Back in April 2011, we wrote about the Czech Constitutional Court ruling that the country's data retention plans were illegal. As we noted then, many other EU countries had also run into similar problems trying to implement the European Data Retention Directive. In one of them, Austria, the issue was referred to the country's Constitutional Court, which has now commented on the case, as this story in PC Advisor explains:

"We doubt that the E.U. Data Retention Directive is really compatible with the rights that are guaranteed by the E.U. Charter of Fundamental Rights," Gerhart Holzinger, president of the Constitutional Court of Austria said in a statement.

In view of this doubt and its potential implications, the Austrian judges have referred the matter to Europe's highest court, the European Court of Justice (ECJ), to determine the directive's validity. And they aren't the only ones:

the Irish High Court has also asked the ECJ to rule on whether the Data Retention Directive respects the rights of the user. That request stems from a case brought by Digital Rights Ireland against the Minister for Communications in which the group argued that forcing telecoms companies to retain information about how customers use their services breaches individual rights to privacy.

These referrals are important, because a decision from the ECJ that the EU's data retention approach breaches citizens' rights would affect all countries in the EU -- including those that have already implemented the Directive. Moreover, it would presumably have a big impact on even more intrusive plans to store user data, such as the UK's Snooper's Charter.

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Some people don't think they have an accent when they talk, but even Mid-westerners have a few discernible pronunciations that can give them away. But beyond accents, there are also speaking quirks like slang and syntax and other weird sounds that people use when they communicate. Here are just a few examples.

• The Voices of California project is trying to document California's English accents. The researchers are gathering examples of different slang, pronunciation and syntax that Californians use -- such as "hella," "pin/pen," and the "positive anymore" phenomenon. [url]
• Is Obama addicted to saying "is is" when he talks? Thankfully, he doesn't use extreme isisism, like the "triple is" in a sentence like: "What the American people's understanding is, is, is that..." [url]
• The vocal fry is a low creak in someone's voice while they talk -- that mostly occurs at the end of sentences. It was thought to be more common among young women, but newer studies suggest otherwise. [url]

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

We've been predicting for a while now that 3D printing is an area of disruption that is going to lead to legal disputes. Our expectations were that as tangible goods makers were disrupted in the same manner as content producers, it was only a matter of time. But what if 3D printing continued to disrupt content producers as well? Hephaestus points us to a story about how Amanda Ghassaei, from Instructables, is experimenting with 3D printing vinyl records. As you can see in the video below, she's using a super high-end machine, and the output is very limited for now (in both the amount of a song that can be produced and the quality -- which is not great), but it's not hard to imagine how this will improve over time: It is, of course, noteworthy, that her sample records all are of popular music for which it is unlikely she holds the copyright. It seems unlikely that anyone is actually going to go after her for copyright infringement, but it's yet another area where the technology is likely to be way ahead of laws that attempt to block "copying." And, yes, the full explanation for how to do this has been posted to the Instructables site, though you'll need a very high end printer to match the (already limited) quality of Ghassaei's records. For what it's worth, Ghassaei has also chosen to post some of the 3D models to The Pirate Bay's 3D printing site as well, and that appears to include more music covered by copyright -- so perhaps we'll see the labels freak out already just because of any association with TPB, even if almost no one can actually do anything with this, and the few who can might get a version of the music much crappier than something you'd record off the radio.

Another day, another lawsuit filed against Google for defamation-via-search-results. And, yet again, it's being filed in a country that has proven amenable towards plaintiffs who somehow feel a search algorithm has the power to defame.

This time the plaintiff is Guy Hingston, an Australian cancer surgeon. His complaint revolves around the fact that Google's autocomplete suggests he's all out of money.

Guy Hingston, an Australian cancer surgeon, sued Google in Federal Court.

"When an individual computer user types 'Guy Hin ...', into the Google search engine as a search, the words 'Guy Hingston Bankrupt' appears," the complaint states. "When the link(s) is clicked on, the article(s) to which the user is directed has absolutely nothing to do with a bankruptcy associated with Dr. Hingston. Dr. Hingston is not bankrupt." (Parentheses and grammar as in complaint).

"Dr. Hingston is a surgeon practicing in Port Macquarie, New South Wales, Australia," the complaint states. "Dr. Hingston's surgical practice focuses on breast cancer. Given his professional practice and position in his community, maintaining his good reputation is critical. Dr. Hingston has lost a number of patients and financiers who are refusing to associate and/or deal with Dr. Hingston as a consequence of the reference on Google to a bankruptcy."

