Thanks to an enforced climate of fear, law enforcement and security agencies remain deeply suspicious of photography in public places. Despite the fact that most public places are now covered in cameras erected by law enforcement and security, the prevailing view seems to be that a member of the public "armed" with a camera is a threat that should be dealt with immediately. The law is rarely on the side of those doing the law enforcement, oddly enough, but that doesn't stop them from trying.

Armed with ignorance, along with guns, tasers, nightsticks and the safety of numbers, these enforcers continue to violate the rights of citizens, often destroying evidence of their misguided actions in the process.

Carlos Miller is one of those fighting back against these attempts to curb rights solely through intimidation. Petapixel reports on Miller's latest run-in with the law, or rather the Miami Metrorail security force, 50 State.

Photographer, blogger, and photographers rights’ activist Carlos Miller has made headlines quite a few times over the past few years with his legal rumbles with authorities over photography in public places. Miller, who often instigates the disputes for the purpose of bringing photographers’ rights into the spotlight, recently had another big confrontation with authorities in Miami (it’s not the first time it has happened).

According to Miller, his friend was photographing Dade County Courthouse from the rail platform and he was photographing his friend... Miller says that they were spotted by a security guard and warned over a loudspeaker to stop shooting photographs. When they didn’t put their cameras away, security guards arrived to confront them.

As is usually the case when the enforcement agency is operating on little more than a combination of gut instinct and vague directives, the security guards spent a bit of time shuffling through their deck of possible charges in hopes of making one stick.


First, they told Miller that it was illegal to photograph the rail portion of the train, something that is completely false. According to Eric Muntan, Chief of Safety and Security of the metro, noncommercial photography is "perfectly fine." (Which didn't stop Miller from receiving a completely unenforceable "lifetime ban" from the Metrorail.)

When challenged on this claim, the responding guard switched over to accusing Miller of being drunk because he smelled alcohol on his breath. Again, there's nothing illegal in Miami about being drunk in public (Miller states he had three drinks in two hours while watching a football game) -- one has to be considered a "threat to public safety" before it's considered a crime.

At that point, they decided trespassing might be the way to go, considering they'd asked Miller to leave and he hadn't. When nothing else worked, the guards wrestled him to the ground, seized his camera, seized the camera his friend was holding (temporarily), before cuffing them both and turning them over to the Miami PD. Miller notes that the guards "surprisingly" returned both phones before releasing them to Miami-Dade law enforcement.

At that point, the police began arguing about what to charge the pair with (while making it a point to mention that they hadn't deleted the footage captured earlier -- Miller is rather well known in the Miami law enforcement community), finally deciding on "producing loud or excessive noise" and released Miller and his friend, but not before handing out a $100 citation.

So, the end result is nothing illegal occurred and yet, two people were cuffed and delivered to the police department and handed a $100 fine for "loud noise," most of which was actually created by the three security guards. While no one expects a third-party security team to be familiar with all the legal aspects of their coverage area, one would at the very least expect them to know what comprises legal photography, especially considering the safety chief's directive. This sort of thing applies directly to 50 State's security responsibilities. The fact that this whole situation began with a loudspeaker announcement directing the pair to "stop taking pictures" gives it another layer of unseemly Big Brother-ish state-ordained paranoia. There was no legal basis for the stop and no evidence of any wrongdoing, but those "securing" the Metrorail went ahead and shut them down anyway, because that's the attitude fostered all the way up the line to the DHS. 

The search for intelligent life might be more fruitful if we started looking more closely at other animals right here on Earth. The progress of artificial intelligence in computers might also be surpassed by breeding a few hyper-intelligent pets someday. Some zoo animals are already playing around with iPads, so maybe we'll have some super smart cyborgs... In any case, here are just a few examples of projects that are studying how smart our fellow vertebrates might be.

• DARPA is scanning dog brains with MRI machines to figure out which dogs are best suited for military dog training. The FIDOS (Functional Imaging to Develop Outstanding Service-Dogs) project could help train dogs more effectively for all kinds of tasks -- from detecting drugs to being better therapy companions. [url]
• PBS has a great documentary that follows how raccoons are adapting to urban living. Anyone who has tried to protect their garbage cans knows how wily raccoons are. [url]
• What animal would you use to model the cognitive development of human babies? If you said piglets, then maybe you should try being a neuroscientist at the Beckman Institute at the University of Illinois. [url]
• The problem-solving capabilities of captive hyenas appear to be a bit better than their wild cousins. The tests administered to these hyenas were admittedly a bit biased.... [url]

