As Techdirt has been reporting, the idea of providing open access to publicly-funded research is steadily gaining ground. One of the key moments occurred almost exactly a year ago, when the British mathematician Tim Gowers announced that he would no longer have anything to do with the major academic publisher Elsevier. This then turned into a full-scale boycott: today, over 13,000 academics have pledged not to work with the company.

Despite the growing acceptance of open access, there remains a key challenge. Unlike traditional academic journals, which require readers to pay, open access titles provide free access to all. But even though produced in a digital form, open access journals still have editing and production costs associated with them, and these are typically met by the funding institutions of the researchers when their papers are accepted for publication.

This is the so-called "gold" form of open access; another is "green", which consists of posting papers to an institutional repository or open online archive. In an interesting development, a new form, dubbed "diamond" open access, has just been announced by Tim Gowers:

a platform is to be created that will make it very easy to set up arXiv overlay journals.

What is an arXiv overlay journal? It is just like an electronic journal, except that instead of a website with lots of carefully formatted articles, all you get is a list of links to preprints on the arXiv. The idea is that the parts of the publication process that academics do voluntarily -- editing and refereeing -- are just as they are for traditional journals, and we do without the parts that cost money, such as copy-editing and typesetting.

arXiv.org was one of the earliest attempts to open up academic publishing in the early 1990s using the (then) new Net -- basically, it's an online server, where preprint papers are posted for anyone to read. Preprints are the draft form of papers before they appear in journals, although often they are highly finished, and require few changes for publication. The innovation of "diamond" open access is that these preprints, held on the arXiv servers, will be the main form of publishing. Indeed, the new journals, whose titles have not yet been announced, will consist largely of links to those preprints.

The huge advantage of this approach is that it costs almost nothing to produce one of these "overlay" journals, since it re-uses the work already done in first preparing the preprint, and then in posting it to arXiv. This means that as well as making the journals freely available to readers, it won't be necessary to charge the academics to appear there -- zero-cost open access.

As Gowers notes, building on arXiv in this way not only saves money, but opens up new ways of extending published articles:

One possibility being discussed, which I am very much in favour of, is each accepted article having not just a link to the arXiv but also a web page for (non-anonymous) comments and reviews. For example, the editor who accepts an article might wish to write a paragraph or two about why the article is interesting, a reader who spots a minor error might write explaining the error and how it can be fixed (if it can), and an expert in the area might write a review that could be very useful to hiring committees.

This may even go further, with comment pages being set up for other preprints and journal articles -- not just the ones that have appeared in epijournals [the provisional name for these new kinds of publication.]

What's interesting here is the thoroughgoing way these "epijournals" exploit the power of the Web's key feature of linking -- through pointing to articles held on arXiv, and the use of ancillary pages for comments, corrections and reviews. In a sense, this moves on the open access revolution, which so far has contented itself with using the Net to free up conventionally-published articles. Diamond access to epijournals goes further, and seeks to re-imagine academic publishing more completely for the digital age -- without the publishers.

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Last August, we wrote about an experiment by famous skateboarder and filmmaker Stacy Peralta to self-distribute his latest film, Bones Brigade, about the famous skateboarding crew Peralta himself had put together a few decades ago (the crew included some of the most famous skateboarders ever: Tony Hawk, Lance Mountain, Steve Caballero, Mike McGill and Tommy Guerrero). Peralta had shown the film at Sundance last year, which is where most filmmakers go to try to "sell" their film to a studio/distributor to go make something of it. However, Peralta turned down all such offers (some for significant money), and instead went the "direct to fan" self-distribution path, using tools like TopSpin, and partnering with companies like BitTorrent as well. That's what we wrote about in August.

Now, as the latest Sundance is underway, TopSpin's Bob Moczydlowsky has a post with some details of how it all went, noting that going direct to fan was massively successful for Peralta, allowing him to both make more money and still retain the rights to the film, rather than selling them off to some other entity.

And now, a year after the Sundance premiere and six months from the start of the direct-to-fan release powered by Topspin, Film Sales Company and our partners awe.sm and The Uprising Creative,  Stacy has earned more from direct sales than he would have from the combined total of the domestic and foreign sales offers. And, because a Topspin direct release does not require licensing rights, Stacy and Andrew Herwitz from Film Sales Company were then able to do their own Transactional VOD and Third-party license deals. Stacy and his financing partners quickly recouped the budget of the film, and the copyright remains in their hands for the future.

