Last week we, like many other publishers, saw Google's Matt Cutts post a "reminder" that Google's PageRank system punishes sites that sell "links" or "advertorial pages" that pass along an impact on PageRank. After reading it, it actually sent us in a bit of a scramble, because while we're pretty careful about these things, and have no desire to help others boost their PageRank, we suddenly got worried that even some of our fully disclosed and clearly labelled advertising/sponsorship partnerships might technically run afoul of the rule. After reading through a bunch of documentation, we're pretty confident that we're in the clear, but not entirely sure.

Apparently, we're not the only ones. Among those who have been found to be violating Google's stated polices is Google itself. SearchEngineLand has a pretty detailed expose of a variety of ways in which Google appears to violate their stated rules, and also notes that its own site might also accidentally violate the rules in a few places. At that point, you have to wonder if the rules themselves really make sense.

I'm sure that the rules are intended for all the right reasons: no one wants someone to pay to impact search results. But blanket statements about some of these things can get pretty tricky, pretty fast. Google, for its part, insists that it is reviewing its own violations, and the webspam team won't treat its own divisions any different than anyone else. And, in fact, we've seen Google punish itself for similar violations in the past. But the bigger issue is that rather than just showing that it doesn't have a double standard for itself, wouldn't it be better to realize that perhaps the rules aren't as clear cut as some would want them to be, and that perhaps there are better ways to tackle this particular problem?

Space travel is inherently risky, so it shouldn't be too surprising that spacecraft missions to Mars haven't all been successful. Sending people inside metal cans aimed at Mars isn't an easy task -- especially if those people want to return to Earth alive. But as more and more space programs target Mars as a destination, it looks increasingly likely that humans will make it there someday. Here are just a few milestones on the road to Mars.

• The Inspiration Mars Foundation is planning a roundtrip manned mission to Mars (non-stop, so no landing) that would last about 501 days, launching in 2018. A press conference to announce the details will be held on Feb 27th. [url]
• When the Phobos-Grunt mission failed to reach Mars orbit, Russian President Dmitry Medvedev suggested some severe punishments (but no death penalty!) for whoever was to blame. The mission had planned to return soil samples from Phobos (one of Mars' moons), but the spacecraft never left Earth orbit due to a computer programming error. [url]
• Valery V. Polyakov spent 438 continuous days in space aboard Mir and returned to Earth in 1995. That is the longest anyone has stayed in space in a single trip (others have been in space for more time, but over multiple trips), and it demonstrates that it's possible to survive in microgravity for the approximate amount of time it might take to go to Mars. [url]
• Elon Musk has a vision of a public-private joint venture to establish a human colony on Mars. Musk is obviously promoting the SpaceX brand with this kind of public statement, but he also says that a viable Mars mission would need about $36 billion to get off the ground. [url]

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

Earlier this year, in noting just how many movies were getting funded by Kickstarter, we also mentioned that two films that had been funded via the site had been nominated for Oscars in the past -- and that there were quite a few documentaries that were "shortlisted" to be nominated this year, including Inocente. And now it turns out that, not only was Inocente nominated, it won for best documentary, making it the first Kickstarter-funded film to win an Oscar, though I doubt it will be the last. Hopefully this means we can kill off the line we've heard too many times from some industry folks about how Kickstarter isn't for "real" content creators.

As we've discussed a few times, we seem to get threatened with a lawsuit approximately once a month or so (though they tend to come in bunches after extended quiet periods). The threats usually fall under one of two categories: someone upset about something we wrote about them, or someone upset about something someone in the comments said about them. When it's cases where people are upset about something that we have said, often the person is angry that we didn't call them to get their side of the story, as if that were some sort of legal requirement. We've seen such claims very recently, in fact.

However, in a recent court case in California that looked at exactly that question, a judge made it pretty damn clear that journalists have absolutely no legal requirement to reach out to the people they are writing about. The story is a fairly crazy one. The Associated Press wrote a story about a court granting Sheryl Crow a three years restraining order against a guy named Philip Sparks, who had admitted to threatening to shoot both Crow and famed movie exec Harvey Weinstein. The AP reported that Sparks had accused both Crow and Weinstein of "stealing $7.5 million from him, videotaping and following him without permission and leaving him homeless." It also reported that a forensic psychiatrist had testified that "Mr. Sparks is unambiguously delusional."

