You may recall that we've been following the ongoing saga of a poorly-written piece of state legislation in Illinois, which would strip citizens of their First Amendment rights if they were to film law enforcement performing their duties. One gentleman was facing a possible 75 years in jail for five counts at up to 15 years each, until the 7th Circuit appeals court ruled that the law could not be enforced, because it very likely violated the First Amendment. Specifically, they sent it back to the lower court to rule on whether the law did, in fact, violate the First Amendment, along with fairly strong guidance that the lower court should probably toss out the law on those grounds. However, before the district court could review, the appeals court ruling was appealed to the Supreme Court.

The Supreme Court has now refused to hear the case, sending it back to the lower court, as the appeals court had originally intended.

The Supreme Court has rejected an appeal from the Cook County state's attorney to allow enforcement of a law prohibiting people from recording police officers on the job. The justices on Monday left in place a lower court ruling that found that the state's anti-eavesdropping law violates free speech rights when used against people who tape law enforcement officers.

The ACLU had brought a suit to block the prosecution of their staff recording police in public spaces, a main focus of the organization. They also see the refusal by the Supreme Court to hear the case as a major win for the rights of citizens to keep law enforcement from abusing their power.

Harvey Grossman, legal director of the ACLU of Illinois, said the organization was "pleased that the Supreme Court has refused to take this appeal. . .The ACLU of Illinois continues to believe that in order to make the rights of free expression and petition effective, individuals and organizations must be able to freely gather and record information about the conduct of government and their agents – especially the police. The advent and widespread accessibility of new technologies make the recording and dissemination of pictures and sound inexpensive, efficient and easy to accomplish."

As recording devices in public become more and more ubiquitous, hopefully law enforcement will cease to shy away from such public scrutiny. After all, in the long run, the ability for the public to check abuses by the authorities will only make those authorities better.

Plenty of students in school don't like math. There's not much room to argue for points when grade school arithmetic is either wrong or right. With a better understanding of how our brains work, we might be able to devise some ways to make math more pleasant for everyone. At the very least, we can remind people to always show their work.

• Some people experience physical pain when presented with difficult math problems, but it's not doing the math itself that hurts -- it's the anticipation of doing the math. Fortunately, math anxiety can be overcome with various techniques, just like other phobias. [url]
• Correlation isn't causation, folks, but a small study showed that 20 people did better at some math problems while smelling rosemary oil. These researchers should probably sniff some of their aromatherapy oils while doing the statistical analysis of this work.... [url]
• Math ability can be predicted by fMRI scans that measure the strength of communication between the left and right hemispheres in the brain. If there is a causal link, impaired math abilities could be improved with training tasks aimed at coordinating brain activity. [url]

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

The US government's "targeted strike" drone program has been around since George W. Bush's first presidential term. Despite being nearly a decade old, the program has largely operated in a gray area of legality, with no codified set of rules governing drone strikes. So, what does it take to get some guidelines applied to the executive branch-controlled remote-control merchants of death? The threat of having to turn control over to the "other side," apparently.

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

So, when the control is in your hands, it's ok to direct long distance killings without "clear standards and procedures." But, if the other guy is being handed the power, it's suddenly time to "develop explicit rules." This doesn't come across as genuine concern. It sounds more like a last-minute effort to hobble the program by throwing in a handful of cursory checks and balances. This quote from an anonymous administration official put its all in perspective:

“There was concern that the levers might no longer be in our hands,” said one official, speaking on condition of anonymity. With a continuing debate about the proper limits of drone strikes, Mr. Obama did not want to leave an “amorphous” program to his successor, the official said. The effort, which would have been rushed to completion by January had Mr. Romney won, will now be finished at a more leisurely pace, the official said.

Again, this sounds nothing like genuine concern about "doing the right thing" by implementing strict guidelines and otherwise easing the transition between presidents. It sounds more like "Well, if we have to give up this power, let's make it as limited as possible."

Now, maybe that's just the way I'm hearing it. But those sentences aren't very comforting, either. Rules -- explicit rules -- should already be in place. Now that Obama's safely back in office, the team's just going to ease off the gas pedal?

This isn't very surprising, considering the wall of secrecy surrounding the targeted strike program -- and how far away the program has drifted from its original purpose.

Despite public remarks by Mr. Obama and his aides on the legal basis for targeted killing, the program remains officially classified. In court, fighting lawsuits filed by the American Civil Liberties Union and The New York Times seeking secret legal opinions on targeted killings, the government has refused even to acknowledge the existence of the drone program in Pakistan.

But by many accounts, there has been a significant shift in the nature of the targets. In the early years, most strikes were aimed at ranking leaders of Al Qaeda thought to be plotting to attack the United States. That is the purpose Mr. Obama has emphasized, saying in a CNN interview in September that drones were used to prevent “an operational plot against the United States” and counter “terrorist networks that target the United States.”