That really is the key. “I self financed, got the investment back, am now in profit and I own the copyright and will continue to earn all other sales for the next ten years,” says Stacy. “And it is all because I was empowered for the very first time to really do it myself from start to finish. Topspin has done for distribution what the Handycam did for shooting or the Avid did for editing. Topspin put it all in my hands and suddenly everything I needed was within my reach: pure and simple filmmakers democracy.”

They also included a nice little pie chart (to scale), showing how much bigger the pie was with what Peralta ended up doing: This is not to say, of course, that the same thing is true for everyone who tries to go direct to fan. It's right for some people, and not right for others. But the key thing here is that there are more options and many of those options not only leave the actual creators with more control, but also allow them to expand the pie.

One of the more frustrating aspects of discussing these business model issues with some people is their assumption that the "pie" is static (or, worse, shrinking). It's a classic mistake in economics for those who think that everything is a zero sum game. But one of the great things about new technologies and services is how they enable a much broader audience and increase the opportunities, opening up wider possibilities -- especially for creators who really know how to engage with their fans.

Automated language translations have made some pretty big advances over the years, but sometimes the results are hilarious because they're so wrong. We don't mean to pick on Google Translate here -- since it's just one of many automated solutions for translating foreign languages -- but automated Engrish can be pretty funny.

• Google has been working on translating languages in YouTube video clips for a few years, offering a very useful feature of video transcripts. It's not exactly a perfect universal translator, but something may be better than nothing. [url]
• Call Me Maybe translated into 14 foreign languages and then back into English... This is madness.. numerous statements of my mobile number... [url]
• The Fresh Prince of Bel Air's theme song was run through 64 translations by cdza. Now this is a story all about how... automated translation doesn't preserve meanings. [url]

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

Welll, it's been over two years since we've had one of these stories here at Techdirt, but some people will still follow their GPS blindly despite every bit of common sense available telling them to do otherwise. Admittedly, for my money, the Darwin-Awards-esque fashion in which some folks will literally follow their GPS over a cliff, up a mountain, or into a drowning-inducing resevoir provide some of the best entertainment bang for the click as far as I'm concerned. And while, for comedy purposes, it may be tempting to litigate against Tom Tom under the notion that these drivers were seriously seeking out Bespin, Mount Olympus, and a mini-Atlantis respectively, the unfortunate truth is that these drivers were just dumb.

Pictured: what happens when you type 'Hoth' as your GPS destination
Image source: CC BY 2.0

Now we can add a lovely elderly woman from Belgium to the list of people who toss common sense to the curb in favor of their GPS, though she admittedly performed this action in such distinctive fashion as to separate herself from the pack.

The woman identified by Het Nieuwsblad as the 67-year-old Sabine Moureau told the paper: "I was absent-minded so I kept on putting my foot down."

Sabine started her journey in Erquelinnes on the morning of last Saturday week. "I was going to pick up my friend in the Brussels North Station" she told the paper. The journey should have taken just over an hour, but she ended up 1,450km from her starting point.

Yes, instead of reaching her destination in Brussels, which Google informs me is in Belgium, she concluded her GPS-led journey in Zagreb, which Google likewise informs me is in Croatia. For those of you who are as European-geography-challenged as I am, this means she essentially drove from the North Sea to the Adriatic Sea. If that doesn't help you much (And why would it? You've already said you're geography-challenged, dummy!), consider that Sabine's trek caused her to touch Belgium, Germany, Austria, Slovenia and finally Croatia, taking something like 12 hours. Perhaps this Google Maps link will really drive home the point. Point C is where she began. Point B is where she wanted to go. Point D is where she did go. Think about that for a bit...

To Sabine's credit, she provides more than just the driving skills of an otter to laugh at. She has quotes, too!

"I saw tons of different signposts, first in French, later in German, but I kept on driving." Sabine had to fill up twice and slept a few hours by the wayside, but claims she never really caught on to the fact that she might be on the wrong track. "It was only when I ended up in Zagreb that I realised I was no longer in Belgium."