While this may be true, it seems odd that potential patients and financiers wouldn't actually follow through with the search term, which lists one link related to bankruptcy. (At this point there's more, thanks to Hingston filing this suit -- something those filing these types of suits fail to consider.) Clicking through on that link brings up details on a bankruptcy filing by Eclipse Aviation. A commenter has reposted a Port MacQuarie news story that links Dr. Guy Hingston to bankruptcy -- via CoastJet Group, seven companies Hingston "principally controlled" that ceased operation when Eclipse Aviation went under.

Port Macquarie surgeon Guy Hingston bought the 19-year-old business 2½ years ago.

Dr Hingston said the main reason for CoastJet’s demise was the loss of a $2.8 million deposit on two new jets when American company Eclipse Aviation Corporation went into bankruptcy. The business was made more vulnerable, he said, by its heavy investment in a new partnership with Sweden’s Lund University School of Aviation.

He said CoastJet was preparing for its first intake of 24 students from Sweden at the end of March.

Dr Hingston said he and CoastJet’s staff were devastated. “We had two jets we were about to take delivery of, but with the manufacturer going bankrupt, we’ve lost everything,” he said.

The jets were destined to for CoastJet’s growing air ambulance service, Dr Hingston said, as well as for international airline pilot training and charters.

A later story appears at the same site, detailing the eventual sale of CoastJet to a Chinese investor, which again mentions bankruptcy and liquidation. Both of these stories make Hingston's claim that "Guy Hingston bankrupt" link leads to article(s) that "have absolutely nothing to do with a bankruptcy associated with Dr. Hingston" completely false. He may not like the perception the words "Guy," "Hingston" and "bankrupt" give when placed next to each other in an autocomplete suggestion, but there's nothing inherently defamatory about having those words appear next to each, especially when it produces relevant search results.

Hingston claims Google's automatic search result is defamatory, show him in a false light, and are "highly offensive to a reasonable person."

He claims Google was "was negligent in determining the truth of the information or whether a false impression would be created by its publication."

"This issue, and Google's continued failure to remedy this issue, despite numerous demands to do so, has caused significant harm and economic loss to Dr. Hingston in excess of the minimum jurisdiction of this court," the complaint states.

Hingston seeks at least $75,000 in damages for false light, and court costs.

But the search isn't "negligent" or "highly offensive," unless the person searching for Hingston does nothing more than stare at the completion suggestion and draw all their conclusions from that single, incomplete phrase. Hingston is the only person "offended" by this search suggestion, and any "negligence" is solely on the heads of financiers, etc. who are unwilling to perform even the slightest bit of due diligence when researching Dr. Hingston. Every other link for Hingston points you in the direction of his apparently successful practice and book sales/public speaking sideline. And it must be pointed out again that Hingston is suing over one autocomplete suggestion, rather than the results of those searches.

It's really hard to see how this will come down in favor of the plaintiff, but then again, if judicial systems didn't occasionally head off the deep end, lawsuits like this one would very rarely be filed. 

While some in the Senate tried to skip over debate of the likely unconstitutional FISA Amendments Act, the Senate finally held a rushed and scripted "debate" today, which did very little to actually explore the issues (and the Senate Chamber was mostly empty during the "debate"). Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had "only four days!" to renew the FISA Amendment Acts or "important" tools for law enforcement would "expire." It turns out that's not actually true. While the law would expire, the provisions sweeping orders already issued would remain in place for a year -- allowing plenty of time for a real debate.

Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there "is no secret law" and that "the text is public." That assumes that "the law" and "the text of the legislation" are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court's rulings, you would not know what that meant in practice. That's exactly the situation we have with the FISA Amendments Act... and it's made even worse by the fact that those who have seen the still-secret interpretation -- such as Senator Wyden -- have made it clear that its quite different than what most people think the law says.

Even more ridiculous is that the text of the FISA Amendments Act has been set since September. There's been plenty of time to actually debate these issues. Hell, last year's renewal for just one year was conditioned on the promise from the Senate that there would be debate this year. Yet they wait until December 27th to hold this fake "debate" with Feinstein spreading FUD up and down about how not renewing this for another five years means the terrorists win? This is a really shameful display of Congress caving to law enforcement's almost certainly unconstitutional desire to be able to widely spy on almost any information it can get its hands on, so long as they claim collecting that info might possibly somehow help in discovering illegal behavior by non-US citizens.

