Things just keep looking worse and worse in the Carmen Ortiz/Stephen Heymann vendetta against Aaron Swartz. Now it's come out that state prosecutors, who were originally looking into the case had no interest in pursuing felony charges or prison time... until Carmen Ortiz and her team showed up. Instead, state prosecutors had focused on the initial charges: "breaking and entering in the daytime" which they expected "would be continued without a finding, with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner." Instead, the report notes:

Tragedy intervened when Ortiz’s office took over the case to send “a message.”

In case you were wondering what "continued without a finding" means, Harvey Silvergate (author of Three Felonies a Day) explained to Declan McCullagh:

"Continuance without a finding" was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance ("continued") without any verdict ("without a finding"). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for "trespassing at MIT." But then the feds took over the case, and the rest is tragic history.

The report above also notes that Ortiz is in some additional hot water, as another one of her overreach cases, involving an attempt to seize a family-owned motel in Massachusetts by claiming that it was "facilitating drug crimes" has failed miserably, tossed out by the magistrate judge. Not only was it noted that there were only 15 drug-related incidents over a 15 year period (during which 196,000 rooms were rented out), but also, the motel owners worked closely with local police to deal with drug issues and that other local businesses that had drug incidents were not targeted by Ortiz.

Back in December, we wrote about one of Prenda Law's latest tricks (or, rather, a whole bag of tricks) involving using shell companies (who appear to be controlled by Prenda itself, where the CEO may have been faked via identity fraud) to file cases against a single "named" defendant who settles quickly... but part of that "settlement" is that the "defendant" agrees to allow discovery of a long list of "co-conspirators." Prenda argues that those co-conspirators cannot fight back against discovery, because they're not "defendants." And, thus, Prenda gets a big list of names/contact info of more people to shake down.

As we noted, there was some suspicion that the "named" defendants and their lawyers were somehow in on the deal -- and the judge in at least one case flat out asked Prenda's John Steele, and the defendant's lawyer Adam Urbanczyk, if they "were in bed together" to come up with such a settlement. At the time, we pointed out that it was still a big leap to assume that, but now there's a bit more evidence. In one of these cases, involving the likely-Prenda-shell-company Guava, one of the named defendants, Spencer Merkel, has filed an incredible affidavit in which he admits that Prenda had offered him a "settlement" in which he would be "named" in a lawsuit and agree to cough up his BitTorrent log files. And Prenda provided him with the lawyer who would then represent him thousands of miles from his home.

Michael offered me a settlement deal. The deal consisted of the following parts:

a. I would agree to be sued.

b. Prenda would ask for, and I would provide, a copy of the bit-torrent log from my computer. The excuse for gathering this log is that it would corroborate the IP address evidence that they had already gathered through the use of Prenda's sottware.

c. Prenda would, upon receipt of the information, dismiss the case against me.

4. In discussion of the settlement, Michael stated that he did not know of any pro bono attorneys in Oregon, but could provide the name of an attorney who might take my case in Minnesota. Because I cannot afford to pay an attorney, I agreed to be sued in the state of Minnesota. I then retained my attorney, Trina Morrison, based on the information provided to me by Prenda Law.

Now, throughout all of this, he believed that Prenda was representing Hard Drive Productions, one of the porn companies that Prenda used to represent, but whose cases they dropped entirely not too long ago to focus solely on these questionable shell companies they claim to be "representing."

5. Before the start of this case, I had not heard of Guava LLC. I believed that I would be sued by Hard Drive Productions, Inc. I believe that Guava LLC's case against me is based on my admission to Michael that I downloaded the video at issue in the Hard Drive Productions case.

6. Before the case against me was filed, I had not heard of Alpha Law Firm. I believed that opposing counsel was Prenda Law.

7. Afier subpoenas were served in the case against me, I learned of Guava LLC's and Prenda Law's practice of finding one John Doc to be a named defendant, and then discovering the names of and requesting settlement money from other John Does by issuing subpoenas to ISPs.

Oh, and it gets worse. After all of this... Prenda went after him again, which seems to be why he's now willing to speak out about the "deal."

8. Last week, on 01/15/13, I was once again contacted by Prenda Law Firm. I received a voice mail from someone on behalf of Prenda Law stating that I needed to make payment arrangements or I would be sued.

At the very least this raises very serious questions about the conduct of Prenda Law and some of the lawyers who represented these named defendants. Given that Prenda is already dealing with serious questions in multiple courts about possible fraudulent activity, finding out that they may have effectively blackmailed a defendant into taking a dive, for the purpose of "agreeing" to discovery to find another batch of people to go after, can't look good.

The German Federal Court of Justice in Karlsruhe has acknowledged that an Internet connection is indispensable for life in the modern world, and that being cut off for several months deserves monetary compensation per day for the knock-on losses that inevitably causes:

The plaintiff was erroneously disconnected and demanded that the unnamed telecommunications company pay for costs that incurred in switching to a new provider. The plaintiff also demanded compensation of [about $67] per day for the period his was unable to use his DSL, fax over IP and VoIP services, according to the court.

The Federal Court, however, awarded compensation only for loss of the internet connection. Compensation for the loss of a fax connection was denied because a fax only enables the user to send text and images faster than conventional mail and the technology is increasingly becoming irrelevant due to the rise of alternatives such as email, the court ruled.

