It just seems unlikely that someone doing business as wholesome breakfast food would find himself facing two lawsuits mere months apart. Matthew Inman, the cartoonist behind The Oatmeal, had just finished staring down a trollish lawyer named Charles Carreon, using a combination of bearsex and charitable donations. Now, Inman finds himself being sued for trademark infringement by Oatmeal Studios, a Massachusetts greeting card company (read the full filing here).

The comic teamed up with the company that owns the Papyrus chain of card and gift shops, Recycled Greetings, to sell paper greeting cards of his Web comics via the The Oatmeal's Web store, along with other novelty items. But that caught the attention of Oatmeal Studios, a Massachusetts greeting card company that says it's been selling greeting cards under that name for 35 years. Oatmeal Studios sued Inman and Recycled Greetings, claiming a trademark on the phrase "Oatmeal Studios." In a complaint filed in Boston federal court earlier today, Oatmeal Studios says that Inman's use of The Oatmeal is too similar, and likely to confuse consumers, who may believe the businesses are related.

As Ars Technica notes, the suit lists only one count of trademark infringement and doesn't ask for any specific dollar amount in terms of damages. The filing asks for an injunction prohibiting The Oatmeal from selling any products or services that are similar to Oatmeal Studios' offerings, along with statutory damages. Inman has not responded publicly to this lawsuit, other than posting a link to Ars Technica's story on his Facebook page.

However, the company bringing the lawsuit has commented on its actions, basically stating that Oatmeal Studios is simply protecting its core business against a larger competitor.

We are a small New England Greeting Card company, founded 35 years ago in Vermont by a woman who loved to design cards and her husband. Oatmeal was the name of their pet rabbit. Over the years they steadily built the business through hard work, and today we have over 2100 outlets nationally, including many small local stores as well as bigger chains.

The Greeting Card industry is very competitive. We were alarmed to hear recently that one competitor, a large greeting card and gift company (and part of one of the world’s largest publicly traded Greeting Card companies), announced the introduction of a new line of cards, "The Oatmeal", to be sold nationally to many of the same customers we serve. They clearly have infringed on the rights that our original founders worked so hard to create decades ago. So, we sent a cease and desist letter and filed a complaint to address this issue. This large company has known about Oatmeal Studios® and competed against us for years, and we are simply trying to protect our name and defend our rights.

Unlike Carreon's desperate (and often comical) legal flailings, Oatmeal Studios very likely has a legitimate case. The Oatmeal's greeting card sideline isn't some informal DIY project. Inman's working with Papyrus-Recycled Greetings (the co-defendant), a division of American Greetings, to produce his line of cards. And while some may argue that Inman's distinctive drawing style would be unlikely to be confused with an unrelated card company's output, this is likely only true for Oatmeal (the comic) fans. Oatmeal Studios also specializes in humorous greeting cards, many of which utilize hand drawn cartoons. As a long-time reader of Techdirt, I can safely say this is one of the saner trademark suits we've covered.

So far, Inman has remained quiet on the subject. The lawsuit contains the usual boilerplate claiming "intent to deceive," but at this point, that doesn't seem to be the case. This could be chalked up to lack of due diligence before diving into the greeting card field, "safe" in the assumption that no one else was actively using the word "Oatmeal" to sell cards. If there are more details in the background, it seems they won't be revealed until the suit proceeds. Inman is being uncharacteristically quiet, but then again, this isn't another edition of Charles Carreon's three ring legal circus.

The more we watch animals, the more we can see them show off their intelligence. A bunch of different animals have been observed making and using tools -- and sharing how to use them with their friends. Here are just a few examples of some animals using tools in fascinating (and maybe dangerous) ways.

• A captive cockatoo has been seen creating a tool spontaneously and improving upon its design. This behavior has not been observed in the wild (yet?), and it hasn't been replicated by other captive cockatoos. Still, it shows there's tool-building potential in these birds. [url]
• Female chimps are usually the innovators in primate communities. The female chimps tend to leave their families when they mature... and the socializations and sharing create opportunities for starting new cultural trends -- like ant fishing with twigs or washing food before eating. [url]
• Unfortunately, a mobile chat app for bonobos didn't get funded on Kickstarter. But this could still be a really cool zoo exhibit to get people communicating with apes. [url]
• Forget sharks with lasers attached to their heads. The Ukrainian navy is training dolphins "to attack enemy combat swimmers using special knives or pistols fixed to their heads." Hmm. Arming dolphins doesn't seem necessary since they're already powerful enough to kill a person underwater... but maybe dolphins with guns will look more menacing to enemies. [url]

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

A few years ago we wrote about how UCLA professors were barred from continuing an existing program in which they had streamed properly licensed DVDs to students. The lawsuit came from the Association for Information Media and Equipment (AIME). We noted that one of the key aspects of "fair use" is supposed to be that it allows for educational use, and it seemed ridiculous that any such streaming wasn't fair use. After thinking it over, UCLA decided to stand up for itself and put the videos back online. AIME sat on this for eight or nine months and finally sued, arguing that its contract with the University meant that UCLA had given up its fair use rights, and that even if it was fair use, it was a breach of contract. A year ago, the judge dismissed the case, mostly focusing on the question of whether or not AIME even had standing to sue and whether or not, as a state university, UCLA could hide behind a sovereign immunity claim.

