Rambus Inc. is back in the news again as some of its questionable pre-litigation tactics have been highlighted by another company on the receiving end of a patent infringement lawsuit. Rambus Inc. sued SK Hynix and several other chip builders at the beginning of 2000, claiming to hold the rights to certain DRAM technology. 

Rambus is perhaps best known for a move that took place well over a decade ago, shortly before it went into the innovation-via-litigation business.

On Friday, Whyte found that Rambus destroyed documents when it anticipated litigation. Specifically, Whyte said, Rambus employees were told to destroy documents at annual "shred days," from 1998 to 2000, prior to filing the patent suits.

Because litigation was "reasonably foreseeable," Whyte ruled, Rambus should had preserved the documents.

"Rambus engaged in spoliation of evidence when it engaged in the destruction of documents on all three shred days," the 66-page ruling states.

"Annual shred days?" The fact that Rambus had not only a periodic event but a nickname for the event should probably be taken as an indication that the "company" needed to rid itself of possibly damning paperwork. It calls to mind something akin to mobsters moving suitcases of cash to their mothers' houses ahead of a RICO investigation.

Now, many companies will annually shred financial documents, personnel files, etc. that have reached the expiration date of federal and state retention requirements. However, what Rambus did hardly sounds like just being tidy, despite its "engineers are messy" defense.

Rambus countered that its engineers tended to be "pack rats" and said that its policy was justified...

SK Hynix had brought Rambus' "shredding days" to the attention of the disctrict court back in 2005, claiming that "Rambus had spoliated evidence and that its 'unclean hands' warranted dismissal of 15 infringement claims." This claim was dismissed and in 2011, US District Judge Ronald Whyte ordered SK Hynix to pay $397 million in royalties. On appeal, Whyte reexamined Hynix's claims and found that Rambus had indeed shredded plenty of documents, but possibly nothing relevant.

"The evidence does not show that Rambus knowingly destroyed damaging evidence," Whyte said.

"Although the evidence does not support a conclusion that Rambus deliberately shredded documents it knew to be damaging, the court concludes that Rambus nonetheless spoliated evidence in bad faith or at least willfully," he added.

He also gave Rambus a bit of a post-facto warning.

Because litigation was "reasonably foreseeable," Whyte ruled, Rambus should had preserved the documents.

Then there's this, in which Whyte states that the litigation might have gone differently if no documents had been shredded.

"Even if none of the destroyed documents would have shed new light on the disclosure obligation, there may have been internal Rambus documents containing information about Rambus' plans to gain market power by using information learned at [Joint Electron Device Engineering Council] JEDEC meetings. Such evidence could have been relevant and given support to Hynix's equitable claims and defenses," Whyte said.

"The court concludes that Hynix has made a plausible, concrete suggestion that it may have been prejudiced by destruction of JEDEC-related documents, and that Rambus has not overcome this suggestion of prejudice by clear and convincing evidence."

Despite all this, SK Hynix is still on the hook for royalties. The $397 million might be reduced, but any reduction would have more to do with royalties Rambus has already collected from other companies, rather than any excessive shredding or the fact that it basically reverse engineered its patents to cover new industry standards. Unfortunately for SK Hynix, the shredding that has already resulted in two Rambus infringement suits being tossed out doesn't seem to be doing much for it.

While most people have been taught to fear and loathe bacteria and other microscopic organisms (just watch some soap commercials), healthy people actually carry around more bacterial cells with them than their own human cells. It's estimated that there are ten times as many bacterial cells on a typical person than the number of cells that carry a person's own genetic code. About 100 trillion microscopic life forms usually live peacefully on (or in) our bodies, but the microbes that cause disease make us suspicious of all of them. In our battle to defeat the bad guys, though, we should be careful to limit the collateral damage. Here are just a few projects working on fighting "bad" bacteria without killing them all.