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

Just recently, we pointed to Google latest Transparency Report, which showed a massive increase in requests for info on users from government agencies. However, it also showed that a much lower percentage of such requests were being honored, raising some questions about how Google handled such requests. Well, wonder no more (or, at least, wonder a little less) as Google has now explained the process by which it handles such requests, going into a fair bit of detail (you have to click through) in terms of the legal requirements and how Google handles different types of requests, and what data Google may be compelled to reveal. However, in an accompanying blog post, Google makes clear that it often pushes back:

When government agencies ask for our users’ personal information—like what you provide when you sign up for a Google Account, or the contents of an email—our team does several things:

• We scrutinize the request carefully to make sure it satisfies the law and our policies. For us to consider complying, it generally must be made in writing, signed by an authorized official of the requesting agency and issued under an appropriate law.
• We evaluate the scope of the request. If it’s overly broad, we may refuse to provide the information or seek to narrow the request. We do this frequently.
• We notify users about legal demands when appropriate so that they can contact the entity requesting it or consult a lawyer. Sometimes we can’t, either because we’re legally prohibited (in which case we sometimes seek to lift gag orders or unseal search warrants) or we don’t have their verified contact information.
• We require that government agencies conducting criminal investigations use a search warrant to compel us to provide a user’s search query information and private content stored in a Google Account—such as Gmail messages, documents, photos and YouTube videos. We believe a warrant is required by the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable search and seizure and overrides conflicting provisions in ECPA.

This is definitely good to see -- and lots of other companies should do the same thing. However, it still remains an issue that governments can, and do, get lots of information with limited oversight -- even when companies push back.

Speaking of which, Twitter also came out with its latest transparency report, which highlights the information requests it gets as well. Both companies are really leading the way on transparency here, but it's a shame that these stories are even newsworthy, rather than the way most large companies act.

We see stories often enough about "big" companies "copying" the ideas of individuals or small upstarts, and it's not uncommon to see a group of fans rise up in protest, often leading the big company to back down and apologize. This can show how social pressure can keep egregious behavior in check -- but sometimes, it can create virtual lynch mobs that are ill-informed. Last week's fight between Quirky and OXO is a really fascinating case study both in how such a lynch mob can come about... as well as how the so-called "big" company crafted a really good response.

If you're unfamiliar with the players Quirky is actually a pretty cool startup, where people submit ideas for cool products, which are then voted on by the community, and the most popular ideas are refined by the community and then made into products and sold in stores, with whoever submitted the initial idea getting a cut of the revenue. I like the model, and think it fits well with a number of other cool services (like Kickstarter) that are leading to a revolution in the creation of new consumer products. OXO is a somewhat ubiquitous maker of useful products for your home, with a focus on comfortable rubbery grips.

Last week, Quirky suddenly announced a war against OXO, arguing that OXO's Upright Sweep Set (a broom and dustpan set) was actually a copy of Quirky's Broom Groomer. The key issue? Both dustpans have "teeth" that hopefully pull off stubborn dirt and dust from the broom into the dustpan. You can see them here: Quirky argued it was standing up for the little guy, inventor Bill Ward, who first submitted the idea that became the Broom Groomer. The whole thing certainly felt like a publicity stunt to some extent, with Quirky putting up a big freaking banner on its building referencing the fact that OXO's offices are two blocks away from its own: Also, the "protest" outside of OXO's office felt fairly contrived: Of course, when an online mob is out for justice, arguing that you've "ripped off" the little guy, plenty of companies quite reasonably just fold. Often this is because they have done something that, if not illegal, is somewhat questionable in nature. However, OXO didn't feel they had done anything wrong, and they put together an almost perfect response to the whole campaign. Seriously, for anyone working for a larger company, trying to understand how to respond to an angry online uprising, when much of that uprising has been driven by misinformation, look at OXO's response and take notes.

The response is clear, written in a conversational tone -- but also quite direct in explaining why Quirky's campaign was complete hogwash. It's not defensive, calmly walking through what had already transpired, and explaining what Quirky had stated. But then it added the important missing facts, starting with the fact that such designs weren't just common, but that one had been patented about 100 years ago, and had long been in the public domain. OXO explained:

Unfortunately, the designer of Quirky's Broom Groomer wasn't the first person to come up with the idea of teeth on a dustpan. The idea was actually invented almost 100 years ago. On September 9, 1919, the patent for this idea was issued to Addison F. Kelley from Freeland Park, IN. Information about this patent (No. US1,315,310) is available here: http://www.google.com/patents/US1315310.

In a nutshell, Addison F. Kelley's patent specifies a "provision for combing the brush used in connection with the pan... It will be apparent… that a broom or brush may be readily cleaned and particles of hair and the like removed therefrom by inserting the teeth into the body of the brush and then pulling thereon until the teeth are free of the outer ends of the bristles of the brush or broom, at which time the dirt removed will fall into the dust pan."