In response, Sparks sued the Associated Press, arguing that the article was defamatory. Since it was filed in California and California has a good anti-SLAPP law, the AP filed an anti-SLAPP motion. Sparks tried to argue against the First Amendment: "There needs to be a boundary between the Media and the First Amendment, otherwise the Media can hide behind the First Amendment and publish anything that they want regardless if the statements are false, or violate one's civil rights." Of course, that's not true. Defamation laws still apply to the press, but the key issue here seemed to really be about whether or not the AP needed to report on Sparks' version of the story.

Thankfully, the judge pointed out that this was simply untrue. The "tentative order" from LA Superior Court judge Rolf Treu has some useful quotes. As an aside, the website for the LA Superior Court is horrifically bad and nearly impossible to navigate. The fact that it says: "This site is best viewed using Internet Explorer 5 or higher." should tell you something... After a fair bit of poking and prodding, I finally found the ruling, which I've published here and embedded below. But the key point is that there is no requirement to get his side of the story:

To the extent Plaintiff takes issue with Defendant's failure to report facts that Plaintiff raised during the hearing (see Pl.'s Response filed 1/11/13 p. 12-13 (concerning a security expert who pretended to be Plaintiff's lawyer and challenges to Dr. Glaser's diagnosis)), Defendant is not required to present Plaintiff's side of his story or his key facts

The court also pointed out that the AP had no requirement to report on the fact that the doctor who declared him delusional had been sanctioned by the Medical Board of California, noting that "there is no such requirement." The judge makes the key point: as long as the AP reported accurately, they were not required to cover the story the way Sparks wanted them to cover it:

To the average reader, the substance of judicial proceeding was the issuance of the restraining orders, which was accurately described by Defendant's article.

While this just confirms that which was already known, it seemed useful to remind people of this basic fact. Just because someone doesn't contact you or report things the way you want them to, it doesn't mean it's against the law.

Via Slashdot, we learn that a gubernatorial candidate from New Jersey has staked out a clear position against the new "six strikes" Copyright Alert System. Carl Bermanson, a regular in New Jersey politics who entered the race a few weeks ago, made a nice statement about why six strikes is so problematic. Basically: why is it the ISPs' business at all?

"The internet has become an essential part of living in the 21st century, it uses public infrastructure and it is time we treat it as a public utility. The electric company has no say over what you power with their service, the ISPs have no right to decide what you can and can not download". He went on to say that while he believes copyright infringement is unethical, it is not surprising that as the law evolves to disrespect the public domain, that the public would grow to disrespect copyrights.

While some will just brush this off, it is significant in that, to date, most politicians have been playing down the whole six strikes thing as a "good example of voluntary agreements," without realizing just how angry it's making people, and how it's giving them less reason to respect copyright at all.

There are a certain number of people in America that have the mistaken idea that there is some sort of right to not be offended by the speech of others. This, of course, stands in direct contrast to the 1st amendment, but not everyone is fully up on constitutional law. The problem is that when it's members of the government who are confused, we've got a massive competency problem. We've covered earlier examples of this, such as when some New York State senators thought that curtailing free speech was a valid reaction to some folks taking offense. Rhode Island had a similar idea and it was similarly stupid. That said, misguided as these attempts are, at least they are usually made as a result of some vocal minority in the constituency voicing their concern or anger.

Not the case in the story that gort-o-matic provides. In this instance, Georgia state lawmaker Earnest Smith wants to fine anyone who prank photoshops an image of someone $1000... after someone did it to him.

You see, some devious, twisted human being placed His Earnestness's head on the body of a porn star. He did this for public consumption on the blog Georgia Politics Unfiltered. The porn star has a very nice body. He is a porn star, after all. And he is not Ron Jeremy.