The court's reasoning for the award is worth reading for its wide-eyed enthusiasm that is reminiscent of the early days of the Web (original in German):

Being able to use the Internet is an economic benefit whose continuous availability, even in the private sector, has for a long time been crucially important for a person's standard of living. The Internet makes available global information in the form of text, image, video and audio files. Thematically, almost all areas are covered and the most varied quality requirements satisfied. For example, light entertainment files are as readily available as information on everyday issues or highly academic subjects. Because of this easy availability, more and more the Internet is replacing other media, such as encyclopedias, magazines or television. It also allows global exchanges between its users, for example via e-mail, forums, blogs and social networks. In addition, it is increasingly used for the initiation and conclusion of contracts, for serving legal instruments and fulfilling public service obligations. The overwhelming majority of people living in Germany use the Internet on a daily basis. As a result, it has developed into a decisively important medium for the lifestyle of a large part of the population, and one whose failure has a significant impact on everyday life.

It's great to see courts in Germany and elsewhere recognizing the central importance of the Internet to modern life -- not least because this necessarily implies that "three strikes"-type punishments that involve disconnection from it are totally disproportionate, and akin to cutting off someone's electricity or water supply for months or more.

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

Red Bull made a huge advertising event out of Felix Baumgartner's record-breaking free-fall from the edge of space. But it's not the only food/drink maker to sponsor a space-related promotion. Maybe it's a bit disconcerting that food companies have enough dough in their advertising budgets to fund crazy stunts, or maybe it's awesome that advertising/marketing budgets are being used to fund incredibly cool projects.... Either way, here are a few other examples of sponsored space foods.

• Pizza Hut delivered the first pizza to the International Space Station in 2001, which Russian cosmonaut Yuri Usachov ate as a $1 million promotional stunt. Salami instead of pepperoni was used as a topping, and extra salt and spices were added to adjust for the deadened taste buds of a long-term space inhabitant. [url]
• Commemorative M&Ms celebrated SpaceShipOne's successful sub-orbital flight and its Ansari X Prize win. M&Ms were also used on a test flight to demonstrate weightlessness to spectators watching a remote video stream. [url]
• M&Ms have been taken aboard numerous NASA missions for about 30 years. However, NASA has generally been coy about calling the space-worthy candies M&Ms. [url]
• Specially-designed cans of Coke and Pepsi have been on a space shuttle mission during the Cola Wars. The beverages weren't that refreshing for astronauts due to a lack of refrigeration and messiness. [url]

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

Back in April last year, we wrote about Colombia's own SOPA, the "Ley Lleras 2" copyright bill (it's version 2, because an earlier attempt to pass it failed.) This was rushed through by the Colombian government using an emergency procedure so as to have it ready as a grovelling welcome gift when President Obama came calling shortly afterwards.

A challenge was mounted, and the Constitutional Court has now returned its verdict. The good news: the law has been struck down. The not-so-good news: it's for procedural reasons, as infojustice explains:

the Court declared the unconstitutionality of the entire law due to procedural irregularities incurred in Congress because the law was processed in the Second Commission of Congress, like an international treaty, but not as the internal implementation of an intellectual property law which the process should have been carried out in the First Commission. Furthermore, the 1520 Act was processed as an ordinary law and not as a statutory law.

Obviously, it would have been better had the court struck down the law due to the numerous problems with its measures, but as Sean Flynn points out:

The Court's action provides the opportunity for Colombia to revisit these issues and produce a more balanced outcome for Colombia's citizens and businesses.

So even if the law is by no means dead, this latest decision does at least mean that civil groups have another chance to ask for a full and fair discussion of the measures and their impact on Colombian society. Let's hope their government listens this time.

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

In a way, I’m surprised we don’t have more stories about people posting their grades on social media sites. The kids are already using Facebook and Twitter as a running diary of their lives, so you’d expect there to be more instances where people throw their law school transcripts up on the internet.

In fact, let me ask the question this way: why wouldn’t you post your grades on Facebook? They’re clearly important to you. If you did well, you can brag about them just as surely as one of your friends is bragging about the exploits of their kids or dogs. If you did poorly, you can seek the solace of friends who you don’t actually like well enough to have a beer with. Why wouldn’t you post them?

The obvious answers seem painfully old-timey. “It’s in poor taste to brag about your grades.” “Your transcript should be private.” “You got an ‘A’? Go f*** yourself.” These are the thoughts of a previous generation. For the Facebook generation… I mean, have you seen what people post? This is nothing.

A law student decided to post his solid grades on Facebook. I bet you can guess what school we’re talking about. Let’s just say that it’s a school that seems to admit students who like to draw attention to themselves when things are going well by subtly upturning their collars….

Yeah, we’re talking about UVA Law because that’s where this kind of thing is most likely to happen. A law student there posted his recent grades on his Facebook page. Here was the initial post sent to us by a tipster:

A few things jump out from this posting:

• Thank you for your service.
• It’s not really “bragging” if you got Bs.
• He’s only a first year.

Look, if I saw this from one of my Facebook friends, I’d simply respond like this and move on:

But other people at UVA Law were annoyed by this perceived display of self-aggrandizement. That inspired our guy to make a follow up Facebook post:

“Deprive non-law school friend of updates about my life” is the new killing it.