• Acne plagues millions of people, and its treatments aren't always effective -- so how about some anti-acne viruses to kill off the bacteria that cause these pimples? The key trick is killing off just those specific bacteria and not all the beneficial natural bacteria that live on everyone's skin. [url]
• A rare medical procedure, bacteriotherapy or fecal transplantation, attempts to restore a person's natural intestinal flora. Antibiotics can sometimes kill off too many microbes, making people sicker, and sometimes the solution is to re-create the right balance of microbes in a patient. [url]
• Synthetic biology could create bacteria that prevent cavities, solve lactose intolerance, provide vitamins, and do all sorts of beneficial things for us. Imagine eating a yogurt that would replace the bacteria in your mouth or digestive tract... (and then wait 28 days for the zombie apocalypse). [url]

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

This is hardly a new thing, but it's nice to see it getting more attention. There's a new book, The Fine Print: How Big Companies Use 'Plain English' to Rob You Blind, by reporter David Cay Johnston that points out that regulatory capture and a lack of competition are why we have crappy, expensive internet (and mobile phone service). Among the points he raises, summarized over at Yahoo's Daily Ticker, are the following:

• Americans pay four times as much as the French for an Internet triple-play package—phone, cable TV and Internet—at an average of $160 per month versus $38 per month.
• The French get global free calling and worldwide live television. Their Internet is also 10 times faster at downloading information and 20 times faster uploading it.
• America has gone from #1 in Internet speed (when we invented it) to 29th in the world and falling.
• Bulgaria is among the countries with faster Internet service.
• Americans pay 38 times as much as the Japanese for Internet data.

Of course, we've seen most of this before, and we've heard all the excuses, about how we're more spread out. But, in the long run, the facts remain: we're piss poor at the internet, and that's a pretty big problem when the internet has become so important to so many people's lives and jobs. Johnston highlights the key problems:

"The telecos got the rules changed while we weren't watching," says Johnston in the accompanying interview. Basically, the phone and cable companies lobbied Washington to change laws and regulations to favor their businesses over their customers.

And remember the so-called "Information Superhighway"?

Over the course of the last 20 years, nearly $500 billion has been collected by the telecom companies to (allegedly) bring America into the 21st century with an "Information Superhighway," says Johnston. That works out to $3,000 per household to have access to high-speed Internet.

But America did not get what it was promised and much of the country will never get fiber optic lines...

Indeed, this is nothing new. We've been writing about this for about a decade now. It's also why we're uncomfortable with net neutrality laws, even if we believe the concept of net neutrality is quite important. We've seen how the telcos are very, very, very good at working the system to their advantage.

The only real answer to our problems is to encourage more significant competition. The question that's reasonable to ask is where that competition should be. It's not at all clear that it needs to be at the infrastructure level -- since that can be redundant. However, as Australia is now doing, you could invest heavily in a core fiber network that brings tremendous high speed access everywhere... and then let service providers compete at the service level, rather than the infrastructure level. Yet there appears to be little appetite for such things in the US these days. Rather, you have the big telcos and cable companies creating their own little controlled markets, with crappy service and inflated prices... while the rest of the world does much, much better. We've been able to get away with it in the short term, but over time, the lack of good broadband in the US is going to hurt us economically.

In a move that should remind you of Spain's ruling that personal file-sharing was legal, before America's entertainment industry helpfully wrote the Spanish people a new law (wait...what!!?!?), file-sharing for personal use has been declared legal in Portugal. How could something so monumental happen, you wonder? Well, funny story: the entertainment industry made it happen.

The tale goes something like this. An anti-piracy group sponsored by the entertainment industry called ACAPOR got all uppity about Portuguese filesharing a year ago and decided to helpfully deliver boxes (yes, physical boxes) of IP addresses suspected of filesharing infringing files to Portugal's Attorney General's office. They did this while wearing shirts that proclaimed "Piracy is illegal" in case anyone thought they were there for a cause that is actually useful and/or interesting.

“We are doing anything we can to alert the government to the very serious situation in the entertainment industry,” ACAPOR commented at the time, adding that “1000 complaints a month should be enough to embarrass the judiciary system.”

Secure in their knowledge that justice would be done, ACAPOR's minions then went home and did whatever it is these kinds of people do when they aren't making fantastic amounts of noise and generally making fools of themselves.

Well, as is their duty, the folks at the Attorney General's office did look through the boxes of evidence ACAPOR had provided...and promptly threw them out.

The Department of Investigation and Penal Action (DIAP) looked into the complaints and the prosecutor came back with his order this week. Contrary to what the anti-piracy group had hoped for, the 2,000 IP-addresses will not be taken to court. Worse for ACAPOR, the prosecutor goes even further by ruling that file-sharing for personal use is not against the law.

“From a legal point of view, while taking into account that users are both uploaders and downloaders in these file-sharing networks, we see this conduct as lawful, even when it’s considered that the users continue to share once the download is finished.”