AIME filed a new (amended) complaint against UCLA... which basically restated everything it had lost over, and then added a few claims. The court apparently was not impressed. It just dismissed the case all over again with prejudice, meaning that AIME can't just refile. On top of that it actually dealt a bit more with the copyright questions. First, it was not at all impressed by AIME's decision to just replead the same exact thing a second time:

In its order dismissing the FAC, the Court dismissed with prejudice all claims against the Regents and claims seeking damages against individual defendants in their official capacity on the grounds that these individual defendants are immune from suit under the doctrine of sovereign immunity... Plaintiffs have verbatim re-pleaded those claimsfrom the FAC for purposes of appeal.... As these claims have already been dismissed with prejudice, the Court does not analyze them further.

Later the court goes through a relatively quick fair use analysis, focused mainly on the question of whether it would have been obvious to the average person that this use was not fair use. The court finds plenty of ambiguity in the fair use analysis, and thus notes that it is not obviously a case of infringement, so AIME's claim that this was clearly infringement doesn't hold up.

Then there are a few other interesting points, including a discussion of whether or not streaming is a form of "distribution." Remember that we were just discussing the whole distibution right under copyright law, even pointing out that if you read what copyright law actually says, it only refers to "material objects" in which a copyright-covered item is "fixed" -- not to transient digital files. This appears to be one case where the court actually noticed that fact, and points out that with a stream, the digital product was not actually distributed:

Under the Copyright Act, distributed items must be “material objects” in which a copy is “fixed.” 17 U.S.C. § 101. Plaintiffs’ new allegations that “the Video Furnace system administrator retains an original copy of the AVP DVD while distributing copies to end users, which copies remain on the end user’s computer as long as the Video Furnace InStream player remains open” does not change this outcome. For a copy to be fixed, it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration.” 17 U.S.C. § 101. The “copy” on the end users computer, as alleged, is not fixed.

They also have an interesting response to the anti-circumvention DMCA claim in the amended lawsuit. One of the main problems many people have with the anti-circumvention clause is that it appears to apply absent any actual infringing activity. That is, under the DMCA it appears that merely circumventing DRM, even if for legitimate, non-infringing uses, is considered against the law. But here, the court rules that since the copy is legal, there is no problem with circumventing the DRM. That's very interesting:

This Court finds that Plaintiffs have failed to cure the defects with their DMCA claim. First, the allegations in the SAC do not support a claim that Defendants violated 17 U.S.C. § 1201(a)(1)(A) by using the HVS Video Furnace software to “circumvent . . . a technological measure that effectively controls access to” the DVDs because UCLA had lawful access to the DVDs and Plaintiffs essentially allege improper usage of the DVDs.

Either way, the latest ruling is a complete victory for UCLA and yet another loss for AIME. While the question of fair use is still mostly brushed aside (unfortunately), the overall ruling is a good thing.

Mathew Ingram points us to the somewhat stunning claim that, during the Macy's Thanksgiving parade last week, some of the confetti showered down on viewers in Manhattan was poorly shredded documents from the Nassau County police department (for those not from the area, Nassau County is not in NYC, but right next to it on Long Island).

"There are phone numbers, addresses, more social security numbers, license plate numbers and then we find all these incident reports from police."

One confetti strip indicates that it's from an arrest record, and other strips offer more detail. "This is really shocking," Finkelstein said. "It says, 'At 4:30 A.M. a pipe bomb was thrown at a house in the Kings Grant' area."

Apparently there was also some info about Mitt Romney's motorcade for the last presidential debate that took place at Hofstra University (in Nassau County). And worse:

Most significant, the confetti strips identified Nassau County detectives by name. Some of them are apparently undercover. Their social security numbers, dates of birth and other highly sensitive personal information was also printed on the confetti strips.

The story sounds so bizarre that I'm wondering if it's really true, or if it's just someone messing with the press. But, of course, it's entirely possible. You'd just hope that modern police agencies were smarter than that.

It's cyber-Monday, the day when many of us basically go to Amazon.com and get a bunch of gifts for friends and family because going to the store this time of year is as dangerous as a North Korean prison camp. I say "many of us" partially to account for anyone out there who doesn't celebrate Christmas and partially to account for the hardworking folks at America's Immigration and Customs Enforcement, who instead spend the day posing as shoppers to shut down internet sites that they think are selling infringing or counterfeit products and replacing their web pages with handy little ICE "naughty" badges (Just like Santa would do! Yay!). We covered their exploits last year as they went about taking down 150 domains, sans the websites in question being able to tell their side of the story. It's like justice, minus any of that annoying rights of the accused crap!