Again, this wouldn’t be something I would do, but this is how people use social media. It’s UVA! I bet this isn’t even the most “look at how special I am” Facebook post by a UVA Law student since I started writing this story. I reached out to the guy (via Facebook) who posted his grades, but he has not yet responded. I assume he’s somewhere trying to figure out why so many people care that he posted his grades on Facebook while simultaneously firm in his belief that his 1L grades were an appropriate starting point for a public Facebook discussion. It’s the world we live in.

In the battle between propriety and Facebook, Facebook wins. Facebook won. People better get used to seeing this kind of thing, at least from 1Ls who don’t yet know any better.

More stories from Above The Law:

• The Supreme Court in President Obama’s Second Term
• Career Alternatives for Attorneys: Lego Brick Artist
• Law School ‘Recalls’ Grades, Because Apparently They Were Too Low

We've pointed out that the spectacular public uprising that led to the death of SOPA has made it such that Congress is now quite worried about pushing copyright legislation. But... we fully expected there to be attempts to sneak things through in other ways, including through international treaties and agreements. Over at the Disruptive Competition Project site, Matt Schruers has noted that the US Trade Rep (USTR) -- who is responsible for things like ACTA, TPP and other trade agreements -- has been using some of the most controversial language from SOPA in discussions about trade policies with China. Specifically, the USTR press release notes that part of the effort for the US-China Joint Commission on Commerce and Trade (JCCT) will include this whopper:

Building on an existing JCCT commitment to develop a Judicial Interpretation making clear that those who facilitate online infringement will be jointly liable for such infringement, China announced that its Supreme People’s Court will publish a Judicial Interpretation on Internet Intermediary Liability before the end of 2012.

As we had discussed while SOPA was still around, the use of liability for mere facilitation is hugely problematic, and goes way, way, way beyond anything in the law today. Tons of useful technology can facilitate infringement. In fact, historically, nearly every important technological innovation that has helped grow the entertainment industry has first been accused of "facilitating" infringement: the record player, the player piano, the radio, cable tv, the photocopier, the VCR, the DVR, the MP3 player and YouTube... every single one of them was accused of facilitating infringement. That's part of the reason why SOPA was so troubling. But rather than move away from such language, the US is now pushing that same language in its trade agreements with China. As Schruers explains, expanding secondary liability to include "facilitation" has massive problems:

For good cause, existing secondary liability law... does not extend to facilitation – it requires more knowing, culpable conduct, or direct financial benefit. A pirate's utility company arguably facilitates piracy by providing electric power to the pirate – and indeed, benefits from the added electricity consumed. We don't penalize utilities for piracy committed by their customers, however: since its inception, secondary liability has been wisely limited exclude such sweeping application.

The term seems particularly inappropriate in relation to commitments extracted from China regarding Internet policy. Construed broadly, "facilitate" could encapsulate any website or web service that allows users to communicate information freely. Given the ambiguity of the term, China could potentially interpret the word broadly to engage in censorship of its own, not only for IP infringement offenses, but for other activities "illegal" in China as well. If censorship concerns were sufficiently problematic in the U.S., they should be at least as problematic in China.

What Schruer's doesn't even mention, but which seems fairly important, is that China has tons of experience with broad secondary liability clauses and their ability to stifle speech and censor critics. The entire Great Firewall of China is mostly built on this principle of secondary liability, whereby ISPs can get into trouble for "facilitating" negative speech. Chinese officials argue in support of the Great Firewall by saying that it protects the public and they've even argued that it's needed to stop piracy.

So, among other things, by spreading this ridiculous "facilitation" language to a US-China agreement, the USTR is handing that much more ammo to the Chinese government not just to support political oppression, but also to argue that it's doing so because of what the US demanded in its trade agreements. Once again, it looks like, as the USTR carries the water of the legacy entertainment industry, it's undermining the State Department and playing right into China's hands in terms of enabling it to continue to censor the internet and repress political speech. And... of course, once that language shows up within US/China agreements, it won't be long before the USTR starts pushing it elsewhere as well, all in the name of "harmonization." In other words, watch out, the USTR is looking to push parts of SOPA through the backdoor yet again.

Along those lines, USTR boss, Ron Kirk, has announced that he's leaving the position. His leadership has been an absolute, unmitigated disaster. He's responsible for the mess that was ACTA and has kept the TPP negotiations extremely secret. If the Obama administration wants to look forward, not backwards, it needs to nominate a replacement who isn't in the legacy industry players' pockets, but who is dedicated to real transparency and who recognizes that innovation comes from new sources, not from overprotecting obsolete players.

The fallout from CBS's ridiculously short-sighted interference with CNET's editorial process, concerning staffers awarding Dish's new DVR "best of show" at CES, continues to cause problems. Whle one of CNET's best reporters quit in protest, and Dish has turned the whole thing into a marketing opportunity, now any news article about any company that CBS is in a legal fight with has become suspect.

Note this recent article about the updated Aereo app. While it kicks off by saying that Aereo "just became a much more potent alternative to traditional cable TV" stuck right smack in the middle of the article is a big "disclosure":

Disclosure: CBS, the parent corporation of CNET, is currently in active litigation with Aereo as to the legality of its service. As a result of that conflict of interest, CNET cannot review that service going forward.