Oops. Turns out those "Piracy is illegal" shirts are as ill-informed about the law in Portugal as the people wearing them. Especially since, for good measure, the AG informed ACAPOR that IP addresses are not people, so their evidence wasn't so much "evidence" as it was "a horrific waste of time and trees".

Now, not one to let facts get in the way of saying something stupid, ACAPOR boss Nuno Pereira pushed back on the AG's office.

“Personally I think the prosecutors just found a way to adapt the law to their interest – and their interest is not having to send 2,000 letters, hear 2,000 people and investigate 2,000 computers,” Pereira says.

Sure, that makes sense. Everyone knows if you're looking to avoid having to send letters and do paperwork, becoming a lawyer is the way to go. But did you really expect an anti-piracy group to take a sane thumping gracefully?

Of course, as we've seen elsewhere, whenever a country reacts sensibly concerning things like file sharing, the entertainment industry lobbying engine revs right back up... and suddenly the countries are described by US politicians in the worst possible terms. Any bets on whether or not Portugal just wrote itself onto the USTR's Special 301 list and the Congressional Anti-Piracy Caucus' "watch list"?

Just when you think the Megaupload farce can't get any more ridiculous, it does. Following revelations that New Zealand's Government Communications Security Bureau illegally intercepted communications in the Megaupload case and provided those details to law enforcement authorities, the country's Prime Minister has been forced to apologize personally to Kim Dotcom: "Of course I apologize to Mr Dotcom, and I apologize to New Zealanders." From his position of increasing strength as more and more missteps by the New Zealand authorities come to light, Dotcom graciously accepted those apologies.

But the political fall-out is continuing. An article in the New Zealand Herald does a good job rounding up the country's deepening frustration over the way the New Zealand government carried out this botched operation, and at the behest of others:

If provincial newspaper editorials are anything to go by, there is growing anger about the authorities' handling of Kim Dotcom. The Waikato Times' editorial entitled, NZ: 51st state of the US, is particularly worth reading. It says that the announcement of the illegal spying has 'heightened suspicions that this country's relationship with the United States has become one of servility rather than friendship'. The editorial's conclusion is worth quoting at length: 'Dotcom is wanted in the US to face nothing more threatening than breaches of copyright laws.

That last point is new, and important: it means that people outside the world of digital activism are beginning to realize that the underlying reason this series of extraordinary blunders and abuses has come about is because enforcing copyright -- and making an example of those alleged to have infringed on copyright -- has been placed above concerns about an individual's rights, or even the law.

Some are rightly beginning to question whether the price being paid by society in terms of loss of fundamental rights is simply too high for the very limited gains by the media companies as a result of these actions. In a new post on his blog, James Firth explores this theme, and makes a bold claim:

This surely is a watershed moment when even the most ardent securocrats wake up and realise such abuses help no-one. Without public trust in the security apparatus we can never feel free, even if we are.

It would certainly be good news if that were the case, but it remains to be seen how many do in fact wake up -- and whether the grip of the copyright industries on both the legislative and executive branches around the world is loosened as a result.

Another question is whether in the wake of the public outrage over the New Zealand government's supine behavior in the Megaupload case, the latter might start asserting its sovereignty a little more by standing up to the US in the current TPP negotiations, and refusing to submit over things like software patents. It now looks increasingly likely that they will be introduced into New Zealand, and the suspicion has to be that this is partly as a result of continuing US pressure. Saying "no" to software patents would allow the New Zealand government to point to an area where it has defended the country's interests despite demands from elsewhere.

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

Ah, life imitating art (or art accidentally imitating life). Earlier this year, we had Rob Reid post an excerpt and discuss his new novel, Year Zero, concerning aliens listening to Earth music for free, without a license... and then realizing that they've been infringing our copyrights for years, and owe the record labels more money than exists in the galaxy. Funny story, right?

Except... as Joe Betsill points out, apparently at least EMI really was afraid that aliens might listen to music without a license. In the Wikipedia entry for the Beatles' famous song, "Here Comes the Sun" it notes the following bit of trivia:

Astronomer and science popularizer Carl Sagan had wanted the song to be included on the Voyager Golden Record, copies of which were attached to both spacecraft of the Voyager program to provide any entity that recovered them a representative sample of human civilization. Although The Beatles favoured the idea, EMI refused to release the rights and when the probes were launched in 1977 the song was not included.