What's amazing is that those supporting the renewal of the FISA Amendments Act continue to take it on faith that the law is not being abused, even as there's already been an admission that some of the activities violated the 4th Amendment (but no further evidence of what happened or how that would be prevented), and even other tools that we were told were "proven" and "crucial" to the "war on terrorism" later turned out to be expensive boondoggles that were no help at all. Senator Saxby Chambliss was particularly ridiculous in this discussion, insisting that because there was that admission earlier this year that the 4th Amendment was abused, it shows that "oversight is working." This ignores that no further exploration followed to see how widespread the abuse was. Again, Julian Sanchez highlights just how ridiculous this is by noting that the fact that the argument is completely tautological in saying that oversight works because abuse has been discovered.

Congress has both the mandate and the obligation to oversee how law enforcement is using its surveillance powers -- and yet many of its members, led by Senator Dianne Feinstein and Saxby Chambliss, appear to be abdicating that job due to OMG TERRRORISM!@#!@#!!

Update: And they just voted on Senator Leahy's amendment, which was a pretty simple one, just shortening the term of this extension from 5 years to 3 years. All it would do is require that the next debate on this happen sooner, rather than later, but it was voted down (52 to 38) by Senators who'd rather not even discuss the fact that they're allowing the NSA and other law enforcement officials to regularly violate the Constitution. Just punt that question as far down the field as possible, I guess.

Update: And, down goes another amendment. Senator Merkley's amendment would have "encouraged" that secret interpretations of the FISA Amendments Act made by the FISA court be made public (in redacted form). This seems like common sense, but the Senate voted it down (54 to 37) -- because, apparently they like secret laws which the public isn't even allowed to know about, even if it means the NSA can snoop on nearly all of their communications without a warrant.

Update: And there goes another one. Senator Rand Paul introduced an amendment clarifying that the 4th Amendment protects all of your communications. The Senate rejected it by an overwhelming margin, 79 to 12, because apparently protecting your privacy and upholding the 4th Amendment is not the kind of thing the Senate supports these days.

As has been discussed here many times, screwing up in public is rarely pleasant, but if the one screwing up takes fast, direct action to respond to the problem and handles complaints with the right blend of contrition and forthrightness, damage will remain minimal. Not only that, but considering that contrition and forthrightness are a rarity in an era where companies sue individuals for writing bad reviews, this sort of action often sees the erring person/company earning praise and new customers for taking the road less traveled.

For zombie-shooter "The War Z," everything that could be handled badly was, starting with a rushed development cycle that resulted in a game that underdelivered and overpromised. Things went from bad to worse when executive Sergey Titov decided to blame his games' issues on the now-angry customers.

The first misstep was releasing the game in beta state while still expecting customers to pay between $14.99-49.99 for the dubious privilege of traipsing around an underpopulated MMO with only the promise of more and better features somewhere down the road, most of which will require additional payment. Considering the game went from alpha to "worth actual money" in under two months (beta began on October 10th), the supposedly "worth paying for" version seemed a bit, well, unpolished, to say the least.

It seems that the description put on Steam was a touch… exaggerated, perhaps listing what the game is eventually planned to include, rather than what’s in there right now. And it didn’t even mention that the game is not yet beyond beta. Claiming to feature “areas between 100 to 400 square kilometers”, the game in fact currently only has one map, and it’s 72 square kilometers.* It listed itself as having private servers, which it does not. And it sold itself as having skills to buy with experience points, despite the game having no skills at all. An imaginary “hardcore mode” was listed, and it claimed the complete rubbish that 100 players could join a server when the limit is 50.

*According to PCGamesN, the actual size of the map is considerably less than that -- 9.7417 sq km.

Pretty much nothing was true other than you could, if you so desired, throw money away on a beta version masquerading as finished product. Naturally, customers were unhappy and took the the forums to express their displeasure. That's when executive producer Sergey Titov waded into the fray, offering the sort of apology that lays the blame at the feet of those being "apologized" at.

“We’ve taken steps to correct this and format information presented on our Steam Store page in a way so it provides more clear information about game features that are present in the Foundation Release and what to expect in the coming weeks.

We also want to extend our apologies to all players who misread infromation about game features.”

Rock, Paper, Shotgun suggests this might be a translation issue (ha!). Perhaps Titov meant "miswrote." Gamespy followed up on Titov's statement, giving the producer a chance to actually apologize for the missing features. No dice.

“I’m sure there’ll be people who will look into small details and will say “no I was mislead,” where in fact they imagined something to themselves without checking details first.”