They then note that the patent has been expired since 1936 and highlight a number of differences between the Quirky product and the OXO product, but then explain how innovation works:

Ideas are limitless and patents expire for a reason: to encourage competition, innovation, and the evolution of new ideas that ultimately benefit the end user. If patents never expired, we would have only one car company, and the cars they develop would likely not be readily available and affordable to so many people all over the world. Imagine that.

At OXO, we either invent or improve. In this instance, we improved upon Mr. Kelley's patent. Many other innovators do this as well. Apple did not invent the Walkman. They did not invent the cell phone. They did not invent the tablet computer. Their designers improved each and now millions of people enjoy the fruits of their improvements.

This is fantastic for a number of reasons. But, beyond that, OXO points out that other companies copy its innovations all the time, and they're cool with that, because that's competition and it's how innovation is supposed to work:

With over 800 OXO tools, we also come across products that look strikingly similar to our own. At this point, many consumers don't realize that prior to OXO, there were no soft, comfortable non-slip grips on kitchen tools or other consumer products. We appreciate the competition's right to incorporate this feature to the point where it is now commonplace. In the end, the consumer won.

And then, they highlight a ton of Quirky products that are remarkably similar to OXO products, but which OXO had first. Here's just one example: In the end, they make the key point:

Now, let's put this all behind us and get back to designing great products.

Of course, there's also a sidebar, in which they point out that Quirky is attempting to patent the Broom Groomer, and noting that beyond running into trouble due to that 1919 patent, it appears Quirky failed to file its patent within the 12-month window you have after disclosing an idea. The sidebar also notes that inventors who submit their ideas to Quirky may not fully understand the legal implications of doing so -- and they offer everyone, Quirky inventor or not, the opportunity to take a "patent process primer" from an OXO product engineer.

Over the weekend, Quirky responded with its own blog post, that comes across as fairly weak in comparison. The entire argument hinges on timing. Quirky insists that OXO must have copied its design (despite the differences) because of the timing when each product came out. It ignores the many products that OXO highlighted it has where similar products came from Quirky later. Instead, Quirky continues to spin it as "little guy against big company," somehow claiming a ridiculous victory in that it got OXO to respond. That's pretty weak sauce, frankly. OXO won this battle pretty handily.

In the end, the whole thing looks like a really weak attempt at churning up controversy over a bogus issue to generate publicity for Quirky. It might have seemed like a good idea, but in retrospect, it looks really weak. That's too bad, because (as stated earlier), I really like Quirky as a concept, but focusing on whose copying whom when they could spend their time designing, innovating and building, just seems like a really weak move.

Well, well. It was really only a matter of time, but the Alan Cooper saga has moved into its next phase. If you don't recall, this story all starts with John Steele, who had been a divorce lawyer until he discovered copyright trolling, and suddenly went absolutely crazy filing copyright trolling lawsuits with the sole purpose of trying to scare people into paying up (of which he got a huge cut) rather than actually taking people through the judicial process. As a bunch of his lawsuits start flopping (even as enough uninformed people coughed up lots of money to Steele), he began shifting strategies. He claimed to have shut down his law firm, only to pop up again in Florida with Prenda Law doing the same thing (and ran into some troubles for not being licensed to practice law there). Late last year, it appeared that Steele hit on a new strategy of using shell companies to try a whole bunch of tricks and loopholes for getting around the reason his cases kept getting thrown out. There were suspicions that the shell companies, going by names like AF Holdings, Ingenuity 13 and Guava, were nothing more than Steele and/or his partners, but there was little evidence at the time. That's quickly changing.

Back in December, a guy named Alan Cooper, who had been hired by Steele to be the caretaker of some of Steele's property in Minnesota, intervened in a few AF Holdings and Ingenuity 13 cases to point out that it had come to his attention that both companies were claiming that a guy named Alan Cooper was managing those companies, and he had reasons to believe that Steele had simply used his name. While a few courts ignored the letters, some judges have started asking questions, and no one associated with Prenda seems to want to answer the simple question: which Alan Cooper runs those companies?

Apparently Prenda's silence on the matter has been enough for caretaker Cooper (and his lawyer) and they've now sued Prenda, John Steele, AF Holdings and Ingenuity 13, directly claiming that Steele is in charge of all of those and forged Cooper's signature. In fact, in the exhibits, Cooper presents the caretaking agreement he did sign with Steele, and then suggests that documents showing a signature for Alan Cooper regarding AF Holdings or Ingenuity 13 are really attempts to forge the same signature in that caretaking document. Cooper is charging Steele and Prenda with invasion of privacy (via appropriation), deceptive trade practices and civil conspiracy, as well as arguing that the corporate veil should be pierced for all three companies, as they're nothing more than shells for Steele to hide behind.