In other words, "HEY EVERY BODY, YOU CAN'T TRUST US TO REPORT FAIRLY ON THIS BECAUSE OUR CORPORATE OVERLORDS INTERFERE WITH EDITORIAL!" The whole thing is a joke. As Rob Pegoraro correctly noted, CNET's claims that "news" reporting won't be impacted because these bans just apply to "reviews" is simply wrong, wrong, wrong.

To say that there’s “actual news” and then reviews devoid of news value shows a basic misunderstanding of how journalism works.

Hard-news stories (like search-engine results!) are never entirely objective; people made value judgments in assigning them, choosing sources to quote, and giving those pieces their spot on the page or in the paper. Reviews are never entirely subjective and ought to cite objective defects such as slow performance, poor battery life, privacy risks or missing features.

And in the evolving and sometimes fumbling tech industry, assessing the hardware, software and services it serves up is an especially important part of the work of journalism. We need to suffer through these products ourselves–unless you’d prefer that we waited to see you find their problems, then reported the controversy.

Readers, in turn, don’t view news and reviews as distinct entities. If they start seeing one part of a site’s work subject to a corporate overlord’s remote control, they will read everything there skeptically. If they stick around at all.

Indeed. All that disclaimer does is remind people that CNET's coverage of any such topic is not to be trusted at all.

Update: And... things are apparently going downhill. According to reports and internal notes, reporters at CNET are pissed off and morale is falling. There was a meeting where some believed CBS was going to go back on its position, but the company did not. Reporters have been pushing back, but to no avail. The Romenesko link here includes an email from CNET reporter Declan McCullagh ticking off example after example of publications associated with other companies suing Aereo giving perfectly normal reviews of the product:

The Wall Street Journal’s Katie Boehret (who reviews products along with Walt Mossberg, as I’m sure you know) reviewed Aereo three months after the litigation began. Boehret concluded: “It has a thoughtful, clean user interface that works well on the iPad, where I tested it most.. If you’re a fan of TV and want a better way to watch it on the go, Aereo is a pleasure.” The WSJ is owned by News Corp., which is in active litigation with Aereo.

ABCNews.com published a review of Aereo this month. It said: “I’ve been trying out Aereo since September to record and watch all sorts of programs on Aereo — both highbrow shows such as ‘Downton Abbey’ and guilty-pleasure ones such as ‘Revenge…’ It makes cutting cable service tempting.” ABC News is owned by Walt Disney, which is in active litigation with Aereo.

The Chicago Tribune published a syndicated review of streaming services including Aereo, which said “the most exciting development might be a scrappy start-up called Aereo that lets you watch TV on any Web-connected device with a screen via a network of miniaturized antennas.” The newspaper is owned by the Tribune Company, which is in active litigation with Aereo.

It’s true that CBS has the right to set the editorial policies that CNET journalists must abide by. And it’s also true that this policy is prominently disclosed to our readers. But I’m not aware of other media companies that have enacted a similar policy.

This has the makings of quite the business school and journalism school case study...

Right after the election, we noted the stories showing how Obama's technology advantage was impressive, while the get-out-the-vote technology that the Romney campaign built up appeared to fail spectacularly. However, there's an interesting post mortem to this, which shows how techies and politicians still usually come from very, very different worlds. The world class team of technologists who helped build up Obama's campaign tech are trying to release their work as open source -- but Democratic Party operatives are trying to keep it secret, believing (almost certainly incorrectly) that this gives them a proprietary advantage:

But in the aftermath of the election, a stark divide has emerged between political operatives and the techies who worked side-by-side. At issue is the code created during the Obama for America (OFA) 2012 campaign: the digital architecture behind the campaign’s website, its system for collecting donations, its email operation, and its mobile app. When the campaign ended, these programmers wanted to put their work back into the coding community for other developers to study and improve upon. Politicians in the Democratic party felt otherwise, arguing that sharing the tech would give away a key advantage to the Republicans. Three months after the election, the data and software is still tightly controlled by the president and his campaign staff, with the fate of the code still largely undecided. It’s a choice the OFA developers warn could not only squander the digital advantage the Democrats now hold, but also severely impact their ability to recruit top tech talent in the future.

The politicians who want to keep it locked up are making a huge mistake for a very large number of reasons that people who are steeped in technology understand. Let's list out some of the ways in which it's stupid to keep this secret:

1. It basically makes the technology useless. As one of the techies who worked on the project notes, the software "will be mothballed," meaning that four years from now it'll be useless. What the politicians see as keeping an advantage is really just squandering a useful framework.
2. It completely misunderstands how technology advances and works. No one expects software from today to be the same four years from now. By mothballing the tech, it will mean that the next campaign will effectively be starting from scratch. Open sourcing it would allow additional work to continue on this.
3. You can learn from others as well. The really shortsighted part is this insistence that open sourcing it "helps the other side." Again, what will be used four years (or even two years) from now will be quite different as the technology advances. And having it open sourced means that lots of folks can jump in and build on the tech in the meantime. And, yes, even Republican techies might work on it, and the Dems can learn from them as well.
4. Keeping it closed pisses off the techies, who will be less likely to contribute or join the team next time around.
5. If the Democrats believe they have stronger technologists, then next election they should still be able to make innovations faster than their opponents.
6. It quite possibly violates some open source licenses, since much of the code was built on open source software, some of which requires any additional work to also be open sourced.
7. Keeping the tech secret also means that other campaigns (beyond just elections) can't make use of the technology as well, which could actually hurt causes that the Democrats support.