RPS thoughtfully grabbed a screenshot of the empty promises for posterity, giving all of us a chance to "imagine" a set of features that aren't actually included in "The War Z."

Titov also added: hey, if you don't like it, go get a refund. Well, sure. That's what the process is for, even if getting a refund for digital purchases is about as fun as playing an insta-fail escort mission that involves herding story-dependent cats through a catnip-laced minefield.

So, naturally, people made attempts to get their money back, only to find out that the terms of service (whatever wasn't copied directly from the "League of Legends" terms of service) now contained language stating that agreeing to the TOS waived their right to a refund.

ONCE YOU AGREE TO THIS TERMS OF SERVICE AND THE END USER LICENSE AGREEMENT FOR THE GAME (THE "EULA") AND SERVICE FOR THE GAME COMMENCES, YOU WILL NO LONGER BE ELIGIBLE FOR A REFUND FOR ANY AMOUNTS OR OTHER CONSIDERATION PAID BY YOU FOR THE USE (OR FUTURE USE) OF THE GAME CLIENT OR THE SERVICE.

All of this added up to "The War Z" being removed from Steam and Steam itself is offering refunds to unhappy customers.

Because of these actions, Titov's reputation is currently being burned to the ground (often with Titov himself pouring the gasoline) and sown with salt, something that could have been avoided with an actual apology. Kotaku's roundup of news surrounding "The War Z" grows longer by the day, detailing further hole-digging by the producer, including asking forum users to "upvote" his game at Metacritic (where it currently carries a 1.5/10 rating) as well as preventing members of the game's Steam message board from detailing why they have quit the game.

All it would have taken is for the producer to state the game had been prematurely released and pulled it back until it could actually meet the specifications it posted. Or failing that, released with an altered, realistic set of features. Instead, Titov decided to accuse customers of "misunderstanding" a completely unambiguous features list.

The singer Drake has, at times, been good about not being an IP absolutist, blasting his own label (Universal Music) for taking down the music he was leaking. However, it appears that he's not above demanding money for ideas he didn't come up with. According to Mashable, Drake has been tweeting at various retailers, demanding that they send him money for selling clothing that include the word "YOLO," recognized as an acronym for "You Only Live Once." Drake posted to his Instagram feed a picture of YOLO hats at Walgreens and said:

Walgreens....you gotta either chill or cut the cheque

He sent a similar message about YOLO clothes at Macys.

Drake, along with Rick Ross, are credited with popularizing YOLO in the song "The Motto" released in late 2011. The acronym became so popular since then that the Oxford English Dictionary had it as a runner up for word of the year.

So, if Drake came up with YOLO, does he deserve money? Well, there's a problem. A look at the etymology of YOLO suggests it predates Drake's song by many years -- and, in fact, a YOLO clothing line was launched back in 2004 following the use by one of the characters in the NBC TV show Average Joe. Similarly, the term went into the Urban Dictionary way back in 2004 as well. A search of the US PTO trademark database, shows a bunch of trademarks (and applications) related to the word "Yolo," some of which date back before Drake's song. Drake may have popularized it, but he didn't come up with it, and to now claim ownership of it seems pretty rich. Though, I guess, if "you only live once," perhaps his feeling is he might as well make an obnoxious cash grab for something someone else came up with.

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

The Apple/Samsung patent battle has been getting lots of attention, but a new verdict has eclipsed the record $1.05 billion that a jury awarded in that case -- and this time its to Carnegie Mellon University, after a jury has ruled that Marvell Technology Group should have to pay $1.17 billion for infringing a single claim in each of two patents. Specifically, the company was found guilty of infringing on claim 4 of US Patent 6,201,839 which reads:

A method of determining branch metric values for branches of a trellis for a Viterbi-like detector, comprising:

selecting a branch metric function for each of the branches at a certain time index from a set of signal-dependent branch metric functions; and applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

And claim 2 of US Patent 6,438,180 (which is a continuation patent of the '839 patent), which reads:

The method of claim 1, wherein the branch metric function is selected from a set of signal-dependent branch metric functions.

And, for that, the jury says that they need to pay $1.17 billion -- which the judge now has the option of tripling, as the jury also found that the infringement was willful. Of course, at this stage, the ruling is somewhat meaningless, because it will be appealed, and we'll have to wait for that whole process to play out. However, if the verdict does stand, it will be the largest ever patent award. Other verdicts have come in higher, but have all later been reduced (sometimes significantly). Furthermore, Marvell argued during the trial that a different patent held by Seagate, US Patent 6,282,251 was not only filed and granted way before the Marvell patents, but that it covers everything in both of those patents.