Of course, if this keeps up, Steele may be facing a lot worse than civil charges. Forging someone's name and lying to the court aren't things that tend to go over well in criminal cases.

During CES, there was a panel discussion on patent trolling, and panelist Lee Cheng, Newegg's top lawyer, made some strong statements about how the company had made the decision that it will never give in to patent trolls, because if it does, more will just come knocking. That strategy may be costly upfront, but it also may have just saved the public from paying a massive online shopping tax. Joe Mullin, once again, has the fantastic story concerning Newegg's big victory over Soverain Software, who claimed that its patents (5,715,314, 5,909,492 and 7,272,639) covered basically any online shopping cart. As we noted back in 2010, Soverain was a pure patent troll which purchased the patents that had originally come from Open Market, and was suing everyone (with a ton of companies settling).

However, Newegg chose to fight it, and despite losing at the district court level (in East Texas, of course), the Appeals Court has invalidated all three patents. Incredibly, the East Texas court had refused to let Newegg make the argument that the patents were not valid.

At district court, the judge hadn't even let those invalidity arguments go to the jury, stating there wasn't "sufficient testimony" on obviousness, and that it would be "very confusing" to them.

That's fairly incredible. The validity of a patent is a key issue in any patent trial, and for a judge to reject it even being brought up for being "too confusing" to a jury is astounding. Thankfully, the appeals court completely rejected not only that idea, but the patents as well -- and it means that some other recent verdicts in favor of Soverain are now dead as well.

Mullin's article also highlights some of the bogus nature of Soverain:

It's all a sham. Court records show Soverain hasn't made a sale—ever. The various voice mailboxes were all set up by Katherine Wolanyck, the former Latham & Watkins attorney who is a co-founder and partial owner of Soverain. And the impressive list of big corporate customers on its Web page? Those are deals struck with another company, more than a decade ago. That was OpenMarket, a software company that originally created these patents before going out of business in 2001. It sold its assets to a venture capital fund called divine interVentures, which in turn sold the OpenMarket patents to Soverain Software in 2003.

"Thank you for calling Soverain technical support," says Wolanyck, if you press option 2. "If you are a current customer and have a tech support question, please call us at 1-888-884-4432, or e-mail us at support@soverain.com." That number, like the "customer support" number on Soverain's contact page, has been disconnected.

Mullin also includes a fantastic interview with Lee Cheng about why Newegg was willing to do this. It's worth reading in full, but here's just a snippet:

Patent trolling is based upon deficiencies in a critical but underdeveloped area of the law. The faster we drive these cases to verdict—and through appeal, and also get legislative reform on track—the faster our economy will be competitive in this critical area. We're competing with other economies that are not burdened with this type of litigation. China doesn't have this, South Korea doesn't have this, Europe doesn't have this.

Just in our experience, we've been hit by companies that claim to own the drop-down menu, or a search box, or Web navigation. In fact, I think there's at least four that claim to 'own' some part of a search box.

It's actually surprising how quickly people forget what Lemelson did. [referring to Jerome Lemelson, an infamous patent troll who used so-called "submarine patents" to make billions in licensing fees.] This activity is very similar. Trolls right now "submarine" as well. They use timing, like he used timing.

Then they pop up and say, "Hello, surprise! Give us your money or we will shut you down!" Screw them. Seriously, screw them. You can quote me on that.

Of course, once again, we wonder how companies like Amazon, who "settled" with Soverain, paying them tens of millions of dollars, feel about this. Why is it that the companies who settled over patents later declared invalid aren't able to seek their money back? Seems only fair.

Nearly three years ago, we had a short post about yet another trademark bullying dispute, this time over the term "power hour" as used to refer to the old college drinking game of taking a shot of beer every minute for an hour. A guy named Steve Roose somehow (via a USPTO screwup, basically) received a trademark on the phrase, which he was using to market some DVDs. He had gone on a rampage threatening and/or getting takedowns on lots of other sites that used the term "power hour," including against musician Ali Spagnola, who had an album / concept project called "Power Hour" consisting of 60 one minute songs. The idea, of course, was that each time the music changed (either live or while listening on your own), you take a drink. She even went the full CwF + RtB route with the thing, offering the album as its own shot glass with a USB key embedded in the bottom (though, annoyingly, she patented this little doohickey).