Well, I say bless your heart, you wonderfully trusting woman. Were it not for you, Techdirt may have gone 3 full years without a silly GPS story. On the other hand, one has to wonder if the friends you keep are cut from the same cloth as you, because I'd hate to think that your friend is still waiting at the Brussels North Station, wondering where the hell you are.

 

WikiLeaks currently finds itself in a difficult position. Funds are trickling in because of a questionable financial blockade against it, and Julian Assange is stuck in the Ecuadorian embassy in London. So it's understandable that it should want to take every opportunity to remind people that it is still around and keen to continue publishing highly-sensitive documents in a confidential fashion. But I do wonder if this series of tweets disclosing that Aaron Swartz was involved with WikiLeaks is the best way of doing that:

Due to the investigation into the Secret Service involvement with #AaronSwartz we have decided to disclose the following facts (1-3)

1. Aaron Swartz assisted WikiLeaks #aaronswartz (1/3)

2. Aaron Swartz was in communication with Julian Assange, including during 2010 and 2011

3. We have strong reasons to believe, but cannot prove, that Aaron Swartz was a WikiLeaks source. #aaronswartz

There are a number of issues here. First, WikiLeaks is revealing the name of one of its sources -- surely something it should never do under any circumstances if it wants to retain the confidence of future whistleblowers. Worse, it's not even sure Aaron Swartz was a contributor, but is making the claim anyway. That matters because it may encourage the US authorities to start investigating others in his circle as possible WikiLeaks contributors. At best, that could be awkward for them, and at worst, extremely dangerous given what has happened to the alleged WikiLeaks source Bradley Manning.

It's hard to see what WikiLeaks thought it would gain from making these statements, other than some quick publicity, perhaps. But that seems a very transient gain in the face of the long-term dangers it may have exposed others to. Moreover, those four tweets may also have compromised its credibility with potential sources, who must now be asking themselves whether WikiLeaks can really be trusted again.

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If you haven't had your Charles Carreon fill in a while, here you go. Last we'd heard, despite promising to go after a parody blogger who was mocking Carreon (and threatening the blogger's employer), when that blogger filed for declaratory judgment, Carreon first avoided being served, and upon finally being served almost immediately capitulated and promised not to sue. However, what Carreon did not apparently realize was that he left himself open to having to pay the legal fees from the other side, which has led to an ongoing fight in which the lawyers, Paul Levy and Cathy Gellis, are seeking upwards of $40,000 -- a number that seems to keep going up the more and more Carreon tries to fight their every move.

The latest is that Carreon has asked the court for a 120-day extension in responding to Levy's motion for fees. Asking for an extension is not uncommon, and it's often granted -- but the reasoning here is a bit out of the ordinary (which, perhaps, should not be unexpected given who is involved). Rather than citing significant other cases or workload that might get in the way, or highlighting why the basic requirements in responding to the motion require more time, Carreon seems to be trying to smear Paul Levy and his employer, Public Citizen (full disclosure: Levy is a friend, and has, at times, represented this site against threats). Much of Carreon's argument is this bizarre conspiracy theory suggesting that Levy trolls the internet seeking cases where he can file for declaratory judgment, and then tries to cash in on legal fees. He cites two (two!) cases where Levy has, in the past, sought legal fees and lost. And then suggests he needs more time to research all of this more, including seeking discovery from Levy and finding groups to file amicus briefs ("friend of the court" briefs) on his behalf.

To put it mildly, this is crazy. Carreon seems to be trying to turn a case in which he was clearly the initial bully, and got called on it, into one where he tries to sift through documents concerning the lawyer who called his bluff. Basically, it's back to Carreon's game plan throughout this mess: when in trouble, keep digging -- and, as part of that digging, accuse everyone against you of somehow doing something nefarious. In the past, this has included accusations against bloggers and press who were covering his saga (including threats to sue some of them), and now it's extended to threats to drag Levy into a time consuming and meaningless discovery process. Levy filed a short response, noting that he has no problem giving Carreon a 30 day extension, but going on a fishing expedition via discovery makes no sense as they're just trying to settle whether or not Carreon needs to pay legal fees. Furthermore, the search for amici to support him is no excuse for asking for an extension.