No one's looking to declassify any information about this program anytime soon. The Defense Department and the CIA are pushing for "greater latitude" to carry out strikes. Other government officials have argued against the drone program, but to date, the administration seems willing to continue the program "as is," without returning it to its original focus. At this point, the targeted strike program has expanded to include strikes on militants not engaged directly with US forces. Acceptable targets also include individuals unknown to those requesting or clearing the strikes.

Then there's the matter of strikes against people whose identities are unknown. In an online video chat in January, Mr. Obama spoke of the strikes in Pakistan as “a targeted, focused effort at people who are on a list of active terrorists.” But for several years, first in Pakistan and later in Yemen, in addition to “personality strikes” against named terrorists, the C.I.A. and the military have carried out “signature strikes” against groups of suspected, unknown militants.

Originally that term was used to suggest the specific “signature” of a known high-level terrorist, such as his vehicle parked at a meeting place. But the word evolved to mean the “signature” of militants in general — for instance, young men toting arms in an area controlled by extremist groups. Such strikes have prompted the greatest conflict inside the Obama administration, with some officials questioning whether killing unidentified fighters is legally justified or worth the local backlash.

As the New York Times article points out, the US is setting the precedent for countries currently developing their own drone programs. And that precedent seems to be that these programs should be operated autonomously, secretly and unhampered by explicit rules and regulations. The same country that has decried targeted killings by other countries (namely, Israel) is now showing the rest of the world that all you really need to pull off long distance assassinations is the will and the way. 

I've been procrastinating for the last week and a half or so (admittedly with a Thanksgiving holiday thrown in the middle) writing up my impressions of the recent conference at Santa Clara University called Solutions to the Software Patent Problem. If you want something of a play-by-play on what happened, Groklaw has a pretty good tick-tock on the specifics. Unfortunately, I'm not sure that really covered some of the larger important themes that the conference brought out.

First off, I know that some patent system defenders took great offense to the idea that the event wasn't "balanced" with system supporters. Nearly every speaker presented an aspect of how the system was broken with suggestions to fix it. But I see this complaint as being misleading. There's this random belief out there that conference panels need to be "balanced" with "pro & con" and then let the panelists argue things out. I've argued against this in the past when setting up panels for other events, and with the events that we run, we've tried to avoid that concept as well. While just setting up pro vs. con can make for an entertaining session, it rarely leads to productive discussions that move the conversation forward. They just lead to people arguing past each other. A productive event is one in which people agree on a basic premise or problem and are then working towards possible responses. That's what this was. It was a conference for those who believe the system is broken. Given that assumption, the point of the event was to suggest possible solutions. There are plenty of events where patent system defenders and skeptics can argue against each other, but I can't think of another where people were able to dig in deep on possible fixes.

Given all that, there were a lot of different ideas proposed -- some broad, some specific. Many of them required people to have pretty deep knowledge of how the system works. For patent system geeks, it was really fascinating -- but for those less aware of the inner workings of the system I could see how the basic play-by-play seems confusing or uninteresting. However, in reality, there were a number of interesting ideas presented on ways to fix various problems, from getting Congress involved to having the courts better adhere to the law to getting the Patent Office to better adhere to rules to increasing maintenance fees to carving out software entirely... and many more. The conference schedule has links to more detailed versions of various proposals, sometimes both the "academic" versions and more "mainstream" versions at Wired Opinion. I'll point to a few of the suggestions I found to be more compelling in a bit.

However, what I found really useful about the event was twofold:

1. There are a lot of smart people thinking about the very obvious problems of the system, and they are trying to come up with solutions. That's a good thing, even if there are many (powerful) interests who don't want the system to change at all. You can only deny reality for so long.
2. There are also many ideas for solutions, some of which are quite clever, others of which seem like blunt force attempts to deal with symptoms rather than actual problems. Also, as was raised by some people in the comments, many of the suggestions could have significant unintended consequences that weren't readily considered. This is important -- for as much as I believe that the system needs fixing (and I have my own suggestions for solutions), thinking through the consequences of any change is an important exercise (though always keeping in mind that defenders of the status quo seem to argue any change will destroy the American economy and probably take apple pie and motherhood with it).

We already explored the suggestions from Richard Stallman and Mark Lemley in earlier posts, so we'll look at a few other interesting suggestions.

• There was some interest in using patent fees as a way that the patent office might be able to fix some of the worst problems without requiring a change in the law. James Bessen pointed out that bad patents are a form of pollution and, as such should be taxed as polluters. Christina Mulligan pushed back against attempts at doing the opposite, as urged by some patent system defenders, noting that "Cheaper patent applications mean more – and lower-quality! – patents. Lowering filing fees will make more people more likely to file patents. But if the marginal difference in patent fees is holding inventors back from filing applications, the patent is probably covering a low-value invention."
  