It turns out that there were a lot of twists and turns both before and after that post -- and you can (and should!) read the full crazy story, as explained (quite amusingly) by Ali herself. Or, if you want to take the shortcut, you can just watch this amusing video of Ali explaining part of it. My shortish version: Years earlier, Steve had enthusiastically approached Ali -- telling her he thought the music and concept were great -- and offering to help promote and sell her product. They actually signed an agreement, though he never actually sent her any money for any product sold. Then, a week after a normal friendly email exchange, Steve apparently discovered a bastardized version of trademark law, which unfortunately made him think that a requirement for holding a trademark is to be a complete jerk to anyone else who used the term. He sent Ali a legal(ish) nastygram ordering her to "seize" from continuing (I think he meant "cease") and was able to get her album taken down off of Amazon. After some emails back and forth, Ali took matters into her own hands (and wallet) and eventually coughed up about $30,000 to do a full opposition to the trademark. Crazy, I know. Steve defended his trademark by himself, and apparently did a piss poor job of it, even contradicting himself on some key points (both claiming that the trademark was totally original and his idea and explaining how "power hour" has been around for ages).

In the end, after all of this, Ali did win. You can check out the dry legal version from the Trademark Trial and Appeal Board (also embedded below) which is not nearly as entertaining as either Ali's video or her writeup. But, it's got some more details as well. Anyway, the key part:

Ultimately, the evidence of record points unmistakably to the conclusion that the proposed mark is highly descriptive. The third-party use of the term in conjunction with a drinking game is widespread and voluminous. Well before applicant’s claimed first use date, the term appears to have been established as the name of a drinking game. Because POWER HOUR refers to the game that applicant’s goods are designed to facilitate or accompany, we conclude that the proposed mark is merely descriptive of a significant feature or function of applicant's goods.

Translation? Drink up! And that's exactly what Ali, and her company "Binge Responsibly LLC" are intending to do. She's set up a Power Hour Freedom Victory Tour crowdfunding effort on IndieGoGo, to try to turn trademark bully lemons into crowdfunded touring lemonade. There are some cool offers as part of the crowdfunding campaign, so go check it out if you'd like to raise a shot glass full of beer to trademark bullies (finally) losing.

Oh, and be sure to get all the way to the amusing post script to the whole story, concerning the email that Ali received from "Steve Roose" after she won... in which someone who appears to be the same Steve Roose claims to be a different Steve Roose. Perhaps he's done one too many power hours...

Last week, we warned about the impending deadline if you wanted to unlock your phone "legally." That's because the Librarian of Congress took away the DMCA anti-circumvention exemption that allowed phone unlocking. If you're wondering why we even have the Librarian of Congress deciding such things, that's a much longer discussion. In the meantime, though, Derek Khanna has written an interesting piece of at The Atlantic, in which he points out that, not only is it illegal now to unlock your phone, it's possibly criminal thanks to some broad and ridiculous readings of today's copyright law. Until now, most people had been regarding this as purely a civil matter -- and one where it seemed (mostly) unlikely that companies would take too many people to court.

However, given how we've seen prosecutorial overreach on a variety of cases lately, including in the copyright realm, Khanna presents compelling evidence that unlocking a phone could trigger criminal charges. Specifically, he points to 17 USC 1204, which establishes what qualifies for criminal offenses for circumventing technical protection measures:

Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain...

In case you don't know, 1201 is the anti-circumvention part of the DMCA/Copyright Act.

Now, I can already hear people complaining that unlocking your phone for personal use isn't "willfully and for purposes of commercial advantage or private financial gain." Except, well, it is. Khanna explains how easy it would be for a prosecutor on a mission to "send a message" to make this argument:

Given copyright laws broad interpretation by the courts, it could be argued that merely unlocking your own smartphone takes a device of one value and converts it into a device of double that value (the resale market for unlocked phones is significantly higher) and therefore unlocking is inherently providing a commercial advantage or a private financial gain - even if the gain hasn't been realized. In other words, unlocking doubles or triples the resale value of your own device and replaces the need to procure the unlocked device from the carrier at steep costs, which may be by definition a private financial gain. Alternatively, one can argue that a customer buying a cheaper version of a product, the locked version vs. the unlocked version, and then unlocking it themselves in violation of the DMCA, is denying the provider of revenue which also qualifies. There are several cases that have established similar precedents where stealing coaxial cable for personal use has been held to be for "purposes of commercial advantage or private financial gain." (See Cablevision Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 109 (E.D.N.Y. 1997)); (Cablevision Sys. Dev. Co. v. Cherrywood Pizza, 133 Misc. 2d 879, 881, 508 N.Y.S.2d 382, 383 (Sup. Ct. 1986)).

Oh, so given all that, what kind of punishment could you get? It's a lot worse than the statutory maximum of $150,000 for willful infringement of a copyright work. No, now that we're talking circumvention and criminal penalties, a single offense can basically destroy your life:

(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense.