Of course, just a few weeks ago, we also discussed Sagan and the Voyager Golden Record, in noting how the world is changing in that we no longer have to wait for the modern Carl Sagans to decide what gets sent into space any more. So, perhaps the story in Year Zero isn't so far-fetched after all...

Over the years, we've pointed out repeatedly a massive Achilles Heel for Google: its often dreadful customer service. Trying to communicate with Google can often be like facing a giant white monolith, rather than any sort of human being. More recently, we've been concerned about Google's willingness to be overly aggressive in "enforcing" copyright, in an effort to keep Hollywood (and Hollywood's supporters in government) off its back. Combine those two issues, and you've got quite a story... such as the one from Techdirt reader Cody Jackson.

A few years ago, Jackson, while deployed in Iraq, wrote a book about Python (the programming language) called Start Programming with Python. He decided to give away the book for free, as a "thank you" to the open source community which, he notes, has provided him with tremendous value over the years. He has always made the book available for free, and linked to various sources where you can get it. At the same time, he's offered people the option to support him via donation. He also made a little bit of money via Google AdSense ads on his site.

Last week, he was contacted by a Google bot, telling him that AdSense had been disabled. Why? Because they claimed he was distributing copyrighted content illegally. The email, which I've seen, notes that his account has been disabled for the following reason:

Violation explanation

COPYRIGHTED MATERIAL: As stated in our program policies, AdSense publishers are not permitted to place Google ads on sites involved in the distribution of copyrighted materials. This includes hosting copyrighted files on your site, as well as providing links for or driving traffic to sites that contain copyrighted material. More information about this policy can be found in our help center ( http://www.google.com/adsense/support/as/bin/answer.py?hl=en&answer=105956 ).

To be honest, Google's terms here make no sense. Basically EVERY website "contains copyrighted material." Based on what Google sent to Jackson, no one could link to any website if they wanted to run AdSense. Google has a number of really good copyright lawyers, but they must have let this one slip by. I'm sure Google means "unauthorized" or "infringing" copyrighted material, but that's not what it says.

Either way, it seems ridiculous and serious overkill to suggest that any links to a site that carries infringing content -- even if the link is to legitimate content -- should be deemed a terms of service violation. The email provides one link as an "example page" of the kind of problems they're talking about. That page is the one where Jackson announces that he's put up a torrent of the 2nd edition of his book, and points people to The Pirate Bay and Demonoid to get it. Remember, this is his own book, which he's published himself and is giving away for free... on purpose.

You could argue that Google's terms here are overbroad and perhaps they're within those rules. But saying that you can't link to legitimate content that you yourself released on the Pirate Bay could have a real chilling effect for those who choose to put their own works on such sites.

Jackson reached out to Google for more information, explaining to them the situation, pointing out that he's the author and publisher, and that the work is published under a Creative Commons BY-SA license, and thus all copies on The Pirate Bay are perfectly legal and authorized. Google told him it would review the account... and then sent the following:

Thank you for providing us with additional information about your site. However, after thoroughly reviewing python-ebook.blogspot.com and taking your feedback into consideration, we're unable to re-enable ad serving to your site at this time, as your site appears to still be in violation.

If you'd like to have your site reconsidered for participation in the AdSense program, please review our program policies (https://www.google.com/adsense/policies) and make any necessary changes to your webpages. For more information regarding your policy issue, please visit https://www.google.com/adsense/support/bin/answer.py?answer=113061.

Confused about this after reading through everything and still not seeing any violation, he removed the links to the torrent files, even though it made perfect sense to him to keep them up. As he noted to me via email: "The torrent was one of the first ways that I had made my book available, since that is where the technical people are likely to hang out. I figured a torrent file on the most popular torrent site was a no-brainer."

So he, once again, responded to the Google bot, this time after removing the links... and he still got back the exact same message. The current post (and, again, this was a post that Google specifically called out as an "example" of a problem page) still mentions The Pirate Bay and Demonoid, but has no links (and even when it did have links, they were authorized!). And yet, Google's AdSense team still insists that he's violating AdSense's inscrutable terms. They won't explain why. They won't seem to actually comprehend what he's saying. They just block.

For what it's worth, we hear from Google haters all the time that it somehow refuses to take down Ads on "pirate sites." This experience seems to suggest the exact opposite: that Google is overly aggressive in trying to block ads showing up in any way, shape or form, near sites that it has deemed to be problematic, even if the content is 100% guaranteed legal and authorized. Combine that with Google's horrendous customer service-by-bot, and you have an unfortunate situation where an author is being punished for doing something perfectly legal and can't seem to find a human at Google who will actually take the time to understand what's going on.