Carreon then responded not by countering any of the legal points that Levy raised concerning the extension or discovery, but simply by playing a weird game of "gotcha" in which he wants to call the court's attention to the fact that, in his reply, Levy decided not to even bother responding to Carreon's silly assertions about Levy deliberately trolling the internet for cases where he could seek legal fees (based on the two cases Carreon found where Levy sought legal fees).

Plaintiff’s counsel’s silence regarding the judicial rebuffs his arguments suffered in the Eleventh and Fourth Circuits speaks volumes.

Mr. Levy is simply engaging in a form of forum shopping, eagerly seeking and recruiting clients who create gripe sites to file preemptive declaratory relief actions in various venues, hoping to coerce settlements from vulnerable defendants, or perhaps to lead some court into error by failing to disclose his prior defeats on the very same issue in other jurisdictions

Of course, this ignores a much more plausible scenario (one that happens to be true). As is Public Citizen's charter, Levy and others in the Public Citizen litigation group have a core focus, which is that the group "specializes in cases involving regulation, consumer rights, access to the courts, open government, and the First Amendment, including Internet free speech." Basically, they look for cases that help promote the public good on those particular issues. As such, they are certainly one of the leading groups that people reach out to when they are threatened unfairly. And, based on that, it's not surprising that, at times, this leads to cases in which it is appropriate to seek legal fees. Sometimes they will get those legal fees, and sometimes they will not.

What that has to do with whether or not Carreon should pay up legal fees for his actions is anybody's guess.

Oh, and I think that we (and a few other sites still talking about Carreon) get a bit of a backhanded mention in this one:

Defendant is not a public figure, no issue of public importance has been addressed, and the matter has not been found newsworthy except in online publications desperate for pseudo-legal content.

Are we an "online publication desperate for pseudo-legal content"? We have more than enough content, honestly, and I could do without any more Carreon filings, but he just keeps digging, so the topic just keeps flowing.

Oh, and despite Carreon's claims that Levy is all too eager to jump into these kinds of cases, filing declaratory judgments and then seeking legal fees, I will note that my own personal experience with Levy was that he has, multiple times, steered me away from going that route. If his ultimate goal was to file as many such cases as possible, I doubt that would be the case.

Update: And... between me writing this story and publishing it, the judge has quickly rejected most of Carreon's arguments, giving him 60 days as an extension but saying no to the discovery request, saying simply:

Defendant’s request for extensive discovery would amount to a mini-trial on plaintiff’s motion for attorneys’ fees. Such extensive discovery is unnecessary and a waste of resources.

"Unnecessary and a waste of resources" seems like a phrase that can be applied to an awful lot of Charles Carreon's recent activities.

As we've discussed in the past, works created by the federal government are automatically in the public domain under section 105 of US copyright law:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

So... that would suggest that musical works created by the federal government should be in the public domain, right? And... according to the Times of London, the performance of the Star Spangled Banner by Beyonce at President Obama's inauguration, was actually pre-recorded by the Marine Corp. Band, and then lip synced by Beyonce. Last we checked, the Marine Corp. Band is a part of the US government, meaning that recordings it creates should be in the public domain. So... is that recording in the public domain? The good folks at MuckRock have decided to find out by filing a Freedom of Information Request for the backing track.

This is a request under the Freedom of Information Act. I hereby request the following records:

A copy of the backing track used during Beyonce's Inauguration performance, as well as copies of other backing tracks created in preparation for Inauguration events, whether or not they were actually used.

The existence of these documents was disclosed by a spokeswoman for the Marine Corp Band to The Times of London

The performance by Beyonce could still be covered by copyright, since she is not an employee of the government, but that backing track almost certainly should be in the public domain. Of course, it's unclear to me if, even if the track is in the public domain, the federal government has an obligation to hand it over as part of FOIA request, but it seems like it's at least reasonable to ask.

While we're already seeing things like Rep. Zoe Lofgren's attempt to reform the CFAA, and Rep. Darrell Issa's plan to investigate the DOJ, one interesting thing that has come out of the tragedy of Aaron Swartz's suicide is sudden public interest in prosecutorial overreach. Many criminal defense attorneys have been screaming at the top of their lungs that the pressure put on Swartz is nothing new -- it's how the game is played. And they're right (which is, in part, why I've suggested people check out the documentary Better This World which covers a very different type of case, by very clearly lays out similar efforts by prosecutors who want to win at all costs, and use threats and intimidation to force people into a plea bargain they think is unfair, because it's better than the alternative. The movie is heart-wrenching).