Khanna is right that it's unlikely that a prosecutor would choose to go this far, but just the fact that it's possible is absurd:

If people see this and respond, well no one is really going to get those types of penalties, my response is: Why is that acceptable? While people's worst fears may be a bit unfounded, why do we accept a system where we allow such discretionary authority? If you or your child were arrested for this, would it comfort you to know that the prosecutor and judge could technically throw the book at you? Would you relax assuming that they probably wouldn't make an example out of you or your kid? When as a society did we learn to accept the federal government having such Orwellian power?

And, while I doubt that prosecutors would straight up charge someone for merely unlocking their phone, if they're looking to pile on (or threaten to pile on) more charges against some "hacker" for a variety of other actions, it's not hard to see scenarios where this would be lumped in with other threats or charges.

Nearly two years ago, we wrote about how Aaron Tobey was suing the US government after he was detained by the TSA for trying to go through airport security without his shirt on, but with a paraphrased version of the 4th Amendment on his chest: At the time, I figured his case had little chance of succeeding. For reasons that don't make much sense, the courts have given the TSA an amazing amount of deference as long as they keep claiming something along the lines of "but we're all going to die!!!!!!" before defending any and every action to violate our basic privacy rights. However, it turns out I was wrong. Because, you see, the 4th Amendment might not matter any more, but the First Amendment is still important. And the court saw this as a clear attack on his attempt to speak freely:

Here, Mr. Tobey engaged in a silent, peaceful protest using the text of our Constitution—he was well within the ambit of First Amendment protections. And while it is tempting to hold that First Amendment rights should acquiesce to national security in this instance, our Forefather Benjamin Franklin warned against such a temptation by opining that those ‘who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.’ We take heed of his warning and are therefore unwilling to relinquish our First Amendment protections—even in an airport.

The ruling hit back on the claims by the TSA that the detention made sense because Tobbey's actions were "bizarre."

Appellants contend that Mr. Tobey has not pled a cognizable First Amendment claim because their actions were "reasonable" given Mr. Tobey’s "bizarre" and "disruptive" conduct....

Even conceding that Mr. Tobey’s behavior was "bizarre," bizarre behavior alone cannot be enough to effectuate an arrest. If Appellants caused Mr. Tobey’s arrest solely due to his "bizarre" behavior, Appellants’ cannot be said to have acted reasonably. This is especially the case given that the First Amendment protects bizarre behavior

The court also pushes back on the claims of "disruption," noting that the TSA seems to say that removing clothes itself is disruptive, but the court points out that there's an awful lot of clothing removal that happens at TSA checkpoints, so it is not obviously disruptive (though it leaves open the possibility of more evidence of disruptive behavior by Tobey). This was an appeals court panel, overturning a lower court decision against him. It's worth noting that the panel (a standard 3 judge panel) included one dissenter, who bizarrely and ridiculously argued that, not only do you give up your First Amendment rights at the airport, you do so because the TSA needs you to shut up so it can find the real terrorists. I'm not joking:

Had this protest been launched somewhere other than in the security-screening area, we would have a much different case. But Tobey’s antics diverted defendants from their passenger-screening duties for a period, a diversion that nefarious actors could have exploited to dangerous effect. Defendants responded as any passenger would hope they would, summoning local law enforcement to remove Tobey—and the distraction he was creating — from the scene.

How does one become a judge at the appellate level when arguing that you have different free speech rights during airport passenger screening because you shouldn't distract the TSA agents? That's quite an incredible statement.

Either way, the case still has a long way to go. This part just sends it back to the lower court to permit the case to move forward on First Amendment grounds.

Man, the International Olympic Committee (IOC) sure loves its trademarks. Many, many, many, many, many, many, many cases of the IOC's fierce brand protection have been detailed here, including taping over non-sponsor logos and seeking the power to enter homes to remove "unapproved signage." This has also rubbed off on a few Olympians, triggering trademark office filings to protect made-up words stolen from middling hip hop artists and self-given nicknames.

Via the IPKat we learn that the IOC has already locked down next year in preparation for the Winter Olympics. No, seriously. A trademark on the number "2014," which non-coincidentally happens to be a (lesser) Olympic year, has been granted by the UK's Intellectual Property Office.

The IPKat's attention has been drawn to Community Trade Mark E3307444. The mark in question consists of the number "2014", which no-one would ever imagine to be the appellation by which next year might just be known. Applied for in 2003 and registered in 2005, this mark is owned by none other than the Comité International Olympique of Château de Vidy, Lausanne.