Well, ICE is at it again, this time taking down only 132 websites, in their effort to stop commerce they decide they don't like.

"This operation is a great example of the tremendous cooperation between ICE and our international partners at the [Intellectual Property Rights Coordination Center]," ICE Director John Morton said in a statement. "Our partnerships enable us to go after criminals who are duping unsuspecting shoppers all over the world. This is not an American problem, it is a global one and it is a fight we must win."

As with last year, ICE appears to be focusing on trademark infringers and counterfeiters, but they haven't released the list of sites seized yet, so we can't be sure there aren't any Dajaz1-type screw-ups in there as well. Still, the question remains why they have to do this en masse on one day instead of going through the more tedious, though transparent, process of taking the sites to court. Yes, the article states that they are getting court orders to take down the sites, but why not actually drag site owners into the courtroom and give them a chance to represent themselves before shutting down their ability to operate entirely? Is it likely that most, if not all, of these sites are infringing some way? Perhaps, but given that we've seen ICE take down innocent sites in the past, why not err on the side of caution and actually follow the justice process?

I also find Morton's comment about this not being an "American problem" quite amusing given the annual cyber-Monday take down blitz. If this isn't an America-focused event, why is it being conducted on cyber-Monday, a predominantly American marketing term?

A few folks sent over the following story of how Disney is being sued for copyright infringement. Seems a bit ironic, given just how strict Disney has been over the years in enforcing its copyright and being at the forefront of efforts to expand copyright law -- even as it tend to build some of its greatest works by copying works in the public domain. In this case, a design company produced a graphic that consists of drawings of dozens of dogs, each with a little signature under their names: Disney then introduced a teen fashion line called "D-Signed." However, some noticed that one of the t-shirts had a design quite reminiscent of the original dog artwork. Perhaps I'm missing something, but I don't see where those particular images were directly copied from the original. As fun as it would be to catch Disney in a clear copyright violation, the dogs on the t-shirt don't appear to be the same. And, we're always told that there's an "idea/expression" dichotomy in copyright law, which is supposed to mean that you only protect the specific and defined expression -- not the general idea. So I'm just not sure I see how this is infringing, even if the idea was taken from their poster. Obviously I can understand the creators' frustration, but that hardly means there's a legal claim. Update: On closer inspection, as pointed out in the comments with a handy illustration, it turns out the copying was more direct than we thought.

TorrentFreak points us to an interesting new study from Christian Peukert of the Munich School of Management, and Jorg Claussen from the Copenhagen Business School, that looks at the shutdown of Megaupload to see if they can determine what impact it had on the box office for various movies. The findings are probably not what Hollywood wanted to see: basically, the evidence shows that taking down Megaupload didn't suddenly send people running back to the theaters. In fact, for many, many movies there appeared to be a tiny decrease in box office take, though the results are not statistically significant. The one exception to this was for "blockbuster" films that appeared on more than 500 screens. There there was a similarly tiny increase in box office. Considering that the MPAA and studio heads keep insisting that they're really concerned about indie filmmakers when they try to stamp out piracy, this suggests they may be doing it wrong.

Of course, you shouldn't read too much into non-statistically significant findings, but at the very least the data does pretty clearly show that there wasn't a sudden rush by people to go back to the theaters once Megaupload went away. Furthermore, it's possible that at least some movies -- perhaps a lot of movies -- were slightly harmed by less word of mouth. As the researchers note:

Our counterintuitive finding may suggest support for the theoretical perspective of (social) network effects where file-sharing acts as a mechanism to spread information about a good from consumers with zero or low willingness to pay to users with high willingness to pay. The information-spreading effect of illegal downloads seems to be especially important for movies with smaller audiences.

At the very least, it seems like a good area of research that deserves more study going forward.

The evolution of the V for Vendetta Guy Fawkes mask from a clever element in a comic book and film to a meme and a global symbol of online and offline resistance has been quite remarkable. A highlight of that trend was earlier this year when MPs in the Polish parliament donned the masks in protest against ACTA, spurred on by massive street demonstrations against the treaty that had recently been held across Poland.

But if the mask has become a way of empowering and uniting protesters, aligning them with other movements around the world, it also becomes an obvious badge of dissent and rebellion, marking them out as a likely enemy of established power structures. It was thus probably only a matter of time before simply wearing a Guy Fawkes mask became grounds enough for the police to move in, as here:

Police officials in Dubai have warned against wearing a mask that symbolises opposition to state authority during any celebrations connected to National Day and declared it illegal.

Any person found wearing Guy Fawkes masks, also known as "Vendetta masks", risks police questioning as any object or action deemed to be instigating unrest or insulting the UAE is illegal, police officials said.

Of course, this simply strengthens the credentials of anyone wearing such a mask, whether in Dubai or elsewhere. And that, in turn, will encourage others around the world to adopt it as a symbol of protest, probably prompting more governments to declare it as "illegal", which will boost its iconic power yet further.

