There’s been a lot of fun stuff in the news about Dell recently, in the run-up to tomorrow’s end of the go-shop period on its LBO by Silver Lake and CEO Michael Dell. The Journal today kind of explained why:

People working on potential challenges to the Dell offer say the revelation of information on the background of the deal before the proxy is filed could dissuade counter bids or make it tougher for another party to shore up financing.

Get it? Someone connected with Dell is anonymously flogging its terribleness to any reporter who’ll listen, in order to keep anyone from putting in a higher bid in the next 36 hours. Don’t buy Dell, they whisper. Leave this mess to us. You don’t want to get anywhere near it. Some truly terrible shit is going to come out in the proxy. Like apparently Dell forgot how to make money:

The filing is expected to focus in part on a review of corporate financial forecasts presented to the board starting last summer, the people familiar with the matter said. Dell managers said they expected $5.6 billion in adjusted, or non-GAAP, operating profit for the fiscal year that ends in early 2014, the people said.

But around that time, Dell began badly missing the targets set forth by managers, who were counting on the rollout of Microsoft Corp.’s new Windows 8 operating system and an increase in PC sales to drive Dell’s profits higher in 2014. ... Now, rather than the $5.6 billion figure, Dell expects an operating profit closer to $3 billion, its lowest in years ....

To be fair, announcing “we were off by ~40-50% on our earnings estimates but we’ve got them perfect now” is not wholly convincing, and sell-side analysts at least seem to expect rather more than that. Per Bloomberg I see estimated GAAP (i.e. lower than non-GAAP) operating income of $3.57bn, and expected EBITDA (which historically tracks Dell’s non-GAAP operating income closely) of $4.36bn. I did some extrapolating and here’s the next two years of EBITDA per analyst consensus and per Dell:

One oddity is that the people who should really believe management’s estimates are, y’know, management, and the buyout group, and their financing sources. Dell seemed to have been targeting a pro forma leverage multiple of under 4x with a $19 billion debt load. That seems … I mean, what do I know, I’m not a person familiar with the matter, but that seems based on the pre-come-to-Jesus EBITDA estimates. Depending on what “closer to $3 billion” means, the new figures seem to imply more like 5-6x leverage to me.

Which I guess would make you less interested in financing a competing bidder than you were before all this this came out? Of course it would also make you less interested in financing the current bidder; Silver Lake and its banks still need to raise quite a lot of debt and all this talk of how hopeless Dell is can’t really help with that. Though current Dell creditors don’t seem all that fazed by the steady leak of bad news: the 2040 bonds and the 5-year CDS are both tighter now than they were two weeks ago.¹

There are some other impediments to a competing bid, which everyone thinks will come, if at all, from Blackstone. One is the fact that Silver Lake has Dell’s CEO already signed up, so a new bidder might need a new CEO, though technically Michael Dell has agreed to “explore in good faith the possibility of working with” a competing bidder. Dan Primack reported yesterday that Blackstone has been talking to former Hewlett-Packard CEO Mark Hurd. Hurd has the advantage that he used to run a company that I at least have trouble distinguishing from Dell, so I guess he’d fit right in; he has the disadvantage that he doesn’t have $3.7 billion worth of Dell stock to roll over, so if Michael Dell will only work with Silver Lake, Blackstone’s cash price tag will be rather higher.

On the other hand, Blackstone also seems to be talking to Southeastern Asset Management about Southeastern rolling its $2bn-ish worth of Dell stock into a Blackstone deal, which would make up part of the difference. Get Carl Icahn – who thinks the company is worth $22 and change – to roll his nebulous stake and you’ve got about as much equity on Blackstone’s side as there is on Silver Lake’s, even if Michael Dell did want to cash out in a Blackstone deal.²

So the dissident shareholders might be willing to help out with a Blackstone bid, and Ronald Barusch has a clever idea for them to get Blackstone involved: they should offer to pay a breakup fee out of their own pockets:

Those shareholders would very likely want to see a bidding war start between Blackstone and Silver Lake. And that is where it could get interesting.

With the approval of the Dell special committee, Blackstone could go to those shareholders and say: “If we make a topping bid and Silver Lake ultimately outbids us and buys Dell, we need you to agree to share X% of your profits over $13.65 per share with us because you would not have received those profits if we hadn’t bid. And we are not willing to make a firm bid and pay for financing unless we know that there will be something in it for us even if we lose.”

As a fan of Coasean bargaining, I love this idea. But it’s a little tough for Southeastern and Icahn, isn’t it? Southeastern, as fiduciaries for their investors, might have a tough time explaining why they made less money on the Dell buyout than other, passive shareholders who free-rode on their profit-sharing agreement with Blackstone. And Icahn, who bought most of his shares well above the $13.65 deal price with the purpose of catalyzing a better deal, might feel a bit miffed to pay Blackstone a portion of profits above $13.65 just for them doing the same thing. “Hey, I’m the annoying interloper here, not you,” he might reasonably think.

So we’ll see. Possibly by tomorrow, though possibly not. The go-shop period ends tomorrow, but that’s sort of a fake milestone, as the Journal points out:

Blackstone doesn’t necessarily have to give Dell an offer by Friday night’s deadline. Rather, it and any other suitors have until midnight on Friday to let Dell know if they are interested in pursuing a formal bid for the company, according to people familiar with the process.

This so-called “indication of interest” could include a price, or price range, the suitor is willing to pay, but it doesn’t have to, these people said. Rather, a suitor must convince Dell that it is serious about pursuing a bid that could trump the current buyout offer, they said. From there, negotiations could carry on for as long as two months, one of the people said.

Well that’s not a very high bar to frighten Silver Lake and keep things interesting, is it? A lot can happen in two months. Maybe Dell will realize that that $2.6 billion in 2014 operating income was just temporarily misplaced, not permanently lost. Maybe someone will figure out how to make Icahn’s dividend recap plan work. Blackstone putting in a nebulous pseudo-bid, and the board accepting it as the basis for continued negotiations,³ would give Dell’s dissident shareholders a lot of optionality. Maybe they should pay Blackstone just to do that.

Dell Walks Fine Line in Pitch for Buyout [WSJ]
Dealpolitik: How Could Blackstone Be Incentivized to Make a Competing Bid for Dell? [Deal Journal / Ronald Barusch]
Blackstone Exploring Various Scenarios for Dell Counterbid [WSJ]
Blackstone weighs Dell bid, considers new CEO [Fortune / Dan Primack]

1. Though both seem to show a bit of an uptick very recently. Bonds:

CDS:

2. Would he? Presumably, like Southeastern and Icahn, he thinks Dell is worth more than $13.65 a share; else why would he be buying it. Of course, rivalries being what they are, you couldn’t blame him for thinking it’s worth considerably less than that in Mark Hurd’s hands.