• Related to this, Brian Love presented some research and a proposal for using higher fees to decimate trolls. Part of his argument is that the data shows that trolls quite frequently become much more active as a patent is close to expiring: "Of all patent suits litigated within the final three years of the asserted patents' term of protection, trolls file more than 70%. Of all companies accused of infringing a patent within three years of its expiration, trolls accuse more than 83%." His suggestion is that shortening the term length of patents would deal with this problem, and would likely hurt only trolls or failing companies that are lashing out at more innovative competitors (he highlights Kodak and Encyclopaedia Britannica). But rather than actually go through the process of shortening patents, he argues just increasing the maintenance fees to keep a patent for the full term. He notes that many other countries already do something like this. The data here was compelling, though the risk is that it would just mean that patent trolls would become more active in earlier years...
  
• Peter Menell picked up on the point that many have raised that patents aren't at all clear in what they cover. So he thinks that we should force patents to be much clearer in what the claims cover. Specifically, he argues for a form-based system where you have a series of check boxes and pull downs in defining a claim to make it clear what you're actually trying to cover. I like the idea that patents should be much more precise over what they claim, but I'm not sure it's realistic to think that a form would (a) do this well or (b) be properly used.
  
• Arti Rai pointed out that the software crowd probably screwed up years ago, by not doing what the bioinformatics world did in claiming that you can't get a patent unless you provide the actual working algorithm. This seems like something of a no-brainer. The USPTO has regularly rejected bioinformatics claims on the basis of a lack of "definiteness" for not supplying the algorithm. There's no reason that the same couldn't be done in software. Of course, that would require the USPTO to actually notice this point...
  
• I thought John Duffy's proposal was one of the most interesting (and, in the past, I've found myself disagreeing with Duffy more often than agreeing with him) in which he argued the most "elegant" solution to the software patent problem that isn't all that far off from my own suggestion: fix the "non-obviousness" standard by noting that multiple parties simultaneously, independently inventing the same thing is a sign of obviousness and should lead to no patents being allowed. Duffy's presentation was the one that set Richard Stallman off for arguing that Stallman's solution was "kludgey" rather than a full solution. On this one, I side with Duffy. Duffy's solution here would likely be a lot more effective that Stallman's because patent lawyers could easily write around Stallman's solution of not allowing patents on "general purpose" computing.
  
• Samson Vermont highlighted that we should take into account social harm (Word doc). That is, he suggests courts should base remedies on the amount of harm on the public rather than on the harm on the patentee. "More specifically, in cases in which the defendant's infringement clearly makes the world better off, the court should deny the patentee both money damages and injunctive relief." More specifically, he argues that if the patent isn't actually being used to put a product on the market (either by the inventor or a licensee), the accused infringer is an independent inventor and is actually putting a product out there and the "costs to find the patentee's version of the invention beforehand were greater than the defendant's costs to invent it on his own" then courts should reject any awards. As he notes, when all three conditions are met, "it is very hard to come up with plausible reasons to believe that the defendant's infringement is a bad thing."

There were plenty of other presentations, but those were the ones that seemed most interesting and worth thinking about more deeply. As for the biggest waste of time? That award goes to Dan Ravicher, of PubPat, who plays both sides of the patent troll fence. He started off his presentation by haranguing everyone for not showing enough "respect" for the existing system and various people, and then proceeded to yell at everyone in attendance that they "failed" because they didn't raise their hands fast enough when he mentioned various patent troll lawsuits that he didn't think were that problematic. One of his larger points was sound -- that if you want to convince anyone in the government that the patent system is broken you have to focus entirely on "jobs, jobs, jobs." But there's no reason he had to be completely obnoxious in getting that point across. Many of his other points were specious, at best. However, it has set for me a new "Ravicher Rule": if someone starts off a talk by arguing that everyone needs to be more respectful of everyone else, the probability that they will disrespect pretty much everyone quickly approaches one.

Overall, it was a really great and thought-provoking event. I'm happy that there's a lot of detailed thought going into ways to solve the patent trolling problem, though I'd argue we need to be careful not to just think that this is a "software patent" issue. I think the problems of the system apply equally elsewhere -- which is why I like system-wide fixes, such as those suggested by Duffy and Vermont.

And, just to address this one point before one of our regular patent lawyer commenters tries to make it in the comments: there is an argument among patent system supporters that there is no such thing as a "software patent" and thus any argument that uses that term is meaningless. This is both slightly true and (more importantly) a distortion of the larger issue. As was discussed at the conference, there is a difference between software and hardware that can't be denied. One involves moving around bits. One doesn't. So it's not difficult to define software differently from hardware. The real problem is that if we did carve out software from patentability, it's likely that crafty patent lawyers would quickly figure out how to rewrite patent claims to make them broadly cover the same concepts in a way that could be seen as not being "software." Given all that, I think it's quite legitimate to discuss "patents that cover software" as "software patents," even while I agree that merely targeting "software patents" misses the larger problem.