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As promised, we're going to continue working on our series of posts analyzing the Republican Study Committee's (RSC) report on copyright myths and how to fix the broken system. We already explored the first myth the paper discusses, that the purpose of copyright is to compensate the creator. That has simply never been true. The purpose is laid out plainly: "to promote the progress of science and the useful arts." And if you really want to go back to the original meanings of all of this, the "science" part is what copyright was talking about, and they really meant for it to cover learning. It was not originally intended for all creative content at all. That's a later bastardization. Even so, it's pretty clear that the purpose of copyright was to "promote the progress." The mechanism was to create an artificial scarcity, via exclusion, that helped support one possible business model for content creators: selling copies of their works for a limited time. That's it. The purpose: promote the progress. The mechanism: artificial scarcity. The problem is when people confuse those two and assume the "mechanism" is the purpose. Tragically, that's what happens all too often.

After we published the initial post on this, some complained that we weren't giving "the other side" fair hearing. So with this post, I wanted to highlight three responses from copyright maximalists, who claim that the arguments made in the RSC paper are faulty. It's important to understand what is being said and where these arguments come from. Let's start with Tom Giovanetti, the man who once called me a "bolshevik" for suggesting that copyright reform was necessary. Amusingly, Giovanetti appears to take credit for getting the RSC to pull the document, though we know that those with much more significance made the calls that actually had an impact. However, Giovanetti's dismissal of the RSC paper is based on one adamant statement: that copyright is property. Period. End stop. No questions.

Rather, it's because, as a property right, copyright is a critical element within the GOP's market-orientation. Markets simply don't work without property rights. You can't have contracts, or licensing, if you don't have clear and enforceable property rights. ALL business models, not just "new" business models, rest on property rights.

This is one of those "nice in theory, totally not true in practice" claims. Here's the thing: copyright has some elements that are "property-like." It allows legal exclusion, like property. It can be sold and transferred, like property. But it has many facets that are not at all like property. The content in question is non-rivalrous and non-excludable for the most part. That's not at all like property. Anyone who defines it as property, without acknowledging the "non-property-like" attributes, is either ill-informed or being purposely misleading. I'll leave it to the reader to determine which is the case here.

As for the idea that all business models "rest on property rights," that's an interesting argument, but again one not supported by reality. Many business models are built on real property rights -- that is, property rights around scarce goods, which are excludable and rivalrous -- but when it comes to non-scarce or infinite goods, there are lots of new business models generated, often by increasing the value of different scarcities. To prove Giovanetti wrong is easy. You just point to any one of the the many content creators who give away their works for free, and profit elsewhere. Hell, point to us. You're reading this for free, and we're making money -- without relying on the "property right" of copyright. Are we relying on some other property rights? Sure. Property rights for real, scarce, property.

And that's the real problem with those who just default to the "copyright = property" argument. It's silly and it's meaningless, because the fact that you can't necessarily rely on copyright for all your profits does not mean there aren't other property rights by which you can make money. In fact, history has shown time and time again that when something is subject to unfettered copying, new business models appear elsewhere.

Further, because the GOP believes in innovation, copyright is a natural fit, because copyright incentivizes and encourages the creation, distribution and promotion of new information. The alternative to copyright isn't free information, but less creation, less widely distributed and marketed.

This is also empirically untrue. Giovanetti seems to want to tell fairy tales by ignoring the actual evidence. Over the last decade, at a time when copyright infringement has been widespread, the amount of content created has skyrocketed at unprecedented rates, and that content has been much more widely distributed and marketed, thanks in part to new technologies.

Furthermore, if we're going to go hardcore "property rights," then it would seem that Giovanetti should really be supporting the copyright reformers, since current copyright reform tramples on property rights all the time. My DVR can't automatically skip commercials. But I paid for it. Why can't I have it do what I want it to do? I bought this DVD, why can't I legally move the content to my computer to watch it? I bought this book in Thailand, why can't I now sell it in the US? These are all issues where copyright is currently invading my property rights. Now, you can make an argument that these are reasonable restrictions on my rights, but if you're going to just scream "property rights" like Giovanetti does, you would think that it's only fair to highlight the ways copyright intrudes on property rights as well. But he doesn't. So, it's difficult to take Giovanetti seriously on this point at all. And since his entire argument is based on this fallacy, let's just move on.

Next up, we've got the Copyright Alliance, a lobbying organization that was set up to protect large studios and record labels' interests while pretending to support creators' interests. They brought along a law professor named Mark Schultz, who you would hope would understand the law, but in fact has a rather simplistic argument that not only falls into the same Giovanetti trap of "but, but, but copyright is property," but goes further in arguing that copyright reformers are really just a bunch of evil "collectivists" seeking to redistribute property from those who rightfully own it to anyone else.

The people who create expressive works deserve to own them and benefit from them. So do the companies that finance and purchase these works for commercial exploitation.