So, with the kind of efficiency you only find in the most brutal of trademark bullies, the IOC has trademarked a number many people were planning to use starting next January, nine years in advance. And the IOC isn't leaving anything to chance. It has staked a claim on all 45 of the possible registration classes, including (but good god, certainly not limited to) chemicals, pharmaceuticals, metals/alloys, machines, tools, scientific equipment, surgical instruments, lighting, heating, vehicles, firearms, musical instruments, furniture, ropes, tarps, string, textiles, toys, coffee, fresh fruits and vegetables, beer, other alcoholic beverages, tobacco, insurance, conferences and seminars, design and development of computer programs, restaurant services, asbestos and security.

Anything and everything possibly covered by a registered trademark has been nailed down by the Committee, making it very possible that anyone using the number "2014" in the year 2014 might find themselves dealing with the IOC's trademark cops. IPKat suggests a workaround:

The IPKat doesn't feel he can safely use 2014 in the course of trade, so he has decided to call it "2013+1". Merpel isn't sure that this will work. The first three digits of 2014 also begin "2013" and, as is well known in decisions of the General Court and the Boards of Appeal of OHIM, consumers are likely to pay more attention to the beginning of a mark than to its end unless there's a good reason why they won't …

Does this mean that the IOC now has the power to go after anyone in an industry simply for using "2014?" Probably not, but the IOC certainly hasn't shown any willingness to curtail its overreach either. So it will probably be a mixture of the standard IOC branding aggressiveness coupled with a few instances of IOC branding WTF-ness, much of which we'll probably see covered here.

We've discussed in the past that the Future of Music Coalition was putting together a fantastic artists revenue streams project, in which they sought to look at the myriad ways in which musicians make money today. FMC has been releasing bits of data from the project here and there, but now TorrentFreak has alerted us to a big analysis of the data done by Northwestern Law professor Peter DiCola, entitled Money from Music: Survey Evidence on Musicians' Revenue and Lessons About Copyright Incentives. It's worth reading in its entirety.

TorrentFreak highlights one key point: which is that of the surveyed musicians a mere 6% of revenue comes from the sale of licensed music. We've long argued that music sales make up a minority of the revenue artists make, so it's good to see some support for that. Of course, the report notes that different types of musicians make money in different ways, so this does not mean that the 6% number applies across the board to all musicians. There certainly are some musicians who make a large percentage of their income from sales. But the key point is that those artists are in the minority, and focusing solely on music sales and changes to that market gives you a very distorted picture of how artists are making money, and the impact of things like a decrease in revenue from music sales. There is plenty of interesting data in the report, but one thing that struck me concerned the artists' general attitudes towards technology. It's mixed, to be sure, but some of the often-repeated claims by some maximalists don't appear to be true. For example, we hear stories that part of what's so unfair with the system today is that the artists are "losing control" over their works, but many artists don't agree with that at all, recognizing that technology means they have a lot more control over their works. The difference, of course, is that the complaints about "loss of control" were really more driven by the old gatekeepers -- mainly the major record labels. For them, it's true that they really have been losing control, but much of that control has actually moved back to the artists (and, yes, much of it has also gone to fans). But for artists who were outside of the major label system, it's often meant much more control over their own careers.

The end result is that artist attitudes towards technology and its impact on their careers is really mixed. In many cases, on key questions -- it seems like artists are almost equally divided. You can see that in the chart below: From this chart, you can actually see that just as many artists think that file sharing has helped them as think that it has hurt them. Remember that the next time someone claims to be speaking for all artists' attitudes on these kinds of things. If I had to guess, it seems likely that trends are moving more towards artists recognizing the benefits of such things -- but I could be wrong about that assumption. I guess we'll see the next time they do this survey.

The report also looks closely at how much copyright really impacts an artist's income. To hear some talk about this stuff, without copyright, there would be no way for artists to make money at all. However, as we've argued over and over again, many revenue streams have nothing to do with copyright, and the report bears this out. As noted above, direct sales only account for 6% of income on average, but the report digs in even more and looks artists across different income levels and genres, showing both differences across those different slices, but also confirming that there are many different revenue streams:

Those charts show some differences, including that higher earning musicians do tend to rely on copyright more, but it's still a relatively smaller part of their income than other sources.

Putting it all together, DiCola created this wonderful chart that looks at copyright- vs. non-copyright income across different income levels and genres: Really interesting stuff. Not surprisingly, composers rely on copyright quite a bit, as they tend to get a significant chunk of revenue from licensing efforts. But even they still tend to rely heavily on income that is at best, indirectly related to copyright. All in all a very interesting read, as you begin to realize that the primary story usually told -- that artists all rely on copyright and that infringement is clearly a bad thing -- isn't necessarily true across the board.

