first boot-up.

If the plan is backed by manufacturers, it would mean that owners of every brand new computer would be asked if there are children in the household when they are first turned on. If the user answers positively, they will be prompted to adjust their internet filters accordingly.

If parents repeatedly click OK to get through the process more quickly, the computer would automatically block access by any user to sites containing pornography and self-harm. Internet service providers (ISPs) would also be required to verify the age of the person setting the controls, so that a child can't do it.

Gee, let's see, where to begin. First off, the idea of putting government sponsored filtering and snoop-ware software on every machine in the country may just face a tad bit of backlash from the public. Privacy concerns are the obvious culprit for such software, but so are concerns of parents who may just want to still be...you know...parents, rather than letting the government take this role from them by force. Say you disagree with how the UK government designates a website "harmful" or "pornographic"? Say you want your child to be able to see that site? It would appear that parent would be politley informed to screw themselves, because the government is in charge now.

"Sorry, but if you want to parent your child, you have to wear Sherlock's hat. Dem's the rules."
Image source: CC BY 2.0

Next up, if watching everyone I've ever met handle iTune's EULA process is any indication, you can expect roughly one-billion percent of internet users in the UK to fall into the "clicked like hell through the process" category. This would automatically turn the filters on to whatever David Cameron thinks is the appropriate level. I imagine frustrated adults trying like hell to search the internet for the answer to the age old question "Why the hell is everyone freaking out about Kate Middleton having boobs?" would then try to reset the filters, but would then click through them quickly again, resulting in only more frustration.
 

"Still not working? I must not be clicking through fast enough!"
Image source: CC BY 2.0

Frankly, it's also fun to imagine how this software would determine exactly what is too "quick" of a click-through, given that different people read at different speeds.

Finally, it would be interesting to hear how exactly his plan to have ISPs verify the age of the people they're likely talking to on the phone would work. We've noted previously how difficult and riddled with potential danger age verification of this nature can be, so how exactly is Cameron going to accomplish this? Unless he plans on forcing ISPs to do site visits or meet with child protection services for every account, they're still going to have to talk to their customers over the phone. Now, this may come as a shock to Cameron, but kids occasionally lie.

"Sir, are you an adult?" "No, I'm a llama. Now let me see 4chan, doo-doo head!"
Image source: CC BY 2.0

In the end, this is yet another move by government to wrestle away a free and open internet. Unlike some other measures, Cameron may actually believe his "for the children" trope, but the best protection of children comes from involved parents. Trying to treat the symptom rather than the problem not only won't work, but it opens the door for some truly bad inadvertent outcomes.

Back in 2010, Techdirt reported on Turkey's habit of blocking Google over certain holdings on its various sites. Mostly these were YouTube videos it took exception to, but other services were banned too. An earlier case, from 2009, received less attention at the time, but has now led to a precedent-setting ruling from the European Court of Human Rights (ECHR) that could have a big impact on future cases in Europe, and maybe even beyond.

The case was brought by a Turkish PhD student named Ahmet Yildirim, who complained that he had faced "collateral censorship" when his Web pages hosted on Google Site were shut down by the authorities in 2009 as a result of a court action aimed at another set of pages held there. Open Society Foundations, which had filed a brief with the European Court of Human Rights in support of the applicant's claim, explains the background:

Yildirim's academically-focused site was blocked by the Turkish regulator, TiM, as a result of a court injunction that ordered it to close down local access to the entire Google Sites domain. The move was supposedly aimed at a single website hosted by Google which included content deemed offensive to the memory of Mustafa Kemal Ataturk, the founder of the Turkish Republic, in breach of Turkish law.

Yildirim's appeals against the injunction were turned down by the Turkish courts, which argued that the blanket ban was reasonable because it was not possible for the authorities to block a single Google-hosted site.

In its judgment, the ECHR noted that the regulator had not attempted to contact Google to seek the closure of the offending site, and that the 2007 law that allowed the regulator to close down foreign-hosted sites did not permit blocking an entire domain such as Google Sites.

As this makes clear, the problem was the over-blocking that resulted in all Google Sites being taken down, even though only one of them was accused of insulting modern Turkey's founder. The court's judgment (pdf) explains that such blocks are only compatible with the European Convention on Human Rights if they fulfil various strict conditions:

The Court reiterated that a restriction on access to a source of information was only compatible with the Convention if a strict legal framework was in place regulating the scope of a ban and affording the guarantee of judicial review to prevent possible abuses. However, when the Denizli Criminal Court had decided to block all access to Google Sites, it had simply referred to an opinion from the TiB without ascertaining whether a less far-reaching measure could have been taken to block access specifically to the site in question. The Court further observed that there was no indication that the Criminal Court had made any attempt to weigh up the various interests at stake, in particular by assessing whether it had been necessary to block all access to Google Sites. In the Court's view, this shortcoming was a consequence of the domestic law, which did not lay down any obligation for the courts to examine whether the wholesale blocking of Google Sites was justified. The courts should have had regard to the fact that such a measure would render large amounts of information inaccessible, thus directly affecting the rights of Internet users and having a significant collateral effect.

The broader importance of this decision is explained in a comment quoted by the Open Society Foundations press release:

Darian Pavli, a lawyer at the Justice Initiative who worked on the submission, said: "This is the first ruling by an international tribunal on wholesale blocking of internet content, and a very significant precedent. The court made clear that access to online content is a fundamental right, and that it can only be restricted in exceptional cases, subject to full judicial review."

Although there is a three-month period in which the ruling can be appealed, the fact that the court's verdict was unanimous among the seven judges, one of whom is from Turkey, suggests that any such appeal is unlikely to stand much chance of overturning this important decision.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

One of the areas of economics I'm most interested in is focused on incentives. While it's a simplification of things, there are so many areas where people seem to naturally gravitate towards negative reinforcement as an incentive system -- that is, punishing people for things they believe are wrong. While that does work in some cases, it's amazing just how frequently positive reinforcement to nudge behavior in a better direction works much, much, much more effectively. Aaron DeOliveira points us to an interesting example of a company focusing on positive reinforcement in an area where most people have long-assumed that punishment was the only possible option: dealing with the annoyance of people texting during a movie. The first response that many theaters (and theater goers!) have, is to "punish" this behavior by outlawing it. They set up rules and put up signs. They have silly commercials before the show about how annoying it is. But it's all based on the idea of negative reinforcement: punishing or shaming those who engage in the behavior. But, quite frequently, that does little to actually get people to stop.

So, it appears that the Cinemark chain of theaters is trying a system of positive reinforcement. Within its normal movie app for iOS and Android is a separate "mini-app" allowing users to put their phones into "CineMode." It automatically makes the screens on the phones dim, and puts them into vibrate mode -- sort of like an equivalent to airplane mode. But here's the kicker: since the app knows what you're doing, it can keep track of whether or not you actually follow through and leave CineMode enabled throughout the entire flick. For the users who do that, they get rewarded:

When the movie ends and the guest exits CineMode, Cinemark will automatically send a reward (digital coupon) through the app and store it in the Rewards section.

Who knows how well it will work in practice, but it's great to see people realizing that technology can help enable this kind of positive reinforcement, rather than always doubling down on the negative reinforcement/punishment.