Here is a rather egregious violation of basic free speech rights. For years, we've talked about how the class action process is quite frequently abused, such that it makes lawyers quite wealthy, while doing next to nothing for the "class" they're representing. In extreme cases, we've seen "settlements" that actually make the defendants in class actions better off, while still making the lawyers (of course) quite wealthy. The stories of companies being forced to pay up millions of dollars, with none of it going to actual "victims," are more common than you would imagine.

So, when Majed Moughni in Dearborn Michigan heard about such a class action settlement concerning McDonald's having sold non-halal Chicken McNuggets that were advertised as halal, he decided to protest the settlement and try to get others to do so. The settlement was what is known as a cy pres settlement, in which the lawyers get paid and the defendant agrees to give a chunk of money to charity, rather than to the class (about $700,000 in this case). There are, at times, good reasons for doing a cy pres award, but it can also be open to abuse. Settlement agreements, by law, have a period of time in which people are free to object to a settlement before it is approved, and Moughni was doing exactly that, if at times crudely, with a Facebook page that may have gone a bit far in its claims. Moughni was upset with the cy pres nature of the award, but also with the fact that there was no injunction that would block McDonald's from doing the same thing again.

However, as Paul Levy, who is now representing Moughni, makes clear in a blog post about the motion he filed in the case, the court deciding to issue a broad injunction against Moughni, barring him from talking about the case, while also forcing him to post the lawyers' view of the case, would appear to be a pretty blatant First Amendment violation:

The lawyers for the plaintiff class threatened Moughni with both a defamation suit and disciplinary charges (Moughni is a lawyer, although not by any means a specialist in class actions). Moughni would not back down, so the plaintiff’s lawyers asked the judge to shut down the page — or, more precisely, they asked that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said) (That is why I am not linking to my client’s Facebook page – it isn’t really HIS page any more. Let the parties do their own publicity.) And, they asked that Moughni be forbidden to make any statements that class members might see or hear, such as by talking about the litigation to the press which, in turn, might print stories from which class members might learn Moughni’s views.

The lawyers continued their claim that they had been defamed, but really, they said, this isn’t about us, this is about protecting the poor class members against having their confidence in the lawyers undermined, protecting public confidence in the court system, and preventing class members from being confused about whether they should object to having their claims for damages extinguished so that settlement funds could go to the charities (and the lawyers). The judge held a hearing a few days later; plaintiff’s counsel spoke his piece, McDonald’s lawyers chimed in with their agreement, but Moughni’s attempt to speak was rebuffed with a peremptory “Don’t you even” from the judge. And the judge ruled, granting the injunction almost exactly as requested.

As Levy notes, with class action settlements there is strong incentive for the lawyers from both sides and the judge to get the settlement approved. It gets a case off the docket and gets the lawyers paid. So this is a situation where all three of those parties have the incentive to team up against anyone who dares to raise questions about the settlement. In fact, Levy noted that when he contacted the lawyers, noting his own intention to represent Moughni, they threatened him with sanction too. Levy notes that Moughni's original Facebook post may not have been as carefully worded as one would hope, but in no way should that ever lead to a broad injunction, along with compelling speech one disagrees with, in response. From the filing:

Giving Moughni only a few days’ notice, the Court convened an emergency hearing; then, without hearing from Moughni, issued a prior restraint of unparallelled breadth, barring Moughni from making any public statements about an entire subject matter, even statements that were entirely truthful and not at all misleading. It further compelled him to place speech with which he fervently disagreed on his own web page; and it forbade him from dissemination, circulation or publication of any opt-out form or objection during the crucial ten-day period before the deadline for members of the class to decide whether to opt out or object. On a literal reading of the injunction, Moughni was barred even from speaking to his own wife and children about the settlement, and even from submitting an objection to the settlement on his own behalf.

While he was pro se, Moughni acknowledged that he is not an expert in class action procedure; as his counsel, we readily concede that some of his statements could have been worded more felicitously. But Moughni was not counsel for a named party; he spoke only as a member of the affected community, and the Court’s order holding him to standards that would have been inappropriate even for a lawyer in the case violated black-letter law against prior restraints of speech. The injunction should, therefore, be vacated immediately. In addition, during the crucial ten-day period before the opt-out or objection deadline, the order deprived the class of the opportunity to hear dissenting views about whether to go along with a settlement that potentially deprives them of valuable rights. The Court should, therefore, reopen the period for the class to respond to the notice, and should defer any decision about approval of the settlement until that time has expired.

Even if you agree that Moughni may have gone too far with some of his Facebook postings, completely denying his right to talk about and object to the settlement, while then forcing him to post information he disagreed with, seems like an egregious violation of his rights. As Levy notes back in his blog post, whether or not the actual settlement is a good one is somewhat besides the point:

Moughni has his own view, but our motion takes no position on the merits of the settlement: our only point is that Moughni ought to have the right to say what he thinks about the settlement, and that the remedy for speech claimed to be false is not less speech but more speech. In my own mind, I have come to no conclusion about the merits of the proposed settlement.

But that just leaves me wondering, if the settlement is so wonderful, why the lawyers felt they had to resort to suppressing critical speech instead of just putting their own replies into the marketplace of ideas. At the hearing for an injunction, they had reminded the Court of how attentive the national media press had been to their publicity about the settlement (115 national media outlets, and a hundred million viewers, they claimed); surely the media would continue to give them a platform.

Hopefully the court is willing to recognize its mistake and vacate the injunction quickly.

For many years, we've noted that the entire setup of ICANN rolling out new top level domains (TLDs) was a complete joke, often driven by ICANN members who were in positions to be the registrars and registers for those new domains. Thus, all they seemed to do was create money out of thin air for those companies, since there was no actual demand for the TLDs, but companies felt obligated to buy them up anyway, to "keep them out of the hands" of critics, scammers or others. And, certainly a big fear when ICANN decided to offer up its big "generic TLD" setup, whereby anyone could make a play for any new TLD, was that the whole thing was a boondoggle for domain registers and registrars with which to set up a whole bunch of new tollbooths.

However, a funny thing happened along the way. While there certainly were a bunch of those kinds of TLDs applied for (many with competing claims fighting for the right to cash in), what became more interesting was the fact that the list of applications was absolutely dominated by Google and Amazon seeking to gain control over a very long list of TLDs. In fact, we noted that in many cases, Google and Amazon were lined up head to head competing over who would gain control over those TLDs. For example, they're competing with each other (and with some others) for the rights to .book, .shop, .store, .free, .game, .search, .play, .movie, .show, .mail, .map, .spot, .talk, .wow, .you and .cloud. And both of those companies are going for a bunch of others where they're not competing with each other. Google, for example, wants (among other things) .car, .dad, .mom, .dog, .family, .fyi, .plus, .tour, .prod, .here, .prof, .phd, meme., .lol, .day, .love and more.

As you look down the list, you begin to realize that while the initial fear of registers and registrars shaking down everyone to buy new domain names to "protect" their trademarks was a legitimate concern, there was a second serious concern as well: that a bunch of these new gTLDs were not being applied for to set up a registry where anyone could obtain those kinds of domains, but rather to lock them up for one company's use. And while Amazon and Google are the most prominent players here, lots of other companies jumped in as well. Hasbro wants .transformers. Johnson and Johnson wants .baby (so do a bunch of others). Ralph Lauren wants .polo. Travelers Insurance wants the completely ridiculous .redumbrella, while Nationwide Insurance wants .onyourside. Monster Cable (of course) wants .monster.

While some of those more specific ones wouldn't have any demand for anyone else to register anyway, there is a growing concern that companies might lock up certain TLDs, rather than make them available for registering. I'm sure lots of car companies would like theirname.car. But would that be possible?