3. I gotta think that bar is low? Like, if Blackstone comes in tomorrow and says “we want to bid, we’re pretty sure we’ll pay at least $14, not held of course, but work with us on financing and shareholder lockups and whatnot” – what, is the board gonna say no? So much suing. So much Carl Icahn.

Other posts from Dealbreaker:

• Dastardly Thieves Making Off With… Hundreds Of Dollars Of Maple Sap
• Standard Chartered Chairman Misspoke When He Called Iranian Money-Laundering Business A ‘Clerical Error’
• Deutsche Bank May Have Underestimated How Litigious People Are About The Whole Mortgage Catastrophe Thing

The origin of life is a pretty enormous mystery. There are several theories for how life might have come about, but it's difficult to design experiments to narrow down these options. In the meantime, researchers continue to look for clues and evidence for life that didn't originate on our planet. Here are just a few examples that could one day lead us in the right direction.

• Meteorite fragments found in Sri Lanka *might* contain extra-terrestrial fossils -- if you kinda squint and tilt your head, the algae-like fossils support a panspermia theory for the origin of life. This isn't the first time a peer-reviewed journal has published a story like this, and it won't be the last. The real question is when will these papers actually be convincing to skeptics.... [url]
• In 1996, a rock named ALH84001 made a lot more headlines when scientists claimed that it might contain evidence of life from Mars in the form of microfossils. Since then, the ALH84001 debate seems to have settled on the view that those small fossils weren't necessarily created by ET life, and the media hoopla re-affirmed that "extraordinary claims require extraordinary evidence." [url]
• Maybe we'll see evidence of life outside our solar system by looking for evidence of asteroid mining operations around other stars -- if we see unusual amounts of dusty debris, it could mean intelligence life has been exploring for interplanetary resources. It might be hard to determine the difference between natural and unnatural debris, though. [url]
• NASA's Curiosity rover has discovered that Mars once had an environment suitable for life. This is an important find, and it raises questions of why Mars doesn't seem to have ubiquitous life now. [url]

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

Way back in ancient 2009, Mike wrote a piece highlighting one spectacularly awful example of a business going out of their way to alienate their fans. We talk a great deal about connecting with customers here, but when we saw the Washington Redskins suing season ticket holders, who weren't able to keep to their contract terms after the economic downturn, we had to point it out. In that case, the actual contract language was on the Redskins' side, although in similar cases, sports franchises rarely go after their customers in that manner. Instead, typically the team and customers work out an amicable deal to resell the tickets or provide for some kind of payment plan. In other words: suing your fans is a crappy way to do business.

But what if I told you that there's a worse example of a professional sports franchise threatening to sue their own fans? What if I told you that the customers they were threatening were perfectly happy to continue paying for their seats, despite the team doing everything in their power to alienate the fans, but the customers just wanted to sit in different seats, which they say the contract allows for? And what if I told you that all of this hate and bile comes from the team with the most obnoxiously festive stadium in pro sports?
Little known fact: the entire stadium is made out of tropical flavor skittles
Image source: CC BY 2.0 Don't believe that all of the above could be true? Let me introduce you to the Miami Marlins of Major League Baseball.

The flea-market ownership of the Miami Marlins have let down their fans too many times to count through the years, whether it's running one of their traditional fire sales — see: November's $160 million salary dump — or pocketing revenue-sharing money intended for players. Or, lest we forget, getting South Florida taxpayers to plunk down 80 percent of the cost for a new $634 million baseball park. But this might take the cake even for them.

The team has threatened to sue Bill and Jan Leon, season ticket holders since 1998, for having the gall to ask for a different seat location — as they say the ticket agreement permits — and refusing to pay when the team failed to comply. The New Miami Times reports the Leons signed a two-year agreement for their tickets (at $25,000 per year) with the option of changing their seats if they were unhappy with their location after the first season. Which they were, thanks to a sign that obstructed their view.

Yes, you read that right. After bilking taxpayers out of a huge chunk of money to build their stadium, the team is suing two season ticket holders for asking to switch seats. Now, I know what you're thinking: surely this must have happened because the team couldn't accommodate their request to move their seats. You're thinking that all the rest of the seats in the stadium must have been gobbled up by Floridians. Well, if you are, you're wrong. The Marlins drew enough attendance last year, the first year of their new stadium (generally considered to provide a bump in attendance), to not quite fill 75% of the seats. In other words, if the team had wanted to be amicable, they had over a quarter of their skittle stadium to choose from to reseat the Leons. Instead they're suing, because evil doesn't do logic.

We were surprised last year when the Associated Press decided to sue Meltwater News -- an online press clipping/news aggregator service. The issue is that Meltwater does index various news articles, just like Google, allowing you to search on them. But it does not deliver the full articles to users instead delivering snippets (just like Google News), and then points them to versions online (increasing traffic to AP stories). It delivers two snippets -- the first is only 300 characters, representing the opening of the article, and the second of less than 140 characters, highlighting the line that triggered the alert itself (i.e., matching keywords). However, Meltwater also has a feature that lets subscribers choose to archive the text of articles they find elsewhere -- like a ReadItLater/EverNote/Instapaper kind of thing. But that's all done at user discretion, not by Meltwater.

Not surprisingly, we found Meltwater's response to the lawsuit quite compelling. It argued a strong fair use right, combined with claims of copyright misuse by the AP. Unfortunately, the court did not find them compelling. The district court has sided with the Associated Press in ruling for summary judgment against Meltwater, a ruling that will surely be appealed.

The ruling itself has a ton of problems, that hopefully will be fixed by an appeals court. The court seems strongly influenced by the fact that the AP has a service that competes with Meltwater, but that, alone, is no basis for finding infringement. Also, it notes that other "competitors" in the space do have AP licenses, including Google News. But that's misleading. The AP had threatened Google News with a similar lawsuit, but they got around it with a silly agreement by which Google licenses AP news to post full stories as if it were an AP syndication partner. But that's not what Meltwater does.

The court doesn't agree with the fair use defense by Meltwater, but does so with some really wacky reasoning. It runs through the standard four factor test, but really has a unique interpretation of what counts as "transformative" use, somehow arguing that the use needs to be an entirely new form of use to be transformative.

Based on the undisputed facts in this record, Meltwater provides the online equivalent to the traditional news clipping service. Indeed, Meltwater has described itself as adding “game-changing technology for the traditional press clipping market.” There is nothing transformative about that function.

I don't think that's what transformative means. No one said it had to be innovative -- just different from the purpose of the original work.

Separately, the court argues that because Meltwater competes with one part of the AP's business, then the transformative argument doesn't apply.