The human being behind this affrontery has come forward. His name is Andre Walker. It is unknown if he was moved by the boast on His Earnestness's own Web site that says he is both "accessible" and "audacious."

However, Walker told Fox News: "The first Amendment to the Constitution of the United States protects all forms of speech, not just spoken word."

It's difficult to imagine anyone disagreeing with Walker's assessment of how free speech in the United States works. Fortunately, that difficulty can be set aside, since Smith earnestly supplied the following reply to Fox News:

"No one has a right to make fun of anyone. It's not a First Amendment right."

Take a moment and drink that in. The statement is as impressive as it is incorrect. I say impressive, because in the world of long-winded politicians, you rarely see such a combination of wrongness and brevity. But, in case anyone in our midst is inclined to agree with Smith (who we have to assume is somehow offended at portrayals of him having pornstar-level man-junk), let me disabuse them of the idea that the first amendment doesn't allow offensive speech.

There is a somewhat well-known anecdote involving a dictionary writer in days long past who is approached on the street by a conservative women's group. The group congratulates him on not including any offensive words in the dictionary. In reply, the writer congratulates the women on their steadfast dedication to looking for offensive words. The point of that story is that there are people in our world who look for any and every opportunity to be offended. We do not protect the rights of American Nazi's to march in Skokie, IL because we like that speech. We protect it because opening the door to the opportunistically offended to censor speech, even vulgar speech, is unacceptable. The end result would be the censorship of Salman Rushdie.

The fact is that the first amendment must include a license to offend, even if that means politician's heads will be placed on porn star's bodies.

Qûr Tharkasdóttir writes in to let us know that luxury automobile maker Ferrari is allegedly threatening to sue Swiss NGO Solidar (actually a network of NGOs focused on social justice) for daring to use a Ferrari in their recent commercial that appears to be making fun of rich bankers. The original is here (for now, at least): In response, Solidar has released an updated version of the commercial in which, they've made a small change. See if you can spot it: Just in case you can't see the videos, here are two screenshots. First from the original video: And here's the "new" version. You might spot the change. You'd think that a brand like Ferrari would know better than to threaten a group focused on increasing social justice around the globe. There's no way that argument ends well for Ferrari -- even if they "win."

Oh, look. It's our good friend "copyright" being used to perform a some light censorship. Certain entities seem to love this aspect of copyright -- the fact that it can be used to sweep something embarrassing under the rug.

The entity involved in activating copyright's wonder twin powers (form of a broom!) is Canada's Encana Corporation. And what needs to be swept away? A muttered expletive directed at an analyst who had the audacity to ask a tough question during a conference call.

Encana Corp, Canada's largest natural gas producer, apologized on Thursday because one of its executives cursed after an analyst asked about whether new Canadian investment rules would prohibit its takeover by foreign state-owned entities.

When asked the question by Canaccord Genuity analyst Phil Skolnick, interim CEO Clayton Woitas said: "The answer would be no." Then, in a whispered comment that was clearly audible on a replay of the call, someone can be heard saying, "fucking asshole."

Nice. Apparently, the swearing executive somehow forgot that being in a room full of microphones means even the under-the-breath swearing will be broadcast. Encana, of course, swiftly apologized for the low flying insult. But, instead of leaving it there (which would be perfectly acceptable -- people being fallible and all that), it has decided it needs to erase the recording from the internet, in hopes that reality will fall in line with the official transcript of the conference call.

Unfortunately for Encana, the recording has already been uploaded to Chirbit, an audio sharing site, and so far the play button has been pushed over 55,000 times. Encana is now leaning on Chirbit to take the clip down.

On Thursday, Chirbit founder Ivan Reyes said he has received a takedown request from Encana. Mr. Reyes has declined, citing fair use provisions in copyright law and a site policy directing that such requests be sent to the poster of audio.

Encana, in its request, says:

“Encana is the copyright owner of the Recording. It was expressly stated at the outset of the Conference Call that 'this conference call may not be recorded or rebroadcast without the express consent of Encana Corporation',” the letter states.