Apparently, ICANN -- whose boss has already admitted that they're in way over their heads on these new gTLDs -- is now considering whether or not such a use of a gTLD should even be allowed.

But companies such as Amazon, Google, Goodyear, L'Oreal and others also applied for a wide array of words and indicated that they would like to operate the registry as "closed" -- meaning they may not allow other firms to buy what are known as second-level domains.

Clearly, companies want to own and control generic words as domains so that they can offer their services. But with that comes the possibility of blocking competitors who want to attach their brand to a term. For example, Ford might want to buy ford.truck but be blocked from doing so by the owner of .truck.

The article quotes someone from a hosting firm who notes that "It is inherently in the public interest to allow access to ... new [generic top-level domains] to the whole of the Internet Community, e.g., .BLOG, .MUSIC, .CLOUD."

Of course, there is the flipside to this argument as well -- such TLDs that are simply locked up for a single company or service are also not on the market, meaning that they're not another in the long list of domains companies feel they "need to buy" purely for defensive reasons. Either way, at least one (still unnamed) applicant who is competing with a bunch of these companies for a few of the new gTLDs is hiring people to lobby Congress and the EU Parliament not to allow firms to lock up any new gTLD.

In the end, I think our original conclusion still stands: the whole gTLD process appears to be a continuing boondoggle for certain companies, whether it's to lock up certain TLDs or to sell off domains to people and companies who don't really want them, but feel compelled to pay up anyway.

Wikipedia gets, what I think is, a bad rap by the general public due to users being able to edit its pages. This isn't to say that there aren't ever problems, but I tend to think that the community does a pretty decent job of policing itself and much of the false-information-hand-wringing is much to do about nothing. Additionally, the benefits, both of all the good information on the site and the potential benefits of being a great Wiki editor, are far beyond any negative effects of false information. And, for anyone who does attempt to game the information on the site, the consequences can be awful.

Take, for instance, what has happened now that Geo Group, a company that runs for-profit prisons, has a spokesman running around trying to delete negative information about them from their Wikipedia page. This began shortly after Geo Group inked a deal with Florida Atlantic University for the naming rights to their football stadium, because nothing says irony quite like a prison name for college football, where the athletes are grossly exploited for the profit of the NCAA.

If you want a full litany of abuse, read the "controversies" section of Geo Group's Wikipedia page. But read it fast: Geo Group is desperately trying to wipe it before you see it. As their naming rights deal became national news, a Wikipedia user named Abraham Cohen attacking the page, clearing the entire "controversies" section and replacing it with, essentially, a PR packet. As first noted by the Huffington Post, Abraham Cohen is a spokesperson for Geo Group, and the new material contained multiple instances of the pronouns "we" and "our."

This, obviously, is seen as bad form on Wikipedia and editors almost immediately began fighting back, both restoring the deleted section and calling out Cohen. But Abe wasn't done. After the page was restored, an anonymous IP address which leads back to Geo Group's servers showed up on the page claiming that the PR information Abe had added wasn't PR information at all, but was an accurate reflection of the company's history.

The result of all this nonsense? Well, none of it is good for Geo Group. Deadspin picked up the story and there's little doubt their massive audience is now exponentially more aware of some of the company's more controversial moments, which include mistreatment of prisoners, withholding prisoner medication, withholding medical care for prisoners resulting in their deaths, and guards engaging in sexual intercourse with prisoners. Like me, it's likely that as of last week, most people didn't even know a company called Geo Group existed. But now, because they want to get into the football sponsorship business, and also because they think they can just remove negative information off of the internet, a whole lot of people are more informed about that negative information.

It seems like every day there's another report of problems with our food -- E. Coli in beef and packaged salads, Salmonella in canteloupe, Listeria in packaged sliced apples, etc. Worries about bacterial contamination in food is pretty common, but it seems like we should also be worrying about whether the food we're eating is really what we think it is. Recently, there was the scandal in the UK over beef products that contained horsemeat. But thanks to modern day technology, scientists are now able to test food products and determine whether they are indeed what they claim to be. Here are just a few examples.

• After that whole horsemeat scandal, Burger King has announced that it will be testing its burger patties for non-beef DNA, including horse, pork, and lamb. So far, it has been testing specifically for horse DNA and hasn't found any in its beef, but that doesn't necessarily mean it's free of other kinds of animals... [url]
• The US FDA has officially adopted DNA barcoding to detect seafood mislabeling. Think you're eating "white tuna" sushi? Maybe you're actually eating "escolar" which has been banned in Japan since 1977 because the Japanese government is concerned about its "toxicity". [url]
• A laser "isotope ratio-meter," which was originally designed to study carbon isotope levels on Mars, is now being used to test the purity of honey. This kind of laser analysis can even match the honey to the flowers of a specific geographic region. Honey is expensive, so it's often adulterated with cheaper ingredients, like sugar, malt sweeteners, corn or rice syrup, to name just a few honey substitutes. [url]

Dell reported earnings today and they feel a little pointless, as Dell is no longer particularly an earnings play, unless of course it is. Dan Primack is mad because of the irrelevancy of the exercise:

What Dell did not want to talk about, however, was its pending $28 billion buyout by company CEO Michael Dell and private equity firm Silver Lake Partners. It also chose not to provide guidance for further quarters, or even make Michael Dell available to analysts.

Apparently the company already thinks it’s been taken private. … Dell is asking shareholders to approve a $13.65 per share deal (plus a $0.16 per share dividend) that is being opposed by the company’s two largest outside shareholders. Wouldn’t such shareholders benefit from knowing how the company views its future financial prospects, before casting their ballots?

Ha, sure they would. But they can’t because it’s illegal. Not “illegal” in the sense of “against the law,” but “illegal” in the sense of “if they did it, Dell’s lawyers would have heart attacks and die, and then they’d have no lawyers, and they’d probably go do things that are against the law, so it ends up in the same place.” The thing is:

• Sometimes companies get earnings guidance wrong. Companies like Dell, even. Last year at this time, Dell said that it “expects non-GAAP earnings per share to exceed the record $2.13 it delivered in fiscal 2012 and expects to continue strong execution.” Actual non-GAAP EPS for fiscal 2013 were $1.72. Oops.
• One out of four people in the United States is employed in the industry of suing companies for getting things wrong in earnings reports, financial statements, etc.¹
• But! The U.S. has a law – the PSLRA safe harbor for forward-looking statements – that basically makes it hard for plaintiffs’ lawyers to sue companies for getting guidance about future earnings wrong: you have to either sue them for making false statements about past or present facts, or else meet a pretty high bar of showing that the guidance was intentionally false just to get in the door on a lawsuit.
• But! That law does not apply to “going-private transactions” like Dell’s LBO.²

So that is pretty much that. The plaintiffs’ lawyers who are already suing on behalf of Dell shareholders are also the ones – or, I mean, close relatives of the ones – who make it impossible for Dell to tell those shareholders what it thinks about future earnings. If it did disclose an outlook, and that outlook turned out too high (artificially inflating the stock!) or too low (selling it too cheap!), it would get horribly, horribly sued. So no outlook for shareholders: they are left with the board’s vague unease about Dell’s future prospects, but nothing quantifiable. Well done lawyers!

One more thing though.³ There’s a pretty good chance that Dell will release earnings guidance for 2013 and beyond. This will come in connection with its bankers’ fairness opinion disclosure in the merger proxy, probably next month. Because (1) it will need to disclose the fairness opinion and (2) that opinion will, if semi-competent, be based in part on Dell’s earnings projections, Dell will be forced to disclose those projections. But they’ll be projections as of the time the deal was signed early this month, not as of the time of the proxy next month (and certainly not as of the vote later this year), meaning that if Dell’s prospects improve or deteriorate in the interim they’ll be inaccurate – and they won’t be updated. And they’ll be heavily caveated as not “these are our projections” but rather “here are some numbers that our bankers had, we dunno how they got them, they mean nothing, don’t rely on them.”⁴

So: Dell can’t release current guidance that it stands behind, but it can release stale guidance that it disclaims. Which of course you are free to interpret as Dell’s guidance as you make up your mind about the merger. You just can’t sue over it.