Meltwater copies AP content in order to make money directly from the undiluted use of the copyrighted material; this is the central feature of its business model and not an incidental consequence of the use to which it puts the copyrighted material. Thus, it is not surprising that Meltwater’s own marketing materials convey an intent to serve as a substitute for AP’s news service.

That, unfortunately, is confusing two different aspects of the AP's business. There's the reporting side which produces the news, and then there's the "news service" side, which sells the service of providing news alerts to various customers. Meltwater is competing with the latter, but the copyrights in question apply to the former -- and thus Meltwater's use should be seen as transformative since it is not competing with the copyright around the creation and presentation of the news itself, but rather with the service of finding the most relevant news.

Furthermore, the court keeps going back to the low rate of clickthrough on Meltwater's clips. But that, too, is misleading. First of all, this could just be because Meltwater's relevance engine isn't very good. If it's not delivering relevant content, then people won't click very much. But that should hardly weigh on the copyright claim. Alternatively, perhaps it's the Associated Press's content that isn't very good. That is, readers see little reason to click on their versions of the story. Again, the actual click through rate on such stories is somewhat meaningless and certainly doesn't suggest that people are using the AP less because of Meltwater. They still may be articles that that people wouldn't see otherwise, it's just that for, whatever reason, people didn't click through them that much. Also, you have to look at how many people use clipping services anyway -- it's not necessarily to read each and every article, but to do a quick skim and see if there's anything really important they need to know about or to get a general sense of coverage out there. None of those would result in clicks. But that doesn't mean that Meltwater doesn't overall increase absolute clicks to AP articles simply by exposing them to more people.

In the discussion on the "amount" of work use, the court again runs into trouble, arguing ridiculously that taking the opening (or "the lede") from every article is somehow against a finding of fair use:

Meltwater took between 4.5% and 61% of the Registered Articles. It automatically took the lede from every AP story. As described by AP’s Standards Editor, the lede is “meant to convey the heart of the story.” A lede is a sentence that takes significant journalistic skill to craft. There is no other single sentence from an AP story that is as consistently important from article to article –- neither the final sentence nor any sentence that begins any succeeding paragraph in the story.

In other words, Meltwater is smartly using the first sentence to highlight what an article is about. Without that, it's service is a lot less useful. But that doesn't change the nature of the overall issue, which is that it's still only offering up a small portion of the content in question.

The court also seems to think it knows how to run a search engine:

Next, Meltwater argues that the extent of its copying is justified because its purpose is to serve as a search engine. But, Meltwater has failed to show that it takes only that amount of material from AP’s articles that is necessary for it to function as a search engine. Indeed, the evidence is compellingly to the contrary.

I'm curious. What is "the amount necessary to function as a search engine?" One might reasonably suggest that a search engine would be wise to index everything. Yet the court here seems to be suggesting otherwise. I'm curious how many search engines the judge has built.

Basically, Meltwater points out that what it does is no different than a search engine, and the court says (without much basis) that it doesn't think Meltwater really is a search engine, and thus these defenses don't apply. But this is extremely troubling for actual search engines, because you can take each of the pieces out and then try to apply them to a basic search engine, and you'll find that if this ruling stands, it makes being a search engine much more difficult as well.

The court, also worryingly, rejects Meltwater's argument that because the AP did not block it via robots.txt, that it is providing an implicit license to index the site.

The implied license that Meltwater is advocating would reach to every web crawler with no distinction between those who make fair use and those who do not, or between those whose uses may be publicly observed and those whose uses are hidden within closed, subscriber systems. Meltwater has presented no evidence to suggest that robots.txt instructions are capable of communicating which types of use the copyright holder is permitting the web crawler to make of the content or the extent of the copying the copyright holder will allow.

Again, this appears to be off the mark, conflating a few separate issues. First, it's a combination both of (a) publishing openly online and (b) not using robots.txt that suggests an implied license to index. The court ignores the (a) part, and seems to give much more weight to the argument that it's just (b) being implied. Second, it ignores the fact that this is solely about the implied license to index. There could still be infringement for what's done with the index, but that's separate from the indexing itself.

The court doubles down on this mistake.

There is yet another policy reason against the use of robots.txt protocol to enforce the Copyright Act. The protocol is a helpful innovation that gives instructions to cooperating crawlers. But, in the interest of openness on the Internet, one would expect it to be used only when it is in the clear interest of the website to broadly limit access. It is fair to assume that most Internet users (and many owners of websites) would like crawlers employed by search engines to visit as many websites as possible, to include those websites in their search results, and thereby to direct viewers to a vast array of sites. Adopting Meltwater’s position would require websites concerned about improper copying to signal crawlers that they are not welcome.

Again, that's not true. Sites concerned about improper copying can still use copyright law against the actual improper copying outside of the indexing. It's never the indexing that's the problem, but what that index is used for.

We had also noted, when Meltwater responded to the AP's claims, that it argued that the AP was engaged in copyright misuse. The court dismisses this point quickly. Not only is copyright misuse not established as a copyright defense in the Second Circuit, where the case is being heard, but the court argues that Meltwater has done little to show actual misuse by the AP.

There are numerous problems with this ruling, and I imagine the case will get even more interesting on appeal, as lots of internet companies who rely on fair use for scraping content suddenly need to be paying attention to the specifics of this case.

We've seen the DMCA takedown process abused to stifle criticism or remove unflattering content from the web. Knowing that, the first reaction to reading about a website being forced to remove a product review after being hit by a DMCA notice is to assume some overzealous representative of the affected company is simply using copyright's powers for evil.

DigitalRev recently posted a review comparing GoPro's Hero 3 camera with Sony's HDR-AS15. Not long after that, a DMCA notice arrived from GoPro (or rather, its "brand representative"), demanding that the review be taken down. So far, so censorious. But the DMCA notice sent didn't describe any sort of copyright violation. Instead, it headed off into a completely different IP area.

The notice starts out like many others:

We are providing you this letter of notification pursuant to the Digital Millennium Copyright Act 17 USC??512(c) to make Softlayer.com aware of material on its network or system that infringes the exclusive copyrights of Woodman Labs, Inc d/b/a GoPro (“Company”). We hereby affirm that the undersigned is authorized to act on behalf of Company whose exclusive intellectual property rights we believe to be infringed as described herein.

Barring the extraneous question marks, this all looks perfectly normal. But the next paragraph reroutes the entire DMCA.

We have a good faith belief that the Internet site found at digitalrev.com infringes the rights of the Company by using the following trademarks of the Company:

“GOPRO” Registered: 3/3/2009 US Registration# 3032989

“HERO” Registered: 12/20/2005 US Registration# 3308141

At this point, the notice's issuer, Patrick Hayes (Brand Manager for Woodman Labs), is in uncharted territory. The Digital Millennium Copyright Act notice is for copyright violations only, as can readily be determined by name of the notice itself. Hayes reasserts his trademark violation claim a few paragraphs later, along with a sentence that briefly raises copyright again before returning to the misguided effort at hand.