Note that we're already starting off on a bad foot, where the entire basis of the argument is a purely moral one -- that people "deserve" to "own" expressive works. But this statement, beyond pulling at the moral question rather than anything factual, suffers from significant problems. First, what is the "them" that people "deserve" to own? The original work? Sure. But, just as a candlemaker owns that candle, once he sells it to someone else, he no longer "owns" that candle. So, this is a pretty weak starting point. All copies of the work down the line? Well, that's a problem too. Because if I buy that candle, I can make a copy, and I'm not violating anyone's rights in the tangible world. So, already we seem to be stepping beyond the normal bounds of how these things work. But we're just beginning down a weird rabbit hole stuffed to the brim with strawmen that Schultz wants so badly to knock down:

Many modern copyright scholars and commentators have embraced a severe utilitarian view of copyright. In this view, the sole justification for copyright is the benefit that creators provide to society. Society would benefit most if creators worked for free, but, alas, we cannot always convince them to do so. Copyright is thus an unfortunate necessity, given to creators to induce them to provide society what it needs. The labor or welfare of creators has no importance under this view—they and their works exist to serve the good of the greatest number.

I know of no person, on any side of this debate, who has argued that "society would benefit most if creators worked for free." What many of us have argued is that there are more compelling and useful business models from which they can benefit, while also providing greater societal benefit. In economics, it's called increasing the pie. But people like Schultz, who perhaps have little background in economics, seem to think that this is a zero sum game -- and if anyone else benefits, it means the content creator must be losing. Reality says something quite different. You can expand the pie such that the creator can benefit, and profit, and so can society. That's what many of us are aiming towards.

Furthermore, the claim that "copyright is a necessity" to incentivize creation once again ignores the fact that there are other, significant business models that don't rely on copyright at all. It's difficult to take someone seriously when they set up a strawman that reflects an argument no one is actually making... and then knock it over with an even sillier argument that ignores the reality of the market.

As between creators (along with those who finance and/or purchase the rights to their work) and others, who has a better claim to control and exploit a work of authorship? Of course, to a dedicated IP utilitarian, this question is irrelevant. Nobody deserves anything; society takes what it needs, subject to the need to persuade the producer to keep producing what the takers want. While such a churlish and ungenerous view of creators is apparently acceptable to some, many would find the implications chilling.

Again, this is a pure strawman, made up in the fantasy world that lives in Schultz's mind. I've never seen anyone argue that "society takes what it needs." But he's right that the question he's asking is irrelevant. He's asking who is best to "control and exploit" something that does not need to be controlled or exploited in the manner he suggests. As an analogy, it is like he is saying "who better to control and exploit the road in front of your house, than the house owner?" You could legitimately make that argument. But, of course, we don't think of the road in front of your house as being something that someone needs to "exploit." Why? Because it is a piece of infrastructure that creates much greater benefit for everyone, such that they can profit. This is not a case of taking away rights from someone to make them worse off. It is about using core infrastructure to increase the pie and make greater opportunities for everyone. When viewed that way, you can see where focusing on the direct exploitation of each work is pretty silly. What if, instead, the system that works is one in which the music enables many other business models that allow for greater profits?

So, Schultz's argument is based on the same basic fallacy as Giovanetti's, just at a slightly higher intellectual level. Rather than just focusing on "copyright is property," Schultz is arguing both that copyright is property, and that we live in a zero sum world. Since neither point is true, his argument falls apart entirely. Moving on.

The final stop on our tour of rationalization comes from Terry Hart's Copyhype blog, where he kicks it off with a bizarre, and entirely false statement about me, claiming that I stated I will "no longer be able to enjoy future papers, for they will only pale in comparison." I said no such thing, nor do I believe any such thing. Hart is usually quite careful in his statements, and the fact that he needs to resort to an outright lie to kick off his post should give you a sense of where he's going to come from with his attack on Derek Khanna's paper.

Most of Hart's arguments are based on taking snippets of quotes from people in the past to argue "nuh-uh" to things in Khanna's paper. That is, rather than argue reality, let's focus on what someone said years ago if it disagrees with the paper. That's not particularly convincing. It is not difficult to come up with just as many quotes from people arguing the opposite viewpoint at the same time. So, for example, he quotes some people arguing that copyright is property -- both among the Founders and more recently at the Supreme Court. But, it is equally true that there were Founders who believed copyrights to be evil monopolies, and there are Supreme Court rulings that state that copyright is not like property. So, I'm not sure what good random quotes (sometimes out of context) do for this argument.

But then we get to the crux of Hart's argument, which presents a rather troubling and misguided understanding of innovation in capitalist societies:

One of the favorite claims of copyright skeptics is that creators routinely oppose new technology because it “disrupts their business model.” On the contrary, it is often the case that the businesses utilizing the new technology are the ones who feel entitled — entitled to profit off the exploitation of established rights without compensating creators merely because they are using new technology. In this case, creators do “deserve” compensation. This isn’t a prize at the bottom of the box, it’s one of the foundations of a just capitalist society.