Dell Reports Fourth Quarter, Full Fiscal Year Financial Results [Dell]
Hey Dell, what the hell? [Fortune / Dan Primack]
Dell results underpin buyout offer [FT]

1. NUMBERS APPROXIMATE.

2. Section 27A(b)(1)(E) if you’re following along at home. Here is an informal and a formal definition of “going private.”

3. Maybe two more things. IPOs, like going-private transactions, are not covered by the safe harbor, so companies are very careful about putting guidance in an IPO prospectus. Which is why their underwriters kiiiiiiind of do it for them, via research notes with earnings estimates based on meetings with the company. One thing leads to another and you get the Facebook situation, where Facebook gives informal guidance to analysts, they use it in their initiating reports, Facebook updates that guidance late in the game, only favored clients get the updated numbers, etc. etc. You could imagine Dell being more forthcoming with its outlook in one-on-one meetings to persuade big investors to vote for the deal than it is in its written, public, SEC-filed earnings release.

4. We talked recently about the Getco deal for Knight; here is the analogous disclosure and caveating there:

GETCO does not as a matter of course make public its long-term projections as to future revenues, earnings or other results due to, among other reasons, the uncertainty of the underlying assumptions and estimates. However, GETCO is including this unaudited prospective financial information because it was, among other information, made available to Knight and Sandler O’Neill in connection with their evaluation of the mergers. In addition, certain of the unaudited prospective financial information was also made available to BofA Merrill Lynch in connection with its evaluation of the mergers. The inclusion of this information should not be regarded as an indication that any of KCG, GETCO, BofA Merrill Lynch, Sandler O’Neill, Knight or any other recipient of this information considered, or now considers, it to be predictive of actual future results. GETCO reviews and updates its internal projections regularly and has revised its internal projections included in this joint proxy statement/prospectus since December 2012 based on, among other things, actual experience and business developments. Neither GETCO nor KCG is under any obligation to update prospective financial data included in this joint proxy statement/prospectus and does not intend to do so, other than as required by applicable law.

The unaudited prospective financial information was, in general, prepared solely for internal use and is subjective in many respects and reflects numerous judgments, estimates and assumptions that are inherently uncertain in prospective financial information of any kind. As a result, neither GETCO nor KCG provides any assurance that the prospective results will be realized or that actual results will not be significantly higher or lower than estimated.

It goes on in that vein for a while.

Other posts from Dealbreaker:

• Pam Anderson-Backed Investment Opportunity May Not Have Been What It Seemed
• SEC Ruins One Anonymous Swiss Person’s Lucky Day
• Banks Doing Too Much, Too Little Lending

Kevin Collier over at the DailyDot claims he's got it on good authority that the "six strikes" system, officially known as the Copyright Alert System, officially kicks off on Monday, many months later than scheduled. For whatever reason, the organization behind the program, the Center for Copyright Information, has been insisting for some time that there was no official rollout date, and the various ISPs would be individually choosing when to turn on the random assortment of punishment mechanisms made available to copyright holders based entirely on accusations, not conviction or other proof. Apparently, what they meant was that everyone would roll it out in a single week, but on different days. Because that makes so much sense.

The ISPs—industry giants AT&T, Cablevision, Comcast, Time Warner, and Verizon—will launch their versions of the CAS on different days throughout the week. Comcast is expected to be the first, on Monday.

So, now we get to watch people get falsely accused, those with open WiFi suddenly have to fear bogus slow downs to their networks and other assorted collateral damage. Oh, and does anyone actually expect to see a sudden spike in "sales"?

Oh, and the Center for Copyright Information has put up a snazzy new website and video over some non-descript smooth jazz that I'm sure they licensed, and which practically screams the following basic message (note: message paraphrased): "Hey, we're just your friendly neighborhood copyright maximalists, out here trying to make friends and, oh, oops, we just wanted to let you know, in the friendliest way possible, that we think you're lying, thieving pirates, and we'd really like it if you stopped, or we might have to make your internet connection completely useless. But we don't want to have to do that, because we're all friends here, enjoying the internet. Isn't the internet great?" The video makes a few blatantly ridiculous claims, including suggesting that they have some foolproof technology for seeing whenever you infringe. They claim that the system is designed to "support the creative work that we all love and enjoy." Which is kind of amusing, since nothing in the system is about giving people a reason to buy. Just a reason to get pissed off at ISPs and copyright holders for making accusations. I'm sure that's going to convince so many people to buy.

A few weeks ago, we noted that not only did Judge Otis Wright not buy Prenda Law's Brett Gibbs' ridiculous claims concerning the mysterious Alan Cooper, but that Gibbs was facing sanctions, including the possibility of jailtime for his actions in the case. Gibbs did the smart thing and found himself a lawyer of his own to respond to these allegations, though the response raises a lot more questions than it answers, and seems primarily focused on throwing Prenda itself under the bus, basically arguing that Gibbs was just a lawyer hired by Prenda, doing whatever the client asked. There's also the admission that he's never met Alan Cooper, and so cannot comment on which Alan Cooper is in charge of AF Holdings, and whether or not there really is an Alan Cooper at AF Holdings at all (which does little to explain Gibbs' silly response to being asked about Cooper earlier in the case):

I have never met Alan Cooper, and do not know what the extent of Mr. Cooper's role is in A F Holdings aside from seeing a signature from an "Alan Cooper" on the copyright assignments and pleadings. Based on the assignment agreement, A F Holdings held the valid and exclusive rights to reproduce and distribute the film Popular Demand. I was not present when the assignment agreement was executed. I also never had any direct contact with either Raymond Rogers or Alan Cooper. I have never executed a document as "Alan Cooper." I did not play a role in or have knowledge of the assignment transaction at issue. Senior members of S & H provided the assignment agreement to me and informed me that the copyright assignment was a true and correct copy of the copyright assignment and to include it as an exhibit in complaints filed on behalf of A F Holdings L L C . Before filing any such complaints, I confirmed that A F Holdings L L C was in fact listed as the valid copyright holder.

But, really the key point of Gibbs' filing seems to be blame Prenda, not me:

I have never had a financial or fiduciary (i.e., ownership) interest in A F Holdings. AF Holdings was a client of S&H and then Prenda. The face-to-face and direct interactions between S&H and later Prenda with A F Holdings were handled by the senior members of the law firms and not me.

As for the fact that he "verified" that Cooper had signed stuff? He says he either saw it, or maybe someone at Prenda just told him it was signed:

I confirmed the existence of the client-executed verification either by seeing a copy of the signed verification, or at the very least, being informed by a representative of S&H or Prenda that a signed verification was in the possession of S & H or Prenda.

Oh, and he also claims that he asked Prenda for the original copy of Alan Cooper's signature... but Prenda claims that it no longer has it. Uh huh.

In Case No. 84, Mr. Pietz first asked for a copy of Mr. Cooper's verification to the petition to perpetuate testimony on or about December 2012, well after the petition had been discharged. Given the length of time since the case was discharged, I was informed and understand that S&H (and later Prenda) no longer has a copy of Mr. Cooper's verification to the petition to perpetuate testimony.

Law firms (real ones, that is) tend not to throw out things like original documents with signatures on them.

Gibbs' filing then goes on to respond to the other issues raised by the court pointing out that Prenda needed to have more proof of people's involvement beyond just an IP address, trying to explain that they really did do more research. However, as the folks at FightcopyrightTrolls have been pointing out, his explanations are highly suspect. For example, Gibbs claims that he had evidence to believe that one of the people he demanded payment from was the likely infringer by looking at Google Maps and determining that his household WiFi was unlikely to be accessible by neighbors. But, a commenter at FCT quickly did the same Google Maps search and points out that there are probably 10 to 30 households in range for a typical WiFi router.