As you may know, if this information is not removed after notice that complies with the DMCA, the Internet Service Provider may also be held liable for the copyright infringement.

I have a good faith belief that use of the trademark(s) described above in connection with the domain and URLs described above is not authorized by the trademark owner, and such use is not otherwise permissible under applicable law.

I represent that the information in this notification is true and correct and that I am authorized to act on behalf of the trademark owner.

Hayes really shouldn't be "representing" that any of this bizarre IP melange is "true and correct." Most of it isn't, starting with using a copyright-only takedown form to shutter a review over alleged trademark infringement. Then there's this: the trademarks mentioned are character marks for the name of the product itself -- "GoPro Hero" -- suggesting that DigitalRev is not allowed to use the name of the product when reviewing the product. This is not how trademark law works. At all.

Hang on, though. It gets a bit weirder from there.

As I mentioned earlier, the first reaction is that GoPro doesn't like DigitalRev's review and wants it removed before many more people can read it. (That was DigitalRev's first instinct as well, as detailed in its follow-up post on the subject.) Fortunately, DigitalRev screencapped the relevant part of the review.

There's nothing in that review that looks like it should trouble GoPro enough to overreact in this fashion. In fact, commenters on the site point out that DigitalRev's reviews of GoPro products usually range from "positive" to "overenthusiastic." So, if the review isn't the issue, what is?

Thankfully, another rep from GoPro responded quickly to clear up the confusion... by adding more confusion. The official statement, left at both Reddit and PetaPixel reads as follows:

Thanks for the heads up on this issue. The letter that was posted next to the review on DigitalRev was not sent in response to the review. Obviously, we welcome editorial reviews of our products. This letter was sent because DigitalRev is not an authorized reseller of GoPro products and they were using images and had incorrect branding and representation of our product in their online commerce store. As part of our program – we ask merchants who are selling our product to use authorized images. That is why DigitalRev was contacted. But – our letter did not clearly communicate this and that is something we will correct.

There are a few problems with this, but first and foremost is the fact that the URL specified in the takedown notice is the review's URL. Nothing involving DigitalRev's online store was mentioned in the letter and no offending URLs listed. Not only that, but this rep claims to have spotted offending 'images,' something the mentioned trademarks don't cover. A comment left at PetaPixel by GoPro's social media rep adds this to the conversation:

There are a few things that are muddling this situation at the moment. The notice was sent to digitalrev.com not because of the review, but because digitalreview.com is not an authorized reseller and are using our trademark and product images inappropriately. The notice is in regards to the sidebar, not the review itself, but we can see why it seemed like it as the url links to both.

We would never attempt to restrict anyone's freedom to share their opinion about us or our products, positive or negative.

Even if this rep is correct and Woodman Labs meant to target improper use of its trademarks, it missed with both the delivery system and the URL specified. A DMCA notice can't stop trademark infringement. Furthermore, while a hosting company can be held liable for contributory trademark infringement, it's usually a result of the host mishandling takedown notices (and some conflation of copyright and trademark by the presiding judge), rather than a foregone conclusion. Then again, if you want to hold a service provider liable for this sort of infringement, it helps to use the standard process -- directly contacting the site owner and asking him or her to remove the infringing items. Using a DMCA notice for alleged trademark infringement is just plain wrong, although various GoPro reps' insistence that the trademark infringement includes "images" most likely explains the existence of this half-copyright, half-trademark aberration.

However, the most probable explanation for this IP circus is probably contained in this blog post from last November, which details the author's brief altercation with Patrick Hayes and Woodman Labs over a parked domain containing the word "gopro." The letter he received accused him of "domain infringement," and while the tone of the letter was generally cordial, Patrick Hayes made the assumption that any registration of the term "gopro" could only be related to Woodman Labs' products.

GoPro does not authorize any of its resellers (or anyone else) to use “GoPro” or “HERO” in domain names. Your registration of goprodivemaster.com is unfortunately in direct violation of this policy. We understand that your intention is simply to sell and promote our products, but GoPro cannot risk misleading customers into believing that they are interacting directly with GoPro when they are engaging with your website or your organization. The use of our trademark terms in your business name may cause confusion, and is prohibited under international trademark law.

Even if the domain redirects to another site, this is not a permissible use of our brand terms.

Please understand: GoPro has spent years building its brand name—only the company itself is legally represented as “GoPro” or the manufacturer of the “HERO” line of cameras. We need you to kindly discontinue the use of our registered/trademarked name as soon as possible.

The author points out that his parked domain had nothing to do with GoPro or its cameras. He also points out that this issue will certainly surface again, considering the Professional Association of Underwater Instructors uses the term quite often in relation to its instructor development centers. Additionally, he did a little detective work and checked out the WHOIS information on the email address and found the domain was associated with MarkMonitor. So, it appears GoPro is outsourcing its IP protection to a company that seems to take a pray-and-spray approach to takedown notices.

Quite possibly it takes little more than having the word "gopro" appear in a URL (like the review above) to summon the bot-fury of MarkMonitor and Patrick Hayes, "Brand Manager." This explains the bizarre trademark claims and the incomprehensible takedown of a positive review. If this is indeed the case, GoPro is probably considering taking the job back in-house, seeing as its reputation is being damaged further with each retelling of this unfortunate saga.

UPDATE: GoPro's Twitter account claims that five other URLs were included in the takedown notice, but were scrubbed by DigitalRev prior to publishing. However, it has not posted the unedited version for verification.

The 9th Circuit has finally ruled in the appeal of the IsoHunt case, and has found, once again, that Gary Fung is guilty of contributory copyright infringement, as per the Supreme Court's ruling in the Grokster case. They basically agree with the district court ruling, which found that IsoHunt hit on all of the factors that were present to create "inducement" (a theory of copyright that Congress had previously rejected, but which the Supreme Court decided to make exist in the Grokster case). That is, the court agreed that there was distribution of a "device or product", including acts of infringement, and (most importantly) that IsoHunt itself was promoting the product's use to infringe on copyrights. However, on the (slightly) good side of things, the court rejected the district court's broad injunction against IsoHunt as going overboard.

The court goes through the "Grokster" inducement factors, but the results are bit troubling. The first factor is the distribution of a device or product for infringement. Here, IsoHunt argued that it was just providing a service for searching and finding stuff, but wasn't actually distributing any file sharing software "product" or "device." The court doesn't buy it, but I find its argument troubling.