You may recall that in its quixotic attempt to go after Wikileaks, the US government has been snooping through the private communications of a bunch of folks they're trying to connect to the organization, including Icelandic politician Birgitta Jonsdottir and Jacob Appelbaum, who gets detained and harassed every time he re-enters the country. All of this came to light only because Twitter actually stood up to the US government and refused to just hand over info that was requested using the obscure 2703(d) process. Twitter also got the court to allow it to reveal the existence of the order (something that every other company which has received one has kept secret). A court eventually ruled that Twitter had to hand over the requested info.

Following this, Jonsdottir, Appelbaum and one other person, Rop Gonggrijp, (represented by the ACLU and the EFF), chose not to challenge that ruling, but did appeal concerning the secrecy around the order -- asking the court to have the specific 2703(d) order unsealed -- arguing that they have the right to access judicial documents about themselves. However, last week, an appeals court rejected that appeal, and basically said that the feds can sniff through your digital data without your knowledge, and, well, too bad if you don't like it.

Even though the court did find that 2703(d) orders are "judicial records," which could make them subject to a right to access, they then claimed that, well, when the government investigates things, it should be able to do so in absolute secrecy, and who really cares about pesky little things like oversight or a right to know about it.

Subscribers' contentions fail for several reasons. First, the record shows that the magistrate judge considered the stated public interests and found that the Government's interests in maintaining the secrecy of its investigation, preventing potential subjects from being tipped off, or altering behavior to thwart the Government's ongoing investigation, outweighed those interests.

Further, we agree with the magistrate judge's findings that the common law presumption of access to § 2703 orders is outweighed by the Government's interest in continued sealing because the publicity surrounding the WikiLeaks investigation does not justify its unsealing. The mere fact that a case is high profile in nature does not necessarily justify public access.... Additionally, Subscribers' contention that the balance of interests tips in the public's favor because the Government approved the disclosure of the existence of its investigation by moving the district court to unseal the Twitter Order is adequately counterbalanced by the magistrate judge's finding that the "sealed documents at issue set forth sensitive nonpublic facts, including the identity of targets and witnesses in an ongoing criminal investigation."

The government gets to peer deeper and deeper into our lives, and we're less and less able to even know about it.

The Digital Reader recently posted an article detailing a Virginia school district's problems with digital textbooks. Fairfax County Public Schools (FCPS) is making the switch back to paper textbooks, to the tune of $2 million, after running into system requirements that prevented some of its students from taking advantage of the digital books.

According to the Washington Post (and confirmed on an official website) Fairfax County Public Schools is currently in the process of replacing some recently licensed math textbooks with even newer paper copies.

FCPS has always been at the forefront of adopting new tech in classrooms, whether it is setting up 1:1 classrooms or pushing for greater participation in BYOD programs, and this school year they decided to go into digital textbooks in a big way. FCPS signed up 3 publishers, Pearson, Holt, and McGraw/Hill to provide online math textbooks for all students in all grades, K-12.

That’s an ambitious project, no? It would save students the effort of carrying the textbooks around while avoiding the need for expensive hardware like the iPad. I mean, almost everyone has a computer with internet access at home right?

Well, no, they don’t. And even for the ones that do have access, it turns out that is not enough.

The underlying problem here isn't an ill-timed leap into the digital world. It's the limits built into the e-textbooks by the publishers. In fact, FCPS's FAQ on the digital textbooks calls them what they really are: "online textbooks." Even if schools could purchase cheaper e-readers for students lacking access to broadband or a computer, the publishers are, at this point, unwilling to provide a downloadable option. In fact, the textbook publishers are constantly adding additional bells and whistles to their "online textbooks" (note the long list of additional software needed to use the curriculum) in order to avoid ever having to provide a stripped-down, downloadable version. Here are the system requirements for the "online textbooks" used by FCPS [PDF]:

Now, the requirements for schools are understandable, what with several simultaneous connections being the norm, but why should a textbook require an internet connection at home? Shouldn't that be optional? Even if homework is assigned that needed to be completed using the textbook, it should at least be able to store work locally and upload it once it has a solid connection. But it doesn't, and here's why: despite all the money being spent on these e-textbooks, at no time does the student ever have an actual local copy of the textbook. Instead, for all the money being spent, the students are in possession of nothing more than a license and a portal -- useless without a broadband connection, and impossible to move to a cheaper platform, like an e-reader.

So, the issue here isn't so much that FCPS made the mistake moving forward with digital textbooks, leaving some students out in the cold, but that Pearson and other publishers are unwilling to relinquish complete control of their digital offerings. This is what's keeping the situation from being more equitable. Offline options would remove the broadband requirement, and offering downloadable versions for e-readers would eliminate a large part of the technology gap. Hoffelder's underlying point that "education is supposed to be the great equalizer" is true, but the publishers' "online textbooks" are doing more to keep this gap from closing than this school district's pursuit of the next, newest thing.