These are the reasons why we get so nervous when Google cranks up its "automation" at the insistence of Hollywood. The collateral damage is very real.

One of the reasons why we live in such an innovative society is that we've (for the most part) enabled a permissionless innovation society -- one in which innovators no longer have to go through gatekeepers in order to bring innovation to market. This is a hugely valuable thing, and it's why we get concerned about laws that further extend permission culture. However, according to the former Register of Copyrights, Ralph Oman, under copyright law, any new technology should have to apply to Congress for approval and a review to make sure they don't upset the apple cart of copyright, before they're allowed to exist. I'm not joking. Mr. Oman, who was the Register of Copyright from 1985 to 1993 and was heavily involved in a variety of copyright issues, has filed an amicus brief in the Aereo case (pdf).

As you hopefully recall, Aereo is the online TV service, backed by Barry Diller, that sets you up with your very own physical TV antenna on a rooftop in Brooklyn, connected to a device that will then stream to you online what that antenna picks up. This ridiculously convoluted setup is an attempt to route around the ridiculous setup of today's copyright law -- something that Oman was intimately involved in creating with the 1976 Copyright Act. The TV networks sued Aereo, but were unable to get an injunction blocking the service. Oman's amicus brief seeks to have that ruling overturned, and argues that an injunction is proper.

But he goes much further than that in his argument, even to the point of claiming that with the 1976 Copyright Act, Congress specifically intended new technologies to first apply to Congress for permission, before releasing new products on the market that might upset existing business models:

Whenever possible, when the law is ambiguous or silent on the issue at bar, the courts should let those who want to market new technologies carry the burden of persuasion that a new exception to the broad rights enacted by Congress should be established. That is especially so if that technology poses grave dangers to the exclusive rights that Congress has given copyright owners. Commercial exploiters of new technologies should be required to convince Congress to sanction a new delivery system and/or exempt it from copyright liability. That is what Congress intended.

This is, to put it mildly, crazy talk. He is arguing that anything even remotely disruptive and innovative, must first go through the ridiculous process of convincing Congress that it should be allowed, rather than relying on what the law says and letting the courts sort out any issues. In other words, in cases of disruptive innovation, assume that new technologies are illegal until proven otherwise. That's a recipe for killing innovation.

Under those rules, it's unlikely that we would have radio, cable TV, VCRs, DVRs, mp3 players, YouTube and much, much more. That's not how innovation or the law works. You don't assume everything innovative is illegal just because it upsets some obsolete business models. But that appears to be how Oman thinks the world should act. Stunningly, he even seems to admit that he'd be fine with none of the above being able to come to market without Congressional approval, because he approvingly cites the dissent in the Betamax case (which made clear that the VCR was legal), which argues that the VCR should only be deemed legal with an act of Congress to modify the Copyright Act. You would think that the success of the VCR in revitalizing the movie industry would show just how ridiculous that is... but in Oman's copyright-centric world, the rules are "first, do not allow any innovation that upsets my friends."

Elsewhere, he argues -- quite correctly -- that Aereo's design was clearly done with the help of lawyers to stay on the legal side of the line, but he gets the exact wrong lesson out of that:

The Aereo system was not designed for the purpose of speed, convenience and efficiency. With its thousands of dime-sized antennae and its electronic loop-the-loops, it appears to have been designed by a copyright lawyer peering over the shoulder of an engineer to exploit what appeared to Aereo to be a loophole in the law and shoehorn the Aereo business model into the Cablevision decision.

In other words, he's admitting that the system was designed carefully to remain on the right side of the law... but he's somehow upset that this is possible. In his incredible worldview, you should not be able to design around the contours and exceptions to copyright law -- because anything that upsets Hollywood is, by default, illegal.

Perhaps we've learned who put the clause in the '76 Act that explicitly says that the law should be used to stop disruptive innovation if it gets in the way of the status quo.

Either way, he goes on at length, claiming that his efforts in helping to put together the '76 Act and his other work on copyright were continually focused on benefiting the copyright holder. He never mentions that this is not the purpose of copyright law. It is the means. But the intent is to benefit the public. Oman does not ever seem to take that into consideration.