Unlike patents, copyrights protect expression, not products or devices. Inducement liability is not limited, either logically or as articulated in Grokster III, to those who distribute a “device.” As a result, one can infringe a copyright through culpable actions resulting in the impermissible reproduction of copyrighted expression, whether those actions involve making available a device or product or providing some service used in accomplishing the infringement. For example, a retail copying service that accepts and copies copyrighted material for customers after broadly promoting its willingness to do so may be liable for the resulting infringement although it does not produce any copying machines or sell them; all it provides is the “service” of copying. Whether the service makes copies using machines of its own manufacture, machines it owns, or machines in someone else’s shop would not matter, as copyright liability depends on one’s purposeful involvement in the process of reproducing copyrighted material, not the precise nature of that involvement.

That's problematic on multiple levels. First, it's clearly expanding the Supreme Courts limitations in Grokster, by arguing that effectively the requirement for distributing a product or service used to infringe is no longer a requirement at all! In other words, they basically argue that the first factor doesn't matter. Furthermore, the example they use doesn't make much sense either. The "retail copying service" they describe doesn't need inducement theory to be found guilty, as they appear to be violating the reproduction right directly.

The second factor is not difficult to prove. It's obvious that some people used IsoHunt to infringe. There's no real argument there. The third element gets a little trickier. It's the question of how much did IsoHunt promote "its use to infringe." The appeals court, like the district court, uses the fact that IsoHunt had a listing of "box office movies" as proof of promoting infringing uses, along with some of IsoHunt operator Gary Fung's own actions:

For a time, for example, isoHunt prominently featured a list of “Box Office Movies,” containing the 20 highest-grossing movies then playing in U.S. theaters. When a user clicked on a listed title, she would be invited to “upload [a] torrent” file for that movie. In other words, she would be asked to upload a file that, once downloaded by other users, would lead directly to their obtaining infringing content. Fung also posted numerous messages to the isoHunt forum requesting that users upload torrents for specific copyrighted films; in other posts, he provided links to torrent files for copyrighted movies, urging users to download them

While you can see why this might be seen as promoting the use to infringe, there's a leap here: which is that it assumes that any and all box office movies couldn't possibly also have torrents. That's not definitively the case. It is entirely possible that a movie could put up a legitimate torrent -- which the court doesn't even consider as a possibility. They also point out that Fung did not develop a filter and made money from advertising. I can't see how either is relevant, as there is no requirement for a filter, nor is it illegal to make money from advertising.

The most troubling part of the ruling, however, is in the way the court looks at the "causation" question. Here are the different views presented:

Fung and amicus curiae Google argue that the acts of infringement must be caused by the manifestations of the distributor’s improper object—that is, by the inducing messages themselves. Columbia, on the other hand, maintains that it need only prove that the “acts of infringement by third parties” were caused by the product distributed or services provided.

The court sides with Columbia on this one, but that basically seems to completely wipe out the fourth factor as well. Because they more or less argue if you can show both infringement (third factor) and the product (first factor) you've automatically got the fourth factor proven as well. So why do we even have that fourth factor?

The court claims that it recognizes this could go too far, but then tries to "strike a balance."

We are mindful, however, of the potential severity of a loose causation theory for inducement liability. Under this theory of liability, the only causation requirement is that the product or service at issue was used to infringe the plaintiff’s copyrights. The possible reach of liability is enormous, particularly in the digital age.

So... how does it deal with this? It... basically punts. It goes into a long discussion, highlighting how it's true that IsoHunt and Fung may have a reasonable argument that the infringements that happened were not caused by IsoHunt at all. For example:

Fung argues, on this basis, that some of the acts of infringement by third parties relied upon by the district court may not have involved his websites at all. He points out, for example, that by far the largest number of torrents tracked by the Torrentbox tracker are obtained from somewhere other than Torrentbox.com. If a user obtained a torrent from a source other than his websites, Fung maintains, he cannot be held liable for the infringement that resulted.

The court just punts the issue back to the district court:

We do not decide the degree to which Fung can be held liable for having caused infringements by users of his sites or trackers. The only issue presently before us is the permanent injunction, which, as in Grokster III, does not in this case depend on the “exact calculation of infringing use[] as a basis for a claim of damages.” 545 U.S. at 941. We therefore need not further entertain Fung’s causation arguments at this time, but leave it to the district court to consider them, in light of the observations we have made, when it calculates damages.

Separately, in discussing the DMCA safe harbors, the ruling does push back on the lower court's rulings, saying that its reasoning for rejecting safe harbors was not accurate. The lower court said that IsoHunt could not get a DMCA 512(a) safe harbor because that only applied to "transitory" networks, and since the content never actually touched IsoHunt, it didn't apply. The appeals court rejects this, however.

The district court should not have rejected this safe harbor on the ground it did. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), held that the § 512(a) safe harbor does not require that the service provider transmit or route infringing material, explaining that “[t]here is no requirement in the statute that the communications must themselves be infringing, and we see no reason to import such a requirement.” Id. at 1116; see also id. (“Service providers are immune for transmitting all digital online communications, not just those that directly infringe.”).

However, they still reject safe harbors for IsoHunt because of other activity by Fung, namely using trackers to generate info that is used to "induce further infringing use of his websites and trackers." Basically, the court says that Fung's website may be protected, but his trackers are not protected as service providers.

There are two other troubling parts of the ruling. The first concerns "red flag knowledge." This is the issue that is key to the YouTube/Viacom case. There's a problem with the DMCA, in that it first notes that takedowns only need to occur with a valid DMCA notice. That suggests that an invalid DMCA notice should not necessarily lead to a takedown. But, it also has a section saying that you can be liable if there's "red flag knowledge." But if you need a valid DMCA notice, would an invalid one count as red flag knowledge? The whole thing gets tricky fast. Most courts tend to avoid this by repeatedly saying that there is no red flag knowledge without specific knowledge of infringing files (usually in the form of takedown notices). The Fung case is really the only major case where red flag knowledge was considered reasonable. And the court just rubber stamps that decision with little discussion. It just says because Fung encouraged people to upload and download copyrighted works, that proves he had red flag knowledge. Again, this seems to assume that he must have known it was infringing.

The other troubling part is that the court argues that having advertising on the site constitutes direct financial benefit from the infringement. Other courts have noted that just having advertising on a site where infringement occurs does not mean that the financial benefit is directly attributable to the infringement, but the court here walks that back somewhat:

Under these circumstances, we hold the connection between the infringing activity and Fung’s income stream derived from advertising is sufficiently direct to meet the direct “financial benefit” prong of § 512(c)(1)(B). Fung promoted advertising by pointing to infringing activity; obtained advertising revenue that depended on the number of visitors to his sites; attracted primarily visitors who were seeking to engage in infringing activity, as that is mostly what occurred on his sites; and encouraged that infringing activity. Given this confluence of circumstances, Fung’s revenue stream was tied directly to the infringing activity involving his websites, both as to his ability to attract advertisers and as to the amount of revenue he received.