Opposing counsel Morgan Pietz wasted little time in responding in great detail, reiterating all of the details of the game that Prenda and Brett Gibbs have been playing. It's a good read.

What seems increasingly clear though is that Prenda, and its “of counsel” here, Mr. Brett Gibbs, have crossed the Rubicon in these cases, by resorting to fraud, which includes identity theft, sham offshore shell companies, and forged documents.

Pietz also points out that Gibbs apparently directly lied to the court. The court had ordered Gibbs to stop discovery (i.e., trying to uncover details of those they were trying to track down information on, in order to send shakedown letters), but Gibbs continued to do so. When confronted on this Gibbs claimed he interpreted the order to only mean that he couldn't do "formal discovery efforts such as pressuring the ISPs to respond to the subpoenas that had been served." The problem there was twofold. First, the court's order clearly precluded much more than that and more importantly, Gibbs didn't even stop pressuring ISPs, even though he directly claims he understood the court's orders to mean he had to stop.

Yet as confirmed by at least one ISP—AT&T—notwithstanding this representation, Prenda did in fact “pressur[e] the ISPs to respond to the subpoenas” notwithstanding Mr. Gibbs’s interpretation of the stay order.

One gets the feeling this is not going to end well for Gibbs or Prenda Law.

Just a couple days ago, we were talking about the newly proposed FASTR bill, which would require federal agencies with greater than $100 million in research funds to require the end results of that research to be published in open ways within six months of publication. As we've noted, for years, the NIH (National Institute for Health) has had a plan that says all the research it funds needs to be published via open access after 12 months.

However, before anything happened with FASTR, it appears that the White House has stepped in to more or less push a fairly similar agenda via a White House policy memo. This comes in response to one of those We The People... petitions (which we had suggested you support). Dr. John Holdren, the Director of the White House Office of Science and Technology Policy, explained this rather big change in policy pretty clearly:

I have issued a memorandum today (.pdf) to Federal agencies that directs those with more than $100 million in research and development expenditures to develop plans to make the results of federally-funded research publically available free of charge within 12 months after original publication. As you pointed out, the public access policy adopted by the National Institutes of Health has been a great success. And while this new policy call does not insist that every agency copy the NIH approach exactly, it does ensure that similar policies will appear across government.

The interesting part is that, while this plan has the same 12 month delay as the NIH plan, rather than the 6 months in FASTR, it looks like the White House is really pushing agencies to go further. They're not just asking for the papers to be open access, but the more useful data as well:

In addition to addressing the issue of public access to scientific publications, the memorandum requires that agencies start to address the need to improve upon the management and sharing of scientific data produced with Federal funding. Strengthening these policies will promote entrepreneurship and jobs growth in addition to driving scientific progress. Access to pre-existing data sets can accelerate growth by allowing companies to focus resources and efforts on understanding and fully exploiting discoveries instead of repeating basic, pre-competitive work already documented elsewhere. For example, open weather data underpins the forecasting industry and provides great public benefits, and making human genome sequences publically available has spawned many biomedical innovations—not to mention many companies generating billions of dollars in revenues and the jobs that go with them. Going forward, wider availability of scientific data will create innovative economic markets for services related to data curation, preservation, analysis, and visualization, among others.

That part is big news, though most people will only focus on the open access to publications part. As he states, open access to data really helps power all sorts of interesting companies and research. In the past, publications have often tried to claim copyright over the data produced by experiments as well (even though you technically can't claim copyright over pure data). I've heard of researchers who have had to redo their own experiments because they had signed away the "rights" to their own data from previous experiments. That's not just wasteful, it's insane. Requiring open access to data is a massive step in the right direction. Kudos to the White House for doing this.

Next up: can we get them to realize the same thing should apply to patents on federally funded research as well, and that such things should not be allowed? Or is that just asking too much?

You may recall a couple of years ago, we wrote about the latest in a series of ridiculous lawsuits filed by Lindsay Lohan, whose lawyer seems to have a rather creative way of interpreting the law at times. This time, it involved suing the rapper Pitbull for mentioning Lohan in a song. Pitbull has a song with the lyric: "I got locked up like Lindsay Lohan." Lohan's lawyers tried to argue that this violated Lohan's publicity rights under NY state law (a law designed to stop unauthorized product endorsements), as well as defamation law. The lawsuit was absolutely ridiculous from the very beginning, but took a slight detour into the absurd when Lohan's lawyer, Stephanie Ovadia, responded to one of Pitbull's filings with the most bizarre filing you'll ever read. The entire thing was basically long cut-and-pastes from various online sources, with no credit given whatsoever. Many of the copied passages had nothing to do with the lawsuit at hand, and some others were simply completely nonsensical. Like this one:

The threshold of consciousness is the dividing line between something that can be processed by the conscious mind and something that enters the subconscious mind without any such processing. A hidden message is not intense enough to produce a sensation but has sufficient intensity to influence the behavior and mental processes of one's mind. The decisions the conscious mind makes are based upon the knowledge and reasoning skills one has developed through experience and education....

What that had to do with the lawsuit was anyone's guess, but it was copied from an online student essay.

Earlier this week, the judge (not surprisingly at all) dismissed the lawsuit on First Amendment grounds:

The Supreme Court has made clear that "[m]usic, as a form of expression and communication, is protected under the First Amendment." Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Thus, because the Song is a protected work of art, the use of plaintiff’s name therein does not violate the New York Civil Rights Law.

Furthermore, the court went on to note that even if the lawsuit wouldn't have been thrown out on purely First Amendment grounds, the case had no chance, because Pitbull's use of Lohan's name wasn't for advertising purposes, or to imply she somehow endorsed the song. Lohan's lawyer tried to argue that because Pitbull made money from the song, and Lohan's name was in it, the use was "purposes of trade," which is (yet again) a rather unique interpretation of what the law is clearly about, so the court pointed out that this, too, was hogwash.

The fact that the Song was presumably created and distributed for the purpose of making a profit does not mean that plaintiff’s name was used for “advertising” or “purposes of trade” within the meaning of the New York Civil Rights Law.

Going one step further, the court noted that even if the First Amendment didn't suffice, and even if they found that the user of Lohan's name was for the purposes of advertising or trade, the case still would have failed:

Even if the Court were to conclude that plaintiff had sufficiently alleged that her name was used in the Song for purposes of advertising or trade, the isolated nature of the use of her name would, in and of itself, prove fatal to her New York Civil Rights Law claim. “Courts in New York are reluctant to impose liability under §§ 50-51 for incidental use of a person’s name or image because of the danger of imposing an uncalled-for burden and hazard on publishers.”

The court also dismissed Lohan's other ridiculous claims, including "unjust enrichment" and "intentional infliction of emotional distress," basically stating that neither claim appears to make any sense at all.

Pitbull's lawyers had hit back and asked for sanctions against Ovadia for her rambling cut-and-paste legal filing, and they got those too. Ovadia tried to defend herself first by throwing another lawyer in her office under the bus and saying it was all his fault, but then also that the filing was an early draft that had been filed incorrectly. The only problem? The "final" draft that she offered up as a replacement still contained much of the plagiarized text. So she was sanctioned $750 for lying to the court:

The Redline demonstrates that, contrary to Attorney Ovadia’s assertions in the Letter, not one of the changes in the proposed amended opposition would have corrected or cured the plagiarized portions of the Opposition. Instead, most of the changes to the plagiarized portions of the proposed amended opposition were merely corrections and insertions of citations to case law.... Attorney Ovadia, who is represented by her own counsel in connection with the sanctions motion, does not respond to the allegation that her representation in the Letter – i.e., that the proposed amended opposition would have “obviated any alleged plagiarism concerns” – was, in fact, untrue. Based on the fact that Attorney Ovadia made this undisputedly false representation to the Court, and pursuant to the Court’s inherent powers, Attorney Ovadia is hereby fined in the amount of $750.00. This amount shall be paid by Attorney Ovadia and shall be made payable to the Clerk of the Court on or before March 22, 2013.