Now, as is the case in so many patent fights, many people assume that the defendant "copied" the patent, or that this was about a business deal gone wrong. However, as came out during the trial, CMU has never licensed this patent to anyone. It just sat on it and sued. As Joe Mullin covers in his coverage of the rulings, this is yet another case highlighting how many universities are acting just like patent trolls these days, trying to justify their failed "tech transfer" investments into patents by playing the game exactly like patent trolls. Furthermore, CMU's lawyers completely played up the entirely bogus story line that Marvell somehow "stole" these ideas from CMU -- even prompting objections and the judge stepping in to warn the lawyers to stop with the bogus claims:

Marvell lawyers said CMU's closing statement was "rife with misrepresentations," including suggestions that Marvell "broke the chain of innovation by not paying the royalties that they now owe," and noting those payments would be used "to fund further research, to lead to further innovation." That resulted in a short conference at the side bar, in which the judge warned "you can't dig deep into all of CMU's contributions to society and mankind."

CMU's attorney also started to compare Marvell's alleged patent infringement to identity theft. "The invention in this case is like your electronic identity, your credit card numbers, your Social Security number," said CMU lawyer Douglas Greenswag. "It's that which [sic] are very personal and valuable to you. You devote years to building up your reputation, your credit rating, your standing. One day Marvell sneaks in—"

At that point he was cut off by an objection and was not able to complete the analogy.

This is the sad legacy of the Bayh-Dole Act, which made it much easier for universities to get patents on their research. Rather than increasing their ability to do the fundamental research that is needed to help develop new technologies, universities have, instead, been trying to hoard patents to use to sue companies who actually innovate, usually with no knowledge of the patents held by the universities. Rulings like this one will not encourage greater spread of knowledge, information and research, but will only serve to incentivize universities to continue to act more and more like trolls, in hopes of a giant payday. That such crazy lawsuits may destroy companies who are actually out there innovating is, apparently, not much of a concern.

You may recall EMI / Capitol Records ongoing lawsuit against MP3Tunes and its founder/CEO Michael Robertson. The initial ruling in that case went almost entirely against EMI, with one small exception that we'll get to soon. EMI asked the court to reconsider the ruling, claiming that it had made some mistakes, but the court slammed EMI for some questionable behavior, including taking a number of quotes completely out of context as an attempt to mislead the court. The latest on that case is that following the appeals court ruling in the YouTube/Viacom case that sent that case back to the lower court, EMI pretended that the ruling changed everything and required a new ruling. The two sides are currently filing motions back and forth over that, with MP3Tunes pointing out that nothing in that ruling actually changes anything, and EMI claiming otherwise. Given the narrow aspects of the Viacom ruling, I think that EMI is still unlikely to get very far. Still, it's fairly amazing how much time, money and effort it has spent on this case, even as the company itself got into serious trouble and was sold off in, effectively, a fire sale.

Which then brings us to the other aspect of the case. The one area in which EMI "prevailed" in the original case was in the part they filed against Robertson personally. The court had ruled on summary judgment that Robertson was liable directly for 47 songs that he had personally "sideloaded" into MP3Tunes. However, even that part of the case was strange. Initially, EMI had claimed that it had never, ever, ever authorized any MP3s to be given out for free for promotional purposes. In response, Robertson crowdsourced examples of over 1,400 cases where EMI was clearly giving away MP3s for free. However, the court still ruled that he was liable.

In the latest filing about that, Robertson hits back on a number of points, starting with the fact that the court ruled on summary judgment on the issue, even though EMI and Robertson had already agreed that the summary judgment part of the dispute wouldn't cover Robertson's personal liability. Because of that, he didn't present the full argument for why he shouldn't be liable, and thus he's asking that the court allow that part to go to trial in order to show that the evidence of his own infringement is lacking.

In order to support that, Robertson's filing demonstrates a few important things. First, it shows a bunch of evidence that EMI purposefully and deliberately marketed its music to various sites asking them to give away MP3s and even to share the music widely. Second, it shows that, despite being asked for this info during discovery, EMI did not provide it. Instead, Robertson got it later from other sources. This is a big no-no, and EMI may run into some issues for failing to hand over the required information during discovery. Still, what the filing shows is that EMI regularly and frequently hired companies to distribute MP3s for free, and encouraged them to be put up on various websites and shared widely. And this includes some of the songs that Robertson is accused of infringing and some of the sites he's accused of downloading the songs from.