In many ways this is the same old battle we've seen from legacy companies vs. more open upstarts for years. The legacy players think their advantage is in keeping the code secret. The upstarts know that's wrong: the pace of innovation and the rate of change means that by being open you can better keep up and do more. Keeping it closed guarantees stagnation and falling behind.

As the tragic death of Aaron Swartz resides fresh in our memories, there has been a renewed interest by the public in the way prosecutors use the threat of more jail time as a carrot (edit: should have said "stick"; thanks comments section!) to secure plea bargains. The way the system is set up allows for an arena in which justice is no longer the objective. Instead, an injustice can be used in some kind of strange "ends justify the means" game that would make Lady Justice weep openly. With the odds firmly stacked against anyone that falls in the crosshairs of a federal prosecutor, this is a horrifyingly unjust method for achieving justice, and it appears to be a method favored for use against so-called hackers and hacktivists.

Now, lest you think that the Swartz case was an isolated event, or in case you thought perhaps there would be some sort of ripple effect as a result of it, you should note that prosecutors in the Barrett Brown case appear to be pursuing similar tactics. For those of you not familiar with Brown, he is the self-proclaimed spokesperson for Anonymous recently arrested for allegedly threatening an FBI agent.

Brown was arrested and taken into custody in September after allegedly threatening an FBI agent. In December 2012, he was indicted by a federal grand jury for trafficking “stolen authentication features,” as well as "access device fraud" and “aggravated identity theft.”

On Wednesday, Brown was hit with one count of “concealment of evidence,” and one count of “corrupting concealing evidence.”

And what did Brown do to "conceal evidence"? Apparently he "hid" his laptop with his mother's dishes. Apparently putting a laptop where the Feds don't obviously look is now "concealing evidence."

I won't sit here and compare Brown and Swartz in terms of character. Not because I know or don't know enough about either of them to do so, but rather because that would miss the point entirely. I'll leave it to others to erect the false justification of character assassination. Instead, I'd rather focus on how prosecutors appeared to think that the original charges, which could lead to 90 years of imprisonment for Brown, were apparently not enough and decided to lump this last charge on top of the others. Brown's former attorney, Jay Leiderman, appears to be similarly flabbergasted.

“I would not have seen a third indictment coming,” Leiderman told Ars. “You would think the 90 years of prison exposure that they had on him was enough. Are we at a point in society where we think that 90 years is no longer enough?”

Leiderman speculated that the new indictment was a legal pressure tactic against Brown.

As Ledierman goes on to say, at some point we departed the realm of prosecuting hacktivists and instead entered the realm of persecuting them. If there are crimes committed, let Brown or whoever else stand trial. If the law is behind the times, or written in a way that is ridiculous (as in the Swartz case), we can change the law. There's nothing wrong with the argument that that's a responsibility that falls on the public via whom we elect to government. All that said, for hacktivist crimes, or even those that Brown is accused of, to result in 90 years of jail time -- and for that to not be good enough for prosecutors -- is an absolute joke. Lumping on yet another, more minor, charge to pressure the accused is a downright travesty.

 

A few days ago, I received a surprise invitation to an "innovation forum" in Los Angeles to be held at the beginning of February. I have other commitments, and on such short notice, I couldn't attend, but in looking over the program, I was a bit surprised to see who's behind it: I'm all for forums that discuss innovation -- and I think it's both helpful and important to have content folks and tech folks discussing innovation together (in fact, we've been doing exactly that ourselves). But... this still seems like a rather odd group of folks to lead an "innovation forum."

Universal Music's Lucian Grainge is the guy who, upon taking over that company, announced that CDs were a big part of its future. He's also the guy who has lobbied politicians directly for ISPs to spy on users and report to the labels if they thought someone was infringing.

Then there's Ari Emanuel, Hollywood's super agent, who (among other things) claims that Google engineers just need to invent a magic stop piracy button (he's sure they can do it). He also insists that cord cutting is a "myth." He's also clinging to the past, claiming that the movie business is all about DVDs (ignoring, of course, that the movie business once tried to kill the home movie business). Oh, and he was directly pressuring President Obama to put a three strikes plan in place.

And then there's Michael Lynton, the head of Sony Pictures. You may remember him from this lovely statement: "I'm a guy who doesn't see anything good having come from the internet. Period." Given a chance to provide a more nuanced explanation, he doubled down, insisting that fewer people will create content because of infringement (even as the data shows an explosion in new content). He's also claimed that piracy is killing the movie business, even as the box office continues to set new records every year.

Basically, if you had to pick three "innovators," I'd put these guys pretty close to the end of the line. All three of them have a history of not innovating, but pushing protectionist policies to hold back innovation and to promote legacy business models at the expense of innovators and innovation.

As we've noted, recent events have pushed the discussion of video games (namely the violent ones) back to the forefront. Even the President has chimed in, authorizing the CDC to perform a study to determine if any link exists between violent media (including video games) and so-called "gun violence."