Three of the bigger porn copyright trolls out there, Patrick Collins, Malibu Media and Third Degree Films, have teamed up to make a court filing arguing that Verizon should be held in contempt of court for failing to cough up the names of account holders based on the trolls' list of IP addresses. As you're probably aware by now, hundreds of thousands of people have been "sued" by copyright trolls, but not actually taken to court. The strategy is just to file a lawsuit and force ISPs to identify account holders, then bombard those account holders with threatening letters (and calls and emails) saying that they will be sued if they don't pay up (often a few thousand dollars). Verizon, like many other ISPs, has fought back against these demands for info on a variety of grounds -- including improper joinder (i.e., that the cases improperly lump together multiple people who had nothing to do with one another in an attempt to keep costs to the trolls down). These claims of improper joinder have been somewhat effective in getting a lot of these cases thrown out -- but usually those claims are raised by the account holders themselves, rather than the ISPs.

These three trolls have teamed up to argue that Verizon should shut up and hand over the names, claiming that it has no standing to object, given that it's not a party in the case. They also claim that even if Verizon can argue misjoinder, the argument is not valid (which is laughable considering how many courts have agreed that it's perfectly valid). Then they try to chop down every other argument from Verizon -- who actually has a really strong history of protecting subscribers against copyright threats. In fact, the trolls use this history against Verizon -- claiming that their victory nearly a decade ago, against the RIAA's attempt to use subpoenas to identify users without filing a lawsuit, shows that as long as they've filed lawsuits, they should have a free pass to identify the account holders named.

The really amusing part is the trolls' response to Verizon's point that the trolls have failed to show that the discovery would be used for the "proper purpose" of litigation. That's because it won't be. Everyone knows that the information will be used to try to force people into settling, and not to file lawsuits. But the trolls claim this is just dandy:

To the contrary, and as argued above, the “purpose” of the discovery is entirely proper: to obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights “in order to consider whether to name and serve them as defendants.”

Note the careful choice of words. They don't say that they're asking for discovery in order to actually sue, but to "consider" whether or not to sue. Meaning, of course, that they're extremely unlikely to file an actual lawsuit and are more likely to threaten account holders to demand a settlement. Hopefully the court sees through these attempts by these trolls to force discovery where it's clearly not appropriate.

Techdirt wrote about how the UK's Twitter Joke conviction dragged its slow way through the various appeals before finally being resolved with the defendant's acquittal. As you will recall, the issue was somebody making an ill-advised joke about blowing up an airport if he couldn't fly out of it:

Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!

It's great that Paul Chambers, the person concerned here, finally emerged victorious in his fight against this ridiculous conviction. But of course the danger that a thoughtless joke on Twitter might have serious consequences remains, as this report from The Epoch Times about a recent case in China highlights:

Four days before the [Chinese Communist] Party's 18th Congress, when a new set of Chinese leaders was sworn in to rule China, Zhai Xiaobing mocked the event by suggesting it was the latest installment in the Final Destination film franchise. The 2000 supernatural horror movie depicts a teenager whose plane explodes, killing all but a few survivors, who then begin mysteriously dying.

Here's a translation of what Zhai tweeted (Chinese tweets can contain more content than those written in Western languages because just a few characters can represent a whole word):

Final Destination 6 will be in cinemas on November 6. The Great Hall of the People suddenly collapses, and only seven of the over 2000 people holding a meeting inside survive -- but afterwards, they each die, one by one. Is it the game of God, or the fury of the Grim Reaper? How did the mysterious number 18 unlock the gate of hell? The earthshaking world premier opens on November 8!

Obviously, not exactly a rib-tickler, and rather unwise given the extreme sensitivity of the Chinese authorities about this crucial handover of power. But even against that background, the response seems to be unduly severe: arrested and "disappeared".

Zhai had been accused of "spreading false and terrorist information," and was taken away by security forces, according to netizen @iamhudi who called Zhai's wife. The fact that he has been disappeared was later corroborated by two other individuals who visited the family's house, according to Yaxue Cao, a writer and blogger who maintains contacts in China.

Worryingly, people have also lost contact with his wife, although it's not yet clear whether she has been arrested too. Zhai's friends, and supporters of a more liberal approach to Chinese state control of online activities, are doing what they can, which is pretty much limited to online petitions. The precedent for what might happen to him isn't good. As The Epoch Times story explains:

The first "Twitter criminal," as she was called, was Wang Yi, an activist who in 2010 mocked hypernationalist young people with the tweet "Angry youth, charge!"