“The Recording has been posted without Encana’s consent. The unauthorized use of this Recording clearly constitutes copyright infringement. ... Encana views this matter extremely seriously and requests that you respond to the undersigned on or before the close of business on Friday, February 22, 2013, failing which, Encana will have no other recourse but to take all actions as may be available to it to protect its proprietary rights.”

Encana is trying to erase two words from the internet, something its spokesman finds reasonable and, more sadly, possible.

“I think any individual or organization that has something embarrassing broadcast over the web without proper permissions would make any attempt to have that content eventually removed as, understandably, we do not wish to have that clip living on in perpetuity on the web,” he said.

The clip was uploaded by a Globe and Mail reporter who had recorded the conference call, common practice among journalists to ensure accuracy in their reporting. Copyright over the entire call, much less those two words, is a pretty grey area. Over at the Canadian Intellectual Property Blog, Jahangir Valiani breaks down this scenario.

To be clear, assuming there is no agreement to the contrary, the only aspect of the conversation posted that Encana may be able to claim copyright over is the three words said by its employees. Copyright to the question posed by the third party would belong to that third party unless the person who posed the question assigned it in writing to Encana.

For copyright to exist in a statement, the statement being copyrighted must be an “original… work”. The test for originality in Canada requires the author to exercise skill and judgement, where the skill and judgement exercised must not be so trivial as to be characterized as purely mechanical. While the qualitative test for a statement to be a “work” is low, there is a quantitative minimum that must be met for copyright protection.

The statements made by the Encana executives in this scenario do not qualify for copyright protection as they fail to meet both the criteria for a copyrightable work. The obscenity was not an exercise of skill and judgement. It was an impulsive response to a question that the speaker found insulting. In fact, if the speaker had exercised skill and judgement, it is likely that the he wouldn't have said the obscenity at all.

Valiani says that, in this case, copyright protection for the exec's "unguarded moment" isn't impossible, it's just highly unlikely. If Encana has any recourse, it would be to pursue legal action for breach of contract, as Encana specifically prohibited third-party recording. As noted above, Chirbit is leaving the clip up, citing fair use.

This likely won't satisfy Encana, which clearly wishes the clip to be vanished into the copyright cornfield. The reality of the situation is that even if it gets the clip taken down, the recording will very definitely resurface. Encana's best move is to simply let it go. People swear and do inappropriate things at inappropriate times. Continued pursuit of the offending clip will only "Streisand" it, causing it spread across the internet like a sweary wildfire. Even if Encana is within its rights, it gains nothing by attempting to whitewash something that is already public knowledge.

While the Oscars already happened this past weekend, we missed this one bit of insanity in the lead up. Apparently, Carter Pilcher, CEO of distributor Shorts International, made the rounds last week telling all of the nominees for "best animated short film" that they needed to take their films down from any online site. Why? Because, apparently, online stuff is too lowbrow, and no serious filmmaker would ever promote their films online. From the letter:

The fact that all the films were put online is perplexing as Academy voters have other and better means of viewing the films, including through the Academy-provided DVDs of all the Live Action and Animated short film nominees sent to all voting members. Making the films available online creates no competitive advantage.

Unlike Webbies or Ani's, the Academy Award is designed to award excellence in the making of motion pictures that receive a cinematic release, not an online release. Since 2006, we have built theater audiences significantly and created widespread interest in the films themselves and their place in the movie theater. This release of the films on the Internet threatens to destroy 8 years of audience growth and the notion that these film gems are indeed movies--no feature length film would consider a free online release as a marketing tool!

First off, that last statement is pure hogwash. A large and growing number of feature length films have been released online for free as a marketing tool. There's a whole company called Vodo.net that has helped filmmakers do that. All the way back in 2008, we wrote about director Wayne Wang (who has directed movies like The Joy Luck Club, Smoke and Maid in Manhattan) releasing his latest feature length film... free and online. Another success story involved a relatively unknown indie filmmaker who got his film on Hulu (for free), where it became the most watched thing on Hulu for a while. And, of course, Nina Paley famously released Sita Sings the Blues for free online. The idea that no maker of a feature length film would ever use the internet to release it for free is simply untrue.