While most gamers (and indeed, most people who can put two and two together without adding a bunch of rhetoric into the equation) have come to the rather sensible conclusion that violent games do not create violent people, the floor is still open to debate, most likely for the next several years. The sheer number of violent video games sold has failed, over the course of many years, to be matched by a comparable escalation in violent crime. If you're a gamer, you've probably thrown this argument into the debate a number of times and wondered why more people, especially those who active work to censor violent games, haven't arrived at the same conclusion.

Well, if so, here's your answer, courtesy of California State Senator Leland Yee, whose last effort to censor video games was shut down by the US Supreme Court.

"Gamers have got to just quiet down," Yee, D-San Francisco, said in an interview Tuesday. "Gamers have no credibility in this argument. This is all about their lust for violence and the industry's lust for money. This is a billion-dollar industry. This is about their self-interest."

You got that, gamers? No credibility. None. Beat it. If we want to talk about video games, like grown ups, we'll do it without you. We'll just talk to senators and the CDC and concerned parents' groups and the NRA. But we won't be talking to game developers. No way. And certainly not gamers, whose opinion amounts to nothing in a debate of this (periodic) importance.

You know who else won't be included in this conversation until absolutely necessary? The Supreme Court. Because if anyone's opinion is invalid, it's the highest court in the land.

Yee, a former child psychologist, believes the court set the standard too high for any study to firmly link the cause and effect of violence.

Yes. This court, which stated that any effects caused by violent video games were too small to be distinguished from effects produced by other media, needs to butt out. Fortunately for Yee, the Supreme Court rarely offers an opinion until asked directly, unlike the millions of gamers who spout off in every forum imaginable.

Yes, Yee is right about the industry being self-interested. It does have a lot at stake, especially if some sort of government regulation results from this renewed attention. Pleasing a government censor is a lot harder than pleasing an independent ratings group. One has a political motivation to save humanity (mostly "the children") from "violent media." The other has an interest in preserving its autonomy by doing its job properly and giving each game a rating that reflects the content. In other words, one is more willing to kill the end result of $30 million in production costs in order to score political victories while the other wants to make sure mature content doesn't end up with a family-friendly T slapped across the front of the case.

Elsewhere in the article, you can find thoughtful comments from the very people Yee feels should just shut up. Kris Graft, editor-in-chief of Gamasutra, feels the violent video game problem is one of perception.

"It's not all about shooting people in the head and guts everywhere, but that's what the public perception is, and probably rightfully so," said Kris Graft, editor-in-chief of the San Francisco-based site Gamasutra, which along with its print magazine sibling, Game Developer, covers the video game industry. "There is plenty of diversity in video games, but I don't think it's being highlighted enough."

So does Kate Edwards of IGDA:

"It's important to point out that some of the most popular video games in history are all titles such as 'Wii Sports,' 'The Sims,' 'Super Mario Brothers,' the Pokemon series and 'Tetris,' " said Kate Edwards, executive director of the trade group International Game Developers Association. "So while the games containing more violence get the attention, they're not a reflection of the game industry as a whole, just as a single genre of film, TV or literature doesn't represent that medium as a whole."

Edwards also welcomes the CDC's study, stating that it will add to the "large body" of existing studies that have failed to show a link between fake violence and real violence.

But Yee doesn't want to hear from these people, who are rightly concerned because they have an investment in this industry and who feel this added attention is doing harm to not only their careers, but also to the games they love.

The people who should be keeping their mouths shut, or at least, sitting in the back with their hands folded until called upon, are those who know nothing about video games beyond scare reels put together by like-minded individuals and anecdotal "evidence" cobbled together out of headlines like 'Adam Lanza played Call of Duty' and 'Hans Breivik said Call of Duty taught him how to use guns.' Without a broader overview of the history, the industry and the culture, they're operating with a damaged data set culled from all the worst humanity has to offer and linked together by a single, gossamer strand of self-identifying as "gamers," ignoring the millions of other self-identifying gamers who are indistinguishable from others who have never played a game in their lives, united by the much thicker linkage of never having committed a violent crime.

As Techdirt has reported over the last ten days, the death of Aaron Swartz has provoked an outpouring of grief from friends and colleagues, who understandably wish to express their shock and anger at what happened. You'd expect that. What you might not expect is for a Vice-President of the European Commission to add her voice, but that's exactly what Neelie Kroes did this week. Her post is short, and worth reading in its entirety:

You've probably seen the terrible news about the death of Aaron Swartz. It's always horrifying when someone so young and so clearly talented feels they have no option but to take their own life. I know that this is something that shook the internet community deeply. And my thoughts are with his family, and what they must be going through right now.

This was a man who saw that greater openness can be good for citizens, and good for society. Hugely disruptive -- but hugely beneficial.

For me, the case is particularly clear when there aren't copyright issues, when information was already paid for by taxpayers, and when more openness can help new innovations and scientific discoveries.

I would never condone unlawful activity. But in my view, if our laws, frameworks and practices stand in the way of us getting all those benefits, then maybe they need to be changed.

Agree or disagree with his methods, Aaron could see the open direction we’re heading in, and its benefits. In the meantime, those scientists who are paying tribute by making their own work legally, openly available aren't just showing their respects -- they are also benefiting scientific progress.