And then there was another $750 sanction for the plagiarism itself. The court practically laughs off Ovadia's attempt to throw her colleague under the bus as well. Ovadia tried to claim that sanctions weren't appropriate because "additional fact-finding would be necessary" to determine who really wrote the filing. The court points out, in response, that Ovadia was the one who signed the filing, so the responsibility is all on her:

With respect to defendants’ allegations that the majority of the Opposition was plagiarized, plaintiff and her counsel do not deny these assertions. Indeed, defendants’ submissions to the Court evidence that almost the entire text of the Opposition is taken from unidentified, unattributed sources. (See Jimenez Decl., Ex. A.) Obviously, this type of conduct is unacceptable and, in the Court’s view, is sanctionable pursuant to its inherent powers. Attorney Ovadia takes the position that the Court should refrain from imposing sanctions because “additional fact-finding will be necessary” to determine which of plaintiff’s two attorneys is responsible for the plagiarism and/or the degree to which any such responsibility should be apportioned between them. (See Ovadia’s Sanctions Opp’n at 9.) The Court recognizes that Attorneys Ovadia and Ahuja dispute which of them drafted the final version of the Opposition that was ultimately filed. It is clear, however, that only Attorney Ovadia signed the Opposition. In the Court’s view, this leaves Attorney Ovadia solely liable for the sanctionable plagiarism. Cf. Kiobel v. Millson, 592 F.3d 78, 87 (2d Cir. 2010) (“‘The person signing, filing, submitting, or advocating a document has a nondelegable responsibility to the court, and in most [situations] should be sanctioned for a violation.’”) (quoting Fed. R. Civ. P. 11 advisory committee note). Accordingly, pursuant to the Court’s inherent power, Attorney Ovadia is hereby fined an additional $750.00 which shall also be made payable to the Clerk of the Court on or before March 22, 2013.12

While the court notes that the $1,500 in sanctions is relatively small, it also notes that it chose this number accounting for the additional "negative impact on Attorney Ovadia’s reputation and livelihood that will inevitably arise from her involvement in this situation."

The one area where Pitbull's lawyers failed was in their attempt to force Lohan to also have to pay their fees. The court noted that despite Lohan's claims failing, they didn't fail at a level that would have made them "frivolous." Also, the court said that the plagiarized filing didn't lead to any real additional work for Pitbull's lawyers. The court also slaps the wrists of Pitbull's lawyers for failing to directly raise the issue of the plagiarized filings with Ovadia, despite corresponding with her after realizing that the filing was plagiarized.

Not long ago, someone I know who had no medical insurance, but who had some serious medical issues, ended up in the hospital for a few weeks. Some procedures needed to be done, but nothing that most people would consider too "drastic." Eventually, the bills showed up, and they were in the range of half a million dollars, for someone who did not have anything close to that. You hear stories about crazy medical bills, but what very few people realize is that the reality of hospital bills can often be orders of magnitude more crazy than what most people expect. Just last week, a friend of mine posted the following image to Facebook, noting that when his normal medical insurance billing statement has room for seven digits (i.e., millions of dollars) something is clearly screwed up. A few years back, the folks at Planet Money tried to dig in and demystify some of the secrets of medical bills, but that only scratched the surface.

Stephen Brill has a very long, but absolutely gripping, detailed analysis of the insanity of medical billing for Time Magazine. It's a truly astounding piece, that hopefully will open many people's eyes. It will take a while, but find some time to read it, just to get a sense of how totally screwed up the entire system is. I've been working on some other stories about some really sketchy activity on the pharmaceutical side of things, but this article really shines a light on the disgusting underbelly of the healthcare system. As Brill notes, so much of the debate about healthcare is really focused on "but who will pay for these things." But what it tends to ignore is why are the prices absolutely insane.

When medical care becomes a matter of life and death, the money demanded by the health care ecosystem reaches a wholly different order of magnitude, churning out reams of bills to people who can’t focus on them, let alone pay them. Soon after he was diagnosed with lung cancer in January 2011, a patient whom I will call Steven D. and his wife Alice knew that they were only buying time. The crushing question was, How much is time really worth? As Alice, who makes about $40,000 a year running a child-care center in her home, explained, “[Steven] kept saying he wanted every last minute he could get, no matter what. But I had to be thinking about the cost and how all this debt would leave me and my daughter.” By the time Steven D. died at his home in Northern California the following November, he had lived for an additional 11 months. And Alice had collected bills totaling $902,452. The family’s first bill — for $348,000 — which arrived when Steven got home from the Seton Medical Center in Daly City, Calif., was full of all the usual chargemaster profit grabs: $18 each for 88 diabetes-test strips that Amazon sells in boxes of 50 for $27.85; $24 each for 19 niacin pills that are sold in drugstores for about a nickel apiece. There were also four boxes of sterile gauze pads for $77 each. None of that was considered part of what was provided in return for Seton’s facility charge for the intensive-care unit for two days at $13,225 a day, 12 days in the critical unit at $7,315 a day and one day in a standard room (all of which totaled $120,116 over 15 days). There was also $20,886 for CT scans and $24,251 for lab work. Alice responded to my question about the obvious overcharges on the bill for items like the diabetes-test strips or the gauze pads much as Mrs. Lincoln, according to the famous joke, might have had she been asked what she thought of the play. “Are you kidding?” she said. “I’m dealing with a husband who had just been told he has Stage IV cancer. That’s all I can focus on … You think I looked at the items on the bills? I just looked at the total.”

If we want a real fix to the mounting costs of healthcare (which are a massive drain on the economy), we need to start there. Unfortunately, those who are making out like bandits from this system have tremendous political clout, and they have no interest in letting the easy money go away.

Throughout the piece, Brill repeatedly discusses the "chargemaster," which is basically the internal price list at every hospital, which has no basis in reality whatsoever, but which the poorest patients, and those without insurance, or with limited insurance, are often hit over the head with. Throughout the article, Brill details over and over and over again how hospital administrators and spokespeople all refused to address the chargemaster at all, constantly blowing it off as no big deal, because so few people actually pay the list price. But they completely ignore a bunch of points, including that some patients are charged upfront for these things, and no one is ever told that the prices are negotiable, even though they all are.

What you see is a system where supposedly "non-profit" and "charitable" institutions are raking in massive profits -- while still begging the public for donations, and suggesting that any effort to reign in costs would put people at risk by cutting back on necessary hospital services. At times, these statements are so obviously bullshit, that it's really sickening.

In December, when the New York Times ran a story about how a deficit deal might threaten hospital payments, Steven Safyer, chief executive of Montefiore Medical Center, a large nonprofit hospital system in the Bronx, complained, “There is no such thing as a cut to a provider that isn’t a cut to a beneficiary … This is not crying wolf.”

Actually, Safyer seems to be crying wolf to the tune of about $196.8 million, according to the hospital’s latest publicly available tax return. That was his hospital’s operating profit, according to its 2010 return. With $2.586 billion in revenue — of which 99.4% came from patient bills and 0.6% from fundraising events and other charitable contributions — Safyer’s business is more than six times as large as that of the Bronx’s most famous enterprise, the New York Yankees. Surely, without cutting services to beneficiaries, Safyer could cut what have to be some of the Bronx’s better non-Yankee salaries: his own, which was $4,065,000, or those of his chief financial officer ($3,243,000), his executive vice president ($2,220,000) or the head of his dental department ($1,798,000).