Reading pages five through nine in the motion he filed demonstrates this over and over again, including in an email from an EMI Publishing employee, who not only is planning a promotional download but says part of the plan is to "encourage as many third party online zines, podcasts, blogs, major web portals to host the MP3 for free download on their site." Here's just a snippet of some of the examples Robertson turned up of EMI using free MP3s in marketing (which they did not properly disclose):

For example, Definitive Jux (an EMI label) entered into an agreement with viral marketing firm, Better Propaganda, which granted Better Propaganda the right "to use, copy, distribute, display and perform [a specified song] on and through the Internet and the World Wide Web..."). This song remains available on the Better Propaganda site. Plaintiffs did not produce this document....

Similarly, Astralwerks (another EMI label) engaged Toolshed, Inc. ("Toolshed"), a Viral marketing firm, to distribute sound recordings pursuant to a marketing program by which Toolshed would virally distribute free MP3 downloads through various blogs and Toolshed's own website. Importantly, Toolshed's webpage for downloads notes clearly that "All songs . . . are pre-licensed for use on your site. Simply browse, find music you like, and copy it to your page." .... Toolshed has done projects for numerous labels, including EMI labels Astralwerks, Capitol Records, Caroline Records and Definitive Jux Toolshed distributed free MP3s for numerous of Plaintiffs' artists -- including Air, Willy Mason, Bat for Lashes, Pacificl, Carbon/Silicon, The Perceptionists, and Amos Lee -- including one of the same artists that Robertson is accused of wrongfully sideloading.... Plaintiffs did not produce documents they exchanged with Toolshed relating to those projects.

One project by Toolshed is especially important: as emails (dated March 5, 2007) provided to Robertson from Toolshed indicate, Astralwerks paid Toolshed to get websites to give away MP3s for the new release of the album "Pocket Symphony" by Air, to be released on March 6, 2007.... Toolshed achieved coverage, including free downloads of a track and/or video placement, with numerous sites, including 3HiVe, Donewaiting, Kevchino, Music for Kids Who Can't Read Good, Muzzle of Bees, PopMatters, Sixeyes, Stereogum, Antville, and Kingbline..., some of the same sites and the same artist from which Robertson is accused of wrongfully downloading Plaintiffs' songs and which Plaintiffs have alleged are unauthorized sources of MP3's.... Plaintiffs did not produce such documents.

In many ways, this is reminiscent of the whole Dajaz1 situation, in which the lawyers are insisting that the distribution on various blogs is infringing, at the very same time that their marketing people are begging those same sites to offer up the songs as a promotion.

Separate from all of this, but in the same filing, Robertson hits back on the claims that the use of cover art in MP3Tunes infringed. The filing notes that MP3Tunes had licensed all the cover art from Amazon and that EMI never even bother to show that it held the copyright in the cover art. All they showed was that the company had copyrights in the songs, but that's different from the cover art (and made more complicated by the fact that the copyright in the cover art might belong to the artists who created the art, rather than EMI).

All in all, the filing reinforces what's already come out in the earlier rulings: which is that EMI seems to have an incredibly weak case here, but due to what appears to be a random infatuation with going after Robertson personally, is just throwing everything it can at him.

Following on the story of IP addresses assigned to the major Hollywood studios using BitTorrent to distribute copyright-covered works, Torrentfreak and Scaneye are back pointing out that the same thing is true of all of the major labels and various parts of the US government. That last part is interesting, because they show that IP addresses assigned to the Justice Department, Homeland Security and Congress are all being used by people to distribute popular works covered by copyright. Here, for example, is just a snippet of the content being shared via IP addresses assigned to the Justice Department: Again, the same caveats to yesterday's article apply -- but the key issue remains. If the big content industry folks, along with government officials in the Justice Department are using evidence like IP addresses to make their case of infringement, it would seem like they ought to clean up their own homes first.

There's been a recent uptick in stories about patent trolling getting mainstream media attention, and the latest example is a recent segment on CBS's national morning program, CBS This Morning, which explored how patent trolls are hurting the US economy, mainly by focusing on the story of Uniloc suing the maker of X-plane. When we last wrote about that lawsuit, X-plane developer Laminer Research wasn't sure if it was going to fight the lawsuit, but as you can see in the video above, Laminer's Austin Meyer has decided he's going to fight the case no matter what -- even if it costs him $1.5 million (way more than it would cost to settle). Of course, this is how the trolls operate, by trying to make it cheaper to settle than to fight, but sometimes people have to take a stand and Meyer has decided to do exactly that.