This is very worrisome, because contrary to what the court suggests here, the revenue stream is not tied to infringement, but tied to providing a popular service that people want. That is the success of the revenue stream does not increase or decrease with each infringement, but with each use of the overall service -- some of which is infringing, some of which is not. Fung doesn't make any more money if the ad is viewed by an infringing user vs. a non-infringing user. It would seem that this should be a prerequisite for requiring that there be a financial benefit from the infringement. Unfortunately, the court seems to lump this all together as "well there are ads and infringement and more infringement means more ads, so there's a direct financial relationship." But, under that theory, then pretty much any website that has any infringement could run afoul of that, and that's clearly not what the DMCA's safe harbors were supposed to be about.

Finally, one bit of good news in the ruling is that the court does rule that the injunction is against IsoHunt is too broad. This had been a major concern since the original court ordered a blockade that also blocked legitimate, authorized content. The court recognized this as a problem, noting that the injunction included all sorts of vague language that impose too much of an expectation that Fung can wave some sort of magic wand to block any and all "infringement-related terms in metadata for any webpages." The court agrees that this is too much:

Beyond the specifically-named examples, no one reading this injunction can tell what it means for a term to be “widely known to be associated with copyright infringement.” We understand the desire to build flexibility into the injunction. But Rule 65(d), overall, prefers certainty to flexibility. Subsection (ii) of the injunction’s definition of “Infringement-Related Terms” therefore must be modified to state simply that the phrase includes specifically named terms.

It also finds that some parts of the injunction are clearly too burdensome for Fung himself:

Fung maintains, and we agree, that certain provisions of the injunction could be interpreted to prevent Fung from ever working for any technology company whose services others might use to infringe copyright, even if those other companies are not themselves liable for primary or secondary copyright infringement.... We agree that insofar as the injunction can be interpreted to prohibit Fung from seeking legitimate employment, it is more burdensome than necessary to provide Plaintiffs relief.

On the whole, Fung still has lost big time with this ruling, and I'm still quite concerned about many parts of it. In a few areas the court has cut back on some excesses by the district court but, of course, this case is far from over.

Eric Wisti alerts us a case we hadn't heard about before. You may recall a few years back how the Bed Intruder song became a huge hit, after the Autotune the News guys took an offbeat TV interview and turned it into a song. They, famously, provided some of the proceeds from that song to the interviewee, Antoine Dodson. Apparently, last year, a radio show called the Bob Rivers show sought to do something similar with an interview with a woman in Oklahoma, who goes by the name Sweet Brown (real name: Kimberly Wilkins), about a fire in her apartment complex. Here's the original interview. Then here's the "No time for bronchitis" song: And, because it's interesting, here's a video from a day or two later showing her general reaction, including a mention that her son had posted the video to his own Facebook page: Months later, however, it appears that Sweet Brown decided to sue the radio program and also iTunes since the song is there. Since the article is woefully unclear on the details, I pulled up the docket, and have posted some of the key filings below. My guess is that she's going to have a difficult time. The original lawsuit was filed without a lawyer in state court and it shows. It claims "plagiarism sampling," "fraud," and "negligence" -- and demands $15 million. Somewhere along the way, she actually found lawyers to represent her and they filed a very different complaint that focused on Oklahoma's publicity rights law. The case was then removed to federal court, where it belonged in the first place, and the Bob Rivers show made a compelling case for dismissal -- noting that she had consented to the interview and is not a well known person, for which a right of publicity would apply. Not long after that, her lawyers sought to withdraw from the case, citing "unresolvable differences between counsel and the plaintiffs that require withdrawal of counsel," which the court later allowed.

There was also an attempt at summary judgment that failed, when Brown failed to show that she had served "iTunes." Of course, even if that happens, Apple has plenty of reasonable defenses, as a third party service provider, for why it's not liable.

All that said, there is something about the video that feels exploitative. The Autotune the News guys made sure that Antoine Dodson got something out of his unexpected fame, and you can see why it might have made good general sense to have cut Brown in on any proceeds, even if the Bob Rivers show was not legally required to do so.

Librarians can play an important role in any society that depends increasingly on access to information to function. One of their jobs is to help people find what they are looking for, in a neutral, objective way, without imposing their own ideas or values in the process. Sadly, it looks like that won't be possible in Canada any more, now that librarians are expected to sign up to a new Code of Conduct imposed on them by the Canadian government. Here's one problematic section:

Employment in the public service involves certain restrictions. Public servants owe a duty of loyalty to their employer, the Government of Canada. This duty derives from the essential mission of the public service to help the duly elected government, under law, to serve the public interest and implement government policies and ministerial decisions. The duty of loyalty reflects the importance and necessity of having an impartial and effective public service in order to achieve this mission.

"A duty of loyalty to their employer, the Government of Canada": I think Stalin would have approved of that. Although there is a token invocation of "the importance and necessity of having an impartial and effective public service", it's clear that obedience to the ruling powers overrides any misguided desire to be impartial. That imposition of an overtly political line to everything librarians do in their jobs is bad enough, but it gets worse:

As public servants, our duty of loyalty to the Government of Canada and its elected officials extends beyond our workplace to our personal activities. Public servants must therefore use caution when making public comments, expressing personal opinions or taking actions that could potentially damage LAC [Library and Archives Canada]'s reputation and/or public confidence in the public service and the Government of Canada. They must maintain awareness of their surroundings, their audience and how their words or actions could be interpreted (or misinterpreted).

"Maintain awareness of their surroundings" is a particularly fine Orwellian phrase that basically means: watch what you say, or else there will be trouble. Of course, one famously dangerous environment is the online world:

With the current proliferation of social media, public servants need to pay particular attention to their participation in these forums. For example, in a blog with access limited to certain friends, personal opinions about a new departmental or Government of Canada program intended to be expressed to a limited audience can, through no fault of the public servant, become public and the author identified. The public servant could be subject to disciplinary measures, as the simple act of limiting access to the blog does not negate a public servant's duty of loyalty to the elected government. Only authorized spokespersons can issue statements or make comments about LAC's position on a given subject. If you are asked for LAC's position, you must refer the inquiries, through your manager, to the authorized LACspokesperson.

Yes, you see, even that private little blog where you make a witty remark about the stupidity of some of Canada's glorious leaders could cause you to be subject to "disciplinary measures" (and please, do remember that parts of Canada are just as cold as Siberia....)

The attempt to dress up this pompous control-freakery as moderate and reasonable -- "through no fault of the public servant" etc. etc. -- would be rather amusing were it not part of a much larger move by Canada's rulers to stifle dissent. Canadian scientists, for example, have been subject to these kind of humiliating restrictions for some time, as the BBC reported last year:

The allegation of "muzzling" came up at a session of the AAAS [American Association for the Advancement of Science] meeting to discuss the impact of a media protocol introduced by the Conservative government shortly after it was elected in 2008.