Sometimes these stories make you wonder if some of these "charitable" organizations deserve to be called charities at all:

Mercy Hospital is owned by an organization under the umbrella of the Catholic Church called Sisters of Mercy. Its mission, as described in its latest filing with the IRS as a tax-exempt charity, is “to carry out the healing ministry of Jesus by promoting health and wellness.”.... The overall chain had $4.28 billion in revenue that year. Its hospital in Springfield, Mo. (pop. 160,660), had $880.7 million in revenue and an operating profit of $319 million, according to its federal filing. The incomes of the parent company’s executives appear on other IRS filings covering various interlocking Mercy nonprofit corporate entities. Mercy president and CEO Lynn Britton made $1,930,000, and an executive vice president, Myra Aubuchon, was paid $3.7 million, according to the Mercy filing. In all, seven Mercy Health executives were paid more than $1 million each. A note at the end of an Ernst & Young audit that is attached to Mercy’s IRS filing reported that the chain provided charity care worth 3.2% of its revenue in the previous year. However, the auditors state that the value of that care is based on the charges on all the bills, not the actual cost to Mercy of providing those services — in other words, the chargemaster value. Assuming that Mercy’s actual costs are a tenth of these chargemaster values — they’re probably less — all of this charity care actually cost Mercy about three-tenths of 1% of its revenue, or about $13 million out of $4.28 billion.

While I actually think it's a bit of a cheap shot to repeatedly show CEO salaries, the real issue is how these hospitals can ratchet up the prices with no basis in reality, simply because they know they can do so. Even if they recognize most people don't pay those fees, they still send such bills out there, which creates a tremendous amount of stress.

The stories of obvious overcharging fill the piece and demonstrate a key point in all of this. For all the talk about "free market" healthcare, nothing in our healthcare system is anything resembling a free market. You have truly "captive" customers with almost no price elasticity, combined with a system whereby it's rare for the buyers to actually be the ones "paying." If you were to design the most fucked up economic experiment ever, this might be it. And you can see the results.

Steve H.’s bill for his day at Mercy contained all the usual and customary overcharges. One item was “MARKER SKIN REG TIP RULER” for $3. That’s the marking pen, presumably reusable, that marked the place on Steve H.’s back where the incision was to go. Six lines down, there was “STRAP OR TABLE 8X27 IN” for $31. That’s the strap used to hold Steve H. onto the operating table. Just below that was “BLNKT WARM UPPER BDY 42268” for $32. That’s a blanket used to keep surgery patients warm. It is, of course, reusable, and it’s available new on eBay for $13. Four lines down there’s “GOWN SURG ULTRA XLG 95121” for $39, which is the gown the surgeon wore. Thirty of them can be bought online for $180. Neither Medicare nor any large insurance company would pay a hospital separately for those straps or the surgeon’s gown; that’s all supposed to come with the facility fee paid to the hospital, which in this case was $6,289.

Or how about this one:

His bill — which included not only the aggressively marked-up charge of $13,702 for the Rituxan cancer drug but also the usual array of chargemaster fees for basics like generic Tylenol, blood tests and simple supplies — had one item not found on any other bill I examined: MD Anderson’s charge of $7 each for “ALCOHOL PREP PAD.” This is a little square of cotton used to apply alcohol to an injection. A box of 200 can be bought online for $1.91.

The article is chock full of these kinds of stories. They're not anomalies, nor are they extreme outlier cases. They happen quite frequently. It's standard operating procedure. And, contrary to what most people think, these things don't just apply to those who are without insurance. While insurance may protect against some of these situations, often people discover that their insurance doesn't cover nearly as much as they expected (in part because they never think that bills could possibly be so high. And, while some hospitals are more open to forgiving massive debt for those who are poor, when those who thought they were comfortably in the middle class suddenly realize they may owe hundreds of thousands of dollars unexpectedly, the hospitals are a lot less sympathetic.

Not surprisingly, nearly every hospital that Brill tried to speak to about all this refused to talk about it. Sometimes they gave completely bogus excuses, such as claiming that it's "against the law" to discuss why they charge massive markups on basic items:

Wright said the hospital’s lawyers had decided that discussing Steve H.’s bill would violate the federal HIPAA law protecting the privacy of patient medical records. I pointed out that I wanted to ask questions only about the hospital’s charges for standard items — such as surgical gowns, basic blood tests, blanket warmers and even medical devices — that had nothing to do with individual patients. “Everything is particular to an individual patient’s needs,” she replied. Even a surgical gown? “Yes, even a surgical gown. We cannot discuss this with you. It’s against the law.” She declined to put me in touch with the hospital’s lawyers to discuss their legal analysis.

In one case where he finally got an administrator to speak about the chargemaster rates, the answers were astounding, and either completely mendacious or disconnected from reality (I'm not sure which one is scarier).

“We think the chargemaster is totally fair,” says William Gedge, senior vice president of payer relations at Yale New Haven Health System. “It’s fair because everyone gets the same bill. Even Medicare gets exactly the same charges that this patient got. Of course, we will have different arrangements for how Medicare or an insurance company will not pay some of the charges or discount the charges, but everyone starts from the same place.” Asked how the chargemaster charge for an item like the troponin test was calculated, Gedge said he “didn’t know exactly” but would try to find out. He subsequently reported back that “it’s an historical charge, which takes into account all of our costs for running the hospital.”

It's fair because we charge absolutely everyone insane amounts that have no basis in reality, and which we mark up ridiculously -- and then we offer discounts to many, but certainly not all patients. This answer is bullshit. Not everyone starts from the same place, but even if we grant that ridiculous claim, having everyone start at insane prices doesn't make it fair. It still makes it a giant scam.

And, of course, the hospitals know they're getting away with all sorts of crap here. Even when they're talking about things like Medicare, where the government is the "buyer," the situation is crazy. While the hospitals, pharma companies and others complain that government supported healthcare artificially deflates revenue and limits their ability to provide patient care, the article goes into a fair bit of detail about how that's hogwash, and the hospitals (and doctors) are massively profiting off of the taxpayer -- sometimes in completely cynical ways.

“One of the benefits attending physicians get from many hospitals is the opportunity to cruise the halls and go into a Medicare patient’s room and rack up a few dollars,” says a doctor who has worked at several hospitals across the country. “In some places it’s a Monday-morning tradition. You go see the people who came in over the weekend. There’s always an ostensible reason, but there’s also a lot of abuse.”

If you know even the slightest bit about basic economics, the deeper you look at this system, the more and more you realize how insane it is. Nearly every single incentive is skewed, often dangerously so. The system is more or less designed to be abused, while making it increasingly difficult for people to get reasonable care. I'd argue that it may be worse than if you asked a bunch of economists to design the worst possible system of incentives.

And we're more or less stuck with it. For all the debate and the fight over reform, the reform package we got really did next to nothing to address any of these kinds of underlying issues. And this has nothing to do with silly claims of whether or not it's "socialist". The entire healthcare system, before and after the recent health reform, does not resemble anything even remotely close to a free market system. And, while there are some who argue that healthcare itself shouldn't be subjected to free market forces, but rather towards what provides the best care, it's not like the system is designed to match up with that belief either.

The system is completely broken. In researching other aspects of the system, I'd already come to the conclusion that it should be scrapped entirely, with something completely different put in its place, but this article just helps take that belief to another level. And, the scary thing is that the chances of that happening are basically zero. We're stuck with this system, in part because the economic incentives are screwed up so much that it's ripe for widespread abuse. And when you have so many billions of dollars flowing, with a small group of folks profiting massively from that, there's simply no chance they'll allow for any real changes.