Two points stand out there. First, the one regarding information "already paid for by taxpayers". That's a clear reference to the open access and open data movements, which seek to make precisely this kind of material available to all. In fact, the point that openness drives innovation and scientific progress is mentioned by Kroes not just once, but twice in her short post.

The other notable phrase is that "if our laws, frameworks and practices stand in the way of us getting all those benefits [of openness], then maybe they need to be changed". That's of a piece with her earlier frank comments about copyright being "a tool to punish and withhold, not a tool to recognise and reward," and her call for "flexibility in the system, not the straitjacket of a single model."

Given the stony silence from just about everyone in positions of power regarding Aaron Swartz's suicide, it's good that at least one politician had the decency to offer her condolences and admit that there's something seriously wrong with today's approach to sharing knowledge. It would be even better if more of her colleagues came to a similar realization and expressed it with equal honesty.

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TorrentFreak has a good post about how copyright holders have been effective in moving copyright into a modern form of "witch trials" in which you are guilty based on accusations, and then have to go through a long, arduous and often biased-against-you process of proving your innocence. The article points out two examples of this. First, the Kafka-esque process that Jonathan McIntosh went through to keep his mashup video (one cited by the Library of Congress as a quintessential example of fair use) from being taken off YouTube. Of course, it actually was off for quite some time, because YouTube's ContentID system is also based on a "guilt by accusation" system -- after which you have to convince everyone (including, initially, your accuser) that you're really innocent.

The second is the new "six strikes" plans from US broadband players. One of our main complaints with all of the "strikes" plans is that they all are based on accusations, rather than any conviction. While there's an "appeals" process, it's quite limited and the rules have it so that the deck is completely stacked against those who appeal.

What both of these examples have in common, obviously, is that they're so-called "voluntary" solutions, put in place by companies, often due to arm twisting by the entertainment industry, combined with threats of government regulation if such "voluntary" actions don't happen. While it may seem that voluntary agreements are to be encouraged, when they create a situation like this, in which users are being declared guilty merely upon accusation, with little real recourse in many cases, something seems wrong. We run a very real risk of discouraging important services and innovations when we start taking away core concepts like "innocent until proven guilty" -- even if it's just in civil issues between private companies. It's a trend that's quite worrisome and can lead to many innocent people getting punished.

As we just recently discussed, broadband providers appear to finally be willing to give up their pretend need for data caps due to the pretend costs of delivering service. The story they told essentially was that, without data caps, congestion would clog the interwebz tubes and that laying bigger tubes was way too costly. Perhaps noteably, this rarely resulted in actual hard caps on data, but rather provided a convenient excuse to charge more for more data service, regardless of the effect or cost of delivering that service.

Now Verizon's 4G LTE money-making machine is giving us a glimpse into exactly how profitable providing bandwidth is becoming as the cost for delivering service drops and prices to consumers go up.

Verizon (VZ) posted a pretty impressive holiday quarter (one-time charges aside) with a good outlook on Tuesday, and the company’s share price rose as a result. There were also plenty of interesting takeaways from the carrier’s earnings call, but The New York Times’ Brian X. Chen zeroed in on one item of particular interest. Verizon launched new “Share Everything” plans last summer that make smartphone data more expensive for many users. The best thing about these plans for investors — and, not coincidentally, the worst thing about the plans for subscribers — is that Verizon is now making more money off of smartphone data as costs associated with transmitted that data are falling.

It really doesn't get much simpler than that. The 4G LTE network is efficient to the point that delivering the service costs less than the 3G network, yet the price to consumers is going up. To be clear, the problem here isn't that Verizon is making money. Rather, the problem is that this comes from the same company that built a business model around low caps and high overage costs while also claiming that caps were the sign of a "competitive market." For those of you playing along at home, it's precisely because of a lack of competition that Verizon can at once have its costs drop while raising prices on its services. Were there more competition, someone new would compete on price or value of service. As it stands, Verizon can use their faster service and low caps to further the aforementioned business model.

As an added bonus, Chen noted that Verizon’s faster data networks also cause users to eat through their data allowances more quickly. This eventually prompts them to buy more expensive plans with higher data caps, which of course net Verizon even more cash.

As a Verizon customer myself, these kinds of signs that there isn't enough competition for my dollar are quite frustrating. On top of that, the model is specifically designed to provide a great service and then drop a bunch of obstacles in its path... it's maddening.

Well here's a story that's more than a decade in the making. Way back in 2003, we first wrote about Antigua filing for sanctions against the US for its ban on online gambling. Antigua argued (with fairly strong support) that this violated a trade agreement between the US and Antigua, by blocking a form of free trade. The case was at the WTO for years, bouncing around. In 2004, the WTO ruled against the US, which the US promptly ignored. In 2005, the WTO again ruled in favor of Antigua on the issue, and the US (stunningly) responded by pretending that it had won, when it most clearly had not. Following that, the US pretended that it could just unilaterally change its free trade agreement to carve out gambling. Not surprisingly, Antigua (and the WTO) found that to be problematic.