Note that we're taking a step up the intelligence scale here from Schultz, but basically making a more advanced version of the same argument: that someone "deserves" something. Again, this is a moral argument that distracts from the point and is hard to support in reality. Second, there is a major assumption in that paragraph that is simply untrue: the idea that companies "feel entitled to profit... merely because they are using new technology." Nothing could be further from the truth, especially in a "just capitalist society." In such worlds, there is no "entitlement" to profit. There is merely what you can get in the market. What many new companies are doing is not feeling entitled to profits because of new technologies, but using new technologies to create economic growth and then using that economic growth to put in place a business model in which people or companies transact with them willingly, such that they can profit.

That is how capitalism works.

What many maximalists seem to fail to understand is that these new technology providers increase the pie. They create economic growth through new technologies and services, and they profit from some of that, but also leave open much of that expanded market for others to profit. This is true throughout history. I know that Hart, in particular, tends to break out in hives (a joke) whenever anyone brings up the "VCR," but it's an instructive example. The movie industry insisted that it was allowing consumer electronics companies to "profit off the exploitation of established rights without compensating creators merely because they are using new technology." And, yes, while Hart would like to scrub this point from history, Jack Valenti did say that the VCR was to the American filmmaker what the Boston Strangler was to the woman at home. It was, as Valenti was making clear, supposedly going to kill the industry.

But it didn't. It was merely five years after Valenti said those words during a Congressional hearing that revenue to the Hollywood studios from home movies surpassed the box office. Five years. And it didn't require a new law. Or forcing these "tech companies" to pay the rights holders what they "deserved." No, instead all it took was the entertainment industry adapting to the new technology and realizing that the pie grew. Massively.

Amusingly, in his let's forget Jack Valenti post from last year, Hart had the following to say about the "myth" that copyright reformers build around Valenti's testimony:

the myth that “content industries hate technology” fails for several reasons. It requires fabricating a group (“the content industry”), ascribing a broad characteristic to it (“hates technology”), and then pulling together disparate quotes from anyone who has stated a concern over some new technology as proof of the theory.

Yet, of course, that's the exact same thing that Hart does in his post trying to debunk Khanna's paper. He fabricates a group ("the tech industry") ascribes a broad characteristic to it ("feels entitled to profits that others deserve because of new technology") and then pulls together disparate quotes as proof of that theory.

So, while I find Hart's critique of Khanna's work informative in surfacing a few interesting historical quotes, it too fails for the same basic reasons as the other two responses cited above.

That said, I appreciate that they are willing to jump in to the debate, and find it sad that members of Congress, whether Republican, Democrat or anything else, have decided that it's not even worth having this debate at all.

I have no idea what it is with certain politicians that makes them believe they can somehow "curb" violence by cordoning off a section of the internet. They don't seem to realize that determined individuals will simply route around their half-assed roadblock without breaking a sweat. Even worse, they don't seem to realize that useful information on violent groups and individuals can often be gleaned from the very same lines of communication they're trying to cut.

In this case, it's very much like grandstanding politicians trying to shut down "human traffickers" like Backpages and Craigslist, failing to understand that law enforcement can use the same services to track down offenders. Rather than look for the upside of having a live feed from the enemy front (or realize the ultimate futility of their efforts), these lawmakers have chosen to throw a bunch of effort (or at least, words) behind a bad idea.

Seven House Republicans asked the FBI in September to demand that Twitter take down the accounts of U.S.-designated terrorist groups, such as Hamas, Hezbollah and Somalia's al Shabaab. The letter to FBI Director Robert Mueller was spearheaded by Rep. Ted Poe (R-Texas), who said Wednesday that the recent events vindicated the request.

“Allowing foreign terrorist organizations like Hamas to operate on Twitter is enabling the enemy,” Poe said in an e-mailed statement to The Hill. “Failure to block access arms them with the ability to freely spread their violent propaganda and mobilize in their War on Israel.

Now, I'm not going to claim to be smarter than these politicians (although you're certainly welcome to make that claim for me in the comment threads), but I'm curious as to how they arrived at the conclusion that blocking Twitter accounts would somehow result in less violence committed by terrorists. One could argue that breaking down a line of communication might result in some temporary disruption, but I've got to believe that Twitter isn't the only line of communication Hamas has.

Shutting down these accounts would do little more than a) make these politicians feel better about having done something, b) annoy (and possibly provoke) already irritable and violent groups, and c) move communication anti-terrorist entities rely on to a new channel possibly unavailable to them. The downside easily outweighs the upside, because the "upside" only benefits these seven lawmakers, giving them a feeling of power and self-righteousness, which will be cold comfort to those who might actually be using these feeds to glean intelligence and help defend themselves.

Then there's this amazing sentence, which must have been composed by Poe at a cost of one IQ point per letter:

The FBI and Twitter must recognize sooner rather than later that social media is a tool for the terrorists.