And, the really scary thing is that the bits I've talked about here really only scratch the surface of Brill's overall article. And, his article really only touches on one part of the problem. It is a key part of the problem, but it's still just one part. And each of the other parts tend to look equally insane when you start digging deeper. We are in the middle of the most horrifying economic experiment ever constructed with our healthcare system, and it's only impacting almost everyone's lives. Oh yeah, and there's no real interest in taking on the actual problems.

We've seen some pretty brazen copyright trolling efforts lately, but this latest one may be the most extreme. FightCopyrightTrolls has the story of the "Internet Copyright Law Enforcement Agency," which has some features like a normal copyright troll, and some that go way, way beyond trolling to out and out fraud. I will note, however, that as I was writing this article, it appears that whoever is behind this bit of fraud has apparently decided to run away. The ICLEA website now states:

Important Notice

Effective immediately, the Internet Copyright Law Enforcement Agency has ceased operations. Please disregard any notices you received from us, and please do not send us any payments.

Here's what the website looks like as I type this: And here's what it looked like a few hours ago: But, let's explore just a bit of what they were doing before FCT exposed them. First off, by both the name and the terminology they clearly were implying to people that they were a government agency rather than a private company. The name itself -- incorporating both "law enforcement" and "agency" implied as much. They used a seal that one might incorrectly interpret to be a law enforcement shield. They also were using a virtual office space based in Washington DC, not far from many federal buildings. Originally, their website claimed that they were

... an international organization that helps to enforce copyright laws on the internet worldwide by informing potential copyright law violators regarding the serious possible criminal and/or civil liability they may face, and providing them with an opportunity to help them comply with copyright laws.

In the letters they sent out, they went even further, claiming:

We work with law enforcement agencies and strategic partners around the world to enforce copyright laws, and to help prosecute individuals and companies who violate these laws.

Also, the letter repeatedly suggests that individuals may face criminal charges for merely downloading a song. The letter (which we've reproduced below) does correctly call out the section of copyright law that highlights criminal penalties, but conveniently leaves out the part that defines what qualifies for criminal enforcement. Oh, and the fact that a private bogus company pretending to be a government agency can't bring criminal charges.

Like all trolls, they demand payment to "avoid further action from being taken against you." From a quick search online, it appears that a bunch of people started receiving these letters in the last week or so, with varying amounts being demanded (generally between $300 and $500, it appears), and with payment being required by March 1st. One hopes that no one actually paid up, though it's likely that some did.

Again, the full letter is below, and even with the company claiming that it has now "ceased operations," some questions remain. It's not at all clear who was behind this. The letters come from a "David Walsh," though it's anybody's guess as to the person's real name. The office, again, was a virtual office, so the person behind this could be anywhere. What's not clear is how they got the information about specific downloads which it could use to accuse people. There are a few different theories floating around, but until there's more proof one way or the other, it remains pure speculation.

Either way, it seems pretty clear that this has gone beyond your everyday copyright troll. While they often go pretty close to the line of "extortion," they can at least claim some marginal legitimacy by actually representing copyright holders. With the ICLEA, that doesn't appear to be true at all. They're misrepresenting who they are, and demanding cash to avoid possible incarceration (which they can't do). It seems like that likely violates all sorts of laws having to do with fraud and extortion. So, whoever is behind this, while they may have chosen to misrepresent criminal copyright law, they might want to spend some time familiarizing themselves with criminal law in other contexts.

Of course, while the DOJ and ICE keep claiming that they're so focused on "criminal" copyright issues these days, one wonders if they'll spend any time or effort to go after the folks behind this actual scam. Or, do they only go after sites that Hollywood doesn't like?

Either way, we've posted the text of one of the letters below to show just how over the top the claims were.

It seems like a hardly a day goes by without someone, somewhere proposing some sort of legislation to regulate video games. The latest (but certainly not the last) legislation comes to us courtesy of Connecticut State Senator Toni Harp. Entitled "An Act Concerning Minors and Violent Point-and-Shoot Video Games," Harp's bill seeks to ban minors from operating violent video games in public. More specifically, it seeks to take the play guns out of kids' hands, while presumably leaving them free to de-spine each other at the Mortal Kombat upright.

(b) No owner or operator of any public establishment or amusement arcade shall allow any individual under eighteen years of age to operate a violent point-and-shoot video game on the premises of such establishment or arcade.

The offending devices that may not be pointed-and-shot by minors are as follows:

(a) For purposes of this section, "facsimile of a firearm" means (1) any imitation of a firearm, as defined in subdivision (19) of section 53a-3 of the general statutes, which was manufactured, designed and produced since 1898, or (2) any representation of a firearm, other than an imitation of an original firearm, that a reasonable person would understand was intended to depict a weapon of violence; and "violent point-and-shoot video game" means any electronic gaming device that utilizes a facsimile of a firearm as an essential component of game play.

This rules out such offenders as House of the Dead and Area 51, but also other, non-human-killing games like Jurassic Park, Big Buck Hunter, Nintendo's Duck Hunt (for arcades with a retro vibe) and, presumably, Michael Cimino's Deer Hunter Arcade.

If a public establishment does allow the under-18 crowd to start pointing-and-shooting, there will be consequences.

Any person who violates the provisions of subsection (b) of this section shall have committed an infraction.

(..and will have to go sit in the corner for a 15-minute "time out" or serve as the sole host of a child's birthday party, whichever is more severe. Six infractions in six months will result in the offender becoming a permanent member of the Chuck E. Cheese animatronic band.)

Presumably, the real fines/jail time/conversion to a cyborg trapped in kids' birthday hell will be added to the bill at a future date. But there's more to this bill than disarming teens and tweens. Senator Harp has also borrowed a bit from the President's call for a study of the link between violent media (including violent video games) and actual violence. Harp's version, however, gets rid of anything related to "violent media" and concentrates solely on video games.

Sec. 2. (Effective October 1, 2013) (a) There is established a Violent Video Game Task Force within the Department of Children and Families to study the effects of violent video games on youth behavior...

(b) The Violent Video Game Task Force shall: (1) Study the effects of violent video games on youth behavior; (2) make recommendations to the General Assembly and the Governor for new or enhanced policies to address the findings of the task force; (3) gather and maintain current information regarding violent video games that can be used to better understand the impact of violent video games on youth behavior; and (4) advise the General Assembly and Governor concerning the coordination and administration of state programs that may reduce the effects of violent video games on youth behavior.

Here's the kicker, though:

(c) Not later than October 1, 2014, the task force shall submit in accordance with the provisions of section 11-4a of the general statutes a report to the General Assembly and the joint standing committee of the General Assembly having cognizance of matters relating to children specifying the task force's findings and recommendations pursuant to subsection (b) of this section.

That's right. The bill will first enact a blanket ban on shooting games (using "point-and-shoot" gun "facsimiles") and then start looking into the question of whether or not there's a connection between violent arcade games and violence. It's almost literally a shoot-first-and-ask-questions-later approach (except without the shooting). All this bill does is present a foregone conclusion and ask for it to be preemptively enforced. The statement of purpose doesn't even try to hide this fact:

To prevent minors from using violent point-and-shoot video games in public arcades and to create a task force to study the effects of violent video games on youth behavior.

In Harper's mind (and bill), the facts, whatever they may be, simply do not matter. Kids are forbidden from playing "gun games" in public. Full stop. Why even bother proposing a study? She's already made her decision. This is the kind of baseline, weightless lip service that makes regular glad-handing, fundraising lip service look sincere and upstanding.

Even the wording for the "study" itself forces me to throw scare quotes around the word: "gather... information... that can be used to better understand the impact of violent video games on youth behavior." It's accepted that there's an "impact." "Coordination and administration of state programs that may reduce the effects of violent video game on youth behavior." Again, 100% chance there's an "effect," so let's work to "reduce" it.