It goes without saying that the US is big and powerful and Antigua... is not. So, as it became clear that the US intended to ignore any WTO ruling, people began to wonder if there was any remedy for Antigua over this issue. Normally, the WTO could do something with trade sanctions against the US and in favor of Antigua, but given how much Antigua relies on US trade, that would likely hurt Antigua a lot more than the US. Somewhere in the midst of this -- around 2006 -- someone somewhere floated the idea that one way that Antigua could be made whole would be to allow it to ignore US copyright laws, allowing it to "sell" copyrighted content on the cheap, without paying any royalties. That idea took on a life of its own and Antigua began pushing the idea itself around 2007. The world community started to side with Antigua over this, recognizing that the US was being completely unfair here... and the US did what the US does, and bought off a bunch of big countries to get them to shut up and stop supporting Antigua.

In late 2007, the WTO finally said that this plan of retaliatory copyright infringement could go forward in Antigua, but limited to just $21 million worth of infringement. Even so, the US immediately warned Antigua not to even think about it, or it would retaliate. There were some negotiations between the two countries that went nowhere and then... a lot of nothing. We've barely touched on the story since 2008 when Antigua once again threatened to (no, really this time!) launch a copyright infringing store with "permission" from the WTO. But, that didn't happen.

However, reports are now coming out that Antigua finally has plans in place to launch just such a store. Of course, we'll believe it when we see it, considering the decade-long posturing over this issue. Oh yeah, and, once again, the US is warning Antigua not to move forward, claiming that Antigua is acting in "bad faith" and launching the store might "serve to postpone the final resolution of this matter." Considering that the US lost at the WTO nearly a decade ago, and still hasn't "resolved" the matter, that's a fairly ridiculous claim. And, of course, the US is threatening to "retaliate" if Antigua goes forward:

"In these circumstances, Antigua has no justification for taking any retaliatory actions against the United States. Moreover, if Antigua actually proceeds with a plan for its government to authorize the theft of intellectual property, it would only serve to hurt Antigua’s own interests. Government-authorized piracy would undermine chances for a settlement that would provide real benefits to Antigua. It also would serve as a major impediment to foreign investment in the Antiguan economy, particularly in high-tech industries."

So, the short version from the US's point of view is that it's fine to ignore its own trade agreements that wrecked a significant part of Antigua's economy -- but as soon as Antigua fights back and wins, it's not allowed to make use of WTO-approved remedies after years and years of the US refusing to fix its abuses. And somehow when it finally (years and years later) moves forward with this other plan... the US argues that it would harm its international obligations? The hubris from the US is (once again) incredible, if not particularly surprising.

We've covered the Stephanie Lenz / dancing baby / fair use case for years -- but now it looks like there's finally going to be a trial to consider if Universal Music can be punished for sending a DMCA takedown notice on a video of Lenz's infant son dancing to 29 seconds of a song by Prince, which Lenz asserts was clearly fair use. If you haven't followed the case, it's been argued back and forth for years. At one point, the court ruled that a copyright holder does need to take fair use into account before sending a DMCA takedown, but that there needs to be "subjective bad faith" by Universal Music in sending the takedown. In other words, Lenz (and the EFF, who is representing her) needs to show, effectively, that Universal knew that it was sending bogus takedowns. The EFF has argued that willful blindness by Universal meant that it had knowledge (amusingly, using precedents in copyright cases in the other direction, where copyright holders argue that willful blindness can be infringement).

There are a few other issues being fought over -- including Universal Music's contention that the DMCA doesn't apply at all here (both because it insists it wasn't really sending a DMCA takedown, even as YouTube required a DMCA takedown, and because it's arguing that YouTube itself doesn't qualify for the DMCA because it helps process videos -- an argument courts have rejected repeatedly). However, Universal also sought summary judgment on the fair use issue in the other direction, arguing that it is clear that Universal did not have "subjective bad faith" in issuing the takedown, since it believed the takedown to be legit (and still does...). The judge has rejected both arguments for summary judgment, saying that there are disputed facts that need to have a full trial -- in part because Lenz failed to show any evidence that Universal had reason to believe that there was a high probability that some of the videos it was taking down would be covered by fair use. This point is necessary if Lenz is going to demonstrate willful blindness.

Lenz does not present evidence suggesting that Universal subjectively believed either that there was a high probability that any given video might make fair use of a Prince composition or that her video in particular made fair use of Prince's song "Let's Go Crazy." Lenz argues that her video was "self-evident" fair use and that Universal must have known it constituted fair use when it sent the Takedown Notice. However, as the Ninth Circuit recently has observed, the process of making a fair use determination "is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment." .... A legal conclusion that fair use was "self-evident" necessarily would rest upon an objective measure rather than the subjective standard required by Rossi. Indeed, Universal presents evidence that Lenz herself initially did not view her claim as involving fair use....

Accordingly, the Court concludes that Lenz is not entitled to summary judgment based on the theory that Universal willfully blinded itself to the possibility that her video constituted fair use of Prince's song. Nor is Universal entitled to summary judgment, as it has not shown that it lacked a subjective belief that there was a high probability that any given video might make fair use of a Prince composition. Lenz is free to argue that a reasonable actor in Universal's position would have understood that fair use was "self-evident," and that this circumstance is evidence of Universal's alleged willful blindness. Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent required by §512(f).

In other words, this case, which has gone on for years, is going to continue for even more time as a full trial is about to happen.