This was determined to be a case of "disturbing social order." The punishment? One year of re-education in the Henan Women's Labor Camp.

Perhaps Zhai's best hope is that the new Chinese leadership might decide to be lenient in this matter so as to create a positive atmosphere among the Chinese people for the start of its ten-year rule over them. Equally, it might not want to sour relationships with the West through imposing a harsh punishment for such a trivial matter, although that is less likely to be a consideration given China's rising self-confidence. Whatever the reason, let's hope the outcome of this Chinese Twitter joke story is ultimately the same as that in the UK.

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

DRM rears its ugly, malformed, malignant, cross-eyed head again. Despite the fact that, as Cory Doctorow so aptly put it, no one has ever purchased anything because it came with DRM, an ever-slimming number of content providers insist on punishing paying customers with idiotic "anti-piracy" schemes.

Combine this "malware" with digital distribution that sticks the end user with an unfavorable license rather than, say, an actual book, and you've got another ready-made disaster. The Consumerist has the details on yet another paying customer dealing with DRM stupidity. It starts off with this physical analogy.

[I]f reader Synimatik had bought a paperback book a few months ago and picked it up to read now, the book’s pages wouldn’t magically glue shut just because the credit card she normally uses at the bookstore has expired.

Obviously, no one would expect a physical book to be subject to the whims of the publisher or the store it was purchased from. A sale is a sale, even if many rights holders would rather it wasn't. But, Barnes & Noble doesn't see it that way. Sure, you can buy an ebook from them, but you'd better keep everything in your profile up to date if you plan on accessing your purchases at some undetermined point in the future.

Yesterday, I tried to download an ebook I paid for, and previously put on my Nook, a few months ago. When I tried, I got an error message stating I could not download the book because the credit card on file had expired. But, I already paid for it. Who cares if the credit card is expired? It has long since been paid for, so the status of the card on file has nothing to do with my ability to download said book. I didn’t see anything in the terms of service about this either, but it’s possible I missed it.

This is just one more reason to either not buy ebooks, or strip the drm off of the ones you purchase so you can you the book you BUY on all your devices without having to purchase multiple copies for no reason and have access to something you already bought when you want it.

Nice work, B&N. Driving another person away from your offerings with your amnesiac point-of-purchase system. No one's purchase should be invalidated once the payment has cleared. Barnes & Noble got its money but its customer is out both money and a book. Does B&N really wish for its customers to root their devices and strip the DRM out of their purchases just so they can enjoy them at their own pace? Shouldn't the company be catering to its customers rather than treating them like thieves who can't be trusted even though they've already paid?

If this was a one-of-a-kind experience, we could chalk it up to "live and learn." But a whole lot of living has gone on and the only lesson anyone's learning is the most efficient way to remove pesky DRM idiocy from their purchased "licenses" in order to turn them into actual, useful goods.

Copyright issues don't often become "mainstream" stories. SOPA was the exception, not the rule, and it only really went fully mainstream at the very end with the January 18th blackouts. But it's always nice to see when big copyright issues get some mainstream love. Stephen Colbert actually has covered copyright (and other IP) issues a few times on his show (perhaps because his brother is an IP lawyer). He was actually among the first on TV to cover SOPA. Still, it's a bit surprising to hear that he devoted an entire segment of his show to First Sale, and specifically the Kirtsaeng case that we've been covering. If you're in the US or one of the very small number of countries that Viacom's streams work in, you can watch it below (blame Viacom, not me, if you can't): For those who can't watch it, Colbert gives a basic explanation of what's at stake in the Kirtsaeng case, even calling out that the First Sale Doctrine was codified by the courts over a century ago (and then joking "I'm sorry, I don't buy this 'First Sale' argument... and if I did buy it, I would not resell it, because I don't have the right!"). Then he notes that the Kirtsaeng issue would only apply to goods manufactured outside of the US, and cracks a joke about how little is still manufactured in the US these days. After highlighting how this could hurt sites like eBay, he notes that he's planning a garage sale, and that he now needs to get permission from the copyright holders on any goods made outside the US... and proceeds to call up Elvis Costello to haggle with him over his plan to sell a vinyl copy of My Aim is True.

It may not be the funniest Colbert bit, but it's still quite amazing to see first sale issues get such mainstream coverage. Even though the Kirtsaeng case is at the Supreme Court and a certified "big deal," it's still pretty obscure outside of copyright circles. So it's great that it appears to be getting some mainstream love. Colbert uses clips from a few popular news shows discussing the case, including the O'Reilly Factor, again showing the issue is getting plenty of attention.