Perhaps one good thing coming out of all of this however, is that more and more press outlets are suddenly paying attention to the wider issue of prosecutorial overreaction:

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

In recent years, as the Wall Street Journal has documented in a disturbing series of articles, Congress has enabled prosecutorial intimidation by criminalizing ever more conduct, passing laws that provide for or require extreme sentences, and reducing the burden of proof (through expanded application of "strict liability", where lack of criminal intent is no defense).

That same article goes on to note: "And if a prosecutor should turn his righteous all-powerful gaze on you, you're done for." That's it, end of story. The likelihood of winning a case after federal prosecutors take you to court is minimal. And that's waking people up to the fact that the criminal justice system is insane:

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz's death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate points out in his 2009 book, Three Felonies a Day: How the Feds Target the Innocent, federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

"Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career," writes Silverglate, a friend and occasional collaborator. "Whole families have been devastated, as have myriad relationships and entire companies."

We already covered some of this with Tim Wu's take on the prosecution, but it's still good to see more publications calling for change on this particular issue:

...whatever opinion one has of Swartz's politics, the American criminal justice system, in its relentlessness and inflexibility, it's unduly harsh sentencing guidelines, requires serious reexamination.

Part of that, of course, is getting the DOJ to stop focusing solely on "winning," and get them to start actually look at what is real justice. Instead, it now is clear that the prosecutors on Aaron's case were looking for a "juicy" case so they could get their names in headlines.

Heymann was looking for "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill," Peters said. Heymann, Peters believes, thought the Swartz case "was going to receive press and he was going to be a tough guy and read his name in the newspaper."

So, now is the time to get beyond just reforming the CFAA or copyright laws or whatnot, but to also look at what can be done to change the situation:

But Swartz's suicide may be the first to generate widespread sorrow and outrage over common prosecutorial tactics that put ordinary as well as extraordinary citizens at risk. The increasingly voluminous federal criminal code, the vagueness of its individual offenses (numbering about 4,500 in 2007), and its harsh mandatory minimum sentences -- combined with failures of Justice Department leadership -- regularly expose law-abiding Americans to prosecution for activities they have no reason to consider illegal.

This kind of prosecutorial overreach impacts everyone in serious ways, generating lots of headlines, but doing little to nothing to actually help stop crime.

"If we open a quarrel between past and present, we shall find that we have lost the future." — Winston Churchill

We've talked in the past about how the heirs of Martin Luther King Jr. and James Joyce have a long and unfortunate history of being ridiculous about letting anyone quote their dead ancestors. Both families have abused copyright law to demand excessive payments, even for researchers and memorials and the like. Now we can add the heirs of Winston Churchill to the bunch. The Freakonomics podcast recently explored this issue with a biographer of Winston Churchill, Barry Singer.

Singer is somewhat obsessed with Churchill, running an entire bookstore devoted to Churchill. As such, he actually says he's had a very good relationship with Churchill's heirs for years. But when he finally sought to write a book on Churchill himself, the family went the usual route and claimed no quotations unless you pay. The approximate rate: 50 cents per word. Quoting other Churchill relatives also costs money and the rates may differ. As Singer explains, he basically had to significantly cut back on what he quoted, and completely excise some Churchill family members from the book. But he did have to pay for the 3,872 words he used that included direct quotations from Churchill -- though the family gave him a slight discount, such that he had to pay £950 -- which works out to about 40 cents per word.

Singer admits that, while some lawyers told him he could fight this, he gave in to keep up his strong relationship with the family. Of course, that only brings to mind Churchill's quote:

An appeaser is one who feeds a crocodile--hoping it will eat him last.

Also:

You have enemies? Good. That means you’ve stood up for something, sometime in your life.

It's too bad Singer chose not to stand up more.

To be honest, the podcast is a little weak in that it doesn't go too deep into the legal issues here and how they can impact history, culture and research. Furthermore, it does little to explore the actual law and how far the Churchill estate is overreaching. Oddly, it seems to suggest that this is just "the way" that the UK's copyright laws work (not quite true) and then does a little section on the attempts by the UK government to reform the laws -- even though the UK government decided to reject the idea of including a US-style fair use exception.