I don't have a problem with someone commissioning a study on the connection between violent video games and acts of violence. But when someone starts with a ban and then stacks the deck to justify a ridiculous ban, it's only going to return the results the commissioning politician is looking for. If it doesn't, it will simply be back-burnered until the public eye is distracted elsewhere.

This is insane. Some politicians in New Hampshire have put forth a bill that would make it illegal to do aerial photography of any "residential dwelling." The key text of HB-619-FN is as follows:

A person is guilty of a class A misdemeanor if such person knowingly creates or assists in creating an image of the exterior of any residential dwelling in this state where such image is created by or with the assistance of a satellite, drone, or any device that is not supported by the ground. This prohibition shall not apply where the image does not reveal forms identifiable as human beings or man-made objects.

If you're thinking that this would make it a misdemeanor (which is still a crime...) for people to work on things like Mapquest, Google Maps and Bing Maps -- all of which have "aerial" views (often called "satellite view," though some are assisted by airplanes as well) -- to even exist, well, then, you have a point. Also, I don't know about you, but I've taken plenty of photographs out the window of an airplane, which have certainly included images of residential dwellings which revealed "forms identifiable as... man-made objects."

This seems like an extremist view of what "privacy" should be about, ignoring the fact that an aerial shot of your house is simply not a privacy issue. I am reminded, not surprisingly, of the story which resulted in the coining of "The Streisand Effect," in which Barbara Streisand sued a photographer for taking an aerial photograph of her house, as part of a project to photograph the entire California coastline from a helicopter (to study the impact of erosion). It was crazy to think of that as a privacy violation, and the court clearly agreed, siding with the photographer over Streisand.

And, it appears, lots of other courts have said that photographing someone's residence is perfectly legal:

Many courts have held that it’s not illegal to photograph a residence, such as the case in California and South Carolina and the issue has been addressed by other lawyers here and here. Usually the issue is whether the photograph invades the privacy of a person, which is difficult to do from the air, but is already addressed by case law.

Hopefully the legislature in New Hampshire realizes this is a complete overreach in the name of bogus privacy claims and drops the bill.

Dennis S. was the first of a bunch of folks to send in the news of a class action lawsuit recently filed by a bunch of independent booksellers against Amazon and the "Big Six" publishing firms arguing that Amazon's ebook DRM (and the agreements from the big publishers to use it) effectively violates antitrust law. Just about a year ago, we noted that the publisher's annoyance that Amazon was such a dominant player in the market was really their own damn fault for insisting on DRM, which really locked people into Amazon's platform and made it very hard for anyone to check out and move elsewhere. It was particularly stupid since they already had seen how the same thing helped Apple dominate in the music space.

This new lawsuit, however, could certainly shake things up quite a bit.

The logic of the bookstores' argument is this. When it launched the Kindle in 2007, Amazon convinced publishers to sell ebooks with DRM on its platform. The Kindle then became the dominant e-reader. You can't read ebooks with Amazon DRM on any e-reader but a Kindle, and you can't read any ebooks with DRM on a Kindle that doesn't come from Amazon. The plaintiffs argue these agreements and practices violate sections 1 and 2 of the Sherman Antitrust Act: anticompetitive restraint of trade (together with the publishers) and monopoly power, respectively.

But what about Nook, Apple, Google, Sony, Kobo? The booksellers claim that Amazon controls at least 60 percent of the ebook market, with Barnes & Noble at 27 percent and Apple's iBookstore at less than 10 percent. But note that none of Amazon's top competitors sell ebooks without DRM. It's suggested here that part of the publishers' nonpublic agreements with Amazon stipulate that the publishers won't sell any non-DRM copies of the same books sold for Kindle.

Where it gets potentially interesting is that one of the remedies the book stores are seeking is:

... an injunction prohibiting AMAZON and the BIG SIX from publishing and selling e-books with device and app specific DRMs and further requiring the BIG SIX to allow independent brick-and-mortar bookstores to directly sell open-source DRM e-books published by the BIG SIX

and

... an injunction prohibiting AMAZON from selling DRM specific, or non-open-source, dedicated e-readers, alternative e-reader devices, and apps.

Frankly, it would certainly be an interesting result if Amazon was barred from using DRM, but this lawsuit has almost no chance of succeeding. There are a few significant problems (and the bookstores don't seem to know what "open source" means despite using it a few times). Also, this impression that Amazon forced the publishers into DRM is, as far as I've heard, the opposite of reality. The publishers demanded DRM because they were freaked out over "piracy" of ebooks. There are a few other oddities in the lawsuit that suggest that the bookstores are (perhaps justifiably) angry, but it's not clear that they actually have a lawsuit.

The neverending misadventures of Prenda Law and its various attachments have led me to consider retiring this phrase when writing about them: "just when you thought it couldn't get any worse..." Prenda's situation obviously can (and will) likely get much worse, well past the point of any reasonable person's expectations.

Fresh off a judicial smackdown from Judge Otis Wright, in which he singled Brett Gibbs out for possible incarceration and laid waste to the Prenda "business model" by torching its argument that an IP address alone is enough to positively identify an infringer, Prenda Law finds itself on the receiving end of another smackdown, from another California judge, for the exact same issue.

Southern District of California Judge Barry Moskowitz has found that an IP address, alone, is insufficient to support a complaint for copyright infringement. The lawsuit is AF Holdings v. Rogers (CASD 12-cv-01519) brought by the infamous Prenda Law Firm http://fightcopyrighttrolls.com/category/clans/prenda/. The complaint alleges copyright infringement, contributory copyright infringement, and negligence...

Addressing the copyright infringement and contributory copyright infringement, the judge notes that:

[...] the Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the FAC does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address 68.8.137.53. (The Court notes that it is actually unclear whether the IP address is registered to Defendant). As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity.

More and more courts are coming to this same conclusion, which doesn't bode well for those in the copyright trolling business. While they still may see some limited success collecting on threatening letters, the chances of them winning anything via the proper legal route is beginning to approach zero.

As Judge Otis Wright pointed out, Prenda's use of IP addresses to "identify" infringers boils down to nothing more than finding someone in the household that best matches its idea of who the likely infringer is, which seemed to involve nothing more than "blindly picking a male resident from the subscriber's home."

Judge Moskowitz lays it all on the line, making it perfectly clear that he won't be accepting IP addresses (alone) as evidence.

Due to the risk of “false positives,” an allegation that an IP address is registered to an individual is not sufficient in and of itself to support a claim that the individual is guilty of infringement.

Once again, Prenda's business model is getting kicked while it's down. As Wright pointed out in his order, properly identifying infringers takes both time and money, two commodities Prenda seems unwilling to part with. Moskowitz apparently won't be entertaining these dubious claims any further. He also takes aim at the same issue that resulted in a setback/smackdown for AF Holdings (friends of Prenda): so-called "negligence" on the part of the subscribers.

Plaintiff’s claim fails because there is no underlying duty. One who fails to act to protect another is generally not liable for breaching a duty unless there is a special relationship giving rise to a duty to act. [...] There is no special relationship between Plaintiff and Defendant which gives rise to a duty on the part of Defendant to ensure, through heightened security measures and hawkish monitoring of internet usage, that nobody uses his internet connection to infringe Plaintiff’s copyright.

The end result? A dismissal of Prenda's claims of copyright infringement and contributory infringement without prejudice. This leaves the door open for refiling, but considering how many doors in California are being slammed shut elsewhere by various judges, it seems unlikely that Prenda will push its luck, at least for the time being. This dismissal adds another court to the growing list of judicial entities that are unlikely to push forward on copyright infringement cases where the evidence of wrongdoing is nothing more than an IP address. How much sway this dismissal holds elsewhere remains to be seen, but it's another blow struck against the settlement letter "business model."