Indisputably, Congress drafted the Copyright Act to prevent the creative efforts of authors from being usurped by new technologies. That core principle is at the heart of the Copyright Act. Congressional intent would be undercut by any decision that would sanction the use of technologies which could be used indirectly to undermine its goals. Congress enacted a forward-looking statute that would protect those who create precisely so they have incentives to create.

Actually, that's quite disputable. The Copyright Act can only be designed to benefit the public. The means of doing so is by creating the ability of copyright holders to exclude, but that is hardly the only incentive to create. Allowing new technologies that disrupt old business models does not necessarily remove the incentive to create. Instead, as we've shown over and over again, the incentive to create appears to have increased greatly, even as respect for copyright has weakened tremendously over the past decade. So I fail to see how Congress' "intent" could possibly be undermined by new disruptive technologies coming along -- without permission -- and creating new and expansive markets that both help the public and provide new opportunities for content creators.

People are spying on you. All kinds of people. Law encorcement does it. The NSA does it. Schools are monitoring our children. But I'll tell you who is not spying on you: PC rental companies. Well, at least not anymore.

But they were spying on you before federal charges were brought against them. It turns out that seven rent to own PC companies were employing software that logged your keystrokes, retained your social media passwords, recorded your social security passwords, snapped photos of people having sex with web cams, and even allowed rental company employees to deploy a French tickler through the screen to rub people's naughty bits (fine, fine, I made that last one up).

The companies captured screenshots of confidential and personal information, logged keystrokes and took webcam pictures of people in their homes. Their aim was to track the computers belonging to costomers who were behind with their payments.

"An agreement to rent a computer doesn’t give a company license to access consumers’ private emails, bank account information, and medical records, or, even worse, webcam photos of people in the privacy of their own homes," says FTC chairman Jon Leibowitz. "The FTC orders today will put an end to their cyber spying."

Yes, thank God for the FTC, because if anyone is going to watch me have sex, it's going to be the neighbors (no, I will not close the window and draw the shades, damn it, I like the breeze!). My question is why the hell anyone, especially the company that made the spying software used, DesignerWare, thought this kind of intrusion was necessary to begin with. Hell, this isn't even the first time a rental company using this software has gotten into trouble over it. The rental companies said they needed the software to remotely shut down and wipe stolen machines, as well as to initiate a kill switch on customer's machines when they were behind in payments. Those both make sense to me. Where do we get the explanation for logging keystrokes and in any way using the web cam?

At least the FTC must have brought the hammer down for such a gross violation of privacy, right?

The rent-to-own companies are Aspen Way Enterprises, Watershed Development, Showplace, JAG Rents, Red Zone, B Stamper Enterprises and CALM Ventures. They've got off lightly, agreeing to stop using the data-collection software and to stop deceiving customers.

I'll have to keep this in mind the next time I break the law. Just agree not to do it again and everything is okay, apparently. In the meantime, anyone who is renting computers can avoid these companies.

This looks like it might be a new sign of the disrupted times. With major publishing houses competing with damn near everyone for readers, they can longer be expected to hand out hefty advances, especially in exchange for the literary equivalent of vaporware.

Penguin has decided to reclaim a bit of the money it threw at a selection of authors and, in one case, a potentially heartwarming tale of love and concentration camp survival that turned out to be completely fabricated. The Smoking Gun has published the names and amounts sought by Penguin in the lawsuits filed for "breach of contract/unjust enrichment." Here's a couple of defendants from the list:

* Blogger Ana Marie Cox, who signed in 2006 to author a "humorous examination of the next generation of political activists," is being dunned for her $81,250 advance (and at least $50,000 in interest). Her Penguin contract totaled $325,000.

* Holocaust survivor Herman Rosenblat was signed for $40,000 in 2008 to describe how he "survived a concentration camp because of a young girl who snuck him food. 17 years later the two met on a blind date and have been together ever since, married 50 years." While Rosenblat’s story was hailed by Oprah Winfrey as the "single greatest love story" she had told on the air, it turned out to be a fabrication. Penguin wants him to repay a $30,000 advance (and at least $10,000 in interest).

Ten more authors were named, including "Prozac Nation" author Elizabeth Wurtzel, who failed to deliver a "book for teenagers to help them cope with depression." The total amount, including interest, totals to over a half million dollars. Authors failing to deliver something printable (or anything at all) to publishers is nothing new, but a shotgun blast of legal filings against authors is a bit novel. (Oh, ho! A book pun.) It would be tempting to call this a new "revenue stream," but only the interest would be "new" money.