And, while we're used to commentators screwing up the details, Colbert mostly seems to get them right here (again, I wonder if he ran some stuff by his brother). It gets a little fuzzy at times when he seems to suggest that all goods are covered by copyright, but that can likely be chalked up to trying to simplify the explanation for the sake of lining up a good punchline. Of course, it's also worth noting that Colbert's bosses at Viacom are members of the MPAA (via Paramount, which is owned by Viacom), and the MPAA filed a ridiculous brief in the case that effectively argues that the US economy might collapse if the Supreme Court doesn't wipe out your first sale rights. It would have been really amazing if Colbert dug into the insanity therein...

Just a few days after Joe Karaganis posted his response to the RIAA's favorite researcher, Russ Crupnick of NPD Group, who suggested that Karaganis must be drunk and have little knowledge of statistics to publish a study showing that pirates tend to buy more -- and then revealing his own numbers that showed the exact same thing -- UK regulatory body Ofcom has come out with a study saying the same exact thing again (found via TorrentFreak).

From this, I assume the only logical conclusion is that Ofcom officials are drunk and should have their statistics "licenses" taken away. That, or, it's pretty obvious that people who pirate aren't all just "evil pirates," but also include the industry's best customers, who are apparently being somewhat under-served by the industry. And that's actually supported by other data in the report. When asked what would make people stop infringing, people wanted cheaper legal services and services that had everything they want available to them legally, rather than piecemeal efforts that leave it impossible to get what you want much of the time. It also becomes clear that infringement is not on the margins, but a common activity. 66% of people noted that they had downloaded, streamed or shared infringing content -- with 56% doing so in the last three months -- with 16% admitting to illegal content streaming, downloading or sharing. And of course, the numbers are much bigger for younger people, meaning that those overall percentages are only likely to increase over time. Of course, the amount of sharing varied based on the content, but the idea of getting infringing content this way is clearly quite mainstream.

The study also looked at what they spent on, and, not surprisingly, money spent seems to be shifting to scarce goods -- the things that can't be "pirated." In the music world, that includes merchandise and live, as well as online subscriptions, rather than "buying music." The report also suggests that, when you take into account price elasticity of both downloads and subscription services, the industry appears to be overpricing both significantly, and they could probably make a lot more money with significantly lower prices, making it up (and then some) based on volume: Note that, in both cases, if prices went much lower than they are today, even those who currently pirate everything would be much more likely to pay. They have similar tables for other types of content, showing the same basic thing as well. The elasticity on ebooks is really quite impressive, actually: All of this paints the same basic picture that plenty of us have been arguing for over a decade: treating "pirates" like criminals is a mistake. They're often either the best customers or the potential best customers if they were better served by the industry, which often means offering things more conveniently and at a lower price. But the industry still resists this notion and wants to continue to demonize all infringement and any service that helps infringement. What a wasted effort.

Tim covered the story of ICE doing its annual censorship binge in seizing domain names without adversarial hearings (as we still believe is required under the law). However, there were a couple of additional points worthy of a followup. First off, if you remember, one of the key reasons why we were told SOPA was needed was that for all of ICE's previous domain takedowns it was "impossible" for it to take down foreign domains. Except... as ICE's own announcement here shows that was completely untrue. It seems to have had no difficulty finding willing law enforcement partners around the globe to seize websites without any due process:

...recognizing the global nature of Internet crime, this year the IPR Center partnered with Europol, who, through its member countries, executed coordinated seizures of foreign-based top-level domains such as .eu, .be, .dk, .fr, .ro and .uk. This effort is titled Project Transatlantic and resulted in 31 domain name seizures.

"This operation is a great example of the tremendous cooperation between ICE and our international partners at the IPR Center," said ICE Director John Morton. "Our partnerships enable us to go after criminals who are duping unsuspecting shoppers all over the world.

Yeah. Apparently it's possible for ICE to censor those sites if it actually does a little work and calls up its law enforcement pals. Another example of why SOPA was never necessary in the first place.

The other issue? ICE's own release shows that ICE appears to have no understanding of the intellectual property laws it's seeking to enforce. From that release:

During this operation, federal law enforcement officers made undercover purchases of a host of products; including professional sports jerseys, DVD sets, and a variety of clothing, jewelry and luxury goods from online retailers who were suspected of selling counterfeit products. If the copyright holders confirmed that the purchased products were counterfeit or otherwise illegal, seizure orders for the domain names of the websites that sold these goods were obtained from federal magistrate judges.

Note the confusion (or ignorance) here. Counterfeits are about trademarks, not copyrights. Most of what they discuss are items covered by trademark. But then they say "if the copyright holders confirmed that the purchased products were counterfeit." Yes, there may be some copyright claims mixed in here (especially with "DVD sets"), but for the most part this is about trademark. Why say "copyright holders" unless you're either willfully misrepresenting what's happening... or ignorant of the law you're supposedly helping to enforce?