And, in many ways, it seems even dumber to remove these short animated films from the internet. As many people have noted, obscurity is a much bigger threat to most content creators than anything else, and one way to guarantee further obscurity is to make sure your work cannot be found or seen easily. Somehow, I doubt that any of these animated short filmmakers are seeing that much money from whatever limited theatrical release Pilcher is able to give them. And yet, by taking their works offline, they may be missing out on building a much bigger and more loyal fanbase, which can help support future projects (Kickstarter, anyone?). The idea that no real filmmaker would promote their films online is something that comes from the viewpoint of an obsolete industry, not someone who is looking out for today's filmmakers' best interests.

As the Congressional investigation into the DOJ's prosecution of Aaron Swartz has continued, apparently a DOJ representative has admitted that part of the reason it insisted on having Swartz plead guilty to a felony and go to jail, no matter what, was that it feared the public backlash for the original arrest if they couldn't then show a felony conviction and jailtime. According to a Huffington Post article, quoting various sources:

Some congressional staffers left the briefing with the impression that prosecutors believed they needed to convict Swartz of a felony that would put him in jail for a short sentence in order to justify bringing the charges in the first place, according to two aides with knowledge of the briefing.

The odd thing is this little tidbit comes at the very, very end of a longer article, most of which focuses on the DOJ telling Congressional staffers that part of the reason they went after Swartz with such zeal was because of his infamous Guerilla Open Access Manifesto. That might explain why they were so eager to arrest him, but it seems like the much bigger deal, considering all the concern about prosecutor discretion, that after they arrested him, they then didn't want to look bad, which is why they continued to demand jailtime and felony convictions.

Many people have assumed all along that the Manifesto played a big role in the case -- and the Manifesto has certainly been a lightening rod concerning Swartz's activities. If you read the actual "manifesto" it's not quite as extreme as some make it out to be -- with much of it talking about taking stuff that is public domain, but still hidden behind walls, and making that available again. The controversial bit really is this paragraph, which starts out with legal activities, but gets much more ambiguous at the end:

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.

Note that initially he's talking about stuff that is out of copyright. When he's talking about databases, note that he talks about buying them for the sake of putting them online, not infringing on the works. It's just that bit about scientific journals. And, yes, if those works are covered by copyright, there's likely infringement there, but it's not entirely clear. Especially in an age where many professors post up free copies of their research any way, and where it looks like we're moving to an age where more and more research is open access anyway. In that context, is what he said really so bad?

Apparently the DOJ thought it was a reason to throw the book at Swartz, even if he hadn't actually made any such works available.

The "Manifesto," Justice Department representatives told congressional staffers, demonstrated Swartz's malicious intent in downloading documents on a massive scale.

Some may agree with that, but it seems like a jump towards "thoughtcrime" since he hadn't actually made any move towards making the JSTOR data available. It's possible that he planned to only make the public domain works (of which there are many) available. It's also possible he planned to leak the whole thing. But, really, you would think that there should be a bit more evidence of that before prosecutors throw the book at him.

More importantly, it suggests that Swartz was arrested and prosecuted for expressing his opinion on how to solve a particular problem. You may or may not agree with it, but I thought the US was supposed to be a place where we were free to express ideas. There's even some famous part of our Constitution about that...

New Zealand has the unhappy distinction of being in the vanguard of using the "three strikes" approach of punishment for people accused of sharing unauthorized copies online. As in France and the UK, this was brought in without any preparatory research to ascertain its effectiveness, and without any real thought about the practical implications. That makes a post by Susan Chalmers on the blog of InternetNZ, a "non-profit open membership organisation dedicated to protecting and promoting the Internet in New Zealand", particularly valuable.

It's entitled "Early Lessons from the Copyright Tribunal", and looks at the first two cases that have come before the New Zealand body responsible for implementing the three strikes law (recently, a third one has been added.)