Stephen Dubner then talks to Steve Levitt about copyright in general, and claims that his take is "un-economic" because he doesn't seem to care much for stringent enforcement of copyright, and would prefer to share his own works more widely. I don't see how that's un-economic at all. In fact, as Levitt notes, his own status goes up as the work is more widely shared, increasing all sorts of opportunities elsewhere. I actually found this part of the discussion kind of disappointing, as there were a bunch of interesting nuanced directions in which it could have gone, including a much deeper analysis of the economics of copying, but instead, they went with the standard line from people who are just exploring this topic for the first time, which I'll paraphrase as: "well of course copyright is important, and we don't want anyone copying our book, but perhaps it goes too far in some cases."

The parts on Churchill are interesting, and hopefully Dubner (and Levitt?) will follow up in more detail down the road. For example, it would be great for them to bring on Chris Sprigman and Kal Raustiala, who they've had guest-post for them in the past, considering they've written an entire book on these kinds of things.

Lost in all of the hype about the launch of Kim Dotcom's new Mega service was the fact that he's hired a new high profile lawyer, with a different focus. Some of the details were buried in Ars Technica's coverage of the Mega launch party, in which they mention the adding of Robert Amsterdam to the legal team:

Also circling is the latest addition to Dotcom’s ever-expanding legal team: Robert Amsterdam of Washington, DC and London-based Amsterdam & Partners. The human rights lawyer says his key work has been in Venezuela, Russia, and Nigeria. Now he's contracted by Kim Dotcom to investigate a possible human rights angle on the Megaupload case—in particular whether one human, former Senator and current MPAA head Christopher Dodd, breached Dotcom’s rights by going out of his way to engineer what Amsterdam said could be seen as a “contract prosecution.”

Amsterdam agrees his work could help Dotcom seek redress from the US government down the track. But his immediate aim is to publicize Dodd’s role. “This prosecution should not be afforded the presumption of regularity," he says. "The way this was done—the helicopters; the rappelling down the buildings [of Dotcom mansion]; the over-reaction—all of these are signs of a classic political prosecution.”

Amsterdam will spend the next two days interviewing the Megaupload team as part of his preparations for a “white paper” he will publish in around two months’ time.

This strikes me as a huge longshot for a variety of reasons, but it certainly makes for an interesting storyline to follow. If such an investigation actually does get somewhere, there could actually be blowback for those who led the charge against Dotcom. As it stood, it seemed unlikely that, even if the case fell apart, there would be any ramifications for those who championed the cause in the first place. Again, I find it highly unlikely that this exploration will lead anywhere, but Dotcom's legal team has done amazingly well on a variety of fronts to date, so perhaps they know more than has been made public already about all of this.

We already wrote about the recent filing in the EMI v. MP3Tunes case, in which Michael Robertson shows that (contrary to EMI's statements to the court) EMI regularly promoted its music by giving out free MP3s. However, I wanted to do a separate post looking at one specific email highlighted in the filing. It shows an email from 2008 from Stephen Gullberg, an employee of EMI Publishing, talking about marketing plans involving giving away free MP3 downloads. I've bolded the parts that struck me as particularly interesting. Gullberg is emailing with a counterpart at EMI:

Free Promotional MP3 of one song to the public for free download from Peter Moréns album (as do most indie labels). They would offer "Social Competence" for free download on touchandgorecords.com, Peter and Touch and Go's Myspace pages, plus encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site. We are being told that historically the track which is offered for free like this is usually still the top selling track in digital retail. They would like to offer this promotional MP3 download for nine months. After that initially period the promotional partners will replace the MP3 download with a stream for the duration of the license of the album including offering a stream of the song on their website and on their Myspace page and Peter's Myspace page, or until they decide to ask these partners to remove the stream.

The label has given us a further explanation of why they pursue this strategy. One promotional MP3 per album is the best way they can virally promote the album which will increase sales and thus revenue on the compositional side as well as the master recording side. This promotional technique has proven to be so effective, that virtually every free track they have issued from an album has maintained itself as the top selling track from the album. It also enables them to offer something from the album to the myriad of sites, blogs, podcasts out there that would be tempted to give away unauthorized materials, perhaps the entire album, if they do not have the option to feature a track that they offer to them. This control mechanism is vital to their methods of slowing piracy of albums.