We've complained before about ICE boss John Morton's apparent deliberate conflation of copyright and counterfeits in the past -- but usually it's just lumping them together. To confuse the two here, in an official release from a government group that's enforcing the law, suggests some serious problems. ICE is either ignorant of the law it's supposedly enforcing... or maliciously misrepresenting itself. That seems like a problem.

We've been covering Russia's moves towards increasing censorship of the internet over the past few months, including passing a dangerous new law that appears to be focused on being able to directly censor sites that the government doesn't like.

Now the Russian Supreme Court may have just made it even easier for Russia to stifle speech online. A new ruling has said that ISPs need to proactively block access to "illegal content" or they could "lose their license" to operate. Specifically, the court found that there is no difference between allowing access to illegal information and disseminating it yourself. The law firm Baker & McKenzie summarized the findings which had to do with whether or not it was illegal for an ISP to allow access to an online gambling site, despite gambling being illegal:

The Supreme Court ruled that is it unlawful to disseminate information that is restricted in accordance with Russian law, including, but not limited to, on gambling. The court further concluded that provision of access to restricted information is equal to dissemination of this information. The court thus found that a telecoms company de-facto disseminates restricted information by providing access to websites containing this information.

The court concluded that Rostelecom must take measures to technically block its clients’ access to restricted information. Following the Supreme Court’s rationale this requirement applies irrespective of the location of the servers containing such websites.

That's a startling and dangerous finding. Basic common sense would suggest that there's a world of difference between merely being the conduit to information and actually putting forth that information yourself. In the US, this is why we have various safe harbors, to avoid ridiculous situations where the platform/service provider is blamed for the actions of users. But, apparently, the Russian Supreme Court has no concept of secondary liability and has squashed it all down into primary liability. If you're a Russian service provider, you should be afraid. Very afraid.

A ruling like this could quite easily stifle Russia's internet industry, as it will make it prohibitive for most companies to operate, given the potential liability -- especially given the new rules about what might be considered illegal online.

As for why it will likely increase censorship, beyond the obvious, you need look no further than China, where the famed "Great Firewall" tends not to be based on a blacklist of "illegal" sites, but by a similar belief that an ISP is liable for any "bad" content that users are able to access. As such, the default is to overblock. Basically block anything that the government might deem to be illegal, just to avoid legal liability. Given Russia's recent crackdowns, it seems quite likely that ISPs will take a similar "block first, deal with any questions later" approach, rather than risk liability.

A few months back, Tim Geigner covered the story of a Texas school district's efforts to track its students' whereabouts using student ID cards with embedded RFID chips. The district attempted to paint this "students-as-livestock/prisoners" effort as being there for the safety of students and staff. But underneath all the "safety" talk was a large pile of money that the school district hoped to pocket. The so-called "Student Locator" project Texas' Northside Independent School District was implementing put school officials within handout distance of nearly $1.7 million in state government funds.

Although many students and parents have expressed their displeasure with the new program, it wasn't until a student at John Jay High School's Science and Engineering Academy opted out that any punishment had been handed out in connection with the RFID cards. Andrea Hernandez has refused to wear the ID card, citing religious and privacy reasons. In response, the school district has suspended her indefinitely, moving her to another high school in the same district that has not yet implemented the Smart ID policy.

Despite all the talk about "safety," the school district was more than happy to undercut the entire stated purpose of the Smart ID in order to keep Hernandez and her family from speaking out against the program.

The school offered a special lanyard with the RFID tag removed, in the hopes to put a damper on the whole situation. The student’s father refused the deal, however, because it came with strings attached.

“He told me in a meeting that if my daughter would proudly wear her student ID card around her neck so everyone could see, he would be able to quietly remove her chip from her student ID card,” Steve Hernandez told WND. “He went on to say as part of the accommodation my daughter and I would have to agree to stop criticizing the program and publicly support … it. I told him that was unacceptable because it would imply an endorsement of the district’s policy and my daughter and I should not have to give up our constitutional rights to speak out against a program that we feel is wrong.”

Apparently, the ID cards are so essential that the school district is willing to suspend a student for not wearing one, but not essential enough that the ID card needs to be fully functioning. Any stated concerns about "safety" are completely laughable if the district is willing to let students wander the school grounds untracked, sporting only plastic badges.

It's pathetic that this attempt was even made. The school district's main concerns seem to be a) having students appear to support the program, b) using the RFID cards to provide proof of attendance in exchange for funding and c) shutting down criticism.

Unfortunately for the school, the attempted suspension is now on hold.

The Hernandez family decided to take action against the school with the help of the Rutherford Institute, a civil liberties and human rights group which immediately took the view that the school district is looking for more public funding, which it can only receive if there is proof of positive student attendance rates. Rutherford attorneys filed a petition for the aforementioned TRO, as well as immediate injunctive and declaratory relief alleging that the school’s actions violate Hernandez’s rights under Texas’ Religious Freedom Act, the First Amendment, and the Fourteenth Amendment.