The overall piece is well done, and includes some excellent commentary from the newly appointed Mark Cuban Chair to Eliminate Stupid Patents, Julie Samuels (though, the segment was apparently put together before she got that title, so she's merely described as the more mortal "EFF staff attorney" in the segment).

Either way, the whole thing demonstrates in a nice capsule just how ridiculous patent trolling is and how prevalent it has become. And, best of all, they really kept repeating the key point: this is hurting innovation in the US. After the segment, done by Jeff Glor, one of the anchors specifically says to him: "So it sounds like this is really stifling innovation and it hurts small businesses!" Yes, yes it is, but for years we've been told no one in the public cares. However, as this issue gets more and more mainstream attention, people are going to realize that it cannot be allowed to continue.

It's incredibly odd that institutions of higher learning are so intent on treating their students, who are all adults in the law's eyes, as overly sensitive children who need to be kept in a protective, non-offensive bubble during their stay on campus. Even stranger, one would think that "higher learning" would be a bastion of free speech, as encountering unfamiliar, offensive or otherwise reprehensible viewpoints opens new areas for debate and encourages critical thinking. Instead, free speech is at its most restrained on a majority of campuses out of administrative fear that someone, somewhere might be offended. But this would force the administration to treat those in these circumstances like adults in a free society, one that holds individuals responsible for their words and actions, which is something they are less than inclined to do.

What happens instead is a sanitized "hive mind" atmosphere in which every student is treated as part of a collective "student body," an entity whose tolerance for "offensive" speech is constantly calibrated to the most "sensitive" members of this whole. Once the walk over the eggshells of "free" speech begins, situations loaded with unintentional irony arise.

Blatantly ignoring the First Amendment, administrators at Saginaw Valley State University (SVSU) in Michigan's Tri-Cities area have repeatedly censored a student's posters—ironically, posters that protest a new, unconstitutional SVSU policy that allows the school to censor student postings.

Over the summer, SVSU adopted a new posting policy that requires all flyers to be approved by the Student Life office. The policy states that all postings "[m]ust be in good taste, free from profanity, nudity, or sexually suggestive graphics/phrasing," and "[c]annot include discriminatory or derogatory statements or graphics." The policy did not define "good taste," or what is "discriminatory or derogatory," leaving students to guess what might or might not pass muster with the subjective opinions of SVSU administrators.

The rules may seem sensible at first glance, but as FIRE points out, vague terms like "good taste" or "derogatory" leave the door wide open for inconsistent application of the policy, as well as allowing anything and everything that someone might find "tasteless" or "derogatory" to be censored by the Student Life office. The ambiguity of the policy doesn't end there. The full posting policy also notes that the Student Life office reserves the right to refuse any submission.

An SVSU student correctly concluded that this policy was restricting free speech on campus. And that's where the fun began.

On August 29, student Daniel Chapman, believing the new speech code to be unconstitutional, submitted posters for approval stating "Fuck Censorship, Fuck Oppression, Fuck the Draft. Fight for Free Speech and Political Expression at SVSU and Elsewhere."

On the face of it, Chapman's protest seems almost childish and clearly violates the "no profanity" policy. But Chapman's reckless use of the word "fuck" had a purpose: to draw a parallel to a landmark free speech case.

As Chapman explained in an email to an administrator, he purposely chose this slogan to parallel the seminal 1971 Supreme Court case of Cohen v. California, in which the Court made clear that the First Amendment protects the use of expletives in the communication of core political speech. In Cohen, the Supreme Court overturned the conviction of a Vietnam War protester for wearing a jacket emblazoned with the words "Fuck the Draft" in a county courthouse. The Court held that the message on Cohen's jacket, however offensive to some, was protected speech, writing that "one man's vulgarity is another's lyric."

Student Life and school administrators remained unimpressed. So, Chapman practiced a little self-censorship in order to get his fliers approved.

The next day, Chapman also submitted pre-censored posters for approval reading "F*ck Censorship" and "F!_!ck Censorship."

Still no good. Apparently, the punctuation was still too strong and SVSU refused to approve the pre-censored fliers, opting instead to approve the comparatively toothless "Stand Up for Free Speech" version. At this point, Chapman contacted FIRE (Foundation for Individual Rights in Education) which sent off two letters informing SVSU that its policy violated the First Amendment.