Any form of information dissemination can be considered a "tool" for terrorists. Imbuing Twitter with some sort of terrorist-defeating powers is ridiculous. Berating the FBI and Twitter for aiding and abetting terrorism through inaction is even more so. This is merely a continuation of Poe's anti-Twitter obsession, which began back in September when he first penned a letter to the FBI requesting the takedown of these "terrorist" accounts, citing (of all things), Twitter's decision to block a neo-Nazi account in Germany. (The account could still be read anywhere else in the world, or even in Germany with minimal effort.)

Poe is once again attempting to use Twitter's own statement against it, but the FBI just isn't giving this group of lawmakers the one thing they need to get their way:

“Twitter maintains that it will take down any account requested by the FBI,” seven Republican members of Congress wrote to the FBI last month. “As of this writing, the FBI has not made a single request to Twitter to take an account down.”

And (once again), Poe and his co-signers are using recent events to further their own agenda.

“Not one account has been shut down, unlike on YouTube and Facebook,” Poe told the Free Beacon.

“Twitter is not going to take it upon themselves to shut them down,” which is why the FBI needs to take action, Poe said.

The FBI isn't buying it, however.

FBI Special Agent Jason Pack told the Free Beacon, “The FBI received the Congressman’s letter and will respond to it appropriately.”

One assumes Pack "responded" by tossing the angry letter into the nearest trash can, possibly running it through the shredder first. The latest missive means someone at the FBI will need to empty the trash can, but given the results of Poe's previous demands, I highly doubt Twitter will be shuttering any accounts.

Poe has also expressed his disappointment in the Obama administration for not pushing for more Twitter shutdowns.

Poe speculated that one reason the Obama administration has not pursued the issue is because terrorists’ Twitter pages are a rich vein for the intelligence community to mine.

Poe, however, said that this is not a good enough reason to give these radical actors free rein on the Internet.

“If that’s [the administration’s] only way of knowing” what terrorists are up to, “we’ve got some serious problems with our intelligence service,” Poe said.

There's Poe's problem. He views Twitter as the only thing. In his mind, it's the only source of communication for terrorists and it's the only source of intel for the intelligence community. Poe has seized on Twitter as the only problem and won't be dissuaded easily, no matter how often the FBI refuses to indulge his "social media = terror" hobby horse.

The Free Beacon's Republican slant inadvertently suggests that Poe may just be kicking around Twitter because its "best friends" with Obama.

Twitter’s Washington D.C. lobbying team is comprised of several Obama administration confidants and former Democratic Hill staffers. Adam Sharp, the site’s top government liaison, formerly served as deputy chief of staff for Sen. Mary Landrieu (D., La.). Its global public policy official, Colin Crowell, was a senior aide to Rep. Ed Markey (D., Mass.), while Twitter’s head of international strategy, Katie Jacobs Stanton, once worked with the Obama administration on new media strategies.

Since 2011, several individuals who list their employer as Twitter have donated primarily to Democrats, including the Obama campaign and Massachusetts Senate candidate Elizabeth Warren.

So... maybe it's not really about terrorism. Maybe it's just good, old fashioned partisanship sporting War on Terror clothing. No matter how you slice it, though, there's only one thing it truly is: stupid.

We've written a few times about the urgent need to reform ECPA -- the Electronic Communications Privacy Act, which is woefully outdated, having passed in 1986. Of course, every time there's an attempt to reform it, it seems to fail, often because folks in law enforcement like the outdated law that lets them easily spy on others without a warrant. The latest attempt at ECPA reform is a mostly good proposal from Senator Leahy that (as expected) has law enforcement types livid. The crux of the reform is that law enforcement would need to get a warrant for most situations if they wanted to peer into your electronic lives. That seems entirely consistent with that quaint concept sometimes referred to as the Fourth Amendment.

Last week there was some buzz about a possible manager's amendment from Leahy that would open the door to various federal agencies being able to issue subpoenas without having to get warrants, but Leahy has since insisted that he will introduce no such amendment. Whether it was because of the outcry about it, or if it was never really intended, is a point of some debate. But, either way, the outcry did make some impact -- though not enough. There are still rumors of similar privacy destroying amendments from other Senators at the markup, which is slated for this upcoming Thursday.

In particular, it is expected that Senator Chuck Grassley is planning to sell out the 4th Amendment by offering an amendment even worse than the one discussed last week. It would take away the requirement for a warrant for many more federal agencies. Apparently, Senator Grassley thinks that the whole requirement of warrants based on probable cause before searches can take place is a recommendation, rather than the law of the land.

Given that, a bunch of groups and organizations have teamed up to set up VanishingRights.com, a site asking people to contact your Senator today, especially if they're on the Senate Judiciary Committee (list, with phone numbers, is on the website), to let them know that (a) you support ECPA reform that requires a warrant and (b) you oppose any amendment, such as Senator Grassley's that would take away that warrant requirement. The website has tools for emailing, but also phone numbers and a possible script for calling. If you can, I highly recommend that you call rather than email, as it has a much stronger impact.