And yet, all this time, the RIAA keeps insisting that free music is a problem? Even as employees at the labels knew years ago that free was "so effective" as a promotional technique that it helped sell the same track much more.

We recently covered some of the details of various "six strikes" policies being implemented by most of the large broadband providers in the US, noting that with Verizon's, it appeared that small businesses that offered free and open WiFi could get in trouble for doing so. TorrentFreak has followed up with Jill Lesser, the executive director of the Center for Copyright Information (CCI), the organization coordinating these plans, and discovered that this impact on small businesses is not an error, and Lesser does not seem to see a problem with it, arguing that offering such open and free WiFi is a violation of the terms of service for most small businesses.

“In addition, the terms of service on such accounts do not allow them to be used to provide free WiFi or ‘hotspots’ so the hypothetical cafe owner offering public WiFi will not be subject to the CAS if they are following their terms of service.”

Similarly, she says that if it impacts small businesses or home-based businesses that use residential accounts, she doesn't see it as a problem, since those businesses shouldn't "allow" their employees to "engage in copyright theft." Of course, it's not theft, but infringement -- and it's frustrating that someone like Lesser would misrepresent these things.

That said, her cavalier attitude towards these very common scenarios, which will have real impacts on a variety of small businesses, is unfortunate and dangerous. The importance of a fully working broadband connection to small businesses todays cannot be overstated. To suggest that all of this is okay because they're not following an almost universally ignored term in the terms of service on such accounts seems to be dismissing things way too simply.

The end result of this is likely to be a lot less public and open WiFi at a time when we actually need much more open access. That may not matter to the RIAA and MPAA -- who still don't understand the importance and value of internet access -- but it matters an awful lot to the pubilc and a variety of small businesses.

Over the weekend, in our post about Aaron Swartz, we highlighted Larry Lessig's quite reasonable anger at US Attorney Carmen Ortiz's failure to even suggest that she and her office might review their actions against Aaron Swartz to see if they were reasonable. He wasn't calling on them to necessarily repudiate their actions -- but to at least admit that they would review what they had done to determine if it was appropriate. Instead, Ortiz's statement took the hard line that what they had done was appropriate, full stop.

And, now, her office is continuing to stick to that hard line. No self-reflection. No review. No admission that it's even worth reviewing. Just a faith-based belief that everything they did was correct and they will continue to treat every case exactly the same going forward.

Ortiz’s spokeswoman, Christina DiIorio-Sterling, said last night the Swartz case won’t affect the office’s handling of other cases. “Absolutely not,” she said. “We thought the case was reasonably handled and we would not have done things differently.

“We’re going to continue doing the work of the office and of following our mission.”

Many others are calling on Ortiz, or her bosses in the Justice Department, to recognize just how much power they have over someone's life, and that this power must be used carefully. The response of Ortiz and her spokespeople seems to show not even the slightest sympathy or recognition that they have the power to destroy lives, and that such power needs to be used judiciously. It strikes me that someone who fails to have humility while in control of such power is someone who is simply not qualified to hold such an office.

In the middle of a much larger speech introducing his "Gun Violence Reduction Executive Actions," Obama threw in a little something for the videogame crowd:

Congress should fund research into the effects that violent video games have on young minds.

While it may seem like a shot across the bow of videogames to score some cheap political points, what Obama actually has in mind is a bit more subtle. (Make no mistake, though: this subject wouldn't have been broached if not for the Newtown shooting.)

Conduct research on the causes and prevention of gun violence, including links between video games, media images, and violence: The President is issuing a Presidential Memorandum directing the Centers for Disease Control and scientific agencies to conduct research into the causes and prevention of gun violence. It is based on legal analysis that concludes such research is not prohibited by any appropriations language. The CDC will start immediately by assessing existing strategies for preventing gun violence and identifying the most pressing research questions, with the greatest potential public health impact. And the Administration is calling on Congress to provide $10 million for the CDC to conduct further research, including investigating the relationship between video games, media images, and violence.