"It is difficult to understand how SVSU administrators, after consulting with a lawyer, could believe they have the right to censor political speech that contains profanity—even censored profanity—when the Supreme Court has made clear that the exact opposite is true," said FIRE Director of Speech Code Research Samantha Harris. "While their apparent dislike for expletives may be sincere, President Gilbertson and his administration must know that their actions violate the First Amendment. They need to understand that, just like Americans' other civil rights, the First Amendment is not optional, and that as public servants, constitutional obligations come first."

The letters went unanswered and FIRE is now planning to take Chapman's complaint to the next level and inform the governor and Michigan state attorney that SVSU's disregard for its students' rights opens it up to potential liability.

Beyond the legal issues, there's the administration's firm belief that the use of an expletive is somehow offensive to a large enough portion of it's presumably foul-mouthed-as-any-other-budding-adult student body will be offended not only by a printed "Fuck" but also by any variation substituting common punctuation for the evil "u." Is the risk of offense so great that it's willing to defend its actions in court? But I doubt this is actually about some stray F-words and more about a pet policy being openly challenged. Now SVSU is in the unenviable position of ceding ground to someone it desperately wants to shut up or going toe-to-toe with an organization more well-versed in First Amendment rights than it is. 

Alongside globe-spanning treaties like ACTA and TPP, there are more subtle efforts to limit the power of national governments, through the use of free trade agreements (FTAs) and bilateral investment treaties (BITs). There are now so many of these that it's hard to keep up, although the dedicated site bilaterals.org is a great help here. The confusing multiplicity only adds to their attractiveness for those negotiating them behind close doors, keen as they are to avoid transparency as much as possible.

One key issue for both FTAs and BITs concerns investor-state arbitration procedures that allow companies, typically powerful global corporations, to take entire nations to court over actions that allegedly cause the company harm -- for example, by introducing stricter environmental legislation that requires additional expenditure at manufacturing plants. The trailblazer in taking advantage of these provisions is the tobacco giant Phillip Morris. Here's what it did in Uruguay, back in 2010:

The tobacco giant is suing Uruguay, alleging the country is violating Switzerland’s trade agreement by requiring that anti-smoking warnings cover 80 percent of cigarette packages. If World Bank arbitrators agree, Uruguay could be forced to pay the company millions of dollars.

But Uruguay -- whose Gross Domestic Product is $44 billion -- refuses to back down from Philip Morris, whose market capitalization equals $108 billion. And now the country is getting backing all across the world in its fight against tobacco.

It's also suing Australia for similar reasons:

On 1 December 2011 the Tobacco Plain Packaging Act 2011 received Royal Assent and became law in Australia.

The Act forms part of a comprehensive Australian Government strategy to reduce the rate of smoking in Australia. Smoking is one of the leading causes of preventable death and disease in Australia.

Philip Morris Asia is challenging the plain packaging legislation under the 1993 Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments. On 21 December 2011, the Australian Government provided its response to Philip Morris Asia's Notice of Arbitration.

A fascinating article on the infojustice.org site from a few weeks ago explains the strategy of the tobacco giant here:

So why didn't this American company go through the [the main US-Australia FTA]? Because that treaty (1) does not guarantee investor-state dispute, and (2) provides for exemptions to expropriation obligations for limitations on intellectual property rights. Phillip-Morris faced a greater likelihood of failure under the US treaty.

The Hong Kong BIT is also a particularly good choice for Phillip-Morris because, unlike other treaties, it does not include prohibition on claims brought by investors owned by citizens or entities of countries not party to applicable treaty. For example, the BIT with the Czech Republic states:

Article 2(2): Where a company of a Contracting Party is owned or controlled by a citizen or a company of any third country, the Contracting Parties may decide jointly in consultation not to extend the rights and benefits of this Agreement to such company.

Had the Hong Kong BIT contained this language, Australia could have stopped Phillip Morris International from going through their Asian subsidiary in bringing this claim.

Phillip Morris is engaging in "treaty shopping" -- choosing to invoke those FTAs or BITs that contain terms most favorable to its legal action, whether or not they are the most logical or relevant to the dispute in question. That's possible because of the multiplication of these treaties, often with slightly different wording that allows the tobacco company to cherry-pick in this way. As well as deploying it against Australia, Phillip Morris is using the same approach in its fight against Uruguay by invoking the bilateral investment treaty between that country and Switzerland, not the US.

This underlines why it is crucially important for nations to get the wording of investor-state arbitration procedures right when negotiating FTAs, BITs and multilateral treaties like TPP. If they don't, they may well find that global corporations will exploit favorable clauses through the kind of treaty shopping practised by Phillip Morris to put countries at a disadvantage when arguing before international tribunals.

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