The protocol requires that all interview requests for scientists employed by the government must first be cleared by officials. A decision as to whether to allow the interview can take several days, which can prevent government scientists commenting on breaking news stories.

Sources say that requests are often refused and when interviews are granted, government media relations officials can and do ask for written questions to be submitted in advance and elect to sit in on the interview.

Adapting some words penned in a much more serious situation, we might say:

First they censored the scientists, and I did not speak out, because I was not a scientist.

Then they censored the librarians, and I did not speak out, because I was not a librarian.

Then they censored me, and there was no one left to speak for me.

Now might be a good time for Canadians to say "enough is enough"....

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Tim Wu has an excellent article in the New Yorker, talking about the Computer Fraud and Abuse Act (CFAA), and specifically about how it was used against Aaron Swartz, declaring it the worst law in technology. Much of it covers similar ground to what we've covered before, but it also makes some really good points towards the end about how the Obama administration really needs to pull back on its reliance on the law in so many cases. First, he notes that simply relying on "prosecutorial discretion" is not enough, since we've seen that doesn't work:

The broadest provision, 18 U.S.C. §1030(a)(2)(c), makes it a crime to “exceed authorized access, and thereby obtain… information from any protected computer.” To the Justice Department, “exceeding authorized access” includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every computer in the United States and even many millions of computers abroad.” You don’t have to be a raving libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s interpretation makes the American desk-worker a felon.

When judges or academics say that it is wrong to interpret a law in such a way that everyone is a felon, the Justice Department has usually replied by saying, roughly, that federal prosecutors don’t bother with minor cases—they only go after the really bad guys. That has always been a lame excuse—repulsive to anyone who takes seriously the idea of a “a government of laws, not men.” After Aaron Swartz’s suicide, the era of trusting prosecutors with unlimited power in this area should officially be over.

He notes (as we have) that it doesn't look like Congress is really taking the matter that seriously yet. But he also notes that we don't have to wait for Congress. The DOJ should make it a stated policy not to interpret the law in such a ridiculous manner.

There is a much more immediate and effective remedy: the Justice Department should announce a change in its criminal-enforcement policy. It should no longer consider terms-of-service violations to be criminal. It can join more than a dozen federal judges and scholars, like Kerr, who adopt a reasonable and more limited interpretation. The Obama Administration’s policy will have no effect on civil litigation, so firms like Oracle will retain their civil remedies. President Obama’s DREAM Act enforcement policy, under which the Administration does not deport certain illegal immigrants despite Congress’s inability to make the act a law, should be the model. Where Congress is unlikely to solve a problem, the Administration should take care of business itself.

All the Administration needs to do is to rely on the ancient common-law principle called the “rule of lenity.” This states that ambiguous criminal laws should be construed in favor of a defendant. As the Supreme Court puts it, “When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.” So far, at least thirteen federal judges have rejected the Justice Department’s interpretation of the Computer Fraud and Abuse Act. If that’s not a sign that the law is unclear and should be interpreted with lenity, I don’t know what is.

Failing that -- and we've rarely seen a law enforcement agency take a weapon out of its own arsenal by choice -- Wu suggests that it's President Obama's responsibility to speak up and tell the DOJ to change its policies. He notes, "with just one speech, the President can set things right."

The Motion Picture Association is somewhat notorious for flipping out over every new technology and how it will, without doubt, mean death for them. Most famously, of course, the prediction that the VCR would be the "Boston Strangler" to the movie industry a mere six years before home video revenues outstripped box office revenues. However, this seems to be somewhat instinctual behavior. Everything new must automatically be classified as a threat, and the best response is to kill it outright. The latest version of this appears to be the threat of (gasp!) "cloud computing." At a get together in Hong Kong, in which the movie industry was supposed to be talking about "protecting the screen community in the cloud era" apparently there was the typical predictions of doom with little in the way of suggestions. But there were some. Frank Rittman, the SVP of the Motion Picture Association, explained that the cloud was evil and censorship was the answer:

The news was even worse from Frank Rittman, SVP of the Motion Picture Association, Asia Pacific, who stated that potential pirates have all the digital tools they need to make illegal media sharing more viral than ever. “Digital online technology has enabled new channels of delivery for entertainment media,” he said. “The cloud also represents a threat in that it facilitates piracy, and the pirates seem to have gotten into this space first.”

The answer to both problems, Rittman believes, is pushing for Internet Service Providers to block sites known to be troublemakers when it comes to Internet piracy. He pointed to examples of the practice in Europe, Indonesia, Malaysia, and South Korea as models of how this has worked as a low-cost way of cutting down on piracy that has met with some success.

He also complains that Hong Kong won't pass a law like this because the process has been "hijacked by extremists." Well, that's one way of looking at it. The alternative way is that arguing that flat out censorship of entire sites because you have been too slow to adapt, is crazy talk and is significantly more extremist than anything anyone else has been arguing. If you want to go after direct infringement, go after that. But censorship of entire sites is going way too far. And, contrary to his claims, it has not "worked" nor has it "met with some success." It hasn't driven people back to paying for movies.

Really, Rittman's statements are an example of the problem. Here are people so focused on "stopping piracy" that they don't care about the consequences of their own actions on innovation, nor do they care about whether or not it helps their own bottom line.

In 2001, I published a history of free software, called "Rebel Code: Inside Linux and the Open Source Revolution." One of the people I interviewed for the book was Eben Moglen, for many years the General Counsel for the Free Software Foundation, and one of the main architects of the later versions of the GNU General Public License. He had the following interesting thoughts on the delivery of digital media:

Let's think about the Net for a change as a collection of pipes and switches, rather than thinking of it as a thing or a space.

There's lot of data moving through those pipes, and the switches determine who gets which data and how much they have to pay for it downstream. And of course those switches are by and large what we think of as digital computers.

The basic media company theory at the opening of the 21st century is to create a leak-proof pipe all the way from production studio to eyeball and eardrum.

Creating that "leak-proof pipe" has long been the dream not only of media companies, but also of computer companies like Apple that hope to collaborate with and ultimately supplant them. A recent patent application, found through the French title Numerama, seeks to make videos uncopiable during playback by locking down the last section of the pipe -- the part that connects the computer to the screen. Here's how Apple's patent describes it:

Securing protected content during video playback. The embodiments provide a system that drives a display from a computer system. During operation, the system writes graphical output, generated from a copyrighted video file, to protected memory and drives the display from the protected memory. If the graphical output lacks copy protection, the system discontinues the driving of the display from the protected memory. In particular, upon detecting a lack of copy protection in the graphical output, the system continues to drive the display from the protected memory during a grace period associated with the lack of protection in the graphical output. The system then discontinues driving of the display from the protected memory if protection of the graphical output does not resume during the grace period.