Two things worth noting in this paragraph:

The "Presidential Memorandum" lifts a moratorium on this sort of research by the CDC, something that has been in place for over 15 years. Kyle Orland at Ars Technica explains:

[T]he federal Centers for Disease Control have been prohibited from funding studies that "advocate or promote gun control" since 1996, when Congress cut the $2.6 million the organization had been using to fund gun injury research through its Center for Injury Prevention and Control. Further moves since then have prevented the CDC from even receiving federal crime data for gun research, and prohibited the National Institute of Health from doing gun violence research as well.

And why was this research prohibited? Depending on who you ask, it's either because the NRA didn't like guns being tied to injuries and death (Orland calls it a "chilling effect" brought on by Arthur Kellerman's study) or the study itself was severely flawed and skewed to fit the pre-existing bias of the director of the National Center for Injury Prevention and Control, which operated under the CDC's direction.

Secondly, the wording directs the CDC to focus on areas with the "greatest potential public health impact." The administration may namecheck current hot buttons like videogames and violent media, but as it's worded, the CDC has no instruction to start its work by assessing these areas. As Orland states, this one sentence is likely nothing more than a brief concession to the current political climate:

Making a brief mention of video game studies as a part of a $10 million funding request is a good way to pay lip service to these political concerns on both the left and the right without really making it a priority. If studying video game and media violence were actually a major focus of the president's gun control agenda, it would have a much more prominent place in both his remarks and his official funding requests. Instead, the real money the president is asking from Congress will go to more important things: $20 million for the National Violent Death Reporting System, $14 million for police and security training, $150 million for in-school mental health counselors, $30 million to develop school emergency management plans, and so on.

Overall, putting the CDC in charge is probably (in the parlance of government works) the "least worst" way to handle this. The CDC will have access to more mental health-related data than other existing entities, a factor that definitely needs to be considered. (But this factor also presents its own problems: it's entirely too easy to write off mass murderers as mentally defective. The idea of taking someone's life, much less multiple lives, is so repulsive to "normal" human beings that the kneejerk reaction is to blame it on mental illness. It's safe to say that normal people would never commit mass murder, but it's way too simplistic to assume that every perpetrator is mentally defective.) It should also have access to demographic and other environmental factors, which should give it a more rounded picture than the limited sample sizes and variables of smaller studies and surveys.

Another factor that makes the CDC a preferable choice is the fact that it's an existing agency. Turning this task over to a special committee would result in a room filled to capacity with appointees and their predispositions. (The argument can also be made that the CDC carries its own predispositions, but expecting a government directive, especially an executive order, to conjure up a completely impartial study is to show a level of faith the government simply doesn't deserve.)

Now, the downside.

Any conclusions the CDC comes to will be immediately suspect. No matter what it finds, the conclusions will be disputed. The presence or absence of a link between violent media and gun violence will only exacerbate the divide between both sides of the debate. To date, no link has been conclusively proven. This study's outcome will likely be more of the same. It's nearly impossible isolate people and "violent media" from the other factors that affect the equation. The CDC should be able to incorporate its existing knowledge in regards to risk factors, but the answers it comes up with will fail to satisfy everyone. Ultimately, it will change nothing, but it will have the power to inform government policy going forward and, depending on the political climate, it's likely that gossamer-thin correlation will be enough to justify legislation.

Then there's the tangled issue of gun control policy, something the CDC has waded into in the past. Again, any conclusions drawn will be contrasted against its history with the National Center for Injury Prevention and Control and its biased approach to the study of gun violence. (Particularly troublesome is a 1987 CDC report, in which the director of the NCIPC thought enough evidence existed to "confiscate all firearms from the general population" in order to prevent 8,600 homicides a year.) The administration has done a disservice to both groups (video game fans, gun owners) by making this study inseparable from a larger gun control proposal.

The best case scenario, like so much in government, is that nothing happens. The studies are proposed, the climate shifts and, like so much before it, it's discarded in favor of What's Ailing the Nation Now. While it would be interesting to see the CDC perform an in-depth study (especially if the data collected is made available to the public), the chance of a negative outcome (in terms of misguided legislation, etc.) is way too high.

On the whole, though, it is refreshing to see videogames treated as part of the media, rather than a wholly distinct scapegoat capable of destroying society on its own. Unfortunately, even with its rather brief appearance in the administration's set of proposals, it appears the government still wants to control media (as opposed to "the media") and this single paragraph could help rationalize unconstitutional measures.