Theories as to ulterior motives or possible underhandedness on Penguin's part are being advanced (and another pun! completely unintentional!). In The Smoking Gun's comment thread, Trident Media Group chairman Robert Gottlieb speculates (strongly) that Penguin's treatment of its authors is disingenuous, at best:

Authors beware. Books are rejected for reasons other than editorially and publishers then want their money back. Publishers want to reject manuscripts for any reason after an author has put time and effort into writing them all the while paying their bills. Another reason to have strong representation. If Penguin did this to one of Trident’s authors we could cut them out of all our submissions.

Another possible angle is offered by literary blogger Edward Champion:

Why did Penguin wait until NOW to go after advances? Has Ducksworth been settled? And are authors having to pay up for discrimination?

Champion refers to the age discrimination lawsuit filed earlier this month against Penguin by Marilyn Duckworth, who alleges the publisher forced her out after 27 years of employment to pursue employees that were "faster, stronger and more nimble."

At this point, it's tough to judge the merits of the lawsuits based on anything other than Penguin's claims. It looks like straight-up breach of contract and the range of topics left unpublished (the rise of Bass Pro Shops, an "analytical forecast arguing for the future success of gold," a second book from the "dynamic pastor of the Empowerment Temple") suggest that Penguin's not limiting legal action to trendy bloggers or other "next big things." If this action proves to be successful, it's not tough to imagine other publishers following suit (Pun trifecta!), especially with the possibility of collecting 25-30% interest thrown into the mix.

But, if you're an author-to-be, and choosing to sign a publishing deal with a major publishing house, you'd have to think that this kind of thing would make you a lot less willing to sign with Penguin. Who wants the added stress of possibly being sued for the advance the publisher gave you? It would seem that authors may start to be a lot less interested in publishing with Penguin.

It looks as if Panama is set to pass what Andres Guadamuz (Technollama) called the "worst copyright law in history." The 510 Bill grants the Panamanian copyright office the right to pursue filesharers directly and fine them up to $100,000 USD EACH with the money flowing directly back into the copyright office in the form of bonuses for the officials. None of the money flows to the rights holders and those who have been fined can still face civil action from those holding the copyrights.

infojustice.org reports that Bill 510 has been approved by the Congress and is now awaiting approval from the executive branch. The Minister of Commerce and Industry, Ricardo Quijano, seemed pleased with its passage through Congress:

[Wi]th the implementation of this new Act, our country [Panama] is being upgraded within the international and global context.

Marcela Palacia Puerta (writing for infojustice.org) queries whether the Minister's statement is correct:

Is the Minister of Commerce right? Are the international standards implemented by this Act? This Act gives extraordinary power to the administrative organism in charge of the registration, storage, monitoring and inspection of copyright, allowing it to impose fines on infringers, violating the general principles of law as “non bis in idem” and “presumption of innocence”. Can impartiality and justice lead a process of imposing fines, when the beneficiaries of the fines are the functionaries of the organism itself?

Puerta is right. No other country has given the copyright office this sort of unchecked power before. Granting itself the leeway to directly pursue infringers and add the fees collected to the bonus pool is unprecedented. To be sure, "international standards" are being implemented, many of them at the behest of the US government (itself acting at the behest of the MPAA and the US Chamber of Commerce). The worst parts of US copyright law were signed into effect late last year and Panama seems to have taken the "free trade agreement" as a jumping off point, rather than the illogical extreme it actually is.

Rather belatedly, Congressman Jose Blandon asked to make the Act public to "avoid distrust within the population about this law." Well, it's the afterthought that counts, I suppose, but transparency means allowing the public to participate well before the final step of the legislation process. At this point, the bill is two-thirds passed and any input will likely be too little, far too late.

Back when Wikileaks first released some State Department cables, creating quite the uproar among government officials, the Treasury Department was clear that it would not declare Wikileaks a terrorist organization or list Julian Assange as a "Specially Designated National" on the list, because it did not meet the proper criteria. However, a document from the Air Force, released under a Freedom of Information Act request, has revealed that Assange and Wikileaks have been declared "enemies of the US" in a specific investigation into a cyber systems analyst who dared to "express support for Wikileaks" and attended a pro-Wikileaks demonstration. By designating Wikileaks an enemy of the US, the military is effectively declaring that any contact with Wikileaks or its supporters could be deemed "communicating with the enemy" -- which can be punished severely (even death). For all sorts of reasons, this seems like a ridiculous and horrific overreaction. Even if you disagree with Wikileaks or how Assange goes about what he does, having the US government declare you an "enemy to the United States" for seeking to increase transparency seems both extreme and completely out of proportion with the reality of the situation.