If you believe that privacy matters, and that your electronic documents deserve the basic privacy that a warrant provides, rather than just letting law enforcement sniff through your emails freely, now is the time to speak up.

When last we checked in on "just keep digging" lawyer Charles Carreon, he had been hiding out in his Arizona home, purposely avoiding getting served for the lawsuit filed against him by a parodist blogger who Carreon had been threatening to sue. Carreon had promised to wait until people weren't paying attention any more and then to sue, so the blogger sued first for declaratory judgment. Carreon has been consistently refusing to be served, while emailing Paul Levy, one of the two lawyers representing the blogger, to say that there's no reason to serve him since he has no interest in proceeding. Of course, he says that now, despite the very specific claims in his threats... and despite the fact that Carreon specifically sought to get the blogger fired by contacting the blogger's employer.

Thankfully, as Adam Steinbaugh alerts us, Charles Carreon finally got served by the other lawyer on the case, Cathy Gellis, who realized that Carreon was due to appear in court for a different case, and decided to stop by herself. You can read the full (brief) saga in Gellis' filing (pdf):

On November 15, 2012, I personally served defendant the Summons and Amended Complaint in this case on defendant Charles Carreon. After Mr. Carreon told my co-counsel, Mr. Levy, that he was unwilling to expose himself to service (a copy of his email is attached as Exhibit A), I verified that he was scheduled to present oral argument on November 15 in a case pending before Judge Chen. I went to Judge Chen's courtroom in the Federal Building, 450 Golden Gate Avenue, San Francisco, California. At 10:15 Mr. Carreon's matter was called, and he identified himself to the court. At 10:50 his hearing concluded. I waited in the hall for Mr. Carreon to leave the courtroom, which he did by 10:55. When he did, I addressed him by name and said I had a summons and complaint for him. He extended his arm and took them. Service thus complete, I left the courthouse.

Boom. And now, hopefully, that case can move forward and the court can make it clear to Carreon that he cannot sue the blogger. Nicely done, Cathy -- though, I'm partially (jokingly) steamed that I saw her the very next day at a conference and she didn't even mention her adventures from the previous day.

One of the biggest problems with the current approach to dealing with alleged copyright infringement is the totally disproportionate nature of the action undertaken in response to it. The "three strikes" collective punishment of households that is available in France, New Zealand and South Korea is one example of this. From Finland, we learn about another completely over-the-top action:

CIAPC, the company that had The Pirate Bay blocked by ISPs in Finland, tracked an alleged file-sharer and demanded a cash settlement. However, the Internet account holder refused to pay which escalated things to an unprecedented level. In response, this week police raided the home of the 9-year-old suspect and confiscated her Winnie the Pooh laptop.

The specific details are worrying:

Tuesday morning the doorbell of the family home rang around 8am and the man, who works in the hospitality sector, had quite a shock. Police were at his door with a search warrant authorizing the hunt for evidence connected to illicit file-sharing.

This kind of early-morning raid would be more appropriate for dealing with serious and dangerous criminals than 9-year-old girls (barely even mentioning that the girl's father claims her attempts at downloading failed, leading them to go purchase the music legally anyway). Similarly, the fact that for such a trivial case the account-holder's name and address were obtained from the ISP, and a search warrant issued, shows how out of control the law has become in this area.

Under the malign influence of the copyright companies, it would seem that the police force is now little more than a bunch of heavies sent around at ridiculous hours of the day to frighten people who refuse to pay the arbitrary sums demanded. It's hard to square this colossal waste of police time and public money with the deadly threat of terrorism that we supposedly live under: is intimidating members of the public in this way really such a priority for the Finnish state? It's also disappointing to see the legal system in Finland and elsewhere acquiescing in this terrible perversion by powerful lobbies of what is supposed to be even-handed, proportionate justice for all.

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While the US Patent Office has officially declared its desire to put its head in the sand concerning the problem of patent trolls, it appears that other parts of the government aren't necessarily going to ignore the problem. The FTC and the DOJ are planning explore the issue with patent trolls at a public workshop next month (they use the currently popular term "patent assertion entities" rather than "patent trolls" but it's clear what they mean). And the indications are that they may be looking to use their power to crackdown on bad behavior, potentially even using antitrust tools:

"There's a possibility of competitive harm here," said Joseph Wayland, who served as the Justice Department's acting antitrust chief until last week, when he stepped down to return to private practice. Mr. Wayland said officials are devoting "huge energy, particularly at a senior level" to this and other antitrust issues surrounding patents.

This seems like a much more reasonable use of antitrust resources than some other recent activity.

Of course, the real irony here is the idea that the government may need to use its antitrust rules to crack down on patent abuse, when the whole reason that there's a "trust" problem in the first place is that patents are a government granted monopoly. So no one should be shocked to then see it lead to antitrust problems. Want to not have monopolistic activity? Don't hand out monopolies.