The rest of the patent describes the details of the process. What's striking -- and sad -- is the effort and ingenuity that has been put into making things less convenient for the end user. After all, introducing a system that automatically shuts down when it thinks security may be absent is a recipe for disaster -- as if current DRM screw-ups weren't enough of problem.

Moreover, Apple's system will fail, just as all the other approaches to "protecting content" have failed. Anything involving copy protection is regarded as a challenge by certain people; it's not a question of "if" the particular scheme employed by Apple will be broken, but "when". And there's another, deeper reason why such attempts won't ever work. As Moglen explained to me all those years ago:

The switch that most threatens that pipe is the one at the end. If the switch closest to your eyeball and your eardrum is under your complete technical control, the whole rest of the aqueduct can be as leak-proof as they like, and it won't do them any good. And the switch is under your control, of course, if the software is free software.

While there's free software, the data pipe will always be leaky.

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As we've seen occur in multiple instances, bogus infringement claims have been used to make things disappear from the web. When that isn't an option, vague claims of libel or defamation are used to shut down critics. And if it isn't either of the above, the entity being criticized will fall back on the law -- or rather, law enforcement -- to achieve silence through intimidation.

Sometimes it works all too well. Other times, it backfires completely. Such is the case with longtime critic of the TDSB (Toronto District School Board), Arnie Lemaire, who writes the Blazingcatfur blog. A member of the school board sent the Toronto PD over to Lemaire's place after finding something "threatening" in a six-week old blog comment. (via)

"We received a knock at our door a little after 8 a.m.," said Lemaire. "Two detectives from Toronto Police Services identified themselves and asked if they could come in to discuss a matter."

Enter Det.-Consts. Irene Liska and Sergiy Lobanets, from 32 Division.

They presented "a photocopy of my post about the TDSB teaching children that the Black Panthers were a harmless social justice organization link" and specifically the "OISE and the TDSB need to be purged, or burnt to the ground" stinger.

It was almost laughable. He thought everybody would understand it was meant figuratively and obviously not literally.

Unlike other cases where the police have overreacted first before circling back to ask a few questions (for instance, strip-searching a man whose daughter drew a picture of a gun in class, or detaining a teen for three hours over some misheard Will Smith lyrics on a voicemail message), the responding officers had this sorted out in a matter of minutes, finding the whole thing nearly as laughable as Lemaire did.

[Lemaire] added he "assured them I had no intention of torching the TDSB."

Police, he said, "were immediately satisfied with that explanation and assured me there would be no charges."

The police must have been less than amused by being used to run errands for the school district as they generously gave up the name of the complainant -- TDSB spokesperson Sheri Schwartz-Maltz. Schwartz-Maltz was "out of the office" when contacted for comment but another board member offered this in the way of explanation.

[F]ellow TDSB spokesman Ryan Bird explained "when certain words or terms are used in relation to schools or the board, they are flagged -- as per protocol -- to the Toronto Police Service without exception to determine if there is any threat that would require further investigation."

Oh, look. It's our old friend "zero tolerance," once again making an ass of itself and the people willing to blindly adhere to "protocol." Lemaire's comment was clearly non-threatening. Note the lack of first-person ("I would like to burn TDSB to the ground...") or any call to action directed at others ("someone needs to burn TDSB to the ground...").

If it is indeed the policy of the school board to flag certain terms for police investigation, one wonders why it took the board six weeks to get this horrible "threat" investigated. Presumably, safety still remains first for the district. A lag of six weeks from threat to response isn't going to stop bad things from happening, no matter how low the "tolerance." [Currently at "zero."]

No, this is just old-school intimidation. Call the cops around to make a point about saying things the offended party feels just shouldn't be said. But Lemaire's having none of it, returning to his anti-TDSB blogging with the headline "Dear TDSB, You Can't Silence Me." The school board, on the other hand, has returned to the security of its "protocol," apparently seeing nothing wrong with calling the cops over a few nasty, hyperbolic words.

While much of the recent conversation here surrounding the United States' use of drones has centered on the fear of how they might be used domestically, there can be little doubt that their use is highly controversial around the world as well. In that arena, the questions that arise are more about transparency in their use, collateral damage, and whether or not there is even a legal argument for their application at all. As the pressure continues to mount, President Obama finally began to at least respond, suggesting in his most recent State of the Union address that he is seeking moves that will "ensure that not only our targeting, detention and prosecution of terrorists remain consistent with our laws and systems of checks and balances, but that our efforts are even more transparent to the American people and to the world." Many of us who have paid attention to Obama's actions versus his promises when it comes to transparency may have rolled our eyes, but there may shortly be a move coming in which, in the case of drones at least, progress will actually be made.

Reports are circulating via senior U.S. officials as sources that the President is going to take the CIA drone program, one of two in the United States, and unify it with the Defense Department's drone program. If it does indeed happen, this move should not go under-appreciated by those of us who wish for more accountability and transparency when our government decides to kill people abroad. As The Daily Beast notes:

The move could potentially toughen the criteria for drone strikes, strengthen the program's accountability, and increase transparency. Currently, the government maintains parallel drone programs, one housed in the CIA and the other run by the Department of Defense. The proposed plan would unify the command and control structure of targeted killings and create a uniform set of rules and procedures. The CIA would maintain a role, but the military would have operational control over targeting. Lethal missions would take place under Title 10 of the U.S. Code, which governs military operations, rather than Title 50, which sets out the legal authorities for intelligence activities and covert operations. “This is a big deal,” says one senior administration official who has been briefed on the plan. “It would be a pretty strong statement.”

While any move that occurs will be phased in gradually, the report suggests it will be completed within the President's second term. The likely pusher for this shift, oddly enough, is coming from John Brennan, newly appointed CIA Director, who also has headed up the administration's drone program since the start of his first term. Reportedly, Brennan wants to get back to gathering intelligence, the CIA's longstanding role prior to the September 11 attacks over a decade ago. For the President, the one who dramatically upped the ante with America's drone strikes from the previous administration, this would be a serious move. Why?

Perhaps most important is that the CIA’s program is “covert”—which is to say it is not only highly classified, it’s deniable under the law. That means the CIA, in theory, can lie about the existence of the program or about particular operations. The military’s targeted killing program, however, is “clandestine”—which means it is secret but not deniable.

The cynical may not see much in such a move, but it's an important step. I'll leave it to other arenas for any debate over whether we should be using drones in the war on terror at all, but I would at least hope that we could all agree that when America, the nation, decides we're going to kill people overseas, America, the nation, should demand that choice be scrutable.