Meanwhile, Assange himself was able to address the UN via video, in which he lashed out at the hypocrisy of the US government, defending freedom of speech with one breath, while at the same time seeking to bring down Wikileaks. While it's no secret that Assange and Wikileaks have embarrassed the US, it's a massive leap to go from that to claiming that it is an "enemy" of the United States. Just doing so could put incredible chilling effects on all sorts of journalists. The idea that leaking relevant and newsworthy information can get you classified as such has incredibly scary implications. It broadens the definition of an "enemy of the state" to ridiculous proportions, and begs to be abused by a government that doesn't seem to handle embarrassment particularly well. Even if you think Wikileaks goes too far or that Assange himself is an egomaniac, it seems that we should all be quite worried about the implications of declaring him and the organization enemies of the state for merely leaking information that they felt was newsworthy.

Michael Robertson has a long history of pushing the boundaries of copyright law, by going where the technology allows, even if the law hasn't quite caught up yet. As such, he frequently finds himself on the wrong end of legal actions from legacy players who hate being disrupted. Last year, we wrote about his DAR.fm effort, which basically is an online DVR for broadcast radio. He's now taking that even further, with the launch of UberTalk, an online directory of what's on radio right now (and in the future). You know your basic online (or on screen) TV guides? Yeah, UberTalk is that, but for radio -- with the convenient ability to play... or to record and time shift anything you'd like. Given the state of radio today, this seems really, really useful. But, is it legal? We've already seen legal threats pointed at DAR.fm, and I can't imagine that all the broadcast folks will like this either -- even though it only increases the value of their product by making it more easy to find and useful.

What we're seeing, yet again, is how the technology allows for something really useful that adds value to both the content and for the users. And yet... copyright law makes it very, very difficult to pull off. Why? Because copyright law is purposely built around keeping the status quo, not about encouraging innovation. So you have yet another clear case where it seems like copyright law is holding back "the progress" rather than helping to speed it along.

Neelie Kroes, the Vice President of the European Commission and politician in charge of the Digital Agenda, announced the impressive ambitions of the EU to support the ongoing technology revolution in a recent speech in Brussels. Repeatedly, she calls for radical reform of policy and public R&D investment. The speech shows once again that she and her team really understand the current transformation to a networked economy, which brings about “open, agile and collaborative” innovation and research. Kroes wants to accelerate and boost the potential of technology innovation by creating space for “disruptive ideas”. A few snippets:

“I want to try out support for truly open, disruptive innovation in ICT.”

“[…] remember that great innovation isn't about keeping the status quo: it's about challenging it. It's radical, disruptive, and sometimes non-linear – especially for emerging technologies. So let's make space for that in Horizon 2020.”

“We must update our policies and practices for the digital world”

How refreshing is that from a senior government official? Of course, she names and shames some barriers, which she intends to bring down. Notably, she mentions the policy incoherence of EU copyright, where the status quo strangles innovation (if you follow her implied logic from the speech). This is not the first time she mentions that copyright is doing more harm than good. She has criticized the system again and again. And again just the other day. And several more times in unofficial speeches.

It must now be getting obvious -- even for the layman -- that the copyright system is one of the biggest inhibitors of Mrs. Kroes’ ambitious and forward-looking agenda for positive technological change. Too bad the copyright office of the EU is not in her department, but in the department run by Mr. Barnier, who seems a little more hesitant to enact change. Perhaps it's because he has a top former IFPI lobbyist working for him? Perhaps Kroes’ frequent mentioning of copyright is an implied call for assistance to her audiences to help change Mr. Barnier’s mind.

I wonder how long it will take for civil society organizations to pick up on these hints. The current public interest in copyright policy after ACTA, SOPA and PIPA can now be called into action again to send a batch of friendly notes to Mr. Barnier, possibly with a few quotes from Mrs. Kroes’ speeches, urging him to develop new copyright legislation which should be discussed in open and transparent forums sooner rather than later. It would be a shame to let governments postpone legislative action until the public interest from the internet freedom movements subsides.

In any case, you may comment on Mrs. Kroes' speech or leave a reply on her blog to show your support and even make some suggestions of your own.