It's full of fascinating details, and is well-worth reading for the insights it gives into the realities of the three-strike approach in New Zealand. Take the following, for example:

Both were caught illegally uploading songs. The specific "wrong" here according to the Copyright Act is that only the copyright owner can "communicate the work to the public". The law appears to presume that when your BitTorrent client allows other P2P users to download from you, then you are communicating that work to the public, even though that “public” could in fact be one person

That might seem a mere technicality, but as Chalmers points out, it isn't:

The written decisions showed that the account holders had a limited understanding of the technology they had been punished for using. Neither account holder seems to have understood that when you download a file, the client will automatically start uploading it to peers who request it. This goes to suggest that the account holders didn't know what their computer was doing was wrong (though they may have understood that downloading was wrong).

Again, this isn't a minor detail, because of perhaps the most problematic aspect of the three-strikes approach:

The law inverts the age-old principle (you know, that one that's essential to due process and a democratic society) that a person is "innocent until proven guilty". In a normal copyright infringement case that occurs in a court of law, the burden is on the copyright owner to prove that the alleged infringer infringed.

Under Skynet, the burden is on the alleged infringer/account holder to prove that they did not infringe. Specifically, they have to contest each of the three infringements listed on the notices.

Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined. With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.

As Chalmers emphasizes:

We have to be immensely careful that in developing novel legal standards and processes to protect copyright owners in the online environment, we do not gloss over the basic safeguards that should be provided to people under a fair legal system.

On the basis of these early cases, and the clear bewilderment and helplessness of those accused, it would seem that this is simply not happening. It will be interesting to read a similar analysis once more people have been processed by the system.

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Joseph M. Durnal was the first of a whole bunch of you to send in a version of this story showing how NASCAR abused copyright to take down some videos. You may have heard that there was a big NASCAR crash at Daytona that sent debris flying into the stands. Well, a video from those same stands, which shows a wheel lying in the seats next to someone injured, was deleted from YouTube via NASCAR claiming copyright on it and issuing a takedown. Obviously, that's a bogus claim, because the copyright would belong to the guy who filmed it.

As the press started calling, NASCAR gave what might seem like a perfectly reasonable response:

The fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.—Steve Phelps, NASCAR Senior Vice President and Chief Marketing Officer

Sounds great, except it's totally bogus. NASCAR may well be concerned about those injured by the crash, but that does not give them the right to automatically remove someone else's video, nor does it allow them to abuse the DMCA takedown process for that purpose. The DMCA only applies to copyright.

Of course, once again, we're seeing how when our laws make it easy to censor via copyright claims, many people seek to do exactly that. Thankfully, all of the attention on the takedown has resulted in YouTube doing what appears to have been an expedited review, and have put the video back:

We've written a bunch about the disruptively innovative transportation company Uber, which has been running into regulatory issues with multiple local regulators. Andy Kessler recently had a fantastic interview with Travis Kalanick, Uber's CEO, concerning the regulatory battles he keeps running into. If you've followed Uber over time, very little in the interview will be surprising. It tells of Kalanick's past -- he was sued for $250 billion at one point for running Scour.com, an early file sharing site -- but also of his belief that these regulations are protectionism for legacy industries.

One bit that struck me however, was his response to Kessler posing an expected question concerning Uber's penchant for launching first and dealing with the regulatory fallout later (well, and reaping the publicity rewards of complaining about being stifled by regulations):

When I suggest to Mr. Kalanick that Uber, in the fine startup tradition, was using the "don't ask for permission, beg for forgiveness" approach, he interrupts the question halfway through. "We don't have to beg for forgiveness because we are legal," he says. "But there's been so much corruption and so much cronyism in the taxi industry and so much regulatory capture that if you ask for permission upfront for something that's already legal, you'll never get it. There's no upside to them."

I think this is actually pretty important. There's been plenty of talk about the importance of permissionless innovation and permissionless creativity. That is very important. But, somehow, we rarely talk about the flipside, which is that those engaged in creating wonderful and innovative things also should be proud of what they're doing, rather than feeling like they need to ask forgiveness for upsetting the apple cart. Disruption is a messy business, but in the end it creates tremendous benefits for nearly everyone (except those who relied on the old way, and refused to change). It's great to see a company like Uber leading the way.