“The court’s willingness to grant a temporary restraining order is a good first step, but there is still a long way to go—not just in this case, but dealing with the mindset, in general, that everyone needs to be monitored and controlled,” John W. Whitehead, president of The Rutherford Institute, said in a statement. While the TRO has been granted, a hearing on the preliminary injunction will take place next week.

The Rutherford Institute's filing (PDF) states that the district currently has no policy or procedure in place that deals directly with the RFID badges, much less one stating that students can be suspended for failing to wear the new IDs. It also points out that requiring Hernandez to wear a nonfunctioning ID as a "show of support" for the Student Locator Project violates her First Amendment rights by compelling her to convey a message she does not agree with. The filing also claims that the school district's ID program clearly violates both her Fourteenth Amendment rights as well as Texas Freedom of Religion Act. According to Hernandez, many other students have refused to wear the ID cards, but none of them have been punished to the extent that she is, prompting claims of religious persecution.

All in all, this doesn't look good for the school district, which has pushed through an intrusive student surveillance program in order to secure additional government funding. The "safety" of the student body is just the sales pitch. Any supposed "concern" for student safety went out the window, along with the legitimacy of the program, the moment the district offered to remove the tracking chip. The audacity of the district's actions is breathtaking -- both the implementation of such a controversial program, and its response to this student's refusal to participate.

The only other situation in which human beings might need to be constantly surveilled at an individual level is at a maximum security prison. But if you're willing to treat minors looking for an education like dangerous convicted criminals, there's no telling what your next "bright idea" might be. Here's hoping this early effort leads to the entire program being scrapped before it can do any more damage.

While there's been plenty of talk about the upcoming ITU process, the ITU keeps attempting to downplay what it's trying to do -- and insisting that Russia, China and other regimes aren't looking to use the process to clamp down on the internet. Of course, proposal leaks from Russia suggest otherwise. As for China, Dave Farber points us to an editorial in the People's Daily newspaper in China from back in August that argues that the ITU process is necessary to wrest control of the internet away from the US.

This indicated the U.S. decision to retain ultimate control over the global Internet, which enabled it to unilaterally close the Internet of another country. A suddenly paralyzed Internet would definitely cause huge social and economic losses to the country.

More and more countries are beginning to question the U.S. control over the world’s Internet as the international resource should be managed and supervised by all countries together. However, the United States has conducted a pre-emptive strike, and refused to give up control over the Internet in the name of protecting the resource. The refusal reflects its hegemonic mentality and double standards.

The United States controls and owns all cyberspaces in the world, and other countries can only lease Internet addresses and domain names from the United States, leading to the U.S. hegemonic monopoly over the world’s Internet.

This is an exaggeration of reality. While ICANN has serious problems -- which we frequently discuss here -- that doesn't mean that dumping it entirely in favor of a ridiculously secretive and bureaucratic process like the ITU makes sense. The article goes on to cite the US apparently turning off the .iq domain for Iraq during the invasion in 2003. Of course, that's an interesting rewriting of history. The issue with the .iq domain wasn't quite as cut and dried as the editorial implies. First of all, .iq wasn't a widely used domain no matter what. But, more importantly, it was entirely managed and controlled by a guy in Texas who was accused of funding terrorists and eventually sentenced to 84 months in jail. It wasn't so much a case of the US government running to ICANN and saying shut down the domain, as it was a criminal investigation into separate issues that happened to scoop up the one guy who controlled the TLD. And, it should be noted that ICANN gave .iq back to the Iraqi government years ago.

This kind of stuff indicates the lengths to which the Chinese government seems willing to go to prop up the ITU process for taking over aspects of internet governance: they'll just lie and make up stories when the truth isn't particularly convenient.

A couple of weeks ago, we worried that Brazil's innovative "Marco Civil", a civil-rights based framework for the Internet, was being gradually subverted as it passed through the legislative process. Sadly, it looks like that subtle attack has been taken to its logical conclusion, as Rick Falkvinge reports:

Yesterday, the Brazilian parliament effectively killed the much-heralded Internet Bill of Rights, the Marco Civil, that had been praised by entrepreneurs and free-speech activists worldwide. This follows a ridiculous watering-down and dumbing-down of the bill, at the request of obsolete industry lobbies.

This is a salutary reminder of the power of lobbyists to attack and destroy even even the most carefully-prepared initiatives. As for the bill's future, Falkvinge is pessimistic:

Marco Civil was shelved indefinitely in yesterday's voting session, unlikely to be revived ever again.

I think it's probably too early to make any definitive pronouncements about what will happen next -- maybe something more can be done, or parts of the text can be salvaged. But if it is indeed the case that the Marco Civil is dead, it will be a real tragedy given the amount of work that went into drafting it, and the widespread hopes that had been riding on it.

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